I 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 112 Washington St., Boston, July 1, 1857. LAW BOOKS, RECENTLY PUBLISHED BY LITTLE, BROWN AND COMPANY, LAW AND FOREIGN BOOKSELLERS. [fcp" Orders by letter for any of these publications will be promptly a£t?B< ed to, and bound volume sent by mail to any post-office in the United Stai We invite the attention of the profession to our extensive and continually increas- ing stock of Law Books, both Foreign and Domestic, embracing every branch and department of Jurisprudence, including many rare and valuable French works. Catalogues may be had upon application. DIGEST OF ENGLISH REPORTS. A DIGEST OF THE DECISIONS OF THE COURTS OF ENGLAND, contained in the English Law and Equity Reports, from the first volume to the thirty-first inclusive. By Chauncey Smith, Esq. 8vo. Price, $5.50. This Digest contains an abstract of about forty-five hundred cases decided in the several Chancery, Common Law, Criminal, Admiralty, and Eccle- siastical Courts, and a complete synopsis of the decisions of the English courts for a period of five years. It has been carefully prepared, with particular reference to the conven- ience of the profession in this country. Every practitioner has felt, in the use of the English digests, the embarrassments to which the difference in the practice of the two countries subjects the American lawyer in the use of a book prepared expressly for the profession in England. A digest is a labor-saving device for economizing the time of a lawyer ; and any expedient which tends to promote that object adds to the value of the work. The Law and Equity Digest contains one feature of great utility : the abstract of each case has, at its commencement, a caption in Italics, indicatii * the point decided, and enabling the examiner to deter- mine at a glanc - if the case is one which he desires to consult. The table of cases is also more full and complete than any other which has been published in this country. It contains a reference not only to the Law and Equity Reports, but to all the different series published in Eng- land or reprinted in this country, and enables the lawyer to find any case 1 cited from any of these. By this means, the Digest is made an index to all the English Reports, and may be used with greater convenience than any other digest of English cases published in this country. " It well deserves to find a place upon the shelves of every lawyer, as a neat state- ment of principles, and a reliable reference to adjudged cases. To those who have purchased or may procure the Reports digested, it is an indispensable adjunct to a series which cannot otherwise be complete. To those conversant with the laws of England the digest before vis will serve to refresh the memory. To those who are not familiar with the cases decided by the courts of the mother country, it will serve as a source of valuable information given in a condensed form. To all it will prove an easy and speedy mode of acquiring legal information, which can be enlarged upon as necessity requires, by examining the cases referred to in the digest." — Louisville Journal. " This necessary companion to the English Law and Equity Reports is a most cred- itable performance. The cases are very fully set out; the analytical arrangement is excellent. The book will greatly facilitate the work of research. " The table is a most important addition to the work, and the references in each case is not only to the volume of the Law and Equity Reports where it is to be found, but also to the various Engljsh publications : this last more valuable to us than to the profession in the United States. There is also a reference to the page of the Digest. "Every one who possesses the Law and Equity Reports will of course procure a copy of this Digest; but apart from its worth in connection with the series to which it belongs, it possesses sufficient intrinsic value to commend it to the favorable notice of the profession here and elsewhere." — Upper Canada Law Journal. " From our examination of this Digest, we believe it to be an excellent one, and that it will compare well with any of its contemporaries." — Law Reporter. ENGLISH LAW AND EQUITY REPORTS. REPUBLICATION OF THE ENGLISH REPORTS IN FULL. CONTAINING THE REPORTS OF ALL THE CASES be- fore the House of Lords, Privy Council, the Lord Chancellor, the High Court of Appeal in Chancery, all the Common Law Courts, the Court of Criminal Appeal, and the Admiralty and Ecclesiasti- cal Courts. The cheapest, most complete and reliable series of English Reports issued in this country. Vols. I. to XXXVII. now ready for delivery, at $2 per volume. " We have so repeatedly expressed the high opinion which, in common with the mass of the legal profession, we entertain of this series of reports, that it would be entirely superfluous to say any thing more on the subject at present. No lawyer who endeavors to keep pace with the science of the common law and equity jurispru- dence can succeed without the regular study of the English as well as the American reports." — New York Commercial Advertiser. " We cannot but regard this as in every light a most important and valuable work to the legal profession, and eminently worthy of their patronage; while the fact that a publication so extensive, and requiring so great an outlay of capital, can be sustained in this country, gives a gratifying evidence that the Bar are, more than in former years, disposed to the study of the science of which they are the votaries." — /?*. Louis Hejjublican. UNITED STATES SUPREME COURT DECISIONS. JUDGE CURTIS'S EDITION. REPORTS OF DECISIONS IN THE SUPREME COURT OF THE UNITED STATES. With Notes and a Digest. By B. R. Curtis, one of the Associate Justices of the Court. In 22 vols. 8vo, including a Digest. These Reports comprise the Cases reported hy Dallas, 4 vols. ; Cranch, 9 vols.; Wheaton, 12 vols.; Peters, 16 vols.; Howard, 17 vols.; in all, 58 vols. They comprise the entire period from the origin of the Court to the end of the seventeenth volume of Howard. The Catalogue-price of the Old Series is $222. Judge Curtis's Edition is offered at the low price of $3 a volume, or ftGC'Tor the whole, including the Digest. The opinions of the Court are, in all cases, given as they have been printed by the authorized reporters, after correcting such errors of the press or of citation as a care- ful examination of the text has disclosed. I have endeavored ''to give, in the head- notes, the substance of each decision. They are designed to show the points decided by the Court, not the dicta or reasonings of the Judges. To each case is appended a note referring to all subsequent decisions in which the case in the text has been men- tioned. It will thus be easy to ascertain whether a decision has been overruled, doubted, qualified, explained, or affirmed ; and to see what other applications have been made of the same or analogous principles. — Extract from the Preface. " A work which is unquestionably the most useful and valuable addition that has been made to the legal literature of this country for many years, and which can never be superseded. This appreciation of its merits is concurred in by all the Justices of the Supreme Court, by the Attorney-General, and by all the eminent members of the bar who have expressed any opinion on the subject." — New York Commercial Ad- vertiser. " The complete work is a monument of skilful editorial labor and judicious pub- lishing enterprise. No greater service has at one time been rendered to the legal pro- fession in this country, than by the issuing of this series of the decisions of our highest Court." — New York Daily Times. " It is no more than justice to say, that the eminent character of the editorship, the nature of the matter, and the elegance of the printing, combine to make it one of the most valuable legal works ever issued." — Boston Post. "As we have done before, we commend this republication to the patronage of the bar. No lawyer could make an addition of greater and more permanent value to his library; as certainly none could be made in which so large an amount of matter could be obtained at so small a price." — St. Louis Republican. " It is almost indispensable, that every lawyer's library, which aspires to any thing approaching completeness, should contain the Reports of the decisions of the national tribunal, which, before this edition, was a severe tax. The work is done with neat- ness, and accuracy, and taste. The Digest is all that could be desired, and much needed, and with the Notes of the Edition, will prove of great convenience to the pro- fession." — Judge Redjield. CURTIS'S DIGEST OF THE UNITED STATES SUPREME COURT DECISIONS. A DIGEST OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, from the origin of the Court to the close of the December Term, 1854. By B. E. Cur- tis, one of the Associate Justices of the Court. 1 vol. 8vo. Price, $5.50. This Digest embraces all the published decisions'of the Supreme Court down to the present time, including seventeenth Howard. It is so arranged that it may be used in connection with the Reports of Messrs. Dallas, Cranch, Wheaton, Peters, and Howard, or with the twenty-one volumes of decisions as published by Mr. Justice Curtis (of which it forms the twenty- second volume). It contains a table of all Acts of Congress construed or referred to by the Court in their opinions, arranged in chronological order ; with references to the cases, and an appendix of practical directions for prosecuting writs of error and appeals to the Supreme Court of the United States, with the necessary forms ; and also a table of the cases decided, and another of the cases cited by the Court in their opinions. Cushing's Reports, Vol. X. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF MASSACHU- SETTS. By Luther S. Cushing. Vol. X., 8vo. $5.00. Gray's Reports, Vol. III. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF MASSACHU- SETTS. By Horace Grat, Jr. Vol. III., 8vo. $5.00. Curtis's Circuit Court Reports, Vol. II. REPORTS OF CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE FIRST CIRCUIT. By Hon. B. R. Curtis, Judge of the U. S. Supreme Court. Vol. II., 8vo. $5.50. Parsons on Mercantile Law. THE ELEMENTS OF MERCANTILE LAW. By Theophi- lus Parsons, LL. D., Dane Professor of Law in Harvard Uni- versity. 1 vol. 8vo. $5.50. " This volume should be read by every commercial lawyer, if for no other purpose than to refresh the memory upon topics which may have been once familiar. " A lawyer in practice is often called upon to investigate particular questions, but he is not called in a lifetime over the whole field of commercial law. He needs occa- sionally to read a text-book to refresh his memory upon the subject generally, to pre- pare himself for the investigation of particular questions. This volume appears to be just the work for this purpose. " We think this volume will also be useful and acceptable to intelligent merchants. Neither this work, or any other, will point out to a merchant the way out of difficulty when he is once involved in it, but it will give him a clearer idea of his rights and obligations, and thus save him from the difficulties into which he might otherwise fall." — Boston Post. "ilt is no small praise to say that the work before us justifies the expectation which the position of its author inevitably raises. It is simple, and yet profound; extensive in its scope, and yet eminently terse and condensed; it is an excellent guide to the student, and no less capable of being made useful to the learned practitioner." — New York Evening Post. " We cannot speak too strongly of the value to mercantile men of works which, like this, explain and illustrate the principles upon which business should be conducted. This volume — a good book for the lawyer— is a capital book for the merchant. We do not think any young man on the threshold of business can read this volume care- fully, and remeniber what he reads — he cannot help understanding it — without adding twenty-five per cent, to the value of his services in any commercial employ- ment." — Hunt's Merchants' Magazine. Story on Contracts. A TREATISE ON THE LAW OF CONTRACTS. By Wil- liam W. Story, Esq. Fourth Edition. Revised and greatly enlarged. 2 vols. 8vo. $11.00. " The law of contracts is the widest department in the science of jurisprudence, and is of the most general application. The legal practitioner needs to consult it almost constantly, so that the latest, the most copious and best arranged digest of authorities is always of the greatest utility to him. This enlarged and practical treatise by Mr. Story is therefore certain to be welcomed by lawyers who are actively engaged in professional business." — N. Y. Com. Advertiser. Leading Criminal Cases. A SELECTION OF LEADING CASES IN CRIMINAL LAW: with Notes. By Edmund Hastings Bennett, and Franklin Fiske Heard. Vol. I., 8vo. $5.00. " We do not hesitate to say that this will be found an exceedingly useful and con- venient work to the student or the practitioner of criminal law, and we trust it may be extended." — N. Y. Evening Post. " The selected cases are taken from both British and American Reports, and the editors, in preparing their notes, seem to have faithfully explored the whole field of English, Irish, and American adjudication, and to have embodied the result in a clear, systematic, and condensed manner. We cannot doubt that the work will speedily attain a high repute, and be, in all respects, a valuable aid to all concerned in the administration of the branch of the law of which it treats." — St. Louis Republican. Walker's Introduction. INTRODUCTION TO AMERICAN LAW ; Designed as a First Book for Students, by Timothy Walker, LL. D., late Professor of Law in the Cincinnati College. Third Edition, enlarged and revised. 8vo. $5.50. " We take leave of Mr. Walker with grateful acknowledgments for the pleasure with which we have read his work, and repeat our sense of its value as an accession to our legal literature. We have found in it much to admire and very little to qualify that admiration. Its systematic arrangement, its comprehensiveness, its accuracy, and its clear simplicity of style, will inevitably rescue it from the fate of that crowd of law-books, whose 'dissoluble fragments ' the waves of time are perpetually wash- ing away. The intelligent student will value it as a clear-sighted guide in the early stages of his toilsome pilgrimage, and the accomplished lawyer, if he be free from the narrow prejudices which the profession sometimes engenders, will not turn away with disdain from its unpretending pages, for though it does not pretend to teach him any thing new, lie will esteem it for the manifestation of a vigorous, reflective, and accom- plished mind, which he will everywhere find in it." — American Jurist. " It would be difficult to find seven hundred and fifty pages which give a more just and complete idea of what law is, or furnish so desirable an outline, whether the reader's object is to obtain a general knowledge of the science, or to prepare himself for a full and thorough investigation of its departments, or merely to determine his own aptitude for the profession whose domain it covers. It is not characterized by that too sententious brevity which renders some elementary treatises the dry and re- pulsive enumeration of stiff generalizations, while it avoids that protracted discussion which can only be compassed by many ponderous tomes. The style is simple, and technicalities are translated into common phrase. The author's enunciations of prin- ciples arc decisive, but marked by a prudent regard for authority." — Boston Ad- vertiser. " This treatise is designed, as the title-page states, to introduce students of the law to their chosen profession, and we have the authority of eminent lawyers that it answers this purpose better than auy of its predecessors." — Chicago Tribune. Wheaton's International Law. ELEMENTS OF INTERNATIONAL LAW. By the late Hon. Henry Wiieaton. Sixth Edition, Revised, Annotated, and brought down to the present time, with a Biographical Notice of Mr. Wheaton, and an Account of the Diplomatic Transactions in which he was concerned. By Hon. William Beach Lawrence, formerly Charge d' Affaires at London. 8vo. $G.00. " After the unqualified praises which the most distinguished jurists and publicists of America and Europe have united in bestowing upon Dr. Wheaton's Elements of In- ternational Law, and when the work has become a standard authority, constantly recognized by diplomatists in all parts of the world, we think it would be quite super- fluous to enlarge upon its merits. Wheaton's preeminence in the law of nations is as firmly established as that of Kent and Story in municipal law, anil his name will, like theirs, reflect honor upon our country through all time." — N. Y. Com. Advertiser. " Wheaton's work is now everywhere regarded as an authority in questions of the Law of Nations. Mr. Lawrence,"m his introductory remarks, says that ' in the cabi- nets of Europe it has replaced the elegant treatise of Vattel.' It is more generally cited, we believe, in courts, than any other treatise on public law." — N. Y. Eve. Post. Ware's Reports. REPORTS OF CASES argued and determined in the District Court of the United States for the District of Maine. Second Edition, revised and corrected by Ashdr Ware. 8vo. $5.50. Cushing's Parliamentary Law. ELEMENTS OF THE LAW AND PRACTICE OF LEGIS- LATIVE ASSEMBLIES IN THE UNITED STATES OF AMERICA, by Luther Stearns Cushing. Royal 8vo. $5.00. U. S. Annual Digest, 1855. UNITED STATES DIGEST ; Containing a Digest of the Decis- ions of the Courts of Common Law, Equity, and Admiralty in the United States and in England, for the year 1855. By John Phelps Putnam, Esq. Royal 8vo. $5.00. LAW BOOKS IN PRESS AND PREPARING FOR PUBLICATION. I. A SELECTION OF LEADING CASES ON ADMIRALTY LAW, with Notes, by B. R. Curtis, LL. D. II. AMERICAN RAILWAY CASES. Edited by Chauncey Smith and S. W. Bates, Esqs. Vol. 3. III. UNITED STATES DIGEST; containing a Digest of the Decis- ions of the Courts of Common Law, Equity, and Admiralty in the United States and in England, for the year 1856. By George S. Hale, Esq. Royal 8vo. IV. A TREATISE ON THE REVENUE LAWS OF THE UNITED STATES, by C. C. Andrews, Esq. 1 vol. 8vo. COMMENTARIES ON CRIMINAL LAW. By Joel Pren- tiss Bishop, Esq., author of " Commentaries on the Law of Marriage and Divorce." Vol. II., containing the Law of Specific Offences. VI. THE PRINCIPLE AND RULES OF LAW regulating the Property of Husband and Wife, and Civil Actions therefor. By Hon. Edward G. Loring. VII. A TREATISE ON MARITIME CONTRACTS. By Hon. The- ophilus Parsons, LL.D., Dane Professor in the Law School of Harvard University. 2 vols. 8vo. vni. A TREATISE ON THE LAW OF RAILWAYS. By Isaac F. Redfield, LL.D., Chief Justice of Vermont. 1 vol. 8vo. (Ready in October.) IX. THE LAW OF VENDORS AND PURCHASERS OF REAL PROPERTY. By Francis Hilliard, Esq. X. A TREATISE ON THE LAW OF HIGHWAYS, Dedication of Travelling, Travellers, etc. ; by Joseph K. Angell. 1 vol. 8vo. XI. ARBITRATION AT COMMON LAW — In Equity, and under the Statutes of the States of the United States. By the Hon. Edward G. Loring. 1 vol. 8vo. XII. A TREATISE ON THE CONSTRUCTION OF THE STAT- UTE OF FRAUDS. By C. Browne, Esq. 1 vol. 8vo. This book will aim to present a full view of the Law, as held by the English and American Courts, upon the constructiou of the Statute 29 Car. 11, cap. 3, with the modifications under which it has been adopted in the different States of the Union. Comprising the latest rulings in both countries, with an appendix, giving an analytic view of the English and American enactments, with their successive alterations. XIII. A TREATISE ON THE LAW OF BANKRUPTCY AND INSOLVENCY. By a member of the Boston Bar. 1 vol. 8vo. XIV. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF MASSACHU- SETTS. By Horace Gray, Jr. Esq. Vol. IV. xv. REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT OF MASSACHU- SETTS. By Hon. Luther S. Cushing. Vol. XI. XVI. LAW AND EQUITY REPORTS. The Common Law, Equity, Criminal, Admiralty, and Ecclesiastical Reports combined. Edited by Chauncey Smith, Esq. Vol. XXXVIII. DIGEST THE LAW OF REAL PROPERTY. BY WILLIAM CRUISE, ESQ. BAP.RISTER AT LAW. REVISED AND CONSIDERABLY ENLARGED BY HENRY HOPLEY WHITE, ESQ. BARRISTER AT LAW, OF THE MIDDLE TEMPLE. FURTHER REVISED AND ABRIDGED, WITH ADDITIONS AND NOTES FOR THE USE OF AMERICAN STUDENTS, BY SIMON GREENLEAF, LL.D. EMERITUS PROFESSOR OF LAW EN HARVARD UNIVERSITY. IN SEVEN VOLUMES. VOLUME I. CONTAINING A PRELIMINARY DISSERTATION ON TENURES. Title 1. Estate in fee simple. 2. Estate in tail. 3. Estate for life. 4. Estate tail after possi- bility. 5. Curtesy. 6. Dower. Title 7. Jointure. 8. Estate for years. 9. Estate at will and at sufferance. 10. Copyhold. 11. Use. 12. Trust. SECOND EDITION. BOSTON: LITTLE, BROWN AND COMPANY. 1856. Entered according to Act of Congress, in the year 1856, By James Greenleaf, in the Clerk's Office of the District Court of the District of Massachusetts. T~ C K RIVERSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. TO MY BELOVED PUPILS THESE LABORS, ORIGINALLY UNDERTAKEN FOR THEIR BENEFIT, ARE INSCRIBED, BY THEIR AFFECTIONATE FRIEND, SIMON GREENLEAF. 671571 THE ENGLISH EDITOR'S PREFACE It is now thirty years since Mr. Cruise's Digest of the Law of Real Property was first published. During that time it has gone through three large editions ; and a fourth being required, is such unequivocal proof of merit, that it would be inpertinent, in this place, to attempt any commendation of a work, already so strongly impressed with the stamp of public approbation. In preparing the present, the Editor has carefully en- deavored to preserve the integrity of the text of the third edition ; and in almost every instance, the corrections, alterations, and additions will be found within brackets. He has corrected whatever errors were discovered, either in the statements of the cases cited by Mr. Cruise, or in his conclusions ; and has added the leading authorities reported since the publication of the ttiird edition.' The several statutes, lately effecting important and ex- tensive changes in the law of real property, very much increased the anxiety and. responsibility of the laborious task undertaken by the Editor; and in the execution of vi ENGLISH EDITOR S PREFACE. that portion of his duty more particularly, he feels some claim must be made upon the indulgence of the profession. He cannot be so sanguine in the success of his efforts, as to suppose there are not many instances, in which the bear- ings of these statutes upon the old law have escaped his attention. Indeed, many years must elapse before all the consequences of the changes can be known. Nearly 1100 cases, either stated or referred to, have been added in the present edition, and these are distin- guished in the Index of Cases by an asterisk. The Editor is responsible for Chapter XVI. on Powers of Sale and Exchange, under the title Deed, Vol. IV.; and for the additional Chapter on Merger, Vol. VI. For the insertion of the latter, an apology is not deemed neces- sary, the subject being important, and but incidentally noticed by Mr. Cruise. The Editor most fully acknowl- edges his obligations to the valuable labors of Mr. Preston, in his third volume of Conveyancing : but thinking the subject of Merger, not exhausted, and that a short treatise upon it would be acceptable, he ventured to insert the Chapter under Tit. XXXIX. The Acts relating to real property, passed in the last session of Parliament, and subsequently to the printing of the fifth volume, have been inserted or abridged in an Appendix, Vol. VII. ; and through this medium, the Editor has offered some observations upon a few points, that have occurred* in practice, principally respecting the construction of the English Act for abolishing fines and recoveries. Until the second volume was nearly printed, he was not aware of the inaccuracies in the references to cases, in the ENGLISH EDITOR S PREFACE. Vli margin of the last edition : when, therefore, such inaccu- racies in the first two volumes are not mentioned among the Errata, the reader will find the names and references accurately inserted in the General Index of Cases, Vol. VII. The references to the cases in the four succeeding volumes have been examined and corrected ; and, through the kindness of friends, the Editor has collated several copies of the former editions. Lincoln's Inn, November, 1834. PREFACE TO THE FIRST AMERICAN EDITION. Though the work of Mr. Cruise has been more than forty years before the public, it still remains unrivalled, as the most comprehensive and best digested system of the law of Real Property. Others have been published more compact in form, and containing the more recent decisions ; but their brevity in the statement of the cases, though no small merit in a book of reference in the eyes of the practi- tioner, renders them in the same proportion less useful to the student. For this reason, principally, this work has been retained as a text-book, in preference to all others, in the Law School of Harvard University ; though the numerous modifications which this branch of the law has subsequently received in England and America, augmented, in no small degree, both the labors of the instructer and the perplexi- ties of the student. To obviate these difficulties, the prep- aration of the notes to this edition was originally under- taken, and they are now with diffidence made public. In correcting the text, the Editor has endeavored to abridge those cases which were transcribed at large from X PREFACE TO THE FIRST AMERICAN EDITION. books easily accessible to every American lawyer, retaining the full reports of those cases only which cannot conveni- ently elsewhere be found. The titles, chapters, and cases, which are believed to be of no use to the profession in this country, have been wholly omitted. Most of the English statutes, enacted prior to the revolution, have been re- tained as they stood in the text ; including all those which were passed before the settlement of the American colonies, and are supposed to have been brought over and adopted by the colonists as parts of the English law. The later statutes, contained in the body of the work, have been transferred, generally in an abbreviated form, to the notes ; but the Editor has not deemed it expedient to take notice of any other changes made by recent statutes in England. It was his original intention to embody in the text (dis- tinguished by parentheses) all the cases in which the common law has been modified and expounded, in both countries ; but this design, after proceeding in it to some extent in the first volume, was abandoned, and all new matter confined to the notes. The most embarrassing difficulty which the Editor has had to encounter, has been in regard to the local laws of the several United States. Though he has had access to the Revised Codes of all whose laws he has attempted to state, which may be supposed to contain the most permanent of their legislation on the subject of real property ; yet as to several of them, especially the more distant States, it has not been in his power to obtain the very latest of their stat- utes. And in all the Western States, and in a degree in some of the others also, such is the unsettled character of the population, that the entire body of municipal law may PREFACE TO THE FIRST AMERICAN EDITION. xi be justly regarded as still in a state of experiment. All, therefore, that the Editor could do, was to give the dates of the statutes to which he has referred, leaving to the reader the labor of further research. Information of any errors which may be found in this or any other part of the work, will be thankfully received by the Editor, and corrected in a future edition, should this attempt receive encouragement from the profession. Boston, March 5, 1849. ■r II. I,m:i Cl:.lf/I/I.ll, I'JLUtT Ot '■/IK TIME OI'TIIK S.tXn I v 'I'll Till T/i, ti,/.i,/i,,i ,///„., //,,„/ ,../, ,/, , /«,//« ,// ,„ ,, w ,„„,, , „„/«„/„//, /, . /.„, „, < \i,iA/ f/i, „ "'■ '"' '» ""■ "/" ■■"'■■/ /i mlnured Pol IIS f/t,t, ///.,„/„,,■> ,,„,/ / >./„,„„, »/>,./, ,/,,,.„,, ,„/,„,„/,/,„, //„ >,„.),. .„ i-,,,,,., ,/,„,,,/„■„. „fin*/ ff *<*.„„ .„„„,,./ /, , ,, , , ///, ,.,/„„ „/„,/, ADVERTISEMENT TO THE FIRST AMERICAN EDITION. The additions made to the text by Mr. White are in- cluded in brackets, [ ] ; and those of the present Editor in parentheses, ( ). Those portions of the former text which are now transferred to the notes, are marked by a (f ), or some similar character. The notes of Mr. White, including the very few made by Mr. Cruise, are marked in like man- ner. The notes of the present Editor are distinguished by the numerals 1, 2, 3, &c. ; and the authorities added by him to the citations in support of the text, are included in paren- theses. The pages referred to, throughout the work, are those of Mr. White's edition. VOL. I. ADVERTISEMENT TO THE SECOND EDITION. In preparing this Edition for the press, the notes, which Mr. Greenleaf had made in anticipation of a new Edition, are added to his former notes. The Editor has given references to the decisions made, and to some of the statutes passed, since the publication of the former Edi- tion. What he has added is placed in the notes in brackets, [ ], either without any reference to the text, where they form part of other notes, or with a reference to the text by the numerals 1, 2, 3, &c. It will be recollected that the notes of the English Editor are also included in ], but the references to the text are by a f or t, &c. For the greater convenience of reference from the Index, the volumes of this Edition have been paged consecutively to the end of each volume, and the references from the Index are to this paging. This will not interfere with other refer- ences, as the star paging has been preserved. It is hoped that some of the difficulties of reference from the Index felt in the former volumes will in this manner, and by the lettering of the binder, be avoided. Boston, October, 1856. ADVERTISEMENT. 1 The reader will doubtless observe, that in the lists of " Books of Reference," under the respective titles in these volumes, the Editor has not affected to make a complete catalogue of authors, it being his intention only to direct the student to a few elemen- tary treatises on the subject of each title. Of course it was not within his plan to include the several abridgments both of Eng- lish and American law ; works not only in every lawyer's library, but designed rather for the use of the practitioner than for the student. To obviate any misconception which may have arisen, he deems it proper to state that it was for this reason, and not for any light estimation of their merits, that some of these valu- able abridgments are not inserted in the list, and that the others are so rarely referred to. 1 The above Advertisement was prefixed by Mr. Greenleaf to the second volume of his edition of Cruise. XIX ANALYSIS OF THE DIGEST. f 1 . Several Kinds. Tenures by which it is held. [ 1. Corporeal or Land. Estates therein. 1. Quantity of Interest, f 1. Freehold. ' 1. Estate in Fee Simple. 2. Estate in Tail. 3. Estate for Life. 4. Estate Tail after Possibility, &c. 5. Curtesy. 6. Dower. 7. Jointure. 2. Less than Freehold. ( 1. Estate for Years. \ 2. Estate at Will, and at Sufferance. 3. Customary. Copyhold. 4. Equitable, j 1. Use. \ 2. Trust. 5. Upon Condition. 6. As a Pledge or Security. ( 1. Estate by Statute Merchant, &c. ( 2. Mortgage. 2. Time of Enjoyment. ( 1. Possession. < 2. Kemainder. I 3. Reversion. 3. Number and Connection of the Tenants. Severalty. Joint Tenancy. Coparcenary. Common. [ 2. Title thereto Incorporeal. f 1. Advowson. 2. Tithes. | 3. Common. I 4. Ways. | 5. Offices. 6. Dignities. I 7. Franchises. [8. Rents. Descent. Purchase. Escheat. Prescription. Alienation. 1. Deed. 2. Matter of Record, f 1 . Private Act. J 2. King's Grant. ] 3. Fine. (4. Recovery. 3. Special Custom. 4. Devise. The Chapter on Merger has been added by the English Editor. TABLE OF THE TITLES. Vol. I. Vol. III. Title 1. Estate in Fee Simple. Title 21. Advowson. 2. Estate Tail. 22. Tithes. 3. Estate for Life. 23. Commons. 4. Estate Tail after Pos- 24. "Ways. sibility. 25. Offices. 5. Curtesy. 26. Dignities. 6. Dower. 27. Franchises. 7. Jointure. 28. Rents. 8. Estate for Years. 29. Descent. 9. Estate at Will, &c. 30. Escheat. 10. Copyhold. 31. Prescription. 11. Use. 12. Trust. Vol. IV. 32. Deeds. Vol. II. Vol. V. 13. 14. Estate on Condition. Estate by Statute 33. 34. 35. Private Acts. King's Grants. Fines. Merchant, &c. 36. Recoveries. 15. 16. Mortgage. Remainder. 37. Alienation by Custom 17. Reversion. 18. Joint Tenancy. Vol. VI. 19. Coparcenary. 38. Devise. 20. Tenancy in Common. 39. Merger. Vol. VII. Indexes. CONTENTS OF THE FIRST VOLUME, PRELIMINARY DISSERTATION ON TENURES. CHAP. I. Feudal Law. Sect. Star page. 1. Sources of the English Law 13. Origin of Feuds 3 29. Definition of . 8 32. Different Kinds id. 35. Investiture .... 9 40. Oath of Fidelity . 10 42. Homage .... 11 44. Duties of the Lord and Vassal id. 47. Feudal Aids 12 48. Estate of the Vassal id. 50. Was unalienable .... id. 52. Subinfeudation 13 54. Estate of the Lord id. 56. His Obligation on Eviction id. 59. Descent of Feuds 14 67. Feudum Talliatum 15 69. Investiture upon a Descent id. 70. Relief . 16 71. Escheat .... id. 72. Feudal Forfeitures id. 78. The Lord might forfeit his Seignory 17 79. Feudal Jurisdiction id. CHAP. II. . Ancient English Tenures. 1. Introduction of Feuds . 5. Division of Tenures 7. Tenure in Capite . 12. Statute of Quia Emptores 13. Tenure by Knight Service 17. Homage 19 20 21 22 id. 23 XXIV CONTENTS OF VOL. I. Sect. Star page. 20. Fealty . 24 22. Fruits of Knight Service id. 23. Aids id. 25. Reliefs . 25 26. Primer Seisin id. 28. Wardship . . 26 30-. Marriage . id. 32. Fines for Alienation . 27 33. Escheat . id. 34. Tenure by Grand Serjeanty id. 35. Abolition of Military Tenures CFL .• 28 kP. III. Modern English Tenures. TITLE I. ESTATE IN FEE SIMI •LE. 1. Of Real Property .... . 45 2. Corporeal or Land id. 3. (Shares in Corporate Stocks) 46 4. Money to be laid out in Land id. 5. Heir Looms and Charters id. 7. (Fixtures) .... id. 9. (Trees and Crops) id. 10. Incorporeal .... id. 11. Estates in Land 47 13. Estates of Freehold id. 22. Of Seisin .... 49 23. Where an Entry is necessary id. 30. Abatement .... . 51 32. Disseisin .... id. 35. Abeyance of the Freehold 52 38. Who may have Freehold Estates 53 42. Estates in Fee Simple . 54 46. Abeyance of the Fee 55 48. All other Estates merge in the Fee 56 51. Incidents to Estates in Fee Simple id. 52t Alienable id. 54. Descendible to Heirs General 51 55. Subject to Curtesy and Dower id. 56. Liable to Debts ; . id. 59. Of Crown Debts . 60 62. How contracted id. 63. Bind the Lands when contracted 61 65. Into whose Hands soever they pass 62 66. How discharged id. CONTENTS OF VOL. I. XXV Sect. 67. Estates in Fee forfeited for Treason, &c. 70. And for Disclaimer .... 71. Qualified Fees Star page. . 63 . 64 id. TITLE II. ESTATE TAIL. CHAP I. Of the Origin and Nature of Estates Tail. 1. Of Conditional Fees 8. Statute De Donis . 12. Description of an Estate Tail 13. Tail General and Special 14. Tail Male and Female . 17. Estates in Frank Marriage 19. Estates Tail are held of the Donor 22. How created 23. What may be entailed . 30. Who may be Tenants in Tail 31. Incidents to Estates Tail 32. Power to commit Waste 36. Subject to Curtesy and Dower 37. But not to Merger 39. Tenant in Tail entitled to the Deeds 40. Is not bound to pay off Incumbrances CHAP. II. Power of Tenant in Tail over his Estate, and Modes of barring Could only alien for his own Life .... His alienation not absolutely void .... Sometimes a Discontinuance . Sometimes voidable by Entry .... When Alienation by Tenant in Tail creates a Base Fee Cannot limit an Estate to commence after his Death Exception ....... The Issue not bound by his Ancestor's Contracts Unless he confirms them 1. 4. 6. 11. 13. 16. 19. 20. 27. 29. Nor subject to his Debts 30. Except Crown Debts 35. Tenants in Tail may make Leases 3G. Are subject to the Bankrupt Laws 37. And to Forfeiture for Treason 43. But not for Felony 44. Modes of barrinjr Estates Tail 66 69 70 id. id. 71 72 id. id. 74 id. id. 75 id. id. id. 77 78 id. 79 80 id. 83 id. 84 85 id. 87 id. 90 91 id. VOL. I. XXVI CONTENTS OF VOL. I. TITLE III. ESTATE FOR LIFE. CHAP. I. Nature of an Estate for Life and its Incidents. Sect. 1. Description of ... 2. How created .... 9. Held of the Grantor 10. Not entailable .... 14. Subject to Merger 16. Tenants for Life entitled to Estovers 21. And to Emblements 26. May pray in Aid .... 27. Not bound to pay off Incumbrances' 28. But must keep down the Interest . 29. When they may keep the Title Deeds 32. May alien their Estates . And when constructive Trustees may convey the whole Fee 33. What Acts amount to a Forfeiture 43. General Occupancy .... 45. Estates pour aider vie vest in Executors 48. Special Occupancy .... 55. Ecclesiastical Persons are quasi Tenants for Life Star page, 101 102 103 id. 104 id. 105 106 id. id. 107 108 id. id. 110 111 id.. 114 CHAP. II. Waste by Tenants for Life. 1. Different kinds of Waste 115 2. Felling Timber id. 11. Pulling down Houses ........ 117 14. Opening Pits or Mines 118 18. Changing the Course of Husbandry . . . . .id. 20. Destruction of Heir Looms . . . . . . .119 21. Permissive Waste id. 25. Of the Action for Waste id. 34. Waste restrained in Equity . . . . . . .121 35. The Timber belongs to the Person entitled to the Inheritance id. 42. May be cut down by Order of the Court of Chancery . .125 47. Of the Clause without Impeachment of Waste . . . 127 56. How far restrained in Equity . . . . . .128 64. Is annexed to the Privity of Estate 130 65. Partial Powers to do Waste ....... id. 68. Waste by Ecclesiastics ........ id. 76. Of Accidents by Fire 132 CONTENTS OF VOL. I. XXVll TITLE IV. ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT. How it arises ..... Has some Qualities of an Estate Tail But is in Fact only an Estate for Life . This Tenant has the Property of the Timber But is restrained from malicious Waste . Star page. 134 135 136 id. 137 id. TITLE V. CURTESY. CHAP. I. Origin of Estates by the Curtesy, and circumstances required to their Existence. 1. Origin of Ciu*tesy .... 4. Circumstances required . 5. I. Marriage ..... 6. II. Seisin ..... 15. III. Issue 16. "Who must be born alive 17. In the Lifetime of the Wife . 19. And be capable of inheriting the Estate 24. IV. Death of the Wife . 25. Curtesy in Gavelkind 26. Who may be Tenants by the Curtesy 139 140 id. id. 142 id. 143 id. 144 id. id. CHAP. II Of what Things a Man may he Tenant by the Curtesy, and Nature of this , Estate. 1. Estates in Fee Simple . 4. Estates Tail . 10. Estates in Coparcenary . 11. Trust Estates . ' . 13. Money to be laid out in Land 15. Equities of Redemption . 16. Incorporeal Hereditaments 17. What Things are not liable to 18. Estates not of Inheritance 22. Estates in joint Tenancy 23. Remainders and Reversions 25. Lands assigned for Dower Curtesy 145 146 147 id. id. 148 id. id. id. 149 id. id. XXV111 CONTENTS OF VOL. I. Sect. 26. Nature of this Estate 31. Forfeitable for Alienation 33. But not for Adultery 34. This Tenant is punishable for Waste Star page. . 149 . 150 id. TITLE VI. DOWER. 19. 26. 27. 28. CHAP. I. Origin and Nature of Dower. 1. Origin of Dower 5. Dower at Common Law 7. Dower by Custom . 11. Circumstances required . 12. I. Marriage . 14. How proved . 15. Effect of Divorces . II. Seisin of the Husband III. Death of the Husband Who may be endowed . Who are incapable of Dower 29. Aliens 151 153 154 id. id. 155 id. 156 158 id. 159 id. CHAP. II. Of what Tilings Dower may be, and Nature of this Estate 1. Estates in Fee Simple . 3. Estates Tail 6. Qualified or Base Fees . 7. Estates in Coparcenary and Common 8. Remainders and Reversions after Estates for Years 10. Equities of Redemption of some kinds 11. Incorporeal Hereditaments 12. Where a Widow has an Election . 13. What Things are not liable to Dower 14. Estates in Joint Tenancy 15. Estates held by Copartners in Trade 17. Estates not of Inheritance 18. Wrongful Estates .... 20. Lands assigned for Dower 24. Uses, Trusts, and Mortgages . 26. Where Dower and Curtesy cease with the Estate 27. Nature of this Estate . 29. The Dowress entitled to Emblements 30. Restrained from Alienation . 160 161 162 id. id. id. 163 id. id. id. id. id. id. 164 id. 165 id. id. id. CONTENTS OF VOL. I. XXIX Sect. S,ar P a g«- 32. And from "Waste 166 34. Not subject to her Husband's Incumbrances _ . . .id. 35. In some cases Dower depends upon the Election of third Persons id. CHAP. III. Assignment of Dower, and Modes of recovering it. 1. Necessity of an Assignment . 2. Who may assign Dower 6. How it is to be assigned 18. Remedies against an improper Assignment 23. Effect of an Assignment of Dower . 26. Actions for recovering .... 27. May be obtained in Chancery 168 id. 169 171 172 id. id. CHAP IV. What will operate as a Bar or Satisfaction of Dower 2. Attainder of the Husband 4. Attainder of the Wife 4. Elopement with an Adulterer 11. Detinue of Charters 13. Fine or Recovery . 14. Deed .... 15. Bargain and Sale in London 16. Jointure .... 18. An outstanding Term 19. A Devise is no Bar to Dower 24. Unless so expressed, when the Widow has an Election 29. Sometimes held a Satisfaction .... 32. A Bequest of Personal Estate no Bar to Dower 174 175 id. 176 177 id. id. id. id. 178 180 181 185 TITLE VII. JOINTURE. CHAP I. Of the Origin and Nature of Jointures. 1. Origin of Jointures 5. Definition of . 6. Circumstances required. 187 189 id. XXX CONTENTS OF VOL. I. " 7. I. Must commence on the Death of the Husband 9. II. And be for the Life of the Wife 12. III. Must be limited to the Wife herself 13. This Rule is not admitted in Equity 17. IV. It must be in Satisfaction of her whole Dower 18. V. And be so expressed .... 21. VI. And made before Marriage 22. Jointures which require the Acceptance of the Widow 25. Cases where the Widow takes the Estate and Dower 26. Equitable Jointures .... 30. Who may limit a Jointure 34. Who may take a Jointure 35. An Infant is barred by a Jointure . 39. An Infant not bound by uncertain or precarious Jointure 40. Nature of this Estate .... 41. Jointress may not commit Waste 44. Contribution by Jointress 45. Jointress not entitled to Emblements 46. Not liable to Crown Debts 47. A Rent Charge is usually given as a Jointure 48. Effect of the Eviction of a Jointure Star page. 189 190 id. id. 191 id. 192 id. 193 194 195 id. id. 200 id. id. 201 id. id. id. id. CHAP. II. Where a Jointress is aided in Equity. 1. A Jointress is deemed a Purchaser .... 4. Though the Settlement be unequal .... 7. Relieved against a Voluntary Conveyance 8. Not against a bond fide Purchaser without Notice 9. Relieved where a Power to Jointure defectively exercised 10. And against a satisfied Term 11. Not bound by Neglect during the Coverture . 14. Nor to deliver up Title Deeds 17. Sometimes allowed Interest for Arrears .... 18. Effect of a Covenant that the Lands are of a certain Value 203 204 205 id. id. id. id. 206 id. 207 CHAP. III. What will operate as a Bar or Satisfaction of a Jointure. 1. Fine or Recovery by the Wife .... 3. Not barred by the Attainder of the Husband . 4. Nor by Elopement of the Wife .... 7. A Devise is no Bar to a Jointure .... 13. Unless so expressed, when the Widow ha,s an Election 15. A Devise sometimes held a Satisfaction . 208 209 id. 210 220 id. CONTENTS OF VOL. I. XXXI TITLE VIII. ESTATE FOR YEARS. CHAP. I. Origin and Nature of Estates for Years. Sect. 1. Estates less than Freehold .... 2. Origin of Estates for Years .... 3. Description of ...... 9. Introduction of long Terms .... 10. Tenant for Years has no Seisin 12. But must make an Entry .... 15. An Entry before the Lease begins is a Disseisin 18. Estates for Years may commence in futuro 19. And be assigned before Entry 22. May determine by Proviso .... 23. Are Chattels real 24. And vest in Executors ..... 34. A Freehold cannot be derived from a Term Star page. 222 id. 223 224 id. 225 id. 226 id. 227 id. id. 229 CHAP. II. Of the Incidents to Estates for Tears. 1. Tenants for Years entitled to Estovers 2. But cannot commit Waste 12. Clause without Impeachment of "Waste 16. Accidents by Fire .... 18. When entitled to Emblements 19. Estates for Years subject to Debts . 20. Alienable 21. And may be limited for Life with a Remainder 22 But not entailed ..... 26. Merged by a Union with the Freehold 29. But not before Entry of Termor, it being then termini .... 32. By Surrender 40. Terms merge in Terms . 44. Equity relieves against Merger 47. How forfeited an interesse 230 id. 233 id. id. 234 id. 235 id. 236 237 id. 240 id. 2 . . .339 15. Who might be Seised to Uses 340 19. What might be conveyed to ...... 341 20. Rules by which they were governed id. 21. Could not be raised without Consideration .... id. 22. Not an Object of Tenure id. 24. Not subject to Forfeiture 342 26. Not extendible or Assets id. 27. Not subject to Curtesy or Dower id. 28. Uses were alienable . ....... id. 32. Without words of Limitation . . . • . . . 343 33. Might commence in futuro ....... id. 34. Might be revoked id. 35. And change by Matter subsequent ...... id. 36. Were devisable 344 38. And descendible id. 40. Inconveniences of Uses ........ id. 41. Statutes made to remedy them ...... 345 45. Distinction between Uses and Trusts before the Statute 27 Hen. VIII. c. 10 346 CHAP. III. Statute 27 Hen. VIII. c. 10, of Uses. 1. Statement of the Statute 5. Circumstances necessary to its Operation 6. I. A person seised to a Use . 7. What Persons may be seised to Uses 11. Of what Estates .... 12. Estates Tail .... 16. Estates for Life .... 19. What may be conveyed to Uses 22. II. A Cestui que Use in esse . 25. In what Cases the Statute operates 32. III. A Use in esse 34. The Statute then transfers the Possession 36. Savins of all former Estates . 347 '349 id. id. 350 id. 353 id. 354 id. 358 id. id. CHAP. IV. Modern Doctrine of Uses. 1. Construction of the Statute 3. Contingent Uses ..... 362 363 XXXIV CONTENTS OF VOL. I. Sec Star page. 4. Uses arising on the Execution of Powers a 363 8. Conveyances derived from the Statute of Uses . 365 13. Whether the Statute extends to Devises . 367 16. Resulting Uses ....... . 370 32. Uses by Implication ...... . 374 35. No Use results but to the Owner of the Estate id. 37. Nor against the Intent of the Parties . 375 41. Which may be proved by Parol Evidence id. 42. Nor which is inconsistent with the Estate limited . 376 47. Nor on an Estate Tail, for Life, or Years id. 51. 377 52. What Use results to a Tenant in Tail . 378 TITLE XII. TRUST. CHAP. I. Origin and Nature of Trust Estates. 1. Origin of Trusts . . . ... 3. Description of ...... . 4. A Use limited upon a Use ..... 14. Limitation to Trustees to pay over the Rents . 16. Trust for the separate Use of a Woman . 21. Trust to sell, or to raise Money .... 25. Or for any other Purpose to which a Seisin is necessary 34. A Trust Estate limited after Payment of Debts, vests immedi ately ........ 35. Term for Years limited in Trust .... 36. How Trusts may be declared ..... 40. Resulting or implied Trusts 41. Contract for a Purchase ...... 42. Purchase in the Name of a Stranger 48. Purchase with Trust Money 52. Conveyance without Consideration .... 55. A Trust declared in Part 57. Or which cannot take Effect 59. Exception ........ 61. Where no Appointment is made .... 62. Renewal of a Lease by a Trustee .... 64. Or by Persons having only a particular Estate 66. Where there is Fraud 67. A Purchase in the Name of a Child is an Advancement 75. Exception— Children emancipated .... 77. And also a Wife ..:.... 80. No Trust between Lessor and Lessee 81. Trusts executed distinguished from Trusts executory 83. Who may be Trustees ...... 381 id. id. 384 385 386 387 389 id. 390 391 id. id. 392 394 id. 395 id. 396 id. 397 id. 398 402 id. 403 id. id. CONTENTS OF VOL. I. XXXV CHAP. II. fiulcs by tchich Trust Estates of Freehold are governed. Sect. 1. A Trust is equivalent to the legal Ownership 6. Trusts are alienable 9. Devisable and descendible 10. May be entailed 11. And also limited for Life 12. Subject to Curtesy 16. When subject to Dower 22. Not to Free Bench 25. Forfeitable for Treason . 27. But not for Felony 29. Not subject to Escheat . 80. Liable to Crown Debts . 31. And to all other Debts . 34. Merge in the Legal Estate 3G. Where a Legal Estate is a Bar in Ejectment 39. Where a Reconveyance will be presumed .Star pa 405 406 407 id. id. id. 409 410 411 412 id. id. 413 id. 414 415 CHAP III. Rules by which Trust Terms are governed. 1. Terms in Gross 417 6. Terms attendant on the Inheritance 418 9. How Terms become attendant 419 22. When a Term is in Gross 423 27. A Term attendant may become a Term in Gross . . . 425 29. Terms attendant are a Part of the Inheritance . . . id. 31. Are Real Assets 426 32. Not forfeited for Felony id. 33. Trust Terms protect Purchasers from Mesne Incumbrances . id. 39. And also from Dower 429 43. Must be assigned to a Trustee for the Purchaser . . . 439 45. A Term will not protect the Heir from Dower . . . 441 48. Nor the Assignees of a Bankrupt ...... 442 49. Neither Jointure nor Curtesy barred by a Term . . . id. 51. Where a Term is a Bar in Ejectment id. CHAP. IV. Estate and Duty of Trustet 1. Estate of Trustees . .... 6. Duty of Trustees ..... 9. Their Acts not prejudicial to the Trust . 447 448 449 XXXVI CONTENTS OP VOL. I. Sect. 10. Exception — Conveyance without Notice . 15. Where Purchasers are bound to see Trusts performed 22. Where they are hot bound ..... 30. Where the Receipt of the Trustee is sufficient 37. Trustees have equal Power, &c 39. Can derive no Benefit from the Trust 40. Bound to reimburse the Cestui que Trust 43. Have no Allowance for Trouble .... 46. But allowed all Costs and Expenses 50. Trustees seldom permitted to purchase the Trust Estate 61. Refusing to act must release or disclaim 62. Discharged, and others appointed . . . ' Star page. 449 450 451 453 455 id. id. 456 457 id. 460 id. DIGEST OF THE LAW OF REAL PROPERTY. PRELIMINARY DISSERTATION ON TENURES.* BOOKS OF REFERENCE UNDER THIS TITLE. The principal English writers are these : — Sir Henry Spelman. Treatise on the Original Growth, Propagation and Condition of Feuds and Tenures by Knight-Service, in England. This Treatise is printed in the learned author's Posthumous Works. Lond. 1723. fol. Sir Thomas Littleton. Treatise of Tenures. Book 2. John Dalrymple. History of Feudal Property in Great Britain. 12mo. Sir Martin Wright. Introduction to the Law of Tenures. 8vo. Sir William Blackstone. Commentaries on the Laws of England. Book II. ch. 4, 5, 6. Francis Stoughton Sullivan, LL. D. Historical Treatise on the Feudal Law, and the Constitution and Laws of England, &c, in a course of Lectures read in the University of Dublin. 1 This Preliminary Dissertation on Tenures was not in the original edition of tins work, but was inserted in the second edition, by the learned author, as a necessary introduction to the Law of Real Property. For the same reason it is retained in this edition as equally necessary to the American lawyer. Much of this branch of the law has its foundation in the feudal system ; without the knowledge of which, in its principal relations, the doctrines of the law of Real Property cannot be well understood. The student, indeed, may treasure in his memory a set of rules, at this day apparently arbitrary, but can know little of the principles on which they were constructed ; and his progress must consequently be slower, and his conclusions much less firm and satis- factory, than though he had traced up these doctrines to their sources, and thus mas- tered the philosophy of the science. VOL. I. 1 2 Tenures. Chief Baron Gilbert. Law of Tenures. An Outline of the History and Law of Feuds is contained in the Introduction and first chapter of this valuable work. Tjionle Cragii Jus Feudale. Of this profound treatise, originally published in the reign of James /., and dedicated to that Prince, the best edition is that by J.Baillie. Edinb. 1732. fol. Francis Hargrave and Charles Butler in their learned notes to Coke upon Littleton, 64. a. and 191. a. Alexander Brussius. Principia Juris Feudalis. Edinb. 1713. 12mo. William Robertson. History of Charles V. Introduction. Henry Hallam. View of the State of Europe during the Middle Ages. M. Guizot. General History of Civilization in Europe, from the fall of the Roman Empire to the French Revolution. Gilbert Stuart. Historical Dissertation concerning the Antiquity of the English Constitution. Also, his Observations concerning the Public Law and the Constitutional History of Scotland. Also, his View of the Progress of Soci- ety in Europe. George Spence. On the. Equitable Jurisdiction of the Court of Chancery. Vol. I. Part I. Book I. ch. VII.— X. Owen Flintoff. On the Law of Real Property. Vol. II. Book I. ch. I. sect. 2. The writers on American titles are : — Chancellor Kent, in his Commentaries on American Law, Vol. III. Lect. 51.53. David Hoffman, in his Legal Outlines, Lect. 10. Mr. Justice Story, on the Constitution of the United States, Vol. I. b. I. James Sullivan. History of Land Titles in Massachusetts, p. 1 to 64. Other authorities are these : — Consuetudines Feudorum. This is the work mentioned by Mr. Cruise in this Preliminary Dissertation, ch. L, § 28. Paulus Christin.eus. In Consuetudines Feudorum. This Commentary composes the 6th volume of his Decisiones. Antwerp. 1671. fol. Georgius Adamus Struvius. Syntagma; Juris Feudalis. In one vol., 4to. J. Cujacius. De Feudis, Libri Quinque. This work is contained in the Opera Prioraof Cujacius, Tom. II., fol. ; and in Tom. X. of the quarto edition recently published. The latter is to be preferred, for a learned Dissertation which is prefixed to the treatise. H. Rosenthal. Tractatus et Synopsis totius Juris Feudalis. 2 torn. fol. J. L. Rothius. PandectJB Feudales. In one vol., 4to. Udalr, Zasius. In Usus Feudorum Epitome. This treatise is contained in the Opera Omnia of Zasius, Tom. IV. p. 76 — 107. David Houard. Anciennes Loix des Francois, eonservees dans les coutumes Angloises recueillies par Littleton. This is a modern French translation of Littleton's Tenures, with a Commentary by M. Houard, in two volumes 4to. The second volume consists chiefly of Preuves et Pieces Justi/icatives, and a Glos- sary of the obsolete words in Littleton. Charles Dumoulin. \_M0lino3us.'] In Consuetudines Parisienses. Tit. I. De Fiefs. Henri Basnage. Commentaires sur la Coutume de Normandie. Tit. Des Fiefs et Droits Feudeaux. Art. 98—212. CHAP I. FEUDAL LAW. CHAP. II. ANCIENT ENGLISH TENURES. CHAP. III. MODERN ENGLISH TENURES. CHAP. I. FEUDAL LAW. Sect. 1. Sources of the English Laic. 13. Origin of Feuds. 29. Definition of. 32. Different Kinds. 35. Investiture. 40. Oath of Fidelity. 42. Homage. •14. Duties of the Lord and Vas- sal. 47. Feudal Aids. 48. Estate of the Vassal. 50. Was unalienable. Sf.ct. 52. 54. 56. 59. 67. 69. 70. 71. 72. 79. Subinfeudation. Estate of the Lord. His Obligation on Eviction. Descent of Feuds. Feudum Talliatum. Investiture upon a Descent. Relief. Escheat. Feudal Forfeiture. The Lord might forfeit his Seigniory. Feudal Jurisdiction. Section 1. It is generally agreed that the laws of England are derived from those of the northern nations, who, migrating from the forests of Germany, overturned the Roman empire, and established themselves in the southern parts of Europe. * 2. Both the Danes and Saxons were undoubtedly * 2 swarms from the northern hive : it may therefore be pre- sumed that the description which Tacitus has left us of the manners and customs of the Germans is in every respect appli- cable to them. And as the Saxons upon their establishment in England exterminated, rather than subdued, the ancient inhab- 4 Tenures. Ch. I. s. 2—7. itants, they introduced their own laws, without adopting the smallest portion of those which prevailed among the ancient Britons. 1 3. The French nation also derive their origin from a tribe of Germans who crossed the Rhine under Clovis about the year 481, and established themselves in the northern provinces of France. 4. The different German tribes were first governed by codes of laws formed by their respective chiefs. One of the most ancient of these is the Salic Law, which is generally supposed to have been written in the fifth century. 5. Montesquieu says, that the tribe of the Bipuarian Franks, having united themselves to the Salian Franks under Clovis, preserved their original customs ; and that Theodoric, king of Austrasia, caused them to be reduced into writing ; and also collected the laws of those Bavarians and Germans, who were dependent upon his kingdom. As to the Saxons, Charlemagne, who was their first conqueror, gave them a code of laws which is still extant, (a) 2 6. While Clovis and his descendants governed France, that country was ruled by the Theodosian code and the laws of the different German tribes who had settled there. But the Theodo- sian code was in course of time abrogated or forgotten ; because great advantages were allowed to those who lived under the Salic Law. 7. During the reigns of the first French monarchs, a general assembly of the nation took place every year, in the month of March, afterwards in the month of May ; where many ordinances were made which acquired the force of law, and were called Capitularii. (a) Montesq. Sp. L. B. L. 28, c. 1. 1 Perhaps it would be more accurate to say, that the Saxons adopted but a small portion of the laws of the Britons ; and that the description by Tacitus is applicable in very many if not most respects to the Dane* and Saxons. 2 The codes referred to by Montesquieu may be found in Canciani's collection, entitled Barbarorum Leges Antiquce, &c. 5 vols. fol. Venetiis, 1781 — 5. The early laws and customs of the northern nations may be inferred with tolerable certainty from the Jus Commune Norvegicum, a compilation made in the year 1274, by order of the king, out of the then existing codes in the realm. It was published at Copenhagen, in 1817, in one vol. 4to. Tenures. Ch. I. s. 8—12. 5 8. The introduction of feuds produced a variety of regulations inconsistent with the ancient codes of laws ; and France became at that time divided into an infinite number of small seigniories, whose lords acknowledged a feudal dependency only, not a political one, on the monarch. In consequence of this circum- stance, it became impossible that they should all be regulated by the same laws. The codes of the Germans and the Capitularia, * were superseded by these local customs ; * 3 each seigniory and province had its own ; and there were scarce two seigniories in the whole kingdom whose customs agreed in every particular, (a) 9. Several of these customs were collected and published in the course of the fifteenth century, under the directions of the kings of France, and authenticated by the most eminent lawyers and magistrates of the different provinces; but they had in general been put into writing' by private individuals long before that period. 10. Normandy, like all other provinces of France, was gov- erned by its own customs. When it was ceded to Rollo in the year 912, to be held of the crown of France by homage and fealty, he caused an inquiry to be made into its ancient usages, and added his sanction to their former authority. Now, as Nor- mandy did not experience those troubles and revolutions which disturbed the other parts of France, during the tenth and eleventh centuries, it is generally supposed that the original laws and customs of the Franks were preserved with more purity, and suffered less from a mixture of the canon and civil law in Normandy, than in any other province of France, (b) 11. Upon the establishment of the Normans in England, the whole customary law of that province, which, according to Bas- nage, one of its best commentators, had been already reduced into writing, was introduced here ; and as our kings had great possessions in France, and frequently visited that country for two centuries after the Conquest, they borrowed from the French many of the improvements which were made in their jurispru- dence, and established them in England. 12. If these facts are admitted, it will follow that the primeval customs of the Germans, as described by Tacitus ; the codes of (a) Montesq. Sp. Laws, B. 28, c. 0. (b) Ilouard's Lit. Pref. 1* 6 Tenures. Ch. I. 5. 12—15. the different German tribes, 1 together with the laws of the Germans during the middle ages ; the Capitularia of the French monarchs of the two first races ; and the customs of the differ- ent provinces of France, particularly those of Normandy, which were chiefly founded on feudal principles ; are the real sources from which our ancient laws can, with any certainty, be de- duced. 13. In the ninth and tenth centuries there were only two tenures, or modes of holding lands upon the continent, 4 * which * were called Allodial and Feudal. Allodial lands were those whereof the owner had the dominium directum et verum; the complete and absolute property, free from all services to any particular lord. 2 Allodium est proprietas quce a nullo recognoscitur. Qui tenet in Allodium, id est, in plenam et absolutam proprietatem, habet integrum et directum dominium, quale a principio de jure gentium fait distributum et distinctum. So that the owner of an Allodium could dispose of it at his pleasure, or transmit it as an inheritance to his children, (a) 14. A feud was a tract of land acquired by the voluntary and gratuitous donation of a superior ; and held on condition of fidelity and certain services, which were in general of a military nature. The tenure of the feudatory was of the most precarious kind, depending entirely on the will and pleasure of the person who granted ; and this singular system was derived from the following circumstances : — 15. We learn from Caesar and Tacitus that the individual German had no private property in land; that it was his nation or tribe which allowed him annually a portion of ground for his support ; that the ultimate property, or dominium verum of the lands, was vested in the tribe ; and that the portions dealt out to individuals returned to the public, after they had reaped the fruits of them. Thus Tacitus says : — Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum (a) Dumoulin, (In Consuet. Parisien. Tit. 1, § 67. Opera, Tom. 1, p. 658.) 1 Sir H. Spelman says : — In legibus Henrici I. Regis Anglice, multa reperio e Lege Sailed deprompta ; interdum nomlnatlm, interdum verbatim. — Gloss, voc. Lex. 2 Quod est rere, simplicissime, et absolutissime Alaudimn, nativa sua naturalis juris libertate, originaliter et perpetuo gaudens ; nullius unquam hominis, servituti aut recognition! subditum. Dumoulin, [sive Molinseus] Consuet. Paris. Tit. I. §1.1. Tenures. Ch.l. 5.15—19. 7 dignationem partiuntur. Facilitatem partiendi camporum spatia prcestant ; arva per annos mutant, et superest ager. (a) 16. With these ideas and this practice, the Germans made conquests. When they had acquired a province of the empire, the land became the property of the victorious nation; each individual laid claim to a share of it ; a tract of ground was accordingly marked out for the leader of the expedition ; and to the inferior orders, portions, corresponding to their respective merits and importance, were allotted. 17. As the quantity of land thus acquired was not sufficient to allow of an annual change ; and as the increased knowledge of agriculture, and the refinement of manners which then took place, would have rendered such an annual change extremely inconvenient ; the lands thus given became the permanent prop- erty of the occupiers. 18. The situation of a German tribe on its first estab- lishment * in a conquered country being extremely pre- * 5 carious, the necessity of -defence induced the chiefs to annex to each grant or allotment of land a condition of military service. The generality of writers have concluded from this circumstance, that the allotments of land originally made to the individuals of a German tribe, on their first establishment in a conquered country, were mere beneficia, or feuds, and have derived from thence the origin of the Feudal Law. But a variety of arguments may be produced to prove that the lands thus granted were not feuds. 19. It is universally admitted that feuds were originally voluntary and gratuitous donations, to be held at the mere will of the giver, who could resume them at pleasure. 1 £Tow, when («) Caesar, De Bello Gal. Lib. 6, c. 21. Tacitus, De Mor. Germ. c. 26. i This assertion, though contained in the Book of Feuds, Mr. Spence says is contradicted by the Anglo-Saxon history as far as any authentic records extend, and is not confirmed by the early documents or history of any other nation. He admits that the Anglo-Saxon lords, as well as those of the continent, did in some cases grant benefices revocable at pleasure, or for a term short of the life of the beneficiary, or only for his life ; but he asserts that nothing is found iu any earlier documents to show that they did not, from the very first, make grants of transmissible or hereditary benefices ; and he cites documentary instances of such grants, in the times of the Saxon princes, in England, Scotland, and France. And these writings, he observes, do not countenance the notion of the Master of the Rolls, in Burgess v. Whcatc, (see 1 Eden, R. 192,) that the introduction of the power of alienation was an era in the 8 Tenures. Ch. I. s. 19—21. the Germans first settled in the southern parts of Europe, they enjoyed a very great degree of liberty ; and upon the distribu- tion of the lands in a conquered province, each individual claimed that portion of them to which his rank and services entitled him, not as a favor, but as a right, being the just reward of his toils. Nor can it be supposed that a people who did not conquer for their chiefs only, but also for themselves, should submit to hold their acquisitions as the voluntary and gratuitous donations of their leader, and on so precarious a tenure as his will and pleasure, (a) 20. The feudal system was not generally established till some centuries after the settlement of the German nations in Italy and France ; nor did the circumstance of annexing a condition of military service to a grant of lands imply that they were held by a feudal tenure ; for the possessors of allodial property, who were in France called Liberi Homines, were bound to the per- formance of military service ; and some very respectable French writers, among whom is Mons. Bouquet, derive the word allodium from los, which signifies lot; and, from this etymology, conclude that allodial property was that which was acquired by lot, upon the distribution of lands among the Franks, (b) 21. The original idea of feuds appears to have been derived from the following circumstances. Tacitus says, the chief men among the Germans endeavored to attach to their persons and interests certain adherents whom they called Comites ; — Insignis nobilitas, aut magna patrum merita, principis dignationem etiam adolescentibus adsignant. Cceteri robustioribus ac jampridem probatis aggregantur ; nee rubor inter comites aspici. 6 * Gr&dus * quinetiam et ipse comitus habet, judicio ejus, quern sectantur ; magnaque et comitum cemulatio, quibus primus apud principem suum locus ; et principum cui plurimi et acerrimi comites. Hcec dignitas, hce vires, magno semper electorum juvenum globo circumdari; in pace decus, in bello presidium. (a) Eobertson's Hist, of Charles V. Vol. I. 254, 8vo. (6) Bouquet, Droit Pub. Robertson's Hist, of Charles V. Vol. I. 256. 8vo. Sismondi Hist, des Francais, Tom. III. 219. history of benefices. See Spence on the Equitable Jurisdiction of the Court of Chancery, Vol. I. p. 44 — iG, a deeply interesting and learned work, and one that will amply reward the diligent attention of the American student. Tenures. Ch. I. s. 22—25. 9 22. This custom was continued by the German princes in their new settlements ; those comites or attendants were called Vassi, Antrustiones, Leudes, Homines in truste regis. The com- position paid for the murder of a person of this description, the only standard by which we are enabled to judge of the rank and condition of persons in the middle ages, was triple to that paid for the murder of a common freeman, (a) 23. While the German tribes remained in their own country, they courted and preserved the favor of their comites by presents of arms and horses, and by hospitality. Thus Tacitus says : — Exigunt (comites) principis sui liber alitate ilium bellatorum equum, Warn cruentam victricemque Trameam; nam epulce, et quamqnam incompti, largi tamen apparatus pro stipendio cedunt. When these princes settled in the countries they had conquered, they bestowed a part of the lands allotted to them, which were known by the name of Fiscus Regis, or Domanium Regis, on their adherents, as the reward of their fidelity. These donations were originally called Benejicia, because they were gratuitous ; in course of time they acquired the name of Feuda. The per- sons to whom this kind of property was given became thereby subject to fidelity, and the performance of military services to those from whom they received them, (b) 24. Mons. Bignon, in his notes on the Formulae of Marculphus, says : — Proprietate et Fisco dues notantur bonorum species : et velut maxima rerum divisio qnce eo seculo recepta erat, omnia namque prcedia ant propria erant, ant fiscalia. Propria sen proprietates dicebantur quce nullius jnri obnoxia erant, sed optimo maximo jure possidebantur ; ideoque ad hceredes transibant. Fiscalia vero, benejicia sive fisci vocabantur, quce a rege ut pluri- mum, posteaque ab aliis, ita concedebantur, ut certis legibus servitiisque obnoxia, cum vita accipientis finirentur. (c) 25. The learned Muratori, in his Antiquitates Italici Medii JEvi, has given a Dissertation on Allodial and Feudal Tenures. He states that feuds derive their origin from the Germans, and were originally called Benejicia. That the ancient Vassi et * Vassali were persons who attached themselves to *7 kings and princes, in order to acquire the privileges to (a) (Baluzius, Capit. Reg. Francor. Vol. II. 898, 926, 928.) Montesq. Sp. L. B. 30, c. 19. (b) Tacitus, De Mor. Germ. c. 14. Du Cange, Gloss, voc. Fiscus. Baluz. Capit. Rog. Francor. Vol. I. 453. Vol. II. 875. (c) (Vitl. Baluz. Capit. Keg. Francor. Vol. II. 875.) 10 Tenures. Ch. I. s. 25—27. which those who formed a part of their families were entitled ; and also in the hope of obtaining, from the liberality of their lords, benejicia, that is, .the usufruct of a portion of their royal demesnes, during the lives of their lords. That whenever a person of noble birth attached himself in this manner to a prince, he took an oath of fidelity to him, and was afterwards called Vassus or Vassallus ; which words occurred in a Capitu/arium of Louis the Pious, of the year 823. 1 That to constitute a vassus it was not necessary he should have a beneficium. That an allodium was an inheritance which might be alienated at the pleasure of the possessor ; and the words by which it was granted usually were, — ut proprietario jure teneat atque possideat ; seufaciat inde quicquid voluerit, tarn ipse quamque hccredes ipsius. (a) 26. Although feuds were originally granted by kings and princes only, yet in a short time the great lords to whom the kings had allotted extensive tracts of land, partly from a dispo- sition to imitate their superiors, and partly for the purpose of attaching persons to their particular fortunes, bestowed a portion of their demesnes as benefices or feuds. The greater part of the lands in Italy and France, were, however, held by an allodial tenure, till the beginning of the tenth century, when the feudal system appears to have been generally adopted in those countries. 27. As allodial property was much more desirable than feudal, such a change appears surprising ; especially when we are informed that allodial property was frequently converted into feudal by the voluntary deed of the possessor. The reasons which induced the proprietors of allodial lands to convert them into feuds are thus explained by the president Montesquieu : — Those who held feuds were entitled to great privileges : the composition or fine for the commission of a crime against a feuda- tory was much greater than that for a person who held his lands by an allodial tenure. But the chief motive for this alteration was, to acquire the protection of some powerful lord, without which, in those times of anarchy and confusion, it was scarce possible for an individual to preserve either his liberty or his (a) (Muratori, Antiq. Ital. Tom. I. p. 345.) Dissert. XI. 1 Vid. cap. iv. ix. xxiv. Vid. etiam Capit. Regum Francor. Lib. II. cap. iv. ix. \xiv. in Leges Barbaror. Antique, Vol. 3, p. 174, 175, 178. Tenures. Ch. I. s. 27 — 30. 11 property. These, and probably other reasons with which we are unacquainted, produced an extension of the feudal tenure over the whole western world, (a) * 28. Feuds upon their first introduction were regulated * 8 by unwritten customs. In the year 1170 the Emperor Frederick Barbarossa directed a code of the feudal law to be compiled, which was accordingly executed, and published at Milan. It was called Consuetudines Feudorum ; and was divided into five books, of which the first two, and some frag- ments of the last two, still exist, and are printed at the end of all the modern editions of the Corpus Juris Civilis. This work is probably no more than a collection of the customs most gen- erally adhered to in feudal matters, and the Constitutions of the Emperors Lotharius, Conrad, and Frederick, respecting feuds, (b) 29. A feud is thus defined by Craig : — Estfeudum beneficium. seu benevola et libera rei immobilis, aut csquipollentis, concessit), cum utilis dominii translatione ; retenta proprietate, seu dominio directo ; sub fide litate, et exhibitione servitiorum honestorum. 1 30. It was benevola et libera concessio ; being supposed to have been originally granted from motives of mere benevolence, and not for any sum of money, or other valuable consideration. 2 Dominii utilis. — The civilians distinguish between the pro- prietas and the dominium utile. The proprietas is the absolute property ; the dominium utile is only the right of using the thing for a certain time. Sub fide litate. — This was the bond of connection between the lord and his vassal ; and the most essential circumstance in the contract, as will be shown hereafter. Servitiorum. — Services were also essential to a feud. They were generally of a military nature ; but still feuds were not unfrequently granted in consideration of other services. (a) Montesq. Sp. L. B. 31, c. 8. Herve\ Vol. I. 102. (&) Giannone, (dell' Istor, Regn. Nap.) Lib. 13, c. 3, § 3. 1 Jus Feudale, Lib. I. Dieg. 9. 5. This definition is copied from Zasius, In TJsus Feudorum Epitome, Pars I. 3, who derives it from earlier feudists. Zasii Opera, Tom. iv. p. 77. 2 Feudum enim non sub proztextu pecunioz, sed amove et honore Domini adquirendum est. Consuetudin. Feudorum, Lib I. tit. 27. Nothing but immovable property could be granted as a feud. Sciendum est autem Feudum, sive Beneficium, nonnisi in rebus soli, aut solo coharentibus, aut in iis qui inter immobilia eonnumerantur, — posse consistere. Ibid. Lib. II. tit. 1. 12 Tenures. Ch. I. s. 31 — 35. 31. A modern French writer observes that it will appear, from an attentive consideration of the origin and progress of feuds, to have been the intention of the person creating the feud, to secure a constant acknowledgment of the grant as long as it subsisted ; in which it differed from all other grants ; and therefore that a gift of a feud ought to be denned, — " Une concession faite a la charge d'une reconnoissance toujours subsistante, qui doit se manifester de la maniere convenue." (a) 32. The first and most general division of feuds was 9 * into * proper and improper ones. Proper feuds were such as were purely military, given militia gratid, without price, to persons duly qualified for military service. Improper feuds were those which did not, in point of acquisition, services, and the like, strictly conform to the nature of a mere military feud ; such as those that were sold or bartered for any equiva- lent, or granted free from all services, or in consideration of any certain return of services. 33. A feud was, however, always considered as a proper one, unless the contrary appeared, which could only be proved by a reference to the original investiture. Hence arose the maxim in the feudal law, — Tenor investitures inspiciendus. But improper feuds were distinguished from proper ones by those qualities only in which they varied ; for in all other respects they were considered as proper ones. 34. A feudum ligium was that for which the vassal owed fealty to his lord against all persons whatever, without any exception. A feudum non ligium was that for which the vassal owed fealty to his immediate lord ; but with an exception in favor of some superior lord. A feudum antiquum was that which had descended to the vassal from his father, or some more remote ancestor. A feudum novum was that which was orig- inally acquired by the vassal himself. A feud granted by a sov- ereign prince, to hold immediately of himself, with a jurisdiction, was called feudum nobile, and conferred nobility on the grantee. Where a title of honor was annexed to the lands so granted, it was called feudum dignitatis, (b) 35. Feuds were originally granted by a solemn and public delivery of the very land itself by the lord to the vassal, in the («) Herv<5, Vol. I. 370-372. (b) Craig. Lib. I. tit. 10, § 11, Id. § 12. Tenures. Ch. I. s. 35—38. 13 presence of the convassalli, or other vassals of the lord, which was called Investitura ; and is thus described by Corvinus, — Investitura ab investiendo dicta, quod per earn vassallus posses- sione quasi vesle induatur. And this ceremony was so essen- tially necessary to the creation of a feud, that it could not be constituted without it. Sciendum est feudum sine investitura nullo modo constitui posse, (a) 36. The convassalli, or pares, were the only persons who could be witnesses to the investiture ; their presence was required as much for the advantage of the lord as of the tenant. Of the lord, that if the tenant was a secret enemy, or otherwise * unqualified, he might be apprised of it, and that they *10 might bear testimony of the obligations which he con- tracted. Of the tenant, that they might testify the grant of the lord, and for what services it was made. Lastly, for their own advantage, that they might know who was the tenant, and what land he held, (b) 37. As it was frequently inconvenient for the lord to go to the lands intended to be granted, the improper investiture was introduced, which was a symbolical transfer of the lands, by the delivery of a staff, a sword, or a robe ; which last being the most common method among the immediate vassals of kings and princes, gave rise to the word investiture. Investitura quidem proprie dicitur possessio : abusivo autem modo dicitur investitura, quando liasta aut aliud corporeum quidlibet porrigitur a domino, se investituram facere dicente. Quce si quidem ab illo fiat, qui alios habet vassallos, saltern coram duobus, ex illis solemniter fieri debet ; alioqui, licet alii intersint testes, investitura minime valeat. Thus it appears that a proper investiture and possession were synonymous terms. Whenever, therefore, investiture was dis- tinguished from possession, it was an improper one. (c) 38. The services which the vassal was bound to perform were declared by the lord at the time of the investiture, in the presence of the other vassals. But as a verbal declaration of the terms on which a feud was to be held might be forgotten or mistaken, it became usual for the tenant to procure a writing from the lord, containing the terms upon which the donation was made, wit- nessed by the other vassals, which was called a breve testatum. (a) Consuet. Feud. I. tit. 25. (b) Id. II. tit. 32. (c) Consuet. Feud. II. tit. 2. Craig. Lib. II. tit. 2. § 4. VOL. I. 2 14 Tenures. Ch. I. s. 38—43. And where the lord could not conveniently come to the land, he delivered to the vassal a breve testatum, as an improper investi- ture ; with a direction to some person to give him actual posses- sion, (a) 39. A breve testatum being a much better security than a ver- bal declaration, those who acquired feuds preferred the improper investiture, with a subsequent delivery of the possession, to a proper investiture : so that in process of time the feudal writers divided an improper investiture into three parts, — a breve testa- tum, a pr&ceptum seisince, and a possessions traditio. 40. Upon the creation of a feud, a connection and union arose between the lord and his vassal, which was considered by the feudal writers as stronger than any natural tie whatever ; and which the tenant was obliged to acknowledge by imme- 11* diately * taking the oath of fidelity to the lord in these words : — Ego Titius (vassallus) juro super hcec sancta Dei Evangelia, quod ab hdc hord in antea usque ad idtimum diem vitce mece, ero fidelis tibi Caio Domino meo contra omnem hominem, excepto Imperatore, vel Rege. (b) 41. The idea of this oath appears to have been taken from the obligation which existed between the German princes and their comites. Thus Tacitus says, — ilium defender e,tueri, sua.quoque fortia gloria? ejus assignare, prmcipuum sacramentum est. And fealty was so essentially requisite to the nature of a feud, whether a proper or an improper one, that it could not exist without it ; for if lands were given without a reservation of fealty, the tenure was considered as allodial ; but the oath of fealty might be dispensed with. 42. When feuds became hereditary, another ceremony was added, called homagium or hominium ; which was performed in this manner: — The vassal being uncovered and ungirt, knelt down before his lord, and putting his hands within those of his lord, said, — Devenio homo vester, de tenemento quod de vobis teneo, et tenere debeo, et fidem vobis portabo contra omnes gentes. The lord then embraced the tenant, which completed the hom- age. 43. Fealty and homage have been often confounded by the feudal writers, but improperly. For fealty was a solemn oath (a) Craig. Lib. II. tit. 2. § 17. (6) Consuet. Feud. II. tit. 7. Tenures. Ch. I. s. 43—48. 15 made by the vassal, of fidelity and attachment to his lord ; whereas homage was merely an acknowledgment of tenure, (a) 44. In consequence of the feudal connection several duties arose, as well on the part of the lord as of the vassal. With re- spect to those which the lord owed to his vassal, it was a maxim of the feudal law, that though the vassal only took the oath of fidelity, and did homage, and the lord, on account of his dignity, took none ; yet was he equally obliged as if he had taken it, to do and forbear every thing with respect to the vassal which the vassal was bound to do and forbear towards the lord ; so that the duties of both were in most respects reciprocal. (6) 45. As for the duties which the vassal owed to the lord, they are thus described in the Consuetudines Feudorum, — Qui domino suo fidelitatem jurat, ista sex in memoria semper habere debet; — Incolume, tutum, hone stum, utile, facile, possibile. These were, however, all reduced to the two heads of Counsel and Aid. Under Counsel was included, not only giving faithful advice to the lord, but * also keeping his secrets, and * 12 attending his courts, in order to enable him to distribute justice to the rest of his tenants, (c) 46. Aid might either be in supporting the lord's reputation and dignity, or in defending his property. By aid to his person, the vassal was not only obliged to defend his lord against his private enemies, but also to assist him in his wars ; and feuds were in general originally granted on condition of military ser- vice, to be done in the vassal's proper person, and at his own expense. 47. The Feudal Law did not originally oblige the tenant to contribute to the lord's private necessities ; the first feudal aid being purely military. But in course of time the lords claimed and established a right to several other aids. The principal of which were, 1. To make the lord's eldest son a knight. 2. To marry the lord's eldest daughter. 3. To ransom the lord's per- son, when taken prisoner, (d) 48. Having stated the obligations of the lord and vassal to each other, I shall now proceed to inquire into the nature of the estate or interest which each of them had in the land. With (a) (Craig. Lib. II. tit. 12. § 20. lb. Lib. I. tit. 11, § 11.) (b) Wright, Ten. 43, 44. (c) Lib. II. tit. 6. (d) Du Cange, Gloss, voc. Auxilium. 16 Tenures. Ch. I. s. 48—53. respect to the estate of the vassal, we must recollect that as the original donations made by the French kings to their Jideles and leudes were of a temporary nature, and as nothing more than the usufruct was given to them ; so in the Feudal Law the propri- etas was allowed to remain in the lord, and the vassal had only the ususfructus or dominium utile ; that is, a right to take and enjoy the profits of the land, as long as he performed the services due to the lord. 49. As to the duration of feuds, they were originally preca- rious, and might be resumed at the lord's pleasure. They were next granted for one year, afterwards for life. In course of time it became unusual to reject the heir of the last tenant, if he was able to perform the services : and at length feuds became heredi- tary, and descended to the posterity of the vassal. 1 (a) 50. In the first ages of the Feudal Law, the vassal could not alien the feud without the consent of the lord ; neither could he mortgage, or otherwise subject it to the payment of his debts. It appears however from the Consuetudines Feudorum that feuds were frequently aliened : but by a constitution of the emperor Lotharius, reciting that the alienation of feuds had proved ex- tremely detrimental to the military services which were 13 * due from the * vassals, they were absolutely prohibited from alienating their feuds without the consent of their lords ; which was confirmed by a law of the emperor Fred- eric II. (b) 51. The ' consent of the lord was seldom given without his receiving a present ; from whence arose a general practice of paying the lord a sum of money for permission to alien a feud. 52. There was however a mode of disposing of part of a feud, which does not appear to have been comprehended in the con- stitutions of Lotharius or Frederic. This was by a grant from the vassal of a portion of his feud to a stranger, to be held of himself by the same services as those which he owed to his lord. (c) 53. This practice, which was called subinfeudation, became («) Consuet. Feud. I. tit. 1. (b) Lib. II. tit. 55. (c) Consuet. Feud. II. tit. 34. s. 2. 1 This notion of the original character of feudal property, and of its becoming hereditary only by degrees, after a long lapse of time, has been controverted by Mr. Spence, upon the ground of documentary evidence to the contrary ; as has been stated in a previous note to § 19. Tenures. Ch. I. s. 53—56. 17 extremely common in France during the eleventh and twelfth centuries ; but was prevented by an ordonnance of Philip Au- gustus in 1210, which directed that where any estate was dis- membered from a feud, it should be held of the chief lord, (a) 54. "With respect to the estate or interest which the lord had in the lands, after he had granted them out as a feud, it con- sisted in the proprietas, together with a feudal dominium or seigniory, and a right to fealty, and all the other services reserved upon the grant. And in case of failure in any of these, the lord might enter upon and take possession of the feud. 55. As the feudatory could not alien the feud without the consent of the lord, so neither could the lord alien or transfer his seigniory to another without the consent of his feudatory. Ex eadem lege descendit, quod dominus, sine voluntate vassalli, feu- dum alienare non potest. For the obligations of the lord and vassal being mutual, the vassal was as much interested in the personal qualities of his lord, as the lord was in those of his vassal, (b) 56. There was another obligation, on the part of the lord, of very considerable importance ; namely, that in case the vassal was evicted out of the feud, the lord was obliged to give him another feud of equal extent, or else to pay him the value of that which he had lost. 1 (c) (a) Herv6, Vol. I. 101. (b) Wright, Ten. 30. Consuet. Feud. II. tit. 34. s. 1. (c) Consuet. Feud. II. tit. 25. i This doctrine of the feudal law is the foundation of a wide diversity of opinion existing at this day, in regard to the proper rule of damages in actions on covenants of warranty. In some of the United States, the rule is to give the consideration- money with interest ; in others, the value of the land at the time of eviction. In the former States, the Courts regard the modern covenant of warranty as a substitute for the old real covenant, upon which, in a writ of warrantia chartoz, or upon voucher, the value of the other lands to be recovered was computed as it existed at the time when the warranty was made ; and accordingly they retain the same measure of compensa- tion for the breach of the modern covenant. But in the latter States, the Courts view the covenant as in the nature of a personal covenant of indemnification, in which, as in all other cases, the party is entitled to the full value of that which he has lost, to be computed as it existed at the time of the breach. The consideration-money and inter- est, is adopted as the measure of damages, in New York ; Staats v. Ten Eyck, 3 Caines, K. Ill ; Pitcher v. Livingston, 4 Johns. 1 ; Bennett v. Jenkins, 13 Johns. 50; [Baxter v. Ryerss, 13 Barb. 267 ;] —and in Pennsylvania; Bender v. Frombcrger, 4 Dall. 441 ; [Bitner v. Brough, 11 Penn. State R. (I Jones,) 127; and in Maryland. See Marshall o. Haney, 9 Gill, 251 ;]— and in Virginia; Stout v. Jackson, 2 Rand. 132;— and in North Carolina; Cox v. Strode, 2 Bibb. 272 ; Phillips v. Smith, 1 N. Car. Law Repos. 2* 18 Tenures. Ch. I. s. 57—60. 57. Sir Martin Wright doubts whether the obligation of the lord to protect and defend his vassal made him anciently liable on eviction, without any fraud or defect in him, to make a com- pensation for the loss of the feud ; inasmuch as it could hardly be imagined that while feuds were precarious, and held 14 * at the * will of the lord by whom they were granted, and while they were generously given without price, the lord should be subject to such a loss ; and was of opinion that the lord's obligation to compensate the vassal, in case of eviction, only prevailed as to improper feuds, for which a price had been paid, or an equivalent stipulated, (a) 58. Craig agreed in this respect with Sir Martin Wright. They, however, both acknowledge, that none of the ancient feu- dal writers make any such distinction ; but that all admit the lord's obligation to compensate the vassal on eviction to have been general, (b) 59. We have seen, that although feuds were originally granted at will only, yet in course of time they became descendible and hereditary. It will, therefore, be necessary to inquire into the rules of descent that were established by the feudal law, where no particular mode of descent was directed by the original grant: for in such case the maxim was, — Tenor investitures est inspici- endus. 60. The first rule, was, that the descendants of the person to whom the feud was originally granted, and none others, should (a) Wright, Ten. 38. (ft) (Craig. Lib. II. tit. 4. § 1, 2.) 475 ; Wilson v. Forbes, 2 Dev. R. 30 ; — and in South Carolina; Henning v. Withers, 2 S. Car. Rep. 584; Ware v. Weathnall, 2 McCorcl, 413;— and in Ohio; Backus v. McCoy, 3 Ohio R. 211, 221 ; — and in Kentucky; Hanson v. Buckner, 4 Dana, 253; [see also Thompson v. Jones, 11 B. Mon. 365;]— and in Missouri; Tapley v. Le- beaume, 1 Miss. R. 552 ; Martin v. Long, 3 Miss. R. 391 ; — and in Illinois; Buck master v. Grundy, 1 Scam. 310;— [and in Wisconsin; Rich v. Johnson, 1 Chand. 19.] In Indiana, the question has been raised, without being decided. Blackwell v. Jus- tices of Lawrence Co. 2 Blackf. 147. The value of the land at the time of eviction, has been adopted as the measure of damages, in Massachusetts ; Gore v. Brazier, 3 Mass. 523 ; Caswell v. Wendell, 4 Mass. 108 ; Bigelow v. Jones, lb. 512 ; Chapel v. Bull, 17 Mass. 213 ; [see, also, Batchelder v. Sturgis, 3 Cush. 201, 205; Cornell v. Jack- son, lb. 506, 510;] —and in Maine; Swett v. Patrick, 3 Fairf. 1 ; —and in Connecticut ; Sterling v. Peet, 14 Conn. 245; — and in Vermont; Drury v. Strong, D. Chipm. R. 110; Park v. Bates, 12 Verm. 381 ;— and in Louisiana; Bissell v. Erwin, 13 Louis. R. 143. See, also, 4 Kent, Comm. 474, 475. [In Alabama the consideration paid, interest and expenses of suit are allowed. Griffin v. Reynolds, 17 How. U. S. 609.] Tenures. Ch. I. s. 60—55. 19 inherit ; because, as the personal ability of the first acquirer to perform the military duties and services reserved was the motive of the donation, it could only be transmitted by him to his lineal descendants, (a) 61. In consequence of this rule the ascending line was, in all cases, excluded. Hence it is laid down in the Consuetudines Feudorum, — Successions feudi talis est natura, quod ascen- dentes non succedunt. And a modern feudist has said, — Jus tamen feudale, ascendentium ordine neglecto, solos descendentes et collaterales admittit. Quoniam qui feudum accipit, sibi et liberis suis, non parentibus prospicit. Whereas in allodial prop- erty the ascending line was capable of inheriting. (&) 62. All the sons succeeded equally, as was the case in France, even respecting the succession to the crown, during the first and part of the second race. But the frequent wars occasioned by these partitions caused a regulation that kingdoms should be considered as impartible inheritances, and descend to the eldest son. 63. In imitation of the sovereignty, the same alteration was made in the descent of the great feuds ; for by a constitution of the Emperor Frederic, honorary feuds became indivisible ; and * they, as also the military feuds, began to descend * 15 to the eldest son, because he was sooner capable of per- forming the military service than any of his brothers, (c) 64. Females were originally excluded from inheriting feuds, not only on account of their inability to perform the military ser- vices, but also lest they should carry the feud by marriage to strangers or enemies, (d) 65. The rule, that none but the descendants of the first feuda- tory could inherit, was so strictly adhered to, that in the case of a feudum novum, the brother of the first acquirer could not succeed to his brother, because he was not descended from the person who first acquired the feud. But in the case of a feudum anti- quum, a brother, or other collateral relation, who was descended from the first acquirer, might inherit, (e) (a) Craig. Lib. T. tit. 10. s. 11. (Lib. II. tit. 13. § 46, 47. Id. tit. 15. § 10.) (b) Lib. II. tit. 50. (Id. tit. 18.) Corvinus, Lib. II. tit. 4. (Craig. Lib. II. tit. 13. § 46, 47. -Monte Sp. L. B. 31. ch. 34.) (c) (Consuet. Feud. Lib. II. tit. 55.) (d) Consuet. Feud. Lib. I. tit. 8. (Struvius, Syntag. Jur. Feud. c. IX. § 8.) (e) Consuet. Feud. Lib. I. tit. 1. s. 2. 20 Tenures. Ch. I. s. 66—70. 66. A mode was afterwards adopted of letting in the collateral relations of the first acquirer of a feud, by granting him a. feudum novum, to be held ut antiquum, that is, with all the qualities of an ancient feud, derived from a remote ancestor ; and then the collateral relations were admitted, however distant from the per- son who was last possessed of the feud, (a) 67. To restrain this general right of inheritance in all the collateral relations, a new kind of feud was invented, called a feudum talliatum, which is thus described by Du Cange : — Feudum talliatum dicitur, verbis forensibus, hcereditas in quam- dam certitudinem limitata ; seu feudum certis conditionibus con- cessum, verbi gratid, alicui et liberis ex legitimo matrimonio nascituris. Unde si is cui feudum datum est moriatur absque liberis, feudum ad donatorem redit. Talliare enim est in quam- dam certitudinem ponere, vel ad quoddam certum hosreditamentum limitare? (b~) 68. It is observable that the principles of the feudal descent were peculiar to that tenure, and differed entirely from those of succession established by the Roman law ; in which the heir was a person instituted by the ancestor, or appointed by the law, to represent the ancestor in all his civil rights and obliga- tions ; whereas, in the feudal law, the heir succeeded not under any supposed representation to the ancestor, but as related to him in blood, and designated, in consequence of that relation- ship, by the terms of the investiture, to succeed to the feud. 69. When feuds became descendible, the lord, upon the death of every tenant, claimed the right of granting a new 16 * investiture * to the successor, without which he could not enter into possession of the feud. This showed that the right of inheriting was originally derived from the bounty and acquiescence of the lord ; and these investitures were evidence of the tenure, as well as of the services that were due for the feud. 70. It was also customary for the lord to demand some present from the heir, upon granting him investiture, which in course of (a) Craig. Lib. I. tit. 10. s: 11. (13, 14, 15.) (6) Craig. Lib. I. tit. 10. s. 17. (25.) i Talliare, dividere, partiri, disponere. Vid. Carpentier, Glossarium, voc. Tal- liare, 2. Tenures. Ch. I. s. 70—77. 21 time became part of the profits of the feud. It was called Relevium, and is thus described by a feudal writer : — Relevium est prcestatio hceredum, qui cum veteri jure feudali non poterant succedere infeudis, caducam et incertam hcereditatem relevabmt ; solutd summd vel pecunice, vel aliarum rerum, pro diversitate feudorum. (a) 71. As feuds were originally granted on condition of military or other services, it was deemed just that where there was no person capable of performing those services, the feud should return to the lord. Therefore, where a vassal died without heirs, the lord became entitled, to the feud by escheat. 72. Feuds having been at all times considered as voluntary donations, it was very soon established that every act of the vas- sal which was contrary to the connection that subsisted between him and his lord, and to the fidelity he owed him, or by which he disabled himself from performing his services, should operate as a forfeiture of the feud. 73. If the vassal omitted to require an investiture from the heir of his lord, for a year and a day after the death of the lord, and to take the oath of fealty to him, he lost his feud. So in the case of the vassal's death, if his heir did not require investiture from the lord within that time, he forfeited his feud, (b) 74. If the vassal refused to perform the services which were reserved upon the investiture, he forfeited his feud. Non est alia justior causa beneficii auferendi, quam si id, propter quod benefcium datum fuerit, hoc servitium facere recusaverit ; quia beneficium amittit. (c) * 75. If the vassal aliened the feud, or did any act by * 17 which its value was considerably diminished, he forfeited it. Si vassallus feudum dissiparet, aut insigni detrimento dete- rius faceret, privabitur. (d) 76. If the vassal denied that he held his feud of the lord, by saying that he held it of some other person, or denied that the land was held by a feudal tenure, he forfeited it. (e) 77. Every species of felony operated as a forfeiture of the feud ; being the highest breach of the vassal's oath of fealty. («) Schilt. Cod. s. 52. (6) Consuet. Feud. Lib. II. tit. 23, 24. (c) Consuet. Feud. Lib. II. tit. 24. § 2. (d) (Consuet. Feud. Lib. I. tit. 21. Zasius, In Usus Feud. Pars 10. § 54.) (e) Craig, Lib. III. tit. 5. s. 2. 22 Tenures. Ch. I. s. 78—81. 78. The feudal lord was equally bound to observe the terms of relation on his part ; and, therefore, if he neglected to pro- tect and defend his tenant, or did any thing that was prejudicial to him, or injurious to the feudal connection, he forfeited his seigniory, (a) 79. The feudal lord had not only a right to the service of his vassals in war, but had also the privilege of determining their disputes in time of peace. Thus we read in the Consuetudines Feudorum, — Si inter duos vassallos de feudo sit controversial domini sit cog-nitio, et per eum controversia terminetur. Si vero inter dominum et vassallum lis oriqtur, per pares curice, a do-mino sub fdelitatis debito conjuratos terminetur. (b) 80. The origin of the feudal jurisdiction is said to be derived from the following circumstances : — By the laws of all the northern nations every crime, not even excepting murder, was punished by a pecuniary fine called fredum. In % the infancy of the northern governments, the chief occupation of a judge con- sisted in ascertaining and levying those fines, which formed a considerable part of the public revenue. When extensive tracts of land were granted as feuds, the privilege of levying those fines was always included in the grant, with a right to hold a court for the purpose of ascertaining them ; from whence fol- lowed a jurisdiction over the vassals, both in civil and criminal matters, (c) 81. To all the nations descended from the Germans, justice was originally administered in their general assemblies ; nor did the king or chieftain pronounce sentence till he had consulted those persons who were of the same rank with the accused, without whose consent no judgment could be given. In 18 * imitation * of this practice, every feudal lord had a court, in which he distributed justice to his vassals ; and every freeman who held lands of him was bound, under pain of forfeit- ing his feud, to attend his court, there to assist his lord in deter- mining all disputes arising between his vassals. And as all the tenants were of the same rank, and held of the same lord, they were called pares curice. (d) (a) Consuet. Feud. Lib. II. tit. 26, 47. (6) Lib. I. tit. 18. (Lib. II. tit. 55.) (c) Montesq. Sp. L. B. 30. c. 18. (20.) Herv<5, Vol. I. 222—252. Kobertson's Cha. V. Vol. I. 67, 365. (d) Herv£, Vol. I. s. 263. (Craig. Lib. II. tit. 11. § 18.) Id. tit. 2. $ 24. 2 Bl. Comm. 54. Tenures. Ch. I. s. 82. 23 82. This practice appears to have been established so long ago as in the reign of the emperor Conrad, A. D. 920, of whom there exists the following law : — Statuimus, ut nullus miles epi- scoporum, abbatum, SfC. vel hominum, qui beneficium de nostris publicis bonis, aut de ecclesiarum prcediis, SfC. tenent, SfC. sine cerld et convictd culpd, suum beneficium perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium* suo- rum. (a) (a) (Consuet. Feud. Lib. V. tit. 1.) 24 CHAP. II. ANCIENT ENGLISH TENURES. Sect. 1. Introduction of Feuds. Sect. 25. Reliefs. 5. Division of Tenures. 26. Primer Seisin. 7. Tenure in Capite. 28. Wardships. 12. Statute of Quia Emptores. 30. Marriage. 13. Tenure by Knight Service. 32. Fines for Alienation. 17. Homage. 33. Escheat. 20. Fealty. 34. Tenure by Grand Serjeanty 22. Fruits of Knight Service. 35. Abolition of Military 23 Aids. Tenures. Section 1. It is now universally admitted that the feudal system, with all its fruits and services, as established in Nor- mandy, was first introduced into England by William the Con- queror, in those possessions of the Saxon Thanes which were granted by him to his followers, immediately after the battle of Hastings ; and that about the twentieth year of his reign, the feudal system was formally and generally adopted, (a) 2. In consequence of this event it became a fundamental maxim, or rather fiction of English law, that all the lands in the kingdom were originally granted out by the kings; and held mediately or immediately of the crown, in consideration of certain services to be rendered by the tenant. The thing holden was therefore called a tenement, the possessors thereof, tenants, and the manner of their possession, a tenure. And Lord Coke says : — « In the law of England we have not properly allodium, that is, any subject's land that is not holden." l (b) («) Spelman on Feuds, per tot. Wright Ten. 63. (b) 1 Inst. 1. a. Id. 1. b. i The foundation of European title to the soil of America was very fully discussed by Marshall, C. J., in the celebrated case of Johnson v. Mcintosh, 8 Wheat. 543 ; in Tenures. Cli. II. s. 3. 25 3. Although feuds were not originally hereditary, 1 in those countries where the feudal law was first established, yet we find which the Court held that the titles of the European nations, as between themselves, rested on discovery; subject to the right of occupancy only in the aboriginal inhabi- tants, for present use, subordinate to the ultimate dominion of the discoverers, who had the right ot preemption from the aborigines, and the right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. And sec Martin v. Waddell, 16 Pet. 367 ; Rogers v. Jones, 1 Wend. 237: Gough v. Bell, 10 Law Rep. 505. All the institutions in the United States now recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. It is true that Indian deeds of an early date have in some instances been admitted as the sole foundation of a title in fee simple; but none in Massachusetts, subsequent to the last prohibitory statute of 1731, forbidding all purchases from the natives without license from the legislature. Similar prohibitory acts were passed, in that and in some other provinces, at an earlier period. It is now the settled and fundamental doctrine, that all valid individual title to land within the United States, is derived from the grant of our own local governments, or from that of the United States, or from the crown, or the royal chartered provincial govern- ments. See 3 Kent, Comm. 378. 1 Story on the Constitution, b. 1. ch. 1. Jackson v. Ingraham, 4 Johns. 163. De Armas v. Mayor, &c, of New Orleans, 5 Miller, Louis. Rep. 132. This great feuda.l principle, that all lands are held of the sovereign, being thus acknowledged, the remark of Lord Coke, quoted in the text, seems in strictness to apply as justly to the United States as to England, we having no lands which are properly allodial, that is, which are not holden. But this feudal principle was never admitted here as a feature of political government, but only as the source of the rules of holding and transmitting real property between man and man. The military and oppressive attributes of the feudal system, which were formally abolished by the Stat. 12 Car. 2., had already become virtually dead in England, before the passage of that act, and were never supposed to have been brought into this country by the first colonists. The doctrine of feudal fealty, however, was retained ; but the right to exact the oath was applied only to the sovereign, and is resolved into the oath of allegiance, which every citizen may be required to take. 3 Kent, Comm. 512. By the original charters, under which most of the colonies were first settled, the lands were granted by the crown to the patentees, to hold in free and common socage. Such were the charters of Maine, Massachusetts, 2 Rhode Island, Connecticut, Pennsylvania, Maryland, Virginia, the Carolinas, and Georgia. In some other States, all tenures were turned into free and common socage, by express statute ; as, in New York, by the act of May 13, 1691 ; 3 Kent, Comm. 511 ; and in New Jersey, Elmer's Dig. p. 82. To this tenure, also, fealty is admitted to be incident, at least in fiction of law, and for the purpose of upholding other rights; and on this the right to distrain for rent is in some States recognized as grounded. Cornell v. Lamb, 2 Cowen, R. 652. 656 ; 3 Kent. Comm. 462. But in some other States, this incident of tenure in socage has never been admitted, the remedy for rent being only by action at law. Wait's case, 7 Pick. 105. In others, it is still a mooted question whether the right of distress exists, without an express stipulation to that effect, in the lease. 4 Am. Jur. 233 — 262. But this ques- i But see, contra, Spence on Equitable Jurisdiction, Vol. I. p. 44 — 46. Ante, ch. 1. § 19. note. 2 [For a learned and able discussion of the rights of riparian proprietors in Massachusetts, see Commonwealth v. Alger, 7 Cush. 53.] VOL. I. 3 26 Tenures. Ch. II. s. 3—5. that feuds were from the beginning hereditary, where lands held by an allodial tenure were voluntarily converted into feuds. Thus Basnage, in his Commentary on the customs of 20* Normandy, says, * that when Kollo became master of that province, he granted a considerable portion of it to his companions, and to gentlemen of Britanny, as hereditary feuds. That he also recalled a number of the ancient inhabitants who had held their estates by hereditary right, and restored them to their possessions in as full .and ample a manner as they had held them under the kings of France, (a) 4. When William I. established himself in England, he cer- tainly granted to his followers the inheritance of all the estates which he distributed among them, for some of those estates are possessed by their descendants at this day. And when he per- suaded the Anglo-Saxon proprietors to hold their lands by a feudal tenure, he as certainly allowed them to retain the inheri- tance. 5. Sir W. Blackstone states that there seem to have subsisted among our ancestors four principal species of lap tenures, to which all others might be reduced ; the grand criteria of which were the natures of the several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either free or base ; in respect of their quantity, («) Tom. 1. 153. edit. 1778. (Art. 102. p. 150. edit. 1709.) tion has become of little practical importance, the remedy by distress, in those States in which it is used, being now recognized and regulated by statutes. It is true that in some of the United States, statutes have been enacted, expressly declaring all their lands allodial. Sec Rev. LL. Connecticut, 1838, p. 3S9. tit. 57. ch. I. ; LL. New Jersey, Feb. IS, 1795. Elmer's Dig. p. 82.; LL. New York, Sess. 10. ch. 36. 1 Rev. Stat. N. Y. p. 71S. § 3. 1 LL. N. York, p. 71. ed. 1813, adopted into the Laws of the Terri- tory of Michigan, p. 393. But in these cases, the term is presumed to have been used iu its more popular sense, importing merely the actual freedom of the lands from feudal burdens and exactions, except those due to the State ; and not as intended to change any of the established rules of acquiring and transmitting real property. Sec 3 Kent, Coram. 509—514. 4 Kent, Comm. 2—4. Matthews v. Ward, 10 Gill & Johns. 450. 451. The doctrines of escheat, and of forfeiture for waste, arc plainly of feudal origin, though recognized and regulated by statutes. 4 Kent, Comm. 76 — S4. 2 Reeve, Hist. Eng. Law, p. 73. 148. Si vassallus feudum dissiparct, aut insignia detri- mento deterius faceret, privabitur. Zasius, In Usus Feud. Pars 10. § 54. Tom. IV. p. 99. Wright, Ten. 44. Feudum, deficiente heredc, ad dominum conccdentem rever- titur. Crag. Jus. Feud. Lib. II. tit. 15. § 10. But in some States they have been held to take effect by force of statutes only. Dcsilver's case, 5 Rawle, 112, 113. And see, as to waste, 2 Bl. Comm. 72, 73. 2 Inst. 300. Tenures. Ch. II. s. 5—7. 27 and time of executing them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform ; as to serve under the lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, and persons of servile rank ; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence ; as to pay a stated annual rent, or to plough such a field for three days. The uncertain depended on unknown contingencies ; as to do military service in person, or pay an assessment in lieu of it, when called upon, which are free services. Or to do whatever the lord should command, which is a base or villein service, (a) 6. From the various combinations of these services arose the four kinds of lay tenure which subsisted in England till the middle of the seventeenth century ; and three of which subsist to this day. Fust, where the service was free, but uncertain, as military service, that tenure was called chivalry, servitium * militare, or knight service. Secondly, where the service * 21 was not only free, but also certain, as by fealty only, by rent, and fealty, &c, that tenure was called liberum socagium, or free socage. These were the only free holdings or tenements ; the others were villeinous or servile. As, thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still villenage, but distinguished from the other by the name of privileged villenage, villenag-ium privile- giatum ; or it might be still called socage, from the certainty of its services, but degraded by their baseness into the inferior title of villanum socagium, villein socage, (b) 7. Although in the first instance all the lands in England were held immediately of the king, yet in consequence of the practice of subinfeudation, which prevailed in those times, the king's chief tenants granted out a considerable part of their estates to inferior persons, who were called valvasores, to hold of themselves, by which mesne, or middle tenures were created ; (a) 2 Bl. Com. 60. (J) Idem. 28 Tenures. Ch. II. s. 7—12. from whence arose several distinctions, as to the manner in which lands were held. 8. Estates might be held of the king, or of a subject in two ways, either as of his person, or as of an honor or manor of which he was seised ; and every holding of the person was, strictly speaking, a tenure in capite : but still that expression was always confined to a holding of the king in right of his crown and dignity ; or, as it was formally expressed, ut de corona, or ut de persona ; for whenever the holding was of the person of a subject, it was called tenure in gross, (a) 9. Tenure in capite was in general so inseparable from a hold- ing of the person of the king, that if lands were granted by his majesty, without reserving any tenure, or absque aliquo hide reddendo, or the like ; there the lands, by operation of law, should be held of the king in capite, because that tenure was the most advantageous to the crown, (b) 10. Where an honor or barony originally created by the crown returned to the king by forfeiture or escheat, the persons who held their lands of such honor or barony became tenants to the crown, and w T ere said to hold of the king ut de honore de A., SfC. This distinction of tenure was extremely important to 22 * those who * held of such honors or baronies ; for by an article of the Magna Charta of King Henry III. it was declared that persons holding of honors escheated, and in the king's hands, should pay no more relief nor perform more ser- vices to the king, than they should to the baron, if it were in his hands, (c) 11. It followed that where lands were held of the king as of an honor, castle, or manor, and escheated to the crown, the tenure was not in capite. And where lands were granted by the king to hold of him, as of his manor of A., this was not a tenure in capite. (d) 12. In the case of private individuals, any person might for- merly, by a grant of land, have created a tenure, as of his person, or as of any honor or manor whereof he was seised. If no tenure was reserved, the feoffee would hold of the feoffor, by the same services by which the feoffor held over. This doctrine having been found to be attended with several inconveniences, (a) 1 Tnst. 108. a. 12 Eep. 135. Fitz. N. B. (5). (b) Lowe's case, 9 Rep. 122. (c) 2 Inst. 64. (d) Fitz. X. B. 5. K. Dyer 44. 1 Inst. 108. a. Stat. 1 Ed. 6. c. 4. Tenures. Ch. II. s. 12—15. 29 was altered in the reign of King Edward I. by the statute of Quia Emptores Terrarum, 1 which directs that upon all sales or feoffments of lands, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it.f These provisions not extending to the king's tenants in capite, the like law respecting them was de- clared by the statutes of Prcerogativa Regis, 17 Edw. 2. c. 6. and 34 Edw. 3. c. 15. by which last all subinfeudations previous to the reign of Edward I. were confirmed ; but all subsequent to that period were left open to the king's prerogative, (a) 13. The first and most honorable kind of tenure was by knight service, servitium militare. To make a tenure of this kind a determinate quantity of land was necessary, which was called a knight's fee, feudum militare, the measure of which is by some ancient writers, estimated at eight hundred acres of land, and by others at six hundred and eighty. But Lord Coke was of opinion, that a knight's fee was to be esteemed * according to the quality, and not the quantity of the *23 land ; and that 20/. a year was the qualification of a knight, (b) 14. Every person holding by knight service was obliged to attend the lord to the wars, if called upon, on horseback, armed as a knight, for forty days in every year, at his own expense. This attendance was his redditus, or return for the land he held. If he had only half a knight's fee, he was only bound to attend for twenty days, and so on in proportion, (c) 15. The personal attendance in knight's service growing troublesome and inconvenient, the tenants found means of com- pounding for it; first by sending others in their stead, after- wards by making a pecuniary satisfaction to their lords in lieu of it. At last this pecuniary satisfaction was levied by assessments, at so much for every knight's fee ; from whence it acquired the name of scutagium, or servitum scuti ; scutum being then a (a) 2 Inst. 501. 18 Ed. 1. c. 1. 1 Inst. 98. b. Vide tit. 32. c. 1. (b) 1 Inst. 09. a. Mad. Exch. 4to. Vol. I. 321. (c) Mad. Id. 053. 1 This statute was never recognized or held in force in Pennsylvania. Ingersoll v. Sargent, 1 Whart. 337. t The idea of this law was probably taken from, the ordonnapce of Philip Augustus which has been mentioned in the preceding chapter, § 53. 3* 30 Tenures. Ch. II. s. 15—19. well known name for money, and in Norman French it was called escuage. (a) 16. As escuage differed from knight service in nothing but as a compensation differs from actual service, it is frequently con- founded with it. Thus Littleton must be understood when he says that tenant by homage, fealty, and escuage, was tenant by knight service. (6) 17. Tenure by knight service had all the marks of a strict and regular feud. It was granted by words of pure donation — dedi et concessi : was transferred by investiture, or delivering corporal possession of the land, and was perfected by homage and fealty. Thus every person holding a feud by this tenure was bound to do homage to his lord, for which purpose he was to kneel down before him and say, " I become your man from this day forward, of life and limb, and of earthly worship ; and unto you shall be true and faithful, and bear you faith for the tenements that I claim to hold of you ; saving the faith that I owe unto our sov- ereign lord the king." And the lord being seated, kissed him. (c) 18. Homage was properly incident to knight service, because it concerned service in war. It must have been done in person, not by attorney ; and the performance of it, where it was due, materially concerned both the lord and the tenant in point of interest and advantage. To the lord it was of consequence, because till he had received homage of the heir, he was 24* not * entitled to the wardship of his person or estate. To the tenant the homage was equally important; for anciently every kind of homage, when received, bound the lord to acquittal and warranty ; that is, to keep the tenant free from distress, entry, or other molestation, for services due to the lord paramount; and to defend his title to the land against all strangers, (d^) 19. The words homagium and dominium are directly opposed to each other, as expressing the respective situations and duties of the lord and vassal ; which, in conformity to the principles of the feudal law, were reciprocal. Thus Glanville says, — mutua quidem debet esse dominii et homagii fidelitatis connexio, ita quod quantum homo debet domino, ex homagio ; tantum illi debet dominus, jtrceler solam reverentiam. (e) («) Mad. Exch. 652. (b) S. 95. (0 Lit. s. 85. Stat. 17. Ed. 2. ((/) 1 Inst. 66. b. 67. b. n. 1. 2 Inst. 10. (e) Lib. 9. c. 4. Tenures. Cli. II s. 20—25. 31 20. All tenants by knight service were also subject to fealty. which is thus described by Littleton, s. 91. — " And when a free- holder doth fealty, he shall hold his right hand upon a book, and shall say thus : — know you this, my lord, that I shall be faithful and true unto you, and faith to you shall bear for the lands which I claim to hold of you, and that I shall lawfully do to you the customs and services which I ought to do at the time assigned. So help me God and his saints." And he shall kiss the book. 21. Fealty and homage were perfectly distinct from each other ; for though fealty was an incident to homage, and ought always to have accompanied it, yet fealty might be by itself. being something done when homage would have been improper ; so that homage was inseparable from fealty, but fealty was not so from homage. (a) 22. The tenure by knight service, being the most honorable, was also the most favorable to the lord, for it drew after it these five fruits or consequences, as inseparably incident to it ; namely, aids, relief primer seisin, wardship, and marriage. 23. With respect to aids, they were the same as those estab- lished on the continent ; namely, to make the lord's eldest son a knight, to marry the lord's eldest daughter, and to ransom the lord's person when taken prisoner. These aids were introduced into England from Normandy, where they appear to have been established before the conquest. (b~) * 24. Aids of this kind were originally uncertain ; but * 25 by the statute of Westmin. I. the aids of inferior lords were fixed at twenty shillings for every knight's fee, for making the lord's eldest son a knight, or marrying his eldest daughter. The same was done with regard to the king's tenants in capite, by the statute 25 Edw. 3. c. 11. As to the aid for the ransom of the lord's person, not being capable of any certainty, it was never ascertained, (c) 25. Upon the death of every tenant the lord claimed a sum of money from his heir, as a fine for taking up the estate that lapsed by the death of the ancestor, which was called a relief. This practice was also adopted from the laws of Normandy, (a) 1 Inst. 68. a. Wright. 55. n. (b) (Le Grand Coustumier, c. 35. fol. 57. b.) (c) 1 Ed. 1. c. 36. 2 Inst. 231. 13 Rep. 20. 32 Tenures. Ch. II. s. 25—29. where reliefs were reduced to a certainty at the time when the customs of that province were collected, (a) 26. Where the king's tenant died seised, the crown was enti- tled to receive of the heir, if he were of full age, an additional sum of money, called primer seisin. It does not appear when this right was first established : but in the stat. of Marlbridge, 52 Hen. 3. c. 16. it is thus mentioned : — De hceredibus autem qui de domino rege tenent in capite, sic observandum est; quod domihus primam inde habeat seisinam, sicut prius inde 26 * habere consuevit. The * king's right to primer seisin is also declared in the statute De Prerogative Regis. And it was settled that the king should receive on this account one whole year's profit of the lands. (6) 27. Primer seisin was only incident to the king's tenant in capite, not to those who held of inferior or mesne lords. " It seems (says Sir W. Blackstone) to have been little more than an additional relief, founded on this principle, that by the ancient law of feuds, immediately upon the death of a vassal, the lord was entitled to enter, and take seisin or possession of the land, by way of protection against intruders, till the heir appeared to claim it, and receive investiture ; during which interval the lord was entitled to the profits." (c) 28. These payments were only due when the heir was of full age. If the heir was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to ivardshipfi which consisted in having the custody of the body and lands of the heir, without being accountable for the profits, till the male heir attained twenty-one, and the female sixteen. 29. The doctrine of wardships was taken from the customs of Normandy, in which it was called garde noble, (d) Of the various hardships which arose from the adoption of the feudal law, wardship was the greatest, and of which there was most complaint: for the object of some of the first chapters of Magna Charla was, to regulate the conduct of the lords in this respect, and to restrain them from wasting and destroying the estates of their wards. (a) Grand Coust. c. 34. (fol. 56. b.) (&) 2 Inst. 134. 17 Ed. 2. c. 3. 2 Inst. 9. (c) 2 Coram. 66. (d) Grand Coust. c. 33. fol. 53. Basnage, Vol. I. 326. (306. art. 213. pref.) [t Writ of right of ward abolished after 1st June, 1835, by Stat. 3 and 4 Will. 4. c. 27. s. 36.] Tenures. Ch. II. s. 30—35. 33 30. By the customs of Normandy female wards were directed to be married with the advice and consent of the lord and of their relations. In imitation of this practice, it appears to have been settled in England, soon after the establishment of the Normans, that the consent of the lord was necessary to the mar- riage of his female wards, for which the lords usually required a sum of money. In the charter of King Henry I. that monarch engages to waive that prerogative ; this being disregarded, it was provided by the first draught of the Magna Cho.rta of King * John, that heirs should be married without dis- 27 * paragement, by the advice of their relations. But in the charter of King Henry III. the clause is merely that heirs shall be married without disparagement, (a) 31. Soon after, the king and the great lords established a right to consent to the marriage, not only of their female, but of their male wards : for as nothing but disparagement was restrained, they thought thernselves at liberty to make all other advantages they could. Afterwards this right of selling the ward in mar- riage, or else receiving the price or sale of it, was expressly declared by the statute of Merton. (b) 32. All lands held by a feudal tenure were originally unalien- able, without the license of the lord ; from whence arose fines for alienation, of which an account will be given hereafter, (c) 33. Where the tenant died without heirs, by which there was no person to perform the services, the land returned to the lord as an escheat, in conformity to the rules of the feudal law. (d) 34. There was a species of tenure called grand serjeanty, which was considered superior to knight service ; whereby the tenant was bound, instead of serving the king generally in his wars, to do him some special honorary service in person. Thus where the king gave lands to a man to hold of him by the ser- vice of being marshal of his host, or marshal of England, or high steward of England, or the like, these were grand serjean- ties. So if lands were given to a man to hold by the service of carrying the king's sword at his coronation, or being his carver or butler, these were called services of honor, held by grand serjeanty. (e) *35. The oppressions arising from military tenures, *28 (a) Grand Coust. c. 33. (fol. -55. o.) (6) 20 Hen. 3. c. 6. (c) Tit. 32. c. 1. (d) Ante, c. l.s. 11. ie) l'leta. Lib. I. c. 10. 1 Inst. 10G. a. 107. a. Dyer, 285. b. 34 Tenures. Ch. II. s. 35. having been discontinued during the civil wars in the reign of King Charles I. and in the time of the Commonwealth, were entirely removed at the Restoration, by the statute 12 Cha. 2. c. 24. which enacted that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterle- mains, values and forfeitures of marriages, by reason of any tenure of the king, or others, be totally taken away ; that all fines for alienations, tenures by homage, knight service and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king in capite, be likewise taken away ; that all sorts of* tenures held of the king or others, be turned into free and common socage, save only tenures in frankalmoigne, copyholds, and the honorary services of grand serjeanty; and that all tenures which should be created by the king, his heirs or successors in future, should be in free and common socage. 35 CHAP. III. MODERN ENGLISH TENURES. Sect. 1. Manors. Sect. 38. In Gavelkind. 8. Courts Baron. 14. Inferior Manors. 17. How Manors are destroyed. 23. Tenure in Socage. 26. By Petit Serjeanty. 28. In Burr/age. 30. In Ancient Demesne. 39. Incidents to these Tenures. 48. Charges in Socage by stat. 12 CAa.II. 52. Tenure in Villenage. 53. Copyholds. 59. .Free Copyholds. 62. Tenure in Frankalmoigne. [This chapter, as is apparent from the titles of its several sections, can be of very little use to an American lawyer, and it is therefore omitted. We have already seen 1 that all the lands in the American colonies were held in free and common socage ; a term importing tenure by any certain and defined service, duty, or render, not military. 2 The value of this tenure consisted, in modern times at least, in the certainty with which the services were defined, thus exempting the tenant from the wanton and arbitrary exactions to which other tenures were liable ; and hence the care taken by the early adventurers in the settlement of this country, to secure the explicit declaration of this tenure in their charters. No oath of fealty seems ever to have been taken or required here ; nor has any feudal solemnity been used, in the conveyance of lands, except- livery of seisin. The only feudal fictions, and services, observes Chancellor Kent, which can be presumed to be retained in any part of the United States, consist of the feudal principle, that the lands are held of some superior or lord, to whom the obligation of fealty, and to pay a determinate rent are due. But the right to require the oath of feudal fealty was never practically applied, nor 1 Ante, ch. 2. § 2. note 1. '-' Litt. $ 117. 118. 36 Tenures. Ch. III. assumed to apply to any other superior lord than the chief lord of the fee, or, in other words, to the people of the State ; and then it resolved itself into the oath of allegiance, which is demandable of every citizen, on a proper occasion. 1 ] 1 3 Kent. Coram. 510. 512. 37 TITLE I. ESTATE IN FEE SIMPLE. BOOKS OF REFERENCE UXDER THIS TITLE. Littleton's Tenures, -with the ancient Commentary published by Mr. Carey. Coke upon Littleton. Bracton, Book I. II. Blackstone's Commentaries, Book II. ch. 7. Richard Preston. Elementary Treatise on Estates, ch. 1, 2, 4, 7, 8. Sir Robert Chambers. Treatise on Estates and Tenures. Owen Flintoff. On the Law of Real Property. Vol. II. Book I. ch. 3. Kent's Commentaries. Lect. 51, 52, 54. Story on the Constitution of the United States. Book I. Sullivan's History of Land Titles in Massachusetts, p. 1 — 64. Kilty's Landholder's Assistant. McHenry's Ejectment Law of Maryland. Sect. 1. Of Real Property. Sect. 48. All other Estates merge in 2. Corporeal or Land. the Fee. 3. Shares in Corporate Stocks. 51. Incidents to Estates in Fee 4. Money to be laid out in Simple. Land. 52. Alienable. 5. Heir Looms and Charters. 54. Descendible to Heirs General. 7. Fixtures. 55. Subject to Curtesy and 9. Trees and Crops. Dower. 10. Lncorporeal. 56. Liable to Debts. 11. Estates in Land. 59. Of Crown Debts. 13. Estates of Freehold. 62. How Contracted. 22 Of Seisin. 63. Bind the Lands when con- 23. Where an Entry is necessary. tracted. 30. Abatement. 65. Into whose Hands soever they 32. Disseisin. pass. 35. Abeyance of the Freehold. 66. How discharged. 38. Who may have Freehold 67. Estates in Fee forfeited for Estates. Treason. 42. Estates in Fee Simple. 70. And for Disclaimer. 46. Abeyance of the Fee. 71. Qualified Fees. Section 1. By the common law, property is divided into two kinds ; namely, Real and Personal Property, which are governed by distinct systems of jurisprudence. Real property consists of vol. i. 38 Title I. Estate in Fee Simple, s. 1 — 2. land, and of all rights and profits arising from and annexed to land, that are of a permanent and immovable nature, and is usually comprehended under the words, lands, tenements, and hereditaments.' Land means the whole surface of the earth ; 2 .tenement is a word of still greater extent, signifying every thing that may be holden by a tenure : but hereditament is the largest and most comprehensive word, including not only lands and tenements, but whatever may be inherited, (a) 2. Real property is corporeal or incorporeal. Corporeal prop- erty consists wholly of substantial and permanent subjects, all which may be comprehended under the general denomi- 46 * nation of * land ; which Lord Coke says, in its legal signification, comprehends any ground, soil, or earth whatsoever ; as meadows, pastures, woods, waters, marshes, furzes, and heath. It has also in its legal signification an indefi- nite extent, upwards as well as downwards ; for it is a maxim of law that cujus est solum, ejus est usque ad coelum? Therefore («) 1 Inst. 6. a. (Sackct v. Wheaton, 17 Pick. 105.) 1 Real estate, as described by Lord Coke, is that which " concerns, or is annexed to, or exercisable within lands." Co. Lit. 19, 20; 2 Ves. 663, 664. The words " land " and " real estate,'" have been defined by legislative acts, in several of the United States and the meaning extended to include lands, tenements, and hereditaments, and all rights thereto and interests therein, wherever a more restricted meaning is not mani- festly intended. See Revised Stat. A/ass. ch. 2, § 6, art. 10; Rev. Stat. Maine, ch. 1, § 3, X. ; Rev. Stat. New Hamp. ch. 1, § 17 ; Rev. Stat. Mich. Part 1, tit. 1, ch. 1, § 3, art. 9. In other States, the term " real estate " is simply declared coextensive with - " lands, tenements, and hereditaments:' Rev. Stat. Ind. ch. 28, § 228 ; Rev. Stat. Arkansas, ch. 31, § 7 ; and see Rev. Stat. A 7 . York, 1828, Vol. I. p. 750, § 10 ; and some extend it expressly to chattels real. Rev. Stat. Missouri, ch. 32, § 49. Such has been declared the meaning so far as relates to the Registry Act of New York, except as to leases for a term not exceeding three years. Rev. Stat. N. York, 1828, Vol. I. p. 762, vS 36. See also Rev. Stat. N. York, 1846, Vol. II. p. 5, § 25 ; Rev. Stat, Arkansas, ch. 49, § 19, where, in certain cases, equitable estates are also included. [2 The term 'land' legally includes all houses and buildings standing thereon. Whatever is affixed to the realty is thereby made parcel thereof, and belongs to the owner of the soil. Sudbury v. Jones, 8 Cush. 189.] 3 If a tree grows so near the confines of the land of two adjoining proprietors, that the roots extend into and the limbs overhang the adjoining close, yet the property iu the tree belongs to the owner of the land in which the tree was planted. The propri- etor of the adjoining close may remove the branches which overhang his land ; but he may not convert them, nor the fruit, to his own use. Holden v. Coates, 1 M. & Malk. 112- Masters v. Pollie, 2 Roll. R. 141 5 Lyman v. Hale, 11 Conn. R. 177 ; Beards- lee v. French, 7 Conn. R. 125. But qucere, whether he may remove branches, after they have overhung his land twenty years. A projection, overhanging the land by Title I. Estate in Fee Simple, s. 2. 39 land legally includes all castles, houses, and other buildings standing thereon ; and downwards whatever is in a direct line between the surface and the centre of the earth ; such as mines of metals, coals, and all other fossils, which belong to the owner of the surface, except mines of gold and silver, for these by the royal prerogative belong to the crown. 1 (a) («) 1 Inst. 4. a. Idem. Plowd. 313. right, is an incumbrance, and will justify the purchaser in repudiating a contract for the sale of an unincumbered title to the land. Pope v. Garland, 2 Y. & Col. 403. 1 This branch of prerogative is confined to mines of gold and silver, and to those which are exclusively such. It was formerly held by a majority of the judges in Eng- land, in the case of Mines, Plowd. 310, that if the mine was of baser metal, with an intermixture of gold or silver, this intermixture, however small, entitled the king to the whole. But this opinion was strongly controverted at the time, Plowd. 337 — 340, and is not mentioned by Lord Coke, when treating of this subject, in 2 Inst. 578 ; see also 1 Bl. Comra. 294 ; and the law was declared otherwise by stat. 1 W. & M. st. 1, ch. 30, and 5 W. & M. ch. 6. The reasons on which this prerogative is founded are, that the king is bound to defend the realm, and to coin and furnish the currency required for this purpose, and for the uses of trade and commerce; to do which, the right to the mines of gold and silver is indispensably necessary. Plowd. 315, 316. These reasons would seem to apply to the United States, as well as to any other sovereign power. But in most of the Royal Charters, under which this country was settled, the grant of the soil expressly includes " all mines," as well as every other thing included or borne in or upon it ; reserving as rent only, in the reddendum, one-fifth part of al the gold and silver ore, to be delivered at the pit's mouth, free of charge. Such were the charters of Massachusetts, Rhode Island, Connecticut, Pennsylvania, Maryland, and Virginia. In the charter of North Carolina one-fourth was thus reserved ; and in that of Massachusetts one-fifth of the precious stones is also included. By the charter of Charles II. to the Duke of York, March 12, 1663, of the territory extending from Nova Scotia to Delaware Bay, all mines were expressly granted without any reservation i and therefore none is expressly found in the States of New York, New Jersey, nor Del- aware. New Hampshire was simply organized as a Royal Province, by commission from the king. And as it was conceded and declared, in the case of the Mines, Plowd. 336, that a mine royal may by the king's grant be severed from the crown and granted to a private person, it results that upon the separation of these States from Great Britain, the former did not succeed to the prerogative right to gold and silver mines, in those States where such mines were included in the terms of the charters. Whether the States could demand the fifth or fourth parts reserved as rent, as the assignees of the crown in law, or by force of the treaty of peace ; and whether the United States may claim the same proportion as the assignees of the States, under the Constitution, or the whole, by their own prerogative, on the original grounds above stated, are questions which it is not necessary here to discuss. In Canatoo's case, 3 Kent, Coram. 378. n., Mr. Justice Clayton said that the right of the State was a right of preemption only, and that it was never considered greater by the govern- ment of Great Britain. The State of New York, at an early period, asserted its sovereign right to all 40 Title I. Estate in Fee Simple, s. 3. (3. Shares in the property of a corporation are real or personal property, according to the nature, object and manner of the investment. "Where the corporate powers are to be exercised solely in land, as where original authority is given by the charter to remove obstructions in a river and render it navigable, to open new channels, &c, to make a canal, erect waterworks, and the mines of gold and silver ; giving permission to the discoverers of such mines to ■work them for twenty-one years only, and no longer, without permission of the legis- lature ; and extending the claim to all such mines containing also copper, iron, tin or lead, where the latter ores do not amount to two-thirds of the whole. Stat. Feb. 6, 1789, Sess. 12, ch. 18. By the Revised Statutes of 1828, Part 1, ch. 9, tit. 11, the same right is distinctly reasserted, and extended to all mines of other metals found in lands owned by persons not citizens of any of the United States. See 3 Kent, Comm. 377, note b. Where the owner in fee sold and conveyed the lands to another, reserving to himself and his heirs and assigns all manner of mines, &c, it was held that, under this reserva- tion, he was not entitled to take all the minerals, but only so much as he could get, after leaving a reasonable support to the surface. Harris v. Ryding, 5 M. & W. 60 ; [Smart v. Morton, 30 Eng. Law & Eq. 385.] If the mine thus reserved, or otherwise granted, is encroached upon, the remedy of the proprietor is in trespass, and not case, though he has no property in the soil above the mine ; for he was in lawful possession of the mine. Harker v. Birkbeck; 3 Burr. 1556, 1 W. Bl. 482. A grant of a whole mineral stratum under the soil of the grantor, is a grant of a real hereditament in fee simple. Stoughton v. Lee, 1 Taunt. 402. And see Grubb v. Guilford, 4 Watts, 223. A license to enter the lands of the grantor, and mine and search for and raise metals, carry them away, and convert them to the grantee's own use, is not a mere personal license, but is also a grant of an interest in the property, and as such is capable of being assigned over. Muskett v. Hill, 5 Bing. N. C. 694. In trover, for copper ore raised from under the plaintiffs soil, it was held that the presumption that the right to the minerals accompanied the fee simple, might be rebutted by proof of the absence of enjoyment on the part of the plaintiff, and of user by persons not the owners of the soil. Rowe v. Grenfel, Ry. & M. 396. In a lease of mines, or a contract for the sale of minerals to be raised therefrom by the vendee, where the vendor or proprietor has an interest either in the manner of working the mine, or in the quantity raised therefrom, the instrument carries in gremio, by implication, the right of entry and inspection of the mines and of the minerals raised. Blakesley r. Whieldon, 1 Hare, 176. A mining concern, created by a lease to several persons, who jointly work it, with a community of expense and profit, is to some purposes a trading and partnership con- cern ; and is therefore subject to all the debts of the partnership property, and to the debts of one partner to the other partners in respect of the partnership, before the pri- vate creditors of an insolvent partner can come in. Eereday v. Wightwick, 1 Tamlyn, R. 250 ; 1 Rus. & My. 45. See also Tredwin v. Bourne, 6 M. & W. 461. In a reservation of '-nil minerals," in a grant of land, it seems that the word is to be taken in its popular signification. Gibson v. Tj-son, 5 Watts, 34. If a license to dig minerals does not clearly, in its terms, give the grantee the exclusive right, the grantor or his assigns may still exercise it in common with him. Chetham v. Wil- liamson, 4 East, 469 ; E. of Huntington v. Lord Mountjoy, 4 Leon. 147. Title I. Estate in Fee Simple, s. 3 — 5. 41 like, as was the case of the New River water, the navigation of the River Avon and some others, and the property or interest in the land, though it be an incorporeal hereditament, is vested inalienably in the corporators themselves, the shares are deemed real estate. 1 Such, in some of the United States, has been con- sidered the nature of shares in toll-bridge, canal and turnpike corporations, by the common law ; 2 though latterly it has been thought that railway shares were more properly to be regarded as personal estate. 3 But where the property originally entrusted is money, to be made profitable to the contributors by applying it to certain purposes, in the course of which it may be invested iii lands or in personal property, and changed at pleasure, the capital fund is vested in the corporation, and the shares in the stock are deemed personal property, and as such are in all respects treated. 4 In modern practice, however, shares in corporate stock, of what- ever nature, are usually declared by statute to be personal estate.) 4. Money agreed or directed to be laid out in the purchase of land is considered in equity as land ; because there, whatever is agreed to be done is considered as actually done. "Where money directed to be laid out in the purchase of land comes into the hands of the person who would have had the absolute property of the land, in case a purchase had been made, it will be con- sidered as money. But where it is in the hands of a third per- son, some act must be done by the person entitled to it, to show that he considers it as money, otherwise it will still be deemed land, {a) 5. There are some chattels which are considered as so an- nexed, and necessary to the enjoyment of the inheritance, that they are deemed in law to be a part of it, and descendible to the (a) Fonb. B. 1. c. 6. s. 9. Walker v. Denne, 2 Ves. Jun. 170. Biddulph v. Biddulph. 12 Ves. 161. iDrybutter v. Bartholomew, 2 P. W. 127; Townsend v. Ash, 3 Atk. 336 ; Buck- eridge v. Ingraham, 2 Ves. 652. 2 Wells v. Cowles, 2 Conn. E. 567 ; Price v. Price, 6 Dana, 107 ; Hurst v. Meason. 4 Watts, 341, 346 ; Binney's case, 2 Bland, 145, 146. But in Massachusetts, from an early period, and upon great consideration, shares in all these corporations have been held to be personal estate ; the corporator having only a personal action for his divi- dends. Russell v. Temple, 3 Dane, Abr. 108, § 2—6. 3 Bradley v. Holdsworth, 3 M. & W. 422, per Parke, B., and Alderson, B. 4 Bligh v. Brent, 2 Y. & C. Exch. R. 268, 294, 295 ; Bradley v. Holdsworth, 3 M. & W. 422. 42 Title I. Estate in Fee Simple, s. 5 — 7. heir, from whence they are called heir looms. Thus, deer in a real authorized park, fishes in a pond, rabbits in a warren, and doves in a dove-house, are held to be part of the inheritance ; and belong to the heir, not to the executor, (a) 6. It is the same of charters, court rolls, deeds and other evidences of the land, together with the chests and boxes in which they are contained. And where an ancient horn had immemorially gone with the estate, and had been delivered to the plaintiff's ancestors, to hold their land by it, it was decreed that it should go with the land as an heir loom, (b) (7. In regard to chattels, as pertaining to the realty by con- struction, the principle upon which they are so treated is, that they have become identified with the realty. Therefore it is a rule, that things personal in their nature, but fitted and prepared to be used with real estate, and essential to its beneficial enjoy- ment, having been fixed to the realty, or used with it, and continuing to be so used, become parts of the land, accessione et destinatione, and pass with it by the deed of conveyance. Thus, in the conveyance of a cotton or woollen factory, by that or any other general name which is understood to embrace all its essen- tial parts, the machinery is included, whether affixed to the building or not. So, in the conveyance of a saw-mill, co nomine, the mill-chain, bars, &c, are included, as essential parts of the mill. 1 And so it is with regard to the engines, utensils, and instruments, whether fixed or loose, prepared perpelui usus gratia, and employed in the working of a mine. 2 So of the keys and bells of a house, the kettles, vats, fire-frames, furnaces, and grates set therein, pictures and mirrors set in the wainscot, the stones of a mill, and the like. 3 And it makes no difference that they are for the time being removed from the premises, if it (n) 2 Comm. 427. (6) 1 Eep. 1. Plowd. 323. Pusey v. Pusey, 1 Vern. 273. 1 Farrar v. Stackpole, 6 Greenl. 154; Fisher v. Dixon, 12 CI. & Fin. 312j 3 Dane's Abr. 156, § 39; 2 Com. Dig. tit. Biens, B. ; Powell v. Monson, 3 Mason, II. 459; Gibbon on Fixtures, p. 27—31. 2 Fisher v. Dixon, 12 CI. & Fin. 312. SLiford's case, 11 Co. 46, 50; Co. Lit. 4; Cave v. Cave, 2 Vera. 508; Buckland v. Butterfield, 2 Brod. & Bing. 54; Union Bank v. Emerson, 15 Mass. 159 ; Goddard v. Chase, 7 Mass. 432; Gaffield v. Hapgood, 17 Pick. 192; Noble v. Bos worth, 19 Pick. 314 ; Colegrave v. Dias Santos, 2 B. & C. 76 ; Lyde v. Russell, 1 B. & Ad. 394 ; Washburn v. Sproat, 16 Mass. 449; Goddard v. Bolster, 6 Greenl. 427 ; Waterhouse v. Gibson, 4 Greenl. 230 ; 6 Am. Law Mag. 346—362. Title I. Estate in Fee Simple, s. 7 — 8. 43 be for a temporary purpose, as for repairs ; for they afe still deemed parts of the realty. 1 ) (8. But an exception to this rule is admitted, where the parties, previous to the annexation of things to the freehold, have mu- tually agreed that they shall not become parts of the realty, but shall remain the property of the person annexing them, or may be removed by him. And a general usage may be shown in proof of such agreement. 2 ) 1 Liford's case, 11 Co. 50; Wystowe's case, 14 H. 8, 25; Farrar v. Stackpole, 6 Grcenl. 154. In Rhode Island, the main wheel, steam engine, boilers and shafts attached to real estate for the purpose of operating machinery, and all kettles set and used in a manufactory, when they belong to the owner of the soil, are declared by statute to be real estate, and the other implements of manufacture are deemed personal. Eev. Stat. Rhode Island, 1844, p. 261. 2 Russell v. Richards, 1 Fairf. 429 ; 2 Fairf. 371 ; Hilborne v. Brown, 3 Fairf. 162 ; Osgood v. Howard, 6 Greenl. 452; Wells v. Banister, 4 Mass. 514; Colegrave v, Dias Santos, 2 B. & C. 76, per Best, J. ; Hare v. Horton, 5 B. & Ad. 715 ; Heermance v. Vemoy, 6 Johns. 6 ; Aldrich v. Parsons, 6 N. Hamp. 555 ; Ashmun v. Williams, 8 Pick. 402. Buildings erected on the land of another, without his consent, become part of the realty ; and if erected by the husband on his wife's land, they become hers, she being incapable of contracting with him. Washburn v. Sproat, 16 Mass. 449 ; Pierce v. Goddard, 22 Pick. 559. A partition fence, though not precisely on the line, goes to the grantee, unless it be otherwise agreed. Ropps v. Barker, 4 Pick. 239. [A house built and occupied by a reversioner, with the assent of the tenant for life, is not personal, but real, estate. Cooper v. Adams, 6 Cush. 87. " What- ever is affixed to the realty is thereby made parcel thereof, and belongs to the owner of the soil. Quicquid plantatur solo, solo cedit. Things personal in their nature, but prepared and intended to be used with real estate, having been fixed to the realty and used with it, become part of the land by accession, pass with it, and •belong to the owner of the land. 1 Cruise's Dig. (Greenl. ed.) Gibbons o.n Fixtures, 2. It follows that where there is no agreement to change the legal rights of the parties, materials when used for building a house become part of the freehold, and cannot be reclaimed by their original owner after annexation to the realty, as against the owner of the land to which they have been affixed. Buildings erected on land of another, 'voluntarily and without any contract with the owner, become part of the real estate, and belong to the owner of the soil. 16 Mass. 449 ; 22 Pick. 559 ; Leland v. Gassett, 17 Verm. 403. An exception is admitted to this general rule where there is an agree- ment, express or implied, between the owner of the real estate and the proprietor of materials and buildings, that when annexed to the realty, they shall not become parts of it, but shall still remain the property of the person annexing them. In such case, the law gives effect to the agreement of the parties, and personal property, though affixed to the realty, retains its original characteristics, and belongs to its original owner. Within this exception are included not only cases where there is an express agreement between the parties that personal property shall not become real estate by annexation to the soil, but also that large class of cases which arise between landlord and tenant, in which by agreement, either express or implied, from usage or otherwise, the tenant is allowed to retain as his own property, if seasonably removed, fixtures erected by him for purposes of trade, ornament, or ordinary use, upon leasehold premises 44 Title 1. Estate in Fee Simple, s. 9. (9. The question whether trees and growing crops are real or personal property, which arises most frequently in the applica- tion of the statute of frauds, depends mainly on the intention of the parties. It is well settled that a contract for the sale of crops of the earth, ripe, but not yet gathered, is not a contract for any interest in lands, and so not within the statute of frauds, though the vendee is to enter and gather them. Subsequently it has been held, that a contract for the sale of a growing crop, for example a crop of potatoes, is essentially the same, whether they are covered with earth in a field, or stored in a box ; in either case the thing sold is but a personal chattel, and so is not within the statute of frauds. The later cases confirm the doc- trine involved in this decision, namely, that the transaction takes its character of realty or personalty, from the principal subject- matter of the contract, and the intent of the parties ; and that therefore a sale of any growing produce of the earth, reared by labor and expense, in actual existence at the time of the con- tract, whether it be in a state of maturity or not, is not to be considered a sale of an interest in or concerning land. In regard to things produced annually, by the labor of man, the question is sometimes solved by reference to the law of emble- ments ; on the ground, that whatever will go to the executor, the tenant being dead, cannot be considered as an interest in land. But the case seems also to be covered by a broader prin- ciple of distinction, namely, between contracts, conferring an exclusive rjght to the land for a time, for the purpose of making* a profit of the growing surface, and contracts for things annexed to the freehold, in prospect of their immediate separation ; from which it seems to result, that where timber or other produce of during his tenancy." Sudbury v. Jones, 8 Gush. 189, 190. See also 6 Gush. 58, 87 : Trull v. Fuller, 28 Maine, 545; Corliss v. McLagin, 29 lb. 115; Providence Gas Co. v. Thurber, 2 R. I. 15 ; Curtiss v. Hoyt, 19 Conn. 154; Farrar v. Chauffetete, 5 Denio, 527; King v. Wilcomb, 17 Barb. Sup. Ct. 263 ; Vanderpoel v. Van Allen, 10 lb. 157; Dubois v. Kelly, lb. 496; Buckley v. Buckley, 11 lb. 43; Godard v. Gould, 14 lb. 662 ; Lawrence v. Kemp, 1 Duer, 363 ; Heaton v. Findlay, 12 Penn. State R. (2 Jones) 304 ; Harlan v. Harlan, 15 lb. (3 Harris) 507; Rice v. Adams, 4 Harring. 332; McKim v. Mason, 3 Md. Ch. Decis. 186; Wentz v. Fincher, 12 Ired. 297 ; Finney v. Watkins, 13 Miss. 291 ; Teaff v. Hewitt, 1 Ohio State R. 511 ; Mason v. Fenn, 13 111. 525; Cope v. Romeyn, 4 McLean, 384 ; Regina v. Halsam, 6 Eng. Law & Eq. 321 ; Wiltshear v. Cottrell, 18 lb. 142 ; Parsons v. Copeland, 38 Maine, 537 ; Doak v. Wiswell, lb. 569; Baker v. Davis, 19 N. H. (10 Foster) 325 ; Gardner v. Finley, 19 Barb. 317; Roberts v. Dauphin Dep. Bank, 19 Penn. (7 Harris,) 71.] Title I. Estate in Fee Simple, s. 9 — 10. 45 the land, or any other thing annexed to the freehold, is specifi- cally sold, whether it is to be severed from the soil by the vendor, or to be taken by the vendee, under a special license to enter for that purpose, it is still, in the contemplation of the parties, evidently and substantially a sale of goods only, and so is not within the statute. 1 ) 10.' Incorporeal property consists of rights and profits arising . from or annexed to land ; such as advowsons and rents, which are held to be of a real nature. Even offices exercisable within * certain places, though not annexed to land, are *47 said to savor of the realty ; and dignities or titles of honor, having been originally annexed to land, are also con- sidered as real property.' 2 (a) (a) (Allen v. McKean, 1 Sumn. 301.) 1 Greenl. on Evid. § 271, and cases tbere cited. The case of growing crops has been regulated by statute, in several of the United States. Thus, in Mississippi they cannot be levied upon. Stat. 1840, cb. 5. § 9. In Michigan, they are liable to levy, but not to sale under execution, until ripe or severed from the ground ; the levy creating a lien until thirty days after maturity or severance of the crop. Stat. 1840, ch. 124. In Tennessee, no growing crop can be levied upon, until the 15th of Novem- ber next after it is matured; unless the owner has absconded. Stat. 1833, ch. 20. And see Rutledge v. Walton, 4 Yerg. 458. In Alabama, there can be no levy until the crop is gathered. Toulmin's Dig. tit. 24. ch. 16. p. 319. In Kentucky, the courts formerly held that even an unripe crop might be seized and sold on execution ; con- trary to decisions in other States. See Penhallow v. Dwight, 7 Mass. 34 ; Stewart v. Doughty, 9 Johns. 108. But'bj stat. 1834, LL. Ken. Vol. I. p. 657, no growing crop is now liable to be taken and sold on execution, until it is severed from the land ; except crops of corn, left standing after the first day of October. [Growing fruit trees and fences enclosing a field are fixtures, and as such belong to the freehold. Mitchell v. Billingsley, 17 Ala. 391. For decisions, whether or not growing crops pass with the land, see Gillett v. Balcom, 6 Barb. Sup. Ct. 370 ; Bear v. Bitzer, 16 Penn. State R. (4 Harris) 175 ; Pitts v. Hendrix, 6 Geo. 452 ; Pickins v. Reed, 1 Swan, Tenn. 80 ; Gibbons v. Dillingham, 5 Eng. (Ark.) 9 ; Jones v. Thomas, 8 Blackf 428 ; Post, § 45, note, p. * 55.] 2 A corporate right to select and acquire land, for the purposes of the charter ; such, for example, as a canal or a railroad, is held to be an incorporeal hereditament. Chesa- peake & Ohio Canal Co. v. Baltimore & Ohio Railroad Co., 4 Gill. & Johns. 1. So, of a permanent right to flow lands. Harris v. Miller, 1 Meigs, 158; a ferry right. Bow- man v. Wathen, 2 McLean, 176; Bridges v. Purcell, 1 Dcv. & Bat. 192; and a land- warrant, issued by the State of Tennessee, which, by law, goes to the heir. Dunlap v. Gibbs, 4 Yerg. 94. A right to a pew in a church, by the common law, is an incorporeal hereditament, being only a right to occupy it during divine service. In England, the freehold of the church is in the parson for the time being. In the United States, the title generally depends on statutes, enacted by the several States, to regulate this description of prop- erty. In some of them, as, Maine, Michigan, Connecticut, Massachusetts, (except the 46 Title I. Estate in Fee Simple, s. 11—13. 11. An estate in land means such an interest as the tenant hath therein. It is called in Latin status, because it signifies the condition or circumstance in which the owner stands with regard to his property. To ascertain this with precision and accuracy, estates in land may be considered in a threefold view : — 1. With regard to the quantity of interest which the tenant has in his tenement. 2. With regard to the time at which that quantity of interest is to be enjoyed. 3. With regard to the number and . connection of the tenants, (a) 12. First, with regard to the quantity of interest which the tenant has in his tenement. This is measured by its duration and extent; and occasions the primary division of estates into such as are freehold, and such as are less than freehold. 13. An estate of freehold is an interest in lands, or other real property, held by a free tenure, for the life of the tenant, or that of some other person, or for some uncertain period. It is called liberum tenementum, frank tenement or freehold ; and was for- merly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investure of the feudal (n) 1 Inst. 345. a. 2 Black. Comm. 103. Plowd. 555. city of Boston,) pews are expressly declared to be real estate. 1 In others, as, New Hampshire, (and in Boston,) they are declared to be personal estate. It follows that, in the absence of any statute provisions, this kind of property is to be considered as real estate, in all cases arising under the statutes ot frauds, or of conveyances, or of descents and distributions. The right of the pew-holder is subject to that of the pro- prietors, or trustees, or parish, in whomsoever the general title is vested, to repair, alter, remove, abandon, or rebuild the edifice, for the purpose of more convenient worship, and when it is necessary for that purpose. But if such alteration is not necessary, but is made solely for reasons of expediency or pleasure, the pew-holder is entitled to be indemnified for the loss of his pew. And while the house remains, the pew-holder may maintain ejectment, case, or trespass, according to the circumstances, if he be disturbed in his right. See 3 Kent, Comm. 402, and cases there cited ; Bates v. Sparrell, 10 Mass. 323; Sargent v. Peirce, 2 Met. 80; Fassett v. Boylston, 19 Pick. 361; North Bridgewater v. Waring, 24 Pick. 304 ; Freligh v. Piatt, 5 Cow. R. 494 ; Heeney v. St. Peter's Ch. 2 Edw. N. Y. Chan. R. 608 ; Shaw v. Beveridge, 3 Hill. N. Y. E. 26. By the common law of England, the right to a pew in a church can exist only by a faculty granted, or by prescription ; and faculties are not granted, at the present day, unless under special circumstances, they being in derogation of the common right to free seats in the church ; and if granted without the condition of residence in the parish, they are void. Morgan v. Curtis, 3 M. & R. 389 ; Fuller v. Lane, 2 Add. R. 427, 428 ; Woollcombe v. Ouldridge, 3 Add. R. 1 ; Pettman v. Bridger, 1 Phill. 316, 323 — 325. The law of England in regard to this species of property is fully discussed in the Law Magazine, Vol. II. p. 1 — 29. 1 [Pews in all houses of public worship in Massachusetts are now made personal prop- erty. Acts 1855, ch. 122.] Title I. Estate in Fee Simple, s. 13 — 17. 47 law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient, (a) 14. There are two qualities essentially requisite to the exist- ence of a freehold estate : — 1. Immobility, that is, the subject- matter must either be land, or some interest issuing out of or annexed to land. 2. A sufficient legal indeterminate 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, (b) 15. Thus if lands are conveyed to a man and his heirs for ever, or for the term of his natural life, or for the term of ano- ther's life, or until he is married, or goes to Rome, he has an estate of freehold ; but if lands are limited to a man for five hundred years, or for ninety-nine years, if he shall so long live, he has not an estate of freehold. And the law was precisely the * same when Bracton wrote. Et sciendum quod libe- * 48 rum tenementum est id quod quis tenet sibi et hosredibus suis, infeodo, et hcereditate, vel in feodo tantum, sibi et hceredibus suis. Item ut liberum tenementum, sicut ad vitam tantam, vel eodem modo ad tempus indeterminatum, absque aliqud certd tem- poris prcefinitione ; sc. Donee quid fiat vel nonfiat: ut si dicatur, Do tali donee ei providero. Liberum autem tenementum non potest dici alicujus quod quis tenet ad certum numerum annorum, men- sium, vel dierum ; licet ad terminum centum annorum, quce excedit vitas hominum. (c) 16. It has been shown that, upon the introduction of the feudal law, all the lands in England became holden either by a free or a base tenure. The tenant who held by a free tenure had always a right to the enjoyment of the land for his life at least, and could not be dispossessed, even for the non-payment of his rent, or the non-performance of his services ; whereas the tenant who held in villenage might be turned out at the pleasure of his lord ; and his possession being perfectly precarious, was considered to be the possession of his lord, to whom he was in a great degree a mere slave, (d) 17. The person thus holding land by a free tenure was, there- at) Britton, c. 32. 1 Inst. 48. a. (6) 2 Bl. Comm. 38G. (c) 1 Inst. 42. a. Bract. 207. a. {d) Dissert, c. 2. s. 5. (Ante, Tenures, ch. 2. s. 5.) Black. Law Tracts, 1. Cons, on Cop. 153, 154. 48 Title I. Estate in Fee Simple, s. 17—20. fore, called a freeholder, because he might maintain his possession against his lord, and for this reason liberum tenementum was op- posed to villenage. Thus Bracton says, — Item dicitur liberum tenementum ad differ entiam ejus quod est villenagium, quia tene- mentorum aliud liberum, aliud villenag-ium : for an estate of freehold once created could not cease without entry or claim. And the acquisition of an estate of this kind was attended with several valuable rights and privileges ; the freeholder became a member of the county court, one of the pares curice in the court baron or lords' court, was entitled to be summoned on juries in the king's court, and to vote at the election of a knight of the shire, (a) 18. In subsequent times the word freehold was in some cases applied to the estate or interest only of the tenant ; as where a person had an estate for life in lands held in villenage, he was said to have a freehold interest. Thus Lord Coke says: — "A freehold is taken in a double sense ; either it is named a freehold in respect of the state of the law, and so copyholders may be freeholders ; for any that hath an estate for his life, or any greater estate in any land whatsoever, may in this sense be termed 49 * a * freeholder ; or, in respect to the land, and so it is op- posed to copyholders, that what land soever is not copy- hold is freehold, (b) 19. It is, however, fully proved by Sir W. Blackstone, in his Considerations on Copyholders, that no person can be considered as a freeholder, or entitled to the privileges of a freeholder, unless his estate consists of free land. So that although the determina- tion of an estate be uncertain, yet if it is held by a base tenure, it is not considered in law as a freehold ; nor has the tenant any of those privileges which the law gives to freeholders ; for in that case he has a freehold interest only, whereas no estate is, strictly speaking, freehold, unless the possessor holds it by a free tenure ; therefore all freehold estates must now be held in socage. 20. Lord Coke says, a. freehold estate may at several times be moveable, sometimes in one person, and alternis vicibus in anoth- er ; as if there be eighty acres of meadow, which have been used, time out of mind, to be divided between certain persons, and that a certain number of acres appertain to every one of these persons, to be yearly assigned and allotted to them ; they (a) 207. a. 1 Inst. 218. a. (b) Coke, Cop. s. 15. Title I. Estate in Fee Simple, s. 20—24. 49 have freehold estates in their respective portions of the mea- dow, (a) 21. A man may have an inheritance in an upper chamber, though the lower buildings and soil be in another ; and seeing it is an inheritance corporeal, it shall pass by livery. 1 (b) 22. The possession of a feud was called seisin, which denoted the completion of the investiture by which the tenant was ad- mitted to the land. Upon the introduction of the feudal law into England, the word seisin was only applied to the possession of an estate of freehold ; in contradistinction to that precarious kind of possession by which tenants in villenage held their lands, which was considered to be the possession of their lords, in whom the freehold continued, (c) 23. Where a freehold estate is conveyed to a person by feoffment, with livery of seisin, or by any of those conveyances which derive their effect from the statute of uses, he acquires a seisin in deed, and a freehold in deed. But where a freehold estate is devolved upon a person by act of law, as by de- scent, * he only acquires a seisin in law, that is, a right to * 50 the possession ; and his estate is called a freehold in law ; for he must make an actual entry on the land to acquire a seisin, and a freehold in deed. 2 ( which is not so large as the former, it is waste. 1 But 118 * where an * old house falls down, and the tenant builds a new one, it need not be so large as the old one. (b) 13. If glass windows, though put in by the tenant himself, be broken or carried away, it is waste. So it is of wainscot benches, doors, furnaces, and the like, annexed or fixed to the house, either by the reversioner or the tenant, (c) 2 14. 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, (d) 3 15. Lord King has said that a tenant for life of coal mines, may open new pits or shafts for working the old veins of coals ; for otherwise working the same mines would be impractica- ble, (e) 16. If a person has mines within his land, and leases the land, (a) 1 Inst. 53. a. (b) Bro. Ab. Waste, 93. (c) 1 Inst. 53. a. (d) 1 Inst. 53. b. 54. b. Saunders's case, 5 Eep. 12. (e) Clavering v. Clavering, 2 P. Wms. 388. (Findlay v. Smith, 6 Munf. 134 ; Crouch v. Puryear, 1 Rand. 253.) 1 So, if he changes the nature of the house by altering it injuriously, as by changing it into a warehouse, with machinery for raising heavy packages, it is waste. Douglass v. Wiggins, 1 Johns. Ch. 437 ; Bonnett v. Sadler, 14 Ves. 526. And see Doe v. Jones, 4 B. & Ad. 126 ; Hasty v. Wheeler, 3 Fairf. 434, 439. But if the alteration is not inju- rious either to the building or to the title and inheritance, it is not waste. Young v. Spencer, 10 B. & C. 145. 2 See Amos and Ferard on Fixtures, part 1, where the nature of this kind of prop- erty, and the rights of different classes of tenants therein, are fully treated. 3 Whether the tenant can work old abandoned mines or pits, which the author of the gift has neither worked nor prepared to work, or which he has not worked but has made preparations to work, — quaere; and see Viner v. Vaughan, 2 Beav. 446; 4 Jur. 332. [A tenant for life of land containing opened coal mines, may take coal therefrom not only for his own use, but for sale ; and he may also take timber from the premises for mining operations. Neel v. Neel, 19 Penn. (7 Harris,) 323. Opening anew mine in leased land is waste, unless the lease is of all mines in the land. Owings v. Emery, 6 Gill. 260.1 Title III. Estate for Life. Ch. II. s. 16—19. 125 and all mines therein, the lessee may dig for them ; for otherwise he can derive no advantage from the mines, (a) 17. "Where a person seised in fee of lands, in which there were mines unopened, conveyed those lands, and all mines, &c, to trustees and their heirs, to the use of A for life, &c, A having threatened to open the mines, the reversioner brought in a bill in Chancery to stay him. It was argued on behalf of A that the mines being expressly granted by the settlement with the lands, it was as strong a case as if the mines themselves were limited to A for life, and like Saunders's case. But Lord Mac- clesfield said, that A, having only an estate for life, subject to waste, could no more open a mine, than cut down timber trees. On a rehearing, Lord King was of the same opinion. (&) 18. The conversion of one kind of land into another, as the changing of meadow to arable, is also waste; because it not only changes the course of husbandry, but also the evidence of the estate. In a subsequent case it was said arguendo, that the ploughing of pasture may be, or may not be, waste; and to make it such, it ought to have been pasture time out of mind. It was not enough to say that it was pasture ground diu ante. Mr. Justice Jones said, arable and pasture ground are convertible ; and that which is one of them this year may be the other next, for the law does not so much distinguish, (c) 19. The plowing up, burning and sowing of down land, is waste. But in the present improved state of agriculture, I * presume that the old doctrine respecting a change of the * 119 course of husbandry would not be strictly adhered to. (d) 1 (a) Saunders's case, 5 Rep. 12. (b) Whitfield v. Bewit, 2 P. Wms. 240. (c) 1 Inst. 53. b. Dyer, 37. a. Gunning v. Gunning, 2 Show. R. 8. (Simmons v. Norton. 7 Bing. 640.) {) Packington v. Packington, 3 Atk. 215. Aston v. Aston, 1 Ves. 264. O'Brien v. O'Brien, Amb. 107. (c) Strathmore v. Bowes, 2 Bro. C. C. 88. Downshire v. Sandys, G Ves. 10S. Tarn worth v. Ferrers, Id. 419. Day v. Merry, 10 Ves. 375. Coffin v. Ciffin, Mad. & Geld. 17. (d) Rolt v. Somerville, 2 Ab. Eq. 759. 142 Title III. Estate for Life. Ch. II. s. 63—68. purchased, if he might commit waste upon the other estate, be- fore it was sold, he would have the benefit of double waste, (a) 64. The privileges given to a tenant for life, by the words, without impeachment of waste, are annexed to the privity of estate, and determine with it. Thus it is said that if a lease be made to one for the term of another's life, without impeachment of waste, the remainder to him for his own life, he becomes pun- ishable for waste ; for the first estate is gone and drowned, (b) 65. Some cases have arisen where estates for life have been given, with partial powers of committing' waste ; and the Court of Chancery has interposed to restrain the tenants from exceed- ing such powers. 66. Lands were devised to a person for life, with power to cut down such trees as four persons, named in the will, should allow of, or direct by writing. All these persons being dead, it was decreed that power of cutting down timber, remained ; but the Court would preserve the check. It was referred to the Master to see what trees were fit to be cut down, (c) 67. Mr. Dummer devised his estate at C. to his wife for life. In a codicil, he said : " Whereas, by my will, my wife cannot cut any timber, now my will and mind is, that she may, during so long time as she continues my widow, cut timber, for her own use and benefit, at seasonable times in the year." Mrs. Dummer began to fell timber; the person in reversion applied for an in- junction. Lord Thurlow utterly rejected the idea that Mrs. Dummer was only to cut timber for her own use, or for estovers ; and thought her entitled to cut, not only such timber as would suffer by standing, but every thing which could fairly be called timber ; although she could not cut such sticks as would only make paling, or saplings not proper to be cut as timber. (jT) 68. Bishops, rectors, parsons, vicars, and other ecclesiastical persons, being considered in most respects as tenants for life of the lands which they hold jure ecclesia?, are disabled from 131* Committing any kind of waste ; and if they cut down trees, unless for reparations, they are punishable in the ecclesiastical courts, and also by writ of prohibition, (e) ' (a) Plymouth v. Archer, 1 Bro. C. C. 159. Burges v. Lamb, 16 Ves. 174. (b) 11 Bep. 83. b. (c) Hewit v. Hewit, Amb. 508. 2 Eden's B. 332. (d) Chamberline v. Dummer, 1 Bro. C. C. 166. 3—549. (e) Vin. Abr. tit. Dilapidation. 1 In the United States the remedy is by bill in chancery, or by action at law. In Title III. Estate for Life. Ch. II. s. 69—72. 143 69. By the Statute 35 Edw. I. it is declared, that persons shall not presume to fell trees growing in the churchyard, but when the chancel or the body of the church requires reparations. And Lord Coke has cited a case where, upon complaint to the king in parliament, that the Bishop of Durham had committed waste by destroying timber, a prohibition had issued against him. In another case, he is reported to have said, that if a bishop cut down and sold trees, and did not employ them for reparation, and any one would move it, he would grant a prohibition out of the King's Bench, (a) 70. The authority of this dictum has been doubted in a modern case, in which the Court of Common Pleas held that it had no power to issue an original writ of prohibition, to restrain a bishop from committing waste, in the possessions of his see, at least at the suit of an uninterested person ; and doubted whether even the Court of King's Bench had such a power, (b) 71. It appears, however, that the Court of Chancery has long exercised this kind of jurisdiction ; for there is a case stated in 2 Roll. Ab. 813, in which Lord Keeper Coventry granted a prohibi- tion, at the suit of a patron, against a prebendary, for having wasted the trees of his prebend ; and this doctrine is now fully established, (c) 72. The patron of a living moved for an injunction against the rector to stay waste, in cutting down timber in the churchyard. Lord Hardwicke said, that a rector might cut down timber for the repairs of the parsonage-house, or the chancel, but not for any common purpose ; and this he might be justified in doing under the Statute 35 Edw. I. Stat. 2 ; that by the custom of the country he might cut down underwood for any purpose ; but if he grubbed it up, it was waste. He might cut down timber, likewise, for repairing any old pews that belonged to the rec- tory; and was also entitled to botes for repairing barns and outhouses belonging to the parsonage. The injunction was granted, (d) (a) 11 Rep. 49, a. Stockman v. Whither, Roll. Rep. 86. (£») Jefferson v. Ep. Durham, 1 Bos. & Pul. 105. (c) Ackland v. Atwell. 2 Roll. Abr. 813. (d) Strachy v. Francis, 2 Atk. 217. Marylaiid, if a rector commits waste on the glebe or other lands of the parish, he is liable to pay treble damages, at the suit of the vestry. 1 LL. Maryl. p. 362, Dor- sey's cd. 144 Title III. Estate for Life. Ch. II. s. 73—75. 73. A bill was brought by a patron against a rector to stay- waste in digging stones, &c, on the glebe, other than what was necessary for repairing and improving the rectory ; and 132 * for an * account of what had been dug and sold. The defendant demurred as to the account ; as also to the stay- ing the digging of stones, other than for repairs and improve- ments ; and by way of answer, set out that the quarries were opened before. The Court said, the parson had a fee simple qualified, under restrictions, in right of the church; but he could not do every thing that a private owner of an inheritance could ; he could not commit waste ; nor open mines, but might work those already opened. Even a bishop could not. Talbot, Bishop of Durham, applied to Parliament to enable him to open mines ; but it was rejected. Parsons may fell timber, or dig stones to repair ; they have also been indulged in selling such timber or stone, where the money has been applied in repairs. Injunctions have been granted even against bishops, to restrain them from felling large quantities of timber, at the instance of the Attorney- General, on behalf of the crown, the patron of bishoprics. If the demurrer had only gone to an account, it had been good ; for the patron cannot have any profit from the living ; but it was too general, and must be overruled, (a) 74. In a modern case, Lord Thurlow granted an injunction to stay waste, against the widow of a rector, during the vacancy, at the suit of the patroness, (b) 75. It has been resolved [in 4 Will, and Mary] that an action on the case for dilapidations might be sued against a late incum- bent who had resigned a benefice, or against the personal repre- sentatives of a deceased rector or vicar, by the successor. And in a modern case it was held that an action for dilapidations also lay for the neglect of repairing a prebendal house, by a succeed- ing prebendary, against his predecessor, or his personal represen- tative, (c) f (a) Knight v. Moseley, Amb. 176. Rutland's case, 1 Lev. 107. contra. (b) Hoskins v. Featherstone, 2 Bro. C. C. 552. (c) Jones v. Hill, Garth. 224. 3 Lev. 268. Radcliffe v. D'Oyly, 2 Term Rep. 630. t By the statute 56 Geo. 3, c. 52, the incumbents of any benefice, with the consent of the patron and the bishop, are enabled to pay the moneys to arise by sale of any timber cut from the glebe lands of such benefice, either for equality of exchange, or for the price of any house or lands purchased by them, under the authority of a statute which will be stated hereafter. Tit. 32, c. 2. Title III. Estate for Life. Ch. II. s. 76. 145 • 76. At common law tenants (lessees) for life were not answer- able for damages done by fire, whether it arose from accident or ne^licrence. 1 When the statute of Gloucester rendered tenants 1 By the common law, every housekeeper is bound to keep his fire with due, that is, reasonable care. The degree of this care is measured by the degree of danger and the extent of the consequences naturally resulting from the want of it. The remedy in such cases is by an action on the case ; in which the plaintiff, in the language of the old entries, declared that by the custom of the realm, quilibet ignem suum, die et node, salvo et secure custodire teneatur, tie pro defectu debitce custodies damnum aliquod vicinis suis eveniat utlo modo ; and alleged that the defendant ignem suum tarn negligenter et improvide apud se custodivit, $-c, that the plaintiff's property was burnt. Rastell's Entr. p. 8; Beaulieu v. Flinglan, 2 H. 4, 24; Turberville v. Stamp, 1 Com. R. 32; Skin. 681 ; 1 Salk. 13. The consequences of negligence in such cases are the same as in all others, namely, that the party is held responsible for all its natural and probable results ; for these results every man is presumed to foresee and calculate upon. Clark v. Foot, 8 Johns. 431. If the fire was caused by the negligence of his servant, or guest, the master of the house has always been held liable in this action. 2 H. 4.24; 1 Bl. Comm. 431. It seems to have been held, that a householder is responsible for damage caused by his fire, even though by misfortune, and without negligence ; on the ground of public policy, as in the case of a common carrier: Filliter v. Phippard, 12 Jur. 202, 204 ; and for this opinion the Year Books, 2 H. 4, IS, 24, and 42, Ass. pi. 9, are usually cited. But the former was a mere obiter dictum of Thyrning, in these words, — " Thyrning said, that a man shall respond for his fire, which by misfortune burns another's goods ; " the action being case for negligence, upon the custom of the realm, and the remark en- tirely uncalled for, if it meant any thing more than that the action would lie for goods unintentionally but negligently burnt, which was the case there, as well as for the burn- ing of a house. See Bro. Abr. Action sur le case, pi. 30. The case in 42 Ass. 9, is a short note, in these words,—" A man sued a bill against another of burning his house, vi et armis, who pleaded not guilty. And it was found by verdict of the inquest, that the fire broke out suddenly in the house of the defendant, he knowing nothing (thereof,) and burnt his goods and also the house of the plaintiff. Upon which verdict it was ad- judged (agard) that the plaintiff take nothing by his writ ; but he was amerced, &c." From the case, thus shortly reported, it may be inferred, either that the Court held that no action whatever would lie, there being no negligence on the part of the defendant ; or, that trespass vi et armis was not the proper remedy ; but it shows nothing more. In regard to the liability of tenants for life or years, in an action of waste, for the destruction of the house by accidental fire, without their default, it seems conceded that by the common law they were not liable, but that they were made so by force of the statutes of Marlbridge, 52 II. 3, c. 23, and of Gloucester, 6 Ed. 1, c. 5. The material part of this latter statute is in these words : — "It is provided also, that a man from henceforth shall have a writ of waste in the Chancery, against him that holdeth by law of England or othenvise for term of life, or for the term of years, or a woman in dower And he which shall be attainted of waste shall leese the thing that he hath wasted, and moreover shall recompense thrice so much as the waste shall be taxed at." As this statute contained no exception of cases of inevitable accident, it was held to include such cases in the tenant's liability. The authority usually cited for this is that of Lord Coke, who says, — "burning of the house by negligence or mischance is waste." Co. VOL. I. 13 146 Title III. Estate for Life. Ch. II. s. 76—78. for life answerable for waste, without any exception, it 133 * rendered * them responsible for all damages done by fire. But now, by the Statute 6 Ann. c. 31, s. 6, it is enacted, " That no action, suit, or process whatsoever, shall be had, main- tained, or prosecuted against any person in whose house or cham- ber any fire shall accidentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby ; any law, usage, or custom to the contrary notwithstanding." By the 7th section of this statute it is provided, that nothing in this act shall defeat any contract or agreement made between landlord and tenant. 77. In consequence of this last clause it has been determined, that where a tenant for life, under a settlement, covenanted to keep a house in good and sufficient repair, and the house was burnt down by accident, he was bound to rebuild it. («) 78. It is now become usual, where the intention of the par- ties is, that the tenant shall not be liable to rebuild in case of accidental fire, to except it in the covenant to repair. (6) (a) Chesterfield v. Bolton, 2 Com. R. 626. (Phillips v. Stevens, 16 Mass. 238. Redding v. Hall, 1 Bibb. R. 536, 539. Pasteur v. Jones, Cam. & Nor. 194, 201.) (6) (Bullock v. Dommitt,) 6 Term Rep. 651. Lit. 53, b. Rolle repeats it in the same words, in 2 Roll. Abr. 820, 1. 42. But it is worthy of notice that Chief Baron Comyns, in stating this doctrine, evidently grounds it upon some negligence of the tenant; his language being, — "If he suffers the house to be burned by neglect or mischance." 6 Com. Dig. 520 ; Wast. D. 2, citing Co. Lit. & 2 Roll, as above. In England, however, cases of inevitable accident were specially provided for, by the Stat. 6 Ann. c. 31, § 6 ; which has been reiinacted in the States of New Jersey (Elmer's Dig. p. 593, § 8,) and Delaware, (Rev. St. 1829, p. 167, § 26.) How far the statute of Gloucester has been adopted or reenacted in the United States has been stated in a previous note. But it may here be added, that no case is known in which any American Court has construed it to render tenants liable for damage by inevitable accident, as for permissive waste ; nor is any action, whether of waste or of trespass on the case, known to have been brought for such damage ; and the better opinion is, that no such action could here be maintained. See 4 Kent, Coram. 82 ; Co. Lit. 57, a. note 377, by Hargrave ; 3 Bl. Comm. 229 note (7) by Christian : Gibbon on Dilapidations, &c. p. 51, 53, 54. [See Davis v. Alden, 2 Gray, 309.] [A testator devised to A. for life, a house and other real estate, " he committing no manner of waste, and keeping the premises in good and tenantable repair." In 1837 A entered into possession, and in 1844 the house was totally destroyed by an accidental fire. A was found lunatic by inquisition in 1845, and the lunacy was dated from 1843. Upon petition in lunacy of the remainder-men, who were also committees of the person and estate, it was held, that the lunatic's estate was liable under the terms of the con- dition to reinstate the house. In re Skingley, 3 Eng. Law and Eq. Rep. 91.] 147 TITLE IV. ESTATE TAIL AFTER POSSIBILITY OF ISSUE EXTINCT. BOOKS OF REFERENCE UNDER THIS TITLE. Littleton's Tenures, § 32 — 34. Coke upon Littleton, 27 — 29. Blackstone's Commentaries, Book II. eh. 8. Flintoff on Real Property. Vol. II. Book I. ch. 3. Sect. 1. How it arises. 8. It lias some Qualities of an Estate Tail. 9. But it is in Fact only an Es- tate for Life. Sect. 10. This Tenant has the Property of the Timber. 12. But is restrained from Ma- licious Waste. 16. His Privileges not grantable over. Section 1. We now come to treat of those estates for life which are derived from the operation of some principle of law. Of these the first is called an estate tail after possibility of issue extinct ; which is thus described by Littleton : " Where tene- ments are given to a man and to his wife in especial tail, if one of them die without issue, the survivor is tenant in tail after pos- sibility of issue extinct, (a) 2. " So if they have issue, and the one die, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct ; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the entail, then the surviving party is tenant in tail, after possibility of issue extinct." (b) 3. " Also if tenements be given to a man and to his heirs which he shall beget on the body of his wife ; in this case the wife hath nothing in the tenements, and the husband is seised as donee in special tail ; and in this case, if the wife die without issue of her body, begotten by her husband, then the husband is tenant in tail after possibility of issue extinct, (c) («) Lit. s. 32. (b) Idem. (c) Id. s. 33. 148 Title IV. Estate Tail after Possibility, Sfc. s. 4—8. 4. " And note, that none can be tenant in tail after possibility of issue extinct, but one of the donees, or the donee in especial tail. For the donee in general tail cannot be said to be tenant in tail after possibility of issue extinct ; because always during his life he may by possibility have issue, which may in- 135* herit by * force of the same entail. And in the same man- ner the issue which is heir to the donees in especial tail cannot be tenant in tail after possibility of issue extinct, for the reason abovesaid." (a) 5. Nothing but a moral impossibility of having issue can give rise to this estate. ' Thus, if a person gives lands to a man and his wife, and to heirs of their two bodies, and they live to a hun- dred years without having issue, yet they are tenants in tail ; for the law sees no impossibility of their having issue, (b) 6. The impossibility of having issue must proceed from the act of God, and not from the act of the parties. For if lands be given to a man and his wife, and to the heirs of their two bodies, and after they are divorced causd prcecontr actus, or consanguini- tatis, their estate of inheritance is turned to a joint estate for life ; and although they had once an inheritance in them, yet for that the estate is altered by their own act, and not by the act of God, viz. by the death of either party without issue, they are not tenants in tail after possibility of issue extinct, (c) 7. A person may be tenant in tail, after possibility of issue extinct, of any estate in remainder, as well as of an estate in possession. Thus if a lease be made to A for life, remainder to B and his wife, in special tail ; and B dies without issue, his widow will immediately become tenant in tail after possibility of issue extinct, (d) 8. This estate, though strictly speaking not more than an estate for life, partakes in some circumstances of an estate tail. For a tenant in tail after possibility of issue extinct, has eight qualities or privileges in common with a tenant in tail. 1. He is dispunishable for waste, because he continues in by virtue of the livery upon the estate tail ; and having once had the power of committing waste, he shall not be deprived of it by the act of God. 2. He shall not be compelled to attorn. 3. He shall not have aid of the person in reversion, because he having originally («) Littleton, s. 34. (b) 1 Inst. 28. a. (c) Idem. (d) Bowles's case, 11 Eep. 81. a. • Title IV. Estate Tail after Possibility, Sf-c. s. 8—10. 149 the inheritance by the first gift, has likewise the custody of the writings, which are necessary to defend it. 4. Upon his alien- ation no writ of entry in consimili casu lies. 5. After his death no writ of intrusion lies. 6. He may join the mise in a writ of right,f m a special manner. 7. In a prcecipe brought by * him, he shall not name himself tenant for life. 8. In a * 136 prcecipe brought against him, he shall not be named barely tenant for life, (a) 9. There are, however, four qualities annexed to this estate, which prove it to be, in fact, only an estate for life. 1. If this tenant makes a feoffment in fee, it is a forfeiture ; because having no longer a descendible estate in him, he cannot transfer such an estate to another, without the prejudice and disherison of the person in remainder. 2. If an estate in tail or in fee in the same- lands descends upon him, the estate tail after possibility of issue extinct is merged.% 3. If he is impleaded, and makes default, the person in reversion shall be received, as upon default of any other tenant for life. 4. An exchange between this tenant and a bare tenant for life is good ; for, with respect to duration, their estates are equal. (If) 10. It is said in Herlakenden's case, that if a tenant in tail, after possibility of issue extinct, fells the trees, the lessor shall have them ; for inasmuch as he has but a particular estate for life in the land, he cannot have an absolute interest in the trees ; but he shall not be punished in waste, because his original estate was not within the statute of Gloucester. This is denied by Lord Coke, who is reported to have said, that at common law this tenant had a fee, and consequently full power to fell and dis- pose of the trees ; and notwithstanding the statute De Bonis had {a) 1 Inst. 27. b. 2 Inst. 302. 1 Roll. R. 184. 11 Rep. 80. a. (A) 1 Inst. 27. b. 11 Rep. 80. b. [t These writs are abolished after the first day of June, 1835, by Stat. 3 & 4 Will. c. 27, s. 36, 37.] [ J It has been doubted whether any merger will take place between an estate tail after possibility of issue extinct, and an estate for life, because the former, though equal in quantity, is greater in quality than the latter. Bowles v. Bertie, Boll. Rep. 178; Lewis Bowles's case, 11 Co. 81; but the more prevailing opinion seems to be that for all the purposes of merger, this estate is to be considered as a mere estate for life, and susceptible of merger as such. 2 Preston's Conveyancing, 3d ed. 222 ; Co. Lit. 41 b., 42 a. ; Bro. Abr. Estate, 25.] 13* 150 Title IV. Estate Tail after Possibility, 8fc. s. 10—15. made the estate to be only for life, yet the privilege and liberty was not taken away, (a) 11. In Lewis Bowles's case, the Court observed that tenants in special tail, at the common law, had a limited fee simple; and when their estate was changed by the statute De Donis, yet there was not any change of their interest in doing of waste ; so when, by the death of one donee without issue, the estate is changed, yet the power to commit waste, and to convert it to his own use, was not altered nor changed, for the inheritance was once in him. And in a modern case Lord Eldon held, 137 * upon * the authority of the preceding cases, that tenant in tail after possibility, being dispunishable for waste by law, has equally with tenant for life, without impeachment of waste, an interest and property in the timber, (b) 12. The Court of Chancery, by analogy to the rule adopted in the case of a tenant for life, without impeachment of waste, will restrain persons seised of estates tail after possibility of issue extinct from pulling down houses, cutting down trees planted for shelter or ornament, or any other kind of malicious waste, (c) 13. A woman being tenant in tail after possibility of issue ex- tinct, and having married again, her second husband felled some trees in a grove that grew near, and was an ornament to, the mansion-house. Having an intent to fell the rest, the person in remainder preferred his bill to restrain her from felling those trees. The Court discovered a strong inclination to grant the injunction ; but the case was referred, (d) 14. A woman, tenant in tail after possibility of issue extinct, was restrained from committing waste, in pulling down houses, or felling trees, which stood in defence of the house ; and also fruit trees in the garden. But for some turrets of trees which stood a land's length or two from the house, the Court would grant no injunction, because she had by law power to commit waste ; and yet she was restrained in the particulars aforesaid, because that seemed malicious, (e) 15. On a motion for an injunction to stay a jointress, tenant (a) 4 Rep. 63. a. 1 Roll. Rep. 184. (b) 11 Rep. 81. a. Williams v. Williams, 15 Ves. 419. 12 East. 209. 3 Mad. 519. (c) 2 Ch. Ca. 32. (d) Abraham v. Bubb, 2 Freem. 53. 2 Show. 68. (e) Anon. 2 Freem. 278. Title IV. Estate Tail after Possibility, Sfc. s. 15 — 17. 151 in tail after possibility of issue extinct, from committing waste, it was urged that she being a jointress within the Statute 11 Hen. VII. ought, in equity, to be restrained from cutting timber, that being part of the inheritance, which by the statute she was restrained from alienating. The Court granted an injunction against wilful waste in the site of the house, and pulling down houses, (a) 16. The privileges which this tenant enjoys arise from the privity of estate, and because the inheritance was once in him ; therefore if he grants over his estate to another, his grantee will be bare tenant for life, (b) 17. Thus where a tenant of this kind granted over his estate, the grantee was compelled to attorn as a bare tenant for life ; and so to be named in a quid juris clamat. For although it were * true that a tenant of this kind was not compel- * 138 lable to attorn, yet that was a privilege annexed to his person, not to the estate ; but by the assignment, the privity was altered, and the privilege gone, (c) f (a) Cook v. Whaley, 1 Ab. Eq. 400. (b) 1 Inst. 28. a. (c) Apreece's case, 3 Leon. 241. [t The powers of disposition given by the statute 3 & 4 Will. 4, c. 74, for aboflshing fines and recoveries, do not extend to tenants in tail, after possibility of issue extinct, who are expressly exempted from the operation of the act by section 18.] 152 TITLE V. CURTESY. BOOKS OF REFERENCE UNDER THIS TITLE. Littleton's Tenures, § 35. Coke upon Littleton, 29 — 30. Bisset on Estates for Life, ch. 3. Roper on the Law of Property arising from the relation between Husband and Wife, ch. 1. Blackstone's Commentaries. Book II. ch. 8. Kent's Commentaries. Lect. 55. Chambers on Estates and Tenures, p. 85 — 95. Flintoff on Real Property. Vol. II. Book I, ch. 3. CHAP. I. ORIGIN OF ESTATES BY THE CURTESY, AND CIRCUMSTANCES REQUIRED TO THEIR EXISTENCE. CHAP. II. OF WHAT THINGS A MAN MAY BE TENANT BY THE CURTESY, AND THE NATURE OF THIS ESTATE. CHAP. I. ORIGIN OF ESTATES BY THE CURTESY, AND CIRCUMSTANCES REQUIRED TO THEIR EXISTENCE. Sect. I. Origin of Curtesy. 4. Circumstances required. 5. I. Marriage. G. II. Seisin. 15. III. Issue. 16. Who must be born alive. 17. In the Lifetime of the Wife. Sect. 19. And be capable of inheriting the Estate. 24. IV. Death of the Wife. 25. Curtesy in Gavel-kind. 26. Who may be Tenants by the Curtesy. Section 1. The second estate for life, derived from the com- mon law, is that which a husband acquires in his wife's lands by- having issue by her ; which is called an estate by the curtesy of Title V. Curtesy. Ch. I. s. 1—3. 153 England. 1 For before issue had, the husband has only an estate during the joint lives of himself and his wife, (a) 2. The law that a husband, who had issue, should retain the lands of his deceased wife during his life, prevailed among all * the northern nations. And when the customs of the * 140 Normans were reduced into writing, this law was inserted among them, and is thus expressed in the Latin translation of the Grand Coustomier, c. 121. Consuetude enim in Norman- nid, ex antiquitate approbata, quod si quis uxor em habuerit ex qud hceredem aliquem procreaverit, quern natum vivum fuisse consti- terit, sive vivat, sive decesserit, totum feodum quod maritus possi- debat, ex parte uxoris suce tempore quo decesserit, ipsi marito, quamdiu ab aliis cessabit nuptiis remanebit. It is said in Home's Mirror, to have been established in England by King Henry I., which is extremely probable, as there is a full account of it in the Treatise that bears the name of Glanville, written in the reign of King Henry II. (b) 3. An estate by the curtesy of England is thus described by Littleton, s. 35. — "Where a man taketh a wife seised in fee simple, or in fee tail general, or seised as heir in special 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." And Sir J. Jekyl has observed, that the husband's tenancy by the curtesy has no moral foundation ; and is therefore properly called a tenancy by the curtesy of England, that is, an estate by the favor of the law of England, (c) 2 («) 1 Inst. 351. a. (b) Lindebrog, LL. Alleman. tit. 92. (Jura et Consuetudines, Norman, fol. 21.) Mirror, C. 1. s. 3. Glanv. Lib. 7. c. 18. Bract. 437. b. (c) 2. P. Wms. 703. 1 This estate falls properly under the head of title by descent, as it accrues by the mere operation of law, upon the death of the wife. See 4 Kent, Comm. 373, note a ; 1 Inst. 18, b. note 106 ; Post, tit. 6, ch. 2, § 17, note; Tit. 29, ch. 1, § 22, note. 2 Chancellor Kent observes that " This estate is not peculiar to the English law, as Littleton erroneously supposes, for it is to be found, with some modifications, in the ancient laws of Scotland, Ireland, Normandy, and Germany. Sir Martin Wright is of opinion, that curtesy was not of feudal origin, for it is laid down expressly in the Book of Feuds, that the husband did not succeed to the feud of the wife, without a special investiture; and he adopts the opinion of C.raig, who says, that curtesy was granted out of respect to the former marriage, and to save the husband from falling into poverty ; and he deduces curtesy from one of the rescripts of the Emperor Con- 154 Title V. Curtesy. Ch. I. s. 4—6. 4. Littleton's description of this estate points out four circum- stances as absolutely required to the existence of this estate ; namely, I. Marriage. II. Seisin of the wife. III. Issue. IV. Death of the wife. 5. With respect to the marriage, it must be between persons capable of contracting together, and duly solemnized. It should, however, be observed, that although where a marriage is void, the man does not acquire a title to curtesy ; yet if it be only void- able, and is not annulled during the life of the wife, the husband will be tenant by the curtesy ; for a marriage cannot be avoided by the ecclesiastical courts, after the death of either of the par- ties. With respect to the mode of proving the fact of marriage, it will be stated in the next title, (a) 6. As to the seisin of the wife, or of the husband in right of her, it is a circumstance absolutely -required ; and with respect to' corporeal hereditaments, it must be a seisin in deed? Thus (a) 2 Burn's Eccl. Law, 458. stantinc." 4 Kent, Comm. 28; Wright on Tenures, 194; Craig, Jus. Feud. lib. 2. Dieg. 22, § 40. The right of the husband as tenant by the curtesy, is expressly given by statute substantially in the language of Littleton, in the States of Maine, Massachusetts, Ver- mont, Rhode Island, Delaware, Michigan, and Indiana. [For a construction of the stat- ute of Indiana, see Cunningham v. Doc, 1 Smith, 34.] In other States, as New York, Virginia, Neiv Jersey, New Hampshire, Ohio, Alabama, Missouri, Illinois, Kentucky, Ten- nessee, Maryland, North Carolina, Mississippi, and Connecticut, this estate has been inci- dentally recognized as an existing legal estate, either in statutes or judicial decisions. In South Carolina, the husband takes in fee simple the same share in the wife's estate, which she would, on surviving, take in his ; namely, one third ; and in certain cases, one moiety, and in one case, two thirds. 1 Brev. Dig. 422-424. In Georgia, the hus- band by the marriage becomes entitled to all the wife's real estate, in the same manner as to her personal property. Prince's Dig. p. 225, 251. In Louisiana, the law of hus- band and wife is based upon principles irreconcilable with the existence of a tenancy by the curtesy. 1 The common law on this point is not held in the LTnited States with the same de- gree of strictness as in England ; an immediate right of entry, or potential or con- structive seisin, where there is no adverse possession, being all that is considered requisite to vest the title of the husband. See 4 Kent, Comm. 29, 30 ; Davis r. Mason, 1 Pet. S. C R. 507, 508; Barr v. Galloway, 1 M'Lean, 476; Jackson v. Selliek, 8 Johns. 262 ; Green v. Liter, 8 Cranch, 229, 249; M'Corry v. King, 3 Humph. Ten. R. 267 ; Adair v. Lott, 3 Hill, N. Y. R. 182. But see Taylor v. Gould, 4 Law Rep. 60, N. S ; [S. C. 10 Barb. Sup. Ct. 388 ; Day v. Cochran, 24 Miss. 261 .] A recovery alone, in ejectment, by the husband and wife, has been held sufficient for this purpose. Ells- worth v. Cook, 8 Paige, 643. In Connecticut, a right of entry by the wife is sufficient, by force of the statute of descents, notwithstanding any adverse seisin or possession. Title V. Curtesy. Ch. I. s. 6—8. 155 Lord Coke says, if a man dies seised of lands in fee simple, or fee tail general, and they descend to his daughter, who marries, * has issue, and dies before entry, the husband * 141 shall not be tenant by the curtesy ; yet in this case the husband had a seisin in law. But if she or her husband had entered during her life, he would have been tenant by the cur- tesy, (a) 1 7. The time when the seisin commences, whether before 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, (b) 8. If a woman, tenant in tail general, makes a feoffment in fee, and takes back an estate in fee, and marries, has issue, and dies, the issue may in a formejdon f recover the land against his father ; because he is to recover by force of the estate tail, as heir to his mother, and is not inheritable to his father, (c) Mr. Hargrave has observed upon this passage, that the husband could not have curtesy in respect of the fee, because that was defeated by the son's recovery in the formedon ; nor in respect of the tail, because the wife's feoffment, before the marriage, had (a) 1 Inst. 29. a. Tit. 1. (6 T. E. 679. Doe v. Rivers, 7 T. E. 276.) (0) 1 Inst. 30. a. (Jackson v. Johnson, 5 Cowen, 74.) (c) I Inst. 29. b. n. 0. Hillhouse v. Chester, 3 Day, 166 ; Bush v. Bradley, 4 Day, 298, 306 ; Kline v. Bebee, 6 Conn. E. 494. A reversionary interest in the wife, expectant upon an estate for life, is not sufficient. Stoddard v. Gibbs, 1 Sumn. 263 ; Jackson v. Johnson, 5 Cow. 74 ; Lowry v. Steel, 4 Ohio R. 170 ; unless the estate for life is a mere equitable interest ; Adair v. Lott, 3 Hill, N. Y. R. 182. And on the other hand, a mere naked seisin by the wife, as trustee, is not sufficient, even though she is beneficially interested in tbe reversion. Chew v. Comm'rs of Southwark, 5 Rawle, R. 160. [Stokes v. McKibbin, 13 Penn. State R. (1 Harris,) 267 ; Riglcr v. Cloud, 14 lb. 361. A husband may have tenancy by the curtesy though the wife be never seised in deed, either actually or constructively of the land ; and though the same be adversely held during coverture. Borland v. Marshall, 2 Ohio, (N. S.) 308 ; Mitchell v. Regan, 3 lb. 377. But see Dew v. Demarcst, 21 New Jersey, 525. In Kentucky the actual seisin of the wife must be shown. Orr v. Hollidays, 9 B. Mon. 59 ; Neely v. Butler, 10 lb. 48.] 1 The possession by one tenant in common has been held sufficient to make the hus- band tenant by the curtesy of his wife's part, she having been of right tenant in com- mon of the other moiety by descent, but dying before actual entry. Sterling v. Penlington, 7 Via. Abr. 150, pi. 11, per Lord Hardwicke ; 14 Via. Abr. 512, pi, 5, S. C ; 2 Eq. Ca. Abr. 730, S. C. The possession of the feme mortgagor in fee is also sufficient for this purpose. Casborne v. Scarfc, 1 Atk. 603. [t This writ abolished after the 1st June, 1835, by Stat. 3 & 4 Will. 4, c. 27, s. 36, 37.] 156 Title V. Curtesy. Ch. I. s. 9—12. discontinued it; consequently there could be no seisin of it during the marriage. 9. It has been stated that the possession of a lessee for years is the possession of the person to whom the inheritance descends, before entry or receipt of rent. Therefore if lands, which are let for years, descend upon a married woman, who lives beyond the day on which the rent became due, without receiving it, yet her husband will be entitled to curtesy, (a) 10. An estate tail descended from her brother to Alice Rich- ardson, who was married, and had issue ; the lands were let on leases for years, and the rents were payable at Michaelmas and Lady-day. The tenants being greatly in arrear, Alice did not receive any of the Lady-day rents, but died four months after that time ; nor did any other person receive rent during her life. The question was, whether her husband was entitled to be tenant by the curtesy, (b) Lord Hardwicke said, if Alice had died before Lady-day, there could not have been a doubt of the husband's right to curtesy, because he could do nothing till the rent became due. The only objection arose from the neglect of the husband in not 142 * distraining * for the rent which became due at Lady-day. The receipt of rent would have amounted to an actual seisin. If the representatives of the brother had received any rent during the life of the wife, it would have been a material objection ; but no part of the rent which accrued after the death of the brother w T as ever received by the wife, or by any other person ; so that the possession of the lessee was the possession of the wife ; nor could there be any other without making the hus- band a trespasser. Decreed that the husband was entitled to be tenant by the curtesy. 11. A devise to executors for payment of debts does not pre- vent the descent of the freehold and inheritance ; from whence it follows that, in a case of this kind, there will be curtesy. 12. A person, who had issue a daughter, devised his lands to his executors for payment of his debts, and until his debts were paid. The executors entered. The daughter married, had issue, («) Tit. 1. s. 26. (Jackson v. Johnson, 5 Cowen, 74. Lowey v. Steel, 4 Ohio R. 170.) (b) DeGrey v. Eichardson, 3 Atk. 469. Title V. Curtesy. Ch. I. s. 12—16. 157 and died ; afterwards the debts were paid. It was resolved that the husband should be tenant by the curtesy, (a) 13. Where the wife's estate was let for life before the mar- riage, the husband cannot acquire a seisin thereof, and will there- fore not be entitled to curtesy. If a rent be reserved, it seems doubtful whether the husband will be entitled to have curtesy of it ; in a similar case, Lord Coke was of opinion that a wife should have dower, (b) 14. With respect to the seisin which is necessary in incorpo- real hereditaments, to give a title to curtesy, (a seisin in law, or constructive seisin is sufficient, even at common law, as the hus- band could not, by any industry, obtain a seisin in deed. If it be a rent, created by means of a conveyance to uses, the grantee immediately acquires a seisin, by the words of the statute.) (c) 15. The third circumstance required to the existence of an estate by the curtesy is issue ; after which the husband was for- merly allowed to do homage alone and was called tenant by the curtesy initiate. 1 Such issue must, however, have the following qualities to entitle the husband to curtesy. 1. It must be born alive. 2. In the lifetime of the mother. 3. And be capable of inheriting the estate, (d) 16. By the old law it was deemed necessary that the child should not only be born alive, but be heard to cry ; and that circumstance was to be proved by persons who actually heard it, not by those who learned it by hearsay. Littleton, however, (a) Guavara's case, 8 Rep. 96. a. Tit. 8. c. 1. (Robertson v. Stevens, 1 Ired. Eq. R. 247.) (b) 1 Inst. 29. a. 32. a. (Stoddard v. Gibbs, 1 Sumn. 263.) Tit. 6. c. 3. (c) (1 Inst. 29. a.) (d) (Mattocks v. Stearns, 9 Verm. 326.) 1 Marriage, seisin, and the birth of living issue, do not alone make the husband tenant by the curtesy ; for this estate, though inchoate, is not in esse until the death of the wife, though while she lives he may be tenant of the freehold in her right. See Henderson v. Oldham, 5 Dana, E. 254. By the law of Pennsylvania, the husband, though tenant by the curtesy initiate, cannot, during the life of the wife, either sell, lease, charge, or in any way affect the land ; it being secured to her, as her sole property, during the coverture. His title as tenant of the freehold, commences, in esse, at her de- cease. Stat. Apr. 11, 1848 ; Dunl. Dig. p. 1124 ; Gamble's estate, 1 Scl. Eq. Cas. 489. [The interest of a tenant by the curtesy initiate may be attached and sold under execution. Day v. Cochran, 24 Miss. 261. The tenant by curtesy initiate has an estate for life in the wife's estate of inheritance, in his own right. Foster v. Marshall, 2 Foster, (N. II.) 491.] VOL. I. 14 158 Title V. Curtesy. Ch. I. s. 16—20. appears to have doubted whether it was necessary to prove that the child cried ; and Lord Coke deduces an argument 143 * from the * form of pleading, in cases of this land, to prove that any other evidence would be sufficient, (a) ' 17. The issue must be born in the lifetime of the wife ; so that if she dies in childbed, and the issue is taken out of the womb by the Caesarean operation, the husband will not be entitled to curtesy. For at the instant of the mother's death he was clearly not entitled, as having had no issue born ; but the land descended to the child, while in his mother's womb ; and the estate, being once so vested, shall not be taken from him and his heirs, (b) 18. It is immaterial whether the issue be born before or after the seisin of the wife. Thus if, after issue is born, lands descend to the wife, be the issue dead or alive at the time of the descent, the husband shall be tenant by the curtesy. So if, after the death of the issue, the wife acquires land in fee, and dies without having had any other issue, her husband shall be tenant by the curtesy. For the having issue, and being seised during the coverture, is sufficient, though it be at several times, (c) 19. The issue must be such as is capable of inheriting- the estate ; therefore if lands be given to a woman and the heirs male of her body, who has issue a daughter only, her husband will not be tenant by the curtesy, (d) 20. If a woman seised in fee simple marries, has issue, and then her husband dies, and she takes another husband, by whom she also has issue ; though the issue by the first husband be living, yet the second husband shall be tenant by the curtesy ; (a) Brae. 438. a. 1 Inst. 29. b. 8 Rep. 34. b. Dyer 25. b. (b) 1 Inst. 29. b. 3 Eep. 35. a. (Marsellis v. Thalhimer, 2 Paige, 35.) (c) 8 Rep. 35. b. 13 Rep. 23. (d) 1 Inst. 29. b. 8 Rep. 35. b. i If the child is born in such an early state of pregnancy as to be incapable of living, it has been held that it was to be considered as if it had never been born or conceived. It has also been held that children, born within the first six months after conception, are to be presumed incapable of living ; and therefore cannot take and transmit prop- erty by descent, unless they actually survive long enough to rebut that presumption. Marsellis v. Thalhimer, 2 Paige, R. 35, per Walworth, C. In Pennsylvania, the birth of issue is no longer essential to the husband's title as tenant by the curtesy. Pennsylv. Eev. St. 1846, ch. 403, p. 504. Lancaster Bank v. Stauffer, 10 Barr, 399 ; Gamble's estate, 1 Sel. Eq. Cas. 489. Title V. Curtesy. Oh. I. s. 20—27. 159 because his issue by possibility may inherit, if the first issue die without issue, (a) 21. If the wife has issue, and after is attainted of felony, so as the issufc cannot inherit to her, yet the husband shall be tenant by the curtesy, in respect of the issue born before the felon v, which by possibility might then have inherited. But if the wife had been attainted of felony before issue had, although she had issue afterwards, the husband would not be tenant by the curtesy. (&) [22. In the recent case of Barker v. Barker, the devise was to A and her heirs ; but if she died leaving issue, then to such issue and their heirs. A died leaving issue, and it was held that the husband of A was not entitled to curtesy, as the children * took by purchase, and the wife had not such an estate * 144 as could descend upon them.] (c) 23. It is a rule of law that no person can be heir to an ances- tor, unless such ancestor died seised : hence probably arose the doctrine which requires an actual seisin in the wife ; for, without such an actual seisin, her issue would not be capable of inherit- ing from her. (ower. Ch. II. 5. 2—6. 2. A woman is dowable of the profits of a mill, a park, a dove- house, or fishery. So of the profits of courts, fines, and heriots, and also of shares in the navigation of the River Avon, (a) 3. A woman is also entitled to dower out of all estates whereof her husband is seised in tail, general or special, if her issue be capable of inheriting them. And Lord Coke says, albeit the wife be a hundred years old, or that the husband, at his death, was but four or seven years old, so as she had no possibility to have issue by him ; yet seeing the law saith, that if the wife be above the age of nine years at the death of her husband, she shall be endowed, and that women in ancient times have had children at that age, whereunto no woman doth now attain, the law cannot judge that impossible, which by nature was possible. And for the husband's being of such tender years, he hath habi- tum, though he hath not potentiam at that time ; and, therefore his wife shall be endowed, (b) 4. Dower is an incident so inseparably annexed to an 162 * estate * tail, that it cannot be restrained by any proviso or condition whatever. And although the estate tail should determine by the death of the husband, without issue capable of inheriting it, yet the wife shall be endowed ; because dower is a condition tacite annexed to the gift of every estate tail, (c) 5. Where a tenant in tail covenanted to stand seised to the use of himself for life, remainder to the use of his eldest son in tail ; and afterwards married and died ; it was resolved that his widow should be endowed ; because when a tenant in tail limits an estate for his own life, he has executed all the power he had ; and the remainder is merely void ; so that he continues tenant in tail as before, (d) 6. A woman is dowable of a qualified fee, as long as it con- tinues ; therefore, in the case of a limitation to A and his heirs, tenants of the manor of Dale, the widow of A would be entitled to dower. It is the same of a base fee, so that if a tenant in tail conveys his estate by fine to A and his heirs, by which he ac- quires an estate to him and his heirs, as long as the tenant in tail has heirs of his body, the wife of A will be entitled to dower against her husband's heirs, (e) (a) 1 Inst. 32. a. 1 Ves. jun. 652. (J) Lit. s. 53. 1 List. 40. a. (c) Lit. s. 53. llnst. 224. a. Id. 31. b. Tit. 5. c. 2. (d) Blithman's case, Cro. Eliz. 280. Tit. 2. C. 2. s. 1. (e) Tit. 1. Plowd. 557. Title VI. Bower. Ch, II. s. 7—10. 185 7. Widows are dowable of estates held in coparcenary and in common; of which an account will be given under those titles. 1 8. A woman is not entitled to dower out of an estate in re- mainder or reversion [expectant on an estate of freehold, because the husband has no seisin. 2 f But a woman is dowable of a reversion expectant on a term for years, because the husband is seised of the freehold. 3 (a) 9. Thus, if a man before his marriage makes a lease for years, reserving rent, his wife will be entitled to a third of the land for her dower ; and also to a third of the rent as incident to the re- version. If no rent be reserved on the lease, then although the widow may recover a third of the reversion, yet the judgment will be with a cesset executio during the term. In # some cases, a Court of Equity will assist the dowress in removing the term ; and in others not ; of which an account will be given in a sub- sequent title, (b) 10. Where lands are mortgaged for a term of years only, a woman will be entitled to dower out of the equity of redemption. * But if lands are mortgaged in fee before * 163 the marriage, the wife will not be entitled to dower at law, because the husband has not the legal estate.^ 4 (c) («) 1 Inst. 32. a. (h) 1 Inst. 32. a. (c) Tit. 15. c. 3. [tThe law remains unaltered by the late act 3 & 4 Will. 4, c. 105, as to estates in reversion.] [| Vide supra, ch. 1, s. 25, note.| 1 But the widow is bound by a partition made by her husband, or by process of law, which is valid as against him ; and, therefore, must take her dower in the part thus assigned to the husband or his heirs in severalty. Potter v. Wheeler, 13 Mass. 504. 2 But where the reversioner, in such case, mortgaged in fee, the mortgagee was held estopped to deny his seisin, in a writ of dower brought against him by the widow of the reversioner. Nason v. Allen, 6 Greenl. 243. 3 Blood v. Blood, 23 Pick. 80; Otis v. Parshley, 10 N. Hamp. 403 ; Dunham v. Osborn, 1 Paige, 634; Blow v. Maynard, 1 Leigh, 30; Fisk v. Eastman, 5 N. Hamp. 240 ; [Young v. Tarbell, 37 Maine, 509 ; Hastings v. Stevens, 9 Foster (N. H.) 564 ; Henry's case, 4 Cush. 257 ; Weir v. Humphries, 4 Ire. Eq. 50.] 4 This doctrine of the common law was abrogated in England, by Stat. 3 & 4 W. 4, c. 105, by whicli the wife's right of dower is attached to the equitable as well as the legal estates of the husband. See ante, ch. 1, s. 25, note. In most, if not all, of the United States, the legal estate is regarded as still in the mortgagor, as to all persons except the mortgagee and his assigns ; and, therefore, the wife is held dowable at law, against all persons claiming under the husband, except those claiming under a mortgage deed, made prior to the marriage; and this, whether the mortgage was for years or in fee. And as against such prior mortgagee and his 16* 186 Title VI. Bower. Ch. II. s. 11—12. 11. A widow is dowable of several incorporeal hereditaments ; such as advowsons, tithes, commons, offices, franchises, and rents ; as will be shown under those respective titles ; [but she is not entitled to dower out of a personal annuity granted to her husband and his heirs.] (a) 12. There are some cases in which a widow has a right of election, as to the property out of which she is dowable. Thus, if the husband exchanges his lands for others, his widow shall have her election to be endowed, either of the lands given, or of those taken, in exchange ; because her husband was seised of {a) Stat. 3 & 4 Will. 4. c. 105. s. 1. Title 28. c. 2. s. 16. assigns, she is dowable in Equity. And though she joined with her husband in a subse- quent mortgage, releasing her claim of dower, yet this release enures to the benefit of the mortgagee and his assigns only, and not to a stranger. Smith r. Eustis, 7 Greenl. 41. As against the mortgagee, in such case, her remedy is by bill in Chancery, upon payment of her just proportion of the sum due upon the mortgage; or, if her husband were the grantee of a part only of a large tract previously under mortgage, then upon payment of her just proportion of the mortgage money, according to the relative value of the two parcels of land. And the proportion payable, in that case, by the husband's part of the land, is such proportion as the value of that parcel bears to the value of the whole tract ; and of the sum thus found, the widow must pay that proportion which the present value of an annuity for her life, equal to the income of her dower, bears to the value of the whole parcel conveyed to her husband. Carll v. Butman, 7 Greenl. 102 : [Niles v. Nye, 13 Met. 135 ; Mantz v. Buchanan, 1 Md. Ch. Decis. 202 ; Chew v. Farmer's Bank, 9 Gill. 361.] And see Cass v. Martin, 6 N. Hamp. 25. And where, as in the former case, she joins with her husband in a mortgage, releasing her right of dower, and she is admitted to her dower in Equity, the proportion of the mortgage debt which she is to pay, is adjusted according to the value of her life-estate in the land assigned for dower, compared with the value of the residue of the land, including the reversion in the part so assigned to her. Van Vronker v. Eastman, 7 Met. 157. See further, Russell v. Austin, 1 Paige, 192. If the premises are sold under a mortgage in which the wife has joined with her husband, she is still entitled, in Equity, to claim her share in the surplus proceeds, as for her dower. But if the husband purchased the land, giving to the vendor, at the same time, a mortgage to secure the purchase-money, and afterwards he releases his equity to the mortgagee, the wife's right of dower is entirely gone ; for though the debt was paid by the release, yet by the same act, uno Jlatu, the title became absolutely vested in the mortgagee, without leaving a beneficial seisin for a moment in the husband. Jackson v. Dewitt, 6 Cowen, 316. See 4 Kent, Comm. 43—45, and cases there cited ; Gibson v. Crehore, 5 Pick. 146 ; Barker v. Parker, 17 Mass. 564. See Law Reporter for July, 1849, Vol. II. p. 165, N. S. Where there are successive mortgages, the first of which is made to secure the pur- chase-money, by the husband alone, and the second is for another debt, in which the wife joins, releasing her dower ; and the husband afterwards ^ays off the first mort- gage, the wife is entitled to her dower, subject to the second mortgage. Walker v. Griswolcl, 6 Pick. 416. If lands are sold by the husband, with the wife's release of dower, she is held entitled in equity to a part of the fund, in lieu of dower. Maccubbin v. Cromwell, 2 H. & Gill, 243. Title VI. Dower. Ch. II. s. 12—15. 187 both during the coverture. 1 And there ] are some other cases where the widow has the right of election, which will be stated hereafter, f (a) 13. Having enumerated the different kinds of property which are liable to dower, I shall now examine what things are not subject to this claim. 2 14. Estates held with other persons in joint-tenancy are not subject to dower, the reason of which will be given under that title, (b) (15. Estates held by partners may or may not be liable to dower, according to the circumstances of the case. It is a well- established rule that neither of the partners can have an ultimate and beneficial interest in the capital stock or property, until the partnership debts are paid, and the account settled. Whenever, therefore, real estate is purchased as part of the capital, whether by the form of the conveyance the legal estate vests in them as joint tenants or as tenants in common, it vests in them and their respective heirs in trust for the purposes of the partnership, until those purposes are accomplished. Until then, the land has in equity all the attributes of personal property, held in partnership and in trust ; and the widow of a deceased partner cannot have dower, nor can the heir take by descent, until the claims of the partnership creditors, and of the surviving partner, are adjusted and settled. 3 ) (a) Co. Lit. 31. b. Perk. s. 319. F. N. B. 149. n. (b) Stat. 3 & 4 Will. 4. c. 105. s. 2. (Maybury v. Brien, 15 Pet. 21.) [ t See Stat. 3 & 4 Will. 4, c. 105, s. 9, 10, supra, p. 160, note.] 1 [The word "exchange" used in the Eev. Stat, of New York, in exclusion of the wife from dower in lauds exchanged by her husband, has the common-law meaning, and there must be a mutual grant of equal interests in the respective parcels of land, the one in consideration of the other. Wilcox v. Randall, 7 Barb. Sup. Ct. 633.] [ 2 A widow is not entitled to dower in lands conveyed away by her husband before marriage, although such conveyance was fraudulent and void as against his creditors. Whithed v. Mallory, 4 Cush. 138. Where the grantor of an estate on condition enters for condition broken, the widow has no dower. Beardslee v. Bcardslcc, 5 Barb. Sup. Ct. 324. A lease of lands for ninety-nine years, renewable forever, is a chattel interest, and not an estate in lands in which dower can be claimed. Spangler v. Stanler, 1 Md. Ch. Decis. 36.] 3 3 Kent, Comm. 37—39 ; Collyer on Partnership, by Perkins, § 135, 136, 154, 155, 156, and cases there cited; Dyer v. Clark, 5 Mete. 562, 579, 580 ; Howard v. Priest, Ibid. 582; Burnside v. Merrick, 4 Mete. 537 : Sigourney v. Munn, 7 Conn. 11 ; Hoxic v. Carr, 1 Sumn. 173; Phillips v. Phillips, 1 My. & K. 649; Crawshay v. Maule, 1 Swanst. 495, 522 ; Broom v. Broom, 3 My. & K. 443; 1 Story on Eq. § 674 ; 2 Ibid. 188 Title VI. Dower. Ch. II. s. 16—19. (16. But though the estate were thus purchased by the part- ners, and with partnership funds, yet the circumstances may have been such as to preclude such implied trust, and to show that they intended to hold the property to their respective, separate and private uses ; as, where there is a provision to that effect in the articles of partnership, or an express agreement to the like effect at the time of the purchase, or where their re- spective proportions of the purchase-money are charged to the respective partners in their several accounts with the firm, thereby making a division and distribution of so much of the capital fund, without injury to the rights of creditors. In such cases, the wife will be entitled to dower. 1 ) 17. An estate in dower is a continuation of the husband's estate, 2 and is, therefore, only incident to estates of inheritance not to estates which the husband holds for his life. And it is not only necessary that the husband should have an estate of inheritance, to entitle the wife to dower, but the estate must also be simul et semel in him. 3 (a) 18. A widow is not dowable of a wrongful estate. So that if a tenant in tail discontinues in fee, afterwards marries, disseises the discontinuee and dies seised, his wife .jhall not have dower ; because the issue is remitted to the ancient entail ; and the estate which the husband had during the coverture, was wrongful, (b) 19. So where a man having title to lands, enters and dis- («) Hooker ». Hooker, tit. 16. c. 6. Bates v. Bates, tit. 32. c. 24. (b) 1 Inst. 31. b. Fitz. N. B. 149. Tit. 29. c. 1. § 1207, 1207 a. If lands so held in partnership are sold to one having actual or con- structive notice that they belong to the partnership stock, they will be chargeable in his hands with the existing partnership debts, though he had no notice that any such debts in fact existed. Hoxie v. Carr, supra. [Goodburn v. Stevens, 5 Gill, 1 ; S. C. 1 Md. Ch. Decis. 420.] 1 Dyer v. Clark, 5 Met. 562, 579 ; 3 Kent, Comm. 37—39 ; Story on Part. § 93, 94 : Greene v. Greene, 1 Ohio R. 244. 2 The title in dower, as it arises by operation of law upon the death of the husband, falls properly under the head of title by descent. See 4 Kent, Com. 373, note a ; 1 Inst. 18, b. note 106 ; 2 Am. Law Mag. 39 — 67 ; Pemberton v. Hicks, 1 Binn. 1 ; [Lawrence v. Brown, 1 Selden, N. Y. 394.] 3 Hence it is that the widow is not dowable of an estate pour auter vie ; for it was not descendible, by the common law, but belonged, by right of occupancy, to him who first entered after the death of the tenant for another's life, and is now made distributable, as part of the personalty, by statutes, both in England and America. Ante, tit. 3, ch. 1, § 43—46 ; Park on Dower, 48, 49 ; Gillis v. Brown, 5 Cowen, 388. Title VI. Dower. Ch. II. s. 19—23. 189 seises the tenant, and dies seised, and his heir enters, by which he is remitted to the ancient right, the widow of the disseisor is not entitled to dower, because her husband's estate was wrongful.' (a) *20. A widow is not dowable of lands assigned to *164 another woman in dower. Thus if the ancestor of a married man dies, and he endows the widow of such ancestor of one third of the lands which descended to him, and dies; his widow will only be entitled to a third of the remaining two thirds; for it is a maxim of law, as ancient as Glanville, that dos de dote peti non debit. The reason of which is, that when the heir endows the widow of the ancestor, that defeats the seisin which he acquired by the descent of the lands to him. So that the widow is in of the estate of her husband, and the heir is considered as having never been seised of that part. 2 (b) 21. In the same manner, if a woman on whom lands descend endows her mother, afterwards marries, has issue, and dies in the lifetime of her mother ; her husband will not be entitled to an estate by the curtesy in those lands whereof the mother was endowed ; because the daughter's seisin was defeated by the endowment, (c) 22. The rule of dos de dote is only applied where dower is actually assigned ; for if no dower be assigned, it does not take place. 3 23. Lands subject to a title to dower were devised to a person in fee ; he died, leaving a widow, who sued at law for dower and recovered a third part of the whole ; without any regard to the title of dower in the widow of the testator. (The devisor's widow also sued at law for her dower, while the other action was pending, but did not proceed any further therein. After- («) Idem. (6) 1 Inst. 31. a. Bustard's case, 4 Rep. 122. Glanv. Lib. 6. c. 17. (c) Bro. Ab. Curtesy, 10. 1 But where the tenant claims under the husband's seisin, he is estopped from deny- ing the seisin of the husband, or from setting up a better title in a third person. Ban- croft v. White, 1 Caines, 185 ; Kimball v. Kimball, 2 Greenl. 226 ; and see Nason v. Allen, 6 Greenl. 243, supra, § 8, note (2) ; [Pledger v. Ellerbe, 6 Kich. Eq. 266. But he may deny that the seisin was such as gave her a right to dower. Gammon v. Free- man, 31 Maine, (1 Red.) 243.] 2 See post, $ 28, (1.) [Manning v. Laboree, 33 Maine, (3 Red.) 343.] [ 3 Elwood v. Klock, 13 Barb. Sup. Ct. 50.] 190 Title VI. Dower. Ch. II. s. 23—25. wards the devisee's widow filed her bill in Chancery against the devisor's executors and his widow, to compel the executors to pay off an outstanding mortgage, and to enjoin the widow's action for dower, on the ground that certain estates devised to her were intended in lieu of dower.) The Lord Keeper held, that as the testator's widow had not recovered dower, it was to be laid out of the case ; and that the dower of the devisee's widow was not to be looked upon as dos de dote, (a) 24. A widow was never allowed dower of a use ; nor is she now entitled to dower out of a trust estate ;i and where an estate is conveyed to a man by way of mortgage, it is not subject to dower, (b) (25. So far as dower is a legal right, and is to be pursued by legal remedies, it is obvious, that the estates in respect of which it is claimed, can be such only as have existence in the contem- plation of a court of law. It never could become a question, therefore, whether the wife of a cestui que trust could have a title of dower at law. But a question which has been the subject of much agitation, and upon which, though now settled, the rule was for a long time in a vacillating state, was whether Courts of Equity, having in most cases applied the rules and incidents of legal estates to the ownership of the trust, should or should not follow that principle in relation to dower, and give the wife of a cestui que trust an equitable equivalent for her dower at law, out of the trust estate.) (c) (a) HitchenS v. Hitchens, 2 Vera. 403. (6) Tit. 11, 12, 15. (c) Park on Dower, 123, 124. 1 But the widow of a trustee was dowable, by the common law ; though Equity would restrain her by injunction, if he had no beneficial interest in the land. 4 Kent, Comm. 42 ; Perk, sec" 392 ; 1 Eoper, Husb. & Wife, 353 ; 1 Roll. Abr. 678, pi. 36. After the Statute of Uses, 27 H. 8, the widow of the feoffee to uses could not be endowed, because he had but an instantaneous seisin. Stearns on Keal Actions, [281.] And it is now held that the wife of a trustee is not dowable. in Equity, of the trust estate. Robison v. Codman, 1 Sumn. 129 ; Powell v. Monson, 3 Mason, 347, 364, 365 ; Cooper v. Whit- ney, 3 Hill, 101 ; Cowman v. Hall, 3 Gill & Johns. 398 ; Noel v. Jevon, 2 Freem. 43 ; Bevan v. Pope, Ibid. 71. In Pennsylvania, it has been held otherwise. Shoemaker v. Walker, 2 S. & R. 556. In most of the United States, the case of trusts is expressly provided for by statute, the courts being empowered, in some States only in cases of trusts created by will, but in others, in all cases, to appoint new trustees upon the death, refusal, or resignation of any person holding lands in trust ; and the estate being declared to be vested in the new trustees thus appointed. In such cases, the title of thft wife to dower seems necessarily to be excluded. Title VI. Bower. Ch. II. s. 25. 191 (Before the statute of uses, the Courts of Equity r although, in many cases, they made the estate of the cestui que use subject to the incidents of legal estates, yet, for some reasons which can now only be conjectured, did not think fit to give dower of an use. Perhaps the courts, considering such interests only as arose by contract the proper subjects of their jurisdiction, looked upon dower as a right arising solely by implication of law, and, there- fore, not within the pale of equitable cognizance. Chief Baron Gilbert states as a reason, that the chancery would not allow the feoffors to be seised to anybody's use but those that were par- ticularly named in the trust ; and this does not seem altogether improbable, looking at the use, as Courts of Equity did then look at it, as the creation of the parties, and, therefore, to be solely governed by their expressed intent. However this may be, when, in consequence of the construction which had been put upon the statute of uses, chancery trusts had been introduced in practice, conveyancers, regarding them as equivalent to uses be- fore the statute, and governed by the same rules, adopted the plan of putting the legal estate in trustees, in cases where it was an object to avoid the attachment of a title of dower, and the efficacy of this mode was so little doubted of, that it became a very general practice. Here arose the difficulty ; for, in the mean- time, the doctrine of trusts had become the subject of progres- sive consideration in Courts of Equity, and they had by degrees formed a system of equitable jurisdiction, with regard to the estate in trust, in which they had been chiefly governed by anal- ogy to the rules of law, and under which, (the same objection not occurring,) they had made the trust subject to curtesy. Upon an attentive perusal of the cases, it will be found, that after much hesitation, whether to prefer consistency of principle, or security of titles, the latter motive at length gained the ascen- dency, the existence of an anomalous distinction being regarded as of less importance than the extensive mischief which would have been produced by disregarding a practice which had been applied to perhaps half the titles in the kingdom. Some judges have, indeed, endeavored to vindicate, upon principle, the rule which denies dower of a trust, but the consideration above stated has been the substantial and predominating ground upon which 192 Title VI. Bower. Ch. II. s. 25. that rule is now decisively established without danger of further discussion.) (a) 1 {a) Park on Dower, 123—126. 1 The origin of this apparently inconsistent rule, is thus explained by Lord Redes- dale : — "The difficulty in which the Courts of Equity have been involved with respect to dower, I apprehend, originally rose thus : — They had assumed, as a principle in acting upon trusts, to follow the law; and according to this principle, they ought in all cases where rights attached on legal estates, to have attached the same rights upon trusts, and, consequently, to have given dower of an equitable estate. It was found, however, that in cases of dower, this principle, if pursued to the utmost, would affect the titles to a large proportion of the estates in the country ; for that parties had been acting, on the footing of dower, upon a contrary principle, and had supposed, that by the creation of a trust, the right of dower would be prevented from attaching. Many persons had purchased under this idea ; and the country would have been thrown into the utmost confusion, if Courts of Equity had followed their general rule, with respect to trusts in the cases of dower. But the same objection did not apply to tenancy by the curtesy ; for no person would purchase an estate subject to tenancy by the curtesy, with- out the concurrence of the person in whom that right was vested. This I take to be the true reason of the distinction between dower and tenancy by the curtesy. It was necessary for the security of purchasers, of mortgagees, and of other persons taking the leo-al estates, to depart from the general principle in case of dower; but it was not necessary in the case of tenancy by the curtesy." D'Arcy v. Blake, 2 Sch. & Lef. R. 388, 389. In several of the United States, the common law, in this particular, has been altered by statutes, and the wife is made dowable of equitable estates, under various modifica- tions. In some, she is dowable generally of estates of which any one was seised to the husband's use. Such seems to be the law in Rhode Island, Rev. St. 1844, p. 188; and in New Jersey, Dennis v. Kiernan, Elm. Dig. p. 147, 4 Kent, Comm. p. 46 ; and in North Carolina, Rev. St. Vol. I. p. C14; and in Tennessee, Rev. St. 1836, p. 265. In Indiana, Rev. St. 1843, ch. 28, § 80 — 84, it is limited to such equitable estates as the husband had at the time of his decease. In some other States, her right extends only to those equitable estates of inheritance, which, if legal, would entitle her to dower by the common law. Such are the statutes of Virginia, Tate's Dig. p. 175; Alabama, Toulmin's Dig. p. 247, § 9 ; and Mississippi, How. & Hut. Dig. p. 353. In Kentucky, Rev. St. Vol. I. p. 572, note 2, the wife may have dower in any equitable fee, where the interest of the husband was sufficient to entitle the chancellor to decree a convey- ance to him of the legal estate. By the statute of Illinois, Rev. St. 1839, p. 698, § 49, it is enacted that "equitable estates shall be subject to the widow's dower, and all real estate of every description contracted for by the husband in his lifetime, the title to which may be completed after his decease." [This means equitable estates of inheritance. Davenport v. Earrar, 1 Scam. 316, in argument. See also Stribling v. Ross, 16 111. 172. A widow is entitled to dower of land in which her husband had an equitable interest subject to any lien that may exist thereon for purchase-money unpaid. Stewart v. Beard, 4 Md. Ch. Decis. 319 ; Blair v. Thompson, 11 Gratt. 441 ; Thompson v. Thomp- son, 1 Jones's Law, N. C. 430; Firestone v. Eircstone, 2 Ohio, N. S. 415.] In Ohio, the widow is dowable of the interest which her husband had at the time of his decease in any lands "held by bond, article, lease, or other evidence of claim." Ohio Rev. St. Title VI. Bower. Ch. II. s. 26—28. 193 *26. It has been stated that in the case of an estate *165 tail, the curtesy of the husband, and the dower of the wife continue ; though the estate tail be determined. But there are several cases where the curtesy and dower cease upon the determination of the estate. 1. Where the fee is evicted by a title paramount, both curtesy and dower necessarily cease. 2. Where the seisin of the husband is wrongful, and the heir is remitted ; by which the wrongful estate is ^determined ; the right to dower ceases. 3. Where the donor enters for breach of a condition, the right to curtesy and dower is defeated. 4. Where a person has a qualified or base fee, the right to curtesy and dower ceases, when the estate is determined. 5. Where an estate in fee simple is made determinable upon some particular event, if that event happens, curtesy and dower cease with the estate, (a) 27. The interest which widows acquired by way of dower was seldom greater than for their own lives, unless it was otherwise stip- ulated at the time of the marriage. And in England dower does not appear to have ever consisted of more than an estate for life. 1 28. Before the abolition of military tenures, the dowress was attendant on the heir, or whoever else was entitled to the rever- sion, for the third part of the services ; and still she holds of the heir by fealty; the assignment of dower by the heir being a species of subinfeudation, not prohibited by the statute Quia Emptores, because the heir does not depart with the fee. 2 (b) (a) Lit. s. 393. Ante, s. 18. Tit. 13. c. 2. Seymour's case, 10 Rep. 98. a. Buckworth V, Thirkell, tit. 38, c. 17, (5) Gilb. Uses, 357, # 1842, ch. 42, § 1 ; Derush v. Brown, 8 Ohio, E. 812. And such seems to be the law of New York, in regard to any equitable interest of the husband, in lands of which he died equitably seised. N. York Eev. St. Vol. II. p. 163, 169, 3d ed. ; 4 Kent, Comm. 43—47. See further, McCartee v. Teller, 2 Paige, 511 ; Smiley v. Wright, 2 Ohio R. 507 ; Brewer v. Vanarsdale, 6 Dana, 204 ; Robinson v. Miller, 1 B. Monroe, R. 88, 91 ; Bailey v. Duncan, 4 T. B. Monr. 262 ; Graham v. Graham, 6 T. B. Monr. 562 ; Ste- vens v. Smith. 4 J. J. Marsh. 65; Dean v. Mitchell, Ibid. 451 ; Kelly y.Mahan, 2 Yeatcs, 515 ; Hamlin v. Hamlin, ] Applet. 141. I 1 The possibility of right to dower may be released, but it cannot be the subject of grant or assignment, nor is it an interest in real estate. Moore v. New York, 4 Sel- den, N. Y. 110. Before assignment a right of dower may be reached by a creditor's bill. Stewart v. McMartin, 5 Barb. Sup. Ct. 438. See Post, ch. 3, § 1, note, p. * 168.] 2 The contradiction between this passage, and the last sentence in § 20, supra, where VOL. I. 17 194 Title VI. Dower. Ch. II. s. 29—31. 29. At common law, a dowress could not devise corn which she had sown ; nor did it go to her personal representatives, but became the property of the reversioner; because the widow, being entitled to an immediate assignment of dower, after the death of her husband, if the lands happened to be sown at that time, she had the benefit of it ; which made her case different from that of other tenants for life, who are seldom put into pos- session of lands that are sown. It was, however, provided by the Statute of Merton, 20 Hen. III. c. 2, that a dowress might dis- pose by will of the growing corn ; otherwise that it should go to her executors, (a) 1 30. Tenants in dower were under the same restraints respect- ing alienation as other tenants for life. But where a dowress alienated by feoffment, and the feoffee died seised, whereby the entry of the person in reversion was taken away, he could 166 * have * no writ of entry ad communem legem, until after the decease of the tenant in dower ; and then the war- ranty, which at that time was usually inserted in all deeds, barred the reversioner, if he was heir to the dowress. To remedy this, the Statute of Gloucester, 6 Edward I. c. 7, provided, that upon the alienation in fee, or for life, of a tenant in dower, she shall forfeit her estate ; and the heir shall have a writ of entry in casu proviso, in the lifetime of the dowress. (b) 31. By the Statutes 11 Henry VII. c. 20, f and 32 Henry VIII. c. 36, it is declared that no feoffment, fine, recovery, or warranty, (a) 2 Inst. 80, (b) 2 Inst. 309. the heir ts said never to have been seised, is only apparent, and not i - eal. The author is here speaking of seisin diverso intuitu. Where lands of inheritance are carved into different estates, the tenant of the freehold in possession, and those in remainder or reversion arc equally in the seisin of the fee. But in opposition to what may he termed the expectant nature of the seisin of those in remainder or reversion, the tenant in pos- session is said to have the actual seisin of the lands. Butler's note 217 to 1 Inst. 266, b. The latter seisin is only entrusted to the heir, so far as the dowress is concerned ; his seisin, in fact, being only for the purpose of transferring it to her. But his ultimate or expectant seisin of the reversion is that which he is said not to depart with. 1 This statute seems to have been generally regarded as common law in the United States, though in some of them this provision has been expressly enacted. See N. York, Rev. St. Vol. II. p. 29, 3d ed. ; Mode Island, Rev. St. 1844, p. 192 ; North Carolina, Eev. St. Vol. I. p. 615 ; Arkansas, Rev. St. 1837, ch. 52, § 50 ; LL. Kentucky, Vol. I. p. 575 ; Virginia, Tate's Dig. p. 176. [In Delaware. See Layton v. Butler, 4 Hairing. 507. J [t Except as to lands in settlement made before the passing of the Stat. 3 & 4 Will. 4, c. 74, (s. 16, 17,) the above act is repealed.] Title VI. Dower. Ch. II. s. 31—34. 195 by tenant in dower, shall create a discontinuance of the inheri- tance, or take away the entry of the heir, or person in rever- sion ; but that all such acts shall operate as a forfeiture of her estate, (a) 32. Tenants in dower are prohibited from committing any kind of waste. 1 But it was lately held by the Court of Com- mon Pleas, that if land assigned for dower contained an open mine of coal, or lead, the dowress might work it for her own benefit. 2 (b) 33. It is, however, somewhat doubtful whether dowresses be within the Statute 6 Ann., respecting accidental fire, (c) 34. The widow holds her dower discharged from all incum- brances, created by her husband after the marriage ; f because upon the husband's death, the title of the wife being consum- mate, has relation back to the time of the marriage, and to the seisin which the husband then had ; both of which precede such (a) Tit. 36. c. 10. (b) Ante, s. 1. (c) 1 Inst. 57. a. n. 1. 1 Tenant in dower is entitled to estovers, as any other tenant for life. But these can be used only on the dower land, or for purposes connected with its proper occupation. White v. Cutler, 17 Pick. 248. See ante, tit. 3, ch. 1, § 17, n. In New Hampshire, the dowress is entitled to take fuel to burn in her dwelling-house, though it be not on the land. N. Hamp. Rev. St. 1842, ch. 165, § 7. As to Waste, see ante, tit. 3, ch. 2. 2 It is not necessary that the husband should have worked the mines up to the time of his death ; nor that the working should have been continued by the heir. S tough- ton v. Leigh, 1 Taunt. 402, 410; Park on Dower, 116. And though the openings which had been wrought by the husband have been abandoned and partially filled up in his lifetime, the dowress may work them. Coates v. Cheever, 1 Cowen, E. 460, 465, 474, 477. If the course of working a quarry has been by breaking, progressively, a portion of the surface of the ground, and working down to a certain depth, she may continue it in that method. Billings v. Taylor, 10 Pick. 460. So she may penetrate new seams, or sink new shafts. Pindlay v. Smith, 6 Munf. 134 ; Crouch v. Puryear, 1 Rand. 253. [The husband of a tenant in dower is not liable for mere permissive waste after the death of his wife, and the surrender of his possession.. Dozier v. Gregory, 1 Jones's Law, (N. C.) 100 ; but he commits waste by removing from the premises a building erected thereon by himself. Ibid. Where dower is assigned in wholly unimproved, and unproductive town lots, and in a tract of unimproved woodland, the widow may sell timber growing on the woodland, sufficient to raise money necessary to pay taxes already due, and that have become a lien on the land, and to pay an agent's compensa- tion in making the sales, and such sale is not waste. Crockett v. Crockett, 2 Ohio, (N. S.) 180.] [t The law is now altered except as it respects the dower of women married before or on the 1st day of January, 1834. The charges and incumbrances of the husband arc now effectual against the dower of the wife married since the above-mentioned period. Stat. 3 & 4 Will. 4, c. 105, s. 5, vide supra, p. 160, note] 196 Title VI. Dower. Ch. II. s. 34—36. incumbrances. And dower is even protected from distress, for a debt contracted by the husband to the crown, during the mar- riage, (a) [35. The title to dower may, in some cases, depend upon the election of third persons. The widow is prima facie entitled to be endowed of a rent charge ; but if, before distress and avowry made, the husband die, and the heir brings a writ of annuity, which is a mere per- sonal remedy, and recovers judgment on it, or proceeds 167 * no * farther than filing a declaration, the heir's election is bound, and the rent charge will be converted into per- sonal annuity. But if before declaration or avowry by the heir, the widow recover against him in a writ of dower, her right will be established, (b) 36. Again, where the husband, previously to the title of dower attaching, has by contract given the tenant or other per- son an option of purchasing the estate, and such option is exer- cised either before or after the husband's death, it will convert the estate into personality, and defeat the widow's right to en- dowment] (c) (a) 1 Inst. 46. a. 4 Rep. 65. a. 1 Inst. 31. a. Fitz. N. B. 150. (b) Co. Lit. 144. b. 145. Fitz. N. B. 152. a. (c) 7 Yes. 436. Townley v. Bedwell, 14 Yes. 591. 197 CHAP. III. ASSIGNMENT OF DOWER, AND MODES OF RECOVERING IT. Sect. 1. Necessity of an Assignment. 2. Who may assign Doiver. 6. How it is to be assigned. 18. Remedies against an im- proper Assignment. Sect. 23. Effect of an Assignment of Dower. 26. Actions for recovering Dower. 27. May be obtained in Chan- cery. Section 1. Upon the death of the husband the right to dower, which the wife acquired by the marriage, becomes consummate ; but unless the precise portion of land which she is to have is particularly specified, as was formerly sometimes done, she can- not enter till dower is assigned to her ; for she might in that case choose whatever part of the lands she pleased, which would be injurious to the heir. The widow has therefore no estate in the lands of her husband till assignment; l for the law casts the free- hold on the heir, immediately upon the death of the ancestor, (a) 2. With respect to the persons whose duty it was to assign dower, the heir, in common cases, as lord of the manor, and * who was to create the tenure, assigned dower. If * 169 there was any dispute as to the quantity of land assigned, (a) 2 Bl. Comm. 132. Gilb. Ten. 26. 1 And therefore her right cannot be taken in execution for her debt ; nor leased ; for it lies only in action, until assignment. Gooch v. Atkins, 14 Mass. 378; Cox v. Jag- ger, 2 Cowcn, 638 ; Weaver v. Crenshaw, 6 Ala. R. 873 ; Croade v. Ingraham, 13 Pick. 33 ; Nason v. Allen, 5 Greenl. 479. [But it may be reached by a creditor's bill. Stew- art v. McMartin, 5 Barb. Sup. Ct. 438. It cannot be aliened. Blair v. Harrison, 11 111.384. Nor be taken on execution. Summers v. Babb, 13 lb. 483. Nor be assigned or sold. Lamar v. Scott, 4 Rich. Law, 516. But she may make such a contract in regard to it, as equity will enforce. Potter v. Everitt, 7 Ired. Eq. 152. Being a right in real prop- erty, it cannot be released or conveyed by parol. Keeler v. Tatnell, 3 Zabr. 62.] Nor has she such an interest in her husband's land of which she is dowable, as to prevent her removal as a pauper from the parish in which the land lies. Rex v. Northweakl Bassett, 2 B. & C. 724. But in Connecticut, it seems, she is regarded as a tenant in common with the heirs, until her dower is set out in severalty ; from which it would follow that her right is capable of being conveyed or taken, as an estate of freehold. Stcdman v. Fortune, 5 Conn. 462. 17* 198 Title, yi. Bower. Ch. III. s. 2—7. it was determined by the pares curia, in the Court Baron ; but the suit might be removed to the county court, and also to the king's court. (3. Though the heir be ivithin age, yet the assignment by him is good ; subject only to be corrected, if excessive, by a writ of admeasurement of dower. 1 ) 4. Regularly no person can assign dower who has not a free- hold estate in the land. But where a disseisor, abator, or intruder, assigns dower, it is good, 3 and cannot be avoided ; unless they are in of such estates by fraud and covin of the widow, to the intent that she may be endowed by them, or recover dower against them ; for in that case the assignment may be avoided by the entry of the real owner, (a) 5. The reason why such an assignment of dower shall be good is, because the widow having a right to dower, she might have compelled the disseisor, abator, or intruder, as terre-tenants, to assign dower to her ; and was not obliged to wait till the heir thought proper to reenter, or sue for the recovery of his right. But where the heir or other tenant of the land refuses to assign dower, and the widow is obliged to resort to the courts of law to obtain an assignment, it is made by the sheriff, (b) 6. With respect to the manner in which dower ought to be assigned, the rule is, that where the property is capable of being severed it.must be by metes and bounds ; and if the sheriff does not return seisin by metes and bounds, it is ill. But where no divis- ion can be made, the widow must be endowed in a special and certain manner. As of a mill, a widow cannot be endowed by metes and bounds, nor in common with the heir ; but she may be endowed, either of the third toll dish, or of the entire mill, for a certain time, (c) (7. If the husband has aliened the land to two or more in sev- eralty, the dower is to be assigned in each distinct parcel of the land. And so, in like manner, if he has aliened to one, and the grantee has afterwards conveyed to others, in several parcels. For though this may impair the value of the dower, it does not («) 1 inst. 35. a. 357. b. (b) 1 Inst, 35. a. 357. b. Perk. 394. 1 Inst. 34. b. (c) 1 Inst. 32. a. 1 1 Roll, Abr. 137, 631; Gore v. Perdue, Cro. El. 309; Stoughton v. Lee, 1 Taunt. 402; Jones v. Brewer, 1 Pick. 314; [Cormick v. Taylor, 2 Carter, (Ind.) 336.] 2 For he is in of the husband. Parker v. Murphy, 12 Mass. 485. Title VI. Dower. Ch. III. 5. 7—12. 199 diminish the proportion in quantity. And in such cases it will be assigned in the portion of the land which does not include the beneficial improvements of the purchaser, where this may conveniently be done.) 1 8. It was held by the Court of Common Pleas, in a late case, that dower may be assigned of mines, either collectively with other lands, or separately of themselves ; that it should be as- signed by metes and bounds, if practicable, otherwise either by a proportion of the profits, or separate alternate enjoyment of the whole, for short proportionate periods, (a) 9. Dower was assigned by metes and bounds, because it was a tenancy of the heir, and like all other lands in tenure ought to be separated from the demesnes of the manor. The right to have an assignment of dower by metes and bounds may, how- ever, be waived by the widow ; and in that case an as- signment in * common will be good. But an assignment * 170 by the sheriff must be by metes and bounds, if it can be done, (/j) 10. An assignment by metes and bounds can only take place where the husband is seised in severalty; for where he is seised in common with others, his widow cannot be endowed by metes and bounds ; for she being in pro tanto of her husband's estate, must take it in the manner in which he held it. (c) 11. Lord Coke says an endowment by metes and bounds, according to common right, was more beneficial to the widow than to be endowed against common right ; for there she shall hold the land charged, in respect of a charge made after her title to dower, (d) 12. The assignment of dower must be of part of the lands whereof the widow is dowable ; for an assignment of land whereof she is not dowable, or of a rent issuing out of such lands, is no bar of dower ; because a right or title to a freehold estate cannot be barred by a collateral satisfaction. But a rent issuing out of the land whereof a woman is dowable may be assigned for dower. And if a tenant in tail assigns a rent out of {a) Ante, c. 2. s. 1. (b) Gilb. Uses, 356. Coots v. Lambert, 9 Vin. Ab. 256. Rowe v. Power, 2 Bos. & Pull. N. Pv. 1. (c) 1 Inst. 32. b. 9 Vin. Ab. 256. (d) 1 Inst. 32. b. n. 2. 1 Fosdick v. Gooding, 1 Greenl. SO ; Leggett r. Steele, 4 Wash. 305 ; Coulter v. Holland, 2 Harringt. 330 ; Potter v. Wheeler, 13 Mass. 504. 200 Title VI. Dower. Ch. III. s. 12—17. the land intailed for dower, not exceeding the yearly value of such dower, it will bind the issue in tail, (a) 13. If an assignment and grant of lands be made to a woman for a term of years, in recompense of her dower, this will not bar her of dower, because she has not such an estate as if she had been endowed ; namely, an absolute estate for life. It is the same if she accepts a rent for years in allowance of her dower, or for the life of him who assigns it. These rents will not bar her of dower, because she has not the same estate in them as in her dower, (b) 14. The assignment of dower must also be absolute ; and not subject to be defeated by any condition, nor lessened by any •exception or reservation. For the widow comes to her dower in the per, by her husband, and is in, in continuance of his estate, which the heir or terre-tenant is but a minister, or officer of the law, to carve out to her. Therefore such conditions or reserva- tions are totally void, and her estate discharged from them ; or else the estate assigned with such conditions is no bar to her recovery of dower, in an action. But where the lands were leased for years before the marriage, the assignment of 171 * * dower is made with a proviso that the tenant for years shall not be disturbed, (c) 15. Dower may be, and was usually assigned by the heir, by a parol declaration ' that the widow shall have such particular lands for her dower; or else that she shall have a third part of all lands whereof her husband died seised, (d) 16. In some cases a woman shall have a new assignment of dower. As where she is evicted out of the lands assigned to her, she shall be endowed of a third of the remainder, (e) (17. Respecting the wife's right to dower in the increased value (a) Turney v. Sturges, Dyer 91. Vernon's case, 4 Eep. 1. a. 9 Vin. Ab. 261. (&) 9 Vin. Ab. 258. 2 And. 31. Hob. E. 153. (c) 1 Inst. 34. b. Wentworfh v. Wentworth, Cro. Eliz. 450. Wheatley ». Best, Cro. Eliz. 564. (d) 1 Inst. 5. a. Bootb r. Lambert, Sty. 276. (e) Bustard's case, 4 Eep. 122. a. 1 The reason why a parol assignment is valid, is, that it is not a conveyance of title, the widow holding her estate by law, and not by contract, and therefore it is not within the Statute of Frauds. She requires nothing but to have her part distinguished by metes and bounds. Conant v. Little, 1 Pick. 189 ; Pinkham v. Gear, 3 X. Hamp. 153 ; Shattuck v. Gragg, 23 Pick. 88 ; Johnson v. Neil, 4 Ala. R. 166; Baker v. Baker, 4 Greenl. 67. But a parol assignment does not bind the widow until it is accepted. Johnson v. Morse. 2 N. Hamp. 48; [Boyer v. Newbanks, 2 Carter, (Intl.) 38S] Title VI. Bower. Ch. III. s. 17—17 a. 201 q/"///e land, subsequent to the husband's decease, or his aliena- tion of it to «a stranger, some distinctions have been taken which should here be noted. The value may have been increased, either by lasting improvements made by the heir, after the hus- band's decease ; or by such improvements made by the pur- chaser, after the alienation of the husband ; or by circumstances irrespective of either, and connected only with the general growth and prosperity of the neighborhood or country. It is true that the improvements, however made, are attached to the soil and become inseparably part of the freehold ; and, therefore, upon general principles, there seems no reason why they should not go with the land to the dowress, as well as to any other alienee, or as they would have reverted with the land to the husband* upon condition broken, were he still alive. And hence it has uniformly been held, that the widow shall be endowed of lasting- improvements made by the heir ; for he is not considered as having been seised of that part of the estate assigned to her in dower ; and her seisin is only a continuance of that of the husband. The reason sometimes assigned for this is, that it was the heir's own folly to make the improvements, before assigning the dower ; but though this may be so, yet it does not affect the general prin- ciple. 1 The same general doctrine prevails in regard to the increased value of the premises resulting from other and extraneous causes, unconnected with any improvements actually made upon the land ; and accordingly the wife has one third part of the land assigned for her dower, with the benefit of all this enhanced value of that part, existing at the time of the assignment. 2 17 a. But in regard to the improvements made by the alienees of the husband, an exception was for a long time admitted in England, in favor of the alienees ; their improvements being excluded in the computation of value, upon the endowment of the wife. The reason assigned for this exception was, that as the alienee could recover against the heir only the value of the land as it was at the time of the conveyance, he would lose the value of his improvements, if the widow should be allowed her 1 Park on Dower, 256, 257; Perk. § 328, 329 ; Powell v. Monson, 3 Mason, R. 347, 365—370; 4 Kent, Comm. 66; Parker v. Parker, 17 Pick. 236. [See Purrington v. Pierce, 38 Maine, 447.] 2 Ibid. 202 Title VI. Dower. Ch. III. s. 17 a— 19. dower in them. 1 But this reason has been considered not satis- factory, both in England and in America, though with different results. • In a late case in the Queen's Bench, this exception was upon full consideration overruled; and it was held by all the judges that, on common law principles, the wife was entitled to a third in value of the land, estimating the value as it was at the time of the assignment, although it had been conveyed away by the husband in his lifetime, and improved in value by buildings erected thereon by the alienee after the conveyance and before the assignment of the dower.' 2 But in the United States, this exception is fully recognized and admitted, on grounds of public policy and convenience, for the encouragement of alienations, and to promote the general prosperity and improvement of the coun- try ; and the widow's right of dower, as against the alienees of the husband, is generally, if not universally, limited to the value of the premises, exclusive of the improvements made upon the land by the purchaser and those claiming under him. 3 18. Where the sheriff makes an improper assignment of dower, it will be set aside by the Court of Common Pleas, or the Court of Chancery ; and he will be punished. 4 19. Thus where the sheriff returned that he had assigned to the demandant, for her dower of a house, the third part of each chamber ; and had chalked it out for her. This was held an idle and malicious assignment ; and the sheriff was committed for it, as he ought to have assigned to her certain chambers or rooms. 5 (a) (a) Abingdon's case, cited in Palm. 204. 1 Park on Dower, 256, 257 ; Perk. § 328; Co. Lit. 32, a. ; 4 Kent, Comm. 65, 66 ; Powell v. Monson, 3 Mason, R. 369. 2 Doe d. Eiddell v. Gwinnell, 1 Ad. & El. 682, N. S. 3 Powell v. Monson, 3 Mason, R. 347, 365-370; Gore v. Brazier, 3 Mass. 544; Cat- lin u.Ware, 9 Mass. 21S; Thompson v. Morrow, 5 S. & R. 289; Hale v. James, 6 Johns. Ch. R. 258 ; 4 Kent, Comm. 65, 66 ; Waters v. Goueh, 6 J. J. Marsh. 591 ; Tay- lor v. Brodrick, 1 Dana, R. 347 ; [Carter v. Parker, 28 Maine, (15 Shep.) 509 ; Manning v. Laboree, 33 lb. (3 Red.) 343 ; Simonton v. Gray, 34 lb. (4 Red.) 50 ; Bowie v. Berry, 1 Md. Ch. Decis. 452; Summers v. Babb, 13 111.484.] 4 [An assignment to a widow of a portion of the land in fee, equal in value to her dower in the whole will be set aside. Wilhelm v. Wilhelm, 4 Md. Ch. Deeis. 330.] 5 Such an assignment, with the right of common use of the hall and passage-ways for access to the rooms, would have been good. White v. Story, 2 Hill, N. Y. R. 543. Title VI. Bower. Ch. III. s. 20—24. 203 20. In another case the sheriff was committed for refusing to make an equal allotment of dower ; and for taking sixty pounds to execute the writ. An information was also ordered against him. (a) 21. A bill was brought by the heir to be relieved against a fraudulent assignment of dower by the sheriff; because a third part of the lands was assigned, without taking notice of a coal work that was on the estate ; the plaintiff offering the defen- dant one entire third, both of land and coal work, by way of rent- charge on the whole. The Court ordered that she should accept thereof ; or that otherwise a new assignment of dower should be made, (b) [22. When the assignment of dower is made not by the sheriff but by the heir, if he were of full age, and under no disability when he made the assignment, although the assignment exceeded the widow's third of the value of the estate, he will not be re- lieved by a court of law. (c) But if the heir were under age, when he assigned dower, he will be protected against the consequences of excessive assign- ment, and may have his writ of admeasurement of dower, (d) 1 But he cannot defeat the assignment of dower by en- try.] (e) * 23. The widow acquires an estate of freehold by the * 172 assignment, without livery of seisin ; 2 because dower is due of common right ; and the assignment is an act of equal notoriety. (/) 24. As soon as dower is assigned, the widow holds by the in- stitution of the«law, and is in of the estate of her husband; so that after assignment she is considered as holding by an infeuda- tion immediately from the death of her husband ; therefore the heir is not considered as having ever been seised of that part of his ancestor's estate, whereof the widow is endowed, (g) (a) Longvill's case, 1 Keb. 743. (b) Hoby v. Hoby, 1 Vera. 218. (c) Gilb. Dower, 380. Sloughton v. Leigh, 1 Taunt. 404, 412. (F. N. B. 148. G. II.) (d) Gilb. Dower, 382. Fitz. N. B. 148. G. H. (e) Gilb. Dower, 388. (/) 1 Inst. 35. a. (.7) Lit. s. 393. Gilb. Uses, 356, 395. (Windham v. Portland, 4 Mass. 384, 388. Jones v. Brewer, 1 Pick. 314.) Ante, c. 2. § 20, 28. n. f 1 Gormick v. Taylor, 2 Carter, (Ind.) 336.1 2 If the land in possession of the heir is assigned to the widow for dower with his consent, by process of law, she thereby acquires a defeasible title to that parcel of land, 204 Title VI. Dower. Ch. III. s. 25—29. 25. Where dower is assigned, there is a warranty in law, implied, that if the tenant be impleaded, she shall vouch the heir ; and if evicted, shall recover in value a third of the remain- der, (a) 26. Where the heir or terre-tenant refuses to assign dower to the widow, the law has provided her with several remedies for recovering it. The first of these is the writ of dower, iinde nihil habet. which lies where no dower has been assigned. But if any part of dower has been assigned, the widow cannot say wide nihil habet, and therefore she must have recourse to the writ of dower ; which is a more general remedy, extending either to a part or to the whole. (b)j 27. Where a woman was disabled from suing for her dower at law, she was always relieved in equity. And now it is settled that widows labor under so many difficulties at law, from the embarrassment of trust terms, and other matters, that they are fully entitled to every assistance which a court of equity can o-ive them, not only in paving the way to establish their right at law, but also in giving them complete relief, when the right is ascertained, (c) 28. Where a mother was guardian to her child, and received the rents of the estate of which she was dowable, but dower was never assigned to her, the Court of Chancery held that the want of a formal assignment of dower was nothing in equity, for still the right in conscience was the same. And if the heir brought a bill against the mother for an account of the profits, it was just that a court of equity should, in the account, allow a third of the profits for the right of dower.*(^/) 173* * 29. [In assigning dower, the Court of Chancery allows the widow an account of mesne profits from the death of (a) 1 Inst. 38. b. Bustard's case, 4 Co. Rep. 122. a. (Scott v. Hancock, 13 Mass. 162.) (b) Gilb. Uses, 374, 367. (c) Tothill, 82. Treat, of Eq. B. 1. c. 1. s. 3. Curtis v. Curtis, 2 Bro. C. C. 620. Mundy v. Mundy, 4 ib. 294. 2 Rop. Husb. and Wife, Jac. ed. 450—1. & n. (d) Hamilton v. Mohun, 1 P. Wms. 118. to be rendered absolute by the subsequent acceptance and confirmation of the assign- ment by the proper court ; and therefore she may enter forthwith, and gather the crop previously sown by the heir. Parker v. Parker, 17 Pick. 236. 1 1 Writs of right of dower, unde nihil habet, a quare impedit and ejectment are ex- cepted out of the 36th section of the Stat. 3 & 4 Will. 4, c. 27, by which real and mixed actions are abolished.] Title VI. Dower. Ch. III. s. 29. 205 the husband, and will not permit her title to them to be defeated by the death of the tenant pendente lite, and although the length of time which may have elapsed since the husband's death exceed six years prior to the bill filed.] (a) f (a) Curtis v. Curtis, vbi supra. Oliver v. Richardson, 9 Ves. 122. t By the Stat. 3 & 4 Will. 4, c. 27, s. 41, it is enacted, that after the 31st day of De- cember, 1833, no arrears of dower, nor any damages on account of such arrears, shall be recovered by action or suit, for a longer period than six years next before the com- mencement of such action or suit. (So, in New York, Rev. St. Vol. II. p. 28, 3d ed.) [The consent of all parties interested is necessary to authorize a decree of a specific sum in lieu of dower. Blair v. Thompson, 11 Gratt. (Va.) 441.] VOL. I. 18 206 CHAP. IV. WHAT WILL OPERATE AS A BAR OR SATISFACTION OF DOWER. Sect. 2. Attainder of the Husband. 3. Attainder of the Wife. 4. Elopement with an Adulterer. 11. Detinue of CJiarters. 13. Fine or Recover?/. 14. Deed. 1 5. Bargain and Sale in London. 16. Jointure. Sect. 18. An Outstanding Term. 19. A Devise is no Bar to Dower. 24. Unless so expressed, when the Widow has an Election. 29. Sometimes held a Satisfac- tion. 32.. A Bequest of Personal Estate no Bar to Dower. Section 1. The right to dower attaches at the instant of the marriage ; nor can it, by the common law,f be defeated by the alienation of the husband alone ; but still the wife may be barred from claiming dower by several acts subsequent to the marriage. 2. Formerly, if a man was attainted of treason or felony, his wife was thereby barred of her dower at common law, and by custom ; except where the lands were held in gavelkind. By the Statute 1 Edw. VI. c. 12, the rigor of the common law was abated in this respect, it being thereby enacted that in all cases where the husband was attainted of treason or felony, his wife should have dower. But a subsequent Statute, 5 & 6 Edw. VI. c. 11, revived this severity against the widows of traitors, who are now barred of dower. And the words of the act being general, exclude the wife, as well in cases of petit, as of high treason. (a)% («) 1 Inst. 41. a. Rob. Gav. 230. 1 Inst. 392. b. [ t Altered by Stat. 3 & 4 Will. 4, c. 105, s. 14.] 175* | In cases of misprision of treason, or attainder of felony * only, the Stat. 1 Edw. 6, is still in force ; therefore the widows of such persons are entitled to dower ; and where offences have been made felony by modern acts of parliament, the wife's dower is, in general, expressly saved. 4 Bl. Comm. 392; 5 Eliz. c. 11, s. 4 : 18 ib. c. 1, s. 2 ; 8 & 9 Will. 3, c. 36, s. 7 ; 15 Geo. 2, c. 28, s. 4. Title VI. Dower. Ch. IV. s. 2—5. 207 [The attainder, though followed by pardon, will defeat the dower of lands whereof the husband was seised prior to such pardon. But if the attainder be reversed for error, the widow's title will revive.] (a) 3. If a woman be attainted of treason or felony, she will thereby lose her dower ; but if pardoned, she may then demand it, though her husband should have aliened his land in the mean- time ; for when this impediment is once removed, her capacity to be endowed is restored, (b) 4. It has been stated that a divorce on account of adultery is no bar to dower. 1 But by the Stat. Westm. 2, c. 34, it is enacted, that if a wife willingly leaves her husband and continues with an adulterer, she shall be barred of her action to demand dower, if she be convicted thereupon; except her husband willingly, 2 and without coercion of the church, reconcile her, and suffer her to dwell with him ; in which case she shall be restored to her action. 3 [And in a recent case it was held that adultery was a bar to dower, although committed after the husband and wife had separated by mutual consent.] (c) 5. Lord Coke, in his comment on the above statute, observes on the words si sponte reliquerit virum suum, et abierit, et moretur cum adultero ; that although the words of this branch be in the conjunctive, yet if the woman be taken away, not sponte, but against her will, and after consent, and remain with (a) Mayne's case, 1 Leon. 3. pi. 7. Co. Lit. 392. Perk. s. 387. Menvill's case, 13 Eep. 19. Moor, 639. (b) 1 Inst. 33. a. Menvill's case, 13 Eep. 23. (c) Hethrington v. Graham, 6 Bing. 135. 2 Inst. 433. i [Ante, Title VI. ch. 1, § 16, * 155.] 2 He is not obliged to receive her, after she has willingly lived with an adulterer, even though he had himself previously brought an adulteress into the house and turned his wife, then innocent, out of doors. Govier v. Hancock, 6 T. R. 603. 3 In some of the United States this provision has been expressly reenacted. See LL. New Jersey, Elmer's Dig. p. 145 ; Ohio, Rev. St. 1841, ch. 42, § 6 ; Illinois, Rev. St. 1839, p. 254. But it is believed to be held as the common law of this country, in all the States originally settled by English colonists or their descendants. Sec 4 Dane's Abr. 672, 676; 4 Kent, Comm. 53; Cogswell v. Tibbetts, 3 N. Hamp. 41. In Con- necticut, it is necessarily implied in the statute, which gives dower only to the wife who lived with her husband at the time of his death, or was " absent from him by his con- sent, or by his default, or by inevitable accident." Conn. Rev. St. 1838, p. 188. By the Scotch law, adultery is a forfeiture of dower, if the husband adopted any proceed- ings at law, evincive of his intent to that effect, or of his offence against her ; and this whether she eloped or not. 1 Stair's Inst. 39 (n) 321. 208 Title VI. Dower. Ch. IV. s. 5—8. the adulterer, without being reconciled, she shall lose her dower. For the cause of the bar of her dower is not the manner of her going away, but the remaining with the adulterer, without recon- ciliation. He also observes upon the words moretur cum adul- tero, that although she does not continually remain with the adulterer, yet if she be with him, and commits adultery, it is a tarrying within the statute. Also if she once remains with the adulterer, and after he keeps her against her will ; or if the adul- terer turns her away ; yet she shall be said morari cum adultero, within the act. (a) 1 6. He further observes, that if a woman who has eloped from her husband with an adulterer, is afterwards reconciled, and co- habits with her husband, by coercion of the church, yet she will be barred of her dower. And if a woman goes away with another man, with her husband's consent, and afterwards 176 * that man * commits adultery with her, and she remains with him, without being reconciled to her husband, she shall be barred of her dower. (6)f 7. There is a curious case in the Rolls of Parliament, 30 Edward I., where a man by deed granted his wife to another, with whom she eloped and lived in adultery. It was determined, 1. That it was a void grant. 2. That it did not amount to a license, or at least was a void license. 3. That after elopement there should not be any averment quod non fuit adulterium, though she married the adulterer after her first husband's death ; therefore that she was barred of dower. A sentence of purga- tion of adulrery in the ecclesiastical court was also produced, but it was not allowed to have any effect, (c) 8. Where the friends of the husband removed him from his wife, published that he was dead, and persuaded the wife to marry another man, though the wife lived in adultery ; yet inas- much as non reliquit virum sponte, it was held that she did not forfeit her dower, (d) (a) 2 Inst. 435, 436. Co. Lit. 32. a. & n. 9. lb. 33. (J) 2 Inst. 435. (c) Rot. Pari. vol. 1. 146. 2 Inst. 436. Coot v. Berry, 12 Mod. 232. S. P. (d) Green v. Harvey, 1 Roll. Ab. 6 SO. 1 Sponte virum mulier fugiens, ct adulter a facta, Dote sua careat, nisi sponsi sponte retracta. — 1 Inst. 32, b. [t The husband will not be obliged to take his wife back again after she has eloped from him and committed adultery. 6 T. E. 603.] Title VI. Dower. Ch. IV. s. 9—12. 209 9. With respect to the circumstances necessary to prove a vol- untary reconciliation by the husband, Lord Coke says, cohabita- tion is not sufficient, without reconciliation made by the husband sponte ; so that cohabitation only in the same house with the husband will not avail. But in the following case, cohabitation as man and wife appears to have been held a sufficient proof of reconciliation, (a) 10. Reconciliation being pleaded, evidence was given that the husband and wife had, after the elopement, slept together several nights, and in divers places, and demeaned themselves as man and wife. It was objected that they never lived together in one house, but were apart ; and the wife continued in adultery with one or more, during the life of her husband, sed non allocatur ; for there might have been divers elopements, and divers recon- ciliations ; and the defendant ought to take issue on one at his peril, (b) 11. Detinue of charters is another cause of the loss of dower. 1 For if in a writ of dower the tenant pleads that the demandant detains the charters of the estate, and she denies the fact, which is found against her, she shall lose her dower. But, 1. The * charters ought to relate to the land whereof dower is * 177 demanded. 2. He who pleads this plea ought to show the certainty of the charters ; whereupon a certain issue may be joined, as that they are in a chest or box, locked or sealed, which imports sufficient certainty. 3. No stranger, though he be tenant to the land, and has the evidences conveyed to him, can plead this plea, (c) 12. In several cases the heir is in the degree of a stranger, and (a) 2 Inst. 436. (b) Haworth v. Herbert, Dyer, 106. 2 Inst. 436. (c) Bcdingfield's case, 9 Rep. 15. Dyer, 250. a. 1 This plea is dilatory, admitting the title of the plaintiff, but alleging that she detains the deeds and evidences of the estate, so that he is ignorant of the lands ; and that the defendant was always ready to assign the dower, if she would deliver them. Hence, it cannot be pleaded, first, if the heir holds by purchase, and not by descent ; for then there is no privity in estate, nor can he be said to be ignorant of what he ought to assign. Secondly, if the widow received the deeds by delivery from the defendant himself. Thirdly, if the heir comes in as vouchee of the tenant; or, as vouchee having no lands in the county ; or, as tenant by receipt ; for such vouchee or tenant cannot render dower. 9 Rep. 18 b; Park on Dower, 295. If the wife surrenders the charters, she may have judgment. Hob. 199. 18* 210 Title VI. Bower. Ch. IV. s. 12— 14. therefore shall not plead detinue of charters. 1. If the heir has the land by purchase. 2. If he has delivered the charters to the widow ; for then she has them by his own act. 3. If the heir be not immediately vouched. 4. If he comes in as vouchee. 5. If he comes in as tenant by receipt. The reason is manifest, if the true form of pleading in that case be observed ; for he who pleads detinue of charters, in bar of dower, ought to plead that he has been always ready, and yet is, to render dower, if the demandant would deliver to him his charters, (a) 13. If a woman joins with her husband in levying a fine, or suffering a common recovery, of lands whereof she is dowable, she will thereby effectually bar herself from claiming dower out of those lands. The principles upon which this doctrine is founded will be explained hereafter. (&) (14. In the United States, the usual method of barring dower, by the voluntary act of the wife, is, by her joining' with her husband in a deed of conveyance of the land, containing apt words of release of dower on her part; acknowledged by her before a magistrate, in the mode prescribed by the statutes of the respective States ; the manner of authenticating her act not being everywhere the same. This practice is probably coeval with the settlement of the country ; and has been supposed to have originated in Massachusetts, from the colonial ordinance of 1644. If she was not of full age at the time of executing the deed, or if the deed does not contain apt words, showing her in- tention to relinquish her dower, she will not be barred therefrom, though she has signed and sealed the deed, and made the statute acknowledgment. 1 ) (a) Burdon v. Burdon, 1 Salk. 252. (6) Tit. 35, 36. 1 4 Kent, Comm. 59 ; Catlin v. Ware, 9 Mass. 218 ; Powell v. Monson. 3 Mason, 347, 351 ; Hall v. Savage, 4 Mason, 273; Leavitt v. Lamprey, 13 Tick. 382; Priest v. Cummings, 16 Wend. 617; Markham v. Merrett, 7 How. Miss. 437; Thomas v. Gam- mel, 6 Leigh, 9 ; Post, tit. 32, ch. 21, § 10, note. Where the statute has directed the form of the acknowledgment, it must be strictly pursued, or the act of relinquishment will be void. Kirk v. Dean, 2 Binn. 341 : Thomp- son v. Morrow, 5 S. & R. 289 ; Sheppard v. Wardell, Coxe, R. 452 ; Clarke v. Red- man, 1 Blackf. 379; Scanlan v. Turner, 1 Bail. 421. In Neio Hampshire, if the wife is insane at the time of alienation by the husband, he may be licensed by the Judge of Probate to convey so as to bar her right of dower. Stat. 1851, ch. 1097. [By immemorial custom in New Hampshire, a wife may bar her dower in land by executing her husband's deed thereof, without apt words of release. Dustin v. Steele, 7 Foster, N. H. 431. And see Burge v. Smith, lb. 332.] Title VI. Bower. Ch. IV. s. 15—17. 211 15. By the custom of London a married woman may bar her- self of dower, by a deed of bargain and sale, acknowledged be- fore the lord-mayor, or the recorder and one alderman, and enrolled in the court of hustings ; the wife being examined sep- arately from her husband, as to her consent, (a) 16. The most usual mode of barring dower, in modern times, is by means of a, jointure settled on the wife before marriage ; of which an account will be given in the next title. (17. But it may in this place be remarked, that, though the wife's dower may be barred by a jointure, yet her antenuptial covenant, in a marriage settlement, never to claim dower, will not have that effect, even though it contain an agreement that it may be pleaded in bar of any action of dower, unless the consid- eration on which the covenant was founded has been performed. Thus, where, by an antenuptial indenture, the husband settled an annuity on the wife for her life, and she covenanted never to claim dower in his estate ; and he afterwards died insolvent ; it was held that the covenant could not be set up by way of de- fence to her claim of dower ; for being of a future interest, it (a) Bohun, Priv. Lond. After a sufficient lapse of time, a release of dower by the wife may be presumed. Barnard v. Edwards, 4 N. Hamp. 321 ; Evans v. Evans, 3 Yeates, 507. [The wife cannot by any agreement between herself and husband, made during coverture, bar herself of dower. Martin v. Martin, 22 Ala. 86. A quit-claim deed from two grantors, signed and sealed by each of them, and signed by their wives, with but one seal against both signatures, and concluding after the release of dower, " In witness whereof we the grantors have hereunto set our hands and seals," is sufficient to bar the dower of the wives. Tasker et al. v. Bartlett, 5 Cush. 359. See also Dundas v. Hitchcock, 12 How. U. S. 251. The deed of a married woman, executed by her alone, relinquishing her dower in land previously conveyed by her husband by his separate deed, does not bar her dower therein. Page v. Page, 6 Cush. 196 ; French v. Peters, 33 Maine, (3 Red.) 396 ; Witter v. Briscoe, 8 Eng. 422. Nor is a widow barred of her claim of dower against a mortgagee who has foreclosed, she not joining in the mortgage, by a release of her dower, to the purchaser of the equity of redemption. Littlcfield v. Crocker, 30 Maine, (17 Shep.) 192. Where a wife has barred herself of her right of dower by joining in a mortgage with her husband, she can be restored to her right of dower, if the mortgage is extinguished by her husband, or by some one in his right, or by a redemption by payment of the debt herself. Brown v. Lapham, 3 Cush. 551, 554. A husband made three mortgages of his premises. His wife joined, in release of her dower, only in the second mortgage. The third mortgagee paid the first and second mortgages ; and the wife became thus entitled to dower in the whole land. Wedge v. Moore, 6 Cush. 8. See also Young v. Tarbell, 37 Maine, 509 ; Smith v. Stanley, lb. 11; Hastings v. Stevens, 9 Foster, 564.] 212 Title VI. Dower. Ch. IV. s. 17—18. was not technically a release ; and the consideration or condition, apparent on the face of the instrument, not having been per- formed, it could not operate either as an estoppel or by way of rebutter. 1 ) [18. A legal term of years created before the title of dower attached, will, if assigned to a trustee for a purchaser, be a pro- tection against the dower of the vendor's wife, whose claim will be barred by a cesset executio during the term. The Court has even compelled the widow herself, in whom the term happened to vest by the death of the trustee, to assign the term to the pur- chaser's trustee, to the exclusion of her own dower. Thus, in Mole v. Smith, the freehold estate of Watson, a bankrupt, was sold by the assignees to Smith, who entered into possession under the contract, and afterwards filed his bill against the assignees, the bankrupt, and his wife, for specific 178 * * performance, and an assignment of three terms, which, upon the bankrupt's purchase, had been assigned to Yel- lowly to attend. The terms happened to vest in the bankrupt's wife as surviving administratrix of Yellowly. Upon the bank- rupt's death his widow claimed her dower, and insisted that she ought not to be compelled to assign the terms vested in her to a trustee for the purchaser as a protection against her dower. Sir Thomas Plumer, M. R., expressed considerable doubt whether the Court could compel her to assign the term. The cause came on again before Lord Eldon, C, on the 4th of April, 1822. The following were the reasons of his lordship's decision ; that the husband, before his bankruptcy and in his lifetime, might have compelled the administrator of Yellowly to assign the terms to a trustee for the purchaser ; that the purchaser would have been entitled to call for such assignment in order to protect himself from the claim of the wife's dower ; that the assignees for the benefit of the creditors were entitled as fully as the bankrupt himself; and that the widow, as administrator of Yellowly, could not make any use of the terms for her own benefit, which she i Hastings v. Dickinson, 7 Mass. 153 ; Gibson v. Gibson, 15 Mass. 106, 110; Vance v. Vance, 8 Shepl. 364. [Vincent v. Spooner, 2 Cush. 467. An agreement to receive a fixed sum of money annually in lieu of dower, does not bar a widow from claiming dower, if the sum be not paid. Sargent v. Roberts, 34 Maine, (4 Red. 135.) See. also, Furber v. Chamberlain, 9 Foster, N. H. 405.] Title VI. Dower. Ch. IV. 5. 18—21. 213 could not have compelled Yellowly himself to make. His lord- ship accordingly declared, that as the trustee, Yellowly (whom the bankrupt's widow represented) would, if living, have been compelled by the assignees to assign the terms to a trustee for the purchaser, in order to carry the contract into effect, the widow was also compellable to assign them, (a) But as between the widow and the heir and devisee of her husband, she will not be excluded by the term, which is as much attendant upon her dower, as upon the remaining interest in the inheritance, and she will be entitled to the benefit of it.] (b) 19. Every devise or bequest in a will imports a bounty ; and therefore cannot in general be averred to be given as a satisfac- tion for that to which the devisee is by law entitled. In con- sequence of this principle, a devise cannot be averred even in equity, to be in satisfaction, of dower, unless it is so expressed l in the will. 1. Because a devise implies a consideration in itself ; and cannot be averred to be for the use of any other person than the devisee, unless it is so expressed in the will ; no more can a devise be averred to be in satisfaction of dower, unless it is so expressed. 2. As all wills of land must be in writing, no * averment respecting the intention of a testator is admis- * 179 sible, which cannot be collected from the words of the will itself, (c) 20. A person being indebted, devised part of his lands to his wife, but did not mention it to be in bar of dower ; and devised the residue to his executors, till his debts were paid. The wife brought a writ of dower, and recovered her dower. The heir filed a bill in chancery against her, to be relieved. The Court said the devise was not to be looked upon as a recompense or bar of dower, but as a voluntary gift, (d) 21. If a husband devises lands to his wife during her widow- hood only, or restrains the devise in any other manner, so as to render it less beneficial than dower, a court of equity will not interfere; but the wife will be allowed to take both the thing devised, and also her dower. (a) 1 Jac. & Walk. 665. 1 Jac. 490. (6) Tit. 12. ch. 3. s. 44. Maundrell v. Maundrell, 7 Ves. 567. 10 Ves. 246. (c) 1 Inst. 36. b. Vernon's case, 4 Rep. 4. a. Tit. 38. c. 1. See also 3 & 4 Will. 4. c. 105. s. 9 10. supra, p. 161, note. Tit. 38. c. 9. (d) Hitchin v. Hitchin, Prec. in Cha. 133. i Or clearly implied. Birmingham v. Kirwan, 2 Sch. & Lefr. 444, 452 ; Hitchin v. Hitchin, Prec. Chan. 133. See farther on this subject, post, § 24, note. 214 Title VI. Dower. Ch. IV. s. 22—23. 22. W. Lawrence devised lands of the annual value of ,£130 to his wife, during her widowhood. After the determination of that estate, he devised the same premises, together with all his other lands, to trustees, for a term of twenty-four years, to com- mence from his decease, in trust for the payment of his debt and legacies. As a farther provision for his wife, he directed that after two years of the term were expired, his trustees should permit her to receive the rents and profits of another farm of <£90 per annum, for the remainder of the said term of twenty-four years, so long as she should continue a widow. The widow en- tered upon the lands devised to her, and afterwards brought a writ of dower, to which was pleaded the devise, with an aver- ment that the same was in satisfaction of her dower. Upon de- murrer to this plea, judgment was given for the demandant, (a) A bill was then exhibited in Chancery, to be relieved from this judgment ; and a perpetual injunction was at first decreed against the widow; but, on a rehearing, this decree was re- versed, (b) On an appeal from this last decree to the House of Lords, it was contended for the appellant, that it would be against the rules of natural equity and justice, if the respondent should be permitted to enjoy the estates devised to her by her husband's will, and at the same time disappoint his intention, by insisting on her dower; for which the lands devised were far from an equivalent. On the other side, it was said to be nowhere expressed, nor to be collected from the words of the will, that the lands devised to the respondent were for her jointure, or in bar of her dower; neither could it be so averred at law, or in a court of equity ; she having no estate for life, but for her widow- hood only. The decree of reversal was affirmed, (c) 23. A person devised lands to his wife for life, and devised other lands to his brother and his heirs. The wife entered into the lands devised to her, which were of more value than her dower ; she afterwards claimed dower of the rest, and had judg- ment. The brother brought his bill in Chancery to be relieved. The case of Lawrence and Lawrence was cited for the defend- ant, to prove that the wife should have dower, notwithstanding (a) Lawrence v. Lawrence, 1 Ld. Eaym. 438. 2 Freem. 234. 3 Bro. P. C. 483. (b) 2 Vera. 365. 1 At). Eq. 218. (c) 1 Bro. Pari. Ca. 591. Title VI. Bower. Ch. IV. s. 23—24. 215 a devise to her for life of lands by her husband ; unless declared to be in lieu and satisfaction of dower. Lord Parker said that this point had been determined in the House of Lords ; and dis- missed the bill, (a) 24. If it be said in the will that the devise is made in lieu and satisfaction of dower, or on condition that the wife shall not * claim dower ; then the wife cannot have both, for * 181 that would be repugnant to the intention of the testator. The wife must, therefore, in such a case make her election. (b)-\ l (a) Lemon v. Lemon, 8 V : n. Ab. 366. Incledon v. Northcote, 3 Atk. 430. (0) Leake v. RandaU, 4 Rep. 4. a. [tBut see Stat. 3 & 4 Will. 4, c. 105, s. 9, 10, 12.] 1 [A husband by will made certain provisions for his wife, declaring them to be " in lieu of her dower or other interest in my estate." And after making the will acquired other real estate. The widow having elected to accept the provisions of the will, was thereby barred of her dower in the after- acquired estates. Chapin v. Hill, 1 Rhode Island, 446.] In several of the United States, it is expressly enacted that a provision made for the wife by the will of her husband shall, in certain cases, bar her dower. As to the nature of the provision, by the laws of some States, any pecuniary provision is sufficient. See Maine, Rev. St. ch. 95, § 10—13; Massachusetts, Rev. St. ch. 60, § 8—11 ; Indiana, Rev. St. 1843, ch. 28, § 101 ; New York, Rev. St. Vol. II. p. 27, 3d ed.; Arkansas, Rev. St. 1837, ch. 52, § 9—23 ; LL. Maryland, Vol. I. p. 406, Dorsey's ed.; Tennessee, Stat. 1784, ch. 22, § 8; LL. North Carolina, Vol. I. p. 612; Alabama, Toulm. Dig. p. 258; Michigan, Rev. St. 1S38, p. 264 ; Illinois, Rev. St. 1839, p. 696 ; Mississippi, How. & Hut. Dig. p. 350 ; Connecticut, Rev. St. 1838, p. 189 ; Vermont, Rev. St. 1839, p. 51. In New Jersey, Elm. Dig. p. 145, and in Delaware, Rev. St. 1829, p. 168, and in Mis- souri, Rev. St. 1845, ch. 54, § 11, it is provided that any devise of lands shall have this effect. As to the intent of the testator, it is conceived that these statutes have not changed the rule of law, requiring evidence that the provision was intended in lieu of dower. In the laws of Vermont, Connecticut, New York, Arkansas, Indiana, Maine, Massachusetts, Virginia, and Kentucky, (1 LL. Ky. 575,) it is expressly required that the provision, to constitute a bar, must be made in " lieu of dower." But the method of ascertaining the intent is different, in different States. In some States, the provision, whatever it be, is taken to be intended in lieu of dower, "unless it be otherwise expressed in the will." Such is the law of Mississippi, How. & Hut. Dig. p. 350 ; and of Maryland, LL. Mary]. Vol. I. p. 406, Dorsey's ed. ; and of Delaware, Rev. St. 1829, p. 168 ; and of Illinois, Rev. St. 1839, p. 696 ; and of Arkansas, Rev. St. 1837, ch. 52, § 23. In these cases, the claim of the wife is prima facie barred by the bare fact that the requisite pro- vision is made ; and the burden is on her to take the case out of the operation of the rule. In the statutes of other States, the language is not quite as strong, the rule being that the wife shall not take both the devise or bequest and also her dower, " unless it appears by the will that the testator plainly so intended." See Maine, Rev. St. ch. '.).">. § 13 ; Massachusetts, Rev. St. ch. 60, § 11 ; Michigan, Rev. St. 1846, p. 269 ; Indiana, 216 Title VI. Dower. Ch. IV. s. 25. 25. A man devised the third part of his lands to his wife, in recompense of her dower. The wife entered on the lands de- Bey. St. 1843, ch. 28, § 101. In Virginia, where the conveyance of lands only, by deed or will, is permitted to defeat the right of dower, the husband's intention may either be shown by the deed or will, or be averred and .proved by parol. Tate's Dig. p. 176 ; Ambler v. Norton, 4 Hen. & Munf. 23 ; Herbert v. Wren, 7 Cranch, 377. As to the election of the wife to take the provision thus made for her, or to claim her dower, it is understood to be conceded to her in all the States ; restricted only in the time and manner of its exercise. In most of the States, a period is fixed by law, within which she must elect whether to accept the provision made in lieu of dower, or to insist upon her general right at law ; and failing to renounce the provision, in the manner prescribed, she is conclusively deemed to have accepted it. In Delaware, she must make her election on a day assigned in the particular case, by the Orphans' Court. Del. Rev. St. 1829, p. 168. In Connecticut, it must be done within two months after the time limited by the Probate Court for bringing in claims against the estate. In Maine, Massachusetts, New Jersey, North Carolina, Tennessee, Illinois, Maryland, and Mississippi, six months are allowed, computing from the time of the probate of the will. In Ver- mont, it is eight months ; and in Rhode Island, Alabama, and Missouri, it is twelve months, from the same period. In Indiana, Virginia, Arkansas, Michigan, and New York, one year is allowed, computing from the death of the husband. In the last three States, her election must be evinced either by entry on the lands to be assigned for her dower, or by commencing process for the recovery thereof. In Indiana, the lapse of the year is not conclusive, unless she also had knowledge of the provision made for her. Ind. Rev. St. 1843, ch. 28, § 102. [But if a widow accept a provision made for her by will, in lieu of dower, without full knowledge of the extent of such provision, and of her own legal rights, she may renounce the provision so made and claim dower, even after the lapse of years. United States v. Duncan, 4 McLean, 99 ; see also Sisk v. Smith, 1 Gilm. 514 ; and Tooke v. Hardeman, 7 Geo. 20. And this, notwithstanding the statute of Illinois declaring that any provision in a will bars dower, unless ex- pressed otherwise in the will, and unless the widow in six months renounces the provision.] For the particular exposition of these statutes the student is referred to the following cases :— In Pennsylvania, Evans v. Webb, 1 Yeates, 24 ; Sample v. Sample, 2 Yeates, 433; McCulloch v. Allen, 3 Yeates, 10: Creacraft v. Wions, Addis. 350; Duncan v. Duncan, 2 Yeates, 302 ; Hamilton v. Buckwalter, lb. 389 ; Allen v. Allen, 2 Pennsylv. 310; Cauffman v. Cauffman, 17 S. & R. 16; Webb v. Evans, 1 Binn. 565; [Ulp v. Campbell, 19 Penn. (7 Harris,) 361 ; Light v. Light, 21 lb. (9 Harris,) 407 ; Borland v. Nichols, 12 lb. (2 Jones,) 38.] In New York, Jackson v. Churchill, 7 Cowen, 287 ; Larrabee v. Van Alstyne, 1 Johns. 30 ; Kennedy v. Mills, 13 Wend. 553 ; Van Orden v. Van Orden, 10 Johns. 30. [In Maryland, Collins v. Carman. 5 Md. Ch. Dccis. 503.] In Massachusetts and Maine, Merrill v. Emery, 10 Pick. 507 ; Reed v. Dickerman, 12 Pick. 146 ; Perkins v. Little, 1 Greenl. 148 ; Thompson v. McGaw, 1 Met. 66. [Has- tings v. Clifford, 32 Maine, 132; Gowen, Appellant, 32 Maine, 516 ; Adams v. Adams, 5 Met. 277 ; Pratt v. Eelton, 4 Cush. 174.] See also, Leinaweaver v. Stoever, 1 Watts 6 Serg. 160; White v. White, 1 Harr. 202; Thompson v. Egbert, 2 Harr. 459; Da- vison v. Davison, 3 Green, 235 ; Pickett v. Peay, 3 Brev. 545 ; Green v. Green, 7 Port. 19; McLeod v. McDonnel, 6 Ala. R. 236; ex parte Moore, 7 How. Miss. R. 665; Boone v. Boone, 3 Har. & McH. 95 ; Ambler v. Norton, 4 Hen. & Munf. 23 ; Pettijohn v. Beasley, 1 Dev. & Batt. 254; [Jones v. Jones, Bus. (N. C) 177; Sisk v. Smith, 1 Gilm. 514.] Title VI. Dower. Ch. IV. s. 25—30. 217 vised to her; it was resolved that she was thereby barred of dower, (a) 26. A person devised his lands to his wife till P., his daughter, attained the age of nineteen, afterwards to P. in* tail, remainder over in fee. He devised further, that P. should pay, after her age of nineteen, £12 per annum to his wife in recompense of her dower ; if she failed of payment, that his wife should have the land for her life. The wife, before P. attained nineteen, brought a writ of dower, and recovered a third part ; after P. attained nineteen, the wife entered for non-payment of the £12. The question was whether her entry was lawful. It was adjudged, that the wife, having recovered a third part in dower, she should not have the rent ; as it was against the intention of the testator that she should have both ; that the acceptance of the one was a waiver of the other. And upon a writ of error this judgment was affirmed, (b) 27. A man devised his personal estate to trustees, in trust that his widow should receive thereout £100 a year during her life, in lieu and discharge of her dower. The wife received this annuity for many years, then brought a writ of dower. Decreed that the wife was barred of dower, as long as the personal estate was sufficient, (c) 28. With respect to the acts which will amount to an election, and the time within which they must take place, they will be stated hereafter, (d) 29. Notwithstanding the doctrine established in the case of Lawrence v. Lawrence, and jthe frequent recognition of it, de- vises have been sometimes deemed a satisfaction in equity for dower, on account of strong and special circumstances. As where allowing a widow to take a double provision, would be quite inconsistent with the dispositions of the will. 30. A person devised to his wife an annuity of £200 a year, to be issuing out of his lands, with the power of distress and * entry ; subject thereto, he devised his real estates to * 182 his daughter in strict settlement ; and directed all his per- sonal estate to be invested in land, and settled to the same uses, (e) (a) Bush's case, Dyer, 220. (6) Gosling v. Warburton, Cro. Eliz. 128. (c) Lesquire v. Lesquire, Finch. 134. (d) Tit. 38. c. 2. (e) Villa Keal v. Galway, 1 Bro. C. C. 292. note, Amb. 682. VOL. I. 19 218 Title VI. Bower. Ch. IV. s. 30—33. One of the questions in this case was, whether the wife was to take this annuity in satisfaction of her dower or not. (And Lord Camden was of opinion that the claim of dower would dis- appoint the will, and was inconsistent with it ; for it went to put the trustees put of possession of the portion of land claimed as dower, and also to diminish the annuity itself contrary to the in- tent of the testator, by taking away a part of the source from which it was derived. He, therefore, decreed that the widow must make her election.) (a) 31. There are, however, several modern cases, where a devise of an annuity to a wife, either entirely or partly charged on the estates of which she is dowable, together with the gift of those estates to another, or a devise of them to trustees, has been held not to be a satisfaction of dower, but the widow has been allowed to have both, (b) 32. A bequest of the residue of personal estate will not be con- sidered as a bar to dower. 33. A man, by his will, taking notice of his wife's title to dower, made a provision for her out of his personal estate by way of residue. This was insisted on to be an implication to bar dower. Lord Hardwicke rejected the idea ; because by the claim of dower, the wife did not break in on the will ; and this was the stronger as it was only a residue ; which accidental bene- fit he might intend she should have, as well as dower.f (c) (a) Jones v. Collier, Amb. 730. Wake v. Wake, 3 Bro. C. C. 255. 1 Ves. jun. 335. Pear- son v. Pearson, 1 Bro. C. C. 292. Boynton v. Boynton, id. 445. Miall v. Brain, 4 Mad. 119. (b) Foster v. Cook, 3 Bro. C. C. 347. French v. Davies, 2 Ves. jun. 572. Straban v. Sut- ton, 3 Ves. 249. Greatorex v. Carey, 6 Ves. 615. (c) Ayres V. Willis, 1 Ves. 230. See Stat. 3 & 4 Will. 4. c. 105. s. 9, 10, 12. [t It is now well settled that in order to deprive a widow of dower, by putting her to election between it and the provisions made by her husband's will, it must be shown that the testator meant to exclude her from it, as where there is an inconsistency be- tween her claim to dower and the testamentary disposition. A pecuniary legacy, personal annuity, or other benefit merely affecting the personal assets of the testator, without any declaration that it shall be in bar of dower, does not raise an implication of intention on the part of the testator to exclude the widow's legal right, because there is no inconsistency between it and the bequest. Strahan v. Sutton, 3 Ves. 249 ; Ayres v. Willis, 1 Ves. sen. 230. See Stat. 3 & 4 Will. 4, c. 105, s. 10. But where the testator devises lands, or rents out of lands, in which the wife is dow- able, a presumption arises from that circumstance, though not of itself sufficient, that the testator intended the testamentary gift should be in lieu of dower. Notwithstanding this, however, the intention may yet be doubtful, and if so the widow will not be put to Title VI. Bower. Ch. IV. s. 33. 219 her election. The following is a chronological list of the principal cases of de- vises of * real estate, subject to dower, wherein the intention to exclude the wife * 186 was held not sufficiently apparent. Lawrence v. Lawrence, 2 Vern. 365 ; Lemon v. Lemon. 8 Vin. Ab. Devise P. 366, pi. 45 ; Hitchen v. Hitchen, Pre. Chan. 133 ; French v. Davies, 2 Ves. jun. 572; Brown v. Parry, 2 Dick. 685 ; Strahan v. Sutton, 3 Ves. 249 ; Birmingham v. Kirwan, 2 Scho. & Lef. 444. See Stat. 3 & 4 \V. 4, c. 105, s. 9. The devise of the annual rents or charges out of estates wherein the widow is dowa- ble has been considered such an equivocal manifestation of the testator's intention, as not to exclude the widow's right to dower. The cases upon this subject are conflicting. They occurred in the following order : — Pitts v. Snowden, 1 Bro. C. C. 292, note ; Ar- nold v. Kempstead, 2 Eden, 236 ; Amb. 466, S. C. ; Villa Real v. Galway, Amb. 682 ; Jones v. Collier, Amb. 730; Pearson v. Pearson, 1 Bro. C. C. 292; "Wake v. Wake, 1 Ves. jun. 335 ; Foster v. Cook, 3 Bro. C. C. 347 ; Greatorex v. Cary, 6 Ves. 615. See Stat. 3 & 4 W. 4, c. 105, s. 9. Of these, Pitts v. Snowden, Pearson ». Pearson, Foster v. Cook, and Greatorex v. Cary, support the above proposition in favor of the widow's claim to both the dower and testamentary benefit. Arnold v. Kempstead is not to be reconciled with Pitts v. Snowden. Villa Real v. Galway, and Jones v. Collier, negatived the widow's claim upon the peculiar wording of the wills, and Wake v. Wake was decided by Buller, J., on the authority of Jones v. Collier, which is no authority for the general proposition that the annuity is of itself a sufficient bar to the wife's right. The following cases of devises of real estate are instances wherein the intention to exclude the widow has been held sufficiently apparent : — Gosling v. Warburton, Cro. Eliz. 128 ; Boynton v. Boynton, 1 Bro. C. C. 445 ; Birmingham v. Kirwan, 2 Scho. & Lef. 444; Chalmers v. Storil, 2 Ves. & Bea. 222; Roberts v. Smith, 1 Sim. & Stu. 513 ; Dickson v. Robinson, MS. Rolls, 30th April, 1822, stated 1 Roper, Husband and Wife, by Mr. Jacob, 580 ; Miall v. Brain, 4 Mad. 119 ; Butcher v. Kemp, 5 Mad. 61 ; Reynolds v. Torin, 1 Russ. 129 ; Roadley v. Dixon, 3 Russ. 192 ; and see Coleman v. Jones, 3 Russ. 312. Testamentary provision expressly given in lieu of dower and thirds out of the real and personal estate of the husband, will not preclude the widow from claiming her dis- tributive share of her husband's effects as next of kin. Sympson v. Hornsby, 11 Viner, 185 ; 2 Eq. Ca. Ab. 439 ; 2 Vern. 722, cited 3 Ves. 335 ; Pickering v. Lord Stamford, 2 Ves. jun. 272, 581 ; 3 lb. 332, 493. The subject of the above note is discussed, and the cases stated in detail, by the Ed- itor, in his edition of Roper's Legacies, Vol. II. p. 530 — 546.] 220 TITLE VII. JOINTURE. BOOKS OF REFERENCE UNDER THIS TITLE. Coke upon Littleton, fol. 36, b. Vernon's Case, 4 Co. 1. Flintoff on Real Property. Vol. II. Book I. ch. 3. Chambers on Estates, p. 106 — 110. Eoper on Husband and Wife. Vol. I. ch. 10, p. 460—524. Kent's Commentaries. Vol. IV. Lect. 55. Blackstone's Commentaries. Book II. ch. 8. CHAP. I. OF THE ORIGIN AND NATURE OF JOINTURES. CHAP. II. WHERE A JOINTRESS IS AIDED IN EQUITY. CHAP. III. WHAT WILL OPERATE AS A BAR OR SATISFACTION OF A JOINTURE. Sect. CHAP. I. OF THE ORIGIN AND NATURE OF JOINTURES. Sect. 26. \_Equitable Jointures.] 30. Who may limit a Jointure. 34. Who may take a Jointure. 1. Origin of Jointures. 5. Definition of. 6. Circumstances required. 7. Must commence on the Death of the Husband. 9. And be for the Life of the Wife. 12. Must be limited to the Wife herself. This Rule not admitted in Equity. It must be in Satisfaction of her whole Dower. And be so expressed or averred. And made before Marriage. 22. Jointures which require the Acceptance of the Wife. 25. Cases where the Widow takes the Estate and Dower. 13 17 18 21 35. An Infant is barred by a Jointure. 39. \_An Infant not bound by uncertain or precarious Jointure.] 40. Nature of this Estate. 41. [Jointress may not commit Waste. 44. Contribution of Jointress. 45. Jointress not entitled to Em- blements. 46. Not liable to Crown Debts.] AT. A Rent-charge is usually given as a Jointure. 48. Effect of the Eviction of a Jointure. Section 1. In consequence of two maxims of the common law^, First, that no right can be barred till it accrues ; and, secondly, Title VII. Jointure. Ch. I. s. 1 — 4. 221 that no right or title to an estate of freehold can be barred by a collateral * satisfaction ; it was found impossible to * 188 bar a woman of dower by any assurance of lands, either before or during the marriage. For a wife having acquired a right to be endowed of a third part of all her husband's lands at the moment of her marriage, this right, like all others, could only be extinguished by a release ; and no such release of the wife, either before or during the marriage, would be valid. For, if before the marriage, it was no bar, because at the time of mak- ing it, the woman had no title to dower ; and, therefore, a re- lease from her then would be no bar to a right which accrued to her after. If it was made during the marriage, it was abso- lutely void, the wife not being then sui juris ; and no estate lim- ited to the wife, during the marriage, could bar her of dower, because no right or title to a freehold estate can be barred by a collateral satisfaction, (a) 2. It followed that every woman became entitled, upon her marriage, to one third of all her husband's real estates, however small her fortune might be. Such an inequality induced many persons to convey their lands to uses, a widow not being dowable of a use ; and when this practice became general, it was usual on all marriages for the parents of the lady to procure the in- tended husband to take an estate from his feoffees to uses, and to limit it to himself and his intended wife for their lives, in joint tenancy or jointure, lest the wife should be totally unprovided for at the death of her husband, (b) 3. When the Statute of Uses transferred the legal estate to those who were entitled to the use of the lands, all women then married would have become dowable of such lands as had been held to the use of their husbands ; and would also be entitled to any particular lands that were settled on them in jointure. But as this would have been a manifest wrong, the following clause was inserted in the Statute of Uses : (c) 4. " Whereas divers persons have purchased or have estate made and conveyed of and in divers lands, tenements, and hered- itaments, unto them and to their wives, and to the heirs of the husband ; or to the husband and to the wife, and to the heirs of their two bodies begotten, or to the heirs of one of their bodies (a) Vernon's case, 4 Eep. 1. Gilb. Uses, 147. Tit. 32. c. G. {b) 3 Rep. 58. b. 4 Rep. 1. b. (c) Tit. 11. c. 3. 19* 222 Title VII. Jointure. Ch. I. s. 4—7. begotten ; or to the husband and to the wife, for term of their lives, or for term of life of the said wife ; or where any such estate or purchase of any lands, &c, hath been or hereafter shall be made to any husband and to his wife, in manner and 189 * form above * expressed ; or to any other person or persons, and to their heirs and assigns, to the use and behoof of the said husband and wife, or to the use of the wife, as is before rehearsed for the jointure of the wife ; that then, and in every such case, every woman married having such jointure made, or hereafter to be made, shall not claim nor have title to have any dower of the residue of the lands, &c, that at any time were her said husband's, by whom she hath any such jointure ; nor shall demand nor claim her dower, of and against them that have the lands and inheritances of her said husband. But if she have no such jointure, then she shall be admitted and enabled to pursue, have, and demand her dower, by writ of dower, after the due course and order of the common laws of the realm." 1 (a) 5. This statute has given rise to the modern jointure, which Lord Coke defines to be " a competent livelihood of freehold for the wife, of lands or tenements, &c, to take effect presently, in possession or profit, after the decease of her husband, for the life of the wife at the least, if she herself be not the cause of its de- termination or forfeiture." (b) 6. As this statute contradicts the common law, it has always been construed strictly ; and Lord Coke has laid it down, that no estate limited to a woman shall be deemed a good jointure, and a bar to dower, under this act, unless it is attended with the following circumstances. 7. And first it must commence and take effect, in possession or profit, immediately on the death of the husband; for otherwise it will not be so beneficial as dower. If therefore, an estate is conveyed to the husband for life, re- mainder to J. S. for life, remainder to the wife for life, in satis- faction of dower, this is not a jointure within the statute ; because by the first limitation it is not to take effect in possession or (a) St. 27 Hen. 8. c. 10. s. 6. (6) 1 Inst. 37. a. (Vance v. Vance, 8 Shepl. 364.) 1 The provisions of this statute seem to have been substantially adopted in most of the United States in which the common law of dower prevails. See post, § 38, note (1.) 4 Kent, Comm. 56. note a. Title VII. Jointure. Ch. I. s. 7 12. 223 profit, presently after the death of her husband. And although in this ease J. S. should die in the lifetime of the husband, still it would be no bar to dower, (a) 8. So where a person covenanted to stand seised to the use of himself in tail, remainder to the use of his wife for life. This was held not to be a jointure, because it was to begin after the determination of an estate tail. And though the estate deter- mined by the death of the husband, without issue, so that the wife's estate began immediately upon the death of her husband, * yet as it was not a good jointure at the be- * 190 ginning, whatever happened afterwards could not make it good. (6) 9. The second circumstance is that it be for the wife's life, or for some greater estate. So that if an estate be limited to a woman, for the life or lives of one or more persons, or for a hundred, or a thousand years, if she lives so long, it is not a jointure. But although the statute recites five modes of limiting an estate in jointure, yet these are only mentioned as examples ; and do not exclude any other estate consistent with the inten- tion of the act. (c) 10. Thus in the Duchess of Somerset's case, 1 Mary, it was resolved by all the judges, that an estate limited to a man and his wife, and to the heirs male of their two bodies begotten, was a good jointure within the statute, though not one of the estates mentioned in it. And in Vernon's case it was held, that an estate limited to the husband for life, remainder to the wife for life, was a good jointure ; though not one of the estates men- tioned in the statute ; because it was equally beneficial, (d) 11. It is said in Brooke's Abridgment that an estate, limited to a husband and wife and their heirs, is not a jointure within the statute, because it is not one of the estates mentioned in it. But Dyer contradicts this position, and proves that it would be a good jointure, the words of the act being, " for term of life or otherwise in jointure," which word " otherwise " extended to all other estates conveyed to the wife, which were as beneficial, or more, as the estates mentioned, (e) 12. The third circumstance is, that the estate must be limited (a) 1 Inst. 36. b. 4 Rep. 2. a. (b) Wood v. Shirley, Cro. Jac. 488. Caruthers v. Caruthers, 4 Bro. C. C. 500. 5 Ves. 192. (c) 1 Inst. 36. b. (d) Dyer, 97. b. 4 Rep. 2. a. (e) Bro. Abr. Tit. Dower, 69. Dyer, 248. a. 4 Rep. 3. b. 224 Title VII. Jointure. Ch. I. s. 12—15. to the wife herself, and not to any other person in trust for her. So that it was formerly held that if an estate was made to others in fee simple, or for the life of the wife, in trust, so as the estate remained in them, though for her benefit, and by her assent, yet at law it was no bar to dower. 1 (a) 13. Mr. Hargrave has observed on this passage, that though this may be true at law, yet it is now settled that a trust estate being equally certain and beneficial, as what is required at law, or even an agreement to settle lands as a jointure, is a good equitable jointure, and will be a bar to dower. 14. Thus, it was determined by the House of Lords, that a covenant from the intended husband that his heirs, executors, or administrators, would pay an annuity to his in- 191* * tended wife, for her life, in case she survived him, in full for her jointure, and in bar of her dower, without expressing that it should be charged upon lands, was a good equitable jointure, within the statute. Lord Hardwicke answered the objection of its being in the husband's power to have defeated this agreement, and sold or given away his whole estate, by Lord Letchmere's and other cases, where the agreement rested, as here, upon the husband's covenant. And further, by observing that such an alienation would have been an eviction of the fund out of which the jointure" was to arise, and consequently let the wife into dower. To another objection, that the husband had not bound himself to do any act, but only that his heirs, execu- tors, and administrators, should pay, &c, he answered, that the wife might, the day after the marriage, have brought a bill, by her next friend, and compelled the husband himself to settle the annuity, (b) 15. By indenture made previous to a marriage, the intended husband and wife assigned leasehold estates for years belonging to each of them to trustees, in trust to permit the husband to receive the rents for life, and after his decease to permit the wife to receive the rents for her life, in full for her jointure, and in bar («) 1 Inst. 36. b. (b) Bucks v. Drury, 3 Bro. P. C. 492, infra, p. 195. Jordan v. Savage, 2 Eq. Ca. Ab. 101, infra. 9 Mod. 219. 4 Bro. C. C. 506. n. Ca. temp. Talbot, 80. 1 A jointure by conveyance to another to the wife's use, is made good by statute in Missouri. Eev. St. 1845, ch. 54, § 12. Title VII. Jointure. Ch. I. s. 15 — 19. 225 of dower. The Court of Chancery held this to be a good equi- table jointure, (a) 16. In the case of Tinney v. Tinney, 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 join- ture, (b) 17. The fourth circumstance is, that it be made in satisfaction of the wife's whole dower, and not of a part of it only ; for land conveyed to a woman in part of her jointure, or in satisfaction of part of her dower, is no bar, on account of the uncertainty, (c) 18. The fifth circumstance is, that the estate limited to the wife be expressed, or averred to be, in satisfaction of her whole dower. [And it ought to be so expressed in the instrument settling it; or it must appear by necessary implication from the * contents of the instrument.! 1 But since the *192 Statute of Frauds, it appears somewhat doubtful whether an averment can be admitted that the provision made for a wife, previous to marriage, was intended as a jointure, and in bar of dower, (d) 19. On a bill brought for dower, the defendant, the heir at law, insisted that the husband in his lifetime gave a bond in the penalty of <£1000, in trust to secure to his wife £500, in case she survived ; that it was intended at the time in lieu of dower ; that she acknowledged it to be so, and offered to read evidence of her acknowledgment. Lord Hardwicke was of opinion that parol evidence could not be allowed in this case, being within («) Williams r. Chitty, 3 Ves.jun. 545. (6) 3 Atk. 8. Estcourt v. Estcourt, 1 Cox, B. 20. Corbet v. Corbet, Sim. & Stu. 612. 5 Euss. 254. (c) 1 Inst. 36. b. {d) 9 Mod< 152 , [t See Caruthers v. Caruthers, 4 Bio. C C. 500. See also Garthshore v. Chalic, 10 Ves. 1, 20.] 1 Or, be fairly collected from the circumstances. Walker v. Walker, 1 Vcs. sen. 53, and Belt's Suppt. 43, and cases there cited. And see 2 Eden, 60. 226 Title VII. Jointure. Ch. I. s. 19—22. the Statute of Frauds ; and that a general provision for a wife was not a bar of dower, unless expressed to be so. That in the case of Vizard v. Longdate,. 5 Geo. I, Sir Joseph Jekyll held the words in a bond, to secure a sum of money for a woman's liveli- hood and maintenance, was no bar of dower; but that Lord Chancellor King was of opinion it was a bar of dower, being within the equity of the Statute of Henry VIII. of jointures, and, therefore, reversed the decree, (a) 20. It is, however, observable, that there is nothing in the Statute of Frauds excluding averments ; and it is generally under- stood, that whatever averments might have been made before that statute, may be made since. Now in Vernon's case, and an anonymous case, Owen 33, it was averred that the estate limited to the wife, was for her jointure, and in bar of dower ; and the averment was allowed, (b) 21. The sixth circumstance is, that it be made before marriage. For it is enacted by the ninth section of the statute, that if any wife have any manors, &c, assured to her after marriage, for term of life or otherwise, in jointure, except the same be made by act of parliament, the wife shall at her liberty, after the death of her husband, refuse the jointure, and demand her dower, (c) 22. A jointure, attended with all the circumstances above stated, is binding on the widow, and a complete bar to her claim of dower; or rather prevents her title to dower from ever arising. 1 But there are other estates limited to a wife, which are good jointures within the statute, provided she accepts of 193 * them * after the death of her husband; though she is at liberty to reject them, and to claim her dower. Thus an estate settled on the wife after marriage may, by the express words of the statute, be rejected by the widow after her husband's death ; in which case she may claim her dower. But if she once accepts of such jointure, she is thereby bound, (d) (a) Tinney v. Tinney, 3 Atk. 8. Tit. 32. c. 20. Walker v. Walker, 1 Ves. 54. Couch v. Stratton, 4 Ves. jun. 391. (b) Infra, s. 25. (c) 1 Inst. 36. a. 4 Rep. 3. a. (Vance v. Vance, 8 Shepl. 364.) (d) (Hastings v. Dickinson, 7 Mass. 153.) 1 It is not essential to this end, that the land should be free of incumbrance; for if the incumbrance is paid off, the jointure remains good; and if the wife is evicted she may claim her dower. Ambler v. Norton, 4 Har. & McH. 23. See post, § 48. Title VII. Jointure. Ch. I. s. 23—25. 227 23. An estate for life, limited to a woman for her jointure, upon condition to perform her husband's will, or which is deter- minable by a second marriage, is a jointure within the statute ; provided the wife accepts of it, after the death of her husband. 1 24. In a writ of dower, the tenant pleaded that the husband of the demandant was also seised of lands in the same county, which he had conveyed to the use of himself for life, remainder to his wife for life ; and averred that the estate for life so limited to the demandant was for her jointure, and in full satisfaction of her dower ; and that after the death of her husband she had en- tered into the lands so limited to her for her jointure, and agreed to it. The demandant replied, and confessed the conveyance by which she took an estate for life ; but said that the estate was upon condition that she should perform her husband's will ; and demanded judgment if the tenant should be admitted to aver that this estate so limited to the wife, upon the said condition, was for the jointure of the wife, and in satisfaction of her dower ; upon which the tenant demurred in law. It was resolved, that although the estate limited to the wife was upon condition ; and although dower, in lieu of which the jointure was given, was an absolute estate for life ; yet, inasmuch as an estate for life upon condition was an estate for life, it was within the words and intent of the act, if the wife, after the death of the husband, accepted it; therefore she was barred of her dower. It was also said, that an estate limited to a woman during her widow- hood for her jointure, was good within the statute, if she accepted it. (a) 25. It appears from the preceding cases, that there are two sorts of jointures within the statute. One which prevents the title to dower from ever arising ; another which, when accepted, but not before, becomes a bar to dower. Thus in Vernon's case it was said, that if the estate there limited to the wife was not within the statute, then it was no bar to dower ; but the de- mandant should have both. And Lord Coke says, that where the estate limited to the wife does not take effect immediately (a) Vernon's case, 4 Rep. 1. Dyer, 317. a. 1 So, a base freehold, as, durante viduitatc, if accepted by a wife of full age, is a bar of dower. Aliter, if she be an infant. McCarty v. Teller, 2 Paige, 511. See farther, on this point, post, § 38, note. 228 Title VII. Jointure. Ch. I. s. 25—30. 194* * on the death of the husband, in which case it is not within the statute, the widow shall take such estate, and dower also, (a) 26. [As legal jointures, made before marriage, if the woman be of age, will be binding after the husband's death, so also will equitable jointures so made. And as at law a jointure made after marriage, will not be obligatory upon the widow, after her hus- band's death, but will depend for its validity upon her accept- ance, so neither, under similar circumstances, will equitable jointures be binding upon her, but require her confirmation. 27. A legal jointure, as before noticed, must commence in possession and profit immediately after the husband's decease ; but an equitable jointure, made before marriage, the wife being a party to the deed and adult, will be equally binding upon her, though she thereby accept a more uncertain or disadvantageous provision ; for by that agreement she will be absolutely barred of her common-law right.f And notwithstanding the provision be not secured upon freehold estate ;$ and although the jointure rest only on covenant.^ 28. But if the provision be made after marriage, an equitable, as well as a legal jointure, may be accepted or rejected by the widow, after her husband's death. But there is this distinction ; if the provision be not a legal jointure within the act, the widow is not at law put to her election, but will be entitled to both provisions ; in equity, however the rule is otherwise, for in every such case the widow is obliged to make her election between the equitable jointure and her legal right, (b) 195 * * 29. It is not necessary that the provision in bar of dower should be expressly stated to be in bar of dower ; it will be sufficient if it can be collected from the instrument that such was the intention.] [| 30. It is not necessary that the estate limited as a jointure should proceed immediately from the husband ; for if it comes (a) 4 Rep. 2. b. 1 Inst. 36. b. (6) Caruthers v. Carutliers, 4 Bro. C. C. 513. [t Carutliers v. Caruthers, 4 Bro. C. C. 513.] [J Rose v. Reynolds, 1 Swan. 446; Vizard v. Longden, cited 2 Eden, 66; Lacy v. Anderson, 1 Swan. 445 ; Gladstone v. Ripley, cited 2 Eden, 59, 60-] [ § Sidney v. Sidney, 3 P. Wms. 269.] [ || Vizard v. Longdale, cited 3 Atk. 8 ; 1 Ves. sen. 55 ; 2 Eden, 60 ; Walker v. Walker, Belt. Supp. to Ves. sen. p. 43, and cases there cited.] Title VII. Jointure. Ch. I. s. 30—36. 229 through the medium of trustees, or of the demandant in a com- mon recovery, it will be good. 31. A bargained and sold lands to I S and I N to make them tenants in theprcecipc, for the purpose of suffering a com- mon recovery, which was duly had, to the use of A and his wife, for her jointure. Resolved, that this was an assurance by A himself, for the advancement of his wife, (a) 32. If the estate proceeds from the father of the husband it will be good. 33. The father of the husband, in pursuance of articles, en- feoffed trustees before the marriage to the use of the intended wife for life ; the question was, whether this was a good jointure, it not being made by the husband, nor of his lands. Held a good jointure, (b) 34. As a jointure is an estate limited to a woman in lieu and satisfaction of dower, it follows that all those who are capable of being endovied may take a jointure. 35. It was formerly much doubted whether a jointure, settled on an • infant, before marriage, was a bar to dower. But it has been solemnly determined in the following case, by the House of Lords, with the concurrence of a majority of the judges, that such a jointure is good, and that the infant cannot waive it after her husband's death, and claim dower. 1 36. Sir Thomas Drury, previous to his marriage with Martha Tyrrell, who was then an infant, by indenture made between the said Sir Thomas Drury of the first part, the said Martha Tyrrell of the second part, and two trustees of the third part, agreed that the said Martha Tyrrell, in case the marriage took place, and she survived her intended husband, should have and enjoy an annuity (a) Bridge's case, Moor, 718. (b) Ashton's case, Dyer, 228. .Melle's case, cited 4 Co. 4. 1 By the statute of Ohio, Kev. St. 1841, ch. 42, § 2, and of Missouri, Rev. St. 1845, ch. 54, § 13, if the jointure, or other estate conveyed in liejj of dower, was made while the woman was an infant, or after marriage, she may waive it after the husband's death, and claim her dower. So is also the law of Rhode Island, Rev. St. 1S44, p. 191; and of Kentucky, Rev. St. Vol. I. p. 575, 576; and of Virginia, Tate's Dig. p. 176, 177. In Maine, no jointure will prevent the claim of dower, unless it was made before the marriage, and with the consent of the wife, expressed in the deed. Maine Rev. St. ch. 95, §10; Vance v. Vance, 8 Shepl. 364. Such also is the law in Massachusetts, New York, Indiana, and Arkansas. See post, § 38; note (1.) vol. i. 20 230 Title VII. Jointure. Ch. I. s. 36. of £600 during her life, for and in the name of her jointure ; and that the same should be accepted and taken by her in full satis- faction and bar of her dower; and Sir Thomas Drury 196 * covenanted *\vith the trustees to pay the said annuity of £600. This deed was executed by Sir Thomas Drury and Miss Tyrrell, in the presence of her guardian, who was a subscribing witness to it; and the marriage was soon after solemnized, with the privity and consent of the guardian. Miss Tyrrell was only entitled to a portion of £2000. Sir Thomas Drury died intestate, being seised in fee of a considerable real estate, leaving two daughters. Lady Drury, upon the death of her husband, insisted that, as she was an infant at the time of executing the aforesaid indenture, and at the lime of the solemni- zation of her marriage, she was not bound to accept of the pro- vision thereby made for her, but was entitled to dower. The two daughters of Sir Thomas Drury filed a bill in Chancery against Lady Drury, praying that she might be restrained from claiming dower. The cause was heard before Lord Chancellor Henley, who decreed that Lady Drury was entitled to dower, (a) On an appeal to the House of Lords, after hearing counsel, the following question was put to the judges : — " Whether a woman married under the age of twenty-one years, having before such marriage a jointure made to her, in bar of her dower, is thereby bound, and barred of dower within the Statute 27 Hen. VIII. c. 10 ? " ! («) Earl of Bucks v. Drury, 3 Bro. Pari. Ca. 492. i On this case, Mr. Roper observes as follows : — " The argument on this point ulti- mately depended, in a great measure, upon the question whether the agreement of the wife to a legal jointure made before marriage was necessary, to make it binding upon her, under the statute. It is not required that the wife should concur in the settlement by which the jointure is made, (see 1 Cruise, Dig. 228 ;) and it is not iu terms required that she should assent to it. But from the provisions of the statute as to settlements made after marriage, it is clear that it was not intended to enable the husband by his own act to impose on the wife in lieu of her dower any jointure which he might think fit. The legislature seems to have assumed that all antenuptial jointures must be settled by agreement of the parties, and there seems some reason for contending that without such agreement the jointure would not in strictness be within the act, as by the common law the estate conveyed to the wife, by way of jointure, would not be effectu- ally vested in her, without an actual or presumed acceptance on her part. If it was made with her privity, her marrying with notice of it, would of course be an acceptance of the settlement and conclusive evidence of her agreeing to it. Estcourt v. Estcourt. 1 Cox, 20. But if it was made without her privity, she had the power of disagreeing Title VII. Jointure. Ch. I. s. 36. 231 Mr. Baron Gould, Lord Chief Baron Parker, and Lord Chief Justice Pratt, delivered their opinions in the negative. But the rest of the judges, — namely, Mr. Justice Wilmot, Mr. Justice Bathurst, Mr. Baron Adams, and Mr. Baron Smythe, delivered their opinions in the affirmative. Lord Hardwicke and Lord Mansfield also delivered their opinions in the affirmative, where- upon the decree was reversed, [a) (a) Vide Sir E. Wilmot's Notes, 177. to the estate conveyed to her, as soon as she became sui juris, and was apprised of the fact. Her disagreement would render the conveyance void, and it would seem that a jointure thus prevented from taking effect, would not bar her right of dower under the statute. It was, however, determined that a legal jointure was to be considered, not as a compensation for dower agreed for by the wife, but merely as a provision conferred upon her. and that it was not founded on any idea of contract; and hence it followed that in the case of the wife being an infant, no objection arose from her incapacity to contract. See 2 Eden, 62, 72. " Mr. Justice Wilmot, in his judgment, entered fully into the discussion of this ques- tion. He observed that the bar to the right of dower did not arise from the agreement of the woman to a jointure made before marriage, but from the energy and force of the act of parliament substantiating the settlement against her for this particular purpose. Wilmot's Opinions, p. 194. He thought that the meaning of the legislature with respect to women then married, was, that those who had settlements made before their marriages should acquiesce under those settlements, and abide by the provisions thereby made for them, whether they were great or small, adequate or inadequate, whether they had been made by the agreement of themselves or their friends, or had been the mere spontaneous act of the husband or his ancestors, — p. 202. The objection that the hus- band might before marriage settle an inadequate jointure on the wife without her assent or knowledge, for the purpose of depriving her of dower, did not, as he observed, apply to cases of jointures made before the statute, as a fraud of that description could not then have been contemplated. But in cases subsequent to the statute, he thought that such jointures would be void en the ground of fraud; that the fraud might be pleaded at law, and that the fairness and competency would be a question to be decided by a jury, taking into consideration all the circumstances of the transaction. 'A pocket jointure,' he added, ' made upon a woman, without her privity, or upon an infant with her privity, but without the interposition of parents or guardians, would be such an evidence of fraud as would be sufficient to condemn it.' " "Lord Hardwicke considered that, though the statute spoke only of jointures out of freehold estates, yet that a fair and certain provision out of any other species of prop- erty would be a good equitable jointure, and consequently a bar of dower. At the date of the statute, freehold estate in land was the kind of property chiefly regarded, and the statute, therefore, applied to that only. But many other species of property had since grown up, by new improvements, commerce, and from the funds. Equity had, there- fore, held that when such provisions had been made before marriage out of any of these, the wife should be bound ; and he instanced particularly settlements of trust estates, copyholds, and money in the funds. And he held that such provisions, when settled on infants with the consent of parents or guardians, were equally binding as when settled on adults. 2 Eden, 65, 66." See Roper on Husband and Wife, Vol. I. p. 477— 480, notes* Williams v. Chitty, 3 Ves. 545. 232 Title VII. Jointure. Ch. I. s. 37—39. 37. The principle upon which this case was determined is that a jointure being a provisione viri, and not ex contractu, the consent of the intended wife is not a circumstance required by the statute, to render a jointure valid. Lord Mansfield, in deliv- ering his opinion in the House of Lords, on this case, said that a jointure was not a contract for a provision, but a provision made by the husband, as defined by Lord Coke ; so the consequences drawn from the infant's incapacity of contracting were ill- founded. It is, therefore, now held that the intended wife need not be a party to the deed by which the jointure is limited. And in an opinion of the late Mr. Fearne's, he says, " I discover nothing in the Statute 27 Hen. VIII. of jointures, that requires the wife being a party to the deed which secures her jointure ; and some of the cases said to be within that statute seem rather against such a conclusion." (a) 200* *38. It is, however, necessary, I conceive, that the intended wife, or, where she is under age, that her guar- dians f should have notice of the jointure limited to her ; for otherwise she may be defrauded by the settlement of a jointure inadequate to her rank and fortune ; in which case there can be no doubt but that she would be relieved in equity, (b) 1 39. [If the interest in the property settled by way of jointure, (a) 4 Bro. C. C. 50C. n. 2 Eden, GO. (Caruthers v. Caruthers, 4 Bro. C. C. 500. Mo.Car- tee v. Teller, 2 Paige, 511.) Jordan v. Savage, ante, 2 Ab. Eq. 101. (6) Estcourt v. Estcourt, 1 Cox, E. 20. 3 Atk. 612. [t It docs not appear that the concurrence of guardians is indispensable if the jointure be in other respects free from legal objections. Earl of Bucks v. Drury, ubi supra. See, also, Drury v. Drury, Co. Lit. 36, b. note 7 ; Williams v. Chitty, 3 Ves. 545—551.] 1 The subject of jointures has been regulated by statute, in several of the United States. Thus, in Massachusetts, a jointure, in the sense of the common law, or any pecuniary provision, made before marriage, in lieu of dower, is an effectual bar of the claim of dower ; but to this end it must, in either case, have the consent of the wife, expressed, if she is of full age, by her becoming party to the deed, and if under age, by her joining with her father or guardian in the conveyance. Massachusetts, Rev. St. ch. 60, § 8, 9. And see Hastings v. Dickinson, 7 Mass. 153. [Vincent v. Spooner, 2 Cush. 4G7, 473.] Such is also the law of New York, Rev. St. Vol. II. p. 27, 3d ed. ; McCartee v. Teller, 2 Paige, 559 ; and of Arkansas, Rev. St. 1837, ch. 52, § 9, 10, 11 ; and of Indiana, Rev. St. 1843, ch. 28, § 96, 97, 98; and of Maine, Rev. St. ch. 95, § 10, 11. If such settlement is made without her consent, or after marriage, it will still be binding, unless she expresses her dissent within a certain period after her husband's death, limited in the statutes ; which, in Massachusetts, Maine, and New York, is six months, and in Arkansas, is one year. In Connecticut and Delaware, any cstfcte, real or Title VII. Jointure. Ch. I. s. 39—42. 233 or the amount of the property itself, be uncertain or precarious, of course the infant will wo£ be bound, as under such circum- stances the jointure would not be binding upon an adult.] f 40. We have seen that an estate in fee, in tail, or for life, may be limited to a woman for her jointure. In case of a limitation in fee, I conceive that a jointress would have full power to dis- pose of it as she pleased. But where an estate tail is limited to a woman for her jointure, she is prohibited by the Statutes 11 Hen. VII. c. 20,$ and 32 Hen. VIII. c. 36, from alienating or creating a discontinuance of it by feoffment, fine, or re- covery, (a) 41. Where lands are limited to a woman for her life, by way of jointure, she is not allowed to commit waste ; and will be restrained from it by the Court of Chancery, in the same manner as other tenants for life. (6) 42. On a motion to stay a jointress, tenant in tail after possi- bility, &c, from committing waste, the Court held, that as she was a jointress within the Statute 11 Hen. VII. she ought to be restrained, being part of the inheritance, which by the statute («) Tit. 36. c. 10. (5) Bassett v. Bassett, Finch. 189, Tit. 3. c. 2. personal, received by antenuptial agreement in satisfaction of the claim of dower, is a bar to such claim, if the wife were of age at the time of the settlement. Conn. Rev St. 1838, p. 190, and Rev. St. 1821, tit. 26, § 5 ; Andrews v. Andrews, 8 Conn. Rep. 79 ; Delaware, Rev. St. 1829, p. 165. In Rhode Island and Kentucky, the conveyance of any estate, real or personal, to the wife, whether by deed or will, in lieu of dower, to take effect immediately on the death of the husband, either for her life, or in fee, determinable by such acts only as would work a forfeiture of dower at common law, will bar her right of dower. But if the con- veyance is made before marriage, and the wife is then an infant, or if it is made during coverture, she may waive it, and claim her dower. R. Island, Rev. St. 1844, p. -191 : Kentucky, Rev. St. Vol. I. p. 575, 576. A similar provision exists in the statute of Virginia, 1785, ch. 65, Tate's Dig. p. 176, 177; except that by the omission of the words " real or personal," it would seem restricted to real estate alone. In Pennsylva- nia, as Chancellor Kent remarks, it is left as a doubtful question, whether the settle- ment of personal estate would be sufficient to bar dower, and be held equivalent to a jointure. But the case of Drury v. Drury, holding that an infant's dower may be barred by jointure, seems, however, to be assumed as the settled law. Shaw v. Boyd. 5 S. & R. 309. See 4 Kent, Comm. 56, note a. [t Caruthers v. Caruthers, 4 Bro. C. C. 500; Smith v. Smith, 5 Ves. 189 : Corbet v. Corbet, 1 Sim. & Stu. 612 ; 5 Russ. 254.] [t The above Statute, 11 Hen. VII. c. 20, is repealed, (except as to lands in settle- ments before the 2Sth August, 1833,) by the recent statute for abolishing fines and recoveries, 3 & 4 Will. 4, c. 74, s. 16, 17.] 20* 234 Title VII. Jointure. Ch. I. s. 42—48. she is prevented from alienating ; and, therefore, granted an in- junction against wilful waste, (a) 43. Where there is a covenant that a jointure shall be of a certain yearly value, though the estate be not limited without impeachment of waste, yet the Court of Chancery will not restrain the jointress from committing waste, so far as to make up the defect of the jointure, (b) 201 * *44. Where the jointress and the issue claim under the same settlement, they shall contribute proportionably in the discharge of any prior incumbrance on the estate, (c) 45. A jointress is not entitled to the crops sown at the time of her husband's death ; because a jointure is not a continuance of the estate of the husband, like dower, (d) 46. It appears from a passage in Jenkins,! that an estate limited to a woman by way of jointure is not liable to debts due to the crown. 47. The inconveniences attending a limitation of land by way of jointure are so numerous, that it has long become a general practice to limit a rent charge to the intended wife, for her life, as a jointure, to commence on the death of the husband, with powers of distress and entry, and a term for years, for further securing the payment of it, which has been found by experience to be much more convenient both to the widow and to the heir ; as a more certain income is thereby provided for the former, and the latter continues in the possession and management of the whole estate. 48. There is a proviso in the Statute 27 Hen. VIII. c. 10, s. 7, " That if any such woman be lawfully expulsed or evicted from her said jointure, or from any part thereof, without any fraud or covin, by lawful entry, or by discontinuance of her hus- band, then every such woman shall be endowed of as much of the residue of her husband's tenements or hereditaments, whereof she was before dowable, as the same lands and tenements so evicted and expulsed shall amount or extend unto." (e) ] («) Cook 17. Windford, 1 Ab. Eq. 221. (b) Carew r. Carew, 1 Ab. Eq. 221. (c) Carpenter v. Carpenter, 1 Vern. 440. (d) Fisher v. Forbes, 9 Vin. Ab. 373. (e) (Ambler v. Weston, 4 H. & Munf. 23.) [ t Page, 226.] 1 This provision, with the general features of this statute, on the subject of jointures, Title VIL Jointure. Ch. I. s. 49—54. 235 49. A person, in consideration of a marriage before had, cove- nanted to stand seised to the use of himself and wife, during their natural lives, and the life of the longest liver. The lands were evicted during the life of the husband ; it was held that the eviction during the coverture was sufficient to entitle the wife to a recompense, though she had accepted the residue of the jointure after the death of her husband, (a) 50. A jointure was settled before marriage ; the husband, during the coverture, purchased other lands, sold them again, and died. The jointure lands were evicted; held, that the wife should have dower of«the lands which were purchased, and aliened by her husband, at the time when she was barred of her action for dower, (b) *51. [This right of the widow upon eviction is the same, *202 whether the jointure is before or after marriage, (c) 52. The effect of eviction is to remit her to her dower pro tanto ; if the value of the dower be greater than that of the jointure, she can recover only the amount of the latter ; and if the jointure be greater, she can only recover to the amount of her dower ; and she will only be entitled to hold the lands recovered during life, though the jointure might have been settled in fee or in tail, (d) 53. But if the jointure were settled before marriage, and the wife, being adult, relinquishes her dower ; in case of eviction she would, in equity, be precluded from claiming it against a purchaser of other lands of the husband not charged with the jointure, (e) 54. The consequences of eviction of equitable jointure seem to be the same as if it were legal. The widow also in case of eviction may avail herself of any remedies she may have against her husband's assets by covenant or otherwise.] (/) (a) Gervoye's case, Moo. 717. (b) Maunsfield's case, 1 Inst. 33 a. n. 8. (i) Gervoye's case, supra, 1 Vera. 427. Beard v. Nutthall, 1 Vera. 427. (d) 1 Sim. & Stu. 620. 1 Vera. 427. 3 Bro. C. C. 489. 1 Ves. jun. 451. 4 Co. 3. b. (e) Simpson v. Gutteridge, 1 Mad. 609. (/) 2 Eden, 68. 3 Bro. C. C. 489. 1 Ves. jun. 452. Beard v. Nutthall, ubi supra. is believed to have been adopted in most, if not all, of the United States, where the common-law doctrine of dower is recognized. But whether this particular provision is in force in New York, is thought by Chancellor Kent to be doubtful. Sec 4 Kent, Comm. 56, note a. [Bliss v. Sheldon, 7 Barb. Sup. Ct. 152.] 236 CHAP. II. WHERE A JOINTRESS IS AIDED IN EQUITY. Sect. 1. A Jointress is- deemed a Pur- chaser. 4. Though the Settlement be un- equal. 7. Relieved against a voluntary Conveyance. 8. [_Not against a bona fide Pur- chaser without Notice. 9. Relieved ivhere a Poicer to Jointure defectively exer- cised.'] Skct. 10. And against a satisfied # Term. 11. Not bound by Neglect dur- ing the Coverture. 14. Not to deliver Title Deeds. 1 7. Sometimes allowed Interest for Arrears. 18. Effect of a Covenant that the Lands are of a cer- tain Value. Section 1. A jointress is considered in equity as a purchaser for valuable consideration, even though she brought her husband no fortune ; marriage alone being deemed a valuable considera- tion, from which it follows that a jointress is entitled to the aid and assistance of a Court of Equity ; so that wherever there appears to have been an agreement to settle a jointure, a specific performance of it will be decreed. 2. A man agreed, by articles, to settle certain lands before marriage, on his intended wife, for her jointure. The marriage took effect, but the husband died before any settlement was made ; the wife brought her bill for an execution of the articles. It was contended, that as the agreement was to make a settle- ment before marriage, and as the plaintiff married without re- quiring such settlement, it amounted to a waiver of the articles, and a release in law ; an execution of them was, however, de- creed, (a) 3. Lord Hardwicke has said, that in marriage contracts, where the fortune of the wife is paid to the father,' or to clear 204 * incumbrances, * or to the son, and the father and son are (a) Hayner v. Hayner, 1 Vent. 343. Coventry v. Coventry, 2 P. Wras. 222. Title VII. Jointure. Ch. II. s. 3—6. 237 parties to the marriage contract, the wife has a lien upon both the estate of the father, and that of the son. (a) 4. Although a settlement be very unequal, and much in favor of the wife, yet a Court of Equity will not relieve against it ; be- cause it cannot put the wife into her former situation. 5. A, upon treaty of marriage with M, the daughter of B, was to settle .£500 a year upon her, and to have .£5000 portion. But B, insisting that if A should die without issue, his daughter should have the inheritance of the jointure, that was refused. Afterwards A renewed the treaty himself, accepted of articles for payment of £5000, and settled a jointure of £500 a year. He likewise made another deed in the nature of a mortgage of all his estate, as well the reversion of the jointure, as the rest, for securing the payment of £5000 to her, in case A died without issue. A died in a fortnight after the marriage, without issue. M, by bill, prayed a foreclosure of the mortgage. The defend- ants, though they exhibited their bill for relief against this as a fraud, were decreed to pay the £5000 without interest, (b) Upon an appeal to the House of Lords, it was argued that A was a sickly and weak man ; that the agreement was unreason- able ; that A, on his death-bed, declared he had made no such agreement, and that M, being present, did not contradict it. To which it was answered, that all bargains were not to be set aside, because not such as the wisest people would make ; but there must be fraud to make their acts void. That the marriage was of itself a good consideration for a jointure ; and reasonable or un- reasonable was not always the question in equity, if each party was acquainted with the whole, and meant what they did ; much less was it sufficient to say that it was unreasonable, as it hap- pened in event. For if at the time it was a tolerable bargain ; nay, if at the time, the bargain was the meaning of the parties, and each knew what was done, and there was no deceit upon either, it must stand. The decree was affirmed. 6. A person brought a bill to be relieved against a jointure, made previous to, and in consideration of marriage, by a tenant for life, in pursuance of a power, he being then upon his death- bed. Lord Parker, assisted by Lord Chief Justice Pratt and the Master of the Rolls, denied relief, (c) (a) 1 Atk. 440. (/,) Whitfield v. Taylor, Show. Pari. Ca. 20. (<) Wicherly v. Wicherly, 2 P. Wins. Gil'. Prime v. Stebbing, infra, c. 3. s. 10. 238 Title VII. Jointure. Ch. II. s. 7—10. 205 * * 7. A jointress will be relieved in equity, as also at law, against a prior voluntary conveyance ; 1 because, as has been already stated, she is considered as a purchaser for a valu- able consideration. And by a statute which will be stated in a subsequent title, all voluntary conveyances are declared fraudu- lent and void as against such purchasers, (a) 8. [But equity will not decree the performance of an agree- ment to settle a jointure upon the wife against a bond fide pur- chaser for a valuable consideration, without notice ; because he has equal equity with herself, and has obtained the legal interest in the estate, (b) * 9. Where a power to jointure is defectively executed, Courts of Equity will relieve the jointress, by supplying the defects in the execution ; and it is immaterial whether the intent to execute the power be by letter, memorandum, will, articles, or covenant. \ But if the intent to execute the power be uncertain, Courts of Equity will not interfere ; since evidence of such intention is as necessary in the defective, as it is in the regular execution of a power.] (c) 10. A Court of Equity will also set aside a satisfied term for (a) Tit. 32. c. 28. s. 2. (6) 2 Vera. 271, 599. 2 P. Wms. 681. 1 Atk. 571. 2 Bro. C. C. 66. (c) Jackson v. Jackson, 4 Bra. C. C. 462. Elliot v. Hele, 1 Vera. 406. 2 Ch. Ca. 28, 29, 1 In the United States, this doctrine is essentially modified, it being now held, as the better doctrine, that the title of a prior voluntary grantee is good, in the absence of fraud, against a subsequent purchaser for valuable consideration, with notice of the prior conveyance. See 4 Kent, Comm. 463, 464, and cases there cited; 1 Story, Eq. Jar. § 424-435; Cathcart v. Robinson, 5 Pet. 280 ; Ricker w. Ham, 14 Mass. 137, 139 ; Jackson v. Town, 4 Cowen, 603 ; Sterry v. Arden, 1 Johns. Ch. 261 ; Hudnal v. Wilder, 4 McCord, 294. But it is the settled American law that a subsequent pur- chaser, who acquires his title in good faith and for a valuable consideration, without notice, is protected under the Statutes of 13 &27 Eliz., which have been adopted as part of our common law, whether he purchases from a fraudulent grantor or a fraudulent grantee ; and that there is no difference, in this respect, between a conveyance to de- fraud subsequent creditors, and one to defraud subsequent purchasers. But notice of the prior voluntary conveyance affects the subsequent purchaser with bad faith, and vitiates his title. And where the purchaser knows that the purpose of the grantor is to defraud creditors or others, the title of the purchaser is void as against them, even though he pays a full valuable consideration. 4 Kent, Comm. 464; Edgall v. Lowell, 4 Verm. R. 405. [t Toilet v. Toilet, 2 P. Wms. 490; Sergeson v. Sealey, 2 Atk. 415; Wade v. Paget, 1 Bro. C. C. 363, 2 Ball & B. 44 ; Coventry v. Coventry, 2 P. Wms. 222 ; Ver- non v. Vernon, Amb. 1.] Title VII. Jointure. Ch. II. s. 10—14. 239 years in favor of a jointress, though it will not do so in favor of a dowress, the reason of which will be stated in a subsequent title, (a) 11. The neglect of a married woman during coverture will not affect her rights; and a Court of Equity will, notwithstanding, assist her, in case her jointure proves deficient. 12. The plaintiff's husband, after marriage, entered into a voluntary bond to settle a jointure; and accordingly settled lands, upon which the bond was delivered up. The husband died, and the jointress was evicted. It was resolved that the jointure should be made good out of the personal estate, unless the plaintiff recovered dower ; for this agreement, though volun- tary, ought to be decreed by the Court. And the delivery up of the bond by a feme covert could in no way bind her interest. (6) 13. A person made a settlement on his son for life, remainder to his first and other sons in tail, with power to appoint any of *the lands, not exceeding £100 a year, to any *206 wife he should marry, for a jointure. The father died, the son married, and after marriage, appointed certain lands to trustees, in trust for his wife, for a jointure ; and covenanted, that if they were not of the value of £100 a year, he would, upon request made to him any time during his life, make them up out of the other lands. The husband lived several years ; no complaint was made that the lands were not of that value, nor any request to make it up. On a bill brought by the widow to have the jointure made up £100, Lord Keeper Wright said, that a provision for a wife, or children, was not to be considered as a voluntary covenant ; and, therefore, decreed the deficiency to be made up, notwithstanding the wife's neglect in not request- ing it during the coverture ; for the laches of a feme covert could not be imputed to her. (c) 14. If a bill is brought by an heir at law, or any other person, against a jointress, whereby the party would avoid the jointure, under pretence that his ancestor had not a sufficient title to make it ; and seeks a discovery of deeds and writings, whereby he would avoid the title of the jointress ; he will not be allowed to have such discovery, though the jointure be made after marriage, (n) Tit. 12. c. 3. s. 39, &c. (I) Beard v. Nutthall, 1 Vera. 427. (c) Fothergill v. Fothergill, 1 Ab. Eq. 222. 240 Title VII. Jointure. Ch. II. s. 14—19. unless he by his bill submits to confirm the title of the jointress ; and then he shall, (a) 15. On a motion that all deeds, leases, and writings, relating to the inheritance, should be delivered up, on confirming a joint- ure ; it was opposed as to the leases, because without them the jointress could not recover the rents ; and though the leases should be expired, there might be arrears of rent, and covenants. The Court ordered all deeds and writings, and expired leases, to be delivered up ; unless particular reasons were shown to the contrary, (b) 16. The Court of Chancery will not oblige a widow to produce the deed under which she claims her jointure, on the bare offer of confirming it ; but it must be absolutely confirmed, (c) 17. Interest is not in general allowed for arrears of a jointure ; but the Court will expect a special case to be made for that pur- pose.! (d) 207 * * 18. If a husband covenants that the lands limited in jointure are of a certain yearly value, and they afterwards prove deficient, the covenant will be decreed to be performed in specie. And although such a covenant be inserted in articles only, and not in the settlement made in pursuance of them, yet it will be considered as subsisting in equity. 19. A jointress brought her bill to have an account of the real and personal estate of her late husband ; and to have satisfaction for a defect of value of her jointure lands ; which he had cove- nanted to be, and to continue, of a certain yearly value. The defendant insisted that this was a covenant which sounded only in damages, and was, therefore, properly determinable at law. Though it was admitted that a Court of Equity cannot regularly assess damages, yet it was determined that in this case a Master might properly inquire into the amount of the defect, and report it to the Court, which might send it to be tried at law, upon a quantum damnificat. (e) (a) Towers v. Davys, 1 Vern. 479. Supra, p. 107, and note. (b) Lomax v. -, Sel. Ca. in Cha. 4. (c) Leech v. Trollop, 2 Ves. 662. (d) Anon. 2 Ves. 261. See 2 Ves. jun. 167. Tew v. Winterton, 1 Ves. jun. 451. (e) Hedges i\ Everard, 1 Ab. Eq. 18. [t See Lord Kedesdale's observations upon this subject, in Anderson v. Dwyer, 1 Scho. & Lef. 303.] Title VII. Jointure. Ch. II. s. 20—21. 241 20. Where lands, settled for a jointure, are covenanted to be of a certain clear yearly value, and after the death of the husband they prove deficient, the jointress is entitled to have the deficiency made good, out of the. other lands ; and to come in as a specialty creditor, upon the husband's estate, for the arrears of the defi- ciency, with interest, (a) 21. Where, in marriage articles, the lands agreed to be limited in jointure are expressed, but not covenanted, to be of a certain yearly value, and afterwards prove deficient ; this amounts to an agreement that they were of that value ; and is a sufficient foun- dation for making up the deficiency. (Z>) (a) Parker r. Harvey, 2 Ab. Eq. 241. 4 Bro. Pari. Ca. 604. Eustace v. Keightley, 4 Pro. Pari. Ca. 588. (6) Glegg v. Glegg, 2 Ab. Eq. 27. 4 Bro. Pari. Ca. 614. Probert v. Morgan, 1 Atk. 440. VOL. I. 21 242 CHAP. III. WHAT WILL OPERATE AS A BAR OR SATISFACTION OF A JOINTURE. Sect. 1. Fine or Recovery by the Wife. 3. Not barred by Attainder of the Husband. • 4. Nor by Elopement of the Wife. 7. A Deviseisno Bar to Jointure. Sect. 12. Unless so expressed, when the Widow has an Election. 14. A Devise sometimes held a Satisfaction. Section 1. "Where a jointure is settled on a woman before marriage, pursuant to the statute, it so far resembles dower, that it cannot be defeated by the alienation of the husband alone, or be charged with any incumbrances created by him, after the marriage. But if a wife joined with her husband in levying a fine, or suffering a common recovery, of the lands settled on her as her jointure, or out of which the jointure was to issue, she would be thereby barred of such jointure, upon the same principle as that by which a fine or recovery would bar her of dower. f (a) 2. If the jointure, whereof the wife levied a fine or suffered a recovery, were made before marriage, the wife would then be barred, not only of the jointure, but also of her claim to dower. But if the jointure were made after marriage, a fine or recovery .by the husband and wife, of such jointure, would not bar the wife of her right to dower. For in the first case, the jointure having been made before marriage was not waivable ; whereas, in the second case, it was waivable, and the time of her election came not till after the death of her husband ; so that she might claim her dower in the rest of his lands, (b) 209 * * 3. A jointure is in several cases more favored in law than dower ; for although the husband commit treason or felony, yet his widow will be entitled to her jointure. But if («) Tit. 6. c. 4. s. 13. (b) 1 Inst. 37. a. Dyer, 358. b. Ante, c. 1. [t Fines and recoveries are abolished by Stat. 3 & 4 W. 4, c. 74. This act does not extend to Ireland, except where expressly mentioned.] Title VII. Jointure. Ch. III. s. 3—6. 243 the widow be attainted of either of these crimes, she will lose her jointure, (a) 4. A jointure is not barred or forfeited by the elopement of the wife from her husband, and her living in adultery, nor will these acts even preclude her from obtaining relief in equity. 1 (b) 5. A woman brought a bill against her husband, for a specific performance of her marriage articles, whereby he had agreed that a jointure should be settled on her. The defendant answered that the plaintiff had withdrawn herself from him, lived separ- ately, and very much misbehaved herself. It was proved that the plaintiff did elope from her husband and went with another man to a cottage about three miles from her husband's house ; since which there had been no pretence of a reconciliation. So that this was a bar of dower at common law ; therefore equity ought not to assist such a woman. Lord Talbot observed, that the fact of adultery was not put in issue, the accusation being only general and uncertain. But the articles being that the husband should settle such and such lands in certainty upon his wife, for her jointure, this was pretty much in the nature of an actual and vested jointure ; as what was covenanted for a good consideration to be done, was in most respects considered in equity as actually done; consequently this was a jointure, and not forfeitable, either for adultery or elopement. The reason why a wife forfeited her dower by an elopement with an adul- terer, and yet the husband did not, by leaving his wife, and living with another woman, forfeit his estate by the curtesy, was, because the Statute of Westminster 2, does, by express words, create a forfeiture in the one case, and not in the other. Decreed that the husband should perform the articles, (c) 6. In a modern case, where a bill was filed by trustees, pray- ing a performance of marriage articles, the husband resisted, so far as the articles made a provision for the wife ; alleging and proving that she lived separate from him, in adultery. Lord Thurlow was of the opinion that this was not a reason for non- (a) 1 Inst. 37. a. And see Stat. 54. G. 3. c. 145. (b) (4 Kent, Comm. 54, 55.) (c) Sidney v. Sidney, 3 P. Wms. 269. (4 Kent, Comm. 56.) Tit. 6. c. 4. s. 4— 9. 1 In some of the United States, it is expressly enacted that a jointure, devise, or other provision in lieu of dower, shall be forfeited by any cause which would be a for- feiture of the dower at common law. See N. York, Rev. St. Vol. II. p. 27, 3d ed. Arkansas, Rev. St. ch. 52, $ 15. Indiana, Rev. St. 1843, ch. 28, § 103. 244 Title VII. Jointure. Chap. III. s. 6—9. performance of the articles, as to the wife. Decreed accord- ingly, (a) 210 * * 7. The principles laid down in the preceding title as to the effect of devises in barring dower, have been adopted with respect to jointures. So that a general devise of other lands, or of personal property, by a husband to his wife, would not [before the late statute for amending the law of dower] operate as a bar to a jointure, settled on the wife, either before or after marriage.f (b) 8. A man, on his marriage, gave a bond to a trustee in the penalty of £4000, conditioned that if he, at any time within four months, should settle and assure on his wife freehold lands of the yearly value of £100, then the bond to be void. 214 * The * husband soon after the marriage made his will, devising thereby freehold and copyhold lands, lying inter- mixed in Norfolk, to his loving wife and their heirs ; and died within four months after her marriage, (c) Master of the Rolls, — " As money and lands are things of a different nature, the one shall not be taken in satisfaction of the other. Whatever is given by a will is prima facie to be intended a bounty and benevolence ; and it is remarkable that in the present case the devise is to his loving wife, which is a term of affection. The devise of such of the land as is copyhold can- not possibly be towards satisfaction of the £100 per annum, which was to be freehold ; nay, supposing the whole £88 per annum were freehold, it would not go towards satisfaction of the £100 per annum ; not being so expressed. And supposing there were assets to pay all the bond debts, and likewise the charges laid by the will on the land, in such case the £88 per annum should be enjoyed as a bounty and benevolence." 9. A father and son, upon the marriage of the son, covenanted that the lands settled on the son's wife, for her jointure, were worth £300 per annum. The son gave by his will a legacy of £1000 to his wife. On a bill brought by the wife to have a de- (a) Blount v. Winter, cited 3 P. Wms. 277. See also Seagrave*?. Seagrave, 13 Ves. 439*443. (b) Tit. G. c. 4: s. 19, 33, and note (b.) Grove v. Hook, 4 Bro. Pari. Ca. 593. (c) Eastwood v. Vincke, 2 P. Wms. CI 3. [t But as regards dower in respect of devises of real estate to the widow, the law is now altered. See Stat. 3 & 4 Will. 4, c. 105, s. 9, 10, supra, p. 161, note.] Title VII. Jointure. Ch. III. s. 9—11. 245 ficiency in her jointure supplied out of the assets of her husband and of his father, and also for the legacy of £1000, Lord Hard- wicke held that the legacy of .£1000 given by the will ought not to be considered in this case as a satisfaction for the deficiency of her jointure, because that did not arise till after his death, and, therefore, could not at the time be in his consideration ; and as the jointure lands were covenanted by the marriage settlement to be worth so much, clear of all reprises, the testator plainly intended the £1000 as a bounty for her. (a) 10. John Sheppard having by his marriage articles covenanted that the lands settled on his wife were of the annual value of £1600 above all incumbrances, made his will in these words : — " I do hereby ratify and confirm my marriage articles ; and I do also give to my wife the lands in A B for life." The wife and her second husband brought a bill to have a deficiency in her jointure lands supplied, winch was not disputed ; but it was in- sisted that the lands devised should be taken instead thereof. (Lord Hardwicke, upon consideration of the whole will, was of opinion that the testator did not intend to give the lands in A B as a satisfaction of what the wife was in strictness of law entitled to, under the articles ; but clearly as an accumulated bounty. He, therefore, directed an inquiry into the deficiency of the joint- ure, and decreed it to be made good out of the estate.) (b) 11. Sir B. Broughton, by articles previous to and in consider- ation of his marriage with Miss Hill, covenanted that in consider- ation of the said marriage, and of £10,000, her marriage portion, he would convey certain lands in the county of Chester to trustees, to the use of himself for life, and to secure an annuity of £1000 to Miss Hill for her jointure, and in bar of dower; remainder to his first and other sons in tail ; remainder to his own right heirs. The marriage took effect, and Sir B. Brough- ton received the £10,000 portion; but no settlement was ever executed pursuant to the articles. Sir B. Broughton having sold a large estate in Lincolnshire for £27,000, and having con- tracted for the purchase of several considerable estates in Hamp- shire, by his will gave to Lady Broughton a leasehold house in London, in which he resided, with all the furniture thereof; and also devised to her and her heirs all the estates in Hampshire for (a) Probert v. Morgan and Clifford, 1 Atk. 440. (b) Prime v. Stebbing, 2 Ves. 409. 21* 246 Title VII. Jointure. Ch. III. s. 11—13. the purchase of which he had contracted, or in lieu thereof the whole money arising from the sale of his estates in Lincolnshire. He then devised his estates in Cheshire, which were liable to the jointure, to trustees, to the intent that C. Shrimpton should receive thereout an annuity of X20, and subject thereto, 217* to the *use of Sir Thomas Broughton, his heir at law, for life, remainder to his first and other sons in tail male, remainder over. Upon the death of Sir B. Broughton, Lady Broughton entered on the estate thus devised to her ; and the heir at law having refused to pay her jointure, she filed a bill, praying a specific execution of her marriage articles, so far as related to her joint- ure ; to which the heir at law put in his answer insisting that what was given by the will to Lady Broughton, was in satisfac- tion for what she was entitled to under the articles ; and that she could not have both provisions. The cause w~as heard before Lord Bathurst, who decreed that Lady Broughton was entitled to have her jointure agreeable to the articles. And on appeal, this decree was affirmed, (a) f 220 * * 12. But where a freehold estate was devised to a woman expressly for her jointure, and in bar and satis- faction of a jointure settled on her, either before or after mar- riage ; in such case the widow could not have both, for that would contradict the will ; but she must make her election. 13. Robert Pitt, by articles in consideration of marriage, agreed to lay out £ 10,000 in the purchase of land, to be settled to the use of the plaintiff Harriet, his intended wife, for her life, for her jointure. The marriage took place ; afterwards, the father of R. Pitt gave him an estate for life, with power to grant a rent charge of <£400 a year to any woman he should marry, for her jointure. In pursuance of this power, Robert Pitt granted a rent charge of <£400 a year to his wife, to commence after his decease, in satisfaction of part of her jointure. Three days after, he con- veyed a leasehold estate of £200 a year in trust for his wife; (a) Broughton V. Errington, 7 Bro. Pari. Ca. 4G1. [ t Upon the subject of performance and satisfaction of the husband's covenant to settle lands in jointure, see a more detailed discussion in Eoper's Husband and Wife. Vol. I. p. 509, Jacobs's ed.] Title VII. Jointure. Ch. III. 5. 13—17. 247 and by his will he confirmed the grant of the rent charge, and the conveyance of the leasehold settled on his wife, by way of addition or augmentation, and in full compensation of her joint- ure. It was held, that this was a satisfaction of the jointure provided by the articles, according to the intention of Robert Pitt ; that the plaintiff should make her election, whether to have the rent charge of £400 and the leasehold, or the £10,000 laid out in lands, (a) 14. Although a devise be not expressly mentioned to be in bar of a jointure, yet if it should appear, from any circumstances in the ivill, to have been the intention of the testator that such devise was meant as a satisfaction for the jointure ; a Court of Equity would, I presume, reason by analogy from the cases in which a devise has been held a satisfaction for dower, and com- pel the jointress to make her election, (b) 15. There is one case where there was a deficiency in a joint- ure, and the husband having devised lands to the jointress for her life, and also a sum of money, such devise and bequest were held to be a satisfaction for the deficiency of the jointure.' 16. Lord Montague, on the marriage of his son Francis, settled estates to the use of the lady for her life, for her jointure ; the lands so settled were covenanted to be of the yearly value of £1000. After the death of Lord Montague, the honor and estate descended to Francis, who devised other lands of about £500 a year to his wife for her life, together with a legacy of *£500, and part of his household goods ; after- * 221 wards Francis, Lord M., being minded to make some further provision for his lady, revoked the uses of some part of his estates, and limited the same to trustees, in trust, to raise £10,000 for her. By a codicil he devised to her an annuity of £500 a year during her life. Upon his death his widow brought her bill in Chancery, to have a deficiency in her jointure made up. Lord Cowper declared that the legacies, which were admitted to be of greater value than the deficiency in the jointure, ought to be taken in satisfaction of the breach of covenant, (c) 17. It is observable that this case was prior to that of Prime v. Stebbing, and is not reconcilable to it. The decree appears (a) Grandison v. Pitt, 2 Ab. Eq. 392. (b) Tit. C. c. 4. s. 29. (c) Montague V. Maxwell, 4 Bro. Pari. Ca. 598. 2 Ab. Eq. 421. 248 Title VII. Jointure. Ch. III. s. 17. to have been made upon the ground that Francis, Lord M., was a very weak man, and under the influence of his wife. For upon an appeal to the House of Lords, it was ordered that the Court of Chancery should direct an issue to try whether Lord M. was sane at the time of the execution of the codicil ; and a verdict was found that he was not of sound mind then.f (a) (a) Ante, s. 10. [ t Upon the subject of satisfaction of debts by testamentary benefits, see the Editor's edition of Roper's Legacies, 1828, Vol. II. ch. 17, s. 1, 2.] 249 TITLE VIII. ESTATE FOR YEARS. BOOKS OF REFERENCE UNDER THIS TITLE. Coke upon Littleton, 43. b. — 54. b. Woodf all's Law of Landlord and Tenant. (Wollaston's edition.) Comyn's Law of Landlord and Tenant. (Chilton's edition.) Smythe's Law of Landlord and Tenant, in Ireland. Kent's Commentaries. Vol. IV. Lect. 56. Blackstone's Commentaries. Book II. ch. 9. Flintoff on Real Property. Vol. II. Book I. ch. 3. Dane's Abridgment, ch. 133. Bacon's Abridgment. Tit. Leases and Terms for Years. This article is a Treatise, written by Ch. Baron Gilbert. Gibbons on Fixtures, in 13 Law Library. [Taylor's American Law of Landlord and Tenant, 2d edition.] CHAP. I. ORIGIN AND NATURE OF ESTATES FOR YEARS. CHAP. II. INCIDENTS TO ESTATES FOR YEARS. CHAP. I. ORIGIN AND NATURE OF ESTATES FOR YEARS. Sect. 1. Estates less than Freehold. 2. Origin of Estates for Years. 3. Description of. 9. Introduction of long Terms. 1 0. Tenant for Years has no Seisin. 12. But must make an Entry. 15. An Entry before the Lease begins is a Disseisin. t Section 1. Having treated of the different freehold estates, we now come to consider of those estates or interests in land Sect. 18. Estates for Years may com- mence in future 19. And be assigned before Entry. 22. May determine by Proviso. 23. Are Chattels Real. 24. And vest in Executors. 34. A Freehold cannot be derived from a Term. 250 Title VIII. Estate for Years. Ch. I. s. 1—5. that are less than freehold ; of which there are four sorts : — 1. Estates for years. 2. Estates at will. 3. Tenancies from year to year. 4. Estates at sufferance. 2. It has been stated that, after the Conquest, the demesnes of the lords of manors were generally cultivated by their villeins to whom small portions of lands were allotted for their sup- 223* port and maintenance, to be held at the mere will of *the lord. But as to those persons whose condition was free, it became customary to grant them lands for a certain number of years, to be held in consideration of a return of corn, hay, or other portion of their crops ; by which they acquired a certain interest in their lands, though much inferior to an estate of freehold. Thus Bracton says, — Poterit enim quis terram alicui concedere ad terminum annorum, et Me eandem, infra terminum ilium, alteri dare. And a tenant for years was called Firma- rius. (a) 3. This estate is thus described by] Littleton : — " Tenant for term of years is, where a man letteth lands or tenements to an- other for term of certain years, after the number of years that is accorded between the lessor and the lessee, and the lessee enter- eth by force of the lease ; then is he tenant for years." And if an agreement be made for the possession of lands for half a year, or a quarter, or any less time, the lessee is considered as tenant for years, 1 and is so styled in all legal proceedings ; a year being the shortest period of which the law will in this case take no- tice. (6) 2 4. Where an estate is limited to a person for twenty-one years, ■if J. S. shall so long- live, it is an estate for years only; not an estate for the life of J. S., because there is a fixed period, beyond which it cannot last, (c) 5. Where a person devises lands to his executors for payment of his debts, or until his debts are paid ; the executors only take an estate for so many years as are necessary to raise the sum (a) Ante, Dissert, c. 3. s. 52, 53. Bract. 27. a. (b) Litt. s. 58, 67. (c) 1 Inst. 45. b. (Post, § 34.) 1 Because the whole usufruct is in him ; but if the land is let on shares, for a single season, the possession is not changed. 4 Kent, Comm. 95. 2 As to the manner of making leases, and the persons competent to make them, see post, Vol. IV. tit. 32, ch. 5. Title VIII. Estate for Years. Ch. I. s. 5—9. 251 required. (For if it were held an estate for their lives only, and they should die before the debts were paid, the creditors would have no remedy.) It is the same where an estate is devised till such time as a particular sum shall be raised out of the rents and profits thereof, (a) 6. Lord Coke says, an estate for years is frequently called a term, terminus, which signifies not only the period of time for which it is to continue, but also the estate and interest that passes for that period. And every estate or term for years must have a certain beginning, and a certain end, which must be ascertained at the time when the estate is created, either by the express limitation of the parties, or by a reference to some col- lateral act, which may, with equal certainty, measure its contin- uance. (6) 7. There is a tenure between the lessor and his lessee for years, to which fealty is incident ; and also a privity of estate between them, (c) * 8. Notwithstanding the permanent interest of tenants * 224 for years, yet their possession was esteemed of so little consequence that they were rather considered as the bailiffs or servants of the lord, than as having any estate in the land. Their interests might be defeated by a recovery in a real action ; because the recoveror was supposed to come in by a title para- mount, therefore not bound by the contracts of the prior posses- sor. This was altered by the Statute of Gloucester, 6 Edw. I., and the Statute 21 Hen. VIII., by which tenants for years are enabled to falsify recoveries had by collusion, (d) 9. While estates for years might be defeated by a recovery, it is no wonder that they were usually very short ; and Lord Coke, upon the authority of the Mirror, says, that by the ancient law no lease was allowed for more than forty years ; because a longer possession, especially when given without livery, declar- ing the nature and duration of the estate created, might tend to defeat the inheritance. But Sir W. Blackstone observes, that this law, if it ever existed, was soon antiquated ; for, in Madox's collection of ancient charters, there are some leases (a) 1 Inst. 42. a. 8 Rep. 96. a. Corbet's case, 4 Rep. 81. b. 1 P. Wms. 509, 518. 2 Vern. 403. 5 East, 102. (J) 1 Inst. 45. b. (Evans v. Vaughan, 4 B. & C. 261.) Tit. 32. c. 5. (c) Lit. s. 132. (c7) Gilb. Ten. 34. 1 Inst. 40. a. Tit. 30. c. 11. 252 Title VIII. Estate for Years. Ch. I. s. 9—11. for years of an early date, which considerably exceed that period ; and that terms for three hundred and a thousand years were certainly in use in the time of Edw. III., and probably in that of Edw. I. And it appears certain that after the statutes by which terms for years were protected from the operation of feigned recoveries, long terms were frequently created for the purpose of defrauding the lord's right of wardship, relief, and other feudal incidents. And in modern times, they have been still more extensively introduced in mortgages and family settle- ments, (a) 1 10. A tenant for years is not said to be seised of the lands, the possession not being given to him by the ceremony of livery of seisin. Nor does the mere delivery of a lease for years vest any estate in the lessee, but only gives him a right of entry on the land ; when he has actually entered, the estate becomes vested in him, and he is then possessed, not properly of the land, but of the term for years ; the seisin of the freehold still remain- ing in the lessor. And it has been stated that the possession of a lessee* for years is considered as the possession of a person entitled to the freehold, (b) 225 * * 11. The distinction between the possession of a tenant for years, and the seisin of the freehold, was fully estab- lished in Bracton's time, who says, that if a person first creates a (a) 1 Inst. 45. b. 2 Bl. Comm. 142. Ante, s. 8. (b) Lit. s. 59. 1 Inst. 200. b. Tit. 1. 1 Leases for long terms, as, for example, 2000 years, are not regarded in England as leases, in the ordinary sense, but as terms to attend the inheritance. Denn v. Barnard, Cowp. 595, 597; 4 Kent, Comm. 86. But in the United States they are treated altogether as personal estate, and are administered accordingly, as other chat- tels. Gay, ex parte, 5 Mass. 419; Montague v. Smith, 13 Mass. 396; Chapman v. Gray, 15 Mass. 439; Brewster v. Hill, 1 N. Hamp. 350; 4 Kent, Comm. 93. In Massachusetts, however, lands held by lease for the term of one hundred years or more, have all the attributes of real estate, so long as fifty years of the term remain unex- pired, so far as regards the devise and descent thereof, dower, sales by executors, ad- ministrators, and guardians, by license of Court, levying of executions thereon, and redemption, whether after levy or mortgage. Rev. Stat. 1836, ch. 60, § 18. In Ohio, permanent leaseholds, renewable forever, are in all respects deemed real estate. Rev. Stat. 1841, p. 289. In Vermont, lessees for years in possession, on a rent reserved cer- tain, of whose term fifty years or more remain unexpired, are deemed freeholders, so far as regards qualification to hold office, to serve as jurors and appraisers, and to be received and justify as bail and sureties. Verm. Rev. Stat. 1839, p. 599. [A lease of lands for ninety-nine years, renewable forever, is a mere chattel interest. Spangler v. Stanler, 1 Md. Ch. Decis. 36.] Title VIII. Estate for Years. Ch. I. s. 11—15. 253 term of years, and afterwards enfeoffs another of the same tene- ment, with livery of seisin, both estates shall stand. Quia bene sese compatiuntur de- eddem re duce possessiones, duni tamen ex diversls causis, sicut tradltio adfirmam, et traditlo infeodo. (a) 12. No estate for years can be created by a lease, or other common law conveyance, without an actual entry made by the person to whom the land is granted ; for, although the grantor has done every thing necessary on his part to complete the con- tract, so that he can ' never afterwards avoid it ; yet till there is a transmutation of the possession, by the actual entry of the grantee, it wants the chief mark and indication of his 'consent, without which it might be unwarrantable to adjudge him in actual possession to all intents and purposes ; and for this reason the law does not cast the immediate and actual possession on him till he enters ; neither has the grantor a reversion to grant till such entry, (b) 1 13. Upon the execution of a lease, the lessee acquires an interest, called an interesse termini, which he may at any time reduce into possession by an actual entry. This may be made not only by the lessee himself; but, in case of his death, by his executors or administrators, (c) 2 14. It should, however, be observed that, in consequence of the operation of the Statute of Uses, an estate for years may now be created ivithout an entry, (d) [As where a freehold estate is conveyed to A and his heirs, to the use of B for ninety-nine years, with remainder to the grantor in fee ; in this case A has only a momentary seisin to serve the use which is executed in B, and to which the statute instantly annexes the possession and legal estate, without B's actual entry.] 15. If the lessee enters before the time when the estate for (a) Bract, lib. 2. c. 18. s. 7. (b) 1 Inst. 40. b. 51. b. 270. a. Bac. Ab. Leases, M. (4 Kent, Coram. 97.) (c) 1 Inst. 40. b. {d) Tit. 11. c. 4. (4 Kent, Coram. 97.) [ J Where demised premises are destroyed after the execution of the lease, and before the commencement of the term, and before the lessee has taken possession, the lessee is not liable for rent on the lease. Wood v. Hubbell, 5 Barb. Sup. Ct. 001.] [- Under a joint lease to two tenants, the occupation of one is suflicient to make both liable for the rent. Kendall v. Carland, 5 Cush. 74.] VOL. I. 22 254 Title VIII. Estate for Years. Gh. I. s. 15—19. years is to commence, it is a disseisin; and no continuance of possession, after the commencement of the term, will purge it, or alter the estate of the lessee. 1 But such entry of the lessee, before the commencement of the term, will not divest or turn such term to a right ; so that the lessee of the term may assign it over. 226 * * 16. A made a lease to B on the 23d of September, to hold to him for eighty-one years from Michaelmas follow- ing:. The lessee entered before Michaelmas, and continued in possession for some years ; then the lessor reentered ; the lessee being out of possession, assigned over the term to the plaintiff's lessor, who brought an ejectment. Judgment was given for the plaintiff; and the Court held, that the term not being to begin till Michaelmas, this was till then a future interest ; that the lessee's entry before was a disseisin, not a possession by virtue of the lease, (a) 17. Where the commencement of an estate for years is limited from a time past, and the lessee was in possession prior to that period, it shall be intended that he entered and occupied before, by agreement ; therefore it is not a disseisin, (b) 18. An estate for years may be created to commence in futuro, though an estate of freehold cannot ; for where an estate for years is created to commence in futuro, the freehold is not there- by put in abeyance, but still continues in the lessor, so that he is capable of answering the prcccipes of strangers which may be brought against him. And before the abolition of military tenures, he was liable to perform the services that were due for the feud, (c) 19. Where an estate for years is granted to commence in futuro, it cannot of course -be executed by an immediate entry, as that would be a disseisin ; it is, therefore, only an interesse termini; but still the lessee may assign it over; and even if a t (a) Hennings v. Brabason, 1 Lev. 45. Bridg. Bep. 1, (b) Waller v. Campian, Cro. Eliz. 906. 9 Vin. Ab. 992. (c) Tit. 1. s. 32. 1 But his possession is sufficient to maintain trespass against cf mere stranger. Therefore, where A demised to B for one hundred years ; and subject thereto, demised for two hundred years to C, who entered, but B did not ; and afterwards D, a creditor of A, issued and executed an elegit upon the lands, which were accordingly delivered to him ; it was held that C was entitled to the possession against D, and might main- tain trespass against him. Chatfield v. Parker, 2 M. & R. 540 ; 8 B. & C. 543. Title VIII. Estate for Years. Ch. I. s. 19—22. 255 stranger enters by wrong, yet such grant will transfer the lessee's power of entry, and right of reducing the estate into possession. For till the entry of the lessee, the estate is not executed, but remains in the same plight as it was when the lease was made ; so that no intermediate act, either of the lessor, or of a stranger, can divest or disturb it ; because whoever comes to the posses- sion, whether by right or by wrong, takes it subject to such future charge, which the lessee may execute whenever he thinks fit, as by a title prior and paramount to all such intermediate violations of the possession, (a) 20. A person made a lease for years, to commence at a future period ; after the expiration of that time, but before any entry by the lessee, the lessor being still in possession, the lessee granted * over his term and interest. Resolved, that the * 227 grant was good ; because the interesse termini of the lessee was not divested or turned to a right, but continued in him in the same manner as when it was first granted ; and was so trans- ferred over to another, who by his entry might reduce it into pos- session whenever he pleased, (b) 21. If, however, a person entitled to an estate for years, to commence in fiduro, onf;e enters, and is put out of possession, he cannot afterwards grant over his term to a stranger ; for by his entry the estate for years was actually executed ; and, being after that defeated by the entry of a stranger, the lessee has only a right of entry left in him ; which the policy of the law will not suffer him to transfer over to a stranger, no more than a right of action ; lest such transfer should encourage maintenance, (c) 22. Though an estate of freehold cannot be made to cease by the direction of the parties, but must, except in the case of uses, be taken from the person in whom it is vested, by means some- what similar to those by which it was given to him ; yet it is otherwise in the case of an estate for years ; as that may be made to cease by a proviso in the conveyance itself, upon the performance of any particular act. The practice in conveyancing has, therefore, long been, where terms for years are created, to (a) (Hennings v. Brabason, 1 Lev. 45.) Rac. Ab. Leases, M. On Wheeler v. Thoroughgood, Cro. Eliz. 127. 1 Leon. 118. Saffin's case, 5 Rep. 124. a. Tit. 35. c. 10. s. 45. 1 Inst. 46. b. (c) Cro. Eliz. 15. 5 Rep. 124. a. 256 Title VIII. Estate for Years. Ch. L s. 22—26. insert a proviso, that when the trusts of the term are satisfied, the term itself shall cease and determine, (a) 1 23. Estates for years are considered in law as chattels real, being an interest in real property, of which they have one quality, immobility, which denominates them real ; but want the other — namely, a sufficient legal indeterminate duration ; the utmost period for which they can last being fixed and determined, (b) Catalla dicuntur omnia bona mobilia, et immobilia, quce nee feuda sunt nee libera tenementa. (c) 24. In consequence of this principle, estates for years do not descend to the heir of the person who dies possessed of them ; but vest in his executors or administrators, like any other chattel. And although lands are now frequently demised for five hun- dred or a thousand years, yet the succession continues the same. 228* *25. If a lease for years be made to a bishop, parson, or other sole corporation, and his successors, yet it will go to the executors of the lessee ; because a term for years being a chattel, the law allows none but the personal representatives to succeed thereto ; nor can this mode of succession to a chattel be altered or controlled by any limitation of the party. The king, however, by his prerogative, may transmit a chattel to his successors, (d) 26. Estates for years pass from executor to executor in in- finitum ; but whenever the course of representation from executor to executor is interrupted by one administration, it then becomes necessary for the ordinary to commit administration afresh of the goods of the person who was last possessed of the term, in (ft) 1 Inst. 214. b. {b) 1 Inst. 118. b, 2 Bl. Comm. 385. Tit. 1. s. 14. (c) Spelm. Gloss, voce Catalla. (d) 1 Inst. 9. a. 90. a. P Where a dwelling-house was let for five years, with a proviso that either party, if dissatisfied, might terminate the lease, by giving the other party six months' previous notice, and fulfilling all the other requirements of the lease, until the expiration of the six months ; and it was agreed in the lease that the lessee should pay the rent by board- ing the lessor and his family twenty-seven weeks in each year, between the months of October and May : it was held, that the six months' notice by either party to terminate the lease, must be so given as to expire at the end of a year of the term. Baker v. Adams, 5 Cush. 99. Where a lease for years provides that in case the rent is not paid when due, the lessor may enter " without further notice or demand," and divest the lessee, no previous demand of rent is necessary to entitle the lessor to enter. Fifty Associates v. Howland, lb. 214.] Title VIII. Estate for Years. Ch. I. 5. 26—32. 257 ' his own right, not administered by the former executor. A limited or special administration only may also be granted, — namely, of certain specific effects ; and it is a common practice to obtain a special administration of a term for years, (a) 27. Where there are several executors, who all prove the will, they have a joint and several interest in all the goods and chattels of the testator ; therefore a disposition by one of them only of a term for years is good. But one administrator cannot convey an interest so as to bind the other. (6) 28. Where a person appoints two or more executors, if only one of them proves the will, he alone will become entitled to any terms for years whereof the testator died possessed, and may assign them accordingly, (c) 29. An executor may assign a term for years before he has proved the will ; but the will must be afterwards proved in the Ecclesiastical Court having jurisdiction over the place where the lands lie, otherwise it will have no effect as to the term, (d) 30. Where a term for years is specifically devised, the assent of the executor is necessary. But if the legatee disposes of the term at any future period, the assent of the executor will be presumed, (e) 31. A purchaser of a term for years from an executor is not bound to see to the application of the purchase-money ; even though the term be charged with the payment of a particular debt, or specifically bequeathed; because terms for years are subject to the payment of all debts, in the first instance. (/) 32. By the Statute of Frauds, 29 Cha. II. c. 3, s. 25, a husband *may administer to his deceased wife; and is * 229 entitled for his own benefit to all her chattels real, whether actually vested in her, and reduced into possession, or contingent, or recoverable only by action or suit. And it is now settled that the representative of the husband is entitled as much to this species of his wife's property, as to any other ; and that the right of administration follows the right of the estate, and ought, in case of the husband's death, after the wife, to be granted to the next of kin of the husband. And if administration de bonis non (a) 2 Bl. Comm. 506. 11 Vin. Ab. 107. (b) Dyer, 23. b. 1 Ab. Eq. 319. 1 Atk. 460. (c) Cases and Opinions, vol. 1. 399.. (d) Wentw. Ex. 34. (e) Wentw. Ex. 226. (/) Ewer v. Corbett, 2 P. Wms. 148. 22* 258 Title VIII. Estate for Years. Ch. I. s. 32—35. of the wife is obtained by any third person, he is a trustee for the representatives of the husband, (a) 33. The husband of a woman possessed of a chattel real is also entitled to dispose of it by assignment, but not by will. If, however, he does not execute his power, and his wife survives' him, it will belong to her. But if the husband be an alien, he will not acquire any right to a term of years belonging to his wife, (b) 34. An estate of freehold cannot be derived from a term for years. Thus, where a rent was granted for life, out of a long term for years, it was resolved to be a good charge as long as the term lasted ; but that it was only a chattel, and not a free- hold estate ; for it was repugnant to have a freehold out of a term for years, (c) 35. Estates from year to year will be treated of in the next title. («) 1 Inst. 351. a. Squib v. Wyn, 1 P. Wms. 378. (b) Anon. 9 Mod. 43. Id. 104. Tit. 5. c. 1. s. 27. (c) Butt-'s case. 7 Eep. 23. a. 25. a. (Saffery v. Ellgood, 1 Ad. & El. 191.) 259 CHAP. II. INCIDENTS TO ESTATES FOR YEARS. Sect. 1. Tenants for Years entitled to Estovers. 2. But cannot commit Waste. 12. Clause, toithout Impeachment of Waste. 16. Accidents by Fire. 1 8. When entitled to Emblements. 19. Estates for Years subject to Debts. 20. Alienable. 21. May be limited for Life, with a Remainder over. Sect. 22. But not Entailed. 26. Merged by a Union with iln Freeh old. 29. \_But not before Entry of Ter- mor, it being then an inter- esse Termini. 32. By Surrender. 40. Terms merge in Terms.'] 44. Equity relieves against Mer- ger. 47. How forfeited. Section 1. Every tenant for years has incident to and insepa- rable from his estate, unless restrained by special agreement, the same estovers to which tenants for life are entitled, (a) 2. But a tenant for years having an interest much inferior to an estate for life, has only a right to the temporary and annual profits of the land ; and is, therefore, restrained, as well as ten- ants for life, from cutting down timber trees, or committing any other kind of waste. 1 (b) 3. Tenant for years is also punishable for permissive waste; 2 and is, therefore*, bound to keep all houses, and other buildings (a) 1 Inst. 41. b. Tit. 3. c. 1. s. 16. (b) Tit, 3. c. 2. 1 For the American law of Waste, see ante, tit. 3, ch. 2. [See Davis v. Alden. 2 Gray. 309 ; Kidd v. Dennison, 6 Barb. Sup. Ct. 9.] 2 At common law, the lessor for years was not bound to repair the building, without an agreement for that purpose ; but the lessee, who had the use of it, was bound to repair. though he was not subject to an action at common law, for not repairing. Countess of Shrewsbury's case, 5 Co. 13, b, But by the Statute of Gloucester, 6 Ed. 1, c. 5, the lessor may have an action of waste, or upon the case in the nature of waste, against the lessee, if he permits the building to be out of repair, unless it was ruinous at the time of the lease ; for that statute extends to permissive, as well as to voluntary waste. 1 Saund. 323 6, note (7,) by Williams; Harnett v. Maitland, 16 M. & W. 257. And see 2 Saund. 252 a, note (7) ; Burdett v. Withers, 7 Ad. & El. 13C. 260 Title VIII. Estate for Years. Ch. II. s. 3—8. upon the land, in proper and tenantable repair, by preserving the roof in such a state as to prevent the rain from falling on the timbers. But if a house be ruinous at the time when the lease is made, and the lessee suffers it to fall down, he is not punish- able, for in that case he is not bound to repair it ; yet if 231 * he cuts * down timber on the land, and employs it in re- pairing the house, he may well justify, (a) 4. Lord Coke says, — if a tenant for years builds a new house, it is waste ; and if he suffers it to be wasted, it is a new waste. The first of these propositions has been frequently contradicted. And Rolle lays it down, that if a lessee for years builds a new house upon the land, where there was not any before, it is not waste, being for the benefit of the lessor, (b) 5. The Statutes of Marlbridge and Gloucester, which have been already stated, extend to tenants for years ; so that they are liable to the same actions, and the same penalties for waste committed, as tenants for life, (c) 6. If a woman possessed of a term for years takes a husband, who commits waste, and the wife dies, the husband shall be charged in an action of waste ; because by the marriage he be- came entitled to the term, (d) 7. It is enacted by the Statute 11 Hen. VI. c. 5, that where a tenant for years assigns over his estate, and continues in the receipt of the profits, an action of waste shall lie against him. In a case upon this statute in 36 Eliz., it was resolved, — 1. That every assignee of the first lessee, mediate or immediate, was within the act. For the statute was made to suppress fraud and deceit, therefore should be taken beneficially. 2. That the per- son in remainder was within the act, as well as the person in reversion ; because in equal mischief, (e) 8. Where there is a tenant for years, remainder for life, re- mainder in fee, and the tenant for years commits waste ; though the remainder-man for life cannot bring an action of waste, as not having the inheritance, yet he is entitled in equity to an in- junction. If the waste be of a trivial nature, and d fortiori if it be meliorating waste, as by building on the premises, the Court will not enjoin ; nor if the reversioner or remainder-man in («) Lit. s. 71. 1 Inst. 57. a. 54. b. (b) 1 Inst. 53. a. 22 Vin. Ab. 439. Hob. 234. (c) Tit. 3. c. 2. s. 26. Attersol v. Stevens, 1 Taunt. 183. (d) 1 Inst. 54. b. (e) Booth's case, 5 Rep. 77. Title VIII. Estate for Years. Ch. II. s. 8—10. 261 fee be not made a party, who possibly may approve of the waste, (a) 9. The Court of Chancery will not entertain a bill against a tenant for years after he has assigned his term, with the consent of the lessor, for an account of timber cut down by him, and without praying an injunction. 10. A bill was brought for an account of timber cut down by the defendant, and of the profit of some stones carried off the premises by him also, while tenant ; he having afterwards * assigned his term, with the consent of the plaintiffs, his * 232 lessors, to a third person ; and, consequently, no prayer for an injunction to stay waste. (6) Lord Hardwicke. " The question is, whether a bill can be brought here against a tenant, after the estate is gone out of him, for an account of waste committed, where there is no prayer of an injunction. I am of opinion that such a bill is improper, nor has any authority been cited to support it. Waste is a tort, and punishable as such ; and the party has also a remedy for the trees cut down, by an action of trover. The staying waste is a specific remedy ; and while the lessee continues tenant, it is to prevent a mischief for which, when done, an adequate satisfaction by way of damages cannot, in many instances, be given. This is the ground of the jurisdiction of this Court in such cases ; and the Court having such ground, will, in order to prevent a double suit, and as incident to the other relief, decree an account of the timber felled, or the waste done. This is a general principle to prevent suits ; and as some decree must be made, the Court will make a complete one. But without such a foundation, there is no precedent of the Court's decreeing damages ; and I think it would be very improper to do it, as it would tend to great vexa- tion and oppression of tenants ; and I am glad no such precedent is to be found, for the cases cited do not come up to the present. In 2 P. Wms. 240, it is not clear that no injunction was prayed. If there was, then it is but a common case ; if there was not. then the plaintiff was entitled to a moiety of the timber against the defendant, and therefore proper matter of account only be- tween them. As to 1 P. Wms. 406, the bill was against an («) Mollineux v. Powell, 3 P. Wms. 207. Tit. 3. c. 2. s. 34. (0) Jesus Coll. v. Bloom, 2 Atk. 262. 262 Title VIII. Estate for Years. Ch. II. s. 10—15. executor for an account of assets ; and in a case of a mine, which differs from timber or other waste, it being a sort of trade, and proper for an account, not trover; and the Court has decreed accounts in cases of mines, which they would not do in any other for that very reason ; and because a better remedy can be given here than at law, by decreeing inspections under ground, &c. And here, if the plaintiffs have a right, they may have their action of trover." (a) 11. If a lessee for years commits waste and dies, no action of waste will lie against his executors or administrators. But the executors or administrators of a tenant for years are punishable for waste done while they are in possession, (b) 233 * * 12. Where the clause, without impeachment of waste, is inserted in a lease for years, it will have the same effect as where it is inserted in the conveyance of an estate for life. And the Court of Chancery will in general restrain the import of it, in the same manner. Thus a tenant for years, though with- out impeachment of waste, will not be allowed to dig, and carry away the soil for the purpose of making bricks, (c) 13. The Bishop of London made a long lease of some lands at Ealing, in Middlesex, without impeachment of waste ; of which there were about twenty years unexpired. The lessee agreed with some brick-makers, that they might dig and carry away the soil. The bishop applied to the Court of Chancery for an injunction, which was granted, (d) 14. The Court of Chancery will not permit a tenant for years, though without impeachment of waste, to fell timber just before the expiration of the lease. 15. A lease was made by a bishop for twenty-one years, with- out impeachment of waste, of lands upon which there were sev- eral timber trees. The tenant had not cut down any of them, till about half a year before the expiration of his term ; but then began to fell them. Upon an application to the Court of Chan- cery, an injunction was granted against him. For although he might have felled trees every year, from the beginning of the term, and then they would have been growing up gradually ; yet («.) Whitfield v. Bewit, 2 P. Wins. 240. Tit. 3. c. 2. s. 17. (b) 2 lust. 302. (c) Tit. 3. c. 2. (d) Ep. London v. Webb, 1 P. Wrns. 527. Title VIII. Estate for Years. Ch. II. s. 15—17. 263 it was unreasonable that he should let them grow till near the end of his term, and then cut them all down, f (a) 16. Tenants for years are exempted by the Stat. 6 Ann., which has been already stated, from all actions for damages on account of accidental fire, (b) 17. In a modern case, where there was a covenant in a lease for years of a house, to rebuild, without any exception ; and the house was burnt down by accident ; it was held that the lessee was bound to rebuild it ; 1 [so where the covenant is to re- pair.] (c) (a) Abraham v. Bubb, 2 Freem. 63. (&) Tit. 3. c. 2. Com. Eep. C29. (c) Bullock v. Dommitt, 6 Term R. 650. Pym v. Blackburn, 3 Yes. 34. [ I Upon the subject of waste as between landlord and tenant, see the cases collected in Comyn's Landlord and Tenant, Book 2, ch. I, s. 2.] 1 If the lessor is not bound by covenant to repair, the lessee must still perform his covenant to pay rent, though the house be destroyed by fire. Fowler v. Bott, G Mass. 63 ; Lamott v. Sterrett, 1 Flar. & J. 42 ; Wagner v. White, 4 II. & J. 564; Redding v. Hall, 1 Bibb. 536. And if the tenant has covenanted to deliver up the house in good repair, at the expiration of the lease, he is bound to rebuild the house, if burned down. Phillips v. Stevens, 16 Mass. 238; Pasteur v. Jones, Cam. &IVorw. 194. [If the lessee covenants to deliver up premises in as good order as at the date of the lease, ordinary wear and tear excepted, and there is no covenant to repair or rebuild, he is not bound to rebuild if the buildings are destroyed by fire. Warner v. Hutchins, 5 Barb. Sup. Ct. 666.] Under such covenants, the tenant is not justified in keeping the premises in bad repair because he found them in that condition ; but he is still bound by the terms of his contract. Payne v. Haine, 16 M. & W. 541. But the state and age of the building arc to be considered, in ascertaining the nature and reasonable extent of the tenant's obligation. Stanley v. Towgood, 3 Bing. N. C. 4 ; Burdett v. Withers, 7 Ad. & El. 136. He is not liable in covenant for acts done by him before the time of the execution of the lease ; though the habendum states that he is to hold from a day prior to its execution, and prior to the acts done ; the lessor's remedy, if any, being in some other form of action. Shaw v. Kay, 1 Exch. R. 412. But if the house were destroyed or the tenant dispossessed by a public enemy, this has been held to excuse the tenant from performance of the covenant. Pollard v. Shaaffcr, 1 Dal. 210; Bayly v. Law- rence, 1 Bay, 499. [As between the landlord and tenant of premises let from year to year, there is no obligation on the landlord to do substantial repairs in the absence of express stipulations to that effect. Gott v. Gaudy, 22 Eng. Law & Eq. 173. Under a covenant in a lease, to deliver up the premises in as good order and condition as when received, reasonable use, &c, fire and other casualties excepted, the tenant is bound to make whatever repairs are necessary to keep the premises in such condition. Jaques v. Gould, 4 Cush. 384. A clause in a lease that "the owner shall not be liable for any repairs on the premises during the term, the same now being in perfect order," has respect only to the condition of the house as an edifice in perfect repair and not to the present or future purity of the air within it. Foster v. Peyser, 9 Cush. 242. In a sealed lease of a house for a private residence, there is no implied covenant that it is rcasona- 264 Title VIII. Estate for Years. Ch. II. s. 18. 18. Where the determination of an estate for years is certain, as where lands are let for twenty-one years, or any other num- ber, the tenant is not entitled to emblements ; because it was his own folly to sow, when he knew he could not reap. 1 But when bly fit for habitation. lb. Nor in a general lease of a store or warehouse, is there any implied warranty that the building is safe, well built, or fit for any particular use. Dutton v. Gerrish, lb. 89. It is implied from the hiring of a farm for agricultural purposes, that the tenant will cultivate the land according to the rules of good hus- bandry. Lewis v. Jones. 17 Penn. State R. (5 Harris) 262. When a house, which was built for a hotel, was leased without stipulation as to the employments that should be carried on in it, the lessee may use it for a seminary, or may underlet it for that pur- pose. Nave v. Berry, 22 Ala. 382. Under a parol demise the law will imply an agreement for quiet enjoyment, but not for good title. Bandy v. Cartwright, 20 Eng. Law & Eq. 374. See Noyes v. Anderson, 1 Duer (N. Y.) 342. A lessee, who, in appealing from the judgment of a lower court, giving possession of the premises to the lessor, recognizes in pursuance of a statute, "to pay all intervening rent and all damages and loss which the lessor may sustain by reason of the withhold- ing of the possession of tli* demanded premises, and by reason of any damages done to the premises by reason of such withholding, is liable prima facie, and in ordinary cases, to pay rent at the rate reserved in the lease until the recovery of possession by the lessor, although the buildings on the premises be meanwhile destroyed by fire ; and is responsible for all waste, actual and permissive, and for all losses including the destruction of the building, if not proved by him to have been caused by inevitable accident. Davis v. Alden, 2 Gray, 309. By the common law the occupier and not the landlord is bound as between himself and the public, so far to keep buildings in repair, that they may be safe to the public : and such occupier is prima, facie liable to third persons for damages arising from any defect. But if there is an express agreement between the landlord and tenant, that the former shall keep the premises in repair, so that if there were a recovery against the tenant, he would have his remedy over, then to avoid circuity, the party injured in tbe first instance may have his action against the landlord. Lowell v. Spaulding, 4 Cush. 277 ; New York v. Corlics, 2 Sandf. Sup. Ct. 301 ; Bellows v. Sackett, 15 Barb. Sup. Ct. 96.] 1 Whitmarsh v. Cutting, 10 Johns. 360; Bain v. Clark, Ibid. 424 ; Harris v. Car- son. 7 Leigh, 632. Where a farm is let for a year upon shares, the lessor and lessee are tenants in common of the crops. Caswell v. Districh, 15 Wend. 379; Walker v. Eitts, 24 Pick. 191. [The lessee of a farm under a lease, stipulating that one half of the hay shall be consumed on the farm, and the other half divided equally between the lessor and the lessee, has the entire property in the hay, until division. The division vests the portions of the divided half in the lessor and lessee respectively, but the undi- vided half to be consumed on the farm, remains the property of the lessee. Symonds v. Hall, 37 Maine (2 Heath) 354; see also Munsell v. Carew, 1 Cush. 50; Moulton v. Bobinson, 7 Poster, N. H. 550; Ross v. Swearingen, 9 Ire. 481 ; Lathrop v. Rogers, 1 Carter (Ind.) 554. A lease of a farm and sheep contained this clause : " The wool now growing on the sheep, and the lambs, if any which the sheep may have, I shall claim to remain my property, until the worth of it and them is paid me toward the use of the place." Within the year, no rent being paid, the wool and lambs were attached as the property of the lessee. Held, that the property in the wool and lambs remained Title VIII. Estate for Years. Ch. II. s. 18. 265 the determination of an estate for years depends on an * uncertain event ; as where a tenant for life lets the lands *234 for years, or where a term of years is made determinable on the death of a particular person ; there the tenant will be entitled to emblements ; in the same manner as a tenant for life. 1 If, however, an estate for years determines by the voluntary act of the tenant himself, as if he commits a forfeiture, he will not be entitled to emblements. («) 2 (a) Tit. 2. c. 1. 1 Inst. 55. b. Davies v. Connop, 1 Price, 53. 16 East, 71. (Bulwert?. Bulwer, 2 B. & Aid. 470.) Oland v. Burdwick, Cro. Eliz. 460. (Debow v. Colfax, 5 Halst. 12S.) in the lessor until the payment of the rent. Whitcomb v. Tower, 12 Met. 487.] And in Ohio it is held that the landlord lias a lien on the crop for his share, and that no part can be removed by the tenant, until the landlord's share is set off. Case v. Hart, 11 Ohio R. 364. [See 10 Ired. (N. C.) 63 ; 11 lb. 12.] 1 Where land was let for a term of years, determinable by either party on six months' notice to the other, the lessor agreeing that if he determined the tenancy, he would allow compensation to the tenant for preparing and sowing the ground ; and he did so determine it, after the ground was sowed ; it was held that the tenant was entitled to the emblements. Stewart v. Doughty, 9 Johns. 108. 2 It is not necessary that the whole act of forfeiture be the immediate act of the ten- ant, provided all the subsequent proceedings resulted from his act. Thus, where land was let, on condition that if the lessee should incur any debt upon which judgment should be entered up, and execution should issue thereon, the lessor might reenter, and possess the land as of his former estate ; and the condition was broken, and the lessor entered accordingly ; it was held that the lessor was entitled to the emblements. Davis v. Eyton, 7 Bing. 154. But though, in such cases, the tenant himself justly forfeits the emblements, the lease being terminated by his own fault, yet this consequence is not visited upon his under-tenant, who had no participation in destroying the estate. Therefore, where a tenant of a term of years, defeasible on condition subsequent, made an under-lease, and his lessee sowed the land, after which the first tenant broke the con- dition, and the landlord thereupon entered for the breach, it was held that the under- tenant was entitled to the emblements. Oland v. Burdwick, Cro. El. 46 ; Bevans v, Briscoe, 4 Har. & Johns. 139. And see Doe v. Witherwick, 3 Bing. 11. TJbs doctrine, however, is not applied to the case of foreclosure of a mortgage ; for in such case it has been held that the mortgagee, or purchaser, and not the lessee of the mortgagor, is entitled to the crops growing on the premises at the time of the foreclosure and sale. Lane v. King, 8 Wend. 584. [The right to emblements does not attach until the seed is sown: preparing the land to receive it is not sufficient. Price v. Pickett, 21 Ala. 741.] Property in the growing crop may also be created by contract ; as, if the lessor should covenant that the lessee shall take and carry away to his own use the corn that shall be growing on the premises at the end of the year ; and the lessor should afterwards grant the reversion to a stranger, yet the property in the corn was by the covenant well transferred to the lessee, and he may take it away, though it be not severed during the term. Grantham v. Hawley, Hob. 132; [Briggs v. Oaks, 26 Vt, 3 Deanc, 138 ; Harrower v. Heath, 19 Barb. Sup. Ct. 331.] vol. i. 23 266 Title VIII. Estate for Years. Ch. II. s. 19. 19. Estates for years being chattel interests, and vesting in executors or administrators, are subject to the payment of simple contract debts ; and are also liable to be sold by execution for the On this principle the rights of parties arc adjusted in regard to what is termed the away-going crop, — that is, the crop which was sown during the term, but is not ripened for gathering until the term has expired. If it is expressly covenanted that the tenant shall have it, he may take it away after the term has expired ; or, it may be taken and sold on process, for his debts. Deaver v. Rice, 4 Dev. & Batt. 431 ; and see Austin v. Sawyer, 9 Cowen, 39. The right thus reserved is considered as a prolongation of the term, as to the land on which the crop grows, and so far the possession of the land re- mains in the tenant until the crop is taken. Boraston v. Green, 16 East, 81. And though where the lease is express, the terms of the contract must govern, even against any custom or usage to the contrary ; yet where the lease is silent, the custom of the country is admissible in evidence to determine the rights of the tenant as to the away- going crop, as well as to other particulars. Wigglesworth v. Dallison, 1 Doug. 201 ; Webb v. Plummer, 2 B. & Aid. 746 ; Hutton v. Warren, 1 M. & W. 466 ; Holding v. Pigott, 7 Bing. 465 ; 5 M. & P. 427 : Beavan v. Delahay, 1 H. Bl. 5 : Stultz v. Dickey, 5 Binn. 285 ; Biggs v. Brown, 2 S. & R. 14 ; Demi v. Bossier, 1 Pennsyl. R. 224; Van Doran v. Everitt, 2 South. 460 ; Templeman v. Biddle, 1 Harringfr. 522 ; Craig v. Dale, 1 Watts & Serg. 509:; Van Ness v. Packard, 2 Peters, 138 ; Wilcox v. Wood, 9 Wend. 349. The right of the outgoing tenant to remove the manure, made on the farm during his tenancy, depends on express stipulation, or on the settled and uniform custom of the country. In the absence of any such contract or custom, the law of good husbandry requires that it be used on the farm, and, therefore, he cannot remove it. Lassell v. Eeed, 6 Greenl. 222 ; Middlebrook v. Corwiu, 15 Wend. 169 ; Watson v. Welch, 1 Esp. 131 ; Brown v. Crump, 1 Marsh. 567 ; Powley v. Walker, 5 T. R. 573 ; and see Rinne- hart v. Olwine, 5 Watts & Serg. 163; [Lewis v. Jones, 17 Penn. State R. (5 Harris.) 262 ;] Roberts v. Barker, 1 Cr. & M. 808 ; 3 Tyrw. 945, S. C. ; [see Needham v. Al- lison, 4 Foster, (N. II.) 355.] And in regard to the custom, it is only where the con- tract is silent, or its meaning is doubtful, that evidence of the custom is admissible ; and in order to be admitted, the custom must be proved to be certain and uniform, and known to the parties, or to be so general and well established that the knowledge and adoption of it by the parties may well be presumed. Macomber v. Parker, 13 Pick. 176; Stevens v. Reeves, 9 Pick. 198; Collings v. Hope, 3 Wash. 149; Wood v. Hickock, 2, Wend. 501. And generally, in regard to those things which a tenant may remove from the prem- ises, after having himself affixed them, it may here be observed, that it is not neces- sarily to be inferred from the annexation that the chattel annexed has become the property of the freeholder or landlord ; but whether it has become so, or not, may be a question upon the evidence ; and the jury may, from the user and other circumstances, infer an agreement, made when the chattel was annexed, that the original owner should have liberty to take it away. Wood v. Hewett, 8 Ad. & El. 913, N. S.; Gibbons on Fixtures, [Doak v. Wiswell, 38 Maine, (3 Heath,) 569 ; King v. Wilcomb, 7 Barb. Sup. Ct. 263 ; Dubois v. Kelly, 10 lb. 496 ; Lawrence v. Kemp, 1 Duer, N. Y. 363 ; Teaff v. Hewitt, 1 Ohio State R. 511; Mason v. Eenn, 13 111. 529; Grangers Michigan Canal, lb. 745 ; Einney v. Watkins, 13 Mis. 291 ; Regina v. Haslam, 6 Eng. Law & Eq. Rep. 221 ; Ruffey v. Henderson, 8 lb. 305 ; Wiltshear v. Cottrcll, 18 lb. 142; Elliott v. Bishop, 28 lb. 484 ; Bishop v. Elliott, 30 lb. 595.] Title VIII. Estate for Years. Ch. II. s. 19—23. 267 payment of debts due by judgment. But if a term for years be assigned to a bond fide purchaser, without notice, before execu- tion is actually sued out and delivered to the sheriff, it cannot afterwards be taken by a creditor, (a) 20. [A lessee may part with his whole term, unless restrained * by a particular agreement j 1 so he may lease a * 235 part of it ; in the former case it will be an assignment, in the latter an underlease? And although a lessee cannot limit his term by way of remainder in the proper sense of that word, yet by assigning it to a trustee upon trusts, or by executory bequest, interests in the nature of remainders may be created by deed or will.] (b) 21. By the old law, a gift of a term for years like that of any other chattel, for an hour, was a gift of the whole estate and interest ; therefore there could be no subsequent limitation of a term for years, after an estate was carved out of it. But this was soon altered ; and it has been long settled that a term for years may be limited to a person for life, with a limitation over to any number of persons in esse for life ; [and it may also be limited to a person not in esse, or not ascertained, provided such limitation take effect, if at all, within a life or lives in being, or twenty-one years after.] (c) 22. Terms for years, cannot, however, be entailed. 1. Because they are not within the Statute De Donis, being estates of in- heritance. 2. Because if a quasi entail of a term for years were allowed, it would be unalienable, as no fine or recovery could be had of a term ; so that the disposition of a term for years to a person and the heirs of his body, is a disposition of the entire interest in the term, (d) 23. A distinction has been made by Lord Coke between a (a) Tit. 14. s. 67. (b) 1 Burr. 284. (c) Dyer, 74, 18. Tit. 38. c. 19. (d) Dyer, 7. a. 8. Tit. 2. c. 1. s. 24. 4 Mad. 361. 19 Ves. 73. See Howard v. Duke of Norfolk, 2 Swanst. 454. 1 If the agreement is that he shall not assign or alienate his estate, or term, or the premises, an alienation or underlease of part is no breach. Jackson v. Silvernail, 1 5 Johns. 278 ; Jackson v. Harrison, 17 Johns. 66 ; see post, tit. 13, ch. 1, § 42. [- If a lessee underlets a part of the demised premises, and the sub-tenant is recog- nized as such, and the rent is demanded of him by the lessor, the lessee and sub-tenant are not jointly liable to the lessor for the mesne profits of the whole premises. Fifty Associates v. Howland, 5 Cash. 214.] 268 Title VIII. Estate for Years. Ch. II. s. 23—25. limitation of a term in gross, or subsisting term, to a man and the heirs of his body, and a similar limitation of a term de novo. In the first case the residue of the term will vest in the executors of the person to whom it is so limited. But in the latter case he was of opinion that the term would only continue as long as the person to whom it was limited had heirs of his body, and that upon failure of such heirs the term would cease. This distinction has been long since exploded ; and it is now settled, that where a term for years is limited to a person and the heirs of his body, it will continue, though the person to whom it is so limited should die without issue, (a) 24. A. Pile, by indenture, demised lands to a trustee, his ex- ecutors, and administrators, for ninety-nine years, in trust for himself and his wife for their lives, and the life of the survivor ; and after the death of the survivor, in trust for the heirs of their two bodies ; and in default of such issue, then in trust for 236* the heirs *of the survivor. They had issue one son. The husband died ; afterwards the son died, an infant ; the mother administered to her husband and son, and assigned the term to the defendant Rod. The question was, who was entitled to the trust of this term? whether it belonged to the plaintiff, who was the heir at law of A. Pile, or to the defendant Rod, as assignee of the wife ? It was decreed that it belonged to Rod, and had not ceased, (b) 25. [Although chattels real and other personal estate cannot be entailed, for the reasons above stated, yet through the medium of trusts, and by executory devise, they may be limited, so as in a great measure to answer the purposes of entail, and indeed are susceptible of modification, so as to be confined in a particular course of devolution, and, except for the purposes of accumulation, rendered unalienable for any number of lives in being, and twenty-one years after, with a further period allowed for gestation ; at the end of which period the personalty will vest absolutely in the person taking under the limitation trust or executory bequest.] f (a) S Rep. 87. a. Leventhorpe v. Asliby, 1 Roll. Ab. 831. Leonard Lovie's case, 13 Rep. 78. (6) Hayter v. Rod, 1 P. Wms. 360. [tFor instances of bequests of personalty, which in devises of real estates would give express or implied estates tail, see Vol. II. Rop. Legacies, ch. 22, sect. 1 & 2. Edition 1828, by the Editor of the present work.] Title VIII. Estate for Years. Ch. II. s. 26— 29. 269 26. Where a term for years becomes vested in the person who is seised of the freehold, by which there is a union of the two interests in one person at the same time, [and there is no inter- vening estate between the term and the freehold,] the term merges in the freehold, and becomes extinct, (a) ] 27. Tenant pour autre vie made a lease for years, and died, living the cestui que vie ; it was agreed that by this the lessee for years, having the possession, became occupant; and the accession of the freehold merged in his estate for years. But if in that case the lessee for years had made a lease at will, and then the tenant pour autre vie had died, the tenant at will would have been the occupant ; consequently the term for years, being in another person, would not be merged ; there being no union of the term and the freehold in one person, (b) 28. A, seised in fee, demised to B for one hundred years, to begin at a future time ; and before that time [granted the rever- sion in fee to C, who demised the land to D,] for twenty-one years, to begin presently. B, before the commencement of his *term, assigned it to A, who afterwards granted a *237 rent-charge, for which the grantee distrained D. The question was, whether the future term [of one hundred years] was drowned in the inheritance, or if it had any existence in A, so that he might thereout grant the rent ; for then it would [have preference over] the second lease, being prior to it, and by conse- quence be liable to the payment of the rent-charge. It was re- solved that the first term was [drowned in the inheritance.} (c) 29. [The language of the report in the above case is appli- cable to merger ; but it must be understood as referring only to extinguishment ; because the term of one hundred years in B was only an interesse termini; and though, as such, it might by release to the reversioner be extinguished, still, not being an actual estate, could not properly be said to merge. From this case, it appears, that an actual term intervening between an interesse termini and the reversion, will not prevent the extin- guishment by release of the interesse termini, although, had the latter been an actual estate, it would have been prevented by the («) Dyer, 112, 49. (Roberts r. Jackson, 1 Wend. 478.) (b) Chamberlain v. Ewer, Bulst. 12. (c) Salmon v. Swann, Cro. Jac. 619. 3 Prest. Conv. 122. 1 See post, Vol. VI. tit. 39, where the subject of Merger is more fully treated. 23* 270 Title VIII. Estate for Years. Ch. II s. 29—33. intervening term. Neither will the interesse termini intervening between a prior term and the reversion, prevent the merger of the term in the reversion, when they unite in the same person in the same right, (a) 30. Thus in the case of Doe v. "Walker, A granted a lease to B for twenty-one years, which would expire at Michaelmas, 1809 ; in December, 1799, A granted a further lease to B of the same premises, for sixty years, to commence from Michaelmas, 1809 ; A died in December, 1800, and devised the reversion to B for life. In 1806, B conveyed his life-estate to C. It was decided by Bayley, J., that the interesse termini of the lease of 1799, which was to commence in 1809, was not merged in B's life-estate, (b) 31. It would seem from the preceding case, that an interesse termini, to commence in futuro, and which consequently does not give an immediate right to the possession, is not discharged or extinguished, by the mere accession of the freehold, devised to the person entitled to the interesse termini, so long as it gives only a future right of possession. 32. Merger of estates for years may take place in consequence of a surrender of them to the person in remainder, or reversion ; but a term cannot be merged by surrender, till the tenant 238 * has * entered ; for before entry, it is an interesse termini only, and there is no reversion in which it can merge. 1 If, however, the lessee for years enters, and after assigns his estate- to another, the assignee may merge the term by surrender, before entry ; because, by the entry of the lessee, the possession was severed and divided from the reversion, (c) 33. Lord Coke lays it down as a general rule, that a man cannot have a term for years in his own right, and a freehold in autre droit, to consist together. As if a man, lessee for years, takes a feme lessor to wife, the term is merged. But this propo- sition has been denied, for in Lichden v. Winsmore, 21 Jac. I., it was held that if a person was lessee for years, the reversion for life to A, a feme covert, and the lessee granted his estate to the husband; and after the feme died, the term was not extinct, (a) 5 Bar. & Cress. 122. (6) 5 Bar. & Cress. 111. (c) 1 Inst. 338. a. 4 Bac. Ab. 216. Tit. 32. c. 7. ' But an interesse termini may be released. Salmon v. Swann, Cro. Jac. G19. Title VIII. Estate for Years. Ch. II. s. 33—37. 271 because the husband had the estates in several rights, for the freehold was in the wife, and the husband only seised in her right.] (a) 34. Lord Coke lays it down, that a man may have a freehold in his own right and a term in autre droit. Therefore, if a man lessor takes the feme lessee to wife, the term is not drowned ; but he is possessed of it in her right, during the coverture. The reason of this doctrine is thus given by Gilbert : — " The term being existing in the feme till the intermarriage, is not thereby so drawn out of her, or annexed to the freehold, as to merge therein ; because that attraction, which is only by act of law, consequent upon the marriage, would, by merging the term, do wrong to a feme covert ; and so take the term out of her, though her husband did no express act to that purpose ; which the law will not allow." (b) 35. [It is correctly stated by Mr. Preston, in his valuable Treatise on Merger, that the true distinction established by the cases is not generally that there will not be any merger, because the two estates are held in different rights, or because the free- hold is held by the owner of the term in his own right, and the term in autre droit. The leading distinctions stated by him on the law of merger, as connected with the subject of the present title, are in a great measure comprehended in the propositions contained in the four following sections : — * 36. When estates meet in the same person, either by * 239 act of law, or by act of the party, and he holds both in his own right) merger takes place ; as where the reversion in fee descends upon, or is purchased by, the lessee — for nemo potest esse dominus et tenens. (c) It should seem, however, that this proposition must be taken with the following qualification : — That when several estates meet, in the same person, and are held in different rights, merger will not take place, unless the power of alienation of the person, in whom they meet, extends to both estates, (d) 37. When estates, held in different rights, meet in the same (a) 1 Inst. 332. b. 11 Vin. Ab. 441. 1 Roll. Ab. 934. And see Piatt v. Sleap, Cro. Jac. 275. Thorn v. Newman, 3 Swan. 603, appendix. Vid. tit. 39, Merger, infra, vol. 6. (b) 1 Inst. 338. b. Bac. Ab. tit. Leases, R. (c) Lee's case, 3 Leon. 110. Chamberlain v. Ewer, 2 Bulst. 12. Doe v. Walker, 5 Barn. & C. 3. (d) Lichden v. Windsmore, 2 Roll. Rep. 472. 272 Title VIII. Estate for Years. Ch. II. s. 37—39. person, by act of the party, merger will take place ; 1 as where the husband, holding the term in right of his wife, purchases the reversion ; or where an executor has a term in right of his testator, and purchases the reversion ; but in the latter case the term, though merged, continues assets, (a) 38. When estates, held in different rights, meet in the same person, by operation of law, merger does not take place ; as in the case of marriage, where a woman, being a termor, marries the reversioner, the term does not merge, because it devolves upon the husband by act of law. Again, in the instance of descent, where the husband termor marries, and afterwards the reversion descends upon his wife. So with respect to curtesy, when lessee for sixty years marries the reversioner, who after- wards dies before the expiration of the term, the term will con- tinue during the wife's life, while the husband is seised in her right ; and it should seem also, after her death, while he is tenant by the curtesy ; although a doubt has been intimated as to the latter point. Again, in the case of executor or administrator, where lessor has the freehold in his own right, and the term de- volves upon him as executor or administrator of the lessee, (b) 39. The application of this last doctrine between husband and wife, when the husband is seised of an estate of freehold in right of his wife, is obvious. Upon this subject, the author before mentioned makes the following observation : — " That the estate of freehold of the wife cannot merge, is a consequence flowing from an absence of a right in the husband to alien that estate. (a) Moo. 171. 4 Leon. 38. 1 Roll. Abr. 934. pi. 9. Bro. Abr. tit. Executor, pi. 174. Ex- tinguishment, pi. 57. 1 L. Raym. 520. (b) 2 Roll. R. 472. 1 Inst. 338. b. Bac. Abr. tit. Leases, R. Piatt v. Sleap, Cro. Jac. 275. 1 Bulst. 118. Godb. 2. 1 Inst. 338. a. 1 In regard to estates acquired by act of the party, the rule, as generally under- stood in the United States, seems to be this, that they merge or not, and mortgages are extinguished or not, according to the intent of the parti/, as collected either from the deeds or from the circumstances of the transaction. And where these furnish no evidence of the intenf, it may be inferred from his interest, which, in the absence of indications to the contrary, it may be presumed he intended to consult. Gibson v. Crehore, 3 Pick. 475 ; Eaton v. Simonds, 14 Pick. 98, 104 ; Freeman v. Paul, 3 Greenl. 260; Hunt v.Hunt, 14 Pick. 374; Freeman u.McGaw, 15 Pick. 82; Richards r.Ayres, 1 Watts & Serg. 485 ; Moore v. Harrisburg Bank, 8 Watts, 138 ; Lockwood v. Sturdevant, 6 Conn. 373. And see Forbes v. Moffatt, 18 Ves. 384; 4 Kent, Comm. 101. In either case the rights of creditors will be protected. Ibid. See further on this subject, post, Vol. VI. tit. 39, Merges. Title VIII. Estate for Years. Ch. II. s. 39—45. 273 It is a general rule, that the husband cannot, in virtue of his marital right, dispose of his wife's freehold, so as to pre- clude her *from resuming her estate on his death. It *240 would be absurd, then, in the law to suffer the husband to defeat the wife of her estate by indirect means, when it denies to him the privilege of doing it by alienation in express terms." (a) 40. It was for some time doubtful, whether one estate for years would merge in another estate in reversion of the same denomination. The cases are ably discussed in Mr. Preston's work, wherein he considers the proposition established in the affirmative. The point is now settled accordingly by the follow- ing recent decision, (b) 41. A mortgage term of 1000 years was created in 1720, and another for 500 years on the same premises in 1725. The term of 1000 years vested in A, subject to the debt charged thereon, and upon her death devolved upon her executors, who, in 1780, took an assignment of the 500 years' term, with the debt due thereon. In 1785, the executors assigned both terms to trustees on the marriage of the legatee, entitled to them under A's will. Sir John Leach, V. C, held that the 1000 years' term merged in the reversionary term for 500 years, (c) 42. It may be here remarked, that the less estate must always merge in the greater, that is greater in quality ; and, with refer- ence to the subject of the present title, it must be remembered, that the term is not, for the purposes of merger, considered greater, according to the extent of its possible duration or numer- ical quantity, but from its being the term in reversion; this is proved by the preceding case.] 43. The Statute of Uses expressly saves the rights of the feof- fees to uses ; which preserves from merger any terms for years that may be vested in persons to whom the lands are conveyed to uses, (d) 44. A Court of Equity will, in some cases, relieve against the merger of a term, and make it answer the purposes for which it was created. 45. A. portion was directed to be raised out of a term for years, for a daughter. The fee afterwards descended on the (a) Stephens v. Britridge, 1 Lev. 30. Brest. Conv. 3d vol. 293, 297. (b) Prest. Conv. vol. 3. 182, 207. Tit. 32. c. 7. (c) Stephens v. Bridges, 6 Mad. 06. ((0 Vide infra, tit. 39. s/94. 274 Title VIII. Estate for Years. Ch. II. s. 45—50. daughter, who, being under age, devised the portion. The Court relieved against the merger of the term, and decreed the portion to go according to the will of the daughter, (a) f 241 * * 46. A person having a term of 1000 years, assigned it to the owner of the inheritance, in trust for his wife and children ; the assignee accepted the trust, and declared the pur- poses of it. The Court of Chancery supported the trust, not- withstanding the merger of the term ; and decreed the heir of the lessor to make a further assurance of the residue of the term to a purchaser. (6) 47. If, however, a tenant for years attempts to create a greater interest than he lawfully can, whereby the estate in remainder or reversion is divested, it will operate as a forfeiture of his estate. 1 And Lord Coke says, if tenant for life or years, the remainder or reversion in the king, make a feoffment in fee, this is a forfeiture, and yet no reversion or remainder is divested out of the king. For the reason of the forfeiture is, in respect to the solemnity of the feoffment with livery, tending to the king's disherison, (c) 48. But where a tenant for years makes a lease for a longer term than he has, it is no disseisin, nor forfeiture ; because it is only a contract between him and his lessee, which does not operate on the interests of the lessor, (d) 49. If a husband possessed of a term for years, in right of his wife, forfeits it, this shall bind the wife, because he might have disposed of it at his pleasure, (e) 50. An estate for years is not forfeited, if the person in remain- der or reversion is a party to the conveyance ; for in that case each person transfers only what he may lawfully alien. (/) (a) Powell v. Morgan, 2 Vera, 90. Thomas v. Kemeys, 2 Yern. 348. Tit. 1. s. 50. (b) Saunders v. Bournford, Finch, 424. 3 Swan, 603, 60S. (c) 1 Inst. 251. b. Dyer, 362. b. Cro. Eliz. 323. (d) 1 Salk. 1ST. (e) 1 Roll, A"b. S51. (/) 6 Rep. 15. a. [t Upon the subject of this and the nine preceding sections, see title 39, the chapter on Merger, by the Editor.] 1 In many of the United States, it is expressly enacted that no deed of a tenant for life or years shall pass any greater estate than he might lawfully convey. See ante, tit. 3, ch. 1, § 36, note. Of course no remainder or reversion can by such deed be divested, and. therefore, no forfeiture incurred. But a tenant for years forfeits his term by a refusal in pais to pay rent, by denying the title of his landlord, and by accepting an adverse title. Jackson v. Vincent, 4 Wend. 633. Title VIII. Estate for Years. Ch. II. s. 51. 275 51. With respect to forfeitures by matter of record, it may be laid down as a general rule, that every act by matter of record, which operates as a forfeiture of an estate for life, will also operate as a forfeiture of an estate for years, (a) 1 (a) Tit. 3. c. 1. s. 37. [ ! An absolute parol lease, made during the term of a written lease, by the landlord to a new tenant, with the consent of the first lessee, amounts to a surrender of the first lease. Whitney v. Myers, 1 Duer, (N. Y.) 266. An abandonment of the premises by the tenant authorizes the landlord to enter. Baker v. Pratt, 15 111. 571 ; Schuisler v. Ames, 16 Ala. 73. Where the condition of the lease was that the tenant should not cut off wood and timber from the premises except for firewood and fencing timber, and the tenant did cut other timber, it was held a forfeiture, and that it could not be avoided by the tenant's showing that all he cut was not more than enough for fire- wood and fencing timber, and that he cut fencing timber from other land. Clarke v. Cummings, 5 Barb. Sup. Ct. 339. A disclaimer by parol of his landlord's title, does not forfeit a written lease for years. De Laucey v. Ga Nun, 12 Barb. Sup. Ct. 120. The receipt of rent by landlord from the tenant, accruing after acts of forfeiture known to the landlord, is a waiver of the forfeiture. Clarke v. Cummings, 5'Barb. Sup. Ct. 339 ; Camp v. Pulver, lb. 91.] 276 TITLE IX. ESTATE AT WILL, AND AT SUFFERANCE. BOOKS OF REFERENCE UNDER THIS TITLE. Coke upon Littleton, 55. a. — 57. b. Woodfall's Law of Landlord and Tenant. (Wollaston's ed.) Smythe's Law of Landlord and Tenant in Ireland. Comyn's Law of Landlord and Tenant. (Chilton's ed.) Kent's Commentaries. Vol. IV. Lect. 56. Blackstone's Commentaries. Book II. ch. 9. Flixtoff on Real Property. Vol. II. Book I. ch. 3. Lomax's Digest. Vol. I. tit. 8. [Taylor's American Law of Landlord and Tenant, (2d edition.)] CHAP. I. ESTATE AT WILL. CHAP. II. ESTATE AT SUFFERANCE. CHAP. I. ESTATE AT WILL. Sect. 15. Six Months' Notice to quit necessary. 16. Tenancies from Year to Year. 23. Bind the Persons in Rever- sion. 24. And devolve to Executors. 26. Six Months' Notice to quit necessary. Sect. 1. Description of. 3. May arise by Implication. 4. [Or by Deed.'] 6. Is at the will of both Parties. 7. Not grantable over. 9. This Tenant sometimes en- titled to Emblements. 11. Cannot commit Waste. 12. What determines this Estate. Section 1. "Tenant at ivill," (says Littleton, s. 68,) "is where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. 1 In this case, the lessee is called i The tenancy is not created until the entry of the lessee. Pollock v. Kittrcll. 2 Tayl. 153. Title IX. Estate at Will, Sf-c. Ch. I. s. 1—3. 277 tenant at will, because he hath no certain or sure estate ; for the lessor may put him out at what time it pleaseth him." 2. Littleton also says, that if a man lets lands to another, to have and to hold to him and to his heirs, at the will of the lessor, the words to the heirs of the lessee are void ; for if the lessee dies, and the heir enters, the lessor shall have an action of tres- pass against him. (a) * 3. An estate at will may arise by implication, as well * 243 as by express words. Thus if a tenant for years holds over his term, and continues to pay his rent as before, such pay- ment and acceptance of rent creates an estate at will. So, where a person makes a feoffment, and delivers the deed to the feoffee, without giving him livery of seisin, and the feoffee enters, he becomes tenant at will. And in a modern case it was held that where a person entered, and enjoyed lands under a lease that was void, paying rent, he was tenant at will, (b) [So, also, it seems to be the better opinion that a person enter- ing under an agreement for a lease must be considered a tenant at will, but the point is not free from doubt, (c) And upon similar principles a person entering under a contract for the purchase of an estate with the consent of the vendor, must be deemed a tenant at will, (d) * In both the preceding cases the possession of the tenant must be referred either to a legal or adverse title ; but as the entry is with the consent of the person entitled to the possession, it can- not be considered adverse ; and as the agreement confers no legal title, the only alternative seems to be, that the person in possession must, by construction of law, be considered tenant at will. 2 (a) Litt. s. 82. (5) 10 Vin. Ab. 400. Lit. s. 70. Denn v. Fearnside, 1 Wils. R. 17G. (c) Hegan v. Johnson, 2 Taunt. 148. Dunk v. Hunter, 5 Barn. & Aid. 322. Doe v. Law- der, 1 Stark. 308. ('/) Right v. Beard, 13 East, 210. Doe v. Jackson, 1 Bar. & Cress. 448. Doe v. Saver, 3 Camp. 8. 1 [A bond from A to convey to B certain premises, upon the payment by B gf a cer- tain note on demand, and interest quarterly, and in the mean time to allow B possession of the premises, does not create a mere tenancy at will so long as B punctually pays the interest, and the principal is not demanded : a trespass will lie by B against one who removes him, under a deed from A, given subsequently to such bond. White v. Liv- ingston ct al., 10 Cush. 259.] - Where one is let into the possession and occupancy of lands under a verbal con- tract to purchase, no rent being reserved ; if the vendee docs not fuliil the contract, he vol. i. 24 278 Title IX. Estate at Will, See. Ch. I. s. 4r—7. 4. Where an estate is in mortgage, and the mortgage deed contains the usual clause, that the mortgagor shall hold until default in payment of principal or interest, the mortgagor, while he continues in the actual possession under this agreement, would, it seems, be considered tenant for years, or from year to year. After default, if the mortgagor continues in actual pos- session, and there is no new agreement between the parties, he is, until payment of interest or other recognition of the tenancy, tenant by sufferance, (a) If the mortgage deed does not contain any clause that the mortgagor shall hold until default, and the mortgagor continues in actual possession, he is tenant at will.] (b) 5. As the tenant at will acquires the possession by the con- sent of the owner, there is a. privity of estate between them ; x but no fealty is due. (c) 6. Lord Coke says, every lease at will must in law be at the will of both parties ; therefore where a lease is made, to have and to hold at the will of the lessor, the law implies it to 244 * be at *the will of the lessee also. So it is when the lease is made to have and to hold at the will of the lessee, this must also be at the will of the lessor, (d) 7. A tenant at will has no certain and indefeasible estate, nothing that can be granted by him to a third person ; because (a) Powseley v. Blackmail, Cro. Jac. 659. See sect. 16. Partridge v. Bere, 5 B. & Aid. 605, n. (a.) Hall v. Surtees, lb. 687. Doe v. Maisey, 8 B. & C. 767. Doe v. Giles, 5 Bing. 431. Ch. 2. s. 1, 2. (b) Keech v. Hall, Dougl. 22. (c) Lit. s. 132, 460. 1 Inst. 270. b. (d) 1 Inst. 55. a. is nevertheless not a tenant from year to year, nor entitled to notice to quit; nor is lie a trespasser, until possession has been demanded of him, and refused. And if, on the other hand, the contract fails on the ground 3 Johns. 417. The English rule of six months' notice has been recognized in Vermont; Hanchef v. Whitney, 1 Verm. E. 311 ; in Kentucky; Hoggins v. Becraft, 1 Dana, E. 30 ; and in Tennessee; Trousdale v. Darnell, 6 Yerg. 431. In Pennsylvania, it is reduced to three months. Logan v. Herron, 8 S. & It. 458, per Gibson, J. See 4 Kent, Comm. 113, 114. In some other States, no precise rule seems to have been adopted. In others, it has been regulated by statutes. Thus, in Delaware, the landlord may deter- mine a tenancy at will by three months' notice to quit. Del. Eev. St. 1829, p. 226. In Maine, New Hampshire, Massachusetts, Michigan, and Indiana, three months' notice, bv either party, may determine this tenancy, for any cause. And if the rent is payable oftener than quarter yearly, then notice equal to the interval between the rent-days is sufficient, in Maine, Massachusetts, Michigan, Indiana, [and Illinois. Prickett v. Bitter, 1G 111. 96. But the notice must not only be as long as the interval between the days of payment, but must terminate at the expiration of such interval; and the date of the notice, in the absence of other evidence, cannot be presumed to be one of the days on which rent was payable. Prescott v. Elm, 7 Cush. 346 ; and the notice must state the cause for which it was given, and the time when the tenant is required to quit. Currier v. Barker, 2 Gray, 224 ; Steward v. Harding, lb. 335. Without such notice to quit, and also after such notice to quit, and before the term for which it was given has expired, the lessee at will, who has not determined the estate by any act of his own, has a lawful and exclusive possession, not only as against a stranger, but also 284 Title IX. Estate at Will, Sfc. Ch. I. 8. 19. 19. An ejectment was brought to recover the possession of a farm of about sixty acres of land, of which fifty-one were enclosed, against the lessor at will ; Dickinson v. Goodspeed, 8 Cnsh. 119. Howard v. Mcrriam, 5 lb. 563.] But if the cause is the non-payment of rent, then ten days' notice is suffi- cient, in Indiana; seven days' in New Hampshire; [Currier v. Perley, 4 Foster, (X. H.) 219;] thirty days' in Maine, [Smith v. Rowe, 31 Maine, 1 Red. 212,] and fourteen days' in Michigan. And in Massachusetts, " in all cases of neglect or refusal to pay the rent due according to the terms of any written lease, fourteen days' notice, given in writing by the landlord to the tenant," is sufficient not only to determine the lease, but also to entitle the landlord to eject the tenant by the summary process of forcible entry and detainer. [See also, Acts 1847, ch. 257, § 1; 1856, ch. 85. A notice requiring the tenant " being in arrears of rent" to deliver up the premises "forthwith " is insufficient. Oakes v. Munroe, S Cash. 282. The notice need not be to quit at the expiration of any term or interval, at which the rent becomes due, but should state a day or time to quit at or after the expiration of the required time of notice, by definitely naming the da)*, or denoting such time with reasonable exactness and certainty. Currier v. Bar- ker, 2 Gray, 228.] In New York, tenancies at will may be determined by the landlord by one month's notice, for any cause; in Connecticut, by thirty days' notice; and in South Carolina, by ten days' notice, if the lease be in writing. In Florida, if the cause be non-payment of rent, three days' notice is sufficient. See LL. Maine, 1840, ch. 95, § 19 ; LL. New Hamp. 1842, ch. 209, § 1—5; LL. Mass. 1836, ch. 60, § 26; 1847, ch. 267- LL. Mich. 1S37, p. 265; LL. Indiana, 1843, ch. 28, § 142, 143; LL. N.York, Vol. II. p. 30, § 7, 3d ed. ; LL. Connecticut, 1S38, tit. 57, ch. 60 ; LL. South Car. Vol. V. p. 676,2 Brev. Dig. p. 16; Thompson's Dig. LL. Florida, p. 398. [Howell v. Howell, 7 Ired. Law (N. C.) 496 ; Phelps v. Long, 9 lb. 226. A tenancy from year to year of a farm used for agricultural purposes, looks to the end of the calendar year for its termination, and if the landlord would determine it, he must, during the current year, give notice of his intention to do so at the end of the year. Floyd v. Floyd, 4 Rich. 23. A notice demanding possession and stating that if possession is not given by a certain day, rent at a given rate will be claimed, is not sufficient. Ayres v. Dra- per. 11 Mis. 548. Sufficient notice to quit was given the tenant. At the expiration of the notice, at the request of the tenant, and for his convenience, the landlord per- mitted the tenant to remain a short time. Held not to be a waiver of the notice and renewal of the tenancy. Babcock v. Albee, 13 Met. 273. But when the lessor, after notice to quit, accepts rent from the lessee for a time subsequent to the expiration of the notice, he waives the notice and continues the tenancy. Collins v. Carty, 6 Cush. 415. Where notice to quit is given "for non-payment of rent" the landlord is limited to that ground of recovery. Tuttle v. Bean, 13 Met. 275. Where a tenancy at will under a parol lease dependent on a condition, (the condition was that the premises should be kept open as a barber's shop,) is determined by a breach thereof, neither of the parties is entitled to notice under the statute permitting a tenancy at will to be determined by giving three months' notice ; and if the tenant holds over, he is a tenant at sufferance. Creech v. Crockett, 5 Cush. 133. The provisions of the statute do not apply, where the tenancy is terminated according to the principles of the common law by the consent of both parties. Cooper v. Adams, 6 Cush. 87. The owner of land leased it by parol for a year in consideration that the lessee should take care of certain trees thereon. The lessee did not take such care. Held that the lessor could not ter- minate the tenancy without notice to quit. Gleason v. Gleason, 8 Cush. 32. A lessee under a parol agreement to pay rent quarterly in advance, is liable, on his failure to do so. to the landlord and tenant process, without notice to quit. Elliott v. Stone, 1 Gray, 571.] Title IX. Estate at Will, Sfc. Ch. I. s. 19—21. 285 and the rest lay in open fields. The taking was from Old Lady- day, 1767, without any fixed term, at <£40 a year rent, payable at Michaelmas and Ladyday. It was proved that a custom pre- vailed, where a tenant took a farm in that township, of which part consisted of open common field, for an uncertain term, that it should be considered as a holding from three years to three years. Lord Chief Justice De Grey said, that all leases for uncertain terms were, prima facie, leases at will ; that the reser- vation of an annual rent turned them into leases from year to year. It was possible that circumstances might make it a lease for a longer term, as when the crop did not come to perfection in less than two years. And he would not say that the nature of the ground or the course of husbandry, might not deserve to be considered, when such a custom came nakedly before the Court. As a custom, the claim could not be supported ; therefore it was a lease from year to year, (a) 20. Where a tenant for life granted a lease for years, which was void against the remainder-man, and the latter, before he elected to avoid it, received rent from the tenant ; it was held to be a tenancy from year to year, (b) 21. Where an agreement for a longer term than three years is made by parol, which is void as to the duration of the term, by the Statute of Frauds ; there is a tenancy from year to year, regulated in every other respect by the agreement, (c) ' (a) Roe v. Rees, 2 Blackst. 1171. (b) Doe r. Weller, 7 Term R. 478. (c) Doe v. Bell, 5 Term R. 471. Tit, 32. c. 3. ' In the State of Indiana, it is provided by statute, that estates not expressly declared to be estates at will, shall be deemed tenancies from year to year. And provisions substantially the same are found in the codes of Delaware and South Carolina. But in New Hampshire, this rule is reversed, and all tenancies are deemed tenancies at will, unless it be otherwise proved. Ibid. In Massachusetts, it has been doubted whether, under the statutes of that State, prior to the revised code of 1836, a tenant at will was entitled to six months' notice to quit ; but it was conceded, upon very full and elaborate consideration, that he was at least entitled, of common justice, to reasonable time to remove from the premises ; and that what constituted reasonable time, was a question for the Court to determine, under the circumstances of the case. Eising v. Stannard, 17 Mass. 287 ; Ellis v. Paige, 1 Pick. 43, with the learned opinion of Putnam, J., in the same case, in 2 Pick. 71, note; Coffin v. Lunt, 2 Pick. 70 ; Keay v. Goodwin. 10 Mass. 1. 1 Wherever a tenant holds over, and there is no evidence of any new and different stipulation, the law will imply the continuance of all those terms in the original lease, which arc applicable to his situation. De Young v. Buchanan, 10 G. & Johns. 149; Phillips v. Monges, 4 Whart. 226 ; Doe v. Geekic, 5 Ad. & El. 841, N. S. Upon the 286 Title IX. Estate at Will, Sfc. Ch. I. s. 22—25. 247 * * 22. In a subsequent case, it appeared in evidence that the defendant had held the premises for two or three years, under a parol demise for twenty-one years ; this being void by the Statute of Frauds, it was contended at the trial that the holding should have been stated according to the legal opera- tion of it, as a tenancy at will. Mr. Justice Rooke, considering it as a tenancy from year to year, overruled the objection. Upon a motion to set aside the verdict, on the ground of a misdirection, Lord Kenyon said the direction was right ; for such a holding now operated as a tenancy from year to year. The meaning of the Statute of Frauds was, that such an agreement should not operate as a term. But what was then considered as a tenancy at will, had since been properly construed to enure as a tenancy from year to year, (a) 23. Where a tenancy from year to year has once commenced^ it continues against any person to whom the lessor afterwards grants the reversion. And Mr. Justice Buller has said, — " It would be unjust to a tenant to say he should be turned out by the assignee of a reversion, or by any person claiming under his lessor, when he could not be turned out by the lessor himself. On the other hand, it is no injustice, it is no hardship on the assignee, to say, he must comply with the same rules and condi- tions, as the person, of whom he bought, has subjected himself to." And in a subsequent case it was held, that a tenancy from year to year would continue against an infant, (b) 24. Tenancies from year to year do not determine by the death of the tenant, but devolve to his executors or administrators. ■ ■ 25. A person having an estate from year to year died intestate ; the question was, what interest vested in his administrator. Lord Kenyon said, — Whatever chattel the intestate had must vest in the administrator, as his personal representative. Then it was supposed that some inconveniences might result from such a determination, but he saw none ; and many inconveniences (a) Clayton v. Blakey, 8 Term R. 3. (6) Birch v. Wright, 1 Term R. 378. Maddon o. White, 2 Term R. 159. expiration of the lease, the landlord has his election, to treat him either as a trespasser, or as a tenant holding over. Conway v. Starkweather, 1 Denio, K. 113. [Baker v. Boot, 4 McLean, 572; Kendall v. Moore, 30 Maine, (17 Shep.) 327 ; Strong v. Crosby, 21 Conn. 398 ; Ames v. Schuesler, 19 Ala. COO; Jackson v. Patterson, 4 Harring, 534; Walker v. Ellis, 12 111. 476 ; Prickett v Putter, 16 lb. 96.] Title IX. Estate at Will, fyc. Ch. I. s. 25—27. 287 might attend a different decision. The tenancy from year to year succeeded to the old tenancy at will, which was attended with many inconveniences. In order to obviate them, the Courts very early raised an implied contract for a year ; ' and added that the tenant could not be removed at the end of the year, without receiving six months' previous notice. All the incon- veniences * which arose between the original parties them- * 248 selves, and against which the wisdom of the law had endeavored to provide, by raising the implied contract, existed equally in the case of their personal representatives, (a) 26. It appears from the preceding case, and many others, that a tenant from year to year is entitled to six months'' notice to quit, ending at the expiration of the year ; and that he must also give the landlord the same notice. 27. [A tenant at will is capable of taking a release of the inheri- tance after he has entered upon the premises, for he has then an estate ; but it is otherwise with a tenant at sufferance, who has a possession, but no privity. The estate of a tenant at will can- not be the foundation of a remainder.] (b) (a) Doe v. Porter, 3 Term R. 13. 15 Ves. 241. Rex v. Stone, 6 Term R. 295. (b) Lit. s. 460. (1 Inst. 270. b.) 8 Co. Rep, 75. a. 1 See Doe d. Clarke v. Smaridge, 7 Ad. & El. 957, N. S. ; Ante, § 16, n. 288 CHAP. II. ESTATE AT SUFFERANCE. Sect. 1. Description of. 5. This Tenant to pay double Value after Notice. 6. Who may give Notice. 7. At what Time. Sect. 9. Acceptance of single Rent no Bar to Recovery. 11. Tenants giving Notice to quit, and holding over, to pay double Rent. Section 1. " Tenant at sufferance" (says Lord Coke,) " is he that at first came in by lawful demise, and after his estate ended continueth in possession ; and wrongfully holdeth over." 1 Thus, 1 This species of estate, Chancellor Kent remarks, is too hazardous to be frequent ; and it is not likely to occur since the Statutes of 4 Geo. 2, c. 28, and 11 Geo. 2, c. 19, imposing double rent upon the tenant holding over after notice to quit, so long as he remains upon the premises. The provisions of these statutes have been substantially reenacted in New York and South Carolina, and in some other States, though they have not been generally adopted in this country. The landlord, however, may also recover the premises by an action of ejectment. But whether, independent of any statute pro- vision, and with gentle and barely adequate force, he might enter upon the tenant hold- ing over, and remove him and his goods, without any agreement to that effect in the lease, may be doubted. It has been held that the sheriff might so enter to levy a fieri facias upon the unexpired interest of the tenant in the term, using only such gentle force as might be requisite for the purpose ; and that the tenant had no remedy against him for so doing, nor against the purchaser of the term at the sheriff 's sale, for the like entry. Taylor v. Cole, 3 T. K, 292 ; 1 H. Bl. 555, S. C. But as between landlord and tenant, it seems that to justify the forcible expulsion of the tenant, the landlord must first have entered peaceably and without force, and thereby gained the peaceable pos- session. Taunton v. Costar, 7 T. E. 431 ; Argent v. Durrant, 8 T. R. 403 ; Newton v. Harland, 1 M. & Gr. 644. If the tenant has personally left the premises, the land- lord may break open the doors to regain possession, though the goods of the tenant are still in the house; for it is no longer his house. Turner v. Meymott, 1 Bing. 158. And see Dorrell v. Johnson, 17 Pick. 263, 266. In some of the United States it has been held, in accordance with the above English decisions, that the landlord cannot justify an entry with personal violence, and that though the tenant by sufferance can- not maintain trespass quare clausumf regit against him, yet he may have an action for any trespass to his person, committed in making the forcible entry upon him. Samp- son v. Henry, 13 Pick. 36 ; 1 1 lb. 379. In New York, it has been decided, that in the case of a tenant holding over, and in all other cases where one has a title to enter, the owner may regain the lawful possession by force, even though he may be liable for the force used, Title IX. Estate at Will, Sfc. Ch. II. s. 1—4. 289 where a tenant powr aider vie, continues in possession after the death of cestui que vie, or a tenant for years holds over his term, they become tenants at sufferance. So where a person makes a lease at will, and dies, the estate is thereby determined ; and if the lessee continues in possession, he is tenant at sufferance, (a) 1 2. Where a man comes to a particular estate by the act of the parti/; there if he holds over, he is tenant at sufferance. But where he comes to the particular estate, by act in law, as if a guardian, after the full age of the heir, continues in possession, he is not a tenant at sufferance, but an abator, (b) 2 3. No person can be a tenant at sufferance against the king, for no laches can be imputed to his majesty in not entering ; therefore, if the king's tenant holds over, he will be considered as an intruder, (c) 4. There is no privity of estate between a tenant at sufferance, and the owner of the land ; for this tenant only holds by the (a) 1 Inst. 57. b. {b) 1 last, 57. b. 2—134. Vid. sup. p. 243. s. 4. (c) 1 Inst. 57. b. 2 Leon. 143. under the statute against forcible entry and detainer. Wild v. Cantillon, 1 Johns. Cas. 123; Hyatt v. Wood, 4 Johns. 150; Ives v. Ives, 13 Johns. 235; Jackson v. Farmer, 9 Wend. 201 . And in England, though the landlord may not forcibly enter upon a ten- ant, in any ease ; yet, where the lease contained a clause that in default of performance of covenants on the part of the tenant, it should be lawful for the landlord or his agent to enter upon the premises and take possession, as effectually as a sheriff might do under a writ of habere facias, and that in case of any action being brought for so doing, the defendant might plead leave and license therefor, of which the agreement should be conclusive evidence ; and an action of trespass was brought for such entry and forcible expulsion, the declaration also alleging an assault and battery, to which, among other pleas, leave and license was pleaded ; — it was held that the agreement was a conclu- sive answer to the declaration, under such plea, and that if the plaintiff intended to rely upon the assault and battery as distinct from the cutry and expulsion, he should have newly assigned the excess. Kavanagh v. Gudge, 8 Jur. 362 ; 7 Man. & Gr. 316, S. C. 1 If mortgaged premises are sold pursuant to a power contained in the mortgage, the mortgagor, if he remains in possession, is a tenant at sufferance. Kinsley v. Ames, 2 Met. 29. So. if the lessee for years, under a parol lease, agrees to quit within the term, if the premises should be sold, and they are sold accordingly, and he continues afterwards in possession, he is a tenant at sufferance. Hollis v. Pool, 3 Met. 350. [Where a tenancy at will under a parol lease, dependent on a condition, is terminated by a breach thereof, neither of the parties is entitled to notice to terminate the tenancy, and if the tenant holds over, he is a tenant at sufferance. Creech v. Crockett, 5 Cush. 133. A tenant at sufferance is not entitled to notice to quit. Kelly v. Wake, 12 Met. 300.] - Or, a disseisor, by election. Blunden v. Baugh, Cro. Car. 302 ; 1 Inst. 57, b. note [383] ; Dyer, 62, a. pi. 34. VOL. I. 25 290 Title IX. Estate at.Wi/l, Sfc. Ch. II. s. 4—5. laches of the owner, [so that there cannot be a release 250* from the * latter to the former, which will operate by- enlargement of his estate.] 5. Tenants at sufferance were not liable, by the common law, to pay any rent, because it was the folly of the owners to suffer them to continue in possession after the determination of the preceding estate. 1 f [ * Whether tenants at sufferance in Massachusetts are liable to pay rent, see Delano v. Montague, 4 Cush. 42.] [ t But now, by the Statute 4 Geo. 2, c. 28, s. 1, it is enacted, that where any tenant holds over, after demand made, and notice in writing given for delivering the posses- sion, such persons so holding over shall pay double the yearly value of the lands so detained, for so long time as the same are detained ; to be recovered by action of debt ; against the recovering of which penalty there shall be no relief in equity. The landlord, by himself, or by his agent lawfully authorized, is the proper person to give notice. But it was held, in a modern case, that a receiver, appointed by the Court of Chancery, is an agent for the landlord, authorized by this act to give a tenant notice to quit the premises ; and that a notice in writing to quit is of itself a sufficient demand. Wilkinson v. Collcy, 5 Burr. 2694. A notice to quit under this statute may be given previous to the expiration of the lease under which the tenant holds the lands. Lands were leased from the 10th October, 1763, for eleven years. The person en- titled to the reversion gave a written notice to the tenant on the 30th September, 1773, and again repeated the like notice on the 7th October, 1774, or to pay double value. On the 10th October, the reversioner went on the premises, and demanded possession, which was refused. In an action for double value, the jury gave a verdict for the plain- tiff. A motion was made for a new trial, — Because, 1. By the Statute 4 Geo. 2, notice to quit must be given after, and not before, the expiration of the term. 2. The lease did not expire till midnight, and possession was demanded in the preceding after- noon. Lord Chief Justice De Grey was of opinion, that the notice to quit might be previous to the expiration of the term. It prevented surprise, and was most for the benefit of both landlord and tenant. Mr. Justice Blackstone said, that a notice or requisition to the tenant to quit at the end of his term, implied that it must be previous. It would be absurd, because impossible to be complied with, to require after the 251* expiration of the term * that the tenant should quit at the expiration. The motion was refused. Cutting v. Derby, 2 Black. R. 1075. Although a landlord, after bringing an ejectment, and after the time laid in the demise, should, agree to accept the single, instead of the double rent, to which, by the statute, he is entitled, yet he will not be thereby precluded from recovering in the eject- ment. It was held, in a modern case, that where a demise is for a certain time, no notice to quit is necessary at or before the end of the term, to put an end to the tenancy. That a demand of possession, and notiee in writing, &c, are necessary to entitle the landlord to double rent or value. That such demand may be made for that purpose six weeks afterwards, if the landlord have done no act in the mean time to acknowledge the continuation of the tenancy ; and he will thereupon be entitled to double value, as from the time of such demand, if the tenant holds over. Cobb v. Stokes, 8 East, 358. Title IX. Estate at Will, Sfc. Ch. II. s. 5. 291 By the Stat. 11 Geo. 2, c. 19, s. 18, reciting that great inconvenience had happened to landlords, whose tenants had power to determine their leases, by their civinir notice to quit, and yet refusing to deliver up the possession, when the landlord hath agreed with another tenant for the same ; it is enacted, — " That in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises by him, her, or them holden. at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained ; that then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid." It was resolved, in a modern case, that this act is not confined to those tenants who have a clause in their leases enabling them to quit at the end of seven, eleven, or fourteen years, upon giving notice ; but also to parol leases for a year. And that a parol DOtice was sufficient, because the statute did not require a written one. Timmins v. Rowlinson, 1 Black. R. 533; 3 Bun - . 1603. By the Stat. 1 Geo. 4, c. 87, various provisions are made for enabling landlords more speedily to recover possession of lands and tenements unlawfully held over by tenants. *In Doe v. Roe, it was decided that a tenancy by virtue of an agreement in *252 writing, for three months certain, is a tenancy <: for a term,'' within the meaning of the above acts. But where a tenant holds from year to year, but without a lease or agreement in writing, it is not a case within the first section of the act. 5 Bar. & Aid. 766, 770.] 292 TITLE X. COPYHOLD. 1 1 Copyhold Estates being unknown in America, this Title is omitted. 293 TITLE XI. USE. BOOKS OF REFERENCE UNDER THIS TITLE. Lord Bacon's Reading upon the Statute of Uses. (By Rowe.) G. Spence, on the Equitable Jurisdiction of the Court of Chancery. Vol. I. Peart II. Book III. ch. 2—6. R. Preston, on Estates. Vol. I. p. 142 — 184. TV". F. Cornish. Essay on Uses. Ch. Baron Gilbert, on the Law of Uses and Trusts. (Sugden's ed.) F. W. Sanders. Essay on Uses and Trusts. (5th ed.) J. Wilson. Treatise on Springing Uses. Blackstone's Commentaries. Book II. ch. 20. Kent's Commentaries. Vol. IV. Lect. 61. Lomax's Digest. Vol. I. tit. 9. Charles Butler. Note to Coke upon Littleton, 271. b. note 231. Flintoff on Real Property. Vol. II. Book I. ch. 19. The source of Roman Law on this subject is in the Institutes of Justinian, Lib. II. tit. 23, with the various commentaries thereon. See also Van Der Linden's Institutes of the Laws of Holland, Book I. § 8. CHAP. I. ORIGIN OF USES. CHAP. II. NATURE OF A USE BEFORE THE STATUTE 27 HEN. VIII. CHAP. III. STATUTE 27 HEN. VIII. OF USES. CHAP. IV. MODERN DOCTRINE OF USES. CHAP. I. ORIGIN OF USES. Sect. 1. Origin of Uses. | Sect. 11. Jurisdiction of the Chancel- 5. Derived from the Fidei Com- | lors over Uses. niissum. 13. Introduction of the Writ of ' Subpoena. Section 1. Having treated of legal and customary estates, we now come to discuss the nature and properties of what are called Equitable Estates. 25* 294 Title XL Use. Ch. I. s. 1—6. The original simplicity of the common law admitted of no im- mediate estate in lands, which was not clothed with the legal seisin and possession. But in process of time a right to the rents and profits of lands, whereof another person had the legal seisin and possession, was introduced ; and though not recog- nized for a long time by the courts of common law, was, 331 * 'notwithstanding, supported by the Court of Chancery, and became well known by the name of a use. 2. The introduction of this novelty has been attended with the most important consequences ; for though, at first, it appears to have been but a trivial innovation, yet in its progress it has, in fact, produced a revolution in the system of real property, and has introduced a mode of transferring land very different from that which the old law had originally established ; for the doc- trine of uses is become the foundation of the modern system of conveyancing. 3. A use was created in the following manner : — The owner of a real estate conveyed it by feoffment, with livery of seisin to some friend, with a secret agreement that the feoffee should be seised of the lands to the use of the feoffor, or of a third person. Thus the legal seisin was in one, and the use or right to the rents and profits was in another. 4. It would be a matter of considerable difficulty to ascertain the precise time when this distinction between the legal seisin and the right to the rents and profits was first introduced. It is, however, certain, that the practice of conveying lands to one per- son, to the use of another, did not become general till the reign of King Edward III., when the ecclesiastics adopted it, in order to evade the Statutes of Mortmain, by procuring conveyances of lands to be made, not directly to themselves, but to some lay per- sons ; with a secret agreement that they should hold the lands for the use of the ecclesiastics, and permit them to take the rents and profits, (a) 5. The idea of a use, and the rules by which it was first regu- lated, are now generally admitted to have been borrowed by the ecclesiastics from the Fidei Commissum of the civil law, of which it will, therefore, be necessary to give some account, (b) 6. By the Roman law, a great number of persons were inca- pable of being constituted heirs, or even of taking a legacy under (a) Bac. Read. Ed. 17S5. 22. 1 Rep. 123. a. (6) Bac. Bead. 19. Title XL Use. Ch. I. s. 6—9. 295 the testament of a Roman citizen ; such as exiles, unmarried persons, those who had no children, &c. In order to evade this law, it became usual for testators to constitute some person to be their heir, who was capable of taking the inheritance ; and to annex a request to the devise, that the person thus constituted heir should give the property to some other person who was in- capable of taking directly under the will. Quibus enim non *poterunt hcereditatem vel legata relinquere, si relin- * 332 qiiebant, fidei committebant eorum qui caper e ex testamento poterant. (a) 7. This was called a Fidei Commissum, of which the form is preserved in Justinian's Institute. — Cum igitur aliquis scripserit, Lucius Titius Hceres esto ; potest adjicere, Rogo te Luci Titi, tit cum primum poteris hcereditatem meam adirc, earn Caio Seio reddas, restituas. And in cases of this kind, the person thus constituted heir was called Hceres Fiduciarius, and the person to whom the testator directed the inheritance to be given was called Hceres Fidei-commissarius. (b) 8. The Hceres,. Fidei-commissarius had only what the Roman lawyers called a Jus Precarium, that is, a right in curtesy, for which the remedy was only by entreaty or request ; so that the hceres fiduciarius was under no legal obligation of complying with the request of the testator. Sciendum itaque est omnia fidei-commissa primis temporibus infirma fuisse ; qida nemo in- vitus cogebatur prcestare id de quo rogatus erat. Et ideo fidei commissa appellata sunt, quia nidlo vinculo juris, sed tantum pudore eorum qui rogabantur, continebantur. (c) 9. Thus stood the Roman law respecting the Fidei commissum for some centuries, during which several frauds were committed by those who, being constituted heirs, with a direction to give the inheritance to some other person, refused to execute the trust reposed in them by the testator, and converted the property to their own use. This induced the Emperor Augustus to direct the consuls to take cognizance of all future cases of this kind. — Postea Divus Augustus Primus, semel iterumque gratia persona- rum motus, vel quia per ipsius salutem rogatus quis diceretur, aut ob insignem quorundam perfidiam, jussit consulibus auctoritatem suam interponere. Quod quia justum videbatur, et popular e erat, (a) Vinnius, ad Instit. lib. 2. tit. 23. s. 1. (P. Voet, ad eundem.) Just. Inst. lib. 2. tit. 23. s. 1. (b) Just. Inst. lib. 2. tit. 23. s. 1. (c) Just, Inst. lib. 2. tit. 23. s. 1. 296 Title XL Use. Cli. I. s. 9—12. paulatim conversum est in assiduam jurisdictionem ; tantusque eorum favor f actus est, ut paulatim etiam Prcetor proprius creare- tur, 'qui de Fidei-commissis jus diceret, quern Fidei-commissarium appellabant. (a.) 10. The Emperor Justinian completed this system, and ex- tended the rights of the Hceres Fidei-commissarius by a law which enacted, that if a testator should direct the person whom he instituted his heir to give either the whole, or a part of the inheritance, to another, and this circumstance could not be proved, either by the written will of the testator, or the testimony of five witnesses, in case the person instituted heir should *333 refuse to * comply with the intentions of the testator, he was compellable either to take a solemn oath that the tes- tator had not created any fidei commissum, or else to execute the trust reposed in him. (b) 11. Upon the first introduction of uses 1 into the English law, the person to whom a use was limited, who was called the cestui que use, was exactly in the same situation with the Hceres Fidei-commissarius ; and depended entirely on the good faith of the feoffees to uses, or the persons to whom the lands were con- veyed. And it is natural to suppose, that while the rights of the cestui que use were so extremely precarious, and depended so en- tirely on the good faith of the feoffee to uses, many breaches of trust were committed. Nor is it improbable but that even the ecclesiastics, who first introduced this species of property, be- came, in some instances, the dupes of those to whom lands had been conveyed for their use. This induced the clerical chan- cellors of those times to consider the limitation of a use as similar to a fidei-commissum, and binding in conscience ; they, therefore, assumed the jurisdiction which the Emperor Augustus had given to the Roman consuls, of compelling the execution of uses in the Court of Chancery. 12. It, however, soon appeared that even this assumed juris- diction was not sufficient to answer their purpose ; for whenever a positive declaration of a use could not be proved, which must (a) Just. Inst. lib. 2. tit. 23. s. 1. (6) Just. Inst. lib. 2. tit. 23. s. 12. 1 For the origin and nature of Uses and Trusts, and their introduction into England, see Spence on the Equitable Jurisdiction of the Court of Chancery, Vol. I., part 2, book 3, ch. 2. Title XL Use. Ch. I. s. 12—15. 297 frequently have happened, when uses were declared in a secret manner, by words only, without writing, the Court of Chancery could not compel the feoffees to uses to execute them, there being no leo-al proof that they held the lands to the use of any other persons. 13. To remedy this inconvenience, John Waltham, Bishop of Salisbury, and Chancellor to King Richard II., took advantage of the privilege given him by the Statute of Westminster 2, 13 Edw. I. c. 34, of devising new writs ; and invented a new writ of snbpcena, returnable only into the Court of Chancery, which was used there for the same purpose as a citation in the courts of civil and canon law, to compel the appearance of a defendant, and to oblige him to answer upon oath the allegations of the plaintiff, contrary to one of the first principles of the common law, that no man can be compelled to charge himself. 14. It is well known how averse the English nation always * was from any alteration of their ancient customs, * 334 and that they were particularly jealous of every maxim or rule taken from the civilians or canonists, which was attempted to be introduced or substituted in the room of the common law. Accordingly, we find that this innovation did not pass unnoticed. For early in the next reign, — namely, in 2 Hen. IV., the Com- mons took notice of this writ of snbpcena, and presented a strong petition to the king against it, praying that it might be abolished ; to which Henry, who was not then firmly settled on the throne, gave a palliating answer, (a) 15. Another petition was presented by the Commons to King Henry V., complaining of the hardships to which all persons were become liable, from the introduction of this new writ of subpoena ; observing that it was a novelty, against the form of the common law, which John Waltham, late Bishop of Salisbury, out of his subtilty found out and begun, by which persons were compelled to answer upon oath, pursuant to the form of the civil law, and the law of the holy church; praying that those who sued out such a writ should insert in it all their allegations. And that if any person was aggrieved by a writ of this kind, in any matter which was determinable at common law, he should be paid the sum of .£40. To this the king returned an answer in the negative ; by which this writ of snbpcena became firmly («) Rot. Pari. vol. 3. 471. 298 Title XL Use. Ch. I. s. 15—18. established ; and was thenceforth constantly used for the purpose of compelling all persons to declare on oath whether they held particular lands to their own use, or to the use of others, (a) 16. From this account of the progress of uses, it evidently ap- pears that the ecclesiastical chancellors adopted the principles of the civil law in the support of them ; and that the Bishop of Salis- bury derived the idea of the writ of subpoena, returnable into Chancery, from that law of Justinian, which has been mentioned in the preceding part of this chapter. 17. Notwithstanding the invention of the writ of subpoena, it appears that the Court of Chancery did not immediately possess itself of that absolute jurisdiction over persons enfeoffed to uses, which it afterwards exercised. For in the Rolls of Parliament, 9 Hen. V., there is a petition from William Lord Clynton, stating, that upon his going on an expedition to Ireland, he had enfeoffed William de la Poole of all his lands, for the performance of his will, which the said Poole refused to perform ; and prayed 335* remedy. * When, upon full proof of the surmise aforesaid, it was enacted, Poole being present, that he should reen- feoff the said lord, or whom he would, and their heirs for ever, discharged of all incumbrances done by the said Poole; the which Poole did in open parliament, in two deeds, there en- rolled, (b) 18. The abuses arising from the writ of subpoena were, in some degree, restrained by the Statute 15 Hen. VI. c. 4, which, after reciting, — " That divers persons had been greatly vexed and grieved by writs of subpoena, purchased for matters determinable by the common law of the land, to the great damage of such persons so vexed, and in subversion and impediment of the common law." It was enacted that no writ of subpoena should be granted, until surety was found to satisfy the party so grieved and vexed for his damages and expenses, if the matter could not be made good which was contained in the bill. (a) Kot. Pari. vol. 4. 84. (b) Kot. Pari. vol. 4, 151. 299 CHAP. H. NATURE OF A USE BEFORE THE STATUTE 27 HEX. VIII. Sect. 1. A Use ivas a Rigid in Con- science only. 8. Founded on Confidence in the Person. 12. And Privity of Estate. 15. Who might be seised to Uses. 19. What might be conveyed to Uses. Rules by which Uses were governed. Could not be raised without Consideration. 22. Not an object of Tenure. 24. Not subject to Forfeiture. 26. Not extendible, nor Assets. 27. Not subject to Curtesy or Dower. 20 21. Sect. 28. Uses icere alienable. 32. Without Words of Limita- tion. 33. Might commence in future 34. Might be revoked. 35. And change by Matter sub- sequent. 36. Were devisable. 38. And descendible. 40. Inconveniences of Uses. 41. Statutes made to remedy them. 45. [Distinction between Uses and Trusts before the Stat. 27 Hen. VIII. c. 10.] Section 1. Lord Bacon, in his justly celebrated Reading on the Statute of Uses, observes, that it is the nature of all human science and knowledge to proceed most safely by negative and exclusive, to what is affirmative and inclusive ; and then says, — " An use is no right, title, or interest in law." Neither jus in re, nor ad rem, that is, neither an estate nor a demand ; so that it was nothing for which a remedy was given by the course of the common law, being a species of property totally unknown to it, and for which it was, therefore, impossible that it should have made any provision, (a) 2. Lord Bacon then proceeds to state affirmatively what a use is ; and after giving the definition of a use from Plowden, 352, — namely, that a use is a trust reposed by any person in the terre-tenant, that he may suffer him to take the profits, and that (a) Bac. Read. 5. 1 Rep. 140. a, 300 Title XL Use. Ch. II. s. 2—5. 337 * he * will perform his intent, he says, Usus est dominium fiduciarium; use is an ownership intrust. So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei; for that one of them is in court of law, the other in court of conscience, (ay 3. The reason why the cestui que use had no property what- ever, by the common law, in the lands given to his use, was, because where lands were legally conveyed to one person to the use of another, the limitation of the use was deemed absolutely void ; as it only derived its effect from the declaration of the feoffor ; whereas no legal right to a freehold estate in lands could be transferred, without the ceremony of livery of seisin. 4. Thus, in a case mentioned in the Year Books, where A enfeoffed B to the use of himself, the judges observe, that in Chancery a man shall have his remedy according to conscience ; but in the Common Pleas and the King's Bench it was other- wise ; for the feoffee should have the land, and the feoffor should have nothing against his own feoffment, though it was only upon confidence. And it is said in Plowden, 349, that by the common law cestui que use could not enter upon the land ; but if he had entered, the feoffees might have an action of trespass against him, and punish him ; for the land as fully belonged to the feoffees, as if there had been no use of it; so that if the feoffees had ousted the cestui que use, or had sued him for taking the profits, he would not have any answer or defence at the common law, but was driven to seek his remedy in a court of conscience, (b) 5. Although the cestui que use was generally in possession of the lands, yet he was only considered, by the courts of common law, as tenant at sufferance ; his title to the land was of so low and precarious a nature, that he could not even justify the seizing of cattle for trespass. And if he made a lease, the lessee might plead that he had nothing in the land, (c) («) (Bacon, Read. 9.) (b) 4 Edw. 4. 3. (c) 1 Rep. 140. a. 1 Chief Baron Gilbert describes an Use to be " where the legal estate of lands is in a certain person, and a trust is also reposed in him, and all persons claiming in privity under him, concerning those lands, that some person shall take the profits, and be so seised or possessed of that legal estate, to make and execute estates according to the direction of the person or persons for whose benefit the trust was created." Gilb. on Uses, p. 1. Title XL Use. Ch. II. s. 6—9. 301 6. When the Court of Chancery first assumed a jurisdiction in cases of uses, it went no farther than to compel payment of the rents and profits to the cestui que use. In process of time it proceeded another step ; and established it as a 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 compel him to * defend the title to the land. Hence Lord Bacon has * 338 said that a use consists of three parts : — " The first, that the feoffee will suffer the feoffor to take the profits ; the second, that the feoffee, upon the request of the feoffor, or notice of his will, will execute the estate to the feoffor or his heirs, or any other by his direction ; the third, that if the feoffee be disseised, and so the feoffor disturbed, the feoffee will reenter, or bring an action to recontinue the possession. So that these three, per- nancy of the profits, execution of estates, and defence of the land, are the three points of a trust or use." (a) 7. As to the legal estate in the land, it was vested in the feoffee to uses, who performed the feudal services, and who was in every respect deemed to be the tenant of the fee ; for it was liable to all his incumbrances ; his widow was dowable of it ; if he died, leaving an infant heir, the lord, as guardian to the infant, became entitled to hold the lands during the infancy ; and if he was attainted of treason or felony, they were forfeited. 8. The right in conscience and equity to the rents and profits of land, which constituted a use, was not issuing out of the land, but was collateral thereto, and only annexed in privity to a par- ticular estate in the land ; that is, the use was not so attached to the land, that when once created it must still have existed, into whose hands soever the lands passed, as in the case of a rent, or right of common, but it was created by a confidence in the origi- nal feoffee ; and continued to be annexed to the same estate, as long as that confidence subsisted, and the estate of the feoffees remained unaltered. So that to the execution of a use two things were absolutely necessary ; namely, confidence in the per- son, and privity of estate, (b) 9. Confidence in the person signified the trust reposed in the feoffees, that arose from the notice given them of the use, and of («) Bac. Read. 10. (b) 1 Rep. 122. a. Plowd. 352. Poph. 71. vol. i. 26 302 Title XL Use. Ch. II. s. 9—11. the persons who were intended to be benefited by the feoffment ; which was sometimes expressed, and sometimes implied. Thus if a feoffee to uses enfeoffed another person of the land, who had notice of the uses to which such land was liable, the new feoffee took it under an implied confidence, and was compellable to exe- cute the use. For it was resolved that whenever there were feoffees to a use, their heirs and feoffees, and all who came into the land under them, in the per, without consideration, and with notice of the use, should be seised to such use, and be 339 * compelled * in chancery to execute it. But if a feoffee to uses enfeoffed a stranger of the land, for valuable con- sideration, and without notice of the use, as in that case, there was no confidence in the person, either express or implied, the use was destroyed ; and the new feoffee could not be compelled to execute it. (a) 10. If, however, a stranger purchased lands from a feoffee to uses, for a valuable consideration, with notice of the uses to which the lands had been conveyed, he would, in that case, be compelled to perform them. For although the consideration im- plied a seisin to his own use, yet the notice of the former uses was a circumstance which, in the Court of Chancery, would ren- der him liable to the performance of them, (b) 1 11. The doctrine of confidence in the person was at first ex- tremely limited, as it only extended to the original feoffee ; for Lord Bacon says, the judges, in 8 Edw. IV., were of opinion that a subpcena did not lie against the heir of the feoffee, who was in by law, but that the cestui que use was driven to his bill in par- liament. It appears, however, to have been settled in the reign of King Henry VI. that a subpoena would lie against all those who came in in the per, without paying a valuable consideration, and also against all those who had notice of the former uses ; although they did pay a valuable consideration, (c) (a) Bro. Ab. tit. Feoff. Al. Use, pi. 10. 1 Rep. 122. b. Gilb. Uses, 178. (6) 1 Rep. 122. b. Gilb. Uses, 179. '(c) Bac. Read. 23. Keihv. 42. ] See Story on Equity Jurisp. Vol. L § 395, Vol. II. § 1257 ; 4 Kent, Coram. 307 ; 1 Fonbl. Eq" book 2, ch. 6, § 2 ; Murray v. Ballou, 1 Johns. Ch. 566 ; Dunlap v. Stet- son, 4 Mason, 349; Saunders v. Dehew, 2 Veru. 271 ; Adair v. Shaw, 1 Sch. & Lefr. 262, per Ld. Bedesdale ; Wilson v. Mason, 1 Cranch. 100, per Marshall, C. J. ; Thompson v. Wheatley, 5 Sm. & Marsh. 499 ; Harrisburg Bank v. Tyler, 3 Watts & Serg. 373 ; Lee v. Tiernan, Addis. B. 343. Title XL Use. Ch. II. s. 12—15. 303 12. With respect to privity of estate, it is to be observed that a use was a thing collateral to the land, and only annexed to a particular estate in the land, not to the mere possession thereof; so that whenever that particular estate in the land to which the use was originally annexed was destroyed, the use itself was destroyed. Thus where a person came into the same estate whereof the feoffee to uses was seised, 1 such person was liable to the performance of the uses. But if he came in of any other estate than that whereof the feoffee to uses were seised, 2 even with full notice of the use ; yet as the privity of estate was thereby destroyed, the lands were no longer liable to the uses, (a) 13. It followed from these principles that where a feoffee to uses was disseised, the disseisor could not be compelled in chan- cery to execute the use, because the privity of estate was de- stroyed. For the disseisor came in in the post, that is, he did not claim by or from the feoffee to uses, but came in of an estate paramount to that of such feoffee. Whereas if a person was * disseised of lands which were liable to a rent, right * 340 of common, or other charge of that kind, the lands would still continue subject to those charges, notwithstanding the dis- seisin; because they were annexed to the possession of the land, (b) 14. In the same manner where a feoffee to uses died without heirs, or committed a forfeiture, or married ; neither the lord who entered for his escheat or forfeiture, nor the husband claiming the lands as tenant by the curtesy, nor the wife who was as- signed dower, were subject to the uses, because they were not in in the per; that is, in privity of the estate to which the use was annexed, but claimed an interest paramount to it. (c) 15. With respect to the persons who were capable of being feoffees to uses, all private persons whom the common law enabled to take lands by feoffment, might be seised to a use ; and were compellable in chancery to execute it. Thus Lord Bacon says, — " A feme covert, and an infant, though under the years of discretion, may be seised to a use. For as well as land might descend to them from a feoffee to use, so might they originally (a) 1 Rep. 139. b. (b) 1 Rep. 139. b. 122. b. (c) 1 Rep. 122. a. 1 As, for example, by purchase or descent from him. 2 Namely, by paramount title, or by disseisin. 304 Title XL Use. Ok. II. s. 15—17. be enfeoffed to a use." But a corporate body could not be seised to a use ; 1 because the Court of Chancery could not issue any process against them for the execution of it. And a corporation could not be intended to be seised to any other's use. (a) 16. Neither the king, nor a queen regnant, on account of then- royal capacity, could be seised to any use but their own ; that is, they might hold the lands, but were not compellable to execute the use ; as no process could be awarded against them by the Court of Chancery, (b) 17. When King Richard III. was Duke of Gloucester, he had been frequently made feoffee to uses, so that upon his accession la) Bac. Read. 58. Plowd. 102. (b) Year Book, 7 Edw. 4. 17. 1 Three reasons have been assigned for this disability; namely, that a corporation, by its very nature, is not subject to any personal process of Chancery to compel the execution of the use or confidence ; that it cannot execute any use for others without wronging the founder, its capacity being created for a specific purpose or use certain ; and that the Statute of Uses, where it speaks of the feoffee, employs only the word person ; whereas, when it speaks of the cestui que use, it says, person or body politic. See Bacon on Uses, by Howe, p. 57 ; Ibid. p. 42, and note (66) ; Gilbert on Uses, by Sug- den, p. 5, n. 1 ; Cornish on Uses, p. 128 ; Sanders on Uses, &c, Vol. II. p. 27, note (4), 5th ed.; 2 Preston on Convey, p, 254. These reasons, howevei-, have not been deemed entirely satisfactory in England ; and the doctrine has been found inconvenient, as it goes to prevent a corporation from conveying by deed of bargain and sale, or by any other instrument, deriving its effect from the Statute of Uses. To avoid this incon- venience, and to enable corporations to convey in those modes, a distinction has been taken between standing seised to an use, and giving an use ; it being held that a cor- poration may well convey by way of use, though it cannot take, or stand permanently seised, to the use of others. Holland v. Bonis, 2 Leon. 121,3 Leon. 175 ; 2 Com. Dig. tit. Bargain and Sale, b. 3. But the authors above cited, as well as other jurists, plainly regard this distinction as a refinement not fit to be followed in judicial decisions ; and the rule itself is now defended in England rather upon the ground of authority than of principle. In the United States, neither of the reasons originally given for the rule, have any application ; for corporations are subject to the process of Chancery, the answer and discovery being made by their officers ; Story on Eq. Plead. § 235 ; and obedience being enforced by distringas, sequestration, and injunction, the execution of an use can work no injury to the designs of the founder, whatever may be said of certain trusts, foreign to the purposes of the corporation ; and as to the word person, in the statute, it is now generally, and perhaps universally, held, to apply as well to bodies corporate as to individuals. United States v. Amedy, 11 Wheat. 392 ; Planters' and Merch. Bank v. Andrews, 8 Port. 404. And see Louisville Eailroad Co. v. Letson, 2 How. S. C. R. 497. It is, therefore, the rule of American law, that corporations may be seised to any use or trust, not foreign to the purposes of their creation. 2 Kent, Comm. 279, 280 ; Angell & Ames on Corporations, ch. 5, p. 100—105, 153, 154, 2d ed. See post, tit. 1 2, ch. 1 . [So may voluntary, unincorporated associations, that are capable of being designated, identified and ascertained by legal proof. Tucker v. Seaman's Aid Society, 7 Met. 188; Washburn v. Scwall, 9 lb. 280; Earle v. Wood, 8 Cush. 430; King v. Parker, 9 lb. 71 ; Post, ch. 3, § 22, note, p. *354.] Title. XL Use. Ch. II. s. 17—21. 305 to the throne, he would have been entitled to hold the lands so conveyed to him, discharged of the uses. To obviate so notorious an injustice, an act of parliament was immediately passed, by which it was enacted that where the king had been so enfeoffed jointly with other persons, the lands should vest in the other feoffees, as if he had never been named. And that where the king stood solely enfeoffed to uses, the estate should vest in the cestui que use in like manner as he had the use. (a) 18. A queen consort could not be seised to a use ; for al- though she was enabled to grant and purchase without the* king, yet in regard of the government and interest *341 which the king had in her possessions, she could not be seised to a use. (6) 19. With respect to the species of property which might be conveyed to uses, it was held that nothing whereof the use was inseparable from the possession, such as annuities, ways, com- mons, &c, quce ipso usu consumuntur, could be granted to a use. But that all corporeal inheritances, as also incorporeal heredita- ments, which were in esse, as rents, advowsons in gross, local liberties, and franchises, might be conveyed to uses, (c) 20. A use being a species of property totally unknown to the common law, and owing its existence to the equitable jurisdiction of the Court of Chancery, the rules by which uses were governed were derived from the civil law ; 1 and differed materially from those by which real property was regulated in the courts of common law. Hence Lord Bacon has observed, that uses stood upon their own reasons, utterly differing from cases of posses- sion, (d) 21. By the common law, a feoffment of land was good with- out any consideration. But Lord Bacon says it was established in Chancery, that a use could not be raised without a sufficient consideration; a doctrine evidently taken from the maxim of the civil law, ex nudo pacto non oritur actio. In consequence of which the Court of Chancery would not compel the execution (a) Stat. 1 Rich. 3. c. 5. (&) Bac. Read. 57. (c) W. Jones, 127. (<*) Bac. Read. 13. i Though the Roman jurisprudence may be regarded as the source of Equity Juris- diction, yet what was there found was largely extended and improved upon by the clerical chancellors and their successors. See Spence on the Equitable Jurisdiction of Chancery, Vol. I. p. 435. 26* 306 Title XL Use. Ch. II. s. 21—26. of a use, unless it had been raised for a good or a valuable con- sideration ; as that would be to enforce a donum gratuitum. (a) 22. A use not being considered as an estate in the land, was not an object of tenure ; and was, therefore, exempt from all those oppressive burdens which were introduced into England by the Normans, as consequences of the feudal system. Thus if a cestui que use died, leaving a son, or a daughter, within age, the lord had not the wardship or marriage of the heir, or a relief on the death of the ancestor ; nor could he claim the lands as an escheat, on the death of the cestui que use without heirs. (b~) 23. After the ecclesiastics had been restrained by the Stat. 15 Rich. II. c. 5, from acquiring the use of lands, it might be sup- posed that the practice of conveying lands to uses would have ceased. But it was soon found that this was the most effectual mode of evading the hardships of the feudal tenures. 342 * * 24. Where a cestui que use was attainted of treason or felony, the use was not forfeited, either to the king, or to the lord of the fee ; because a use was not held of any person. So that during the contests between the houses of York and Lancaster, as it was the constant practice to attaint the van- quished, almost all the lands of the nobility were conveyed to uses, (c) 25. In some general acts of parliament relating to treason, as that of 21 Rich. II. c. 3, 1 and in most particular acts of attainder passed after that time, there was a special provision made, that the persons attainted should forfeit all lands whereof they, or any to their use, were seised. And in most of those acts provision was also made to save from forfeiture such lands whereof the persons attainted were seised, to the use of others. 26. A use was not extendible, because there was no process at common law, but against legal estates ; for uses were mere creatures of equity ; so that many persons conveyed their lands to uses for the purpose of defrauding their creditors. And as a (a) Bac. Read. 13. (8 Mass. E. 441.) (b) 1 lust. 76. b. (c) 1 Inst. 272. a. 1 This statute, and all others enacted in the same parliament, were repealed by St. 1 H. 4, c. 3, as having been made by threats and constraint of the king. 1 Hal. P. C. 86 ; Keble's Statutes, p. 188. Title XL Use. Ch. II. s. 26—30. 307 use was neither a chattel nor an hereditament, it was not assets to executors, or to the heir, (a) 27. Another circumstance attending a use was, that the hus- band or wife of a cestui que use could neither acquire an estate by the curtesy or in dower in the use ; because the cestui que use had no legal seisin of the land. 1 This was a grievance much complained of, particularly as to dower ; and, therefore, it became customary, when most estates in the kingdom were vested in feoffees to uses, to settle some estates, before marriage, on the husband and wife for their lives ; which, as we have seen, gave rise to the modern jointure, (b) 28. Although a use was but a right, and could only be con- sidered as a chose in action ; which, according to the principles of the common law, is neither transferable nor assignable, yet a use might be aliened. And Lord Bacon mentions two adjudged cases in which a right to a use was allowed to be transferred ; for as no action at law could arise from such a transfer, there was no danger of maintenance, (c) 29. A use might be transferred by one person to another, by any species of deed or writing. And, from its nature, it was impossible that it could be the subject of a feoffment, with livery of seisin. 2 30. Lord Bacon says there is no case at common law, where a * person can take under a deed, unless he is a *343 party to it. Whereas a use might be declared to a person (a) 1 Rep. 121. b. .ytast. 374. b. (6) Perk. s. 457. Tit. 5 & 6. Tit. 7 c. 1. (c) Bac. Read. 16. * 1 And because no trust was declared for their benefit, at the creation of the estate. 2 Bl. Coram. 331 ; Cornish on Uses, p. 20. 2 An use might have been raised, at common law, by parol, upon a feoffment be- cause the legal estate might so pass, — namely, by a transfer of possession en pais. But since a deed has become necessary, by statute, to pass the estate, a deed or at least a writing, is necessary to declare an use. Gilb. on Uses, p. 270, 271 ; 2 Story on Eq. Jurisp. § 235; Claiborne v. Henderson, 3 Hen. & Munf. 340, 354. Where the bona fide possessor of lands, under a defective title, he having no notice of the defect, has made permanent and beneficial improvements upon the estate, the value of which he is entitled, in Equity, to recover of the true owner, he may convey this equitable right or interest by parol, accompanied by an actual transfer of the possession to the purchaser. Lombard v. Ruggles, 9 Greenl. 62. And sec Bright v. Boyd, 1 Story, R. 478; 2 Green!, on Evid. \ 549; Benedict v. Bebee, 11 Johns. 145. But a contract to transfer the possession must be in writing. Howard v. Easton, 7 Johns. 205. 308 Title XL Use. Ch. II. s. 30—34. who was not a party to the deed by which the use was raised ; because a conveyance to a use was nothing but a publication of a trust, (a) 31. It frequently happened that ees&i tf«e use being in pos- session, aliened the lands, and afterwards the feoffees entered, which gave rise to several vexatious suits in Chancery. To rem- edy this inconvenience, the Statute 1 Rich. III. c. 1, gave the cestui que use in possession a power of alienating the legal estate, without the consent or concurrence of the feoffees. 1 32. In the alienation of uses, none of those technical words which the law requires in the limitation of particular estates icere deemed necessary. Thus a use might be limited in fee simple, without the word heirs; for if a sufficient consideration was given, the Court of Chancery would decree the absolute property of the use to be well vested in the purchaser. And as a use was a thing which consisted merely in confidence and privity, and was not held by any tenure, the rules of the common law were not violated. 33. If an estate had been limited at common law to a man, and to such woman as he should afterwards marry, the man would have taken the whole, and the limitation to the woman would have been void ; because a freehold could not be created to commence infuturo ; but the limitation of a use in this manner would have been good. So if a man had made a feoffment to the use of one for years, and after to the use of the right heirs of J. S., this limitation had been good, for the feoffees remained tenants of the freehold, (b) 34. It was determined, upon the same principles, that a power of revocation might be annexed to the limitation of a use ; by which means the grantor might, at any future time, revoke the uses he had declared, and limit new uses to other persons ; which the feoffee to uses was bound to execute. (a) Bac. Read. 14. Tit. 32. c. 2. (b) 1 Rep. 101. a. Jenk. Cent. 8. ca. 52. 1 Rep. 135. a. Tit. 16. c. 4. i This statute was never adopted in Maryland; Matthews v. Ward, 10 G. & J. 443 ; and is not known to have been recognized as common law in any other of the United States. The Statutes of Uses, see post, ch. 3, § 3, note, provided a remedy for most of the mischiefs which this act was designed to prevent ; and special trusts, which are not within its operation, have, in most of the States, been the subject of particular legisla- tion. See post, tit. 12, ch. 2, § 7. Title XL Use. Ch. II. s. 35— 38. 309 35. A use might be limited in such a manner as to change from one person to another, upon the happening of some future event. Thus a use might be limited to A and his heirs, until B should pay him <£40 ; and upon payment of that sum, the use should change and vest in B and his heirs. For though the rules of the common law did not allow any estate to be limited after an estate in fee simple, yet the Court of Chancery admitted *this species of limitation to be good in the *344 case of a use. Because, as Lord Bacon observes, — " Things may be avoided and determined by the ceremonies and acts like unto those by which they are created and raised ; that which passeth by livery, ought to be avoided by entry; that which passeth by grant, by claim ; that which passeth by way of charge, determineth by way of discharge. And so a use, which is raised but by declaration or limitation, may cease by words of declaration or limitation ; as the civil law saith, in his magis consentaneum est ut iisdem modis res dissolvantur quibus constituantur. (a) 36. Uses were divisible, though at that time lands were not. 1 And Lord Bacon observes, that one of the reasons why so much land was conveyed to uses was, because persons acquired, by that means, a power of disposing of their real property by will, which enabled them to make a much better provision for their families than they could otherwise have done, (b) 37. One of the first cases in the Year Books, respecting uses, was this : — A woman who had made a feoffment to uses after- wards married, and by her will directed that her feoffees should convey the legal estate to her husband. It was adjudged that the will was void at law, being made by a feme covert ; and, therefore, should also be void in Chancery, (c) 38. Uses were descendible in the same manner as legal estates. And this was the only instance in which the Court of Chancery, in cases of uses, followed the rules of the common law. For the doctrine of the half-blood was allowed to take place in the descent of uses. And even local customs were left unviolated in this instance. So that where a cestui que use of lands held in («) Bro. Ab. Feoff, al. Use, 30. Bac. Read. 18. (6) Bac. Read. 20. 1 Hep. 123. b. (c) Mich. 18. Edw. 4. 11. b. 1 But see 1 Spencc on Equit. Jurisd. p. 20. 310 Title XL Use. Ch. II. s. 38—42. gavelkind or borough English died, leaving several sons, the use descended either to all of them, or to the youngest, according to the custom, (a) 39. It was held, upon the same principle, that if lands de- scended on the part of the mother, and the person in possession made a feoffment to uses, the use should descend to the heirs on the part of the mother, because the legal estate would have gone to them, (b) 40. Thus stood the doctrine of uses, as regulated and settled by the Court of Chancery ; and in this state it was, in some in- stances, applied to very useful purposes, by removing the re- straints on alienation, and enabling the proprietors of real 345 * * property to exercise several powers over it, which were not allowed by the rules of the common law. But uses became so general, and were applied to such bad purposes, that at length they were productive of very great grievances. Feoff- ments to uses were usually made in a secret manner, so that where a person had cause to sue for land, he could not find out the legal tenant, against whom he was to bring his praecipe. Husbands were deprived of their estates by the curtesy, and widows of their dower ; creditors were defrauded ; the king, and the other feudal lords, lost the profits of their tenures, their wardships, marriages, and reliefs, and an universal obscurity and confusion of titles prevailed, by which means purchases for valu- able consideration were frequently defeated. 41. As a remedy for these inconveniences, several statutes were made to subject uses to the same rules as legal estates. By the Stat. 50 Edw. III., it was enacted, that where persons con- veyed their tenements to their friends by collusion, to have the profits at their will, their creditors should have execution of such tenements, as if no such gifts had been made. By the Stat. 1 Rich. II. c. 9, a feoffment of lands for maintenance was de- clared to be void, and an assize maintainable against the pernor of the profits of lands. And by 2 Rich. II. St. 2, c. 3, fraudu- lent deeds, made by debtors to avoid their creditors, are declared void. 42. By the Stat. 1 Hen. VII. c. 4, reciting that divers of the king's subjects, having cause of action by forme don, &c, were (a) 1 Inst. 14 b. (b) Gilb. Uses, 17. Tit. 29. c. 3. Title XL Use. Ch. II. s. 42—45. 311 defrauded and delayed of their said actions, and oftentimes without remedy, because of feoffments made of the same lands and tenements to persons unknown, &c. ; it was enacted that the demandant, in every such case, should have his action against the pernor or pernors of the profits of the lands and tene- ments demanded, whereof any person or persons had been en- feoffed to his or their use. 43. By the Statute 4 Hen. VII. c. 17, it was 'enacted, that if any person or persons should be seised of any estate of inheri- tance, being tenant immediate to the lords of any castles, &c, holden by knight-service, to the use of any other person or per- sons, and of his heirs only, and he to whose use he or they were so seised dieth, his heir being within age, no will by him de- clared, nor made in his life touching the premises; the lord of whom such castles. &c, were holden immediately, should have a writ of right * of ward, as well for the body as * 346 for the land, as the lord should have had if the same ancestor had been in possession of the estate, so being in use at the time of his death, and no such estate to his use made ; and that if any such heir was of full age at the death of his ancestor, to pay relief as his ancestor, whose heir he was, would have paid if he had been in possession of that estate, so being in use at the time of his death, and no such estate to his use made or had. 44. By the Statute 19 Hen. VII. c. 15, it was enacted, that it should be lawful for every sheriff, or other officer to whom any writ or precept should be directed, at the suit of any person or persons, to have execution of any lands, tenements, or other hereditaments, against any person or persons, upon any condem- nation, statute merchant, &c, to make and deliver execution unto the party in that behalf suing, of all such lands and tenements as any other person or persons were in any manner seised, to the only use of him against whom execution was so sued. 45. [Before the Statute of the 27 Hen. VIII. c. 10, it seems a distinction was established between uses, the nature and proper- ties of which have been considered in the preceding chapters of the present title, and trusts. Sir Francis Bacon says, where the trust is not special nor transitory, but general and permanent, there it is a " use." Thus where feoffor enfeoffs feoffee in fee, upon a trust or confidence, that he would permit the feoffor and 312 Title XL Use. Ch. II. s. 45. his heirs to take the rents and profits, or to make such convey- ances of the legal estate as he or they should direct. But where the trust was special or transitory, it was not in strict- ness a use, but a trust. Thus, where the feoffor enfeoffs the feoffee in fee, to the intent to reenfeoff him, or to be vouched, or to suffer a recovery, this, Bacon denominates the special trust lawful.] («) f (a) Bac. Uses, 8. 2 Salk. 676. [ t For a more detailed consideration of the above distinction and its conseqnences, see Sanders' Uses, Vol. I. ch. 1, s. 2.] 313 1. Statement of the Statute. Sect 19. 5. Circumstances necessary to its Operation. 22 6. I. A Person seised to a Use. 25 7. What Persons may be seised to Uses. 32 11. Of what Estates. 34 12. Estates Tail. 16. Estates for Life. 36 chap. m. STATUTE 27 HEN. VIII. OF USES. Sect. 1. Statement of the Statute. Sect. 19. What may be conveyed to Uses. II. A Cestui que Use in esse. In what Case the Statute operates. III. A Use in esse. 34. The Statute then transfers the Possession. 36. Saving of all former Estates. Section 1. Notwithstanding the variety of statutes by which it was endeavored to render uses subject to the rules of the com- mon law, means were found of evading them, particularly as to the feudal profits upon marriages, wardships, and reliefs ; for in the Stat. 4 Hen. VII., for enabling lords to have the wardship of persons entitled to a use only, an exception was inserted, that it should not take place where the ancestor had made a will, of which many persons took advantage, to the great detriment of the king and the great nobility, (a) 2. It is mentioned in Burnet's History of the Reformation, and also by Mr. Justice Harper, that King Henry VIIL, in the 23d year of his reign, caused a bill to be brought into parliament to remedy the abuses that arose from the universal practice which then prevailed, of making feoffments to uses, which was rejected by the Commons. But four years after, parliament passed the Stat. 27 Hen. VIIL c. 10, intituled, "An Act concerning Uses and Wills," usually called, TJie Statute of Uses ; reciting that by the common law, lands were not devisable by will, nor ought to be transferred but by livery of seisin ; yet, nevertheless, divers * and sundry imaginations, subtle inventions and practices, * 348 had been used, whereby the hereditaments of the realm had been conveyed by fraudulent feoffments, fines, recoveries, (a) Ante, c. 2. s. 43. vol. i. 27 314 Title XL Use. Ch. III. s. 2—3. and other assurances ; and also by wills and testaments ; by rea- son whereof heirs had been unjustly disinherited ; the lords had lost their wards, marriages, reliefs, heriots, escheats, aids, &c. ; married men had lost their tenancies by the curtesy; widows their dower ; and manifest perjuries were committed, (a) 3. It is, therefore, enacted, (s. 1,) " That where any person or persons stand or be seised, or at any time hereafter shall happen to be seised, of and in any honors, castles, manors, lands, tene- ments, rents, services, reversions, remainders, or other heredita- ments, to the use, confidence, or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner or means, whatever it be ; that in every such case, all and every such person and persons and bodies poli- tic, that have or hereafter shall have any such use, confidence, or trust, in fee simple, fee tail, for term of life or for years, or other- wise, or any use, confidence, or trust, in remainder or reversion, shall from henceforth stand and be seised, deemed and adjudged, in lawful seisin, estate, and possession of and in the same honors, castles, &c, to all intents, constructions, and purposes in the law, of and in such like estates as they had or shall have in use, trust, or confidence of or in the same ; and that the estate, title, right, and possession that was in such person or persons, that were or hereafter shall be seised of any lands, tenements, or heredita- ments, to the use, confidence, or trust of any such person or per- sons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence or trust, after such quality, maimer, form, and condition, as they had before, in or to the use, confi- dence, or trust that was in them. (§ 2.) " That where divers and many persons be or hereafter shall happen to be jointly seised of and in any lands, tenements, rents, reversions, remainders, or other hereditaments, to the use, confidence, or trust of any of them that be so jointly seised ; 1 (ft) Burnet, Hist. Reform, vol. 1. 116. 2 Leon. 16. 1 This provision was inserted to meet the case then very common, where the owner himself was one of the feoffees ; a practice deemed not inconvenient ; it being held, that, though the use was thereby in part suspended, yet it might be disposed of in the same manner as if the entire legal estate was vested in others. 1 Sugd. on Powers, p. 4. Title XI. Use. Ch. III. s, 3. 315 that in every such case, those person or persons which have or hereafter shall have any such use, confidence, or trust in any such lands, &c, shall from henceforth have, and be deemed and adjudged to * have, only to him or them that * 349 have or hereafter shall have any such use, confidence, or trust, such estate, possession, and seisin of and in the same lands, &c, in like nature, manner, form, condition, and course as he or they had before in the use, confidence, or trust of the same lands, tenements, or hereditaments." ' 1 The doctrine of the Statute of Uses, 27 Hen. 3, eh. 10, has heen very generally recognized in the jurisprudence of the United States. 4 Kent, Comm. 299. See also Chamberlain v. Crane, 1 N. Hamp. 64 ; Exeter v. Odiorne, Ibid. 237 ; French v. French. 3 N. Hamp. 239 ; Marshall v. Fisk, 6 Mass. 31 ; Calvert v. Eden, 2 Har. & McH. 284; Bryan v. Bradley, 12 Conn. 474; Report of the Judges, 3 Binn. 619. In Ohio, the Statute of Uses seems never to have been in force; and uses stand as they were before the 27 Hen. 3. Thompson v. Gibson, 2 Ohio R. 439 ; Helfeinstine v. Garrard, 7 Ohio R. 275 ; "Walker, Introd. p. 309, 310. In South Carolina, the statute is expressly adopted in terms. So. Car. Stats, at Large, Vol. II. p. 467. In Indiana, Illinois, and Missouri, it is reenacted in substance. Ind. Rev. St. 1843, p. 447, § 181 ; 111. Rev. St. 1839, p. 148; Missouri, Rev. St. 1845, ch. 32, § 1, p. 218. In Delaware, it is briefly enacted, that "lands, tenements, and hereditaments may be aliened and possession thereof transferred, by deed, without livery of seisin ; and the legal estate shall accompany the use and pass with it." Del. Rev. St. 1829, p. 89, § 1. [This statute has never been in force in Ver- mont. Gorham v. Daniels, 23 Vt. (8 Washb.) 600.] In Virginia, the Statute of Uses was part of the colonial law of the State, until the general repeal of all British statutes in 1792. Afterwards a partial substitute was adopted, by the Statute of Conveyances of Feb. 24, 1819, § 29, Rev. Code, Vol. I. p. 370, by which the possession is transferred to the use, only in the cases of deeds of bargain and sale, lease and release, covenants to stand seised to uses, and deeds operating bj' way of covenants to stand seised to uses. A similar enactment is found in the statutes of North Carolina, Rev. St. 1836, Vol. I. ch. 43, § 4. p. 259 ; of Kentucky, Rev. St. 1834, Vol. I. p. 443, § 12 ; of Mississippi, How. & Hutch. Dig. p. 349, ch. 34, § 28; and of Florida, Thompson's Dig. p. 178, § 4. Upon this statute, Mr. Lomax has the following observations: — "To give to the words of this act a meaning co-extensive with the English statute, so as to include every case where there may be found a seisin in one person and a use in another, seems to be unwarranted by any rule of statutory interpretation, nor is there apparent any principle of policy so imperious as to require so free a construction of plain, unambig- uous language. " Of the three cases which are specified in the act, in which the law operates to exe- cute the seisin to the use, two of them are plainly cases where there is a declaration of use without transmutation of possession, viz , bargains and sale, and covenants to stand seised. In the other case of the lease and release, it is the release which is the opera- tive part of the conveyance ; and was at common law entirely effectual to enlarge the estate and possession of the lessee into the measure of the freehold released. The act of the legislature could give no additional efficacy to the release; and it is presumed that it was for no such purpose that the lease and release was enumerated with the 316 Title XL Use. Ch. III. s. 4. 4. It is evident from the words of this statute, that the inten- tion of the legislature was entirely to abolish uses, by destroying the estate of the feoffees to uses, and transferring it from them other two assurances. The purpose of the legislature was doubtless, in contempla- tion of the lease alone, to make that effectual, as it had been under the Statute of Henry 8, by virtue of the consideration for raising a use, although there had been no actual entry. It is true that that purpose seems to have been unnecessary, and that it was supererogation to have made any provision in regard to the lease, which is usually created by deed of bargain and sale for one year, and that, therefore, the provision transferring the possession to the bargainee included the provision for the transfer of the possession to the lessee. The legislature may, however, have intended a rule appli- cable to every demise, whether by bargain and sale or by a common law lease, or by any other species of assurance, so that, if, followed by a release, the lessee, whether he had entered or not, should be invested with the possession as effectually as if enfeoffed with livery of seisin. If this be the correct explanation of our statute, its provisions are only intended to apply to cases where uses are created without transmutation of possession, and seems purposely to have refrained from all that class of cases where there has been a transmutation of possession. According to what appears to be the reasonable construction of the act, the legislature intended, at least in the case of the bar- gain and sale, and the lease and release, without any reference to the modus operandi, that the bargainee and releasee should have a statutory possession of the land, that assurances so framed should operate as grants. It seems only in the case of the cove- nant to stand seised, (if the words in one part of the clause are to have the appropri- ate application demanded by words in another part,) that any reference is made to the doctrine of uses, as furnishing any rule or principle by which the assurance is to have its operation. " It has been said in the Court of Appeals, that ' we have no general Statute of Uses ; ' and it v/as held that where a use was devised in land, the seisin was not ex- ecuted to the use, because devises were not among the conveyances enumerated in the act. Bass v. Scott, 2 Leigh. 359, per Cabell, J. " Except, therefore, in the cases of bargains and sales, lease and release, and cove- nant to stand seised to uses, it seems that all other uses are to be regarded as unexe- cuted, as they were prior to the Statute of Henry 8. These unexecuted uses will com- prehend such as are raised by feoffments to uses, releases, and other conveyances operating by transmutation of possession, devises, resulting uses, and uses by implica- tion. "In all these cases, the uses will, consequently,' remain as equitable estates, of the same nature as trusts, and not cognizable in courts of law." 1 Lomax. Dig. p. 188, 189. In New York, it is declared in the Revised Statutes, Vol. II. p. 13, 3d ed.,part 2, ch. 1, art. 2, that uses and trusts, except as by that article authorized and modified, were abolished ; and every estate and interest in land is declared to be a legal right, cogniza- ble as such in the courts of law, except as therein otherwise provided ; and every estate, then held as a use executed under any former statute, is confirmed as a legal estate. And every person, entitled to the actual possession of lands and the receipt of the rents and profits thereof, in law or equity, by virtue of any grant, assignment, or devise, is declared to have the legal estate therein, commensurate with his beneficial interest. On this statute, Chancellor Kent has remarked, that the word assignment was introduced to Title XL Use. Ch. III. s. 4—7. 317 to the cestui que use, by which means the use should be changed into a legal estate ; and the statute has so far answered the in- tention of the makers of it, that no use, upon which the statute operates, can exist in its former state for more than an instant ; as the legal seisin and possession of the land must become united to it, immediately upon its creation ; so that where this statute operated, lands conveyed to uses could never, in future, become liable to the charges or incumbrances of the feoffees ; but, on the other hand, would be always subject to the charges and incum- brances of the cestui que use, and to all the rules of the common law. Thus they ceased to be devisable ; and by that means the great object of King Henry VIII. was attained, which was to preserve his right to wardship, and other feudal profits, out of the lands of the nobility, (a) 5. There are three circumstances necessary to the execution of a use under this 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, remainder, or reversion, (b) 6. With respect to the first of these circumstances, the words of the statute expressly require it ; for these are, — " Where any person or persons stand or be seised, or at any time hereafter shall happen to be seised, of and in any honors, &c, to the use, confidence, or trust of any other person or persons." It will, therefore, be necessary in this place to inquire — first, what per- sons are capable of being seised to uses ; and, secondly, of what estate or interest they can be so seised. 7. All those who were capable of being seised to uses before the statute may still be seised to a use. On the other side, all those who were incapable of being seised to uses before the statute still labor under the same incapacity, (c) («) 2 Leon. 17. (1 Atk. 592.) (b) (Chudleigh's case, 1 Rep. 126. a.) (c) (Ante, ch. 2. § 12, 13.) make the assignment of terms, and other chattel interests, pass the legal interest in them, as well as in freehold estates ; though the use in chattel interests was not ex- ecuted by the English Statute of Uses. 4 Kent, Comm. 300. As the estate is thus executed in the cestui que use, and an interest in lands cannot now be conveyed but by deed, it follows that a deed is necessary to transfer the inter- est of the cestui que use to a stranger. Northampton Bank v. Whiting, 12 Mass. 104. 27* 318 Title XL Use. Ch. III. s. 8—11. 8. It has been stated that neither the king nor the 350 * queen * could, before the statute, have been seised to a use, or, rather, were not compellable to execute the use. This law continued after the statute ; and a singular case arose in 35 Eliz., respecting the prerogative of the crown to hold lands discharged of all uses. 9. A committed high treason in 18 Eliz., for which he was attainted in 26 Eliz. Between the treason and the attainder, a fine was levied to him by B of certain land, to the use of B and his wife, (who was sister to A,) and of the heirs of the said B. Afterwards B bargained and sold the lands to J. S. for money. Upon discovery of the treason and the attainder of A, the pur- chaser was advised by Plowden, Popham, and many others, that the land was in the queen ; because the queen was entitled to all the lands that traitors had, at the time of the treason, or after ; so the use which was declared to B and his wife upon the fine was void, by the relation of the right of the queen under the attainder ; and the queen must hold the land, discharged of the use ; because she could not be seised to a use. It is but justice to mention, that the case being represented to Queen Elizabeth, she granted the land to the cestui que use. (a) 10. By the words of the statute, which are, " any person or persons," aliens and corporations are excluded from being seised to a use. 1 It was, therefore, determined, in a case reported by Dyer, that where an alien and a natural-born subject were en- feoffed to uses, the moiety of the alien should, upon office found, (but not before,) become vested in the crown, (b) 11. With respect to the estate or interest of which a person may be seised to a use, the words of the statute are, — " Where any person or persons stand or be seised, or at any time here- after shall happen to be seised." Now, the word seised extends to every species of freehold estates ; although it appears to have (a) Pimb's case, Moo. 190. 1 List. 13. a. n. 7. (&) Bac. Read. 42—57. King v. Boys, Dyer, 283. (Ferguson v. Franklin, 6 Munf. 305. Cornish on Uses, 141.) 1 In the United States, the word "person," in statutes, is held to apply as well to bodies corporate as to individuals; U. States v. Amedy, 11 Wheat. 392; and, there- fore, a corporation may be seised to any use or trust, not foreign to the purposes of its creation. See ante. ch. 2, § 15, note. As to the capacity of aliens to take and hold lands, see ante, tit. 1, § 39, note. Title XL Use. Ch. III. s. 11—13. 319 been the general opinion, before and immediately after the pass- ing of this statute, that all feoffees to uses must have been seised in fee simple. 12. It was, therefore, much doubted whether a tenant in tail could be seised to a use. Jenkins states it as a point determined by all the judges, that a tenant in tail could not be seised to a use, either expressed or implied. 1. (Not to an implied use ;) because the tenure creates a consideration. 2. (Nor to an ex- pressed use ;) because the Statute De Donis has so appro- priated and fixed the estate tail to the donee, and the * heirs *351 of his body, that neither he nor they can execute the use. Hence Lord Coke has said, that if an estate was made to a man and the heirs of his body, either to the use of another and his heirs, or the use of himself and his heirs, this limitation of use was utterly void. (a) x 13. The case upon which Lord Coke and Jenkins founded their opinion, is that of Cooper v. Franklin, which arose in 12 Jac. I.f But if this case be considered as an authority, it will (a) Jenk. Cent. 5 Ca. 1. 1 Inst. 19. b. 1 For it was said that if the tenant in tail should execute the use, the issue in tail might recover the land back., per forman doni ; and that the words, to use of heirs. &c., in such case, were not words of limitation, but referred to the special class of heirs already mentioned in the deed. [ t This case is thus reported by Croke : — John Walter being seised in fee, made a feoffment in fee to Thomas Walter, habendum to him and the heirs of his body, to the use of him and his heirs and assigns forever. The question was, whether Thomas Walter had an estate in fee tail only, or in fee simple determinable upon the estate tail. This depended upon two points: — 1st, Whether a use might be limited upon an estate tail before or after the Statute of Uses. 2dly, Whether this limitation of uses to Thomas Walter and his heirs should not be intended the same uses, being to the feoffee himself, and to the same heirs, as it was in the habendum. Croke reports the case to have been adjourned ; but that the opinion of the Court upon the argument inclined that he was tenant in tail ; and that the limitation of the use out of the estate tail was void, as well after the Statute of Uses as before ; for the statute never intended to execute any use but that which might be lawfully compelled to be executed before the statute; but this could not be of an estate tail, for the Chancery could not compel a tenant in tail, before the statute, to execute the estate ; so the statute did not execute it then. Cro. Jac. 400. Bulstrode reports a second argument upon this case, together with the judgment of the Court ; which was, that Thomas Walter took an estate tail, because a tenant in tail could not be seised to a use. 3 Bulst. 184 ; Tr. 13, Jac. 1 ; Pasch. 14, Jac. 1. Godbolt reports the case to have arisen upon a limitation to one and the heirs of his body, habendum to the donee, to the use of him, his heirs, and assigns forever; and that two points were resolved, — 1st, That the limitation in the habendum did not increase or alter the estate given in the premises of the deed; 2dly, That a tenant in tail might stand 320 Title XL Use. Ch. III. s. 13—15. only prove that a tenant in tail cannot be seised to a use in fee.f But that a tenant in tail may be seised to a use, co-extensive with his estate, is a doctrine which it would now be extremely dangerous to controvert-. And Lord Bacon expressly says, that a tenant in tail may be seised to a use. " If I give land in tail by deed, since the statute, to A, to the use of B and his heirs, B hath a fee simple determinable upon the death of A without issue ; and like law, though doubtful, before the statute was ; for the chief reason that bred the doubt before the statute was, because tenant in tail could not execute an estate without wrong ; but that, since the statute, is quite taken away ; because the statute saveth no right of entail, as the statute of 1 Richard III. did." (a) 14. In Seymour's case, 10 Jac. I., where a tenant in tail bar- gained and sold his estate tail to a stranger in fee, it was unani- mously resolved by the Court of K. B. that the bargainee took an estate to him and his hens, determinable upon the death of the tenant in tail, (b) 15. It may, therefore, be now laid down as an undoubted principle of law, that a tenant in tail may be seised to a use, even in fee ; and that such use will be good against the tenant in tail himself ; for as tenants in tail have, ever since the time of Lord Coke, been in the practice of transferring their estates to the persons who were to be tenants to the precipe in common re- coveries, in fee simple, by conveyances derived from the Statute of Uses, if it were established that a tenant in tail cannot be seised to a use, the consequence would be, that almost all the common recoveries which have been suffered for the last two (a) Bac. Read. 57. (J) lOJRep. 95. Plowd. 557. Tit. 32. c. 9. seised to a use expressed, but such use could not be averred. Godb. 269. The same case is also reported by Moor by the name of Carrier v. Franklin, where the Court appears to have considered it as a question of construction ; and held that the feoffee only took an estate tail, because the use to him and his heirs, immediately succeeding the habendum, must be construed to mean the same kind of heirs to whom the estate had been already limited, — namely, the heirs of the body of the feoffee. Moor, 84S, pi. 1152.] [ t The case of Cooper v. Franklin was simply one of construction, it is no author- ity that a tenant in tail cannot stand seised to the use of another ; for there, the seisin and the use were limited to the same person, (Thomas Walter,) so that no use could arise under the statute, which requires that one or more persons should be seised to the use of some other person or persons, &c] Title XL Use. Ch. III. s. 15—19. 321 centuries would be void for want of a good tenant to the praecipe* *16. A tenant for life may also be seised to a use; *353 but such use will determine, together with the legal es- tate, which is transferred to it by the statute upon the death of the tenant for life ; for a cestui que use cannot have an estate in the use of greater extent than the seisin out of which it is raised. 17. In 2 & 3 Eliz. this case was moved : — Lands were given to two persons for their lives, and the life of the survivor of them, to the use of A B for his life. The two donees to uses died; and the question was, whether the estate to A B was determined. The Court thought it was determined ; because the estate on which the use was created and raised was gone, (a) 18. It follows from this case, which is cited and admitted to be good law in Bulstrode's report of the case of Cowper v. Franklyn, and also in a case reported by Croke ; that all- persons having a legal estate of freehold may be seised to a use. If the use is greater than the estate out of which it is limited, it will cease upon the determination of that estate, but will be good in the mean time, (b) 19. With respect to the different kinds of property whereof a person may be seised to the use of another ; the words of the statute are, — " Honors, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments," which comprehends every species of real property, in possession, re- mainder, or reversion. Therefore, not only corporeal heredita- ments, but also incorporeal ones, such as advowsons, tithes, rents, &c, are within this statute. Nothing, however, can be conveyed to uses but that of which a person is seised or to which he is entitled at the time ; for in law every disposal supposes a precedent property. No person can, therefore, convey a use in land, of which he is not seised in possession, or to which he is not entitled in remainder or reversion, when the conveyance is made, (c) 1 (a) Dyer, 18G. a. pi. 1. Crawley's case, 2 And. 130. (b) Cro. Car. 231. Norton v. Frecker, 1 Atk. 523. (c) (1 McCord, Ch. R. 23!).) Cro, Eliz. 401. 22 Vin. Ab. 217. 1 The interest of a mortgagee, though generally a legal seisin as against the mort- gagor, is not capable of being devised to uses, so as to be executed by the statute, the debt being regarded in law as the principal thing, and the mortgage only as a lien to secure the payment. Galliers v. Moss, 9 B. & C. 267 ; Merrill v. Brown, 12 Pick. 216. 322 Title XL Use. Ch. III. s. 20—24. 20. Lord Bacon says the word hereditament, in the Statute of Uses, is to be understood of those things whereof an inheritance is in esse ; yet that a grant of a rent charge de novo, for life, to a use, was good enough; although there were no inheritance in being of the rent. It should, however, be observed that, in this case, there is a seisin of the land out of which the rent is granted, (a) 354* *21. Copyhold estates are not, however, comprised in the Statute of Uses ; because a transmutation of possession, by the sole operation of the statute, without the concurrence or permission of the lord, would be an infringement of his rights, and tend to his prejudice, (b) 22. The second circumstance necessary to the execution of a use by this statute is, that there must be a cestui que use in esse. If, therefore, a use be limited to a person not in esse, or to a per- son uncertain, the statute can have no operation. 1 But by the words of the statute a cestui que use may be entitled to an estate in fee simple, or fee tail, term for life, or years or otherwise, or in remainder or reversion. 23. With respect to those who may be cestuis que use, all per- sons who are capable of taking' lands by any common law con- veyance, may also have a use limited to them. By the words of the statute, corporations may be cestuis que use. And Lord Bacon says the king may have a use limited to him ; but it be- hoveth both the declaration of the use, and the conveyance itself, to be by matter of record ; because the king's title is com- pounded of both, (c) 24. Although a man cannot, by any conveyance at common law, limit an estate to his wife, 2 yet he might have made a feoff- ment to her use, or a covenant with another to stand seised to (a) Bac. Read. 43. (6) Co. Cop. s. 54. Gilb. Ten. 182. Cowp. R. 709. (c) Bac. Read. 60. 1 That is, it cannot operate until the cestui que use comes in esse. See post, tit. 16, ch. 5 ; 2 Bl. Coram. 334. Thus, where a grant is made to individuals for the use of a church, which, at the time, is not incorporated, the grantees stand seised to the use until the church receives a corporate existence ; and then the statute executes the use, and the estate vests in the church. Reformed Dutch Church v. Veeder, 4 Wend. 494. And see Shapleigh v. Pilsbury, 1 Greenl. 271 ; Ashurst v. Given, 5 Watts & Serg. 323 ; Roy v. Garnett, 2 Wash. 9, 35. [Ante. tit. XI. ch. 2, § 16, note, * 340.] 2 See Martin v. Martin, 1 Greenl. 394. Equity will uphold such a conveyance. Wallingford v. Allen, 10 Peters, R. !>83. Post, tit. 32, ch. 2, § 33. Title XL Use. Ch. III. s. 24—27. 323 her use. And a use now raised by a man to his wife will be executed by the statute, (a) 25. The cestui que use must, in general, be a different person from him who is seised to a use ; for the words of the statute are, — " Where any person or persons stand or be seised, &c, to the use, confidence, or trust, of any other person or persons," &c. And Lord Bacon says, — " The whole scope of the statute was to remit the common law, and never to intermeddle where the com- mon law executed an estate. Therefore the common law ought to be expounded, that where the party seised to the use, and the cestui que use, is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law." (b) 26.* Thus, where lands were given to a man and his wife, habendum to the said husband and wife, to the use of them and the heirs of their two bodies ; and for default of such issue, to the use of A B ; the question was, whether the husband and * wife had an estate tail, or only an estate for their * 355 lives. It was adjudged that they took an estate tail. Upon a writ of error in the King's Bench, it was argued that the estate out of which the use arose was but for their lives, con- sequently the use could not be limited for a larger estate. But Croke, Jones, and Whitlock, were of opinion, that there was a difference where an estate was limited to one, and the use to another ; there the use could not be more than the estate out of which it was derived. That it was otherwise where the limita- tion was to two persons, habendum to them, to the use of them and the heirs of their bodies ; this was no limitation of the use, nor was the use to be executed by the statute, but they took by the common law. (c) 27. The same point arose in the subsequent term, in a writ of error from a judgment given in Wales. The Court held the limitation in the habendum, to the use of the grantees and the heirs of their bodies, to be as a limitation of the land itself, being all to one person ; as if it had been said, habendum to them and to the heirs of their bodies ; and not like the case in Dyer, 186. For true it was, when the estate was limited to one or two, to the use of others and their heirs, the first estate was (a) 1 Inst. 112. a. (b) (Jackson v. Myers, 3 Johns. 388. Jackson v. Cary, 1G Johns. 302.) Bac. Read. G3. (c) Jenkins v. Young, Cro. Car. 230. Dyer, ISC. a. n. 324 Title XL Use. Ch. III. s. 27—28. not enlarged by this implication, and the use could not pass a greater estate. But here, when the grant and habendum con- veyed the estate, and the limitation of the use was to the same person, that showed the intent of the parties, and was a good limitation of the estate ; for it was not an use divided from the estate, as where it was limited to a stranger, but the use and estate went together ; wherefore it was all one as if the limita- tion had been to them and the heirs of their bodies. Sir "Wil- liam Jones said he knew many conveyances had been made in this manner, and twice brought in question, and adjudged to be an estate tail, (a) 28. It was held by Holt, C. J., and Powell, in a subsequent case, that when a fine was levied, or a feoffment made, to a ntan and his heirs, the estate was in the cognizee or feoffee, not fts'an use, but by the common law ; and might be averred to be so. This doctrine is most ably discussed by Mr. Booth, in an opinion on the following case : — An estate was conveyed, by lease and release, to D., C, and S., and their heirs, to hold unto the said D., C, and S., for and during the natural lives of them and the survivor and survivors of them. The question was whether 356 * they *took by the common law, or by the Statute of Uses. As to this point, Mr. Booth says, — " We will now return to the words of the habendum in the release ; taking the words, ' to the use.' The habendum stands literally thus : to hold unto the said D. and his companions, their heirs and assigns, to the only proper use and behoof of the said D. and his com- panions, their heirs and assigns, for and during the natural lives of the said D. and his companions, and the life and lives of the survivor and survivors of them. Here you observe the use limited is not limited to any person different from the person to whom the estate is granted. The habendum is to D. and his com- panions, and the use is limited to D. and his companions ; so that the estate and the use are both to one and the same person ; and therefore, this cannot be a statute use, for the seisin doth not go or belong to one person, and the use to another person ; whereas the statute requires that there should be a standing seized by some third person or persons to the use of some other person. And that case of Jenkins v. Young is express, that where the use is not divided from the estate, and the use and the estate («) Meredith v. Jones, Cro. Car. 2U.TAnte, s. 2G. Title XL Use. Ch. III. s. 28—29. 325 go together, there it amounts only to a limitation of the estate, and, consequently, is not a statute use, but only a common-law use. And, if at this day, a man should enfeoff I. S. to hold to the said I. S. and his heirs, to the use and behoof of the said I. S. and his heirs forever, no man living would call that a statute use ; for the words would import no more than the words, 'for his and their sole benefit and behoof;' and would only serve to show in how ample and beneficial a manner the feoffee was to take the estate limited to him by the habendum; which beino- manifestly an estate at common law, could not also give or create a statute use. The words of Lord Holt, in the case of Lord Altham v. Earl of Anglesey, before recited, are directly in point. In like manner it would be, if there were a feoffment to a man and his assigns, to hold to that man and his assigns, to the only use and behoof of him and his assigns, during his life ; that would only limit an estate of freehold to him for his life, at common law ; and not be the limitation or creation of any statute use. It would be the same in the case of a feoffment to one of lands, to hold to the feoffee and his heirs, to the only use and behoof of the feoffee and his heirs, du- ring the lives of A, B, C, D, and * twenty other persons. *357 There the words to the use and behoof would pass no statute use, or pass any thing distinct from the estate ; which estate would be an estate at common law ; and the words to the use and behoof would serve only to show the amplitude of the estate given by the feoffment ; and that the feoffee and his heirs were to take the same for his and their own benefit, without return of any service whatever to the donor." (a) 29. There are, however, some cases where the same person may be seised to a use, and also cestui que use. Thus, if a man makes a feoffment in fee to one, to the use of him and the heirs of his body ; in this case, for the benefit of the issue, the statute, according to the limitation of the uses, directs the estate vested in him by the common law, and executes the same in himself, by force of the statute. And yet the same is out of the words of the statute, which are,—" To the use of any other person." And here he is seised to the use of himself. But the statute has always been beneficially expounded, to satisfy the intention of (a) Gilb. Rep. 16, 17. Booth's Cases and Opin. vol. 2. 281. Ante, s. 26. Doc V. Passing- ham, 6 Bar. and Cress. 305. VOL. I. 28 326 Title XL Use. Ch. III. s. 29—34. the parties, which is the direction of the use, according to the rule of law. (a) 30. So if a man seised of lands in fee simple covenants with another, that he and his heirs will stand seised of the same land, to the use of himself and the heirs of his body ; or to the use of himself for life, the remainder over in fee ; in that case, by the operation of the statute, the estate which he hath at the com- mon law is divested, and a new estate vested in himself, accord- ing to the limitation of the use. (b) 31. Lord Bacon says, if a person enfeoffs I. S. to the use of I. D. for life, remainder to the use of I. S. for life, remainder to the use of I. N. in fee, I. S. is in by the statute ; because the law will not admit fractions of estates. So if a person enfeoffs I. S. to the use of himself and a stranger, they shall both be in by the statute, because they cannot take jointly, taking by several titles. Like law, if I enfeoff a bishop and his heirs, to the use of himself and his successors ; he is in by the statute, in right of his see. (c) 32. [The Statute 27 Hen. VIII. c. 10, enacts, that where one or more persons stand seised to the " use, trust, or confidence of any other persons, &c, such persons, &c, that have the use, trust, or confidence, shall be adjudged in the lawful seisin, estate, and possession," &c. Hence, it follows, that where lands are • conveyed to A and his heirs, in trust for B and his heirs, 358 * the * legal estate or use executes in B. So also where a limitation is to A and his heirs, to the intent and purpose that B and his assigns may receive and take a rent-charge for his life, or that he and his assigns may receive the rents and profits during his life, in the one case he takes the legal estate for life, and in the other a legal rent-charge.] (d) 33. The third circumstance necessary to the execution of a use by this statute is, that there should be a use in esse, in pos- session, remainder, or reversion. And this use may either be created by an express declaration, or may result to the original owner of the estate, or arise from an implication of law. (e) 34. When these three circumstances concur, the possession and legal estate of the lands, out of which the use was created, (a) Bac. Bead. 63. 13 Eep. 56. (1 Sand. Uses, 89.) (6) 13 Eep. 56. (c) Bac. Eead. 64. (d) Ante, s, 3. Bac. Uses, 47. Eure v. Howard, Pre. Cha. 318. 345. Broughton v. Lang- ley, 2 Salk. 679. Eight v. Smith, 12 East, 454. Hummerston's case, Dyer, 166, a. note (9.) (e) 1 Eep. 126. a. Infra, c. 4. Title XL Use. Ch. III. s. 34—38. 327 are immediately taken from the feoffee to uses, and transferred by the mere force of the statute to the cestui que use. And the seisin and possession thus transferred are not a seisin and possession in law only, but an actual seisin and possession in fact ; not a mere title to enter upon the land, but an actual estate, (a) 35. Lord Coke appears to have been of opinion, that by a con- veyance to uses, executed by the statute, only a freehold in law passed. And others have said that the statute only transfers a civil seisin, it being impossible for an act of parliament to give an actual seisin ; therefore that an entry is necessary to complete the seisin. It has, however, been found that the admission of this principle would be attended with dangerous consequences ; it is, therefore, now held that the statute transfers the actual possession ; a construction fully warranted by the words of the statute, which are, — " every person having a use shall be in lawful seisin, estate, and possession, to all intents, constructions, and purposes, in the law." (h) 36. The third section of the statute contains a saving " to all and singular those persons, and to their heirs, which were or thereafter should be seised to any use, all such former right, title, entry, interest, possession, rents, customs, services, and action, as they or any of them might have, to his and their own proper use, in or to any manors, lands, tenements, rents, or hereditaments, whereof they were, or thereafter should be, seised to any other use ; " as if the said act had not been made.* 37. In consequence of this clause, no term for years or other interest whereof a person, to whom lands are conveyed to uses, * is possessed in his own right, will be merged * 359 or destroyed by such conveyance, (c) 38. A husband being seised in fee, made a lease to O. and S. in secret confidence, for the preferment of his wife. Afterwards he made a feoffment to O. and others, of the same lands to other uses. It was decreed in the Court of Wards, by the advice of Wray, Anderson, and Manwood, that the term was not extin- guished by the feoffment, by reason of the proviso ; and because O. had the lease to his own use, it was not extinguished by the feoffment, which he took to the use of another, (d) (a) B;ic. Bead. 40, Cro. Eliz. 46. lb) 1 Inst. 266. b, Gilb. Uses, 230.' Barker v. Keate, 2 Mod. 249. Tit. 32. c. 11. (Duvall v. Bibb, 3 Call. 3G2.) (c) Vide Infra, tit. 39. (d) Cheyney's case, Moo. 190. 2 And. 192. 328 Title XL Use. Ch. III. s. 39—41. 39. A demised lands to B for ninety-nine years ; afterwards A, by bargain and sale enrolled, and fine, conveyed the same lands to B and others, and their heirs, to the use of them and their heirs, to the intent that a common recovery should be had and suffered against them, with voucher of the lessor, to the use of a stranger ; all which was done accordingly. The question was, whether the term for years was merged. And it was resolved that the term still subsisted ; for although it was merged by the union of the estates till the recovery was suffered, yet when that was done, the uses thereof being guided by the bargain and sale, it was the same as if there had been no conveyance ; it being within the equity and intent of the saving in the third section of the Statute of Uses ; for the intention of that statute was not to destroy prior estates, but to preserve them. It was also agreed by the whole Court, that if a fine or feoffment had been levied or made to the lessee for years, his term would not have been thereby extinguished. An objection was made that the bargain and sale, and fine, were to the use of the lessee for years, other- wise he could not have been tenant to the freehold ; therefore the savins in the Statute of Uses did not extend to this case ; but it was answered and resolved, for the former reasons, that the term was saved by the equity of the statute, (a) 40. The saving in the Statute of Uses extends to those cases where the inheritance is conveyed by lease and release. 41. Cook let to Fountain for ninety-nine years ; two years after, Cook conveyed the inheritance, by lease and release, to Fountain and another, to the use of Cook and the heirs of his body, with divers remainders over. The question was, wiiether, by this conveyance, the lease for ninety-nine years w T as merged and destroyed, in all or in part. First, it was agreed that, 360 * if such conveyance to uses had been by * fine or feoffment, it would not have been destroyed, but would have been preserved by the saving in the Statute of Uses. So likewise it was admitted that, if there had been no lease for a year, but the release had been immediate to the lessee for ninety-nine years, to such uses, in this case also the lease for ninety-nine years had been preserved by force of that statute ; but here being a lease for a year precedent, it was argued that this was to the use of (a) Ferrers v. Fermor, Cro. Jac. 643. 1 Vent. 195. 1 Mod. 107. Title XL Use. Ch. III. s. 41. 329 the lessee, and then by acceptance thereof, he admitted the les- sor's power to make such lease ; and by consequence before the release to the other uses came to take place, then the release after could not revive it ; it was also said, that though this were all one conveyance, yet it differed from a feoffment, for it would not purge a disseisin, nor make a discontinuance ; that if, before the release, the lessee granted a rent-charge or made a lease for half a year, and then a release was made to him and his heirs to such uses, yet he who had the inheritance would have no remedy to avoid these charges but in Chancery. On the other side it was argued, that this was no merger of the ninety-nine years' term ; or if it were, yet for no more than a moiety; for the reason of merger and extinguishment was not, as had been argued, the party's admittance of the lessor's power to make a lease, but the merger was effected by the accession of the immediate reversion to the particular estate; therefore a new lease by the lessor to his lessee was not a merger or surrender of the first term, if there was any interposing or intermediate term ; yet, in that case, the lessee admitted the lessor's power to make the lease presently, as much as in the other. Then if the union and accession of the two estates were the cause of the merger, the quantum of the thing granted would be the measure of that merger ; by consequence, the first lease here would be extin- guished, but for a moiety of the lands. Secondly, that it was not extinguished for any part, for the term was saved within the letter, or at least within the equity of the Statute 27 Hen. VIII. c. 10, s. 3 ; for the intent of the saving therein was to preserve the balance between the cestui que use and his feoffees, according to the rule of equity, by which they were governed before. Now, suppose that Fountain had a lease for ninety-nine years before this statute, and that Cook had desired him to accept a feoffment to his use ; without doubt, the Chancery would not have com- pelled him to assign, till the ninety-nine years' term ex- pired. And the same right * seemed now to be preserved * 361 by the saving; for the words were general, — "All that shall be seised to any use," not all that shall be seised by feoff- ment or fine ; so that the seisin to use was the only thing the statute regarded, not by what sort of conveyance ; that lease and release was become a common conveyance ; and the lease being 28* 330 Title XL Use. Ch. III. s. 41. expressly said to be, to enable the lessee to accept a release to other uses, should not be construed to any other intent, or to be to his own use, otherwise than to enable him to accept such release. Then if it should be admitted that the lease for ninety- nine years were extinguished by the lease for a year, yet by the release it was revived ; for being but one conveyance, it was within the equity of the statute. The case of Ferrers v. Fermor was stronger ; and yet it was resolved there, that though the bargain and sale had destroyed the term for a time, yet by the recovery it was revived ; because then but one conveyance ab initio; so here. No judgment appears to have been given ; but Lord C. B. Gilbert says it seemed reasonable that the lease for ninety-nine years should not be merged, or at least but for a moiety ; and even in that case, equity would set up the moiety, or the whole term again, (a) («) Cook v. Fountain, Bac. Ab. tit. Lease, E. Vide, tit. 32. c. 11. Ante, s. 39. 331 CHAP. IV. MODERN DOCTRINE OF USES. Sect. 1. Construction of the Statute. 3. Contingent Uses. 4. Uses arising on the Execu- tion of Powers. 8. Conveyances derived from the Statute of Uses. Whether the Statute extends to Devises. Resulting Uses. 32. Uses by Implication. 35. No Use results but to the Owner of the Estate. 13. 16. Sect. 37. Nor against the intent of the Parties. 41. Which may be proved by Parol Evidence. 42. Nor which is inconsistent with the Estate limited. 47. Nor on an Estate Tail, for Life or Years. 51. Nor on a Devise. 52. What Use results to a Ten- ant in Tail. Section 1. When the Statute of Uses first became a subject of discussion in the courts of law, it was held by the judges that no uses should be executed by that statute, which were limited against the rules of the common law. For it appeared from the preamble that it was the intent of the makers of the act to restore the ancient law, and to extirpate and extinguish such subtle practised feoffments, fines, recoveries, abuses, and errors, tending to the subversion of the good and ancient common law of the land. So that it was plain this act was never intended to exe- .cute any use which was limited against the rules of the common law ; the object of it was to extinguish and extirpate, not the feoffment, fine, or recovery, for these were laudable and good conveyances of lands and tenements, as in effect recited in the beginning of the preamble ; but those uses, which were abuses and errors, therefore mischievous, because they were against the rules of the common law. The statute was a law of restitution, — namely, to restore the good ancient common law, which was, in a manner, subverted by * abusive and erroneous * 363 uses ; not to give more privilege to the execution of uses than to estates which were executed by the common law. (a) ' (a) 1 Rep. 129. b. ' A modem Use may be defined as " an estate of right, which is acquired through 332 Title XL Use. Ch. IV. s. 2—5. 2. The Courts have so far adhered to this construction of the statute, that the same technical words of limitation are now re- quired in the creation of estates, through the medium of uses, as in the creation of estates at common law. But, in many other instances, this doctrine was departed from ; and advantage was taken of an expression in the Statute of Uses, in order to sup- port several of those modifications of property which had been allowed by the Court of Chancery in declarations of uses, when they were distinct from the legal estate. («) 3. The Statute of Uses enacts that the estate of the feoffees to uses shall be vested in the cestuis que use, " after such quality, manner, form, and condition, as they had before in or to the use, confidence, or trust, that was in them." Now, the Court of Chancery having permitted a limitation of a use in fee or in tail to arise in futuro, without any preceding estate of freehold to support it; and also that a use might change from one person to another, by matter ex post facto, though the first use were limited in fee ; the Courts of Law, in process of time, admitted of limitations of this kind, in conveyances to uses ; and held that in such cases the statute would transfer the possession to the cestui que use after such quality, form, and condition, as he had in the use. (b) f 4. By the rules of the common law, no restriction or qualifica- tion could be annexed to a conveyance of lands, except a con- dition. In consequence of this principle, a fine or feoffment, with a power of revocation annexed to it, was void at common law ; because the fine or feoffment transferred the whole property and right of disposal to the cognizee or feoffee ; therefore the power of revocation being repugnant to the force and effect of the preceding words, was void. Besides, the admission of such a clause would have introduced a double power, vested in dif- ferent persons, over the same property ; which was contrary to the rules of the common law. (c) 5. We have, however, seen that before the Statute of Uses, if (a) 1 Rep. 87. b. 1 Atk. 591. (6) Ante, c. 2. s. 37. (c) 1 Inst. 237. a. the operation of the Statute of 27 Hen. 8, c. 10 ; and which, when it may take effect according to the rules of the common law, is called the legal estate ; and when it may not, is denominated a Use, with a term descriptive of its modification." Cornish on Uses, p. 35. [ t An account of the nature of these limitations will be given in Title 16.] Title XL Use. Ch. IV. s. 5—7. 333 a feoffment was made to uses, the feoffor might reserve a power, either to himself, or to some other person, to revoke the uses * declared on the feoffment, and to appoint the * 364 feoffees to stand seised to other uses. The principle on which uses were originally founded being, that the feoffee to uses was bound in conscience to pursue the directions of the feoffor, this obligation was equally binding, whether the agreement was that the feoffor should receive the rents and profits himself, or some stranger ; or whether they were to be paid in such manner as the feoffor, or any other person to whom he delegated his power, should at any future time appoint, (a) 6. Now, as the Statute of Uses vests the legal estate in the cestui que use, after such quality, manner, and form, as he had in the use ; the Courts of Law concluded that in all conveyances to uses, a power might be reserved of revoking a former limitation of a use, and of appointing a new use to some other person, (b) f 7. If a person conveys his estate, by lease and release, to trus- tee) Ante, c. 2. s. 38. (b) 1 Inst. 237. a. [ t In an opinion of the late Mr. Booth, which has been published by Mr. Hilliard at the end of Sheppard's Touchstone, is the following account of contingent uses and powers : — " By the old law, no fee simple could be limited upon or after a fee simple ; hut since the Statute of Uses, executory fees by way of use have not only been allowed, but are become frequent, in all conveyances operating by way of trans- mutation of possession. The uses are served out of the seisin of the feoffees, grantees, releasees, &c. In all future or executory uses there is, the instant they come in esse, a sufficient degree of seisin supposed to be left in the feoffees, grantees, &c, to knit itself to and support those uses ; so as that it may be truly said the feoffees or grantees stand seised to those uses ; and then, by force of the statute, the cestui que use is immediately put into the actual possession. (This observation involves the doctrine of Scintilla Juris, which is discussed in a future page, Vol. II. tit. 16, ch. 5, 6, 7, &c.) It is wholly immaterial how, or by what means, the future use comes in esse; whether by means of some event provided for, in case it happened in the creation of the uses, which event may be called the act of God ; or by means of some work performed by any certain person, for which provision was likewise made in the creation of the uses, which may be called the act of man. In either case the statute operates the same way; for the instant the future use comes in esse, either by the act of God or the act of man, the statute executes the possession to the use, and the * cestui que use is deemed * 365 to have the same estate in the land, as is marked out in the use, by the deed that created it. When the use arises from an event provided for by the deed, it is called a future, a contingent, an executory use ; when it arises from the act of some agent or person nominated in the deed, it is called a use arising from the execution of a power. In truth, both arc future or contingent uses, till the act is done ; and afterwards they are, by the operation of the statute, actual estates. But till done, they arc in suspense, the one depending on the will of heaven, whether the event shall happen or not ; the other on the will of man."] 334 Title XL Use. Ch. IV. s. 7—9. tees and their heirs, to the use of himself for life, remainder to his first and other sons in tail, and inserts a proviso in the release that it shall be lawful for him, at any future time, to revoke these uses, and to declare new ones ; and that immediately upon such revocation and new declaration, the trustees shall stand seised of the lands to the use of such persons as the settlor shall appoint ; this is a power of revocation and appointment. As soon as it is executed, the uses originally limited cease, and a new use imme- diately arises to the person named in the appointment, for such estate as is given to him by it ; and the statute transfers the legal estate to such appointee, who, by that means, acquires the actual seisin and possession.! 8. Lord Bacon says, the chief object of the Statute of Uses was to destroy all those secret conveyances to uses which had been so much complained of. " The principal inconvenience," (says he,) " which is radix malorum, is the diverting from the grounds and principles of the common law, by inventing a mean to transfer lands and inheritances, without any solemnity or act notorious ; so as the whole statute is to be expounded strongly towards the extinguishment of all conveyances, whereby the freehold or inheritance may pass, without any new confections of deeds, executions of estate, or entries." It is, therefore, some- what singular that this statute, instead of having had that effect, has, on the contrary, given rise to several new modes of trans- ferring lands, unknown to the simplicity of the common law, and of a more secret nature than feoffments to uses ; so that, 366 * * notwithstanding the great caution with which this stat- ute was made, it has not answered the intention of the legislature, (a) 9. Lord Bacon, has, however, clearly proved, that the inten- tion of the statute was only to destroy the estate of the feoffee to uses, by transferring it to the persons who were entitled to the use; and not to destroy the form of the conveyance to uses. I. Because the words of the statute are, — " Where any person is seised, or hereafter shall be seised to any use," &c. II. In the («) Bac. Read. 33. 1 Atk. 501. [t The nature of revocations and appointments to uses will be explained hereafter. Tit. 32, c. 13.] Title XL Use. Ch. IV. s. 9—11. 335 same session in which this statute was made, it was enacted, that all bargains and sales to uses should be enrolled ; which proved the intention of the legislature, to leave the form of the conveyance, with the addition of a farther ceremony. III. By the twelfth section of the statute, it was provided that the king should not take any primer seisin, or other feudal profits, on ac- count of any estate which should be executed by means of the statute, till the 1st of May, 1536 ; but that he should take the feudal profits for all uses, which should become executed by the statute after that time, (a) 10. But whatever might have been the intention of the legis- lature in passing this statute, it is certain that it has given rise to several new sorts of conveyances, which operate contrary to the rules of the common law ; for it being soon observed that there was nothing in the statute to prevent the raising of uses, but only a provision that when a use was raised, the possession of the land should be transferred to such use, it was only neces- sary to raise a use, and the legal seisin and estate, together with the actual possession, became immediately vested in the cestui que use,, without livery of seisin, entry, or attornment, (b) 11. In consequence of this doctrine, it became customary to raise a use to the person to whom the lands were intended to be conveyed, and then the statute transferred the possession to the cestui que use. This was done in two different ways ; first, by a conveyance which only transferred a use, and which is said to operate without any transmutation of possession, because the alteration of the legal seisin is effected by the mere operation of the statute. There are two modes of conveyance which operate in this manner ; a bargain and sale to uses, and a covenant to stand seised to uses ; of which an account will be given here- after.! The second mode of conveying lands through the medium * of uses, is effected in the following manner : — * 367 The legal estate and possession is transferred by a feoff- ment, fine, or recovery,^ to some indifferent person, who stands in the place of the ancient feoffee to uses ; ,a deed is then exe- cuted, reciting, that by such feoffment, fine, or recovery, the lands (a) Bac. Read. 39. (b) Ante, c. 3. s. 34. — j — — [t Tit. 32, ch. 9 & 10.] [t Before the recent Stat. 3 & 4 Will. 4, c. 74. ] 336 Title XL Use. Ch. IV. s. 11—13. have been transferred to A B, and declaring that such feoffment, fine, or recovery, shall enure and operate, and that the feoffee, cognizee, or recoveror, in such feoffment, fine, or recovery, shall be seised of such lands, to the use of a third person. Or else a deed is first executed, reciting that a fine or recovery is intended to be levied or suffered, or covenanting to levy a fine or to suffer a recovery, and declaring that these assurances, when completed, shall enure to the use of a third person. 12. In both these cases a use arises out of the seisin of the feoffee, cognizee. or recoveror, to the person to whom such use is declared, and the statute immediately transfers to that use the legal estate and actual possession. These latter assurances are said to operate by transmutation of possession,! because the legal seisin and estate is first transferred by some common-law conveyance or assurance. They are usually called deeds to lead or declare the uses of a fine or recovery ; and will be treated of hereafter, (a) 13. As the Statute of Uses preceded the Statute of Wills, the former has been said not to extend to devises to uses. It is, how- ever, observable, that the words of that statute are, — " Where any person, &c, is seised to the use of any other person by reason of any bargain, sale, &c, will, or otherwise." Now, though at the time when the statute was made, the word will could only apply to wills of lands then devisable by custom, yet when 368 * the statute *of wills passed, the word will in the Statute of Uses became applicable to wills, or rather to devises, of all the lands over which a testamentary power was given. (a) (See tit. 32. c. 9, 10.) [ t To the fine, feoffment, and recovery, may be added the ordinary conveyances of Lease and Eelease. and Grant, both of which operate by transmutation of possession or seisin ; the author treats of them in Vol. IV. title Deed, ch. 4, s. 33, and ch. 11. The student is referred to the two tables in the following note, which may assist him in understanding the effect of the Statute of Uses, in the various forms of conveyance which do and which do not, operate by transmutation of possession or seisin ; the intention being, in the following example, (table No. 1,) that under each of these modes of conveyance, the seisin should be transferred to A, the use or legal estate to B, and the trust estate or equitable ownership to C, so that they may take the same interest, or stand in the same character in each conveyance. In the table No. 2, the student will see the different effects of the statute upon the interests of the persons taking under a limitation to A and his heirs, to the use of B and his heirs, to the use of or in trust for C and his heirs, by a declaration of the uses Title XL Use. C!i. IV. s. 14. 337 * 14. In a case in 2 & 3 Phil, and Mary, it is said that *369 devises of land in use have been common. In 23 Eliz. it was agreed by the Court of "Wards, that a devise might be to the use of another ; and Lord Coke is there reported to have been of a fine or recovery, by a feoffment, lease and release, grant, bargain and sale, cove- nant to stand seised, and an appointment.] No. 1. In order to give A. the seisin, B. the use or legal C. the trust estate, estate. or equitable ownership. In a Fine, A. must be made Conuzee, B. JC Cestui-qui use by | Cestui-que trust, the deed leading or declaring the! uses of the fine. a _© O o a, s- o Recovery, Recoveror, the same of the recovery. the same as above. a '3 DD Feoffment, Feoffee, Cestui-que use. Cestui-que trust. atation o t commo Lease and Re- lease, Releasee, who is of course the lessee or bargainee for a year. same. same. u ci S-. >> C Grant, Grantee, 5ame. same. Open Bargain and ) Sale, ] Bargainor, Bargainee. same. O a .2 11 a aj is o tsP 4 •° o .5 •- 2 '" Ph O o Covenant to ) stand seised, ) Covenantor, Covenantee being cestui-qui use. same. Appointment, The Releasee, grantee, &c., to uses in the deed creating the power of appointment. Appointee. same. VOL. I. 29 338 Title XI. Use. Ch. IV. s. 14. of opinion, that the son of a devisor takes by descent, when the cestui que use, to whom the land is devised, refuses the use ; for the devisee cannot take it to his own use, because, if the use be void, the devise is also void. In the case of Broughton v. Langley, which will be stated in the next title, it was agreed that a 370 * devise may be * to the use of another ; and the use will be executed, if the intent of the devisor appear. In Gilbert's Uses, it is also said that a devise may be made to a use. (a) I k>. 2. To A. and his To the use of B. heirs. and his heirs. To the use of, or in . trust for C. and his heirs. Operating by transmutation of seisin or possession. In a Fine Recov- ery. . declared • so to enure. A. will take the ]B. use. nothing. C. the equitable fee. A. will take the same as above. B. nothing. C. same as above. Feoffment. A. will take the seisin. B. the use. C. same as above. Lease and Re- ) lease. ) the same as above. Grant. the same as above. Bargain and ) Sale. J A. will take the use. B. nothing. C. the equitable fee. Not operating by transmu- tation of seisin or pos- session. Covenant to ) stand seised. ) the same as above. Appointment. 1 the same as above. [The preceding tables were inserted by the Editor in his edition of Principles, 1831, p. 233, 234.] (a) Dyer, 127. a. E. Hartop's case, 1 Leon. 253. Lutw. 823. Gilb. Uses, 162, Watkin's 281. Title XL Use. Ch. IV. s. 15—17. 339 15. In the case of an immediate devise to uses, as a devise to the use of A for life, remainder to the use of B in tail, it is ad- mitted that the remainder cannot take effect by way of use, because there is no seisin to serve the use. But in the case of a devise to A and his heirs, to the use of B for life, remainder to the first and other sons of B in tail, there is no reason why the seisin of A should not be deemed sufficient to support the uses to the sons of B. (a) f 16. Before the Statute of Uses, if a person had conveyed his lands to another, without any consideration, or declaration of the uses of such conveyance, he became entitled to the use or per- nancy of the profits of the lands thus conveyed. This doctrine was not altered by that statute ; and, therefore, it became an established principle, that where the legal seisin and possession of lands are transferred by any common-law conveyance or assur- ance, and no use is expressly declared, 1 nor any considera- tion or * evidence of intent, to direct the use ; such use shall * 371 result back tb the, original owner of the estate ; for where there is neither consideration, nor declaration of uses, nor any circumstance to show the intention of the parties, it cannot be supposed that the estate was intended to be given away, (b) 17. In consequence of this principle, Lord Coke has laid it {a) See tit. 16. c. 5. (b) Dyer, 186. b. 11 Mod. 182. [fin opposition to this doctrine, a note to an opinion of the late Mr. Booth's has been published,— Collect. Jur. v. 1, 427,— in which it is said that the Statute of Uses does not operate on a devise to uses. This note is not annexed to the original opinion, which was in the possession of the late Mr. Billiard, though it is said by Mr. Butler— 1 Inst. 271, b. n. 1, s. 3, 5 — to be annexed to two copies of the opinion made imme- diately under the eye of Mr. Booth, and delivered by him to the persons in whose custody they are, and also in a copy of it bequeathed by Mr. Booth to Mr. Holliday. Admitting the authenticity of this note, and the great authority to which Mr. Booth's opinions are justly entitled, yet, as it has been an universal practice for the last two centuries to devise lands to trustees and their heirs, to various uses, with several powers, in the same words as are used in declarations of uses on fines and recoveries, it would be extremely dangerous, at this time, to question the operation of the Statute of Uses in such cases. In the construction of wills, the intention of the testator must be the guide, and it is now well settled, that if it be apparent, from the technical penning of the devise, that the testator intended to bring the Statute of 27 Henry 8, ch. 10, into operation, effect will be given to that intention, and the uses will be executed in the will as if they were limited by deed. 1 Vera. 79, 415 ; 2 Salk. 679 ; 2 Atk. 573 ; 2 P. Will. 134.] 1 It is sufficient that the use be declared, though no consideration be expressed in the deed. Sprague v. Woods, 4 Watts & Scrg. 192. 340 Title XL Use. Ch. IV. s. 17—20. down as a rule, — " That so much of the use as the owner of the land does not dispose of, remains in him." So that where a person seised in fee simple ' levied a fine, or suffered a recovery, without any consideration, or declaration of the uses to which it should enure, the use resulted back to himself ; and the statute immediately transferred the legal estate to such resulting use ; by which means he was seised in fee simple in the same manner as he was before. If any particular uses were declared, so much of the old use as was not declared to be vested in some other persons, resulted back to the original owner, (a) 18. Thus, where a man made a feoffment to the use of such person or persons, and for such estate and estates, as he should appoint by his will ; it was resolved that the use resulted to the feoffor till he made an appointment, (b) 19. So where a person made a feoffment to the use of himself, and his intended wife, after their marriage ; it was determined that the use resulted to the feoffor and his heirs, till the mar- riage, (c) 20. In an ejectment tried before Lord Chief Baron Parker, this short case was reserved for the opinion of the Court. A *B, being in possession of the lands in question, levied a fine sur conusans de droit come ceo, &c, to the conusee and his heirs, without any consideration expressed ; and without declaring any use thereof ; nor was it proved that the conusee was ever in pos- session. So that the single question was, whether the fine should enure to the use of the conusor, or to that of the conusee. After two arguments, the Court gave judgment for the plaintiff, who claimed as heir of the conusor ; and said, that in the case of a fine come ceo, &c, where no uses were declared, whether the conusor were in possession, or the fine were of a reversion, it should enure to the old uses, and the conusor should be in of the old use. That in the case of a recovery suffered, the same should enure to the use of him who suffered it, (who was 372 * * commonly the vouchee,) if no uses were declared. So, in this case, the ancient use was in the conusor at the time of levying the fine ; for it seemed to have been long settled, (a) 1 Inst. 23. a. 271. a. Dyer, 166. a. (b) Sir E. Clere's case, 6 Eep. 17. b. (c) Woodliffe r. Drury, Cro. Eliz. 439. 1 Since altered in England, by Stat. 3 & 4 Wm. 4, c. 74. Title XL Use. Ch. IV. s. 20—26. 341 that a fine without any consideration, or uses thereof declared, should enure to the ancient use in whomsoever it was, at the time of levying the fine ; and as it was here in the conusor, at the time, the judgment must be for the plaintiff, (a) 21. Where a husband and wife levied a fine of the wife's estate, without any sufficient declaration of uses, it was held that the use resulted back to the wife only ; because the estate in the land passed only from her, and the husband joined with her only for' conformity, (b) 22. Where a person levied a fine of his estate to trustees, to certain uses, and did not declare any use of the estate during his own life, it would result to himself. 23. A fine was levied to the use of trustees for 700 years, remainder to other trustees for 300 years, and from and after the death of the cognizor, to the use of his son for life, remainder to the first and other sons of such son in tail. It was resolved by the Lord Keeper, after consideration had with all the Judges, and a case, that as the cognizor had not limited away the freehold to any person during his life, it resulted back to him- self, (c) 24. Archdale Palmer, in consideration of the marriage of his son, settled an estate to the use of his son for life, remainder to his intended wife for life, remainder to the first and other sons of the marriage in tail, remainder to the heirs male of the body of Archdale Palmer, remainder over. It was resolved, that as the limitations to the son, and his first and other sons, might determine during the life of Archdale Palmer, a use resulted to. him for life, expectant upon the determination of the estates limited to his son, &c. (d) 25. But where the use is expressly limited away during the life of the grantor, no use can result to him. 26. A person, in consideration of marriage, conveyed lands to trustees, to the use of himself and his heirs till the marriage, then to the use of his intended wife for life for her jointure, remainder to trustees and their heirs during the life of the hus- band, in trust to support contingent remainders, but to permit (a) Armstrong v. Wholesey, 2 Wils. R. 19. (b) Beckwith's case, 2 Rep. 58. a. Dyer, 146. b. (c) Penhay v. Hurrell, 2 Vern. 370. 2 Freem. 258. (d) Wills v. Palmer, 2 Black. R. 687. Fearne, Cont. Rem. 45, 6th edit. 29* 342 Title XL Use. Ch. IV. s. 26—30. the husband to receive the rents and profits during his 373 * life, * remainder to the first and other sons of the marriage, in tail male, remainder to the heirs male of the husband by his then intended wife, remainder over. It was resolved, that no use resulted to the husband, because there was an express estate limited to the trustees during his life, (a) 27. The use will result according to the estate which the parties have in the land. Thus, if there were two joint tenants, and they levied a fine without any declaration of uses, the use should be to them of the same estate as they before had in the land. So if A, tenant for life, and B in remainder or reversion, levied a fine generally, the use should be to A for life, the remainder or reversion to B in fee. For each granted that which he might lawfully grant; and each shall have the use which the law- vested in them, according to the estate which they conveyed over. So if A, seised in fee of an acre of land, and he and B levied a fine of it to another, without consideration, the use would be to A only and his heirs; for a use, which is but a trust and confidence, and a thing in equity and conscience, shall be, by operation of law, to him who in truth was owner of the land, without having regard to estoppels or conclusions, which are averse from truth and equity, (b) 28. It was determined, in a modern case, where a fine was levied by a tenant for life, together with the remainder-man in tail, and the reversioner in fee, and a declaration of uses was executed by the tenant for life, and the remainder-man in tail only, that the use of the reversion in fee resulted to the rever- sioner, (c) 29. It is somewhat doubtful, whether in the case of a lease and release, without any declaration of uses, the use results to the releasor, for reasons which will be stated when that mode of conveyance is explained. But if any particular use is declared on a lease and release, the residue of the use will result back to the releasor, (d) 30. Where the same use is limited to the owner of the estate, which would have resulted to him in case no declaration of that (a) Tippin v. Coson, 4 Mod. 380. 1 Ld. Raym. 33. (Comb. 313.) (6) 2 Rep. 58. a. (c) Roe v. Popham, 1 Doug. Rep. 24. (d) Vide tit. 32. c. 11. Title XL Use. Ch. IV. 5. 30—34. 343 use had been made, the declaration is void; and he takes it as a resulting; use. (a) 31. Anthony Mitford, being seised in fee of the estate in ques- tion, conveyed the same to the use of his eldest son and his wife, and the heirs male of the body of his son, remainder to the use of * his own right heirs. It was resolved, that * 374 the use limited to the right heirs of Mitford was the ancient use, which was never out of him, and was, in fact, a reversion in him to grant or charge ; and would descend from him to his heir if it had not been mentioned ; that the limitation to his right heirs was, therefore, void,f being no more than what the law had already vested in him. (b) 32. The rule that so much of the use as the owner of the land does not dispose of, remains in him, takes place in those convey- ances to uses which operate without transmutation of possession, as in covenants to stand seised, and bargains and sales, where the use arises out of the estate of the covenantor or bargainor; for in these cases so much of the use as the covenantor or bargainor does not dispose of, still remains in him, as his old estate ; and is called a use by implication. 33. A, being tenant in fee, covenanted to stand seised to the use of his heirs male, begotten, or to be begotten on the body of his second wife. It was determined that A took an estate for life by implication ; for the limitation being to the heirs of his body, &c, and it being impossible for him to have any such heirs during his life, as nemo est hceres viventis, the use was undisposed of during his life, and consequently remained in him. (c) 34. It follows from the same principle, that where no use arises {a) 1 Inst. 22. b. (b) Read and Morpeth v. Errington, Cro. Eliz. 321. Moo. 284. 2 Rep. 91. b. (c) Pybus v. Mitford, 1 Vent. 327. [ t The recent Statute of 3 & 4 Will. 4, c. 106, s. 3, materially alters the law in this respect, so far as regards limitations in deeds executed after the 31st day of December, 1833, and in wills of testators dying after that day. For it enacts, that when any land shall have been limited by any assurance executed after the said day, to the person or to the heirs of the person who shall thereby have conveyed the land, such person shall he considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof. In respect of wills, it enacts, that when any land shall have been devised by any tes- tator, (dying after the said day,) to the heir, or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent.] 344 Title XL Use. Ch. IV. s. 34—40. upon a covenant to stand seised, or bargain and sale, either for want of a sufficient consideration, or for any other cause, such use will remain in the covenantor or bargainor, (a) 35. From the nature of resulting uses, and uses by implication, it follows that they can never arise to any person but the original owner of the estate. 36. Husband and wife levied a fine of the wife's estate 375 * to the * use of the heirs of the body of the husband on the wife begotten ; remainder to the husband in fee. It was resolved, that no estate resulted to the husband, because the lands originally belonged to the wife. This judgment was affirmed by the House of Lords, (b) 37. Where there is any circumstance to show the intent of the parties to have been that the use should not result, it will remain in the persons to whom the legal estate is limited. 38. A recovery was suffered by one Hummerston, to the intent that the recoverors should make an estate to him and his wife for their lives, remainder to their eldest son in tail, &c. It was agreed by the Court, that after the recovery suffered, the recover- ors should be seised to their own use ; for if they were seised to the use of Hummerston, then they could not make the estate. But Southcot and Wray said they ought to do this in convenient time, otherwise the use would result to Hummerston. (c) 39. A fine was levied, and an indenture made to declare the uses of it ; the words of which were, — " the fine was levied to the intent that they should make an estate to him whom J. E., the father, (who was the cognizor,) should name." And there was a proviso at the end of the indenture, that the cognizee should not be seised to any other use, except unto that use speci- fied. It was holden by all the justices, that the lands should be to the use of the cognizees themselves, immediately as above ; that after the nomination, they should be seised to the use of whomever he named ; and if J. E. died without nomination, then the law would settle the use in his heir, (d) 40. A feoffment was made by A upon condition to reconvey to A for life, remainder to the eldest son of A in fee. It was resolved that no use resulted to A; for if so, then the estate (a) Tit. 32. c. 10. (b) Davis v. Speed, Show. Ca. in Pari. 104. Ante, s. 24. (c) Hummerston's case, Dyer, 166. a. n. (9.) (337. a. pi. 36.) (d) (Betinan v. Bateston, 4 Leon. 22. Dyer, 166. a. n. (9.) Title XL Use. Ch. IV. s. 40—46. 345 would vest by the Statute of Uses, and the feoffee could not make an estate to A and to his son. (a) 41. As resulting uses depend upon the intention of the parties, parol evidence is admissible to show what the intent was ; 1 and the clause in the Statute of Frauds, requiring that declarations of trusts and confidences, which is held to include uses, should be made by some writing, signed by the party, extends, in cases of conveyances to uses, to third persons only ; not to the persons conveying, or those to whom lands are conveyed to uses, (b) *42. Where a use is expressly limited to the owner of *376 the estate, he will not be allowed to take any resulting or implied use, inconsistent with the use limited to him. 43. At a moot in Lincoln's Inn Hall, Mr. Noy put this differ- ence : — If a man makes a feoffment in fee to the use of himself for life, the fee simple remains in the feoffees, for otherwise he will not have an estate for life, according to his intention ; but if the use be limited to himself in tail, it is otherwise ; for both estates may be in him. (c) 44. It was held in the Court of Wards by Popham and Ander- son, in the argument of the Earl of Bedford's case, that if A makes a feoffment to the use of himself for forty years, and does not limit any other estate, the fee will not result, but will remain in the feoffees ; for otherwise the term would be merged. (jT) 45. One Savage being seised in fee, conveyed his estate, by lease and release, to trustees and their heirs, to the use of him- self for ninety-nine years, remainder to trustees for twenty-five years, remainder to the heirs male of his own body. It was de- termined that no use for life resulted to Savage, because that would be inconsistent with the term of ninety-nine years ex- pressly limited to him. (e) 46. A, by a settlement made on his marriage, conveyed cer- tain lands to the use of himself for ninety-nine years, if he so (a) Winning-ton's case, Jenk. Cent. 6 Ca. 44. Vide Altham v. Anglesey. Thrustout i\ Peake, tit. 36. c. 2. (i) Roe v. Popham, 1 Doug. 25. 11 Mod. 214. Tit. 32. c. 3. (c) Dyer, 111. b. n. 46. (d) (Dyer, 111. b. n. 46. 2 And. 197. Moor, 718.) (e) Adams v. Savage, 2 Salk. 679. 1 Provided that, in cases free from fraud, the parol evidence be not inconsistent with the deed. See post, tit. 12, c. 1, § 45, note. 346 Title XL Use. Ch. IV. s. 46—50. long lived, and after to the use of trustees for 200 years, remain- der to the use of the heirs male of his own body, remainder to his own right heirs. Upon a case referred to the Judges of the Court of Common Pleas, from the Court of Chancery, they held that no estate of freehold could result to A for his life, because another estate, viz., for ninety-nine years, if he so long lived, was expressly limited to him, which would be inconsistent with a re- sulting estate of freehold, (a) 47. The doctrine of resulting uses only extends to those cases where an estate in fee simple passes ; for if a person conveys an estate to another in tail, without any consideration, or declara- tion of uses, no use will result to the donor, and, consequently, the donee will hold to his own use ; because, by a gift of this kind, there is a tenure created between the donor and the donee in tail, which amounts to a consideration, and prevents the use from resulting. In the same manner as if a feoffment had been made before the Statute of Quia Emptores, the feoffee would have held the land to his own use, because a tenure was 377* thereby * created, in consequence of which he would have held of the feoffor, at least by fealty, (b) 48. In the same manner, if a person leases lands to another for life, or years, no use will result to the lessor. So if a lessee for life, or years, grants over his estate, without any declaration of use, the grantee will have it to his own use. In Gilbert's Uses, p. 65, the reason given for this doctrine, is, that these lesser estates were not used to be delivered, to be kept for the future support and provision of the family ; therefore the mere act of delivering possession passed a right, without consideration ; since there was no presumption, from the use of the country, that these estates were transferred under secret trusts ; especially as rents were usually reserved ; and they were subject to waste and other forfeitures, (c) 49. In the case of a conveyance of an estate for life or years, without consideration, although a use should be declared of part of the estate to the grantee, yet there will be no resulting use to the grantor. 50. A, being a tenant for life, granted his estate to B, by fine, (a) Rawley v. Holland, 2 Ab. Eq. 753. 22 Vin. Ab. 188. pi. 11. (6) Bro. Ab. Feoff, al. Use, pi. 10. Dyer, 146. b. Perk. 534, 5. (c) Bro. Ab. Feoff, al. Use,' pi. 10. Dyer, 146, b. Perk. 534, 5. Title XL Use. Ch. IV. s. 50—54. 347 and by indenture declared the use to B for the life of A and B ; and if B died, living A, that it should remain to C. Afterwards B died, living A; C entered and let to D for years, and died, living A. The question was, whether the lessee should retain the land as an occupant, during the life of A, or that A should have it again as a resulting use. " It was adjudged, after argu- ment, that D should have it as an occupant, and that A had not any residue of the use in him ; for although, where tenant in fee makes a deed of feoffment, and limits the use for life or in tail, and doth not speak of the residue, it shall be to the feoffor or conusor, because he had the ancient use in him in fee ; yet when tenant for life, or he who hath the particular estate, grants his estate by fine, and limits the use for years, or for a particular estate, it shall not return to him, but be to the conusee, although the fine were without any consideration ; because he who hath the particular estate by fine is subject to the ancient rent and forfeiture, which is a sufficient consideration to convey the estate to him." (a) 51. As a devise imports a bounty, it follows that it must be to the use of the devisee, if not otherwise declared ; and that no use can, in any case, result to the heirs of the devisor, unless it * appears by the will itself that the devise was not made * 378 to the use of the devisee. But if a person be merely named as a devisee to uses, and the use fails, there will be a re- sulting use to the heir of the devisor, (b) 52. Where a tenant in tail suffered a common recovery of his estate, by which it was converted into a fee simple, without declaring any uses thereof, it has been doubted whether the use which resulted to him be in tail or in fee simple. The language of the old books is, that where there is a feoffment, fine, or recov- ery, without consideration or declaration of uses, these assurances shall enure to the old uses, (c) 53. Thus, where a father tenant for life, and the son tenant in tail, joined in suffering a common recovery, but the father alone executed the deed declaring the uses ; the Court directed the jury to find the uses according to the estates which the parties had at the time of suffering the recovery, (d) 54. So, where a father tenant for life, and the son tenant in (a) Castle v. Dod, Cro. Jac. 200. (b) Tit. 38. c. 1. Hartop's case, 1 Leon. 254. (c) Tit. 36. c. 7. id) Argol v. Cheney, Latch, 82. Han-is v. Evans, Bridg. 548. 348 Title XL Use. Ch. IV. s. 54—56. tail, suffered a common recovery, without any declaration of the uses to which it should enure ; it was held that it enured to the former use. (a) 55. The doctrine laid down in the above cases is liable to great objections ; for as resulting uses are guided by the intent of the parties, it follows that where a tenant in tail suffered a recovery without any declaration of uses, the presumption was, that this act was done for the special purpose of acquiring the absolute dominion over his estate ; as it cannot be supposed that he would go to the expense of suffering a recovery, if he was only to take the same estate which he had before ; and it has been admitted in the following case, that where a tenant in tail suf- fered a common recovery, without any declaration of uses, the resulting use was to him in fee simple, (b) 56. Earl Ferrers being tenant for life, with remainder to his first and other sons in tail male, and having an eldest son Robert, who was about seventeen years old, and several other sons, a very advantageous match had been agreed on between such eldest son and a young lady ; and articles were entered into by Earl Ferrers and his son, whereby Earl Ferrers covenanted that he and his son should, within a year after his son came of age, by fine or re- covery, settle the bulk of his estate to the use of his son for life, remainder to his first and other sons in tail, &c. The 379 * marriage * took effect, and the eldest son Robert, when he came of age, joined with his father in levying a fine, and suffering a common recovery ; but there was no declaration of uses. The son died, leaving an only daughter and no son. It appears from the case that the estates of which the recovery was suffered, descended to the only daughter of Robert the son, who had joined his father in the recovery, and had not declared any uses. Now, if the recovery had enured, as to Robert the son's estate, to the old uses, he would have been tenant in tail male, with remainder to his brothers in tail male successively ; and upon his death without issue male, the estate would have vested in his next brother, not in his daughter. But it was so fully admitted by the counsel of Earl Ferrers, who was party to that suit, and who was a younger brother of Robert the son, who suffered the recovery, that in case of no declaration of uses, the use and estate resulted to Robert the son in fee ; that the («) Waker v. Snow, Palm. 359. (5) 9 Eep. 11. a. Gilb. Uses, 64. Title XI. Use. Cli. IV. s. 56—58. 349 only point for which they contended was, that the articles executed by Robert the son, while an infant, and under which they claimed, amounted to a good declaration of the uses of the recovery, (a) 57. This doctrine has been confirmed by the highest modern authorities. Thus Lord Hardwicke has said, — " I take it for law that » tenant in tail suffering a recovery is in of the old use, and that the estate is discharged of the Statute De Bonis;" and in another case, — « A common recovery will bar the entail, though there is no deed to lead the uses ; because it is in respect of the satisfaction oi estate in value, which creates the bar." And Lord C. J. Lee has said,—" It is the use of the fee simple that passes to the recoveror from tenant in tail, and which results to him and his heirs, if no use is declared." (b) 58. It follows from the above principles, that where a tenant in tail levied a tine, without any declaration of uses, he acquired a base fee descendible to his heirs, as long as he had heirs of his body ; and, in the case of Roe v. Popham, it must be presumed that the Court reasoned in this manner ; for upon the death of the tenant in tail without issue, the person who had the reversion in fee was held to be entitled to the estate, (c) (a) Nightingale v. Ferrers, 3 P. Wms. 207. (b) 1 Atk. 9. 3 Atk. 313. 5 T. E. 110. note, (c) Ante, s. 41. VOL. I. ^0 350 TITLE XII. TRUST. BOOKS OF REFERENCE UNDER THIS TITLE. Blackstone's Commentaries. Book II. ch. 20. Kent's Commentaries. Vol. IV. Lect. 61. G. Spence, on the Equitable Jurisdiction of the Court of Chancery. Vol. I. Part II. Book III. ch. 2—7. Flintoff, on Real Property. Vol. II. Book III. ch. 2, 3. Ch. Baron Gilbert, on Uses and Trusts. (Sugden's ed.) Sanders, on Uses and Trusts. (5th ed.) R. Preston, on Estates. Vol. I. p. 184 — 190. Story's Commentaries on Equity Jurisprudence. Vol. II. ch. 24 — 26, 29, 32, 33. Ch. Fletcher. Essay on the Estates of Trustees. Thomas Lewis. Treatise on the Law of Trusts and Trustees. Lomax's Digest. Vol. I. tit. 10. CHAP. I. ORIGIN AND NATURE OF TRUST ESTATES. CHAP. II. RULES BY WHICH TRUST ESTATES OF FREEHOLD ARE GOVERNED. CHAP III. RULES BY WHICH TRUST TERMS ARE GOVERNED. CHAP. IV. ESTATE AND DUTY OF TRUSTEES. CHAP. I. ORIGIN AND NATURE OF TRUST ESTATES. Sect. 1. Origin of Trusts. 3. Description of. 4. A Use limited upon a Use. 14. Limitation to Trustees to pay over the Rents. 16. Trust for the separate Use of a Woman. 21. Trust to sell or to raise Money. Sect. 25. Or for any other Purpose to which a \legal Estate or~\ Seisin is necessary. 34. A Trust Estate limited after Payment of Debts, vests immediately. 35. Terms for Years limited in Trust. Title XII. Trust. Ch. I. s. 1—3. 351 Sect. 64. Or by Persons having only a particular Estate. 66. Where there is Fraud. 67. A Purchase in the Name of a Child is an Advancement. 75. Exception. Children eman- cipated. 77. And also a Wife. 80. No Trust between a Lessor and Lessee. 81. Trusts [executed distin- guished from Trusts] executory. 83. Who may be Trustees. Sect. 36. How Trusts may be declared. 40. Resulting or implied Trusts. 41. Contract for a Purchase. 42. Purchase in the Name of a Stranger. 48. Purchase with Trust Money. 52. Conveyance without Consid- eration. 55. A Trust declared in Part. 57. Or which cannot take Effect. 59. Exception. 61. Where no Appointment is made. 62. Renewal of a Lease by a Trustee. Section 1. The object and intention of the Statute 27 Hen. VIII. certainly was, to destroy that double property in land, which had been introduced into the English law by the invention of uses. If, therefore, the intention of the legislature had been carried into full effect, no use could ever after have existed for more than an instant ; for the moment a use was created, the statute would have transferred the legal seisin and possession to such use. But the strict construction which the Judges put on that statute defeated, in a great measure, its effect ; as they deter- mined that there were some uses to which the statute did not transfer the possession ; so that uses were not entirely abolished, but still continued separate and distinct from the legal estate, and were taken notice of and supported by the Court of Chancery, under the name of Trusts, (a) 2. A trust is, therefore, a use not executed by the Statute 27 Hen. VIII. ; for originally the words use and trust were perfectly synonymous, and are both mentioned in the statute. But as the provisions of the statute were not deemed coextensive with the various modes of creating uses, such uses as were not provided for by the statute were left to their former jurisdiction. (&) 3. A trust estate may be described 1 to be a right in equity to take the rents and profits of lands, whereof the legal estate is (a) Vaugh. 50. 1 Atk. 591. (&) 1 Black. Bep. 136. 1 Mr. Willis, adopting the view of Lord Stair, describes a trust as "An obligation upon a person, arising out of a confidence reposed in him, to apply property faith- fully, according to such confidence." See Stair, Instit. LL. Scotland, (by Brodie,) b. 4, tit. 6, § 2, Vol. II. p. 650 ; Willis on Trustees, ch. 1, p. 2. 352 Title XII. Trust. Ch. I. s. 3—4. 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. In the mean time, the cestui que trust, when in possession, is considered in a court of law, as tenant at will to the trustee, (a) 4. There are three direct modes of creating a trust. The first arises from a rule established in 4 & 5 Phil. & Mary, that a use could not be limited on a use} The reason given by Lord Bacon (a) 1 Show. E. 73. 1 This exposition of the statute, first given in Tyrrel's case, is classed by Black- stone among the " technical scruples which the Judges found it hard to get over ; " and he regrets its introduction ; observing of this and another rule restricting the operation of the Statute of Uses to freehold estates, that " by this strict construc- tion of the courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of a conveyance." 2 Bl. Comm. 336. Ld. Mansfield, speaking of the same rules, said that " it was the absurd narrowness of the courts of law, resting on literal distinctions, which, in a manner, repealed the Statute of Uses, and drove cestuis que trust into Equity." 2 Dougl. 744. Ld. Chancellor Sugden, also, is clearly of opinion that the notion that a use could not arise out of a use, so as to be executed by the statute, was merely a technical subtilty, which ought not to have been sanctioned at all. It was a suggestion which greatly perplexed the Judges ; see Milborn v. Fer- rers, Dyer, 114, b. ; Girland v. Sharp, Cro. El. 382; and in Tyrrel's case the point evidently was not firmly held by the Court, but was decided with apparent hesitation, and by a mere turn of the scale of opinion. ''■ Upon such .authority as this," says the learned Chancellor, " it became, by degrees, a settled point, that a use could not arise out of a use ; and it is, at this day, too firmly settled to be even questioned. For, it is said, the use is only a liberty, or authority to take the profits ; but two cannot sev- erally take the profits of the same land, therefore there cannot be a use upon a use. Daw v. Newborough, Com. 244. And see Symson v. Turner, 1 Eq. Ca. Abr. 383. Perhaps, however, there is not another instance in the books in which the intention of an act of parliament has been so little attended to. It has frequently been observed, by high authority, that there is no magic in words. When, therefore, the act said that, where one person was seised to the use of another, the legal estate should be transferred to the cestui que use; it meant that the person to whom the estate belonged in con- science should be invested with the legal right to it. Now, if the estate was conveyed to A to the use of B, in trust for C, C was the person entitled to the possession of the estate, and A was evidently seised to his use, as it appeared by the deed itself, that the possession was not intended to remain in B ; and there is nothing in the act to prevent the possession vesting in C. And, at least, it might have originally been held without any violation of principle, that the statute first executed the possession in B, and then again in C ; for, admitting that it was necessary to first vest the possession in the use limited to B, it would be difficult to discover any thing in the act which prevented the possession given by the statute, from immediately transferring itself from B to C. Title XII. Trust. Ch. I. s. 4. 353 for this determination is, because the words of the statute are, — Where any person is seised of any lands or tenements to the use of any other person ; — which exclude uses, as they do not fall within either of those descriptions, (a) (a) Tyrrel's case, Dyer, 155. a. Bac. Bead. 43. (Wilson v. Cheshire, 1 McCord, Ch. R. 233.) This could be effected by two deeds, and why not by one and the same deed 1 Nor am I satisfied that the Judges intended to hold, generally, that a use upon a use was void. They were of opinion, indeed, that if A, in consideration of money paid by B, bargained and sold land to B to hold to him and his heirs, to the use of the feoffee for life, in tail, or in fee, or to the use of a stranger, the uses were void, and B should be seised in fee, because the consideration and sale implied the use should he solely in him in fee. See Bendl. p. 61, pi. 108. The limitation was deemed repugnant to the habendum. Tyrrel's case does not go further than this. But suppose it to have been expressed in the bargain and sale, that the money belonged to C, and was paid by B on his behalf, and the habendum had been to B in fee, to the use of C in fee ; it does not appear to have been settled that the use to C would not have been executed by the statute, although clearly a use upon a use. The law must, however, at this day, be considered to embrace every case." Gilbert on Uses, by Sugden, p. 348, note. But whether the rule in Tyrrel's case is to be regarded as a rule of construction in all or any of the United States, may well be doubted. In South Carolina, indeed, and in Illinois and Missouri, the Statute of Uses, 27 lien. 8, has been expressly enacted in nearly the same words ; and as these enactments were long subsequent to that case, those States, in adopting the language of the English statute, may, perhaps, be sup- posed to have adopted also the expositions it had received in England. But in most of the other American States, statutes have been passed expressly regulating convey- ances, and providing in substance that deeds, executed in the prescribed manner, shall be valid to pass the estate to the grantee without any other formality. Such is the case in Massachusetts, Maine, New Hampshire, Vermont, Virginia, North Carolina, Ken- tucky, Mississippi, and Pennsylvania. Some have gone farther. Thus, in Delaicare, Rev. St. 1829, p. 89, § 1, it is enacted, in general terms, that the legal estate shall, in all cases, accompany the use and pass with it. In New York, Bev. Stat- Vol. II. p. 13, 3d ed., it is declared that the party entitled to the possession and receipt of profits shall be deemed to have the legal estate, to the same extent as the equitable interest. A provision substantially similar exists in Indiana, Bev Stat. 1843, ch. 28. And in Rhode Island, every deed and covenant to stand seised transfers the possession to the cestui que use, without farther ceremony. R. Isl. Rev. Stat. 1844, p. 260. In all these States, therefore, deeds of conveyance derive their effect not from the Statute of Uses, but from their own statutes of conveyances ; operating nearly like a feoffment with livery of seisin, to convey the land, and not merely to raise a use to be afterwards exe- cuted by the Statute of Uses. Hence it would seem that, in these States, a use may well be limited on a use, and the original intent and principle of the Statute of Uses be allowed to have its free and unrestrained operation, and to convey the legal estate, by its electric energy, to the remotest use, when not arrested by any permanent intervening trust. Such operation has already been admitted in deeds of bargain and sale ; and is virtually conceded in the rule, that deeds of conveyance, in what- ever form, may be treated as any species of conveyance which will best effectuate the intent of the parties. See Davis v. Hayden, 9 Mass. 514; Iligbcc v. Rice, 30* 354 Title XII. Trust Ch. I. s. 5—9. 382 * * 5. Thus, on a feoffment to A and his heirs, to the use of B and his heirs, in trust for C and his heirs, it was held that the statute executed only the first use ; and that the second was a mere nullity. But as it was evident that B was not in- tended to be benefited by that conveyance, the Court of Chan- cery took cognizance of the case, and decreed that B should pay the rents and profits of the land to C, and execute such convey- ances as he should direct, (a) 6. In a settlement, lands were conveyed to trustees and their heirs, to the use of them and their heirs, to the use of A B for life, &c. It was held that the legal estate was vested in the trus- tees, and that the limitations to A B, &c, were but trusts, (b) 7. Ann Ratford conveyed lands to T B and his heirs, to the use of him and his heirs, in trust to permit the said Ann and her husband to receive the profits during their lives. Lord Talbot held, that as the estate was limited to trustees and their heirs, to the use of them and their heirs, so that it was actually exe- cuted in them, whatever came afterwards could be looked upon only as an equitable interest ; for there could not be a use upon a use. (c) 1 8. [In a case of devise, the rule of construction was the same. Thus, where a person devised his real estate to trustees and their heirs, to the use of them and their heirs, upon several trusts ; it was declared by Lord Hardwicke that the legal estate was vested in the trustees, and the subsequent devisees took only equitable interests, (d) 9. "Where lands are conveyed by covenant to stand seised, bargain and sale, or by appointment under a power to A and his heirs, to the use of B and his heirs, the legal estate will vest in A ; and B will take only a trust or equitable estate ; for in each («) 2 Bl. Coram. 336. (Calvert's Lessee v. Eden, 2 H. & McH, 279.) (&) Whetstone v. Bury, 2 P. Wms. 146, Wagstaff v. Wagstaff, tit. 38, c. 5. Doe v. Passing- ham, 6 B. & Cr. 305. (c) Att.-Gen. v. Scott, Forrest R. 138. (d) Hopkins v. Hopkins, 1 Atk. 5S1. Marwood v. Darrell, Ca. Temp. Hardwicke, 91. S. P. 5 Mass. 352 ; Pray v. Pierce, 7 Mass. 3S1 ; Knox v. Jenks, 7 Mass. 488; Flint v. Shel- don, 13 Mass. 443 ; Marshall v. Fisk, 6 Mass. 24. The rule in Tyrrel's case was ex- pressly disapproved by Dana, Ch. J., in Thatcher v. Omans, reported in 3 Pick. Suppt. p. 528. ' See Cornish on Uses, p. 40, 41 ; Moor, 46, pi. 138. Title XII. Trust. Ch. I. s. 9—11. 355 of these instances, the conveyance does not operate by transmu- tation of the seisin to A, but merely passes the use to him, the seisin remaining in the bargainor, covenantor, and the releasee, &c, to uses in the instrument creating the power, (a) 10. In Venables v. Morris, an estate was limited by deed and fine to the use of the husband for life, remainder to trustees and their heirs during his life, to preserve contingent remainders ; remainder to the wife for life, remainder to the trustees and their heirs, (generally, without confining the limitation to the life of the wife,) to preserve the contingent uses and estates thereinafter * limited; remainder to such persons, &c, as *383 the wife should appoint, &c. Upon a case sent by the Court of Chancery, the Court of King's Bench certified that the trustees took the legal estate in fee after the determination of the wife's life estate, and that all the subsequent limitations were trusts, (b) Lord Kenyon observes, upon the above case, that it was abso- lutely necessary that the trustees should take the legal fee, for the wife in exercise of her power of appointment might create contingent remainders, which would require the estate in the trustees to support them, (c) 11. The case of Doe v. Hicks, which is one of devise, seems to have overruled Boteler v. Allington, and is distinguished from Venables v. Morris, in the material circumstance that there was no power of appointment. In Doe v. Hicks, the estate was de- vised to A for life, to trustees and their heirs (generally) to pre- serve contingent remainders ; to the first and othej. sons of A successively in tail male ; then followed limitations to several other tenants for life, to the trustees to preserve, and to the first and other sons in tail male as before, the limitations in every in- stance being to the trustees and their heirs (generally;) with the ultimate limitation to the right heirs of the testator. The Court of King's Bench held that it was not necessary for the trustees to take the legal fee, and the intention of the testator appeared to be, that the estate limited to the trustees should be confined to the lives of the tenants for life; for if the testator did not intend this, all the subsequent limitations to the trustees were (a) Tit. 32. c. 10, 14. See the Tables, supra, p. 368, n. (b) 7 T. R. 342, 438. (c) 7 T. R. 437. 356 • Title XII. Trust. Ch. I. s. 11—13. absolutely nugatory, and that the devise ought to be construed accordingly, (a) 12. But it has been decided in Colmore v. Tyndall, that in a deed, limitations, nearly resembling those in the above case of Doe v. Hicks, do not indicate an intention to give the trustees an estate pour autre vie so clearly, as to justify the Court in confining the limitation to the trustees to the lives of the tenants for life. In Colmore v. Tyndall, after several limitations in strict settle- ment, among which, those to the trustees to preserve were con- fined to the lives of the tenants for life, the estate was limited to Marianne Colmore for life ; with a contingent life-estate to her husband in case she married ; remainder to the trustee and his heirs (generally) to preserve ; remainder to her first and 384 * other * sons successively in tail male ; then to Caroline Colmore for life, to her husband if she married, to the trustee and his heirs (generally) to preserve ; to her first and other sons in- tail male as before ; with the remainder over in fee. Marianne Colmore died unmarried. The Court of Ex- chequer Chamber decided that the legal fee vested in the trustees, after the life-estate of Caroline Colmore. (7>) 13. But where in a deed, the intention is apparent from the subsequent limitations, in order to give effect to which it becomes necessary to confine the limitation to the trustees during the life of the tenants for life, there such a construction will be adopted. To this principle the case of Curtis v. Price must be referred ; there the estate was by lease and release limited to the husband for life, to his wife for life, if she continued unmarried, if not, to trustees and their heirs (generally) upon trust to pay her an annuity out of the rents during her life for her separate use, and to apply the surpjus for the benefit of the children of the mar- riage, and after the decease of husband and wife to the trustees, their executors, &c, for a term of one hundred years, for raising portions for younger children, remainder to the heirs of the body of the wife by the husband, remainder to the right heirs of the husband. Sir William Grant, M. R., was of opinion that the limitation to the trustees should be confined to the life of the wife, because the term of one hundred years could not arise consistently with the limitation of the entire fee to the same trustees.] (c) (a) Doe v. Hicks, 7 T. E. 433. Boteler v. Allington, 1 Bro. C. C. 72. Nash v. Coates, 3 B. & Aid. 839. (6) Colmore v. Tyndall, 2 Yo. & Jerv. 605. (c) Curtis v. Price, 12 Yes. 89. Title XII. Trust. Ch. I. s. 14. 357 14. The second mode of creating- a trust, arose from an opinion delivered by the Judges in 36 Hen. VIII., that where a person ' made a feoffment in fee, to his own use, during his life, and after his decease, that I. N. should take the profits, this was a use in I. N. ; contrary, if he said that after his death his feoffees should take the profits, and deliver them to I. N. This would be no use in I. N., because he could have them only by the hand of the feoffees. Thus the feoffees would have the legal estate ; and consequently I. N. could only have a trust, which would be enforced in equity, (a) 1 («) Bro. Ab. tit. Feoffm. al. Use, 52. 1 Respecting the estates of trustees, the principal inquiries, at the present day are, first, whether the estate conveyed is within the operation of the Statute of Uses ; that is, whether the trustee took any estate at all; and, secondly, if he did, then what estate did he take. In regard to conveyances by deed, the first of these questions seldom arises ; because, since the Statute of Uses, if the parties intend to make a conveyance in trust, they are generally careful to frame it so as to be clearly out of the reach of the statute. The questions most frequently raised are upon the interpretation of wills. The first class of these cases consists of those, in which there is no express devise to trustees, but an intention is more or less apparent of creating a trust of real estate, and of imposing the duty, and with it the estate, upon certain persons. When that intention is clear, an estate in the trustees will be implied, in order to give effect to the testator's intention in this, as in all other cases. This intention may be uncertain in two ways ; either, first, because it does not plainly appear that the trust is intended to attach to the land ; or, secondly, because the performance of the duty itself does not necessarily require that the trustee should have an estate in the land. An example of the former kind of uncertainty, was in Doe v. Woodhouse, 4 T. R. 89 ; where the testator willed that his debts and several annuities should be paid by his executors out of his whole estate ; and it was decided that these words, being sufficient to include real property, gave his executors an estate, by impli- cation, in the land. Where the question turns upon the nature of the duty to be performed, a distinction is made between a trust, which carries with it some legal estate or interest in the land, and a bare power or authority to sell ; and the rule is, that where the duty to be per- formed may be sufficiently accomplished by the exercise of a bare power or authority, the will is to be construed as creating nothing more than such power and authority, un- less more is expressly given ; since, by such construction, the heir is not disinherited. Any subsequent limitations in the will may take effect, subject to this power to sell. Fletcher on Trustees, 11, 12'. Thus, where a man devised his tenements to be sold by his executors, it was thought by Lord Coke, and after him by Mr. Hargrave, — Co. Lit. 113, a, n. 2, — that an interest passed to them, in trust. But this opinion is now regarded as unsound; and the devise is held to confer only a power to sell. Sugd. Fow. 10G; 1 Chance, Pow. 62. [Trustees under a will, who are authorized to grant and sell the whole or any part of the testator's estate real or personal, with full power to execute any deed or deeds 358 Title XII. Trust. Ch. I. s. 14. A distinction has, however, been made between a devise to a person in trust, to pay over the rents and profits to another ; and effectual in law, to pass a complete title thereto, do not take the legal estate therein. Fay v. Fay, 1 Cush. 93.] A second class of doubtful cases is, where there is an express devise to trustees, but it seems to depend upon a contingency which has failed. Here, also, an im- portant distinction is made, viz., between contingent gifts in trust, and gifts upon contingent trusts. Thus, where a testator, in case his personal estate should not suffice to pay his debts, gave all his real estate to his executors in trust, to pay his debts, and to pay the residue over to others, this was held a contingent devise, in trust ; and the personal estate proving sufficient to pay the debts, nothing passed to the executors, because the contingency never happened, on which alone they were to take. But where the testator devised all his lands to his executors, in trust, to pay certain legacies thereout, in case the personal estate was not sufficient, this was an absolute devise, the trust only being contingent, and of course the executors took the estate, at all events. 2B.&C. 357 ; 3 Dow. & Ry. 764 ; 2 Brod. & B. 623 ; 3 B. & C. 161. A third class of cases, in which it is doubtful whether the trustee takes any estate or not, is where the devise itself is express and unconditional, but such uses or trusts are also declared, as may possibly be executed by the Statute of Uses, so as to take the estate immediately out of the trustee and vest it in the cestui que trust. Here it is a well settled principle, that the estates of devisees in trust, are not to be taken from them by the execution of uses, contrary to the intentions of the testator ; and the question, therefore, is, whether the will itself affords sufficient evidence of the testators intention, that the estate of the trustees should remain in them. Fletcher on Trustees, 19. This intent may be manifested by requiring the trustees to perform some act, either, 1st, not relating to the ulterior gift, but subject to which act or duty others are to have the benefit of the estate, — see 1 Eden, 125, — or 2d, relating to the estate itself and the manner in which the cestui que trust is to enjoy the benefit of it. Thus, where a trust, and not a mere power to sell, is plainly created ; or a devise is made in trust to raise money, to be applied to collateral purposes, with remainder to the use of the cestui que trust ; it is manifest that the testator intended that the estate should vest in the trustee. Bagshaw v. Spencer, 1 Vcs. Sen. 142. And, though the trust for sale is limited to arise on a contingency which may not happen, yet, if it may happen, the legal estate will be held to be executed in the trustees, from the beginning. Rogers v. Gibson, Ambl. 95. Where money is to be raised out of lands, for the payment of debts or legacies, it sometimes becomes a question, whether it is a devise in trust, or a mere charge upon the lands in the hands of "the residuary devisee. This difficulty is settled, by consider- ing whether the testator intended that the trustee or executor should be active in the payment of the money, or not. If such intent does not appear, the Judges of C. B. thought that the legal estate would not vest in the trustee, but that the estate would be executed in the devisee, charged with the payment of the money. Kenrick v. Ld. Beauclerk, 3 B. & P. 175. And it may be stated, generally, that " where trustees are directed to do any acts relating to the land devised, which are usually performed by the legal tenant, the testator's intention will be taken to be that they are to retain the legal estate ; and, accordingly, it will not be executed in the cestui que trust." Fletcher on Trustees, 27. Title XII. Trust. Ch. I. s. 14. 359 a devise to a person, in trust to permit another to receive the rents and profits. In the former case it was held that the legal estate Then, as to those cases where the intent is to be collected from the manner in which the cestui que trust is to enjoy the estate ; the principle is very broadly stated in Gregory v. Henderson, 4 Taunt. 772, that, " though an estate be devised to A and his heirs to the use of B and his heirs, the Courts will not hold it a use executed, unless it appear that the testator intended it should be executed." These last words are material, and without them the proposition would not hold true. But how is the intent to be ascer- tained, if nothing more appears in the will, than the devise, in those terms ? Clearly, by referring to another and well settled rule of interpretation ; that "where a testator uses technical words, he must be presumed to employ them in their legal sense, unless the context contain a clear indication to the contrary." 2 Pow. Dev. by Jarrn. 8; 2 Co. Litt. 271 b, n. 1, sec. 3, p. 5. Accordingly, such a devise would be held to con- vey a legal estate to B, the cestui que trust, and his heirs, by the operation of the stat- ute. Broughton v. Langley, 2 Salk. 679; 2 Ld. Raym. 873; Fletcher on Trustees, 30 ; Doe v. Collier, 11 East, 377. A devise of a freehold estate, in trust, to permit another to receive the rents and profits, is executed by the statute. So held in Broughton v. Langley, 2 Salk. 679, per Holt, C. J. And though Sir J. Mansfield, C. J., in Doe v. Biggs, 2 Taunt. 109, ex- pressed strong disapprobation of this rule, inquiring how a man could be said to permit, who had, or was intended to have, no power to prevent ; yet his objection is deemed untenable, as it is founded on the popular and not the legal meaning of the words. Kinch v. Ward, 2 Sim. & Stu. 409, per Sir J. Leach, Vice-Chan. The words, use, trust, and permit to receive profits, have all the same legal effect ; and where they alone are employed, without other qualifying expressions, evincive of a different intention, they give the legal estate to the person beneficially interested. But where the cestui que trust is a married woman, and it is apparent that the testator intended a benefit to her alone, and not to her husband, this circumstance is sufficient to vest the legal estate in the trustee, since otherwise the intent of the testator will be defeated. Say & Sele v. Jones, 1 Eq. Ca. Ab. 383 ; 3 Bro. P. C. 113 ; Infra, sec. 16 ; Fletcher on Trustees, 36 — 41. So, it was holden as early as 36 Hen. 8, that a trust to receive the rents and profits of real estate, and pay them over to another, was not a trust which the statute would execute. And it makes no difference whether such trust is created by deed or by will. Supra, § 14. [But such a trust is valid under the New York Statute (1 Rev. St. 728, § 55, sub. 3,) authorizing the creation of trusts to receive the rents and profits of lands and "apply them to the use" of any person. Leggett v. Perkins, 2 Comst. 297. There were dissenting opinions in this case. A conveyance of real estate in trust is void under that statute, unless it provides that the trustees shall receive and apply the rents and profits thereof to the use of some person. Jarvis v. Babcock, 5 Barb. Sup. Ct. 139. See, also, Campbell v. Low, 9 lb. 585.] So where lands are devised to a trustee, in trust, to convey them to the objects of the testator's bounty, or to settle them on another, or to mortgage or let them, a legal estate is held to be vested in the trustee, commensurate, at least, with the interest which he must necessarily convey, in execution of the trust. Fearne's Cas. and Opin. 421, 422 ; per Sir W. Grant, M. R., in Mott v. Buxton, 7 Ves. 201 ; Leonard v. Sussex. 2 Verm. 526 ; Chapman v. Blissett, Cas. Temp. Talbot, 145, 150, cases in note (/) Having thus briefly disposed of the Jirst general inquiry, made in regard to trustees, — namely, whether they have any estate at all in the lands ; we will now state a few 360 Title XII. Trust. Ch. I. s. 14. should continue in the first devisee, in order that he 385 * might * be able to perform the trust ; for where he is principles in relation to the other question, — namely, what is the nature or quantity of the estate, where any has passed ? It is obvious that if the trustee is to do any act, he ought to have sufficient power to perform it. Hence the general rule has been established, which was recognized by Lord Ellenborough in Trent v. Hanning, 7 East, 99, that "trustees must, in all cases, be presumed to take an estate commensurate with the charges or duties imposed on them." See also Doe v. Willan, 2 B. & Aid. 84 ; Gibson v. Montfort, 1 Ves. sen. 405. Therefore, where lands are devised for a particular purpose, without words of inheritance, and the death of the devisee may defeat the object of the devise, he will take a fee. This doctrine is frequently applied to trusts created to support estates of inheritance. 8 Vin. Abr. 262, pi. 18, cites Shaw v. Wright, in 1 Eq. Ca. Abr. 176, pi. 8. [Where land is devised to trustees, they will take the legal estate wherever it is nec- essary in order to effect the purposes of the trust ; but if they be not required to do an act, or exercise any control over the land or the income, the legal estate will vest in the cestui que trust. TJpham v. Varney, 15 N. H. 462 ; Ward v. Amory, 1 Curtis, Ct. Ct. R. 419 ; Newhall v. Wheeler, 7 Mass. 189; Stearns v. Palmer, 10 Met. 35 ; Gould v. Lamb, 11 lb. 84 ; Brooks v. Jones, lb. 191 ; Cleveland v. Hallett, 6 Clash. 403 ; King v. Parker, 9 lb. 71 ; Norton v. Norton, 2 Saudf. Sup. Ct. 296 : Williams v. First P. Soc. in Cin., 1 Ohio State R. 478. And where a conveyance of land was made to " A, as he is trustee of B," the nature of the estate may be ascertained by reference to the will creating the trust, although the will is not referred to in the deed. Cleveland v. Hal- lett, 6 Cush. 403.] On the other hand, trustees must not in general be allowed, by mere construction or implication, to take a greater estate than the nature of the trust demands ; for this would disinherit the heir, which is always, as far as possible, to be avoided, and may also defeat the ulterior limitations in the will. Per Heath, J., in Doe r. Barthrop, 5 Taunt. 385 ; per Lord Ellenborough, in Doe v. Simpson, 3 East, 171, 172. It must, however, be observed, that the rule recognized by Lord Ellenborough, in Trent v. Hanning, is not an independent principle of construction. It is merely the governing principle in all cases of doubt, where the intention of the testator is not ex- pressed as to the nature or quantity of estate which he intends to convey, but only as to the final purposes and objects to be obtained by the devise itself. For wherever, from the face of the will, it is apparent that the testator meant to give a fee to the trus- tees, they will take a fee, although the purposes of the trust might have been effected by the grant of a lesser estate. Thus, a trust for sale is considered as necessarily extending over the whole estate or interest of the testator in the lands directed to be sold ; so that where he has a fee sim- ple, a freehold for life, or the like, they will take the same estate ; and this, whether words of inheritance be used, or not; and whether the trust for sale be expressly de- clared, or raised by implication of law. Loveacres v. Blight, Cowp. 352. So, if the trust is to mortgage lands, or to convey them in fee, or to serve perpetual uses, or to make leases indefinitely, the trustee will be understood to take a fee, since this quantity of estate will be required, to perform the trusts. Bagshaw r. Spencer, 1 Ves. sen. 142; Wright v. Pearson, Amb. 358; 1 Eearn. Cont. Rem. 187, (93) S. C ; 1 Eden, 119. But if a lesser estate be expressly limited, however inadequate it may be to carry the trusts into complete effect, the trustee cannot take a greater estate by implication. The Title XII. Trust. Ch. I. s. 14—15. 361 directed to pay over the rents and profits, he must necessarily receive them ; ' but in the latter case it has been adjudged that the legal estate. is vested, by the statute, in the person who is to receive the rents. 15. Lands were devised to trustees and their heirs, to the in- tent to permit A to receive the rents for his life, &c. It was determined that this would have been a plain trust at common law ; and what at common law was a trust of a freehold was course in sucli cases is to apply to the legislature for power to carry the trust into effect. Warter v. Hutchinson, 1 B. & C. 721, 747. Where a devise is without words of limitation, in trust to raise a gross sum of money out of the annual rents and profits of lands, the trustees are understood to take a chat- tel interest in the lands, determinable at such time as they might, by ordinary care and diligence, have raised the money. But it is said, that if lands be limited by deed, to hold for the payment of debts, or of such legacies as the grantor may give by his will, the grantee would take a freehold conditional, determinable on the receipt of sufficient moneys out of the land, for the purposes of the grant. Cordal's case, Cro. Eliz. 316. It is also to be noted that the chattel interest thus taken by the trustee, will still be held of uncertain duration, though the lands be of certain annual value, and the sum to be raised is expressly stated in the will. Co. Litt. 42, a. But it is only where the money is to be raised by the annual profits, that a chattel interest is taken. If it is to be raised by sale, a fee is implied, as has been already re- marked. If the trustees are directed to receive and apply the profits of land for a limited time only, and there is no express limitation of their estate, they are presumed to take the legal estate for that period of time, and no longer. Thus, where lands were devised to trustees, in trust for an infant till he should be twenty-one, and then to his use, it was held that they took only a term, for as many years as would elapse till his coming of age. Goodtitle v. Whitby, 1 Burr. 228. But if they were directed to convey to him, upon his coming of age, then, upon the princi- ples before stated, they would necessarily take a fee. Doe v. Field, 2 B. & Ad. 564 ; Stanley v. Stanley, 16 Ves. 491, 505. These, and similar cases, are all determined by the will of the testator. If his object can be effected, by allowing the Statute of Uses its full operation, and vesting the estate immediately in the objects of his bounty, it is so done, provided he has not expressed a different intention. If he has designated any duty to be actively performed by the trustee, in relation to the land, and has not declared the nature of the estate which the trustee is to take, the law declares it for him, by presuming he intended to grant an estate just sufficient to effect his ulterior purpose, and no more. But if he has ex- pressly limited the estate to be taken by the trustee, the law merely sanctions the intent so expressed, and aids the trustee in performing the trust, only so far as the testator has enabled him to perform it. 1 But where a devise was made to trustees " to hold to the use and benefit, and to apply the rents, issues, and profits to each and for each," &c. ; it was held that such devise was executed by the Statute of Uses, notwithstanding the word " apply." Laurens v. Jenney, 1 Spccrs. 356. VOL. I. 31 362 Title XII. Trust. Ch. I. s. 15—20. executed by the statute ; which mentioned the word trust, as well as, use. And that the case of Burchett v. Durdant, which had been determined otherwise, was not law. (a) 16. Where an estate is devised to trustees, for the separate use of a married woman ; the Courts will, if possible, construe the devise so as to vest the legal estate in the trustees ; because such a construction will best effectuate the intention of the testator. 17. Lands were devised to trustees and their heirs, in trust for a married woman and her heirs ; and that the trustees should from time to time pay and dispose of the rents to the said mar- ried woman for her separate use. The Court held it to be a trust only, and not a use executed by the statute, (b) 18. A testator gave all the rents of certain lands to a married woman, during her life ; to be paid by his executors into her own hands, without the intermeddling of her husband. Lord Chief Justice Holt was of opinion that the executors took the legal estate as trustees for the wife ; but the other Judges were of a contrary opinion. Lord Holt's opinion was, however, fully estab- lished in the following case, (c) 19. Lands were devised to trustees and their heirs, in trust to pay several legacies and annuities, and then to pay the surplus rents into the proper hands of a married woman ; and after her decease, that the trustees should stand seised to the use of the heirs of her body. It was decreed, that this was a use executed in the trustees during the life of the married woman ; but that after her decease, the legal estate vested in the heirs of her body. This decree was affirmed by the House of Lords, after consulting the Judges. (dT) 20. In the preceding case, the direction to the trustees to pay annuities, and the trust to pay the surplus, would have justified the decree. But in a modern case sent out of Chancery, an estate was devised to trustees and their heirs, upon trust 386 * to * permit the testator's niece, who was married, to re- ceive the rents during her life, for her separate use. Lord Kenyon said, that whether this were a use executed in the trustees or not, must depend upon the intention of the devisor. (a) Broughton v. Langley, 2 Ld. Rayrn. S73. (2 Salk. 679.) Doe v. Biggs, 2 Taunt. 109. ' Kinch r. Ward, 2 Sim. & Stu. 409.) 2 Vent. 312. (b) Nevil v. Saunders, 1 Vera. 415. (c) South v. Alleyne, 5 Mod. 101. 1 Salk. 228. {d) Say & Sele v. Jones, 1 Ab. Eq. 383. 3 Bro. Pari. Ca. 113. Title XII. Trust. Ch. I. s. 20—22. 363 This provision was made to secure to a feme covert a separate allowance, to effectuate which it was essentially necessary that the trustees should take the estate, with the use executed ; for otherwise the husband would be entitled to receive the profits, and so defeat the object of the devisor. The Court certified that the legal estate, by way of use executed in fee simple, vested in the trustees ; that construction being necessary to give legal effect to the testator's intention to secure the beneficial interest to the separate use of the feme covert, (a) 1 21. Where lands are devised to trustees in trust to sell or mortgage them, in order to raise money for payment of debts, and subject thereto in trust for a third person, the trustees will take the legal estate ; for otherwise it would not be in then- power to execute the trust. 22. A person devised all his lands to five trustees, their heirs and assigns, in trust that they and their heirs should in the first place, by the rents and profits, or by sale or mortgage of the premises, raise so much money as should be necessary for the payment of his debts ; after payment thereof, he gave the same to his trustees for 500 years, without impeachment of waste, upon several trusts ; and then proceeded in these words : " And from and after the determination of the said estate for years, then I give and devise all my said lands, &c, unto my said trustees, their heirs and assigns ; my mind being, that my said trustees, shall be and stand seised of the said premises in trust for the several uses, &c, after declared ; viz. as for one moiety of the same premises I give and devise the same to the use and behoof of my nephew T. Bagshaw, for the term of his natural life," &c. One of the questions in this case was, whether the estate devised to the nephew was a legal or a trust estate. Lord Hardwicke held that the devise to the nephew was merely a trust in equity ; (a) Harton v. Harton, 7 Term R. 652. See 2 Swan. 391, per Lord Eldon. (Xevilr. Saun- ders, 1 Vern. 415. South v. Alleyne, 5 Mod. 101. 1 Salk. 228, S. C. Bush v. Allen, 5 Mod. 63.) 1 So, where real and personal estate was devised in trust for the equal use and benefit of the testator's four sisters and their heirs forever, to be managed as the trustees should think most for the interest of each of the parties, two of the sisters being femes covert ; it was held that the legal title remained in the trustees, it being necessary, in order to enable them to manage the property as they might think most conducive to the interest of the cestuis que trust, according to the intent of the testator. Bass v. Scott, 2 Leigh. E. 256. 364 Title XII. Trust. Ch. I. s. 22—26. the first devise being to the trustees and their heirs, it carried the whole fee in point of law. Part of their trust was to sell the whole or a sufficient part for payment of debts. This 387 * would have carried a fee by construction without * the word heirs. The consequence of this was, that here being the whole fee, in law, devised to the trustees, no remainder of a legal estate could be limited upon it ; and T. Bagshaw took only a trust, (a) 23. This mode of construction is adopted in cases of deeds, as well as in that of devises. 24. Lord Byron being tenant for life, with remainder to his son in tail, they suffered recoveries, and conveyed estates in Lancashire and Nottinghamshire to the use of trustees and their heirs, in trust to sell the Nottinghamshire estate for payment of debts. As to the Lancashire estate, in trust to sell it, and to apply the money in the purchase of other lands, to be settled on Lord Byron for life, remainder to his son in fee ; with a proviso that the rents should, till sale, be received by the persons who would have been entitled to them, if no recovery had been suf- fered ; it was held that the use of the Lancashire estate was executed in the trustees : that as to the proviso that the rents, till sale, should be received as before, that was nothing more than the common provision in such cases, and did not carry the legal estate.(6) 25. It is now settled that where an estate is devised to one, for the benefit of another, the Courts will execute the use in the first or second devisee, as appears best to suit the intention of the testator ; from which it follows that whenever an estate is devised to trustees, with a requisition to do any act, to which the seisin and possession of the legal estate are necessary, although they be directed to permit the rents and profits to be received by another person, still that person will only be entitled to a trust estate ; for otherwise the trustees would not be able to execute the trustee) • 26. J. B. devised all his real and personal estate to three (n) Bagshaw v. Spencer, 1 Ves. 142. Collect. Jur. vol. 1. 378. Wright v. Pearson, Feame, Cont. Rem. 187. 1 Eden, 119. {b) Keene v. Deardon, 8 East, 248. (c) Feame' s Op. 422. 1 See, accordingly, Tenny v. Moody, 3 Bing. 3 ; Shapland v. Smith, 1 Bro. Ch. Cas. 75, Perkins's cd. Title. XII. Trust. Ch. I. s. 26—29. 365 trustees, their heirs and assigns, in trust to pay his son Isaac .£37 quarterly ; and if he married with consent, then double the sum : if he should have any children, he gave the residue of the rents of his said trust estate, to be applied, during the life of his son, for the education of such child or children : he then gave I one moiety of the trust estate to such child or children of his son as he should leave, and the other moiety to the child or children of his grandson J. D. * Lord Talbot said, the * 388 whole depended on the testator's intent, as to the contin- uance of the estate devised to the trustees ; whether he intended the whole legal estate to continue in them, or whether only for a particular time or purpose. If an estate were limited to A and his heirs, in trust for B and his heirs, there it is executed in B and his heirs. But where particular things are to be done by the trustees ; as in this case, the several payments that were to be made to the several persons ; it was necessary that the estate should remain in them, so long at least as those particular purposes require it. (a) 27. Lands were devised to trustees, upon trust that they should, every year, after deducting rates, taxes, repairs, and expenses, pay such clear sum as should remain to A B. Lord Thurlow held that the trustees, being to pay the taxes and repairs, must have an interest in the premises ; therefore that the legal estate was vested in them, (b) 28. A person devised lands to trustees and their heirs, upon trust to take and receive the rents and profits thereof, and to apply the same for the subsistence and maintenance of his son, during his life. It was determined that the son had only a trust, (c) 29. In the case of a devise to trustees for particular purposes, the Courts will consider the legdb estate as vested in the trustees, as long as the execution of the trust requires it, and no longer ; and will therefore, as soon as the trusts are satisfied, consider the legal estate as vested in the persons who are beneficially entitled to it. 1 (a) Chapman v. Blisset, Forrest, R. 145. (b) Shapland v. Smith, 1 Bro. C. C. 75. Fearne's Op. 421. Vide 2 Cox's Rep. 145. (c) Silvester v. Wilson, 2 Term R. 444. 1 In New York, it is expressly enacted, that, " When the purposes for which an ex- press trust shall have been created shall have ceased, the estate of the trustees shall 31* 366 Tttle XII. Trust. Ch. I. s. 30—31. 30. Thus, in the case of Say and Seele v. Jones, the legal estate was held to be vested in the trustees during the life of. the married woman. But upon her decease, it was considered as vested in the heirs of her body, (a) 31. So, where a person devised to trustees all his real estates, arrears of rent, and a bond and judgment; in trust, out of the rents and profits and arrears due, to pay an annuity of £50 to his sister H. for her life, and another annuity of £50 to his sister D. for life ; after payment thereof, then in trust, out of the resi- due of the rents, to pay to his brother and nephew £800 in trust for the benefit of the children of another brother. After pay- ment of the annuities, and the sum of .£800, he devised his estates to his brother W. for life, &c. .The testator fur- 389 * ther * gave the trustees a power to grant building and other leases. It was resolved, that the trustees took the legal estate for the lives of the annuitants ; with such a term for years in remainder as was necessary to raise the £800 ; and that, (a) Ante, s. 19. also cease." Rev. St. Vol. II. p. 15, § 67, 3d ed. In such case the cestui que trust may maintain ejectment in his own name, without any previous conveyance from the trustee. Welch v. Allen, 21 Wend. 147. [Selden v. Vermilyea, 3 Corns. 525.] The doctrine in the text, however, has been subsequently limited and restricted to cases not inconsistent with the language and intent of the maker. In a recent case, the rule, as now understood, was thus stated by Lord Denman : — ' : As to the deter- mination of the trust estate, I do not mean to throw doubt upon the cases on that sub- ject ; but the language used in some of them goes too far, when it suggests that, if lands be devised in trust for particular purposes, the estate of the trustee ceases on per- formance of the trusts, or when they can no longer be performed, in whatever terms the devise may have been framed. Holroyd, J., said rightly — (see Doe dem. Player v. Nieholls, 1 B. & C. 344) — that, where there are no words in the will which give the trustees any estate beyond the time during which the trust is to be performed, there the case falls within the general rule, that a trust estate is not to continue beyond the period required by the purposes of the trust. AriQ that must mean a restricted period, and not any length of time during which it may be said that the trusts are in a course of performance. In Doe dem. Shelley v. Edlin, 4 A. & E. 582, 589,— [his lordship here observed that, although the observations delivered by the lord chief justice in that judg- ment are made in the first person singular, it was the judgment of all the judges who heard the case, and was drawn up by Mr. Justice Littledale,] — and Doe dem. Cadogan v. Ewart, 7 A. & E. 636, 666, this Court narrowed the rule, of holding the trust estate to determine after the time for performance of the trusts, in the manner which I now suggest as the proper one, — namely, to the case in which that restriction is consistent with the words of the instrument, and the apparent intention of the maker." See Doe v. Davies, 1 Ad. & El. 437, N. S. Title XII. Trust. Ch. I. s. 31—34. 367 subject thereto, the limitation for life to W. took effect as a legal limitation, (a) • 32. But where lands are devised to trustees, charged ivith the payment of debts, upon trust for a third person, the trustees will not take the legal estate. 33. A person devised his real estates, and also his personal estate, to trustees and their heirs, to the intent that they should, in the first place, apply his personal estate in payment of his debts ; and as to his real estates, subject to his debts, he devised the same to R. P. for and during his life, &c. The Court of Common Pleas held that this was a mere devise charged with the payment of debts ; for it did not appear that the testator intended the trustees should be active in paying the debts. It would be more convenient that the legal estate should be vested in the trustees : but this was only an argument ab in- convenient^ from which they could not construe the testator to have said, what in fact he had not said. Qi) x 34. Where an estate is conveyed or devised to trustees and their heirs, upon trust to pay debts generally, or debts particularly specified, and after payment of such debts, in trust for A B, or in trust to convey such parts of the premises to A B as shall remain unsold ; A B has an immediate trust estate in the sur- plus, upon the execution of the deed, or the death of the testator. For in cases of this kind, the payment of the debts is not a con- dition precedent, which must be performed before the subsequent limitation or devise can take effect ; but an interest commencing at the same time, and concurrent with the estate given to the trustees. Because the words, "after payment of debts," or " when the debts are paid," only denote the order or course in which the several interests shall take place, in point of actual possession and perception of profits; without preventing the subsequent estates, whether legal or equitable, from being vested in interest, at the same time with those which are prior to them in point of limitation, (c) 2 (a) Doe v. Simpson, 5 East, 102. Doe v. Timins, 1 Barn. & Aid. 530. Doe v. Bartlirop, 5 Taunt. 383. Doe v. Nicholls, 1 B. & C. 336. (b) Kenrick v. Beauclcrck, 3 Bos. & Pull. 175. (c) Collect. Jur. vol. 1. 214. Tit. 36. c. 8. 1 See Gregory v. Henderson, 4 Taunt. 772; Shapland v. Smith, 1 Bro. Ch. Cas. 75, and notes by Eden; 1 Sugd. on Vend. 309 — 314. 2 It is said that as the Statute of Uses, in Virginia, speaks only of uses raised by 368 Title XII. Trust Ch. I. s. 35—37. 35. The third mode of creating- a trust estate arises from the answer of all the Judges in 22 Eliz. upon a question put 390 * to them * by the Lord Chancellor, that where a term for years was granted to A, to the use of, or in trust for B, the legal estate in the term remained in A, and was not executed in B by the Statute of Uses. For the words of the statute were : — " Where any person is seised to the use of another." 1 Whereas in this case, A is not seised, not having a freehold, but is only possessed of the term, the word seised being only applicable to a freehold estate ; so that in cases of this kind, the person to whose use the term was declared, was driven into the Court of Chancery; where the trustee was compelled to account with him for the rents and profits of the term, and to assign it to him when re- quired. (a)f 36. By the statute 29 Cha. II. c. 3, s. 7, it is enacted, " That all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested and proved by some writing-,^, signed by the party who is by law enabled to declare such trust, or by his last will in writing ; or else they shall be utterly void, and of none effect." 37. A declaration of trust requires no particular form,\\ pro- vided it must be proved or manifested in writing ; therefore a letter from a trustee, disclosing the trust, will be sufficient. And in a modern case Lord Alvanley, M. R., said it was not required by the statute that a trust should be created by writing ; for the words of the statute were very particular in the clause respecting (a) Dyer, 369. a. Buc. Read. 42. Tit. 8. c. 1. deed, those created by devise are not, in any case, executed by the statute, but remain trusts, as at common law. See ante, tit. 11, ch. 3, § 3, note; 1 Lornax's Digest, 188, 196, where this opinion is controverted by the latter author. 1 As the statute of Virginia avoids the use of the word "seised" it has been held to embrace terms for years; — 1 Tucker's Comra. pt. 2, p. 251; Tabb a, Baird, 3 Call, 482; — an opinion which is ably controverted by Judge Lomax. 1 Lomax, Dig. 196, 197. [t There may be a trust of a rent, as well as of land ; of which an account will be given in Title 28.] [J See Leman v. Whitley, 4 Russ. 423.] [|| In Weaver v. Maule, 2 Russ. & M. 97, it was decided, that where a lord of a manor admits a tenant upon the trusts of an indenture referred to in the surrender, he is to be considered as consenting to those trusts, and is bound by them upon the death of the trustee without an heir.l Title XII. Trust. Oh. I. s. 37—40. 369 declarations of trust. It did not by any means require that all trusts should be created only by writing ; but that they should be manifested and proved by writing ; plainly meaning that there should be evidence in writing, proving that there was such a trust. Therefore, unquestionably it was not necessarily to be created by writing, but it must be evidenced by writing; then the statute was complied with, and the great danger of parol declarations, against which the statute was intended to guard, was entirely taken away ; it must, however, be proved in toto, not only that there was a trust, but what it was. (a) 1 38. * Where a trust is confessed in an answer in Chan- * 391 eery, it will be sufficient. 39. A in consideration of £80, conveyed land to B abso- lutely. A brought a bill to redeem. B by his answer insisted that the conveyance was absolute ; but confessed, that after the £80 was paid with interest, it was to be in trust for the plaintiff's wife and children. This was held to be a sufficient declaration of trust, (b) 40. Besides the above-mentioned direct modes of creating («) Forster v. Hale, 3 Ves. 696. (Movan v. Hays, 1 Johns. Ch. 342. Jackson V. Moore, 6 Co wen, 706. Johnson v. Ronald, 4 Munf. 77.) 12 Ves. 74. (b) Hampton v. Spencer, 2 Vern. 288. Cottington r. Fletcher, 2 Atk. 155. 1 The statute will be satisfied, if the evidence be in writing, under the hand of the trustee, however informal, and however long subsequent to the creation of the estate. Thus, a letter, signed by the trustee, together with a paper therein referred to, though not signed, have been held sufficient. Forster v. Hale, 3 Ves. 696 ; Tawney v, Crow- ther, 3 Bro. Ch. Cas. 161, 318, (and notes by Perkins,) expounded in 3 Ves. 713; Steere v. Steere, 5 Johns. Ch. 1. So, if acknowledged in the trustee's answer in Chan- cery ; Hampton v. Spencer, 2 Vern. 288 ; Nab v. Nab, 10 Mod. 404 ; Ryall v. Ryall, I Atk. 59, per Ld. Hardwicke; Cottington v. Fletcher, 2 Atk. 255 ; Fisher v. Fields, 10 Johns. 495 ; or, in the recitals in his deed. Deg v. Deg, 2 P. Wms. 412. But it must appear on the face of the writings that they relate to the subject-matter; and they must disclose the precise nature of the trust, or Chancery will not execute it. 3 Ves. 707, per Ld. Alvanley. The evidence, moreover, must all be in writing, without resorting to parol evidence, even to connect different writings together. Boydell v. Drummond, II East, 142; Abeel v. Radcliff, 13 Johns. 297 ; 'Freeport v. Bartol, 3 Greenl. 340. See 1 Greenl. on Evid. § 266, 268 ; Roberts on Frauds, p. 101, 102 ; Barrell v. Joy, 16 Mass. 221 ; Rutledgc v. Smith, 1 McCord, Ch. R. 119 ; Arms v. Ashley, 4 Pick. 71 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274. The Statute of Frauds', in North Caro- lina, Rev. St. 1836, ch. 50, contains no provision as to declarations of trust ; which, there- fore, stand as at common law, and may be proved by parol. Foy v. Foy, 2 Hayw. 131; 4 Kent, Coram. 305, n. ; Lcwin on Trusts, p. 30,31; [Philbrook v. Delano, 29 Maine (16 Shep.) 410 ; Cleveland v. Hallet, 6 Cush.403 ; Rathbun v. Rathbun, 6 Barb. Sup. Ct, 481 ; Duke of Cumberland v. Graves, 9 lb. 595.] 370 Title XII. Trust. Ch. I. s. 40—42. trust estates, there are several other cases where trusts arise from the evident intention of the parties, and the nature of the trans- action ; which are enforced in equity, and usually called resulting' trusts, or trusts by implication. These are expressly saved by a clause in the Statute of Frauds, 29 Cha. II. c. 3, s. 8, by which it is provided: " That where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise, or result by implication or construction of law, or be transferred or extinguished by an act or operation of law, then and in every such case, such trust or confidence shall be of the like force and effect as the same would have been if this statute had not been made." And it has been held by Lord Cowper that this clause must relate to trusts and equitable interests ; not to a use, which is now a legal estate. (a) 41. Where a contract is entered into for the purchase of a real estate, a trust immediately results to the purchaser ; the ven- dor becomes a trustee for him till a conveyance of the legal estate is made ; and the interest of the vendor becomes personalty, con- sisting merely of a right to the purchase-money, (b) 1 42. Where an estate is purchased in the name of one person, and the consideration is given or paid by another, there is a resulting trust in favor of the person who gave or paid the con- sideration, (c) 2 (a) 1 P. Wins. 112. (b) 1 Cha. Ca. 39. 9 Mod. 78. Ripley®. Watenvorth, 7 Ves. 425. (Waddington a. Banks, 1 Brock. 97. 6 Leigh. 185.) (c) (Dyer v. Dyer, 2 Cox, 92, 93.) I 1 Astor v. L'Amoreux, 4 Sandf. Sup. Ct. 524 ; Bowie v. Beny, 3 Md. Ch. Decis. 547.] But if one contracts for the conveyance of lands to him on the payment of cer- tain sums of money at specified times, no trust results in his favor by the payment of any money, unless the whole purchase-money is paid. Comer v. Lewis, 4 Shepl. 268. [The whole or part of the consideration must be paid before a trust results. Stephen- son v. Thompson, 13 III. 186, 221, 227.] 2 Lands purchased by executors, with the money of the estate, are held by them in trust for the heirs. Wallace v. Duffield, 2 S. & R. 521. If purchased with the funds of a corporation, by its agents, in their own names, it is in trust for the corporation. Methodist Church v. Wood, 5 Ham. 283. If the purchaser from an executor obtains a conveyance of more land than he is entitled to, through the mistake or fraud of the executor, and without payment, he holds the surplus, in trust, for the persons bene- ficially interested. Anderson v. Nesbit, 2 Rawle, 114. And see Ensley v. Balentine, 4 Humph. 233 ; [Lounsbury v. Purdy, 16 Barb. Sup. Ct. 376 ; Work v. Work, 14 Penn. (2 Harris.) 31G; Creed v. Lancaster Bank, 1 Ohio State R. 1; Williams v. Brown, 14 111. 200 ; 14 Ibid. 94 ; Russell v. Lode, 1 Iowa. 566 ; Tarpley v. Poage, 2 Tex. 139 ; Title XII. Trust. Ch. I. 5. 43—44. 371 43. Thus it was resolved by the Court of Chancery in 35 Cha. II. that where a man bought land in another's name, and paid the money, it would be a trust for him who paid the money, though no deed declaring the trust ; for the statute 29 Cha. II. did not extend to trusts raised by operation of law. (a) 44. Lord Hardwicke has said, that where a purchase is made, the purchase money being paid by one, and the conveyance taken in the name of another, there was a resulting trust for the * person who paid the consideration. This was * 392 where the whole consideration moved from such person. But he never knew it, where the consideration moved from several persons ; for that would introduce all the mischiefs which the Statute of Frauds was intended to prevent. 1 Suppose sev- («) Anon. 2 Vent. 361. 1 Vern. 109. 2 Atk. 71, 150. (Foote v. Colvin, 3 Johns. 216. Jackson v. Stembergb, 1 Jobns. Cas. 153. Jackson v. Morse, 16 Johns. 197. German v. Gabbokl, 3 Binn. 302. Jackson v. Matsdorf, 11 Johns. 91.) Long v. Steiger, 8 Ibid. 460. Where a deed was taken in the name of the son, and the purchase-money was paid by him and his father, but the proportion which each paid was uncertain, the Court refused to establish a resulting trust in favor of the father. Baker v. Yining, 30 Maine, 17 Shepl. 121; Harper v. Phelps, 21 Conn. 257. In the absence of proof, the law will presume that they contributed equally. Shoemaker v. Smith, 11 Humph. 81. A purchase of real estate completed on the credit of two, but afterwards paid for wholly by one of them, does not of itself give rise to a resulting trust. Brooks v. Fowle, 14 N. H. 248. Where A purchased B's land at an execution sale, and the purchase-money was furnished to A for the benefit of B, it was held that B had an equitable estate in the land. Pegues v. Pegues, 5 Ired. Ed. 418. But to raise a re- sulting trust where an estate is purchased in the name of one with money paid by another, the payment or advance of money must precede the purchase. Mahorner v. Harrison, 13 Sm. & Mar. 53; Smith v. Sackett, 5 Gilman, 534; Buck v. Swazey, 35 Maine, (5 Bed.) 41. Where three persons advanced money for the purchase of land under the parol agreement that the fee thereof should be conveyed to two of them, and that the third should have wood from the same during life, and the conveyance was so made, there was no resulting trust to the third, nor did he have any legal or equitable estate in the land. Dow v. Jewell, 1 Foster, (X. H.) 470 ; Hunt v. Moore, 6 Cush. 1.] Parol declarations of the nominal purchaser, made at or after the sale, are not suffi- cient to raise a trust in favor of another, without any allegation of payment by the cestui que trust, or of fraud. Sample v. Coulson, 9 Watts & Scrg. 62. But if the grantee obtained the deed by means of his promise to hold it for another, this is sufficient to create a trust, on the ground of fraud, and may be proved by parol. Miller v. Pearcc, Watts & Scrg. 97. And see Hoge v. Hoge, 1 Watts, 163 ; Jenkins v. Eldridge, 3 Story, R. 181. 1 It is sufficient if a definite part of the consideration be paid by the cestui que trust, or the agreed value of a definite proportion of the whole estate, as, one moiety, or one third, to raise a resulting trust in his favor; and this, whether the party pajing be one person, or many. It is only where the proportion is indefinite, that no trust arises. Sayre v. Townsend, 15 Wend. 647 ; White v. Carpenter, 2 Paige, 217, 241 ; Wray v. 372 Title XII. Trust. Ch. I. s. 44—45. eral persons agreed to purchase an estate in the name of one, and the purchase-money by the deed appeared to be paid by him only ; he did not know any case where such persons should come into the Court of Chancery, and say, they paid the purchase- money ; but it was expected there should be a declaration of trust, (a) 45. In all cases of this kind, the payment of the money must be proved by clear and undoubted evidence ; l for otherwise a (a) 9 Mod. 235. Steele, 2 V. & B. 388 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Hays v. Wood, 4 Rand. 272 ; [Dwinal v. Veasie, 36 Maine, (I Heath,) 509 ; Purdy v. Purdy, 3 Md. Ch. Decis. 547.] This evidence may be deduced from expressions in the purchase deed ; or from a memorandum or note of the nominal purchaser; or from his answer to a bill of dis- covery ^r from papers left by him, and discovered after his death. In England, accord- ing to IPne respectable authoi'ities, parol evidence is not admissible against the answer in Chancery of the purchaser, expressly denying 'the fact ; nor after his death, against the express declaration of the deed. See 1 Sand, on Uses, 354. But the latter posi- tion is denied, and parol evidence held admissible. See 2 Mad. Ch. 141, 3d ed. ; 3 Sugd. on A T end. 256—259, 10th ed. ; Bench v. Bench, 10 Ves. 517. But the grantor himself cannot set up a resulting trust in his own favor, by proving that he had an in- terest in the purchase-money, against the express terms of his deed. Squire v. Harder, 1 Paige, 494; [Raybold v. Raybold, 20 Penn. (8 Harris,) 308; Pratt v. Ayer, 3 Chand. (Wise.) 265.] In the United States, it seems now to be generally conceded that parol evidence, though received with great caution, is admissible, in all cases, to establish the collateral facts, (not contradictor}- to the deed, unless in case of fraud,) from which a trust may legally result ; and that it makes no difference, as to its admissibility, whether the nom- inal "purchaser be living or dead. 1 Greenl. on Evid. § 266, and cases there cited; 2 Story on Eq. Jur. § 1201, note; Boyd v. McBean, 1 Johns. Ch. 586 — 590; Jackman v. Ringland, 4 Watts and Serg. 149 ; Pritchard v. Brown, 4 N. Hamp. 397 ; Slaymaker v. St. John, 5 Watts, 27 ; Buck v. Pike, 2 Eairf. 1 ; Andrews v. Jones, 10 Ala. R. 401, 460. [A trust resulting by implication of law is not within the Massachusetts Statute of Frauds, (Rev. St. ch. 59, p. 30,) but may be proved by parol. Peabody v. Tarbell, 2 Cush. 226 ; Bivermore v. Aldrich, 5 Cush. 431. See also Brown v. Bunt, 37 Maine, (2 Heath,) 423 ; Barron v. Barron, 24 Vt. (1 Deane,) 375; Reid v. Fitch, 11 Barb. Sup. Ct. 399 ; Wetherell v. Hamilton, 15 Penn. (3 Harris,) 195 ; Bloyd v. Carter, 17 Ibid. 216 ; 18 Ibid. 134, 157, 283 ; Hollis v. Hayes, 1 Md. Ch. Decis. 479 ; Williams v. Van Tuyl, 2 Ohio, N. S. 336; Coates v. Woodworth, 13 111. 654; Nichols v. Thornton, 16 Ibid. 113. The mere declaration of a purchaser of land that he is about to purchase it for another, there having been no previous arrangement for such purchase, will not raise a trust, for the benefit of the latter. Blyholder v. Gilson, 18 Penn. (6 Harris,). 134.] But it is universally agreed that parol evidence is admissible to rebut a resulting equity or trust. Bamplugh v. Eamplugh, 1 P. Wms. 113; 1 Sand, on Uses, 355; 1 Greenl. on Evid. C 296 ; Jackson v. Feller. 2 Wend. 465 ; Botsford v. Burr, 2 Johns. Ch. 405, 409; Jackson v. Mills, 13 Johns. 463; Malin v. Malin, 1 Wend. 625; [Baker v. Vining, 30 Maine, (17 Shepl.) 121 ; Baldwin v. Campfield, 4 Halst. Ch. R. 891.] Title XII. Trust. Ch. I. s. 45—49. 373 court of equity will not interfere. But evidence of any kind, even parol evidence, is admissible to rebut a resulting trust, and to show a purchaser's intention, that the estate should belong to the person in whose name the conveyance was taken ; upon the same principle that parol evidence is admissible to rebut a result- ing use. (a) 46. Thus, in a case in 1693, the counsel contended that where there was an express trust declared, though but by parol, there could be no resulting trust; for resulting trusts were saved indeed by the Statute of Frauds, but only as they were before that act. Now a bare declaration by parol, before the act, would prevent any resulting trust. The Court seemed to be of that opinion, (b) 47. A father purchased lands in the names of his younger son and nephew ; but in the conveyance the whole purchase T money was mentioned to be paid by the father ; who took the profits during his life, and died, leaving the younger son an infant. The eldest son brought his bill against the younger son and the nephew ; insisting that the money being mentioned in the deed to have been paid by the father, this made the defendants trustees for the father ; consequently for the plaintiff. It was resolved that parol evidence should be admitted to show the intention of the father, that this conveyance was for the benefit and advancement of the younger son ; because it concurred with the conveyance, and was only to rebut a pretended resulting trust, (c) 48. It was formerly doubted whether in the case of a purchase made by a trustee, with trust money, a resulting trust *would arise to the person entitled to the money; because *393 that would be to contradict the deed by parol evidence, in direct opposition to the Statute of Frauds. It has, however, been since determined, that evidence aliunde is admissible in equity, to show that the purchase was made with trust money. And where that circumstance has been clearly proved, a trust will result to the person entitled to the money. 49. A bill was brought by the legatees of John Ryal, against the executrix and heir at law of Jonathan Ryal, for satisfaction (a) Finch v. Finch, 15 Ves. 43. Tit. 11. c. 4. (6) Bellasis v. Compton, 2 Vern. 294. (c) Lamplugh v. Lamplugh, 1 P. Wms. 111. Bartlctt c. Pickersgill, 1 Eden. 515. vol. i. 32 374 Title XII. Trust. Ch. I. s. 49—51. out of his assets, and as against the heir at law, to have satisfac- tion out of an estate purchased by Jonathan Ryal, as the plaintiff insisted, with the assets of John Ryal, the original testator. The defendant, the executrix, admitted, that as to one particular estate, it appeared by her testator's papers, that it was purchased with £250 of the testator's money. Proof was read that Jonathan Ryal, after the testator's death, purchased several estates, and before that time was a poor person, not able to pay for them out of his own money. The counsel for the plain- tiff insisted that the heir at law was to be considered as a trustee for them, as far as the estate appeared to be purchased with the assets of John Ryal. On the other side it was contended that money could not be followed into land. Lord Hardwicke said, the Court had been very cautious in following money into land ; but had done it in some cases. No one would say but the Court would, if it was actually proved that the money was laid out in land. The doubt with the Court in these cases had been on the proof. There was difficulty in admitting proof; parol proof might let in perjury ; but it had always been done, when the fact had been admitted in the answer of the person laying it out. If the executor of John Ryal had been a party, and admitted it, there would have been no doubt ; but the admission was by his representative, which, though it did not bind the heir, was ground for inquiry. The way of charging the heir was by considering him as a trustee ; as when lands were purchased by one, in the name of another, it was a resulting trust by law, and out of the statute ; and upon inquiry a little would do to make it a charge pro tanto. It was referred to the Master to inquire whether the estate was purchased with £250 of the testator's money, or not. (a) 50. Although a trustee for a purchase should buy land, 394* yet *it will not be liable to the trust, unless there are circumstances affording a strong presumption that the land was bought with the trust money. 51. (John Lockyer devised his estate to his brother Thomas, in trust, to preserve it till his son should arrive to twenty-one, and then to invest it, and the accruing rents, Sfc, in lands, and settle them on the son in fee. The estate was real and personal. (a) Ryal r, Ryal, Amb. 413. Title XII. Trust. Ch. I. 5. 51—54. 375 The testator died in 1734. The cestui que trust came of age in 1749 ; devised all his estate to his wife in 1759 ; and died in 1765. The trustee purchased several estates in his own name, from time to time, before the death of his son and afterwards, and died in 1785. The son's widow filed a bill for execution of the trust, and for an account of rents, &c, and prayed that any deficiency in the latter might be made up out of the remaining real estates of the trustee, he having left no personalty. The heir at law resisted this, on the ground that the estates had not been purchased with the trust money ; and as to so much of the rents as accrued subsequent to the making of the son's will, in 1759, it was to be taken as real estate, being money directed to be laid out in land, and so did not pass by the will, it being sub- sequently acquired.) Lord Rosslyn declared that the plaintiffs had no lien on the estates purchased by T. Lockyer ; being creditors by simple con- tract only. If there had been any ground to presume that the purchase had been made with the trust money, it would have been otherwise. On a bill of review, the decree was affirmed by Lord Eldon. (a) 52. Where the legal estate in lands is conveyed to a stranger, without any consideration, (or declaration of use to the grantee,) there arises a resulting trust to the original owner ; in conformity to the old doctrine, that where a feoffment was made without consideration, the use resulted to the feoffor, (b) 1 53. The Duke of Norfolk executed a grant of the next avoid- ance of a church to a clergyman, who was much employed by him ; but the grantee knew nothing of it ; and being examined in a cause, deposed that he did not purchase it of the duke. It was decreed to be a resulting trust for the grantor, there being no trust declared, (c) 54. In the case of voluntary settlements and wills, if there is (n) Perry v. Phelips, 1 Ves. 251. 4 Ves. 108. 17 Ves. 173. (6) Tit. 11. c. 4. s. 16. (c) Norfolk v. Browne, 1 Ab. Eq. 381. Prec. in Cha. 80. - [ l Mere want of consideration in a deed will not of itself alone raise a resulting trust. Philbrook v. Delano, 29 Maine, (16 Shep.) 410. The presumption of law, where an absolute deed purports to have been made for a good or valuable consideration paid by the grantee, is that the estate is held by him for his own use, and this presumption cannot be rebutted by parol evidence, ib. See Graves v. Graves, 9 Foster, (N. H.) 129.] 376 Title XII. Trust. Ch. I. s. 54—57. wo declaration of the trust of a term, it results to the settlor; otherwise where it is a settlement for a valuable consideration, and in the nature of a contract for the benefit of a wife or children, (a) 1 55. Where the legal estate in lands is conveyed to a trustee, and a trust is declared as to part only, nothing being said 395* of *the rest; what remains undisposed of, results to the original owner. (6) 56. Lord Foley devised his estates to trustees for a term of ninety-nine years, remainder to his eldest son for life, remainder to his first and other sons in tail, remainder to his second son in the same manner. The trust of the term for years was to pay off certain scheduled debts, and to make an annual allow- ance to his two sons for their support. The scheduled debts being stated to be paid, a bill was filed by other creditors of the sons of the testator, against the trustees, praying that the term might be declared to be attendant on the inheritance, and the trustees restrained from setting up the term to defeat any eject- ment or other remedy which the plaintiffs might be advised to pursue for the recovery of their debts. Lord Thurlow said, the rule of law was, that where the trusts of a term were exhausted, a trust resulted, for want of a further disposition, to the legal tenants. In his judgment, these must be resulting trusts, and, therefore, must go to the tenant for life, (c) 57. In the same manner, where the whole of an estate is con- veyed for particular purposes, or on particular trusts only, which, by accident, or otherwise, cannot take effect, a trust ivill result to the original owner, or his heir ; as where a testator devises real estates to trustees, in trust to sell, and to apply the money in a particular manner; and where such purpose cannot be effected, the fund, though money, will be considered as land, and result to the heir, (d) (a) 1 Atk. 191. (b) Lloyd v. Spillet, 2 Atk. 150. (c) Davidson v. Foley, 2 Gro. R. 203. Sidney v. Shelly, 19 Ves. 352. Habergharn v. Vin- cent, 2 Ves. jun. 204. (d) Prec. in Cha, 162, 541. 3 P. Wins. 20. Gravenor*. Hallum, Amb. 643. 1 Where a (laughter's portion was charged on her father's land, and she, at his re- quest, had released her interest in the land, to enable him to make a clean settlement thereof upon his son ; it was held that if this were done by her without any considera- tion, there would be a resulting trust in the father, whereby he should be chargeable to the daughter for so much money. Lady Tyrrell's case, Freem. 304, (by Hovenden.) Title XII. Trust, Ch. I. s. 58—60. 377 58. A woman devised her real and personal estate to trustees, in trust, to sell and pay debts and legacies ; and to pay the residue to five persons, to be equally divided between them. One of the residuary legatees died in the lifetime of the testatrix, by which her legacy became lapsed. It was decreed by Lord Bathurst, that this was a resulting trust, as to the share of the person who died in the lifetime of the testatrix, for the benefit of the heir, (a) 59. The rule that where lands are devised for a particular purpose, what remains, after that purpose is satisfied, results to the heir, admits of several exceptions. 60. R. Smith devised an advowson to Grace Smith, willing and desiring her to sell and dispose of the same to Eton College ; and, on their refusal, to Trinity College, Oxford, &c. Soon after * the death of the testator, Grace Smith presented a * 396 person to the living ; upon which the heirs at law of the testator filed their bill, praying that the bishop might be enjoined from accepting the presentee of Grace Smith ; insisting that the testator did not intend the then avoidance should go to Grace Smith ; but that she ought to be considered altogether as a trus- tee for the heirs at law of the testator. Lord Hardwicke said, the general question was, whether there was a resulting trust or not ; on the first hearing, he inclined to think there was, but he had changed his opinion entirely. The general rule, that where lands were devised for a particular purpose, what remained re- sulted, admitted of several exceptions. If J. S. devised lands to A to sell them to B, for the particular advantage of B, that advantage is the only purpose to be served, according to the in- tent of the testator ; and to be satisfied by the mere act of selling, let the money go where it will. Yet there was no precedent of a resulting trust in such a case. Nor was there any warrant from the words or intent of the testator to say, the devise severed the beneficial interest, but was only an injunction on the devisee to enjoy the thing devised in a particular manner. If A devised lands to J. S., to sell for the best price to B, or to lease for three years at such a fine, there was no resulting trust. So that the devise here amounted to no more than this : — The testator gave the advowson to G. Smith, but if such or such a college would (a) Digby v. Legard, 3 P. Wms. 22, n. Ackroyd e. Smithson, 1 Bro. K. 503, 2d edit. 32* 378 Title XII. Trust. Ch. I. 5. 60—63. buy it, then he laid an injunction upon her to sell ; therefore, there were two objects of the testator's benevolence, namely, Grace Smith, and the colleges, (a) 61. Where a person makes a conveyance of the legal estate to trustees, upon such trusts, and for such intents and purposes as he shall appoint, and never makes an appointment, there will be a resulting- trust to him and his heirs. For the trust in equity must follow the rules of law in the case of a use. (b) 62. It has been long settled, that where a trustee takes a re- newal of a lease in his own name, the renewed lease shall, in equity, be subject to the former trust. This doctrine is founded on general policy to prevent fraud ; for, as the trustee's situation, in respect to the estate, gives him access to the landlord, it would be dangerous to permit him to make use of that circumstance for his own benefit, (c) ' 63. A lease of the profits of Romford market was de- 397 * vised to a * trustee, in trust, for an infant ; before the expiration of the term, the trustee applied to the lessor for a renewal, for the benefit of the infant, which he refused, in regard that it being only the profits of a market, there could be no distress ; and the only security for payment of the rent would be a covenant, which the infant could not enter into. The trustee then took a lease for his own benefit. It was decreed by Lord King that the lease should be assigned to the infant ; that the trustee should account for the profits, since the renewal, and be indemnified from the covenants in the lease. He said he must consider this as a trust for the infant ; for if a trustee, on a (a) Hill v. Epis. London, 1 Atk. 618. King v. Dennison, 1 Ves. & Beam. 260. (6) Fitzg. 223. Clere's case, tit. 11. c. 4. (c) 1 Cha. C. 191. Palmer v. Young, 1 Vern. 276. 1 It is a settled doctrine of Equity, that where a trustee, or other person, standing in a fiduciary relation, obtains possession, or otherwise makes a profit out of any transac- tions within the scope of his authority, that possession or profit will belong to the cestui que trust ; and the trustee will be compelled to convey accordingly. See Story on Equity Jur. Vol. I. § 321, 322, Vol. II. § 1261, 1262, 1263, 1265 ; 4 Kent, Comm. 438 ; Arnold v. Brown, 24 Pick. 96 ; Morgan v. Boone, 4 Munr. 297 ; Holridgc v. Gillespie, 2 Johns. Ch. 30. In case of the renewal of a lease, the additional term is said to come of the old root, and to be of the same nature, and subject to the same equity. Eake- straw v. Brewer, 2 P. Wms. 511. And see Manlove v. Bale, 2 Vern. 84 ; Pickering v. Vowles, 1 Bro. Ch. Cas. 197, and note (1,) by Perkins ; Milner v. Harewood, 18 Ves. 274. Title XII. Trust. Ch. I. s. 63—67. 379 refusal to renew, might have a lease to himself, few trust estates would be renewed by the cestui que trust. That the trustee should rather have let it run out, than have taken a lease himself. It might seem hard that the trustee was the only person of all mankind, who could not have the lease ; but it was very proper that rule should be strictly pursued, and not in the least relaxed. For it was very obvious what would be the consequence of letting trustees take leases, on a refusal to renew to the cestui que trust, (a) 64. This doctrine has been extended to the case of persons having- only a particular and limited interest in a leasehold estate. 65. Thus, where a tenant for life of a crown lease, under a marriage settlement, got a reversionary renewal of the lease ; it was decreed by Sir T. Sewell, M. R., that it should go to the uses of the settlement ; and the decree was affirmed by Lord Camden, (b) 66. Where any fraud is committed in obtaining a conveyance of real property, the grantee in such conveyance will be consid- ered, in equity, as a trustee for the person who has been de- frauded, (c) 67. Where a father purchases lands in the name of his infant child, without any declaration of trust, and takes the profits during the minority of the child, such purchase will be consid- ered, in equity, as an advancement for the child, and not as a trust for the father. Because, between a father and his child, blood is a sufficient consideration to raise a use. And herein the law of trusts does, as it ought to do, agree with the law of uses. For, if before the Statute 27 Hen. VIIL, a father had made a feoffment to his son, without any consideration, no use would have * resulted to the father, because blood was a * 399 sufficient consideration to have vested the use in the son. Besides, as a father is bound by the law of nature to provide for his child, the purchasing in his name will be construed in a court of equity to be a performance of that obligation ; and the taking («} Keech v. Sandford, Sel. Ca. in Ch. 61. Blewett v. Millet, 7 Bro. Pari. Ca. 307. Kilick v. Flexney, 4 Bro. C. C. 161. James v. Dean, 11 Ves. 363. Fitzgibbon v. Scanlan, 1 Dow, 261. (b) Taster v. Marriot, Amb. 668. 734. Lee r. Vernon, 5 Bro. Pari. Ca. 10. (c) 2 Atk. 150. 380 Title XII. Trust. Ch. I. s. 67—69. of the rents during the minority of the child, only implies that the father acted as guardian to his child, (a) 2 68. J. Mumma purchased a copyhold in the name of his eldest son, an infant of about eleven years old, laid out ,£400 in im- provements, paid the purchase money and the fines, and enjoyed it during his life. He surrendered to the use of his will, devised it to his wife for life, remainder to his younger children, and made other provisions for his eldest son. Upon the death of the father, the eldest son recovered this copyhold in ejectment. The widow brought a bill to be relieved upon the principle that the eldest son was a trustee for the father. Lord Chancellor Jefferies declared, that as the eldest son was but an infant at the time of the purchase, though the father did enjoy during his life, it must be considered as an advancement for the son, and not a trust for the father, (b) 69. In the case of Lamplugh v. Lamplugh, it was resolved, that if the purchase had been made in the younger son's name only, it had been plainly an advancement for him and no trust. That the case did not differ, in regard the persons named by him did disclaim ; especially since prudential reasons might be given why those persons were joined, — namely, that they might help and protect the infant younger son ; also to prevent the estates descending to a remote relation, in case the younger son died before his father. For in such case a court of equity would have said, if the father were to come for the estate, though this would have been an advancement, in case the younger son had lived to have enjoyed it, yet the younger son dying, the trustee should, in equity, have conveyed it back to the father. And this might be the use and intention of naming these trustees. Besides, the younger son being but eight years old, was unfit to be a trustee, therefore must be intended to have been named for his own benefit, (c) («) Grey v. Grey, 1 Cba. C. 296. Finch, B. 341. (b) Mumma v. Mumma, 2 Vera. 19. (c) (1 P. Wms. 111.) 1 Whether a purchase hy a father, in the name of his infant child, is to be deemed an advancement to the child, or a resulting trust to the father, is a question of inten- tion, susceptible of proof by parol testimony, where such testimony is not contradictory to the deed. Thus, where B executed a deed of conveyance of a farm to K, an infant daughter of A, for a valuable and full consideration, recited as paid by A, in whose Title XII. Trust. Ch. I. s. 70—72. 381 70. A father purchased copyhold lands in his son's name, who was then eighteen years of age, and continued in posses- sion till his death. *Lord Hardwicke, — " I am of opinion *400 that it should be considered as an advancement for the son, and found my opinion greatly on the case of Mumma v. Mumma ; and though two receipts are produced under the son's hand, for the use of the father, I think that will not alter the case ; for the son, being then under age, could give no other re- ceipt in discharge of the tenants, who held by lease from the father. And in this case, I am of opinion that parol evidence may be admitted, though, indeed improper, when offered against the legal operation of a will, or an implied trust ; but here it is in support of law and equity too." (a) 71. A purchase by a father, in his own name and that of his son, has, in some cases, been deemed an advancement for the son, not a trust for the father. But this doctrine has been altered ; and it has been held that in such a case a moiety of the estate will be subject to the father's debts, (b) 72. A father made a purchase of land in his own name, and that of his eldest son, and their heirs ; and a similar purchase in his own name, and that of his younger son. The father paid the purchase-money, and continued in possession till the time of his death. A judgment creditor of the father's brought his bill to have satisfaction of his debt out of those estates. It was insisted that the sons took them to their own use as an advancement, and were not trustees for their father. Lord Hardwicke said, — The general rule had been admitted, and had been long the doc- trine of the Court, that notwithstanding the father paid the whole (a) Taylor v. Taylor, 1 Atk. 380. Dyer v. Dyer, 2 Cox's R. 92. (6) Scroop v. Scroop, 1 Cha. Ca. 27. possession the deed remained ; he continuing to occupy the land for more than thirty years, until his death ; it appearing, by parol testimony, which was held admissible, that the deed was taken in the daughter's name for the purpose of avoiding some expected difficulties to the father, with the understanding that when he should be rid of them, he should surrender this deed and take another directly to himself; it was held not an advancement to the daughter, but a resulting trust to the father. Jackson v. Matsdoif, 11 Johns. 91. And see Prankard v. Prankard, 1 Sim. & Stu. 1. To repel the presumption of an intended advancement, the evidence of a different intention on the part of the father must be contemporaneous with the purchase. Murlcss v. Frank- lin, 1 Swanst. 13. [Douglass v. Brice, 4 Rich. Eq. 322; Cartwright v. Wise, 14 111. 417 ; Shepherd v. White, 10 Texas, 72.] 382 Title XII. Trust Ch. I. s. 72. money, yet if the purchase was made in the name of a younger son, the heir of the father should not insist it was a trust for the father. But this case differed from that rule, or any other that he remembered ; and if he could find any material difference, he should, in his own judgment, be inclined to relieve the creditor. For though it might be proper stare decisis ; yet, he thought, the case had gone far enough in favor of advancements, and he ought not carry it farther. It must be admitted that in some cases which had been before the Court, the father had continued in possession, where the purchase had been made singly in the name of the son, and yet held an advancement for the son ; and for this reason, because the father was the natural guardian of the sons during their minority. Here the purchase was 401* in *the names of the father and sons as joint-tenants; now this did not answer the purpose of an advancement, for it entitled the father to the possession of the whole till a division, and to a moiety absolutely, even .after a division ; be- sides the father's taking a chance to himself of being a survivor of the other moiety. If the son had died during his minority, the father would have been entitled to the whole by survivorship ; and the son could not have prevented it by severance, he being an infant. Suppose a stronger case, that the father had taken an estate by purchase to himself for life, with remainder to his son in fee, — should this prevail against the creditors ? No, certainly ; for the defendant's father having the profits for life, and the son only a remainder, the estate would have been liable. A material consideration for the plaintiff was, that the father might have other reasons for purchasing in joint-tenancy, — namely, to pre- vent dower on the estate, and other charges.' Then consider how it stood in respect to the creditor. A father here was in posses- sion of the whole estate, and must necessarily appear to be the visible owner of it, and the creditor would have had a right, by virtue of an elegit, to have laid hold of a moiety ; so that it dif- fered extremely from all the other cases. Now, it was very proper that the Court of Chancery should let itself loose, as far as possible, in order to relieve a creditor, and ought to be gov- erned by particular circumstances of cases ; and what could be more favorable to the plaintiff than that every foot of the estate was covered by these purchases ? and unless the Court let him Title XII. Trust, Ch. L 5. 72—76. 383 in upon these estates, the plaintiff had no possibility of being paid. Decreed, that a moiety of these purchases was liable to the debt, (a) 73. A purchase by a grandfather in the name of his grand- child, provided the father be dead, in which case the grand- children are in the immediate care of the grandfather, will be deemed an advancement for the grandchild, not a trust for the grandfather. (&) 74. Where a person purchased a copyhold estate in the names and for the lives of his three natural children, who were admitted, and described as his daughters in the admission, Mr. Fearne in- clined to the opinion that the daughters were entitled to the estate for their own use ; because every man is under a natural obligation to provide for such children, (c) *75. It is said by Lord Nottingham, that where a son *402 is married in the life of his father, and by him fully ad- vanced and emancipated, there a purchase by the father, in the name of his son, may be a trust for the father as much as if it had been in the name of a stranger ; because, in that case, all presumptions or obligations of advancements cease. But where the son is not advanced, or but advanced or emancipated in part, there is no room for any construction of a trust by implication ; and without clear proofs to the contrary, it ought to be taken as advancement of the son. (d) 76. It is also said by Lord Chief Baron Gilbert, that if a father purchases in the name of his son, who is of full age, which, by the English law, is an emancipation out of the power of the father ; there, if the father takes the profits, or lets leases, or acts, in any other manner, as the owner of the estate, the son will be considered as a trustee for the father ; because there is the same resulting trust, as if the son were a stranger, since it 'was purchased with the father's money. But if the father had let the son continue in possession from the time of the purchase, without acting as owner, it would be an advancement. For the legal interest being in the son, and the father permitting him to act as owner of the estate, from the time of the purchase, did as (a) Stileman v. Ashdown, 2 Atk. 477. (11 Johns. 96.) (b) Ebrand v. Dancer, 2 Cha. Ca. 26. Lloyd v. Read, 1 P. Wins. 608. (c) Fearne's Op. 327. {d) Finch, R. 341. Elliot v. Elliot, 2 Cha. Ca. 231. Pole v. Pole, 1 Ves. 76. 384 Title XII. Trust. Ch. I. s. 76—81. much declare the trust for the advancement of the son, as if it had been declared in express words in the deed, (a) 77. A wife cannot be a trustee for her husband; therefore if a husband purchases lands in the name of his wife, it shall be pre- sumed, in the first instance, to be an advancement and provision for the wife. 1 78. A married man purchased a walk in a chase, and took the patent to himself and his wife, and J. S. for their lives, and the life of the longest liver of them. Lord Chancellor Jefferies held, that this should be presumed an advancement and provision for the wife ; for she could not be a trustee for her husband. De- creed to the wife for life ; and if J. S. should survive her, then to be a trust for the executors of the husband, (b) 79. A husband purchased a copyhold, to himself, his wife, and daughter, and their heirs. It was held to be an advancement, and not a trust ; and that a mortgage by the husband should not bind the lands after his decease, in the lifetime of the wife and daughter, (c) 403 * * 80. There can be no resulting or implied trust be- tween a lessor and his lessee, because every lessee is a purchaser by his contract and his covenants; which excludes all possibility of implying a trust for the lessor. Therefore, if in that case there be any trust at all, it must be declared in writing ; but there may be a resulting or implied trust between the as- signor and assignee of a leasehold estate, (d) 81. [Notwithstanding the dictum of Lord Hardwicke in the case of Bagshaw v. Spencer, that all trusts were in notion of law executory, (and which has been controverted by Fearne with his usual ability,) the distinction is now well established between trusts executed and trusts executory, in marriage articles and wills, (e) («) Gilb. Lex Prcetoria, 271. (b) Kingdom v. Bridges, 2 Vera. 67. (c) Back v. Andrews, Prec. in Cha. 1. 2 Vern. 120. Id) Pilkington v. Bayley, 7 Bro. Pari. Ca. 383. Hutcliins v. Lee, 1 Atk. 447. (e) 2 Atk. 246, 583. 1 Coll. Jurid. 413. Fearne, Eem. 141, Ed. 8. I 1 The law is clear that there is no resulting trust in favor of the husband, from the fact that the lands conveyed to the wife were paid for with the money of the husband. The legal estate is clearly in her, and the presumption of law is that it is for her own benefit. A trust, therefore, if there be any, for the husband, must be shown and estab- lished by other evidence than that showing merely that the purchase-money was paid by the husband. Whitten v. Whitten, 3 Cush. 191.1 Title XII. Trust. Ch. I. s. 82—87. 385 82. Where the devise or trust is directly and wholly declared by the testator or settlor, so as to attach on the lands immediately, under the deed or will itself, it is a trust executed and complete ; and must be construed strictly according to its legal import, and in analogy to corresponding limitations of legal estates : but where the devise, trust, or agreement is directory or incomplete, describing the intended limitation of some future conveyance or settlement directed to be made for effectuating it, there the trust is executory ; and the Court of Chancery will not construe the devise or articles strictly, but will endeavor to discover the intention, and execute the trust, according to that inten- tion.] (a) 83. When trusts were first introduced, it was held that none but those who were capable of being seised to a use could be trustees. This has been altered; and it is now settled, that the king may be a trustee; but the remedy against him is in the Court of Exchequer, (b) 84. A corporation may also be a trustee, not only for its own members, but also for third persons. And where a corporation is a trustee, the Court of Chancery has the same jurisdiction over it as over a private person, (c) 85. When once a trust is sufficiently created, it will fasten itself on the estate. Therefore if a conveyance or devise, by which a trust is created, becomes void by the incapacity or death of the grantee or devisee, still the Court of Chancery will decree the trust to be carried into execution. The relief is administered by considering the land, in whatever person * vested, as bound by the trust; and compelling the heir, *404 or other person having legal estate, to perform it. (d) 86. A person devised lands to his daughter, a married woman, for her separate use. It was held that the husband should be a trustee for his wife. For as the testator had a power to devise the premises to trustees for the separate use of his wife, the Court of Chancery, in compliance with his declared intention, would supply the want of them, (e) 87. An estate was devised to the Clock-makers' Company, upon certain trusts. Decreed, that though the devise was void, (a) Tit. 32. C. 20. Tit. 38. c. 14. 1 Jac. & Walk. 570. (b) 1 Ves. 453. 3 Bl. Comra. 438. (c) Mayor of Coventry v. Attorney General, 7 Bro. Pari. Ca. 285. 2 Ves. Jun. 40. (d) 1 Ves. 468. (e) Bennet v. Davis, 2 P. Wms. 316. vol i 33 386 Title XII. Trust. Ch. I. s. 87—88. the Clock-makers' Company not being capable of taking, yet that the trust was sufficiently created to fasten itself upon any estate the law might raise ; therefore that the heir at law was a trustee for the uses of the will, (a) 88. [The rule that the trust attaches upon the land so as to convert all persons acquiring the legal estate into trustees, has an exception in the case of a conveyance by the trustee, to a pur- chaser for a valuable consideration, without notice of the trust : the remedy of the cestui que trust is against the trustee.] (b) {a) Sonley v. Clock-makers' Company, 1 Bro. C. C. 81. Tit. 38. c. 2. (6) Snag's case, cited in Freem. Ch. Rep. 2d. ed. 43. c. 47. Qu. Sherley v. Fagg, 1 Ch. Ca. 68. And see 1 P. Wms. 278, 279. 387 CHAP. II. RULES BY WHICH TRUST ESTATES OF FREEHOLD ARE GOVERNED. Sect. 1. A Trust is equivalent to the Legal Ownership. 6. Trusts are Alienable. 9. Devisable and Descendible. 10. Maybe Entailed. 11. And also limited for Life. 1 2. Subject to Curtesy. 16. When subject to Dower. 22. Not to Free Bench. 25. Forfeitable for Treason. Sect. 27. But not for Felony. 29. Not subject to Escheat. 30. Liable to Crown Debts. 31. And to all other Debts. 34. Merge in the Legal Estate. 36. Where a Legal Estate is a Bar in Ejectment. 39. Where a Reconveyance tvill be presumed. Section 1. "We have seen that trust estates owe their origin to the strict construction given by the courts of law to the Statute of Uses ; in consequence of which, the Court of Chancery inter- posed its authority, and supported this kind of property. In the exercise of this jurisdiction, that court first laid it down that a trust being in fact a use not executed, should be regulated by the rules which had been established respecting uses, before they were changed into legal estates : but as this doctrine was productive of all the inconveniences which were meant to be remedied by the Statute of Uses, it has been in a great degree abandoned. 2. In the case of Burgess v. Wheate, (a) Lord Mansfield said, — " In my apprehension, trusts were not on a true foundation till Lord Nottingham held the great seal. By steadily pursuing, from plain principles, trusts in all their consequences, and by some assistance from the legislature, a noble, rational, and uni- form system of law has been since raised. Trusts are made to answer the exigencies of families, and all purposes, without producing one inconvenience, fraud, or private mischief, which the statute of Henry VIII. meant to avoid. The forum where (a) Infra, tit. 30. 1 Black. R. 155, 161. 1 Eden, 223. 388 Title XII. Trust. Ch. II s. 2—5. it is adjudged is the only difference between trusts and 406 * legal estates. * Trusts here are considered, as between the cestui que trust and trustee, and all claiming by, through, or under them, or in consequence of their estates, as the owner- ship, and as legal estates ; except when it can be pleaded in bar of the exercise of this right of jurisdiction. Wliatever ivould be the rule of law, if it was a legal estate, is applied in equity to a trust estate" 3. In a subsequent part of the same speech, Lord Mansfield says, the above doctrine is founded on the maxim that equity follows the law ; which is a safe, as well as a fixed principle ; for it makes the substantial rules of property certain and uni- form, be the mode of following it what it will. And Lord Thur- low has observed that, in many acts of parliament, an equitable estate was considered the same as if it were a legal estate ; that the words seised in law or in equity, in the qualification act, showed that the word seised was applicable to both ; and that the word seisin extended to being seised in equity, (a) 4. It is of the utmost importance that trust estates of the nature of freehold should be considered in equity as perfectly analogous to legal estates of the same kind, and subject to every incident to which such legal estates are liable ; consequently, that there should be a disseisin, abatement, or intrusion, allowed on a trust estate, as well as on a legal one. And this doctrine was admitted by Lord Eldon and Lord Redesdale in a late case, which will be stated hereafter, (b) x 5. A trust estate still, however, retains some few qualities of a use. Thus confidence in the person is necessary to the existence of a trust ; so that even at this day, if a trustee sells the land for a valuable consideration to a person who has no notice of the trust, the purchaser will not be compelled in chancery to execute it. 1 As for privity of estate, it was formerly held to be as necessary as confidence in the person. But this seems to be (a) Watts v. Ball, 1 P. Wins. 108, infra, s. 13. 2 Bro. C. C. 271. (6) Cholmondeley v. Clinton, tit. 31. c. 2. i But if the purchaser had notice of any paramount title, Chanceiy will hold him trustee for the benefit of all persons whose rights he has thus sought to defeat. As to what shall constitute notice, in cases of subsequent purchase, see post, tit. 32, ch. 29. Title XII. Trust. Ch. II. s. 5—9. 389 now altered ■ for Lord Mansfield has said, " That part of the old law which did not allow any relief to be given for or against any estates in the post, does not now bind by its authority in the case of trusts, (a) 1 6. Any disposition of a trust by the cestui que trust was for- merly binding on the trustees in a court of equity. But it was enacted by the Statute of Frauds, s. 9, — " That all grants and assignments of any trust or confidence shall be in writing, signed * by the party granting or assigning the same ; or * 407 else shall be utterly void and of none effect." 7. Although by the Stat. 1 Rich. III. c. 1, the conveyance of a person, having only a use, was made good against the feoffees to use ; yet, it does not appear to have been ever held, since the Statute of Uses, that a cestui que trust could convey any thing more than a trust estate. And in all modern cases, where there has been a conveyance from a cestui que trust, the legal estate has been considered as still remaining in the trustee, (b) 8. It was laid down by Lord Nottingham as a general rule,— " That any legal conveyance or assurance by a cestui que trust shall have* the same effect and operation upon a trust, as it should have had upon the estate in law, in case the trustees had exe- cuted their trust, (c) 9. Trust estates are also devisable, as will be shown hereafter. 2 (a) Tit. 11. c. 2. 1 Black. R. 155. (b) Tit 11. c. 2. 1 Sanders on Uses, 35. 8 Term R. 494. (c) 2 Cha. Ca. 78. 1 See ante, tit. 2, ch. 2, $ 12, 13. 2 As to the power of trustees to devise trust property, the decisions are not uniform. In Cooke v. Crawford, 13 Sim. 91, the testator devised his real estates to A, B, and C, in trust* that they, or the survivors or survivor, or the heirs of the survivor should, at their discretion, sell the same ; and he empowered them and their heirs to make con- tracts with purchasers and to give deeds; and declared that the receipts of them or the survivors or survivor of them, or the heirs, executors, or administrators of such sur- vivor, should be a good discharge to such purchaser ; and directed that they, their heirs, executors, administrators, and assigns, should hold the proceeds of sale upon certain trusts. A and B renounced the trust ; and C alone acted ; aud devised the estates to the plaintiffs upon the same trusts. After his death, the plaintiffs agreed to sell the estates to the defendant ; and the defendant refusing to complete the purchase, on the ground that the plaintiffs, being only devisees of the trustee, could not make a good title nor give a valid discharge for the purchase-money, without the concurrence of the cestui que trust, a bill was filed to compel them to perform the contract. But Vice-Chancellor Shadwell said that, upon the language of the will, it was plain that C was not authorized to devise the estate. And he protested against the proposition, 33* 390 Title XII. Trust. Ch. II. s. 9. And where they are not devised, they will descend to the heir of the person who was last entitled to them, in the same manner as legal estate (a) (a) Tit. 38. c. 3. Tit. 29. c. 3. that it was a beneficial thing for a trustee to devise the trust estate ; observing that, in his opinion, it was not beneficial to the estate to allow the trustee to dispose of it to whomsoever he might think proper ; nor was it lawful for him to make any disposition of it. He ought to permit it to descend ; for, in so doing, he acts in accordance with the devise to himself. And he saw no substantial distinction between a conveyance, inter vivos, and a devise, which was a post mortem conveyance. He, therefore, allowed the demurrer to the bill. See also Townsend v. Wilson, IE. & Aid. 608 ; Bradford v. Belfield, 2 Sim. 264. But in the subsequent case of Titley v. Wolsteuholme, 7 Beav. 425, the Court seemed to view the matter differently. In that case, R. Titley devised certain estates to his wife and his son and R. Tebbutt, their heirs, executors, administrators, and assigns, upon trust, to be performed by " the said trustees and the survivors and survivor of them, his or her heirs and assigns ; " — directing them to sell the residuary real estate, and give receipts for the purchase-money ; directing " the said trustees and executors and the survivors and survivor of them" to get in the personal estate ; and providing how " the said trustees and executors and survivors, his or her executors and administrators,'" should apply the proceeds of the estate directed to be sold, &c. ; and " if it should appear to said trustees, or the survivors or survivor of them, his or her heirs or assigns, that it would be advantageous to sell " certain estates, it should be lawful "for said trustees or the survivors or survivor of them " to do so. He also gave to the " trustees for the time being" a power of leasing; adding an indemnity clause in favor of his "trustees and executors ; " and appointing his son and R. Tebbutt and another person his executors. The will contained no power to appoint new trustees. By the deaths of all the others, R. Tebbutt became sole surviving executor and trustee ; and then devised all the trust property to the defendants, their heirs and assigns, upon the trusts mentioned in the will of R. Titley. The bill, in this case, was filed by the cestuis que trust under the will of R. Titley, praying a declaration that this last devise to the defendants was void, and that it might be set aside, and for the appointment of new trustees, and a conveyance to them of the trust property. It was held by Lord Langdale, Master of the Rolls, upon considering the whole will, and especially upon the word "assigns," that the testator meant to give to the survivor the power of devising, subject to the trusts ; but that he did not intend to give the trustees the power of delegating the trust during their own lives. And he proceeded to state the general doctrine in the following terms : — " When a trust estate is limited to several trustees, and the survivors and survivor of them, and the heirs of the survivor of them, and no power of appointing new trustees is given, we observe a personal con- fidence given, or at least probably given, to every one of the several trustees. As any one may be the survivor, the whole power will eventually come to that one, and he is entrusted with it, and being so, he is not, without a special power, to assign it to any other; he cannot, of his own authority, during his own life, relieve himself from the duties and responsibilities which he has undertaken. " But we cannot assume, that the author of the trust placed any personal confidence in the heir of the survivor ; it cannot be known, beforehand, which one of the several trustees may be the survivor ; and as to the contingent survivor, it cannot be known, Title XII. Trust. Ch. II. s. 10. 391 10. It was formerly held that a trust estate, being merely the creature of a court of equity, was not within the Statute De Donis ; and, therefore, that where a trust estate was limited to a person and the heirs of his body, he might, after issue had, bar such issue by a feoffment, bargain and sale, &c. But this has been long since altered ; and it was fully settled that a trust estate beforehand, whether he may have an heir or not, or whether the heir may be one, or may consist of many persons, trustworthy or not, married women, infants, or bank- rupts, within or without the jurisdiction. The reasons, therefore, which forbid the sur- viving trustee from making an assignment inter vivos, in such a case, do not seem to apply to an assignment by devise or bequest; which, being made to take effect only after the death of the last surviving trustee, and, consequently, after the expiration of all personal confidence, may, perhaps not improperly, be considered as made without any violation or breach of trust. It is to take effect, only at a time when there must be a substitution or change of trustees, — there must be a devolution or transmission of the estate, to some one or more persons not immediately or directly trusted by the author of the trust, — the estate subject to the trusts must pass either to the Iiceres natus or the lucres /actus of the surviving trustee, and if the heir or heirs at law, whatever may be their situation, condition, or number, must be the substituted trustee or trustees, the greatest inconvenience may arise, and there are no means of obviating them, other than by application to this Court. With great respect for those who think otherwise, and quite aware that some inconveniences, which can only be obviated in this Court, may arise, from devising trust estates to improper persons, for improper purposes, I cannot, at present, see my way to the conclusion, that in the case contemplated, the surviving trustee commits a breach of trust by not permitting the trust estate to de- scend, or by devising it to proper persons, on the trusts to which it was subject in the hands of the surviving trustee. "But the case so considered is not the present case. We have, in this will, expres- sions which clearly show that the testator intended the trusts to be performed bv the ' assigns ' of the surviving trustee ; and in construing the will, we must, if practicable, ascribe a rational and legal effect to every word which it contains. We cannot, con- sistently with the rules of this Court, consider the word 'assigns : as meaning the per- sons who may be made such by the spontaneous act of the surviving trustee to take effect during his life ; but there seems nothing to prevent our considering it as mean- ing the persons who may be made such by devise and bequest; and if we do not con- sider the word ' assigns' as meaning such persons, it would, in this will, have no meaning or effect whatever." See 7 Bcav. 434 — 430 ; Braybroke v. Inskip, 8 Ves. 417, Sumner's ed., notes; Jackson v. Delaucy, 13 Johns. 537 ; 4 Kent, Comm. 538, 539, and cases there cited. Post, tit. 38, ch. 10, § 140, 141. The case of Cooke v. Craw- ford is reviewed, and its doctrine strongly disapproved, in 2 Jarm. on Wills, 714 — 718. In New York, it is enacted by statute, (Vol. II. p. 15, § 68,"3d ed.,) that upon the death of the surviving trustee of an express trust, the trust shall not descend to his heirs, nor pass to his personal representatives ; but the trust, if then unexecuted, shall vest in the Court of Chancery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the Court. [By the Maryland Statute, ("Act 1831, ch. 311, § 11,) mere naked trusts, when the trustee has no beneficial interest or estate whatsoever in the lands, descend to the heir at common law. Duffy v. Calvert, 6 Gill, 487.] 392 Title XII. Trust. Ch. II. s. 10—15. might be entailed in the same manner as a legal one ; and that, [previously to the Stat. 3 & 4 Will. IV. c. 74,] such entail could only be barrejd by a fine or common recovery, (a) 11. A trust estate may also be limited to a person for life. And in such case, no fine or other assurance, by the cestui que trust for life, will operate as a forfeiture of his estate ; because the forfeiture of legal estates being derived from feudal principles, and never extended to uses, the Court of Chancery has, in this instance, adhered to the ancient rules. 12. Although a man could not be tenant, by the curtesy of a use, before the Stat. 27 Hen. VIIL, because the wife could have no seisin of a use ; yet it has been determined by the Court of Chancery that a husband may acquire an estate by the curtesy in a trust. 13. A person having two daughters, devised his lands 408 * to trustees * and their heirs, in trust, to pay his debts, and to convey the surplus to his daughters equally. The eldest daughter brought her bill for a partition; and the only question was, whether the husband of the youngest daughter should have an estate for life conveyed to him as tenant by the curtesy. The husband, in his answer, had sworn that he married the younger daughter upon a presumption that she was seised in fee of a legal estate in the moiety ; that, at the time of the mar- riage, she was in the receipt of the profits of such moiety ; and, it was admitted, that this trust was not discovered till after the death of the younger daughter. Lord Cowper decreed that trust estates ought to be governed by the same rules, and were within the same reason, as legal estates ; that as the husband should have been tenant by the curtesy, had it been a legal estate, so should he be of a trust estate ; and if there were not the same rules of property in all courts, all things would be as it were at sea, and under the greatest uncertainty. (6) 14. [The husband will be entitled to curtesy out of the trust or equitable estate of inheritance of the wife, notwithstanding the trust be declared during the life of the wife for her separate use. 15. This point was for a time unsettled. In Roberts v. Dix- well, the trust was to convey the testator's real estate for the sole («) North v. Way, 1 Vern. 13. Bowater ». Ellis, 2 Vern. 344. Kirkham v. Smith, Amb. 518. (b) Watts r. Ball, 1 P. Wms. 108. Title XII. Trust. Ch. II. s. 15. 393 and separate use of his daughter Priscilla, and after her death upon trust for the heirs of her body forever. Lord Hardwicke held this not to be an estate tail in Priscilla, because the trust was executory ; but that it would have been otherwise had the trust been executed ; the trust for the separate use of Priscilla for life, not preventing the union of the life-estate with the subse- quent trust to the heirs of her body. In the subsequent case of Hearle v. Greenbank, Lord Hardwicke made a decision in oppo- sition to the general doctrine laid down by him in the preceding case. There Doctor Worth devised real estate to trustees, upon trust, for the separate use of Mary, the wife of William Wins- more, and upon further trust to permit her to dispose thereof by deed or will, notwithstanding coverture. Mary Winsmore was the only child and heir of the testator. Her appointment, by will, was invalid by reason of her infancy; and, at the testator's death, the equitable fee in reversion, not being disposed of by the will, descended upon her. * The question was, * 409 whether her husband was entitled to curtesy ; and Lord Hardwicke decided in the negative, observing, there was no seisin in deed of the inheritance in the wife during the coverture, and so the husband was neither at law, nor in equity, tenant by the curtesy. In the recent case of Morgan v. Morgan, closely resembling Hearle v. Greenbank, Sir John Leach, V. C, decided that the husband was entitled to the curtesy, thereby overruling the latter case. In Morgan v. Morgan, the trust in a marriage settlement was for the sole and separate use of the wife for life, with power to appoint by deed or will ; and for want of appoint- ment, for the wife, her heirs, and assigns. His Honor observed, in the conclusion of his judgment, that the husband was partially and not wholly excluded from the enjoyment of the wife's prop- erty ; that the Court, according to the intention of the settlement, would restrain his interference with the rents during the wife's life, but as there was no further exclusion expressed in the settle- ment, the Court would not restrain him from the enjoyment of his general right as tenant by the curtesy.] (a) ] (a) Roberts v. Dixwell, 1 Atk. 606. Feame, Rem. 54 — 5. Hearle r. Greenbank, 3 Atk. 695, 715." S. C. 1 Ves. sen. 698. Morgan v. Morgan, 5 Mad. 408. Bennct v. Davis, 2 P. Wms. 316. ' [ 1 Norton v. Norton, 2 Sandf. Sup. Ct. 296.] 394 Title XII. Trust. Ch. II. s. 16—20. 16. It might have been expected that where the Court deviated so far from the old law of uses as to allow curtesy of an equitable estate, it would have extended the same indulgence to dower, being a right strongly favored by the common law ; yet it had been long settled, [previously to the recent Statute 3 & 4 Will. IV. c. 105,] that a widow is not dowable at law of an equitable estate, whether the husband himself had parted with the legal estate, or a trust estate had descended upon or been limited to him. 1 17. The first time this point appears to have been determined was in 12 Cha. II. ; and although this doctrine has been followed by subsequent chancellors, yet they have uniformly expressed their regret at being bound by such a precedent. But many cases of this kind have arisen, and the determinations have been uniform against the claim of dower out of a trust estate, (a) 18. Thus, a husband, before marriage, conveyed his estate to trustees and their heirs, in such manner as to put the legal estate out of him. It was determined, that though the trust estate was limited to him and his heirs, yet his widow should not be endowed of it ; that the Court had never gone so far as to allow dower in such a case, (b) 410 * * 19. A purchased an estate in the names of two trus- tees, who acknowledged the trust after his death. Upon a claim made by his widow to dower, it was decreed that she was not dowable. The decree was affirmed in the House of Lords, (c) 20. Sir J. Jekyll has attempted to distinguish between the case of a trust created by the husband himself, and a trust created by another person. In the first case, he admits it to be a settled point, from the authority of the preceding cases, that the wife cannot have dower ; because, it must be presumed, the trust was created for the sole purpose of barring dower. Accordingly, it had been the common practice for purchasers to take a convey- ance of the legal estate in a trustee's name, to prevent dower. (a) Colt v. Colt, 1 Cha. R. 134. (6) Bottomley v. Fairfax, Prec. in Cha. 33S. (c) Ambrose v. Ambrose, 1 P. Wms. 321. Printed cases, in Dom. Proc. 1717. 1 In many of the United States, the widow is by statute made dowable of equitable estates, under various modifications. See ante, tit. 6, ch. 2, § 25, note. See also 4 Kent, Cornm. p. 43 — 47. Title XII. Trust. Ch. II. s. 20—23. 395 But in the second case, where a trust estate descended, or came to the husband from another person, it was different. This dis- tinction has, however, been exploded by Lord Hardwicke, in a case which will be stated hereafter, (a) 21. It is also laid down by Sir Joseph Jekyll, that where a particular time is appointed for conveying the legal estate to the husband, and he outlives that time, without obtaining such con- veyance, his widow shall, notwithstanding, be entitled to dower in equity ; for where an act is to be done by a trustee, that is looked on as done which ought to have been done. But this doctrine is not supported by the decree in the case referred to, without the additional proposition, that a widow was dowable of an equity of redemption in fee. It was a mortgage in fee, and not paid off during the coverture. If the trustee, therefore, had conveyed, he would have conveyed an equity of redem ption only subject to a mortgage in fee ; and the widow would not have been entitled to dower, unless she was dowable out of such equity of redemption, which she was not. This, therefore, though said, will not support the decree ; and the proposition is too important, and contradicted by too many analogies, to be hazarded upon this dictum alone. (b)j 22. It is said by Lord Cowper, that the widow of a cestui que trust of a copyhold ought to have her free bench, as well as if the husband had the legal estate in him. 1 But this doctrine has been contradicted in the following case : (c) * 23. A bill was brought by a widow for a customary * 411 estate. The husband's father bought the lands, which were conveyed to him and D., and the heirs of the father. The father devised the lands to the husband in tail ; and D. survived the husband. The custom was laid for the wife to have the whole, as her free bench. Lord Hardwicke, — " It is an estab- lished doctrine now, that a wife is not dowable of a trust estate. Indeed, a distinction is taken by Sir J. Jekyll, in Banks v. Sutton, (a) 2 P. Wms. 708. Goodwin v. Winsmore, 2 Atk. 525. Post, s. 23. (b) Banks v. Sutton, 2 P. Wms. 706. Dixon v. Saville, tit. 15. c. 3. (c) 2 Vern. 585. [t But now, by the Statute 3 & 4 Will. 4, c. 105, s. 2, women married after the 1st of January, 1834, are dowable out of equitable estates. Sup. tit. 6, ch. 1, s. 25, note.] 1 In the United States, she is dowable in Equity. See ante, tit. 6, ch. 1, § 6 — 10; and ch. 2, § 24, note (2), and $ 25, note (1). 396 Title XII. Trust. Ch. II. s. 23—25. in respect to a trust, where it descends or comes to a husband from another, and is not created by himself; but I think there is no ground for such a distinction ; for it is going on suppositions which will hold on both sides ; and, at the latter end of the re- port, Sir J. J. seems to be very diffident of it, and rested chiefly on another point in equity ; so that it is no authority in this, case. But there is a late authority in direct contradiction to the dis- tinction above taken in Banks v. Sutton ; the case of the Attor- ney-General v. Scott. The only case for the plaintiff is that of Otway v. Hudson, 2 Vern. 583. There it was free bench, and is so called here ; but, it appears plain to be only customary dower. Free bench is merely a widow's estate in such lands as the hus- band dies seised of; 1 not that he is seised of during the coverture, as dower is. There were many circumstances in the case of Otway v. Hudson ; it was decreed on the endeavor of the hus- band to get the legal estate surrendered, and the refusal of the trustees; and grounded on his will ; but as to the general doctrine at the latter end, it is not warranted by the decree." The bill was dismissed, (a) 24. Where a man, immediately before his marriage, privately and secretly conveys his estate to a trustee for himself, in order to defeat Ms wife of dower, such conveyance will be deemed fraudident and void, (b) 25. Before the Statute of Uses, the king was not entitled to a use upon an attainder for treason of the cestui que use, as is men- tioned in the preamble to that statute ; so that afterwards, trusts were by an analogy drawn from uses, also protected from for- feiture, upon an attainder of the cestui que trust for high treason. This produced the Statute 33 Hen. VIII. c. 20, by which it is enacted, — " That if any person shall be attainted or convicted of high treason, the king shall have as much benefit and 412 * advantage by * such attainder as well of uses, rights, entries, and conditions, as of possessions, reversions, re- mainders, and all other things, as if it had been done and de- clared by authority of parliament, (c) (a) Goodwin v. Winsmore, 2 Atk. 525. Atto.-Gen. v. Scott, Forrest, 138. Tit. 10. c. 3. Forder v. Wade, 4 Bro. C. C. 521. (b) Tit. 32. c. 27. (c) Tit. 11. c. 2. S. 24. Vide supra, tit. 1. s. 67—69. 1 Any portion of the lands given to the widow for her dower, by special custom, other than that assigned by the common law, is termed her free bench. See tit. 6, ch. 1, § 8, 9,10. Title XII. Trust. Ch. II. s. 20—29. 397 20. Lord Hale has observed that at the time when this statute was made, there could be no use but that which is now called a trust; and although it was determined in Abington's case, that a trust estate of freehold was not forfeited by attainder of treason, yet that resolution could not be reconciled with the Statute 33 Hen. VIIL, as the uses there mentioned could be nothing but trusts ; therefore he was of opinion, that upon an attainder for high treason of the cestui que trust of an inheritance, the equity or trust was forfeited ; though possibly the land itself was not forfeited, (a) 27. "Whatever may be the case in an attainder for high trea- son, it has been determined that an attainder for felony is not within the Statute 33 Hen. VIIL Therefore, in such a case, neither the trust nor the land becomes forfeited ; for the king has his tenant as before, namely, the trustee, (b) 28. Freeman Sands being attainted of felony, for the murder of his brother, and having a trust estate in lands held of the king, of which Sir George Sands had the legal estate ; the Attor- ney-General preferred an information in the Exchequer against Sir G. Sands, to have a conveyance of the legal estate to the king. The Court resolved, that although ^eeman Sands had the trust of the land at the time of his attainder, yet inasmuch as Sir G. Sands continued seised of the lands, and so was tenant to the king, though subject to the trust, yet the trust was not forfeited to the crown ; but that Sir G. Sands should hold the lands for his own benefit, discharged from the trust, (c) 29. It was decreed by Lord Northington in a modern case, that a trust estate of inheritance does not escheat to the crown by the death of cestui que trust, without heirs ; ] but that the trustee shall hold the land discharged from the trust. Lord Mansfield held, that trust estates should escheat in the same manner as legal ones, and Lord Thurlow appears to have been of the same opinion. (d~) (a) 1 Hal. P. C. 248. (b) Vid. Supra, tit. 1. s. 69. (c) Attorney-General v. Sand?, 1 Hale, P. C. 249. (d) Burgess v. Wheate, tit. 30. § 26. King v. Holland, Alleyn, 14. Style, 41. ace. And see Weaver v. Maule, 2 Rus. & M. 97. 1 See, accordingly, 2 Bl. Coram. 337 ; Att'y-Gen. v. Sands, Ilardr. 488, 494, per Hale, Ld. Ch. B. ; 1 Hal. P. C, 249, S. C. In Maryland, it is held otherwise, agrec- vol. i. 34 398 Title XII. Trust. Ch. II. s. 30—31. 30. It appears somewhat doubtful, whether trusts were origi- nally liable to crown debts. But by the Statute 13 Eliz. c. 4, it is enacted, that if any person, who is an accountant, or indebted to the crown, shall purchase any lands in the name of 413* * other persons, to his own use, all such lands shall be taken for the satisfaction of the debts due by such persons to the crown, (a) 31. It was formerly held by the Court of Chancery, by anal- ogy from the old law of uses, that trust estates were not subject to debts, nor assets in the hands of the debtor's heirs. To remedy this, it was enacted by the Statute of Frauds, s. 10 — " That it shall and may be lawful for every sheriff or other officer, to whom any writ or precept shall be directed, upon any judgment, statute, or recognizance, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, tenements, &c. as any other person or persons shall be seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done if the said party, against whom the execution shall be so sued, had been seised of such lands, tenements, &c. of such estate as they be seised of in t trust for him at the time of the said execu- tion sued, which lands, tenements, &c. by force and virtue of such execution, shall accordingly be held and enjoyed free and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued ; and if any cestui que trust shall die leaving a trust in fee simple to descend to his heir, then and in every such case such trust shall be deemed and taken, and is hereby declared to be, assets by descent ; and the heir shall be liable to and chargeable with the obligation of his ancestors, for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession, in like manner as the trust descended." (b) f * (a) Tit. 1. (b) Bennet v. Box, 1 Clia. Ca. 12. Stat. 29 Cha. 2. c. 3. (1 and 2 Vict. c. 110.) Harris v. Pugh, 4 Bing. 335. ably to the opinion of Lord Mansfield and Lord Thurlow. Matthews v. Ward, 10 G. & J. 443. See post, ch. 4, § 4. [ t An equity of redemption is not a trust within this statute, and it has therefore been held to be equitable assets. Plunket v. Penson, 2 Atk. 290.] 1 This statute did not extend to the Provinces, and in some of the United States Title XII. Trust. Ch. II. s. 32—35. 399 32. It has been held, that if a trustee has conveyed away the lands, by the direction of the cestui que trust, before execution is sued out, they cannot afterwards be taken by the creditor, (a) 33. Where a trust estate descends on the heir at law, though it may be necessary to resort to equity to reduce it into pos- session, yet it will be considered as legal, and not equitable assets ; a trust estate being made assets by the statute, (b) 34. Trust estates are in all cases subject to merge in the legal estate, whenever both estates come to the same person, because *a man cannot be trustee for himself. And in a *414 modern case Lord Thurlow said it was universally true, that where the estates unite, the equitable must merge in the legal, (c) 35. In a subsequent case Lord Alvanley said, — " Another position was maintained in a latitude that would create infinite confusion ; that where there is in the same person a legal and equitable interest, the former absorbs the latter. I admit that where he has the same interest in both, he ceases to have the equitable estate, and has the legal estate, upon which this Court will not act, but leaves it to the rules of law. But it must be understood always with this restriction, that it holds only where the legal and equitable estates are coextensive, and commensu- rate ; but I do not by any means admit, that where he has the (a) Hunt v. Coles, tit. 14. (b) 1 Atk. 293. (c) Wade v. Paget, 1 Bro. C. C. 363. Vide Goodright v. Wells, tit. 29. See tit. 39. it was never adopted. Russell v. Lewis, 2 Pick. 50S, 511; Merrill v. Brown, 12 Pick. 216; Walker's Introd. p. 312, 597, 598; Ashhurst v. Given, 5 Watts & Serg. 523. But the land may be reached by process in Chancery ; and in many of the States it is liable to process at law against the cestui que trust. Hotchkiss' LL. Georgia, p. 409, § 36, ree'nacting Stat. 29 Car. 2, c. 3, § 10; Pritchard v. Brown, 4 N. Hamp. 397, 404. Kentucky, Rev. Stat. 1834, Vol. I. p. 443, § 13. Virginia, Stat. 1782, ch. 62 ; Tate's Dig. 175, (2d ed.) This statute is taken from that of 29 Car. 2, ch. 3, $ 10. Clayton v. Anthony, 6 Rand. 285 ; Coutts v. Walker, 2 Leigh. 280. Maryland, Stat. 1795, ch. 56, and 1810, ch. 160 ; Hopkins v. Stump, 2 H. & J. 301 ; Ford v. Philpot, 5 H. & J. 316 ; Miller v. Allison, 8 G. & J. 35 ; McMechen v. Marman, Ibid. 57 ; Ontario v. Root, 3 Paige, 478. In Indiana, all equitable interests in lands may be taken in execution, except those of purchasers by contract, not yet performed by conveyance ; which last are liable only in Equity. Indiana, Rev. St. 1843, ch. 29, art. 1, § 1, 14 ; Modisett v. Johnson, 2 Blackf. 431. See also Tennessee, Rev. St. 1836, p. 223,280, 292; Stat. 1832, ch. 11, § 3; 1 Yerg. 1 ; 2 Yerg. 400. North Carolina, Rev. Stat. 1836, ch. 45, § 4, Vol. I. p. 266, as expounded in 3 Hawks, R. 149; Foote v. Colvin, 3 Johns. 216 ; Jackson v. Walker, 4 Wend. 462 ; 4 Kent, Comm. 308, 309, note (c) 5th cd. 400 Title XII. Trust. Ch. II. 5. 35—38. whole legal estate and a partial equitable estate, the latter sinks into the former ; for it would be a disadvantage to him. (a) l 36. It is a rule of law that in an ejectment, the plaintiff must recover upon the strength of his own title, and cannot found his claim on the weakness of that of the defendant ; for possession has given the defendant a right against every man who cannot show a good title. The party who would change the possession must first establish a legal title in himself ; therefore, where it can be shown by the defendant that the legal title is not in the plaintiff, he cannot recover in the action, (b) 2 37. It was formerly held that an outstanding legal estate should not be set up as a bar in ejectment to the cestui que trust, where he was entitled to the benefit of the whole legal estate. But Lord Mansfield has said, the rule only was, that the legal es- tate should not be set up, to defeat the cestui que trust, in a clear ease ; for where the trust was perfectly manifest, the rule stood upon strong and beneficial principles ; because in eject- ment the question was, who was entitled to the possession. But if a trust was doubtful, a court of law would not decide upon it in an ejectment ; it must be put into another way of in- quiry, (c) 38. This doctrine has been denied by Lord Kent/on, who has said, that " if it appear in a special verdict, or a special case, that the legal estate is outstanding in another person, the party not clothed with that legal estate cannot recover in a court of law. And in this respect I cannot distinguish between the case («) Brydges v. Brydges, 3 Yes. 120, 127. (b) Nicholson v. Halsey, 1 Joluis. Ch. 417 ; Gardner v. Astor, 3 Johns. Ch. 53. (c) 3 Burr. 1901; Cowp. 40; Doug. 721. 1 See, as to Merger, post, tit. 39. 2 If the plaintiff can show a legal title in himself, better than that of the defendant, he may recover, although his title be not indefeasible. If the defendant can disprove the existence of any legal title at all in the plaintiff, he will prevail, on the ground of his own actual possession. But it seems that he cannot defeat the plaintiff's action by showing that a third person has a legal title paramount to that of the plaintiff, unless he can deduce that title to himself, or claims under it. But in a writ of entry, or other real action, founded on the seisin of the plaintiff, the tenant may disprove the allegation of the plaintiff's seisin, by showing that a stranger was seised, though he does not claim under him. See 2 Greenl. on Evid. § 331, and cases there cited. See also 2 Wheat. 224, note (a), where the authorities are collected and reviewed. Title XII. Trust. Ch. II. s. 38—40. 401 of an ejectment brought by a trustee against the cestui que trust, and an ejectment brought by any other person." (a) 1 *39. In the case of Lade v. Holford, it appears to have *415 been agreed that where the beneficial occupation of a trust estate by the person entitled to it, has given reason to suppose that there was a conveyance of the legal estate to the person who was equitably entitled to it, a jury may be directed to pre- sume such a conveyance. 2 And this doctrine is confirmed by the following case : — (b) 40. Upon a bill in Chancery for the specific performance of an agreement to purchase a farm,, the defendant objected to the title. The estate appeared to have been conveyed in 1664, by way of indemnity; and as to one moiety of the estate, there was no provision for reconveying it; as to the other moiety there was such a provision after the death of two persons then living, and eleven years after. In a family settlement, executed in 1694, the (a) Roe v. Reade, 8 Term R. 118, 122. Post, c. 3. § 51—62. (6) 3 Burr. 1901. Doug. 721. i See ace. Jackson v. Sisson, 2 Johns. Cas. 321 ; Jackson v. Chase, 2 Johns. 84 ; Jackson v. Pierce, Ibid. 221 ; Jackson v. Deyo, 3 Johns. 422 ; Jackson v. Van Slyck, 8 Johns. 487 ; Weakley v. Rogers, 5 East, 13S, n. ; Sinclair v. Jackson, 8 Cowen, K. 543. In some of the United States, however, an equitable title is in some cases allowed to be set up. 2 But they will not be directed to presume a conveyance, where, from the nature of the. trust, and the objects of its creation, there is no inconsistency between the occu- pancy by the cestui que trust, and the existence of the legal estate in the trustee. Doe v. Swynimer, 1 Ld. Ken. R. by Hanmer, 385 ; Doe v. Brightwen, 10 East, 583 ; Doe v. Davies, 1 Ad. & El. 430, N. S. The general rule is, that whenever trustees ought to convey to the beneficial owner, it should be left to the jury to presume that they have so conveyed, whenever such presumption can reasonably be made. Doe v. Sybourn. 7 T. R. 2; Doe v. Staples, 2 T. It. '696. See 1 Greenl. Evid.§ 46. " This rule," as Mr. Best remarks, " has been established to prevent just titles from being defeated by mere matter of form, but it is not easy to determine the practical extent of it. It may, however, be stated generally, that the presumption ought to be one in favor of the owner of the inheritance, and not one against his interest ; — 1 Phill. & Am. Ev. 476 ; Doe d. Graham v. Scott, 11 East, 483 ; Doe d. Burdett v. Wrighte, 2 B. & A. 720 ; — and the rule is subject to this further limitation, that the presumption cannot be called for where it would be a breach of trust in the trustees to make the conveyance; — 1 Phill. & Am. Ev. 476 ; Keene d. Byron v. Deardon, 8 East, 267. On the same prin- ciple, reconveyances from the trustees to the cestui que trust will be presumed; — Doc d Roede v. Rccdc, 8 T. R. 122; Hillary v. Waller, 12 Ves. 250, 251 ; see 2 Sudg. Vend. & Pur. 196, 10th ed. ; — as also will, under proper circumstances, conveyances from old to new trustees. Roe d. Ebcrall v. Lowe, 1 H. Bl. 446." See Best on Presumptions, § 112. 34* 402 Title XII. Trust. Ch. II. s. 40. conveyance of 1664 was excepted. From that time no notice was taken of it ; but the estate was conveyed by the persons in possession, as if they were seised of the legal estate. So that the owners had acted as proprietors of the fee simple for a hun- dred and forty years ; and no claim appeared to have ever been made on the estate, under the deed of indemnity. The objection to the title was founded on the legal estate's being outstanding. To which it was answered, that a reconveyance of it ought to be presumed, (a) Sir W. Grant said, that length of time did not, of itself, fur- nish the same sort of presumption, in this case, that it did in a case of adverse possession. Long continued possession implied title ; as, if there was a different right, the probability was, that it would have been asserted. But undisturbed enjoyment did not show whether the title was equitable or legal. It did not follow, however, that a conveyance of the legal estate could not be the subject of presumption ; though the presumption was made upon a different ground. Lord Kenyon, though disinclined to permit ejectments to be maintained upon equitable titles, always admitted that it might be left to the jury to presume a conveyance of the legal estate. On what ground was such pre- sumption to be made ? On this, that what ought to have been done, should be presumed to have been done ; when the purpose was answered for which the legal estate was conveyed, it ought to be reconveyed. Presumptions did not always proceed on 416 * a belief that the thing presumed had actually taken * place. Grants were frequently presumed, as Lord Mansfield had said, merely for the purpose, and from a principle of quieting the possession. There was as much occasion for presuming convey- ances of legal estates ; as otherwise titles must forever remain imperfect, and in many respects unavailable, when, from length of time, it became impossible to discover in whom the legal estate, if outstanding, was actually vested. If it could be ascer- tained at what period the legal estate ought to have been recon- veyed, he saw no reason why the presumption of its being recon- veyed at that period should not be made. The difficulty was, that by the deed of 1664 it was only as to a moiety of the estate, (a) Hillary v. Waller, 12 Ves. 239. Doe ». Lloyd, Peake on Evid. 5th ed. App. 41. See also Skin. 77, Lady Stafford v. Llewellyn, and Keene ». Deardon, 8 East, 266. 1 Turn. 29, per Lord Eldon. Cooke v. Soltau, 2 Sim. & Stu. 154. Tenney v. Jones, 10 Bing. 75. Title XII. Trust. Ch. II. s. 40-^1. 403 that any time was limited for the reconveyance. It could not, however, be meant that the legal estate in any part should con- tinue outstanding forever. The conveyance of it was made for a purpose that must have some limit. It was by way of security against the eviction of another estate. At what precise moment the danger of eviction ceased, it was impossible to say ; but if the time that had elapsed without claim, one hundred and forty years, did not furnish the inference that none could be made, he did not know what period would be sufficient for that purpose. Mere possibilities ought not to be regarded. The Court, as Lord Hardwicke said in the case of Lyddal v. Weston, " must govern itself by a moral certainty ; for it is impossible, in the nature of things, there should be a mathematical certainty of a good title." The evidence of actual reconveyance was slight, and inconclu- sive. But on the general grounds he had before stated, he con- ceived there was no Court before which a question concerning this title could come, that would not, under all the circumstances of the case, presume, or direct a jury to presume, that the legal estate had been reconveyed. It was therefore such a title as a purchaser might safely take. And decreed accordingly. The decree was affirmed by Lord Erskine. (a) [41. But. where, from the nature and object of the original conveyance of the legal estate to the trustees, there is no incon- sistency between the equitable ownership and the fact of the legal estate being suffered to remain outstanding, there, it seems, the presumption will not be made.] (b) (a) Cowp. 215. 2 Atk. 19. Doer. Reed, 5 Barn. & Aid. 232. S. C. Mad. & Geld, 7, and Ib« 54. Cooke v. Soltau, 2 Sim. & Stu. 154. (b) Doe v. Swymmer, 1 Ld. Keuyon Rep. by Hanmer, 385. Doe v. Bright-wen, 10 East, 583. 404 CHAP. III. RULES EY WHICH TRUST TERMS ARE GOVERNED. Sect. 1. Terms in Gross. 6. Terms attendant on the In- heritance. 9. How Terms become attendant. 22. When a Term is in Gross. 21. A Term attendant may be- come a Teftn in Gross* 29. Terms attendant are Part of the Inheritance. 31. Are real Assets. 32. Not forfeited for Felony. 33. Trust Terms will protect Pur- chasers from Mesne In- cumbrances. Sect. 39. And also from Dower. 43. Must be assigned to a Trus- tee for (he Purchaser. 45. A Term will not protect the Heir from Power. 48. Nor the Assignees of a Bank- rupt. 49. Neither Jointure nor Curtesy barred by a Term. 51. Where a Term is a Bar in Ejectment. Section 1. The principles upon which terms for years are held not to be affected by the Statute of Uses have been already explained ; it will now, therefore, be only necessary to state the rules by which they are governed. Terms for years are either vested in trustees for the use of particular persons not entitled to the freehold and inheritance of the lands, or for particular pur- poses, in which cases they are called terms in gross ; and tlje persons entitled to the beneficial interest have a right in equity to call on the trustees, or persons possessed of the legal estate in such terms, for the rents and profits, and also for an assignment of the terms. 2. The cestui que trust of a term in gross has the same power of alienating and devising it, as if he had the legal estate. It should, however, be observed, that the Stat. 1 Rich. III. does not extend to trust terms ; and therefore an assignment of the trust of a term, by the cestui que trust, will not pass the legal estate in the term, (a) 418* *3. The right to a trust term in gross, vests in the (a) Ante, c. 2. s. 6. Title XII. Trust. Ch. III. s. 3—7. 405 executors or administrators of the cestui que trust; and where a married woman is cestui que trust of a term, her husband has the same rights as if she had the legal estate, (a) 4. It is said that the trust of a term is not assets at law, within the Statute of Frauds, for that statute only extends to a trust of lands held in fee simple. But it is equitable assets, in the hands of the executor, (b) 5. Terms of this kind are in general governed by the same rules as legal ones ; except that trust terms in gross are capable of being settled in a manner not allowed in the limitation of legal terms ; of which an account will be given hereafter, (c) 6. When terms for years became fully established, and the interest of the termor was secured against the effect of fictitious recoveries, long terms were frequently created ; and although the purposes for which such terms had been raised were fully satisfied, still the terms, not being surrendered, continued to exist, the legal interest remaining in the personal representatives of the persons to whom they were originally limited. But as the owners of the inheritance were entitled to the benefit of them, the Court of Chancery deemed them to be in fact united to the inheritance, from which they acquired the name of terms attendant on the inheritance ; for otherwise the right to such terms would have gone to the executors or administrators of the persons entitled to the trusts of them, as part of their personal estate; and the freehold and inheritance of the lands would descend to the heir at law. 1 7. Thus Lord Hardwicke has said : — " The attendancy of terms, for years upon the inheritance, is the creation of a court of equity ; invented partly to protect real property, and partly to keep it in the right channel. In order to it, this Court framed the distinc- tion between such attendant terms, and terms in gross ; notwith- standing that in the consideration of the common law they are (a) Tit. 8. c. 1. Prec. in Cha. 418. 1 Inst. 351 a. n. 1. {b) King v. Ballet, 2 Vern. 248. Creditors of Sir C. Cox, 3 P. Wins. 341. Tit. 15. c. 3. s. 18. ■(c) Tit. 38. c. 19. '. The nature of attendant terras and the doctrine of Equity respecting them, are illustrated by Mr. Butler, in his note 249, (13) to Co. Lit. 290, b. See also Sugden, Vend. & Pur. ch. 16; 4 Kent, Comm. 87—94. The subject is more fully discussed by Mr. Coventry in his learned note to 2 Pow. on Mortg. p. 477, a, top. 491, a, Rand's ed. 406 Title XII. Trust. Gh. III. s. 7—9. both the same, and equally keep out the owner of the fee so long as they subsist. But as equity always considers who has the right in conscience to the land, and on that ground makes one man a trustee for another ; and as the common law allows the possession of the tenant for years to be the possession of the owner of the freehold ; this Court said, where the tenant for years is but a trustee for the owner of the inheritance, he shall 419 * not * keep out his cestui que trust ; nor, pari ratione, obstruct him in doing any acts of ownership, or in making any assurances of his estate. Therefore, in equity, such a term for years shall yield, ply, and be moulded, according to the uses, estates, or charges which the owner of the inheritance declares or carves out of the fee. Thus the dominion of real property was kept entire." (a) 8. Mr. Fearne has also observed, that " without such attend- ancy, property in the same lands, united in the same owner, would take different channels; the dominion of real estates, instead of being entire, become split and divided between the personal and real representatives ; and indeed leave the real repre- sentatives very little but the mere name of property. For an inheritance expectant on a term of any considerable duration is of very little value. So necessary, therefore, is the attendancy of terms, under the circumstances above mentioned, to keep real estates in a right channel, that the very existence of real property, as distinguished from the personal, seems in a great measure to depend upon it. For as there are few estates in which there are not such terms, if they are not to be considered as attendant, the whole substance and value of the estate would in them devolve to the executor, as personal property; whilst the heir or real representative would be left destitute of every thing but the shadow of the inheritance, (b) * 9. A term may become attendant on the inheritance, either by an express declaration of trust, or by implication of law. Thus, where a satisfied term is assigned to a trustee, upon an express trust to attend the inheritance, the owner of such inheritance acquires a right to the term by the declaration of the parties. But there are many cases where no such declaration is made ; (a) Willougliby v. Willoughby, 1 Term E. 763. (b) Collect. Jur. vol. 2. No. 6. Title XII. Trust. Ch. III. s. 9—12. 407 and then it becomes a question, in equity, whether it is a term in gross, or a term attendant. 10. In consequence of the maxim in equity, that " that should have the satisfaction which has sustained the loss," it has been often determined that, where a term is carved out of the inheri- tance for any particular purpose, when that purpose is satisfied, the term becomes attendant on the inheritance ; for the inheri- tance sustains the loss by keeping the term on foot, and therefore should have it in satisfaction, (a) 11. A woman, before marriage, raised a term of 1000 years, upon trust, that her intended husband should receive the profits * during their joint lives; if they should have any *420 children, in trust for such children during the residue of the term. The husband died without children; the wife sur- vived, married another husband, who survived, and took out ad- ministration to her. The question was, whether the term should go to the husband, or attend the inheritance. Lord Cowper said, this was only an unskilful declaration, not the intent of the party ; the particular purpose being served, it must attend the inheritance. If the term and inheritance had been in the same hands, it would have merged ; so here it should be attendant in equity. (&) 12. [The cases have established the following distinctions with respect to attendant terms created for the purpose of securing charges upon the inheritance. When a tenant for life, or a tenant in tail, after possibility of issue extinct, who, for the purposes of alienation, is but a tenant for life, pays off the charge secured by the term, there primd facie he will be considered a creditor on the estate, and in the absence of evidence of a contrary intention, the term will not be deemed attendant but in gross for his benefit to the extent of the incum- brance, and will accordingly devolve upon his personal represen- tatives ; he may, however, by express declaration, or other evi- dence of intention to exonerate the inheritance, render the term attendant thereon. But the presumption is otherwise with respect to a tenant in tail, for as he represents the inheritance, primd facie, it will be (a) Francis Max. in Eq. 21, 22. Treat, of Eq. B. 2. c. 4. s. 5. (6) Best v. Stampford, 1 P. Wms. 374. 408 Title XII. Trust. Ch. III. s. 12—13. presumed that he meant to discharge the estate, and unless there be evidence of a contrary intention, the term will attend. But where a tenant in tail in remainder, expectant upon a pre- vious life-estate and failure of issue, pays off an old mortgage, and takes an assignment of the term ; the rule is otherwise, since the principle applicable to a tenant in possession paying off a charge does not apply to one whose estate might be defeated by the birth of issue of another person. Where the owner of the whole inheritance becomes entitled to such a charge, there the charge will merge, and of course the term will become attendant if kept outstanding, (a) . 13. The case of Huntingdon v. Huntingdon, may be here dis- tinguished as not, in any degree, militating against the preceding distinction, as regards a tenant for life.] There Lord and 421 * Lady Huntingdon settled lands which were * the estate of Lady H., to the use of Lady H. for life, remainder to their eldest son in tail ; with a power to Lord and Lady H. to revoke and limit new uses. Lord H. prevailed on Lady H. to exercise this power so far as to demise the premises for 1000 years by way of mortgage, for raising X4500 for Lord H., who covenanted to pay off the money. Lord H. paid off the mortgage, took an assignment of the term to a trustee for himself, and de- vised it for the benefit of his younger children. Upon the death of Lord H., his eldest son, who took the inheritance, filed his bill against the personal representatives of his father and the trustees of the term, praying that it might be assigned to attend the in- heritance, free from incumbrances. Lord K. Wright decreed that the plaintiff must redeem the mortgage. But on an appeal to the House of Lords, the decree was reversed, and the term di- rected to be assigned to the appellant ; because, when Lord H. paid off the mortgage, the purpose for which the term was created being satisfied, it became attendant on the inheritance. (6) [In the preceding case, Lord H. was not tenant for life, but at most seised jure uxoris ; the mortgage was made for his exclusive accommodation ; and Lady H. was no party to the assignment of the term to the trustee ; and, as urged in the argument for the (a) Jones r. Morgan, 1 Bro. C. C. 218. Wyndham v. Earl Egremont, Ambl. 753. Countess of Shrewsbury v. Earl of Shrewsbury, 1 Ves. J. 233. St. Paul v. Ld. Dudley & Ward, 15 Ves. 173. Wigsell v. Wigsell, 2 Sim. & Stu. 364. (b) Huntingdon v. Huntingdon, 2 Bro. P. C. 1. Davidson v. Foley, 2 Bro. R. 203. Ante, c. 1. s. 56. Title XII. Trust. Ch. III. s. 13—19. 409 appellant, it was against equity that Lord H. should be consid- ered a mortgagee or incumbrancer on the estate for having discharged his own debt.] 14. Where a person purchases the freehold and inheritance of lands in his own name, and obtains an assignment of an out- standing- term to a trustee for himself; such term will be consid- ered as attendant on the inheritance. 15. R. Tiffin purchased a freehold estate, took the conveyance in his own name, and an assignment of a mortgage term for years in the names of ,two trustees. Lord Nottingham held that this term was attendant on the inheritance, (a) 16. J. Hoole took an assignment of a term for years, which was in mortgage to one Shepherd, who was a trustee for him ; and afterwards purchased the inheritance of the same premises in his own name. Lord C. J. Wilmot said, when Hoole purchased the fee, he became both the hand to receive, and the hand to pay off the mortgage money. It wrought an extinguishment of the debt due on the mortgage, and the term was gone ; though not extinguished in point of law, because it was in Shepherd. Yet it became * attendant on the inheritance ; and must * 422 follow it in point of law, as much as if it had been made to do so by the act of the party, (b) 17. "Where a person takes a conyeyance of the freehold in the name of a trustee, and an assignment of the term in his ovm name, the consequence is the same. 18. A woman took a mortgage for 1000 years in the name of her brother, afterwards purchased the inheritance in the name of another, and the term of years was assigned to her. The ques- tion was, whether this term belonged to the heir, or the personal representative. A difference was taken at the bar, namely, that if she had first purchased the fee, and afterwards the lease, it should wait on the inheritance ; but here the lease was first in her. Lord Keeper North said, there was no difference in reason ; and decreed that the heir should have the lease, to attend the inheritance, (c) 19. A citizen and freeman of London, possessed of a lease of lands, bought the reversion and inheritance, and died. The question was, whether, as there was no declaration that this (a) Tiffin v. Tiffin, 1 Vera. 1. Whitchurch v. Whitchurch, 2 P. Wins. 236. 9 Mod. 124. (b) Goodright r. Shales, 2 Wils. E. 329. (c) v. Langton, 2 Cha. Ca. 156. vol. i. 35 410 Title XII. Trust. Ch. III. s. 19—21. lease should attend the inheritance, it was part of the personal estate of the purchaser. Decreed that it was attendant upon the inheritance ; and, upon a rehearing, the decree was affirmed by Lord Keeper North, (a) 20. It may be collected from the preceding cases, that when- ever a term would merge in the inheritance, if both were in the same person, it shall be considered as attendant on the inheri- tance. And in the following modern case, it was resolved that where a person, having a term for years, contracted for the pur- chase of the inheritance, and died without having a conveyance of it, the term was attendant. 21. A bill was filed by residuary devisees and legatees, praying that the will might be established, &c. ; that the plaintiffs might be, declared entitled to the benefit of a contract by the testator, to purchase an estate, and the contract completed. The testator had entered into the contract, after the execution of his will, for the purchase of the inheritance of the estate, being at that time lessee of the premises for a term of years ; and died before any conveyance was made. The plaintiffs, therefore, if the Court should be of opinion that they were not entitled to the 423 * benefit of * the contract, claimed the residue of the term, as residuary legatees. The defendant, the heir at law, claimed the inheritance of the estate contracted for, praying that the purchase might be completed out of the personal estate ; in- sisting that the testator became seised of the inheritance from the date of the contract, and that the term was attendant upon the inheritance. Sir W. Grant, M. R., — " I take the case to be this : — The tes- tator had a lease in his own name, had contracted for the purchase of the inheritance, and died before the conveyance to him was completed. Having contracted for the purchase of the inheri- tance, he became complete owner of the whole estate. For it is clear in this court, a party, who has contracted for the purchase of an estate, is equitable owner ; the vendor is a trustee for him. If he had, by his will, afterwards disposed of all his lands, this estate would have passed by that will. I thought it had been long established, that where the same person has the inheritance and the term in himself, though he has in one the equitable in- («) Dowse v. Percival, 1 Vera. 104. Title XII. Trust. Ch. III. s. 21—25. 411 terest, and the legal estate in the other, the inheritance draws to itself the term, and makes it attendant. That appears from Whitchurch v. Whitchurch, Goodright, and Shales, and many other cases. Declare the heir at law entitled to the premises described in the term." (a) 22. The trust of a term for years may, however, belong to the person seised of, or entitled to the inheritance ; and yet the term may not be attendant. For where a person indicates, in any manner, an intention of separating a term from the inheritance, it will be considered as a term in gross. 23. A bein? seised in fee, demised his estate to a trustee for ninety-nine years, in trust for himself and his wife for then: lives, and the life of the survivor, and afterwards, in trust for the heirs of their bodies ; in default of such issue, to the heirs of the body of the husband, remainder to the heirs of the survivor. They had issue a son ; the husband died ; after which the son died in the lifetime of his mother, who took out administration to her husband and son, and assigned the term. After the death of the wife, it was contended, by the heir of A, that all the trusts of this term either became void by accident, or were so in their creation ; so that the term had no subsistence for the benefit of the personal representatives of any of the parties ; but should be considered as attendant on the inheritance. * It *424 was however, decreed by Sir J. Jekyll, that this term should not be attendant on the inheritance ; for that the party who raised it, and had power to sever it from the inheritance, showed his intention to do so, by limiting the trust to the sur- vivor of him and his wife, and the heirs of the survivor ; which, though it was a void limitation, yet sufficed to show his intent to sever such term from the reversion, (b) 24. Where there is an intervening legal estate, and beneficial interest between the term and the inheritance, the term will be considered to be in gross ; because, in that case, it would not merge in the inheritance. 25. Sir A. Chadwick purchased an estate, in fee simple, from Mrs. Rudger. There being an outstanding term in a trustee, a derivative lease of it was granted to a trustee for Sir A. C, with (a) Capel r. Girdler, 9 Ves. 509. (b) Hayter v. Rodd. 1 P. Wins. 362. 412 Title XII. Trust. Ch. III. s. 25—26. nominal reversion of eleven days to the trustee of Mrs. H. The question was, whether this term was in gross, or attendant. Lord Thurlow said, every term standing out, was, at law, a term in gross. If it was different in equity, it must be by affect- ing the person holding the term, with a trust, to attend the in- heritance. This might be by two ways ; by express declaration ; and then, whether the term would, or would not merge, and whether the reversion were real, or only nominal, it must be attendant on the inheritance. Here it was not upon express declaration ; then it must arise from implication of law, founded on the Statute of Frauds, which forbids any trust, except by writing or implication of law. It was said to be extremely plain that Sir A. C. meant to consolidate the interests ; this was beg- ging the question. It was true he meant to take the largest inter- est he could ; but it was by no means apparent that he meant to consolidate the interests. He laid no stress on the days of reversion, for it tvas meant only as a nominal reversion; during that time the rent would be to the original lessor ; but they did not mean to reserve a substantial interest. It would be necessary there should be an express trust to make this attendant on the inheritance. The transaction did not sup- ply a necessary construction of law. It was a very nice and new point, whether the intent to purchase the whole interest was sufficient to make the term attendant upon the inheritance. The impossibility he was under of purchasing the ivhole, rendered an express declaration necessary to make it attend the inheri- tance, (a) 425 * * 26. Sir Edward Sugden has observed on this case, that at first sight it seemed impossible to reconcile those parts of the judgment which are printed in italics. But that it ap- peared from an opinion of Mr. Fearne's, in consequence of which the cause was reheard, that rents were reserved upon the leases granted by the trustees to Sir A. C, and the usual covenants were entered into by him ; the trustees being restrained to that mode of making a title by their trust, which required a reserva- tion of rent, and the usual covenants ; this fact, at once, recon- ciled every part of the judgment. Lord Thurlow was of opinion, that the reversion itself was immaterial; but that the rents (a) Scott v. Fenhouillet, 1 Bro. C. C. 69. Title XII. Trust. Ch. III. s. 26—29. 413 reserved by the leases rendered an express declaration necessary, to make the terms attend the inheritance. Mr. Fearne was also of opinion, that the terms would not be attendant, if there was any intervening estate, and beneficial interest, in any third per- son to divide the ownership of the term from the inheritance. But as he was told that the rents reserved to the trustees upon the terms were afterwards purchased by Sir A. C, he thought the terms did attend the inheritance, although there was not an express declaration for that purpose ; and he expressly delivered his opinion, subject to this fact, which he had learned from verbal information only. By Lord Thurlow's decree on the rehearing, it appears clearly that the rents were not purchased ; and conse- quently, that Mr. Fearne was misinformed, (a) 27. In the case of Willoughby v. Willoughby, Lord Hardwicke sa y Sj — « A term attendant on the inheritance may be disannexed, and turned into a term in gross, by the absolute owner of the inheritance; and so it is admitted by Serjeant Maynard in the Duke of Norfolk's case ; or it may be made to become a term in gross, upon a contingency, according to the resolution in that case." (b) 28. So it was said by Lord Commissioner Raymond, that where a man has a term for years, which, by intendment of law only, attends the inheritance, certainly he has a power to sever such a term from the inheritance, if he should assign it to one man, and mortgage the inheritance to another ; in such case, the term would not attend the inheritance, but become a term in gross. (c) 29. Terms attendant on the inheritance are considered as abso- lutely annexed to the inheritance, and are, therefore, not subject to those rules by which terms in gross are governed. * They follow all alienations made of the inheritance, and * 426 also the descent to the heir ; are capable of being entailed, and limited over after a general failure of issue ; provided the inheritance is limited in the same manner. And where a com- mon recovery was suffered of the inheritance, it would bar the entail and remainders over of the term, as well as those of the freehold ; for the term can no longer attend an estate tail which is destroyed ; nor can the trustee, who is but an instrument to (a) Sugd. Law of Vend. 6th ed. 442. 9 Ves. 510. Collect. Jur. vol. 2. 297. (4) 3 Cha. Ca. 46. Tit. 38, c. 19. (c) 9 Mod. 127. 35* 414 Title XII. Trust Ch. III. s. 29—34. protect others, have the term to his own use ; so that it must thenceforth attend on the inheritance in fee. (a) 30. A term which is attendant on the inheritance is so fully considered as part of it, and conjoined to it, and not as a chattel real, that it does not pass by a will of chattels ; but only by a will executed in such a manner as is required to pass freehold estates, (b) 31. Terms attendant on the inheritance are real assets in the hands of the heir, for the payment of all such debts as are chargeable on the inheritance ; because such terms are annexed to the inheritance, which is real assets. And where the inheri- tance is in trustees, and a person has a term in his own right which is attendant on the inheritance, and dies indebted, the term will be liable to his debts ; for it is assets at law, and equity follows the law. (c) 32. It was determined in the case of the Attorney- General v. Sir G. Sands, that the trust of a term attendant on the inheri- tance was not forfeited by the attainder for felony of the cestui que trust ; because it was no more than an accessary to the in- heritance, which was not forfeited, (d) 33. One of the great objects of the common law is to protect and secure honest purchasers from all prior claims and incum- brances. It is to this principle that fines and non-claim, descents which take away entries, and collateral warranties, owe their origin and effect. The courts of equity, whose duty it is to follow the common law, soon adopted the same doctrine ; and laid it down as a rule, that an honest purchaser, without notice of any defect in the title to the lands purchased, or of any incum- brance on them, at the time of his purchase, shall not have his title impeached in equity. Neither shall he be compelled to dis- cover any writings or other things which may weaken it ; nor will the Court of Chancery take from him any advantage by which he may defend himself at law. (e) 427* *34. In consequence of these principles, it has been long settled by the Court of Chancery, that where a per- («) Collect. Jur. vol. 1. 297. 1 Term R. 766. (&) 1 Vent. 194. Tit. 38. c. 5. (c) Tit. 1. Thruxton v. Attorney-General, 1 Vern. 340. Dowse v. Percival, 1 Vera. 104. (d) Ante, c. 2. (e) 1 Ab. Eq. 333. 2 P. Wms. 491. Shirley v. Fagg. 1 Cha. Ca. 68. See 1 Vera. 52. Jerrard v. Saunders, 2 Ves. jun. 454. Title XII. Trust. Oh. III. s. 34—35. 415 son purchases an estate, without having notice, at the time of his purchase, of any incumbrance affecting it ; if he afterwards finds out that there are incumbrances, and upon such discovery obtains an assignment of a prior outstanding term for years, whether in gross or attendant, to a trustee for himself; the Court of Chancery will not interfere to set aside such a term, though it be a satisfied one ; so that the purchaser, having a good title at law, by means of the term, will be thereby secured from such mesne incumbrance. The reason is, that the circumstance of his purchasing without notice, gives him equal equity with the mesne incumbrancer ; and by obtaining an assignment of a prior term, he acquires the legal estate ; so that he comes within the maxim, that where equity is equal, the law must prevail. Besides, the mesne incumbrancer, having only a title in equity, cannot prevail against one who has an equal title in equity, and also the legal estate ; it being a maxim in chancery, that in (squali jure melior est conditio possidentis. Lord Nottingham has said, that prece- dents of this kind are very ancient and numerous, where the Court has refused to give assistance against a purchaser, either in favor of the heir or the widow, the fatherless or creditors, or to one purchaser against another. (a)f 35. In the case of Willoughby v. Willoughby, Lord Hard- fa) Treat, of Eq. B. 3. c. 3. s. 1, 2, 3. Vide Wortley v. Birkhead, tit. 15, c. 5. Francis, 61. Finch's R. 103. [t Lord Hardwicke has thus explained this doctrine :— " As to the equity of this Court, that a third incumbrancer, having taken his security or mortgage without notice of the second incumbrance, and then, being puisne taking in the first incumbrance, shall squeeze out, and have satisfaction before the second. That equity is certainly estab- lished in general, and was so in Marsh v. Lee, (tit. 15, c. 5,) by a very solemn deter- mination, by Lord Hale, who gave it the term of the creditor's tabula in naufrarjio ; that is the leading case. Perhaps it might be going a good way at first ; but it has been followed ever since ; and I believe was rightly settled, only on this foundation, by the particular constitution of the law of this country. It could not happen in any other country but this, because the jurisdiction of law and equity is administered here in dif- ferent courts, and creates different kinds of rights and estates. As courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior force and strength to a legal title to estates ; therefore, when there is a legal title, and equity of one side, this Court never thought fit that by reason of a prior equity against a man who had a legal title, that man should be hurt; and this by reason of that force this Court necessarily and rightly allows to the common law, and to legal titles. But if this had happened in any other country, it could never have been made a question. For if the law and equity arc administered by the same jurisdiction, the rule, qui prior est tempore potior est in jure, must hold." 2 Vesey, 573.) 416 Title XII. Trust. Ch. III. 5. 35. 428 * wicke, * after stating the origin and nature of trust terms for years, proceeds in these words : — " What kind of p-rantee or owner of the inheritance is entitled in this court to the protection of such a term ? or, in other words, in whose hands such a term shall be allowed to protect the inheritance ? In the first place, he must be a purchaser for a price paid, or for a valuable consideration ; he must be a purchaser bonce fidei, not affected with any fraud or collusion ; he must be a purchaser without notice of the prior conveyance, or of the prior charge or incumbrance ; for notice makes him come in fraudulently. If he has no notice, and happens to take a defective conveyance of the inheritance ; defective either by reason of some prior conveyance, or of some prior charge or incumbrance ; and if he also take an assignment of the term to a trustee for him, or to himself, where he takes the conveyance of the inheritance to his trustee ; in both these cases, he shall have the benefit of the term to protect him. That is, he may make use of the legal estate of the term to de- fend his possession ; or if he has lost the possession, to recover it at common law, notwithstanding that his adversary may at law have the strict title to the inheritance. This made me say, that in those cases the Court often disannexes the trust of the term from the legal fee ; but still in support of right. For if a man come in fairly and bond fide, and has paid a price for the land, and acquired an estate in it, which the law will support, (a plank by which at law he may save himself from sinking,) there can be no ground in equity or conscience to take it from him. This is the meaning of what is generally expressed by saying, that where a man has both law and equity on his side, he shall not be hurt in a court of equity. It was once doubted whether, if the term were vested in a third person, a trustee, generally, and not in the party himself, he should be allowed the benefit of it in equity ; because the Court ought to determine for whom the stranger was a trustee ; and then the rule is, qui prior est tempore potior est jure. But this was settled by Lord Cowper, in the case of Wilkes v. Boddington. He lays it down to be a rule in equity, that where a man is a purchaser for a valuable considera- tion, without notice, he shall not be annoyed in equity ; not only where he has a prior legal estate, but where he has a better right to call for the legal estate than his adversary." (a) (a) Willoughby v. Willoughby, 1 Term K. 763. Ante, s. 7. Wilkes v. Boddington, 3 Vern. 599. Title XII. Trust. Ch. III. s. 36—40. 417 36. Where a term for years is vested in a trustee, wpow an express * trust, a purchaser shall not protect himself by * 429 taking an assignment of such term, after notice of the trust. 37. Ann Bayley, being possessed of a term for years, made a voluntary settlement thereof, in trust for herself for life, remain- der to her daughter Isabella for life, remainder to her children. Isabella mortgaged the lands in question for £200 to the plaintiff, who pretended he had no notice of the settlement ; but hearing of it after, he got an assignment of the term from the trustees, (a) p er Cur. — Though a purchaser may buy in an incumbrance, or lay hold of any plank to protect himself, yet he shall not pro- tect himself by the taking a conveyance from a trustee after he had notice of the trust. For, by taking a conveyance with no- tice of the trust, he himself becomes the trustee ; and must not, to get a plank to save himself, be guilty of a breach of trust, (b) 38. An assignment of a term for years will not protect a pur- chaser from a crown debt; of which an account will be given hereafter, (c) 39. A term for years will protect a purchaser for a valuable consideration from the claim of dower, though such purchaser had notice of the marriage at the time of his purchase. 40. Lady Radnor's husband was seised in tail of the lands in question. But there was a term of ninety-nine years prior to his estate, which was created for the performance of several trusts in the Earl of Warwick's will, all which were performed, and after, in trust to attend the inheritance. Lord Radnor, having barred the entail, sold the estate to Vandebendy ; and assigned the term to a trustee for him. After the death of Lord Radnor, his widow recovered dower, with a cessat executio during the term ; and brought her bill in the Court of Chancery, to have the term removed, that she might have the benefit of her. judgment at law. Lord C. Jeffries inclined to give relief ; but Lord Somers held, that this being against a purchaser, equity ought not to give any relief ; and dismissed the bill. On an appeal to the House of Lords, it was argued for Lady Radnor, that equity did entitle her to the third of this term ; that a tenant by the curtesy would be entitled to it, and by the same (a) Saunders v. Dehew, 2 Vern. 271. (b) Vide tit. 15. c. 5. (c) Tit. 32. c 27. 418 Title XII. Trust. Ch. III. s. 40—42. reason a tenant in dower ; that the term was to attend all the estates created by Lord Warwick's will, and in trust for 430 * such * persons as should claim under it, which the appel- lant did, as well as the respondent ; that the purchaser had notice of the incumbrance of dower, the vendor being mar- ried when he sold the estate ; and that Lady Radnor claimed under her husband, who had the benefit of the whole trust. On the other side it was said, that dower was an interest or right at the common law only ; that no title could be maintained to dower, but where the common law gave it ; and if a term were in being, no woman was ever let in, until after the deter- mination of that term ; that this was the first pretence set up for dower in equity ; that the right was only to the thirds of the rent reserved on any term ; that it had always been the opinion of conveyancers, that a term or statute prevented dower; and that the consequence of an alteration would be much more dan- gerous than the continuance of the old rules. The decree was affirmed, (a) 41. The doctrine established in this case is contrary to the general principles of equity, which has never extended its pro- tection, in any other instance, to purchasers with notice of in- cumbrances, at the time of their purchase. The true and only reason on which it was founded was the silent uniform course of practice, uninterrupted, but, at the same time, unsupported, by legal decisions ; an opinion having been generally adopted by the conveyancers, that a satisfied term would protect a purchaser from the claim of dower ; and many estates having been pur- chased under this opinion. It is now, however, fully recognized and confirmed by a decree of Lord Hardwicke, of whose judg- ment on the case, a report is given by Mr. Butler, in his Notes on the First Institute, (b) 42. This doctrine has been fully recognized, in a modern case, by Sir R. P. Arden, M. R., who is reported to have said: — "It is perfectly established, that a purchaser for a valuable consider- ation from the owner of the equitable interest, may protect him- self, though the owner could not, by the assignment of any outstanding terms. He might, therefore, protect himself against any demand she (the widow) might have of dower at law. The (a) Radnor v. Vandebendy, Show. Pari. Ca. 69. (b) Swannock v. Lifford, i Inst, 208. a. n. 1. Hill v. Adams, 2 Atk. 208, S. C. Title XII. Trust. Ch. III. s. 42—46. 419 decision is a very ancient one, and was affirmed by the House of Lords. Therefore, however questionable it might have been, it is now clear that a purchaser, or a mortgagee, who is a purchaser pro tanto, though he knows of the right of dower, may advance his money ; and, taking in a term, may avail himself against any demand she might have of dower at law." (a) 43. A term standing out in a trustee to attend the inheritance will not, however, protect a purchaser from the claim of dower, unless it is actually assigned to a trustee for him. (b) 44. R. M. being seised in fee of certain lands, with an out- standing term vested in a trustee, upon an express trust to attend the inheritance, conveyed the estate to a purchaser for a valuable consideration ; but no assignment of the term was made. Upon the death of R. M., his widow claimed dower in Chancery ; the purchaser contended that she was barred by the term. Sir Wm. Grant, sitting for the Lord Chancellor, declared his opinion to be, that without an assignment to a trustee for the purchaser, the term did not exclude the claim to dower. And upon a rehearing before Lord Eldon, he concurred in this opinion, (c) [In the case of Mole v. Smith, stated in a former page, the Court of Chancery decreed the vendor's widow, who claimed to be entitled to dower, and who happened to be the administratrix of the trustee of the term, to assign the term to a trustee for the purchaser to the exclusion of her dower.] (d) 45. The doctrine that an outstanding term of years will protect a purchaser from the claim of dower was carried still farther ; for it was determined that a satisfied term should protect an heir at law from dower. But this was soon after overruled ; and it was resolved that an outstanding term should not protect an heir from dower. {e) x 46. A term was raised in Black Acre, in trust to indemnify a person against incumbrances that might affect White Acre, which he had purchased. The defendant, Lady Williams, brought a writ of dower of Black Acre against the plaintiff, who was an (a) Wynn v. Williams, 5 Vcs. jun. 134. (&) Tit. 6. ch. 4. s. 17. (c) Maundrcll v. Maundrell, 7 Ves. 567. 10 Ves. 246, S. C. {d) 1 Jac. & Wal. 665. Tit. 6. ch. 4. s. 18. (e) Brown v. Gibbs, 2 P. Wms. 707. 1 The reason is, that the heir takes only the seisin of the ancestor, which was already subject to dower ; of which the heir had notice, and so comes in on the footing of a volunteer. 420 Title XII. Trust. Ch. III. s. 46—48. infant. His guardian had let her take judgment at law, without setting up the term, or taking any notice of it. So the bill was brought by the infant heir, to be relieved against the judgment. It was said, by Lord Keeper Wright, that this case was the same with Lady Radnor's ; and if she could not be relieved as plaintiff, it must be for want of equity ; therefore, the plaintiff must be re- lieved against her, when she was defendant. And Lady Radnor's case having been affirmed in the House of Lords, the authority was so great that it could not be got over. At a rehearing of this cause before Lord Harcourt, Lady Williams' counsel insisted that the heir, who was but a volunteer, should not, in equity, be relieved against the dowress ; and that this case was different from that of Lady Radnor, in regard Vandebendy was a purchaser. To which it was answered, that if Lady Williams had been plaintiff in the original bill in equity, she could not have been relieved, as the term must have subsisted for the benefit of the heir at law; that this was the same in reason with Lady Rad- nor's case ; that the term was prior to the marriage, and so the husband only seised of the reversion in fee during the coverture ; that as to Vandebendy's being a purchaser, he was so 442* with full notice of dower, and got in the term *to protect himself against the dowress ; and, therefore, having notice, was to be considered as a volunteer. The decree was reversed ; and it was ordered that the plaintiff, Lady Williams, having re- covered dower at law, the trust term should not stand in her way in equity, (a) 47. Lord Harcourt's doctrine has been fully assented to by Lord Hardwicke, who, in the case of Swannock v. Lifford, said : " If the husband dies, and there is a satisfied term continuing, the wife would be entitled to come into this court, against the heir, to set that term out of the way, in order to have the benefit of her dower." (b) 48. In a case in Chancery, 10 Geo. I., stated by Mr. Viner, the question was, whether the assignees of a bankrupt, by taking an assignment of a mortgage term, prior to the title of dower, should protect their estate from dower. It was insisted that the creditors and assignees stood only in the place of the bankrupt ; and since such an assignment to the bankrupt himself, or his (a) Wray r. Williams, Prec. in Cha. 151. 1 P. Wins. 137, S. C. (b) Ante, s. 41. Title XII. Trust. Ch. III. s. 48—53. 421 heir, would not protect the estate from dower, in the hands of the heir, neither should it protect the estate in the hands of the creditors of the bankrupt, or the assignees ; that this differed the case from that of Radnor v. Vandebendy, where it was held that such a prior term should protect the estate from dower, in the hands of a purchaser. It was decreed that the widow should be let into her dower, (a) 49. It has been stated, that the Court of Chancery will set aside a term for years in favor of a jointress. A tenant by the curtesy is also entitled to the aid of equity against a trust term, assigned to attend the inheritance, and set up against him by the heir. 50. The plaintiff, as tenant by the curtesy, brought his bill to be relieved against a term for years, that was assigned in trust to attend the inheritance, and had been set up by the heir at law in bar to his title. Decreed that the term should not be made use of against him by the heir at law. (b) 51. In consequence of the doctrine stated in chap. 2, s. 36, if a defendant in ejectment can show that there is an outstanding term for years, vested in a third person, to the possession of which ,the plaintiff is not entitled, he cannot recover. So where a defendant can show that there is an outstanding term, of which the * trusts are not completely satisfied ; this will * 443 also operate as a bar to the plaintiff's recovery. 52. Lord Mansfield held, that though there was an unsatisfied outstanding term, yet if the plaintiff admitted the charge for which the term was created, and only claimed subject to such charge, the trustees of the term not asserting their right, he should recover. This doctrine was, however, rejected by Lord Kenyon, who held that a satisfied term might be presumed to have been surrendered ; but that an unsatisfied term, raised for the purpose of securing an annuity, might be set up, during the life of the annuitant, as a bar to a plaintiff in ejectment, even though he claim subject to the charge, (c) 53. In another case, Lord Kenyon directed a jury to presume, that an old satisfied term was surrendered; saying, that he grounded himself upon the doctrine laid down by Lord. Mans- field in the case of Lade v. Holford ; which was not, as had been {a) Squire v. Compton, 9 Vin. Ab. 227. (6) Snell v. Clay, 2 Vern. 324. (c) Doc v. Pegge, 1 Term R. 768. n. Doe v. Staple, 2 Term K. 684. vol. i. 36 422 Title XII. Trust. Ch. III. s. 53—57. supposed, that an ejectment might be maintained upon a mere equitable title, for that would remove ancient landmarks in the law, and create great confusion; but that, in all cases, where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, where such presumption might be reasonably made, that they had conveyed accordingly ; in order to prevent a just title from being defeated by a matter of form, (a) 54. In a subsequent case, he said, that though, under certain circumstances, a jury might presume a satisfied term to have been surrendered ; yet if no such presumption was made, and it appeared in a special verdict in ejectment that such a term was still outstanding in a trustee, who was not joined in bringing the ejectment, the cestui que trust could not recover, (b) 55. Where an old mortgage term of 1000 years, created in 1727, was recognized in a marriage settlement of the owner of the inheritance in 1751, by which a sum of money was appro- priated to its discharge ; and no further notice of it was had till 1802, when a deed, to which the then owner of the inheritance and the representatives of the termors were parties, reciting that the term was still subsisting, conveyed it to others, to secure a mortgage ; Mr. Baron Thompson, at the trial, and the Court of K. B., upon a motion to set aside the verdict, held that it 444* could *not be presumed to have been surrendered against the owner of the inheritance, who was interested in up- holding it. (c) 56. A term was created in 1711 for raising portions. There was no evidence of the payment of the portions ; but a settle- ment of the estate took place in 1744 ; and it contained a cove- nant that the estate was free from incumbrances. It did not appear that an assignment of the term had ever been made. On an objection to the title by a purchaser, Sir John Leach, Vice- Chancellor, held, that a surrender of the term must be presumed ; and that, in matters of presumption, the Court will bind a pur- chaser, where it would give a clear direction to a jury in favor of the fact, (d) 57. Terms for years, though assigned to a trustee for the ex- (a) Doe v. Sybourne, 7 Term E. 2. Bull. N. P. 110. Ante, c. 2. s. 38—40. (b) Goodtitle v. Jones, 7 Term R. 47. (c) Doe v. Scott, 11 East, 478. (cZ) Emery v. Grocock, 6 Madd. 54. Ex parte Hohnan, 24th July, 1821, MS. Sugd. Tend. 428. Ed. VI. Title XII. Trust. Ch. III. s. 57—58. 423 press purpose of attending the inheritance, have, in two modern cases, been presumed to be surrendered. And in the last of these cases, Lord C. J. Abbott said : — " Where a term for years becomes attendant upon the reversion and inheritance, either by operation of law, or by special declaration, upon the extinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion, thus become the cestui que trust of the term, may be accounted for by the union of the two characters of cestui que trust and inheritor, and without sup- posing any surrender of the term ; and, therefore, in general such enjoyment, though it may be of very long continuance, may pos- sibly furnish no ground to presume a surrender of the term. But where acts are done or omitted by the owner of the inheri- tance, and persons dealing with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made ; in such cases the things done or omitted may most reasonably be ac- counted for, by supposing a surrender of the term ; and, there- fore, a surrender may be presumed." (a) f *58. [In Bartlett v. Downes, a lord of a manor, by deed, *445 granted the stewardship of the manor for the life of the grantee. Upon the death of the grantor, it was attempted to set up a satisfied term to avoid the grant ; and in order to support this grant, the Court of K. B. decided that it was properly left to the jury to presume the surrender. The term was created in 1712, assigned to attend in 1786, and in 1793 there was a gen- eral declaration as to all outstanding terms, (b) (a) Doe v. Wrighte, 2 Barn. & Aid. 710. Doe v. Hilder, Id. 782. (&) 3 Bar. & Cres. 616. [t The doctrine of the Court of King's Bench has since been very much the subject of consideration; and has been questioned by Lord Eldon, and Richards, L. C. B. See Sugd. on Vend. 6th ed. p. 420, el seq— The Lord Chancellor observed : " It is not necessary to consider much the doctrine of presumption with reference to the present case ; but the case of Doe v. Hilder, having been alluded to, and having paid consider- able attention to it, I have no hesitation in declaring that I would not have directed a jury to presume a surrender of the term in that case ; and, for the safety of the titles to the landed estates in this country, I think it right to declare, that I do not concur in the doctrine laid down in that case." Aspinall v. Kempson, Sugd. 427. Also see Doe v. Plowman, infra. 424 Title XII. Trust. Ch. III. s. 59—61. 59. But in Doe v. Cook, the Court of C. B. refused to presume the surrender of a term in favor of a defendant who showed no title to the premises sought to be recovered. The term was created in 1793, and in 1794 was assigned to secure the sum of <£6000 ; under decrees in Chancery in 1801 and 1802, sales had taken place in other parts of the property for the purpose of paying off the mortgage debt ; but the defendant (who, it hap- pened, had a mere naked possession,) did not produce any evi- dence of further proceedings in Chancery, nor of his own title to the premises, (a) 60. In the preceding cases, the presumption was made in favor of the party who had proved a right to the beneficial ownership, made to prevent justice being defeated by a mere formal objec- tion ; and the Court observed in Doe v. Cook, (b) that no case could be put in which any presumption had been made, except where a title had been shown by the party who called for the presumption, good in substance, but wanting some collateral matter necessary to make it complete in point of form. In such case, where the possession was shown to have been consistent with the existence of the fact directed to be presumed, and in such cases only, had it ever been allowed. 61. The subsequent case of Townsend v. Champernown (c) goes a step further ; there the question arose upon an exception to the Master's report in favor of a title. A term of 1000 years was recited in a deed dated 1758, to have been created several years preceding, and to have been assigned to attend, but neither the deed creating nor that assigning the term were produced ; it was urged for the report that the term should be presumed to be surrendered, on the authority of Doe v. Hilder ; on the other hand, the propriety of the decision in that case was ques- 446* tioned. * Alexander, L. C. B., in overruling the objection, observed : — " Until a different decision be pronounced, I shall, on the authority of Doe v. Hilder, after the expiration of seventy years, without payment of interest, presume the term to be surrendered." One of the reasons of this judgment is unin- telligible, and even admitting the propriety of the decision in Doe v. Hilder, it is not an authority for the introduction of the doctrine of presumption under the circumstances of the case of Townsend v. Champernown. In the former case, the presump- (n) 6 Bing. 174. (6) 6 Bing. 179. (c) 1 Yo. & Jerv. 538. Title XII. Trust. Ch. III. s. 61—62. 425 tion was made in favor of a creditor, who had seised the land under an elegit, taken out upon a judgment obtained against the owner of the inheritance ; while, in the latter case, the presump- tion was called for by the vendor, merely to save himself the expense of getting in an outstanding estate, in compliance with the usual requisition of the purchaser. _ 62. In the later case of Doe v. Plowman, an unsuccessful attempt was made to carry the doctrine of presuming surrenders of terms still farther ; a period of forty-two years only having elapsed since the term was assigned to attend. In that case, a term of 1000 years was created in 1772, for seeming a sum of £5000 ; the mortgage debt was paid off in 1787, and in 1789, the residue of the term was assigned to a trustee for a purchaser to attend. The purchaser continued in possession of the estate until her death. On her marriage the estate was settled, and by virtue of a power in the settlement, she devised the estate ; but neither the settlement nor the will noticed the term. One of the questions reserved was, whether a surrender of the term was to be presumed. The cases of Doe v. Wrighte, and Doe v. Hilder, being cited as in point, Lord Tenterden, C. J., observed that the doctrine, laid down in those cases, had been much questioned ; and upon inquiring whether it was usual to notice m marriage settle- ments such a term as the one in question, and being answered in the negative, his lordship observed, that there was no ground for the presumption, and the Court so decided, (a) x (a) 2 Bar. & Adol. 573. 1 The doctrine of the presumed surrender of a trust term is so clearly expounded in the following extracts, that the student will require no apology for their insertion. " Few suhjects," says Mr. Best, " have given rise to greater difference of opinion than that of the presumption of the surrender of their terms by trustees for terms of years. In Lord Mansfield's time, the Courts seem to have entertained notions on this subject, which, if carried out in practice, would have gone far to subvert the trial by jury on the one hand, and confound all distinction between legal and equitable jurisdic- tion on the other. See 3 Sugd. Vend. & Pur. 39, 40, 42, 10th ed. ; Evans v. Bicknell, 6 Ves. 184; Lessee L. Massey v. Touchstone, 1 Sch. & L. 67, n. (c) ; Wallwyn v. Lee, 9 Ves. 31 ; Doe d. Hodsden v. Staple, 2 T. R. 696 ; Doe d. Bristow v. Pegge, 1 T. P. 758, n. In the case of Lade v. Holford, Bull. N. P. 110, Lord Mansfield said that 1 he and many of the other Judges had resolved never to suffer a plaintiff in ejectment to he nonsuited by a term, standing out in his own trustees, or a satisfied term to be set up by a mortgagor against a mortgagee, but that they would direct the jury to presume it surrendered.' There is no objection to the latter branch of this proposition, which seems generally recognized in practice ; for, by not assigning the term for the benefit of the mortgagee, 36* 426 Title XII. Trust Ch. III. s. 62. and afterwards setting it up against him, the mortgagor would be guilty of a gross fraud, so that the presumption of the surrender of the term is really an application of the legal maxim which presumes against fraud and covin ; — 3 Sugd. Vend. & Pur. 42, 10th ed. See per Lord Tenterden, C. J., in Doe d. Putland v. Hilder, 2 B. & A. 790 ; — and it has accordingly been held that such a presumption will not be made in favor of a prior mortgagee against a subsequent mortgagee in possession of the title deeds, without notice of the prior incumbrance. Goodtitle d. Norris v. Morgan, 1 T. R. 755 ; Evans v. Bicknell, 6 Ves. jun. 184. But the general proposition, never to suffer a plaintiff to be nonsuited by a term outstanding in his trustees, is, at least, if taken in its literal sense, inconsistent with principle, and at variance with subsequent authority. The surrender of a term is a question of fact, and the Court has not only no right, but it would be most dangerous, to advise a jury to presume such a surrender, when all the evidence clearly indicated the reverse. In Doe d. Reede v. Reede, 8 T. R. 122, Lord Kenyon said : ' I agree with what was said in Lade v. Hol- ford, that, where the beneficial occupation of an estate by the possessor has given reason to suppose, that, possibly, there may have been a conveyance of the legal estate to the person who is equitably entitled to it, a jury may be advised to presume a con- veyance of the legal estate ; but if it appear in a special verdict, or a special case, that the legal estate is outstanding in another person, the party not clothed with the legal estate, cannot recover in a court of law; and, in this respect, I cannot distinguish between the case of an ejectment brought by a trustee against his cestui que trust, and an ejectment brought by any other person.' And the same learned Judge, in Doe d. Bowerman v. Sybourn, 7 T. R. 3, (see to the same effect, Goodtitle d. Jones v. Jones, 7 T. R. 43 ; Doe d. Hodsden v. Staple, 2 T. R. 684 ; and Doe d. Shewen r. Wroot, 5 East, 132,) said, that ' the doctrine laid down by Lord Mansfield in Lade v. Holford, was not, as had been supposed, that an ejectment might be maintained upon a mere equit- able title, which would remove ancient landmarks in the law, and create great confu- sion ; but that, in all cases where trustees ought to convey to the beneficial owner, he Avould leave it to the jury to presume, when such presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a just title from being defeated by a matter of form.' " The surrender of a term, like any other fact, may be inferred from circumstances. 3 Stark. Ev. 926, n. (m), 3d ed. ; White v. Foljambe, 11 Ves. 351 ; Doe d. Brune v. Martyn, 8 B. & C. 513. Thus, in the case of Bartlett v. Downes, 3 B. & C. 616, which was an action for fees, brought by a party claiming to be steward of a manor, under an appointment made to him by the owner of the inheritance, against the defendant, who claimed under a devisee of that party, it was held that it was properly left to the jury to say whether they thought an old term outstanding or not ; it appearing by the evidence, that the party under whom the defendant claimed, had admitted by letter, the right of the testatrix to appoint to the office, the grant of which also would have been void, supposing the term outstanding. It is. however, said by Lord Eldon, in the case of Evans v. Bicknell, 6 Ves. jun. 185, that the fact of a term having been satisfied, is not, when standing alone, sufficient to raise the presumption of a surrender, but that there must be some dealing with the term. And in Williams v. Day, 2 C. & J. 460, (see also Doe d. Hodsden v. Staple, 2 T. R. 684,) which was an action by a reversioner for undermining a dwelling-house, where the defendant, in order to disprove the plain- tiff's title, proved a lease for lives to the plaintiff, and the creation of a term by will eighteen years previous, by # which the premises were devised to trustees in trust to pay annuities, and for other purposes, with remainder to the lessor, it was held by the Court of Exchequer that the Judge at Nisi Prius had rightly told the jury that they could not presume a surrender of the term Title XII. Trust. Ch. III. s. 62. 427 " Where acts arc done or omitted by the owner of the inheritance, and persons dealin"- with him as to the land, which ought not reasonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made, a surrender of the term may be presumed. 1 Phill. & Am. Ev. 477 ; Doe d. Putland v. Hilder, 2 B. & A. 791, 792. Applications were, however, made of this principle, in the cases of Doe d. Burdctt v. Wriehte 2 B. & A. 710 ; and Doe d. Putland v. Hilder, Id. 7S2, which have occasioned as much discussion as almost any question to be found in the reports ; namely, whether the surrender of a term of years assigned to attend the inheritance is, as among pur- chasers or incumbrancers, to be presumed to have been surrendered, on the ground of its having remained for a series of years unnoticed in marriage settlements, and other family documents. The negative of this proposition has been so ably advocated by Sir E. Sugden, in his work on Vendors and Purchasers, 3 Sugd. Vend. & Pur. ch. 15, s. 3, 10th ed., as to leave us little else to do than lay before our readers a summary of his arguments, after which we will state the cases the other way, together with those ■which have been subsequently decided. ' It is,' he observes, the settled law of Courts of Equity, that, if a man buys an estate fairly, he may get in a term of years or other incumbrance, although it be satisfied, and thereby defend his title at law against any mesne incumbrance of which he had no notice.' — The protection afforded against mesne incumbrances, by the assignment of attendant terms of years, rests on the maxim of equity, that, where there is equal equity, the law shall prevail. ' Suppose,' says Mr. Butler, in his note to Co. Litt. 290, b. n. (1), p. 15, ' A purchases an estate which, pre- vious to his purchase, has been sold, mortgaged, leased, and charged with every kind of incumbrance to which real property is subject ; in this case, A and the other purchasers, and all the incumbrancers, have equal claims upon the estate. This is the meaning of the expression, that their equity is equal. Bat if there is a term of years subsisting in the estate, which was created prior to the purchases, mortgages, or other incum- brances, and A, (without fraud or notice of the purchases, &c.,) procures an assignment of it in trust for himself, this gives him the legal estate in the lands during the continuance of the term, absolutely discharged from, and unaffected by, any of the purchases, mort- gages, and other, incumbrances subsequent to the creation of the term, but prior to his purchase. This is the meaning of the expression in assignments of terms, that they are to protect the purchaser from all mesne incumbrances.' It may be made a question, whether, and to what extent, the legal rights of trustees are barred or affected by the new Statute of Limitations, 3 & 4 Will. 4, c. 27, s. 2 and 6. The author is not aware of any judicial decision on this point, which is one of great importance, affecting most materially the advantages resulting from terms assigned to attend the inheritance. At law, every term is a term in gross. The owner of the fee is tenant at will to his own trustee. Freeman v. Barnes, 1 Ventr. 80 ; Dighton v. Grecnvil, 2 Ventr. 329. The term is anxiously assigned to attend the inheritance ; it does accordingly attend the inheritance, and the performance of the very service for which it was created never can be a ground for defeating its legal operation. Upon principle, therefore, a term of years assigned to attend the inheritance ought not to be presumed to be surrendered, unless there has been an enjoyment inconsistent with the existence of the term, or some other act done in order to disavow the tenure under the termor, and to bar it as a continuing interest. The universal practice, not to require the assignment of attending terms on descents or settlements, proves unequivocally the opinion of the profession, that the possession of the heir, and of the person claiming under the settlement, is in law the possession of the trustees of the term. Docs then a subsequent purchase, without the purchaser's taking an assignment of the term, let in the presumption of the surrender of the term ? The term was assigned to attend the inheritance, and in trust for the party, his heirs and 428 Title XII. Trust. Ch. III. s. 62. assigns. If the possession of the heir and his family under the settlement was not ad- verse to the title of the termor, how can the title of the purchaser be so ? The event — if the event is to be looked at on which this question hinges — shows that he required the protection of the term more than any of the former owners ; and if his acts are to be adverted to, we shall find him anxiously obtaining a further assignment of the term. TJiere is a continued enjoyment under the original trusts, which embraces all the persons who have successively enjoyed the estate. Does, then, the appearance of the adverse claimant weaken the [purchaser's case 1 So far from it, that, in the great majority of the cases in the books, the protection was not sought for until the necessity for it appeared. These cases show the rules of equity which flow from the anxiety of the Courts to strengthen the title, and protect the possession of purchasers ; but if at law the outstanding term is to be presumed to be surrendered, they will no longer afford any protection to purchasers. The doctrine, that the mortgagor shall not set up an attendant term against the mortgagee, does not warrant the presumption of a surrender in this case. In the former case, there are only the rights of the mortgagor and mortgagee still in question, and the presumption is made in favor of the mortgagee ; the claim of a third party does not intervene. But does it follow that a surrender should be presumed, not as between mortgagor and mortgagee, but as between two innocent mortgagees, both claiming under the same mortgagor, where one, after the execution of both mortgages, has obtained an assignment of the term ? The objection is, not that a surrender cannot be presumed against an owner of the inheritance, but that the presumption ought not to be made against a purchaser of the inheritance, where the contest is between him and incumbrancers claiming under the seller, but of whose claims he had no notice. The rule, that, where trustees ought to convey to the beneficial ownei-, a jury may presume such a conveyance, in order to prevent a just title from being defeated by mere matter of form, is not denied to be a wise one, but it does not apply to the case under dis- cussion ; for, in this case, the trustees ought not to surrender the term. To do so, would be to commit a breach of trust ; and the presumption, if it is made, has not the merit of preventing a just title from being defeated by a mere matter of form, but lets in one title to the destruction of another, where the equities are at least equal." 1 The author then cites the following cases in confirmation of the position for which he is contending: — "VVilloughby v. Willoughby, 1 T. E. 772; Goodtitle d. Norris v. Morgan, 1 T. R. 755; Doe d. Hodsden v. Staple, 2 T. R. 684; Keene d. Byron v. Deardon, 8 East, 248; Doe d. Graham v. Scott, 11 East, 478; Evans v. Bicknell, 6 Ves. jan. 184, 185; and Maundrell v. Maundrell, 10 Vcs. jun. 246. See Best on Presumptions, § 113, 114, 115. The learned author then cites and reviews the opposing cases of Doe v. "Wrighte, 2 B. & A. 710, and Doe v. Hilder, Id. 782, and proceeds to observe that — "The principle laid down in these cases has not only not been followed in practice, but been condemned by high authority ; by Lord Eldon, in the Marquis of Townsend v. The Bishop of Norwich, 3 Sugd. V. & P. 61 ; Hayes v. Bailey, Id. 62, 10th ed. ; Cholmondeley r. Clinton. Id. 63 ; and Aspinall v. Kempson, Id. 65. It was doubted by Richards, C. B., and Graham, B., in Doe d. Newman v. Putland, Id. 59, 60, 61 ; and it should seem, also, by Sir T. Plumer, in Cholmondeley v. Clinton, 2 Jac. & W. 158. In Aspinall v. Kempson, in particular, Lord Eldon, in speaking of the case of Doe d. Putland v. Hilder, said, ' I have no hesitation in declaring that I would not have directed a jury to presume a surrender of the term in that case; and, for the safety of the titles to the landed estates in this country, I think it right to declare, that I do not concur in the doctrine laid down in that case.' Subsequent to all these occurred the case of Doe d. Blacknell v. Plowman, 2 B. Title XII. Trust. Ch. III. s. 62. 429 & Ad. 573, which was an ejectment tried before Bayley, J., in which a verdict was returned for the plaintiff, subject to a special case, which stated the follow- ing circumstances: — In January, 1787, the residue of a satisfied term, created in 1772 was assigned to trustees to attend the inheritance. The inheritance was pur- chased in 1789 by Susannah Blacknell, and the term assigned to trustees in trust for her, her heirs and assigns, and in the mean time to attend the inheritance. Susannah Blacknell entered into possession, and continued so until her decease, in 1816. The present ejectment having been brought by the lessor of the plaintiff as heir at law to Susannah Blacknell, the defendant set up the term, and the question was, ought a surrender of it to be presumed from the circumstance that it was un- noticed both in a marriage settlement entered into by Susannah Blacknell, in 1808, in which the property in question was settled to various uses, and in her will, dated in December, 1813? This case having come on to be argued before the Court in banc, it was contended, on the part of the lessor of the plaintiff, that, the term being so old, and the purposes for which it was created having been answered, and it not having been mentioned either in the marriage settlement or will of Susannah Blacknell, a surrender ought to be presumed. On Doe v. "VVrighte and Doe v. Hilder being cited as authorities in point, Lord Tenterden, (who, it will be remem- bered, delivered the judgment in Doe v. Hilder.) observed, — 'The doctrine laid down in those cases, I believe, has been much questioned. Is such a term as this usually noticed in a marriage settlement ? ' And on receiving an answer in the nega- tive, his lordship said, — 'If that be so, there is no ground for presuming that this term, which was assigned to attend the inheritance, was ever surrendered.' Parke, Littledale, and Taunton, JJ., concurring, judgment was given accordingly for the defendant. '■ It is to be observed, that, in the case of Doe v. Plowman, the term was allowed to defeat, not a purchaser, but the heir at law, for whose benefit it was vested in the trustees. ' Since the decision in Doe v. Hilder,' continues Sir Edward Sugden, ' the point has been repeatedly debated before the different Masters in Chancery, upon objections taken by sellers to procure representations to terms of years which, they insisted, ought to be presumed to have been surrendered; but the general and prevailing opinion has been, that the doctrine cannot be maintained, and the Masters have acted on that principle. TVe may, therefore, be justified in considering the law to stand as it did before the decision in Doe v. Hilder ; and conveyancers of course will follow the advice of Lord Eldon, in the case of the Marquis of Townsend v. Bishop of Norwich, already cited, and not depart from the practice which they have hitherto followed.' Sugd. V. & P. 64, 65, 10th ed. " It seems, however, that in equity a term which has not been assigned to attend the inheritance, and which has not been disturbed for a long time, will be presumed to be surrendered, on a question of specific performance between seller and purchaser. Id. 66, citing Emery v. Grocock, Madd. & G. 54, and Ex parte Holman, MS. 24, July, 1821. " Whether, in cases of this nature, the jury arc bound to believe in the fact which they profess to find, has been made a question ; and there certainly are authorities both ways. Mr. Starkie thus expresses himself on the point : — ' These presump- tions are the mere artificial creatures of law, depending entirely on considerations of legal policy and convenience ; they are pare legal rules ; the jury being, for this purpose, mere passive instruments in the hands of the Court.' 3 Stark. Ev. 918, 3d ed. It is hardly correct to say that these presumptions are 'pure legal rules;' they are of a mixed nature, resting partly on their intrinsic probability, and partly on legal expediency ; and, indeed, the same author, in another place, says, — ' The 430 Title XII. Trust Ch. III. s. 62. very mention of the proposition is absurd, that a jury, who are bound by their oath to pronounce according to the evidence, should decide contrary to their solemn conviction, on any collateral suggestion of convenience ; as, for instance, because a purchaser is a favorite, either in a court of law or equity.' Id. 926, n. (m). It is beyond all question that the practice of advising juries to make artificial pre- sumptions has been carried too far. See supra, part 1, chap. 3, art. 39 ; Doe d. Fenwick v. Ecad, 5 B. & A. 232 ; and Day v. Williams, 2 C. & J. 460. Indeed, Bichards, C. B., is reported to have said, that he never desired a jury to pre- sume when he did not believe himself; — Doe d. Newman v. Putland, 3 Sugd. V. & P. 61: — and a similar opinion has been expressed in another case, by Bayley, B., Day v. Williams, 2 C. & J. 461. This is going a great way ; the learned Judges might fairly be asked, whether they would think it necessary to believe in the surrender of a satisfied term, set up by a mortgagor against nis mortgagee, before they would advise a jury to presume it surrendered. Upon the whole, it may, perhaps, be safely laid down, that as in all presumptions of this nature, legal considerations more or less predominate, the jury ought to find as advised by the Judge, unless the fact appear absurd or grossly improbable, in which case, as he ought not to advise them to find, so neither ought they to find it." Best on Presumptions, § 119 — 122. The subject is copiously treated by Mr. Coventry, in his note to 2 Powell on Mortg. p. 491, a, to p. 510, Band's ed. See also Dutch, &c. v. Mott, 7 Paige, 77 ; Matthews v. Ward, 10 G. & J. 443. 431 CHAP. IV. ESTATE AND DUTY OF TRUSTEES. Sect. 1. Estate of Trustees. Sect. 40. Bound to reimburse the Ces- !>. Duty of Trustees. tui que trust. 9. Their 'Acts not prejudicial to AS. Have no Allowance for Trust. Trouble. 10. Exception— Conveyance with- 46. But allowed all Costs and out Notice. Expenses. 15. Where Purchasers are bound, 50. Trustees seldom permitted to to see Trusts performed. \ purchase the Trust Estate. 22. Where they are not bound. 61. Refusing to act, must release 30. Where the Receipts of the \ or disclaim. Trustees are sufficient. 62. Discharged, and others ap- 37. Trustees have equal Power. ' pointed. 39. Can derive no Benefit from the Trust. I Section 1. Trust estates having been at first considered as similar to uses before the Stat. 27 Hen. VIII., trustees were con- sequently held to be in the same situation as the ancient feoffees to uses. But this was soon altered ; and the Court of Chancery, in the exercise of their jurisdiction over trusts, has avoided the inconveniences that arose from leaving the legal estate in the feoffees to uses. 2. One of the principal of these was, that the estates of the feoffees to uses became subject to all their legal incumbrances. But upon the establishment of trusts it became settled, that trustees only held the legal estate for the benefit of the cestui que trust ; and that the legal estate was not subject to any of the incumbrances of the trustees; to their specialty or judgment debts ; to the dower of their widows, or ihe curtesy of their husbands, (a) 3. Where a trustee is attainted of felon?/, the legal estate is forfeited: but the cestui que trust is entitled to relief in equity. * In the case of attainder for high treason, it does * 448 (a) 1 P. Wms. 278. 2 P. Wms. 318. Noel v. Jevon, 2 Freem. 43, 432 Title XII. Trust. Ch. IV. s. 3—5. not appear to have been settled whether the cestui que trust has any remedy against the crown. [But the better opinion seems to be that he has: the cestui que trust forfeits the estate for treason, and it would not be consonant with justice that the trustee should forfeit it for the same offence ; and as Baron Atkyns argued in Pawlet v. Attorney- General, it would derogate from the king's honor, that what is equity against a common person, should not be equity against him.] (a) 4. Where a trustee dies without heirs, by which the lands escheat, either to the crown or to a subject, it . seems to be doubtful whether the lord by escheat holds the lands discharged of the trust or not ; the authorities, however, appear to prepon- derate in support of the proposition that the lord holds the lands discharged, (b) 1 5. With respect to the duty of trustees, it is still held, in con- formity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of trust. 2 So that the Court of Chancery will com- (a) Carter's R. 67. Pawlet v. Att'y-Gen., Hard. 465. See also the arguments in Burgess v. Wheate, 1 W. Bl. ICO. Tit. 30. (b) Hard. 461. Lane, 39, 54. Tit. 30. 1 In Maryland, it has been held that equitable as well as legal estates are liable to escheat ; and; that upon the escheat of the trustee's estate, the State or its assignee bears the same relation to the cestui que trust that the trustee did. Matthews v. Ward, 10 G. & J. 443. In some of the United States, it is provided by statute that all escheated lands, when held by the State, shall be subject to the original trusts, as before the escheat. New York, Rev. Stat. Vol. I. p. 718, § 2, 2d cd. In others, the same liability would seem to result by fair implication, from their statutes respecting escheats. See Massachusetts, Eev. Stat. ch. 108, § 8, 9 ; Arkansas, Rev. St. 1837, ch. 57, § 10—13, 23, p. 363, 364 ; Connecticut, Rev. St. 1838, tit. 30 ; Mississippi, How. and Hutch. Dig. ch. 34, § 79—84; Missouri, Rev. St. 1845, ch. 58, § 12, 13, 23—26, p. 463, 465; Illinois, Rev. St. 1839, p. 280, 281, § 2, 6 ; Delaware, Rev. St. 1829, tit. Escheats, p. 200, § 5 ; Kentucky, Rev. St. 1834, tit. 73, § 5, Vol. I. p. 621. In most of the statutes of Escheats, there is an express saving of the claims of aliens ; and it is hardly to be supposed that the legislature intended to place these claims on a better foundation than the title of a native cestui que trust. And on the whole, it is conceived that no State in the Union would now hold escheated lands discharged of the trust. See 4 Kent, 425, 426 : 1 Lo- max, Dig. 611. * In England, by the Statute of 4 and 5 Will. 4, ch. 23, whenever the estate of the trustee escheats, the property is now made subject to the control of Chancery, for the benefit of the cestui que trust. And see Lowe's estate (In re) 36 Leg. Obs. 389. 2 The words in a will, " in trust in the first place," arc merely words of order and method, and do not necessarily import priority of duty or obligation. Nash v. Dillon, 1 Moll. 236. Title XII. Trust. Ch. IV. s. 5—9. 433 pel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land. 2. To execute such conveyances as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. 6. The necessity that the trustee should execute conveyances of the land arises from this circumstance ; that as the legal estate is vested in him, and he is considered in the courts of law as the real owner, it * follows, that although the * 449 cestui que trust can alone dispose of his equitable interest, yet he cannot convey the legal estate without the concurrence of the trustee. But where the cestui que trust has the absolute inter- est in the trust, he can compel the trustee to convey the legal estate either to himself, or to any other person in fee simple, (a) 1 7. The cestui que trust is only entitled to a conveyance where the whole subject of the trust belongs to him. For if lands are devised to trustees, in trust to pay annuities ; and subject thereto, in trust for A B ; the legal estate cannot be taken from the trus- tees while the annuities are subsisting, (b)" 8. Where there is a cestui que trust in tail, he may call on the trustee to convey the legal estate to him. And no one can after- wards prevent him from barring the entail ; or the trustee may join with the cestui que trust in barring the entail. But where the cestui que trust is only entitled to an estate tail, the trustee ought not to convey to him in fee simple. (c)f 9. It is a rule in equity, that no act of a trustee shall preju- (a) Ante, c. 2. (&) 2 P. Wms. 1U. (c) 1 Ab. Eq. 384. 2 P. Wms. 131. Boteler v. Allington, 1 Bro. C. C. 72. P Where a trustee had a discretion reposed in him by the will, as to the conveyance of the estate absolutely to the cestui que trust, and the jurisdiction of the Court is made " subject to any provisions contained in the will," and the Court are forbidden to " restrain the exercise of any powers given by the terms of the will " it was doubted whether the Court could overrule the discretion of the trustee and order him to transfer the property to the cestui que trust; and if it had the power, it would be exercised only on the clearest proofs. Morton v. Southgate, 28 Maine, (15 Shep.) 41. A decree cannot require a trustee in conveying property to the cestui que trust, to execute a general warranty deed ; only a special warranty against his own acts should be required. Hoare v. Har- ris, 11 111. 24. See also Dwinelw. Veasie. 36 Maine, (1 Heath.) 509.] - An admininistrator of a trustee cannot sell the trust lands for payment of the debts of his intestate. Robison v. Codinan, 1 Sumn. 121. [t Infant trustees are enabled, by the .-tatutc [I Will. 4, c. GO, which repeals the 7 Ann, c. 19, and the subsequent act-J to convey lands whereof they are seised in trust under the direction of the Court of Chancery. Tit. 32, c. 2.] vol. i. 37 434 Title XII. Trust. Ch. IV. s. 9—13. dice the cestui que trust ; nor will the forbearance of trustees, in not doing what it was their duty to have done, affect the cestui que trust ; since in that case it would be in the power of trustees, by delaying to do their duty, to affect the rights of other persons. Wherefore, the rule in all such cases is, that what ought to have been done, shall be considered as done. And so powerful is this rule, as to alter the very nature of things; to make money land, and land money, (a) 10. There is, however,, one exception to this rule ; for if a trustee be in the actual possession of the estate, which, however, is a case that seldom happens, and conveys it, for valuable con- sideration, to a purchaser, who has no notice of the trust, such purchaser will be entitled to hold the estate against the cestui que trust; because confidence in the person is still deemed necessary to a trust ; and it is a rule in equity, that an innocent person shall not, in general, have his title impeached, (b) 11. If a trustee mortgages the estate to a person who has no notice of the trust, the mortgagee will be allowed to hold 450 * against * the cestui que trust ; because mortgagees are con- sidered as purchasers, and as having a specific lien on the estate ; whereas it has been observed that estates held in trust are not subject to the specialty or judgment debts of the trustee, (c) 12. If a trustee sells to a stranger, who has no notice of the trust, and afterwards repurchases from the stranger for a valuable consideration, he will again become liable to the trust, (d) 1 13. Where a purchaser has notice of the trust, though he pays a valuable consideration, he shall be subject to it. For, as Lord Hardwicke says : " If a person will purchase with notice of another's right, his giving a consideration will not' avail him ; for he throws away his money voluntarily, and of his own free will." (e) 2 (a) 2 P. Wras. 706. 3 P. Wms. 215. Allen v. Saver. Tit. 35. c. 14. (b) Millard's case, 2 Freem. 43. (c) 1 P. Wins. 278. (d) Bovey v. Smith, 1 Vern. GO, 85, 144. Tit. 35. c. 14. (e) Mansell v. Mansell, tit. 16. c. 7. 3 Atk. 238. Pearce v. Newlyn, 3 Madd. 186. f 1 Where the holder of a mortgage assigned it in trust for the benefit of children, and afterwards accepted a reassignment of it from the assignee in trust, he was held accountable as a trustee to the cestui que trust. Gilchrist v. Stevenson, 9 Barb. Sup. Ct. 9.] [- Hallet v. Collins, 10 How. U. S. 174. Property to which a trust has attached. will be subjected to the trust in the hands of a purchaser for value, who has constructive Title XII. Trust. Ch. IV. s. 14—19. 435 14. So, if a trustee conveys an estate to a stranger without any consideration; though the person to whom it is conveyed has no notice of the trust, yet he will be liable to it. (a) f 15. We have seen that a purchase from a trustee, with notice of the trust, is a fraud, even though the purchaser should pay a valuable consideration. But where a trustee is authorized to sell, such a purchase cannot be fraudulent. There are, however, many cases in which a purchaser, with notice of the trust, is answerable for the trustee, and therefore bound to see that his money is applied in execution of the trust, (b) 16. Thus, where a person conveys or devises his estate to trustees, upon trust to sell it, for payment of certain debts speci- fied in the deed or will, or in any schedule thereto annexed ; a purchaser will in that case be bound to see that his money is applied in payment of those debts, (c) ! 17. So, where a decree was made for the sale or mortgage of an estate, with a direction that the money should be applied in payment of debts which were ascertained by the report of the Master, Lord Hardwicke held, that a purchaser under that decree, was bound to see to the application of his money, (d) 18. Legacies stand upon the same ground as specified or scheduled debts ; therefore a purchaser must see that his money is applied in payment of them. 19. It is the same where estates are conveyed or as- signed to trustees, upon * trust to sell, and apply the * 451 money for any particular or specific purpose ; a purchaser of the estate, with notice of the trust, is bound to see to the application of the money. For if the purposes to which it is directed are not fulfilled by the trustees, the estate will be still liable to them, in the hands of the purchaser. («) 2 Salk. 680. 1 Vera. 149. (b) Post, § 30. (c) Dunch v. Kent, 1 Vera. 2G0. Spalding v. Shalmer, Id. 301. () f 61. Where a trustee refuses to accept a trust, the usual practice is to require him to release all his estate and interest to the other trustees ; or to execute a deed of disclaimer. Where he releases, he has been considered as having, in the first instance, accepted the trust ; and, therefore, as to that part of such trust as consisted of personal confidence, he could not transfer it to the other trustees, (c) 62. It has been stated that the Court of Chancery will not suffer a trust to fail for want of a proper trustee ; therefore, if a trustee refuses to accept of a trust, that Court will interpose ; and either appoint a new trustee ox take upon itself the. execution of the trust, (d) 1 63. A person devised all his lands to two trustees, upon trust («) Morse v. Royal, 12 Ves. 355. (b) Ante, \ 59. 13 Ves. 601. (c) Tit. 32. c. 27. Crowe v. Dicken. Nicloson v. Wordsworth, 2 Swan. 305. 3 Bar. & Aid. 31. Ante, s. 35, 30. (d) Ante, c. 1. || In Lees v. Nuttall, 1 Iluss. & M. 53, it was decided that if an agent employed to purchase an estate, becomes the purchaser himself, he is to be considered as a trustee for his principal.] 1 The like power is exercised in Chancery, in the United States, as belonging to its general jurisdiction ; but in several of the States the subject is regulated by statutes. See 4 Kent, Comm. 311. In England, provision for the appointment of trustees is made by Stat. 1 Will. 4, ch. 60; which has been held to apply, although the instru- ment creating the trust contains an express provision for the appointment of new trus- tees. See Foxhall, in re, 2 Phill. 281; Bowles v. Weeks, 14 Sim. 591; Bennett v. Burgis, 5 Hare, 295; 10 Jur. 153; llyley, in re, 3 Hare, 614. [A Court of Equity will 38* 450 Title XII. Trust. Ch. IV. s. 63—67. to sell and pay his debts. One of the trustees desired to relin- quish the trust, and the other was willing to accept it. The Court of Chancery directed that the trustee, who desired to re- linquish, should release to the other, (a) 64. In a subsequent case the Court of Chancery removed a trustee, though he was willing to act, his co-trustees having re- fused to join with him in the execution of the trust, (b) 65. In a late case a decree was made that a woman who was a trustee, but who had married a foreigner, should be discharged from the trust, though she denied any intention of quitting the kingdom, and desired to continue in the trust. The Court said there was great inconvenience in a married woman's being a trustee, (c) 66. In all modern deeds of trust there is a proviso, that in case of any of the trustees dying, or being desirous of relinquish- ing the trust, or becoming incapable 1 of acting ; a new trustee shall be appointed, either by the cestui que trust, or the other trustees ; and that the property shall be conveyed to such new trustees, jointly with the remaining trustees-! Where this clause 461 * * is omitted, the Court of Chancery will appoint a new trustee. 2 67. By a private act of parliament, estates were vested in three (a) Travel r. Danvers, Finch, 380. (i) Uvedale v. Ettrick, 2 Cha. Ca. 20. (c) Lake v. Delambert, 4 Ves. 592. not substitute for a trustee appointed by a will, another, resident in a foreign jurisdic- tion, without security for the faithful discharge of his duties, and the sureties must be amenable to the jurisdiction of the Court. Ex parte Robert, 2 Strobh. Eq. 86. A trus- tee, who from long continued intemperance, has become unfit to have charge of the trust property, will be removed and a new trustee appointed. Bayley v. Staats, 1 Halst. ch. 513 ; Jones, Matterof,4 Sandf. Ch. 615 ; Russell's trust, 1 Eng. Lav/ and Eq. Rep. 225 ; Tyler's trust. 8 lb. 96 ; Snyder v. Snyder, 1 Md. Ch. Dec. 295 ; Berry v. William- son, 11 B. Mon. 245 ; Harris v. Rucker, 13 lb. 564.] 1 [The term " incapable," in such connection, has reference to personal incapacity, and the power of appointing a new trustee cannot be exercised where a trustee having be- come bankrupt, had been indicted for not surrendering, and had gone abroad. Watts, ex 'parte, 4 Eng. Law and Eq. Rep. 67 ; Turner v. Maule, 5 lb. 222; Harrison's trusts, 15 lb. 345.] [t Where a trustee of personal property, upon his retiring from the trust, transfers the trust funds to another trustee not duly appointed according to the power, he con- tinues answerable to the cestui que trust. Wilkinson v. Parry, 4 Russ. 272.]" - [An unmarried woman conveyed her real and personal estate to A in trust to pay over the income thereof to her during her life, and on her decease to convey the prop- erty as she should appoint ; and reserved the power, except while she should be a mar- Title XII. Trust. Ch. IV. s. 67. 451 trustees, upon trust to sell, &c. Mr. Scott, one of the trustees, being appointed attorney-general of Upper Canada, executed a release. A bill was filed against the two remaining trustees, praying a reference to the Master to appoint a new trustee. It was said to be a common case ; and the Court referred it to a Master to appoint a new trustee, (a) (a) Buchanan v. Hamilton, 5 Ves. 722. vied woman, to revoke all the trusts conveyed by this settlement, and dispose of the property at her pleasure ; and the settlement provided that the said trustee might re- sign at pleasure, and that the settler might nominate a new trustee, and that said A should transfer all the trust property to such new trustee, who should thenceforth have and exercise all the rights and powers, and be subject to all the duties thereby vested in or imposed upon, said A. It was held that the power of appointment reserved to the settler was not exhausted by one appointment of a trustee on A's resignation, but that on the resignation of such new trustee, she might make another appointment, and that if such appointee was a fit person, the Court would order the trust property to be conveyed to him. Bowditch v. Banuelos, 1 Gray, 220.] DIGEST THE LAW OF REAL PROPERTY. BY WILLIAM CRUISE, ESQ. BARRISTER AT LAW. REVISED AND CONSIDERABLY ENLARGED BY HENRY HOP LEY WHITE, ESQ, BARRISTER AT LAW, OF THE MIDDLE TEMPLE. FURTHER REVISED AND ABRIDGED, WITH ADDITIONS AND NOTES FOR THE USE OF AMERICAN STUDENTS, BY SIMON GREENLEAF, LL.D. EMERITUS PROFESSOR OF LAW IN HARVARD UNIVERSITY. IN SEVEN VOLUMES. VOLUME II. CONTAINING Title 13. Estate on condition. 14. Estate by statute mer- chant, &c. 15. Mortgage. 16. Remainder. Title 17. Reversion. 18. Joint tenancy. 19. Coparcenary. 20. Tenancy in common. second edition. BOSTON: LITTLE, BROWN AND COMPANY 1856. Entered according to Act of Congress, in the year 1856, By James Greenleaf, the Clerk's Office of the District Court of the District of Massachnsetts . RIVERSIDE, CAMBRIDGE." PRIXTED BY H. O. HOUGHTON AXD COMPANY. CONTENTS OF THE SECOND VOLUME. TITLE XIII. ESTATE OK CONDITION. CHAP. I. Nature and different Kinds of Condition. Sect. 1. Nature of Conditions 3. Expressed or implied 6. Precedent or subsequent 9. To what Estates annexed 10. At what Time 13. A Condition must defeat the whole Estate 15. Can only be reserved to the Donor 18. What Conditions are void 19. Conditions against Law . 20. Repugrfant to the Nature of the Estate 29. Whether in such cases a Bond is good 34. Conditions of Non-alienation sometimes good 38. But are construed strictly 42. Do not extend to an Underlease 44. Unless there are special Words 4G. A Sale by Execution is not an Alienation 48. Unless there is Collusion 50. A Lease may determine by Bankruptcy 53. Conditions against Marriage . Gl. Are construed strictly 66. Widows may be restrained from Marriage Star page. 2 id. id. 3 id. id. 4 id. id. id. 7 id. 8 9 10 11 12 14 19 22 CONTENTS OF VOL. II. CHAP. II. Of the Performance and Breach of Conditions. Sect. 1. How a Condition is to be performed 6. Who may perform it 10. At what Time .... 12. At what Place .... 15. Who are bound to perform it 18. Effect of its Performance 19. What will excuse a Non-performance 29. Where Equity relieves against Condition 35. Where it will not relieve 39. Entry for a Condition broken 46. Who may enter .... 50. Grantees of Reversions 52. Effect of such Entry 56. Does not defeat Copyhold Grants . 58. Apportionment of Conditions 60. How a Condition may be destroyed 64. Distinction between a Condition and a Limitation - Slar page. 23 24 25 26 id. 27 id. 30 31 32 33 34 35 36 id. 37 id. TITLE XIY ESTATE BY STATUTE MERCHANT, STATUTE STAPLE, AND ELEGIT. 1. Estates held as a security for Money 38 6. Statute of Acton Burnell 39 7. Statute Merchant id 10. Statute Staple . 40 13. Recognizance ......... 41 14. Judgment and Elegit ........ 42 20. When Judgments bind Lands ...... 43 23. Judgments must be docketed ....... 44 29. Execution upon a Statute or Recognizance . . ... 46 34. Execution upon a Judgment ....... 48 41. Priority of the Crown in Executions . . . .49 49. What may be extended . . . . . . .51 52. Terms for Years 52 57. Trust Estates 53 60. What is not Sable to an Extent 54 65. These Estates are only Chattels ...... id. 68. Must be executed by Entry 55 74. Remedies upon Eviction 56 81. How long they may endure ....... 59 84. How they are determined ....... 60 94. A Statute, &c. will protect a Purchaser .... 63 CONTEXTS OP VOL. II. TITLE XV. MORTGAGE. CHAP. I. Origin and Nature of Mortgages. Sect. 1. Origin of Mortgages .... 7. Interposition of the Court of Chancery . 11. Description of a Mortgage 16. Mortgages in Fee, or for Years 19. Welsh Mortgages .... 20. Equitable Mortgages .... 21. All Restraints on Redemption are void . 82. Unless there is an Agreement for a Purchase 38. Cases of Conditional Purchases 42. A Power of Sale may be given to a Mortgagee Star page. 64 66 67 68 69 id. id. 72 74 78 CHAP. II. Several Interests of the Mortgagor and Mortgagee. 1. What is the nature of the Mortgagor's Estate 4. Cannot commit Waste ...... 5. Nor make Leases ...... 9. After Forfeiture has an Equity of Redemption 10. The Mortgagee has the legal Estate 12. Entitled to Rent after Notice .... 14. Subject to Covenants ...... 15. Cannot commit Waste . 18. Nor make Leases ...... 20. A Renewal of a Lease will be a Trust for the Mortgagor 21. Must account for the Profits ..... 30. An Assignee only entitled to what is really due 32. A Mortgage is Personal Estate .... 36. Unless the Intention be otherwise .... 39. But the Land must be reconveyed 80 81 id. id. id. 84 85 86 id. id. id. 89 id. 90 id. CHAP. III. Equity of Redemption. 1. Nature of 3. May be lost by Fraud . 5. Similar to a Trust Estate VOL. I. 39 92 93 id. VI CONTENTS OF VOL. II. Sect. 8. Is alienable, devisable and descendible 9. May be mortgaged and charged 11. Subject to Curtesy ..... 13. But not to Dower ...... 15. Unless the Mortgage be for Years . 1G. Subject to Crown Debts .... 17. Is Assets in Equity ..... 22. And sometimes Legal Assets .... 24. Effect of Devise for Payment of Debts . 26. Who may redeem ..... 27. A subsequent Incumbrancer 30. A Dowress, Jointress, and Tenant by the Curtesy 33. The Crown 35. Whoever redeems must do Equity 56. No precise Time is fixed for Redemption 57. But twenty years' Possession is a Bar 62. Exceptions : I. Where there is a Disability 68. II. Where an Account has been settled . 72. III. Where the Mortgage has been acknowledged 77. IV. Where no Time is appointed for Payment 84. V. Where the Mortgagor continues in possession 88. VI. Where there is Fraud in the Mortgagee . 90. Committees of Lunatic Mortgagees may convey Star paga. 94 id. 95 97 102 id. 103 104 id. id. id. 105 id. 106 113 id. 114 116 117 118 121 122 id. CHAP. IV. Payment of the Mortgage Money and Interest. this Rule 1. The Personal Estate first liable 4. Even in favor of a Devisee .... 9. A Disposition of the Personal Estate will not alter 10. Nor a Charge on the Real Estate . 15. Lands devised for Payment of Debts are applied 19. And also Lands descended .... 21. The Personal Estate may be exempted . 25. A specific Gift of a Chattel will exonerate it . 27. When the Personal Estate not liable 28. I. Where the Debt was contracted by another 30. Though there be a Covenant to pay it . 34. Or a Charge on the Real Estate 36. II. Where an Equity of Redemption is purchased 41. Unless the Purchaser makes the Debt his own 43. Mortgages by Husband and Wife . 53. Effect upon the Wife's Right where the Equity of Redemption is not reserved to her ...... 54. Contribution between Tenant for Life and Remainder-man 56. Where Tenant for Life or in Tail pays off a Mortgage . 58. Interest ......... 123 124 125 id. 126 128 136 137 138 id. id. 140 142 143 id. 148 149 id. 150 CONTEXTS OF VOL. II. Vll Sect. 63. Interest upon Interest not allowed 65. Exceptions.— I. Where a Mortgage is assigned 66. II. Where there is an Account stated .... 67. Or settled by a Master 68. III. Where the time is enlarged 70. IV. Where the parties are Infants .... 72. Interest by Mortgagee in possession after Mortgage satisfied 74. Who are bound to pay Interest 79. Mortgage Money is payable to the Executor . Star page. 152 id. id. 152 153 id. id. 154 155 CHAP. V. Order in lolrich Mortgages are paid, and means of gaining a Priority. 1. Mortgages paid according to Priority 5. But not preferred to Statutes, &c. . 7. Legal Incumbrances preferred to Equitable ones 9. Where Possession of the Deeds gives a Priority 17. A defective Mortgage not preferred to a second effective one 19. But will be preferred to Bond Debts, &c. 22. Priority may be lost by Fraud 28. Of Tacking subsecpaent to prior Incumbrances 29. Effect of obtaining a prior Term for Years 33. Where a Declaration of Trust of a Term is sufficient 35. How far an Incumbrance will protect 40. At what time a prior Incumbrance may be got in 45. Of notice ....... 46. Direct notice . . • • " - 55. Constructive notice ..... 157 158 159 163 167 id. 169 170 id. 186 187 188 194 id. 195 CHAP. VI. Foreclosure. 1. Nature of 5. A Foreclosure binds an Entail 7. How far Infants are bound by it . 11. Married Women are bound by it . 12. Decrees of Foreclosure sometimes opened 14. A Sale sometimes decreed 197 198 id. 199 id. id. via CONTENTS OP VOL. II. TITLE XVI. REMAINDER. Sect. 2. 8. 10. 11. 24. 25. 32. 33. 34. 35. 44. 49. 56. 60. 62. 63. 75. 83. CHAP. I. Nature and different Kinds of Remainders. Star he shall so long live Remainders . Vested Remainders Contingent Remainders Different kinds of . Exceptions Limitation to A. for ninety years, i Rule in Shelley's case Limitation to the right Heirs of the Grantor Heir sometimes a descriptio personce What kind of uncertainty renders a Remainder contingent An intervening Remainder may be contingent, and a subse quent one vested ...... Two contingent Fees may be limited in the alternative But no Estate after a Remainder in Fee can be vested Unless it be a contingent determinable Fee A power of appointment does not suspend Remainders Effect of a Contingency annexed to a preceding Estate Adverbs of time only denote the period when a Remainder is to vest in Interest A Contingency sometimes considered as a condition subsequent CHAP. II. Event upon tvhich a Contingent Remainder may be limited. 2. It must be a legal act ..... . 4. And potentia propinqua ..... 9. Not repugnant to any Rule of Law 10. Nor contrarian t in itself ..... 16. It must not operate to abridge the particular Estate 29. Conditional Limitations ...... 35. Estates may be enlarged on condition CHAP. III. Estate necessary to support a Contingent Remainder. 1. It must be a Freehold ....... 11. Unless the Remainder is for years ..... 13. A right of entry to a Freehold is sufficient page. 202 203 204 id. 206 id. 208 id. 209 id. 216 217 220 id. 221 id. 225 228 230 id. 232 id. 234 238 239 241 244 id. CONTENTS OF VOL. II. IX Sect. Sur p;1 -'- 17. But it must be a present right 245 19. Both Estates must be created by the same Instrument . . 246 24. Where the le^al Estate is in Trustees, there needs no other preceding Estate • • • • • • • .24/ CHAP. IV. Time when a Contingent Remainder must vest. A Contingent Remainder must vest during the particular- Estate 249 Or the instant it determines Posthumous Children take as if born A vested Remainder may take Effect, though the preceding Estate be defeated • 19. A Remainder may fail as to one part, and take effect as to another ....•••••• 22. A Remainder may take effect in some, though not in all . 250 251 255 id. 256 CHAP. V. < Remainders limited by way of Use, and Contingent Uses. 1. Remainders by way of Use . . • • • • 10. There must be a particular Estate to support the Remainder 15. Will divest in favor of Persons becoming entitled 18. Contingent Uses 20. Springing Uses 26. Shifting Uses 32. Shifting Clauses in Settlements 37. Out of what Seisin they arise 258 261 262 id. 263 264 266 267 CHAP. VI. How Contingent Remainders and Contingent Uses may be destroyed. 1. Determination of the particular Estate before the Contingency 8. A Conveyance by way of Use will not destroy a Remainder 9. Nor a Conveyance by cestui que trust 10. A Forfeiture sometimes destroys a Remainder 13. An Extinguishment of the particular Estate destroys it 15. And also an Alteration in its Quantity . 28. How Remainders by way of Use are destroyed 29. Where created without Transmutation of Possession 33. Where created by Transmutation of Possession 38. How Springing and Shifting Uses are destroyed 49. Observations on the Doctrine of the Scintilla Juris 39* 2 C,\ I 270 id. id. 271 id. 274 id. 276 277 282 CONTENTS OF VOL. II. CHAP. VII. Trustees to preserve Contingent Remainders. Sect. Star page. 1. Invention of. . . . . • . ' . 285 6. A Conveyance by them is a Breach of Trust . . . 286 8. Sometimes not punished for destroying Contingent Remainders 288 11. Sometimes directed to join in destroying them . . . 290 16. In other cases such direction refused 293 25. Bound to preserve Timber, &c. . . . . . .301 CHAP. VIII. Other Matters relating to Remainders. 1. "Where Contingent Remainders are limited, the Inheritance remains in the Grantor ....... 12. How far this doctrine is applicable to Common-Law Convey- ances ....... 14. Contingent Remainders are transmissible 18. Exception to this Rule ..... 20. A Contingent Remainder may pass by Estoppel 22. May be assigned in Equity .... 23. And devised by Will . 326 330 331 332 333 id. id. TITLE XVII. REVERSION. 1. 334 11. Arises from- the Construction of Law ..... 336 13. Is a vested Interest ........ id. 16. But may be divested 337 18. Incidents to Reversions ....... id. 21. After Estates for Years are present Assets .... 338 24. After Estates for Life are quasi Assets ..... id. 27. After Estates Tail are Assets when they come into possession 339 28. And liable to the Bond Debts of the Settlor .... id. 32. And also to Leases ........ 360 35. All particular Estates merge in the Reversion, except Estates Tail 362 CONTENTS OF VOL. II. TITLE XVIII. JOINT TENANCY. CHAP. I. Nature of an Estate in Joint Tenancy. Sect. 1. Estates in Severalty .... 2. In Joint Tenancy ..... 11. Circumstances required to this Estate 12. Unity of Interest ..... 16. Unity of Title 17. Unity of Time ..... 26. Unity of Possession .... 27. Joint Tenancies go to the Survivor 33. Not favored in Equity .... 38. Who may be Joint Tenants 45. Husband and Wife cannot be Joint Tenants 51. Not subject to Curtesy or Dower . 53. Joint Tenants cannot charge their Estates 57. Except by Lease 59. In what Acts they must all join 63. The Possession of one is that of the other 64. Remedies against each other Star pajre. 363 364 366 id. 367 id. 369 id. 370 372 373 375 id. 376 id. 377 id. CHAP. II. How a Joint Tenancy may be severed and destroyed. 2. Destruction of the Unity of Interest 8. Of the Unity of Title . 9. Of the Unity of Possession . 10. By Alienation to a Stranger . 19. Exception. — Devise 20. By an Agreement to Alien 22. By the Alienation of one Joint Tenant to the other 29. By voluntary Partition . 30. By Writ of Partition 38. By Partition in Chancery 41. By an Agreement to make Partition 4G. By devolving to one Person . 378 379 id. 380 382 id. id. 384 id. 388 389 390 CONTENTS OF VOL. II. TITLE XIX. COPARCENARY. Sect. 1. How this Estate arises . 3. Properties of Coparceners 7. The Possession of one is that of the 10. Subject to Curtesy and Dower 11. Destroyed by Alienation 12. By voluntary Partition . 20. By Writ of Partition 26. What may be divided by it 28. By Partition in Chancery 29. Incidents after Partition 33. By Descent to one of them other Star pasre. 391 id. 392 394 id. id. 395 396 397 id. 398 TITLE XX. TENANCY IN COMMON. 1. Description of 3. How created . . . • 8. Incidents to this Estate 14. The Possession of one is that of the 21. Subject to Curtesy 23. And to Dower 26. As to Dower, with respect to Real Estate being Property .... 30. Destroyed by voluntary Partition 31. By Writ of Partition . 34. By Partition in Chancery 38. n. By Partition under an Inclosure Act 39. "By uniting all the Titles DIGEST OF THE LAW OF REAL PROPERTY, TITLE XIII. ESTATE ON CONDITION. BOOKS OF REFERENCE UNDER THIS TITLE. Blackstone's Commentaries. Book II. ch. 10. Kent's Commentaries. Lect. 57. Coke upon Littleton, Lib. 3, cap. 5, fol. 201, a. — 237, a. Thomas Platt. A Practical Treatise on the Law of Covenants. Part I. ch. 2, sect. 5. Id. Part II. ch. 1, 2. Owen Flintoff. On the Law of Real Property. Vol. II. Book I. ch. 6. Richard Preston. Essay on Abstracts of Title. Vol. II. p. 185 — 198. Comyns's Digest. Tit. Condition. W. Sheppard. Touchstone of Common Assurances. Ch. VI. CHAP. I. NATURE AND DIFFERENT KINDS OF CONDITIONS. CHAP. II. OF THE PERFORMANCE AND BREACH OF CONDITIONS. CHAP. I. NATURE AND DIFFERENT KINDS OF CONDITIONS. Sect. 1. Nature of Conditions. 3. Expressed or Implied. 6. Precedent or Subsequent. 9. To what Estate annexed. 10. At what Time. Sect. 13. A Condition must Defeat the whole Estate. 15. Can only be Reserved to the Donor. 18. What Conditions are Void. 466 Title XIII. Estate on Condition. Ch. I. s. 1—4. Sect. 19. Conditions against Lena. Sect. 46. A Sale by Execution is not 20. Repugnant to the Nature of j an Alienation. the Estate. 48. Unless there is Collusion. 29. Whether in such Cases a I 50. A Lease may determine by Bond is good. Bankruptcy. 34. Conditions of Non-alienation I 53. Conditions against Mar- sometimes good. 38. But are construed strictly. 42. Do not extend to an Under- lease. 44. Unless there are special Words. riage. 6 1 . Are construed strictly. 66. Widows may be restrained from Marriage. Section 1. A condition is a qualification or restriction annexed to a conveyance of lands, whereby it is provided, That in case a particular event does or does not happen ; or in case the grantor or grantee does, or omits to do, a particular act; an estate shall commence, be enlarged, or defeated. Conditio dicitur cum quid in casum incertum qui potest tendere ad esse, ant non esse, con- fertur. (a) 2. A condition annexed to an estate given, is a divided clause from the grant, therefore cannot frustrate the grant precedent ; nei- ther in any thing expressed, nor in any thing implied, which is, of its nature, incident to, and inseparable from, the thing granted, (b) 3. Conditions are either in deed, that is, expressed in the deed by which they are created ; or else in law, that is, implied by the common or statute law. Thus, where a feoffment or lease is made, reserving rent, payable at a certain day, with a proviso, that if it is not paid on that day, the feoffor or lessor may re- enter ; this is a condition in deed, (c) 4. Conditions implied are those which are created by the common or statute law, without any express words : — Thus, to the grant of every estate is annexed, by law, a condition implied, that the grantee shall not commit felony or treason. And Lord Coke says, there is a condition in laiv annexed to every estate tail after possibility of issue extinct, estate by the curtesy, in dower for life or years, that if the tenants of these estates alien in fee, 1 or claim in a Court of Record a greater estate, they shall (a) 1 Inst. 201, a. {b) Hob. 170. (c) Lit. s. 325. 1 This doctrine applies only to alienations by feoffment ; and not to deeds of bargain and sale, and other conveyances, which derive their effect from the Statute of Uses. See, on the subject of forfeiture of estates for these causes, ante, tit. 3, ch. 1, § 36. Title XIII. Estate on Condition. Ch. 1. s. 4—6. 467 forfeit them ; and the persons in remainder or reversion may enter, (a) 5. As to conditions in law, founded upon statutes, it is enacted by the several laws against mortmain, that the grantee of an estate in fee shall not alien it to an ecclesiastical corporation. And by the Statute of Marlbridge, tenants for life and years hold their estates upon condition not to commit waste. 6. Conditions are also Precedent or Subsequent : — Thus, where a condition must be performed before the estate can commence, it is called a condition precedent. But where the effect of a condition * is either to enlarge or defeat an estate al- * 3 ready created, it is then called a condition subsequent? (a) Lit. s. 325. 1 Inst. 233, b. 1 Whether conditions are precedent or subsequent, depends on the intent of the parties, to be collected from the nature of the case. The rules for finding the intent are the same with those in regard to covenants ; in speaking of which, Lord Mansfield observed, that " their precedency must depend on the order of time in which the intent of the transaction requires their performance." Kingston v. Preston, 1 Doug. 689, 691 . These rules, as deduced from all the adjudged cases, have been thus stated by Serj. Wil- liams : — " 1. If a day be appointed for the performance of any act, and such day is to happen or may happen before the performance of the act which is the consideration for the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring performance of the consideration ; for it appears that the party relied upon his remedy, and did not intend to make the per- formance a condition precedent ; and so it is when no time is fixed for the performance ef the consideration. 2. But when the day appointed for the payment of money or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of the condition. 3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be brought for a breach of the covenant by the defendant, without averring per- formance ; and when a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should, therefore, be permitted to enjoy that part without either paying or doing any thing for it ; and, therefore, the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover damages for not receiving the whole con- sideration. 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions and dependent. 5. Where two acts are to be done at the same time, neither party can maintain an action without showing performance or an offer to perform his part." See 1 Saund. 320, note (4), by Williams ; Tompkins v. Elliot, 5 Wend. 497, per Savage, C. J. See also Barruso v. Madan, 2 Johns. 148, per Spencer, J.; Brockcnbrough v. Ward, 4 Rand. 352 ; Johnson v. Beed, 9 Mass. 78 ; Gardiner v. Corson, 15 Mass. 500; Couch v. Ingersoll, 2 Pick. 292; Finlay v. King, 3 Pet. 340, 374; Howard v. Turner, 6 Greenl. 106 ; Green v. Thomas, 2 Fairf. 318 ; Piatt on Covenants, ch. 2, sec. 5. As to mutual covenants, see farther, Green v. Bey- 468 Title XIII. Estate on Condition. Cli. I. s. 7—13. 7. Where a particular estate is limited, with the condition that upon the performance of a certain act, or the happening of a certain event, the person to whom the estate is limited, shall thereupon have a larger estate than what was originally limited to him ; such a condition is precedent, and good under certain circumstances, which will be noticed in a subsequent title, (a) 8. With respect to the words by which conditions may be created, they will be stated hereafter, (b) 9. A condition in deed may be annexed to every species of estate and interest in real property ; to an estate in fee, in tail, for life, or years, in any lands or tenements. 10. As to things executed, a condition must be created and an- nexed to the estate at the time of the making of it, not at any time after. Therefore, where a condition is made in a separate deed, it must be sealed and delivered at the same time with the prin- cipal deed, (c) 11. In a celebrated case which was heard in parliament, 2 Rich. II., it appeared that King Edward III. had made a feoff- ment in fee to the Duke of Lancaster and others, without any condition ; and afterwards required the feoffees to perform cer- tain conditions. All the Judges and Serjeants being summoned, and required to give their opinion on this case, declared that the feoffees were not obliged to perform the conditions ; because they were not expressed at or before the time when the feoffment was made, (d) 12. As to the things executor?/, such as rents, annuities, [leases,] &c, it is held that a grant of them may be restrained by a condition created (by act of both parties) after the execution of such conveyance, (e) 13. It is a rule of law that a condition must defeat or deter- mine the whole of the estate, to which it is annexed ; not deter- to) Tit. 16, c. 2. (b) Tit. 32, c. 25. (c) 1 Inst. 236, b. Shep. Touch. 126. (d) Rot. Pari. vol. 3, p. 61. (e) 1 Inst. 237, a. Shep. Touch. 126, 396. 2 Prest. Con. 199, 1st ed. Infra, s. 38, n. nolds, 2 Johns. 207 ; Jones ». Gardner, 10 Johns. 266 ; Gazley v. Price, 16 Johns. 267 ; Hardin v. Kretsinger, 17 Johns. 293; [McCullough v. Cox, 6 Barb. Sup. Ct. 386; Houston v. Spruance, 4 Harring. 117;] Hunt v. Livermore, 5 Pick. 395 ; Pomroy v. Gold, 2 Met. 500 ; Robertson v. Robertson, 3 Rand. 68 ; Bean v. Atwater, 4 Conn. R. 3 ; Sewall v. Wilkins, 2 Shepl. 168 ; Brown v. Gammon, lb. 276. See post, tit. 32, cli. 25, § 10, note. Title XIII. Estate on Condition. Ch. I. s. 13—17. 469 mine it in part only, and leave it good for the residue. There- fore if a feoffment be on condition that upon such an event the feoffor shall enter and have the land for a time ; or the estate shall be void for part of the time ; or a lease be for ten years, provided that upon such an event it shall be void for five years ; these conditions are not good. But if a feoffment be made of two acres of land, provided that upon such an event the estate shall be void as to one acre only, this is a good condition, (a) * 14. In consequence of this principle, it has been ad- * 4 judged that a condition to determine an estate tail, as if the tenant in tail were dead, was void ; because the death of a tenant in tail did not determine the estate tail, but his death without issue, (b) 15. A condition or the benefit of a condition, can only be re- served to the donor, feoffor, or lessor, and their heirs ; not to a stranger. For it is a maxim of law, that nothing which lies in action, entry, or reentry, can be granted over ; in order to dis- courage maintenance. And when, in the creation of a condition, no words of limitation are mentioned, the law will reserve the benefit of the condition to the heirs of the donor, feoffor, or lessor ; for as these are the persons prejudiced by the disposition, it is but reasonable that they should be entitled to the same means of recovering the estate as their ancestors. 16. Thus Littleton says, if a man lets land to another for life, by indenture, rendering rent, with a condition of reentry in de- fault of payment ; if, afterwards, the lessor grants the reversion to a stranger, and the tenant for life attorns, such grantee cannot take advantage of the condition, as the lessor or his heirs might have done, if the reversion had continued in him. But now by the statute 32 Hen. VIII. c. 34, grantees of reversions, and privies in estate, are enabled to take advantage of the breach of conditions, of which an account will be given in the next chapter, (c) 17. In a modern case, where A being possessed of a term for years, assigned his whole interest to B, subject to a right of re- entry, on the breach of a condition, the Court of K. B. held that A might enter for the condition broken, although he had no reversion, (d) (a) 1 Rep. 86, b. Shep. Touch. 127. (i) .Tcrmin r. Arscott, 1 Rep. 85. 6 Rep. 40. (c) Lit. s. 347. (d) Doe v. Bateman, 2 Barn. & Aid. R. 108 vol. i. 40 470 Title XIII. Estate on Condition, Ch. I. s. 18—21. 18. Conditions are sometimes void in their creation, as where they are impossible, or something is required to be done which is contrary to the divine or municipal law.^ 19. All the instances of conditions against law are reducible under one of these heads : — 1. To do something that is malum in se, or malum prohibitum, 2. To omit something that is a duty. 3. To encourage such crimes and omissions. And the law will always' defeat conditions of this kind, without any re- gard to circumstances, being concerned to remove all temptations and inducements to those crimes, (a) 20. A condition, repugnant to the nature of the estate to which it is annexed, is void in its creation. Thus, a feoffment 5 * in fee, * upon condition that the feoffee shall not take the profits, is void, as repugnant and against law ; and the estate given is absolute. (b)~ 21. A lease was made to A, B, and C, with a proviso that if (a) 1 P. Wms. 189. (b) 1 Inst. 206, b. 1 If the condition is subsequent, and performance is rendered impossible by the act of the feoffee or covenantee, or other party in whose favor it is to be performed, it be- comes void. U. States v. Arredondo, G Pet. 691, 745 ; Whitney v. Spencer, 4 Cow en, 39. If it is impossible at the time of its creation, as, to pay money at a day which is already past, the condition is void: but if it be a mortgage, the remedy in Equity is still preserved. Hughes v. Edwards, 9 Wheat. 4S9, 49;!. 2 Where a devise was upon condition that the devisee should make no change in the disposition of the estates devised, during his life, the condition was held repugnant to the nature of the estate, and void. Taylor v. Mason, 9 Wheat- 325, 350. So, where the testator devised his estate to his children, in case they inhabit the town of H., these words were held void, whether regarded as a condition or a limitation ; as being both repugnant to the nature of the estate, and also unreasonable, uncertain, and nugatory, there being no limitation over. Newkerk v. Newkerk, 2 Caines, 345. So, if the con- dition of a devise be that the land shall not be subject to conveyance or attachment, it is a void condition. Blackstone Bank v. Davis, 21 Pick. 42. See also Scovell v. Ca- bell, Cro. El. 107; Hob. 170; 2 Roll. Abr. 453, 454; 1 Shep. Touchst. 129, 131 ; Gray v. Blanchard, 8 Pick. 284. [A grant was made on the express condition that the gran- tees, within a limited time, should build and finish, on the granted premises, a church or meeting-house for the public worship of God, and also a suitable dwelling-house for the clergyman, and a school-house, and in case such buildings were not finished within the time, the estate was to revert to the grantors. The buildings were built and finished within the time. The deed contained another and distinct condition that the land thereby conveyed should be forever thereafter appropriated to the maintenance and support of the public worship of God, as therein before specified, and to no other uses or purposes whatever; otherwise to revert, &c. Held, that the last condition was repug- nant to the foregoing parts of the deed ; and as the former condition was more favorable to the grantees it should stand, and the latter condition be held void. Canal Bridge v. Methodist Society, 13 Met. 335.] Title XIII. Estate on Condition. Ch. I. s. 21—25. 471 C should demand any profits of the lands, or enter into the same during the life of A or B, (who were his father and mother,) that then the estate limited to C should cease and be utterly- void. It was resolved that this was a condition, and was void, being repugnant to the estate limited, (a) * 22. A condition annexed to the creation of an estate in fee simple, that the tenant shall not alien, is void ; 2 being repugnant to the nature of the estate ; a power of alienation being an inci- dent inseparably annexed to an estate in fee simple. But Little- ton says, if the condition be such that the feoffee shall not alien to sueh a one, naming him, or to any of his heirs, which does not take away all power of alienation, then such condition is good, (b) 23. A condition annexed to the gift of an estate tail, that the donee shall nut marry, is void ; for without marriage he cannot have an heir of his body. It would be otherwise if such a con- dition were annexed to the grant of an estate in fee simple ; for in that case a collateral heir may inherit, (c) 24. Whatever is prohibited by law may be prohibited by con- dition. Therefore, if a feoffment be made in fee, upon condition that the feoffee shall not alien in mortmain, this is a good con- dition, because such alienation is prohibited by law. Lord Coke observes, that in ancient deeds of feoffment in fee simple, there was a clause — Quod licitum sit donatori rem datam dare vel ven- dere cui voluerit, exceptis viris religiosis et Jndceis. (d) 25. If a man makes a feoffment to a husband and wife in fee (tail,) upon condition that they shall not alien ; to some intent this is good, and to some intent void. 3 For to restrain an aliena- tion by feoffment or deed is good, because such an alienation is tortious and voidable ; but to restrain their alienation by fine, (a) Moor V. Savill, 2 Leon. 132. (6) Lit. s, 360, 361. 8 Terra R. 61. 10 P.ar. & Cress. 433. 1 Inst. 223, a. Doe v. Pear- son, tit. 38, c. 9. (M' Williams v. Nisby, 2 S. & R. 513. Hawley ». Northampton, 8 Mass. 37.) (c) Jenk. 243. Dyer, 343, b. {d) 1 Inst. 223, b. 1 A condition that the lessee shall not sell or dispose of any wood or timber off and from the demised premises, without consent of the lessor, in writing, is held good. Verplank v. Wright, 23 Wend. 500. 2 f A proviso restraining alienation annexed to a life-estate, is void, as much as if annexed to an estate in fee. Rochford v. Hackman, 10 Eug. Law & Eq. Rep. 64.] 3 In the United States, such a condition would probably now universally be held void. Vid. tit. 2, ch. 2, § 44. 472 Title XIII. Estate on Condition, Ch. I. s. 25—31. was repugnant and void ; f because it was lawful and unavoid- able, (a) 26. If lands be given in tail, upon condition that neither the tenant in tail, nor his heirs, shall alien in fee, or in tail, or for the term of another's life, but only for their own lives, 6 * such a * condition is good ; because these alienations are contrary to the Statute De Donis. (b) 27. So, if a person make a gift in tail, upon condition that the donee shall not make a lease for three lives or twenty-one years, according *to the statute 32 Hen. VIII., the condition is good ; for this power being given collaterally, is not incident to the estate, and may, therefore, be restrained by condition, (c) 28. But where an estate tail was created with a condition that the tenant in tail should not suffer a common recovery, the condi- tion was void ; because the right to suffer a common recovery, was an incident inseparably annexed to an estate tail, [previously to the recent statute.] (d) 29. Lord Coke says, although a condition repugnant to the nature of the estate granted is void ; yet that in all such cases a bond, by which the obligor is restrained from doing that which the nature of the estate granted entitled him to do, will be good, Thus, if a feoffee in fee becomes bound in a bond not to take the profits of the land, or not to alien the estate, such a bond would be good. 1 And the same law was held by the Court of Chancery in the following case, (e) 30. A father settled lands upon his son in tail, and took a bond from him that he would not dock the entail. On a bill to be relieved against this bond, the Court held it good ; because, if the son had not agreed to give the bond, the father might have made him only tenant for life, (f) 31. This doctrine appears extremely questionable, as it offers an obvious mode of restraining a person from those rights over an estate which the common law gives him ; consequently, of (a) 1 Inst. 223, b. (b) Lit. s. 362. Tit. 2, c. 2. (c) 1 Inst. 223, b. (d) 1 Inst. 223, b. Stat. 3 & 4 Will. 4, c. 74. (e) 1 Inst. 206, b. (f) Freeman v. Freeman, 2 Vera. 233. [ t Before the Stat. 3 & 4 Will. 4, c. 74.] 1 This distinction is now exploded ; for whether alienation by a tenant in fee simple be restrained by a condition or a covenant, it is equally against the policy of law, and in either case void. See Piatt on Covenants, part 6, ch. 1 ; The Blackstone Bank v. Davis, 21 Pick. 42 ; M'Williams v. Nisby, 2 S. & R. 513. Title XIII. Estate on Condition. Ch. I. 5. 31—36. 473 frustrating the common law, as fully as if a condition of this kind were allowed to be inserted in a conveyance of land ; and, in some cases, it appears not to have been allowed. 32. Thus, where an elder brother voluntarily gave land to his second brother, and the heirs of his body, remainder to a younger brother in like manner ; and made each of them enter into a statute with the other, that he would not alien, &c. ; but because these statutes were, in substance, to make a perpetuity, they were ordered to be cancelled by the Court of Chancery, with the advice of Lord Coke, (a) 33. So, where A settled lands on B in tail, with remainder to his own right heirs, and took a bond from B not to com- mit * waste, the bond being put in suit, it was decreed to * 7 be delivered up to be cancelled ; the Court saying it was an idle bond, (b) 34. It was formerly held that if a lease was made to a man and his assigns, he could not be restrained from alienation ; but if the word assigns was omitted, he might then be restrained. It is, however, laid down by Lord Coke, that if a person made a lease for life, or years, with a condition that the lessee should not grant over his estate, or let the lands to any other person, it would be good; and this doctrine is now fully established, (c) 1 35. A lease was made for years upon condition that the lessee, his executors or assigns, should not alien, without the assent of the lessor. The lessee died intestate ; the ordinary granted ad- ministration to J. S., who assigned the lease without license. It was adjudged that the condition was broken, for J. S. was an assignee in law. (d) 36. A condition annexed to an estate for years, that if the lessee, his executors or assigns, did demise the land for more than from year to year, then the lease should cease, and be void, was held to be good, (e) (a) Poole's case, Moo. 810. (b) Jervis v. Bruton, 2 Vera. 251. (e) Hob. 170. 1 Inst. 204, a. 223, b. (d) Moore's case, Cro. Eliz. 26. (e) Berry v. Taunton, Cro. Eliz. 331. 1 A condition that the lessee shall not permit more than one family to every one hundred acres to reside on the land, is good. Jackson v. Brownell, 1 Johns. 267. [A condition in a deed that only one single dwelling-house shall be erected on the granted land, is broken by the erection of a building adapted for the accommodation of several families, in distinct tenements, under one roof. Gillis v. Bailey, 1 Foster, (N.H.) 149.] 40* 474 Title XIII. Estate on Condition. Ch. I. 5. 37—40. 37. A condition was inserted in a lease for years, that if the lessee, his executors or administrators, at any time, without the assent of the lessor, his heirs or assigns, did grant, alien, or assign the land, or any part thereof, that then it should be lawful for the lessor and his heirs to reenter. This was held to be a good condition, (a) 38. Conditions of this kind are, however, not favored; for they are held to affect the original lessee only, and not to extend to his assignees. So, that if a lessee who is restrained from alienation, by a condition of this kind, assigns over his term, with the consent of the lessor, such assignee may assign to any other person, without further consent, f 39. The president and scholars of a college at Oxford made a lease for years to one Bold, with a proviso that the lessee 8 * or his * assigns should not alien the premises to any person or persons, without the special license of the lessors. After- wards, the lessors, by their deed, licensed the lessee to alien or demise the land to any person or persons whatever. The lessee assigned the term to one Tabbe, who devised it to his son, who was also his executor. The son entered generally, died intestate, and his administrator assigned the term to the defendant. The president and scholars entered for the condition broken. It was resolved that the alienation by license to Tabbe had determined the condition ; so that no alienation afterwards made by him could be a breach of the proviso, or give the lessors a right of entry ; for the lessors could not dispense with an alienation for one time, and that the same estate should remain subject to the proviso after, (b) 40. George Fox, lessee for ninety-nine years, by indenture, rendering rent, covenanted that he would not alien or assign his term, or any part thereof, to any but his brothers. The lessee («) Pennant's case, 3 Rep. 64. (Jackson v. Brownson, 7 Johns. 232.) (b) Dumpor's case, 4 Rep. 119. [ t A dispensation of a condition once granted, is an entire dispensation, so that by a license to assign once given, the restraint upon alienation ceases. Dumpor's case, ubi supr., and Brummell v. Mackpherson, 14 Ves. 173. But under the learning of Defeasance, a mode may be resorted to, by which the objection generally made to give a license to assign can be obviated; on the assignment with license, a deed of Defeasance should be executed in order to determine the lease on alienation by the assignee. See Shep. Touch. 195; 2 Prest. Con. 199, 1st ed. and Appendix, Form 7.] Title XIII. Estate on Condition. Ch. I. s. 40—43. 475 assigned the terra to one of his brothers, who assigned it over to a stranger. It was resolved, — 1. That this was a condition, and not a covenant. 2. That the assignee was not within the con- dition ; but might alien to whom he pleased, (a) 41. In the case of Berry v. Taunton, the condition was held to be broken by a devise of the land to the lessee's son. But in a subsequent case, where a lessee for years covenanted with the lessor not to assign over his term, without the lessor's consent in writing; and, afterwards, without such consent devised the term to J. S. ; it was said that this was not a breach of the covenant, for a devise was not a lease, (b) 42. Where there is a condition in a lease that the lessee shall not assign it over, without the permission of the lessor ; an under- lease has been adjudged not to be within the condition. 1 43. In a lease for twenty-one years, there was a covenant from the lessee, that he would not " assign,! transfer, or set over, or otherwise do or put away the said indenture of demise, or the premises thereby demised, or any part thereof, to any person or (a) Whiclicot v. Fox, Cro. Jac. 398. {b) (Berry v. Taunton, Cro. El. 331.) Ante, s. 36. Fox''^. Swaan, Styles, 483. 1 Where the condition was, that the lessor "shall not assign over, or otherwise part with this indenture, or the premises thereby leased, or any part thereof, to any person," &c. ; these words were interpreted to mean an assignment of the premises or a part of them for the whole term ; and no forfeiture was incurred by aniRider-lease for a shorter period. Jackson v. Harrison, 17 Johns. 66, 70. And where a lease for life was granted, upon condition that the lessee should not sell or dispose of his estate in the premises without permission of the lessor, it was held, that a lease for twenty years was no forfeiture ; the condition applying only to an alienation of his entire freehold estate. Jackson v. Silvernail, 15 Johns. 278; Jackson v. Brownson, 7 Johns. 227. [A condi- tion in a lease, that it shall be void if the lessee assigns, is valid ; but a lessee under such a condition may associate others with himself in the enjoyment of the term, or may make a sub-lease. Hargrave v. King, 5 Ired. Eq. 430.] But in these and the like cases, there must be in the lease a clause of reentry for breach of the condition ; otherwise an assignment of his whole estate in the premises is no forfeiture of the title of the lessee, but only a ground to claim damages against him. Doe v. Phillips, 2 Bing. 13 ; Spear v. Fuller, 8 N. Ham p. 174 ; Piatt on Covenants, 424. [A condition in a lease, that if the rent shall be in arrear, or if the lessee shall neglect or fail to perform and observe any of his covenants therein, the lessor may, while such default continues, enter, &c., applies to a covenant that the lessee shall not occupy the buildings, or in any manner suffer them to be occupied for dwellings or for any unlawful purpose. Such covenant runs with the land, and is binding upon th'e estate in the hand of the sub-tenants of the lessee, whose use of the same for an unlawful purpose will be a breach of the covenant, and work a forfeiture. Wheeler v. Earle, 5 Cash. 31 .] [t A covenant not to let, set, or demise the premises or any part thereof, for all or any part of the term, restrains an assignment. Grecnaway v. Adams, 12 Ves. 395.] 476 Title XIII. Estate on Condition. Ch. I. s. 43—45. persons whomsoever, without the license and consent of the les- sor." The lessee demised the premises for fourteen years, with- out any license ; it was held that this underlease was not 9 * a * breach, for the Courts had always looked nearly into these conditions, (a) 44. But if a lease contains a proviso that the lessee, his ex- ecutors or administrators, shall not let, set, or assign over the whole or any part of the premises, ivithout leave in writing from the lessor, on pain of forfeiting the lease; an administrator of the lessee cannot make an underlease. Nor would a parol license to let part of the premises discharge the lessee from this restriction. 45. William Gregson demised the premises in question to S. Harrison, his executors, &c. for twenty-one years, with a pro- viso that in case the said Harrison, his executors, or administra- tors, should at any time during the said term set, let, or assign over the demised messuage, or any part thereof, without the license and consent of Gregson, his executors, administrators, or assigns, for that purpose first had and obtained in writing, the lease should be absolutely null and void ; and the lessor might enter. The lessee entered and died ; the defendant took out ad- ministration to him, became possessed of the demised premises, and made a lease of them for nine years. The landlord died, having devised the premises to the lessor of the plaintiff, who brought an ejectment to recover them, as being forfeited by the lease made by the administrator. The defendant proved that Gregson, the lessor, gave liberty by parol to Harrison the tenant, to let the stable, being part of the premises demised : but refused to give the like liberty to demise any other part of the premises. (It was objected, first, that the covenant only extended to an assignment of the whole term ; secondly, that the proviso not to assign did not extend to persons who came into possession by operation of law, but only to prevent an assignment in fact by the party ; and thirdly, that the parol license to let part of the premises destroyed the whole condition. But these objections were overruled, the last being met by the answer that the license, not being in writing, was void ; and judgment was rendered for the plaintiff.) (b) (a) Crusoe v. Bugby, 3 Wils. E. 234. 2 Black. R. 766-. (b) lioe v. Harrison, 2 Term K. 425. Lloyd v. Crisp, 5 Taun. 249. Doe v. Worsley, Title XIII. Estate on Condition, Ch. I. s. 46—49. 477 4G. * Where a lessee covenanted not to alien or transfer * 10 away his lease ; and afterwards acknowledged a judgment, on which the lease was taken in execution and sold ; it was held that this sale was not a forfeiture of the lease, (a) 47. On a trial in ejectment, a verdict was found for the lessor of the plaintiff, subject to the following case : The lessor of the plaintiff demised the premises by lease, in which there was a covenant that the lessee, his executors, administrators, or assigns, should not let, set, assign, transfer, make over, barter or ex- change, or otherwise part with the lease, or the lands, or any part thereof, to any person or persons whatever, without the spe- cial license and consent of the lessor, his heirs or assigns, with a power of reentry in case of alienation. A creditor of *the lessee took from him a warrant of attorney to confess * 11 a judgment, upon which a judgment was entered, and the lease was sold by execution to a person who had notice of the proviso. The lessor brought an ejectment against the purchaser of the lease. Lord Kenyon said there was a distinction between those acts which the party does voluntarily, and those which pass in invitum; that judgments, in contemplation of law, always pass in invitum; that this was not an alienation within the meaning of the covenant ; and judgment was given for the defendant, (b) 48. But where a warrant of attorney to confess a judgment is given by collusion, for the purpose of enabling a creditor to take a lease in execution, it will be deeme•. Von Kapff, 6 G. & J. 372 ; Harris v. Coulbourn, 3 Harringt. 338 ; Vernon v. Smith, 5 B. & Ad. 1, per Best, J. So, of covenants not to build. Sec Norman v. Wells, 17 Wend. 136 ; Watertown v. Cowen, 4 Paige, 510. Though the mortgagee may discharge prior incumbrances, he is not obliged so to do. Marine Bank v. Biays, 4 H. & J. 343. The rule refusing the allowance of lasting improvements in building, has been sub- jected to some exceptions in special cases ; one of which is mentioned by Lord Hard- wicke in Godfrey v. Watson, above cited ; and others have been admitted under the equity arising out of the circumstances of the several cases. See Conway v. Alexander, 7 Cranch, 218; Ford v. Philpot, 5 H. & J. 312; 4 Kent, Coram. 167; Dougherty v. McColgan, 6 G. & J. 275. [McCumber v. Gilman, 15 111. 381. Where the holder of •the equity sees, in silence, the purchaser in good faith making improvements on the premises, he must, when he redeems, pay for the improvements, less the rents and profits. Bradley v. Snider, 14 111. 263 ; Boston Iron Co. v. King, 2 Cush. 400.] In some of the United States, the heads of allowance to the mortgagee, upon redemp- tion of the premises, are specially enumerated in the statutes. Thus, in Maine and Massachusetts, he is to be allowed for reasonable repairs and improvements, and for all taxes lawfully assessed, and for all other necessary expenses. See Maine Rev. St. 1840, ch. 125, § 16; Mass. Rev. St. 1836, ch. 107, § 15. In Rhode Island, he is to be allowed for repairs, insurance, improvements, and other necessary expenses. R. Isl. Rev. St. 1844, p. 198. In New Jersey, no allowance is made to him for his trouble, nor for improvements ; but he is allowed for all taxes paid, and for necessary repairs. Elm. Dig. p. 347, n. 1 Annual rests are not to be made by the Master, unless he is specifically so or- dered by the decree. Webber v. Hunt, 1 Madd. R. 13 ; 3 Power on Mortg. 957, note (T) Title XV. Mortgage. Ch. II. s. 30—32. 591 30. A mortgagee, either before or after he enters into posses- sion, may assign over his mortgage. But, in all such cases, the assignee is only entitled to ivhat is really due on the mortgage at the time of the assignment ; not to what may appear due on the face of the mortgage. It is, therefore, the universal practice to make the mortgagor a party to the assignment ; for otherwise it may happen that the mortgagee, having received a part of the money, may assign the mortgage, in consideration of the whole sum for which it was originally made ; in which case the assignee would be defrauded ; as he could only oblige the mortgagor to pay him what remained due. (a) ] 31. It was held in a subsequent case, that even after an as- signment of a mortgage, payments to the mortgagee, without notice, must be allowed by the assignee ; though the assign- ment of the mortgage (the lands being in Middlesex) was registered, (b) 32. Although the mortgagee enters into possession, yet as long as the right of redemption exists, the mortgage is only con- sidered as personal estate ; the debt being the principal, and the (a) Mathews v. Walwyn, 4 Ves. 118. (Jackson r. Campbell, 5 Wend. 572.) (b) Williams v. Son-ell, 4 Ves. 389. by Coventry. The general rule is, to charge the mortgagee with interest, — 1. Where the mortgage is satisfied, and a considerable balance remains in his hands ; — 2. Where he refuses to account ;— 3. Where he has notice of a subsequent mortgage, to pay which he is requested to apply the balance in his hands. Archdeacon v. Bowes, 13 Price, 353 ; Wilson v. Metcalf, 1 Russ. 530. In other cases, the rule is as stated by Sir Samuel Romilly, and agreed to by Sir Wm. Grunt, M. R., in Davis v. May, 1 Coop. Ch. Cas. 238 ; namely, to cast the debt and interest, on the one hand, and the total amount of rents, without interest, on the other hand, and deduct the one from the other. In general, the Courts do not direct annual rests to be made in the account. The rule is to cast the running interest only ; leaving it to the mortgagor to show a case forming an exception to this rule. The most common exceptions, in which annual rests are made, are, where there was no interest in arrear when the mortgagee took possession ; Shcphard v. Elliott, 4 Madd. R. 254 ; and where the rents considerably exceed the interest. Gould v. Tancred, 2 Atk. 533; Reed i'. Reed, 10 Pick. 398. Where, in the latter case, the interest on the mortgage debt was payable semiannually, the Court directed semiannual rests to be made. Gibson v. Crehorc, 5 Pick. 140. And see Wilson v. Cluer, 3 Beav. 136 ; Binnington v. Harwood, 1 Turn. & Russ. 477; Van Vronker v. Eastman, 7 Met. 157; Post, ch. 4, § 73 ; Horlock v. Smith, 1 Colly. N. C. 287. [Boston Iron Co. v. King, 2 Cush. 400.} 1 Where the mortgagor is a party to the assignment, the sum paid by the assignee, though including interest then due, constitutes a new capital, on which interest is to be computed. See post, ch. 4, § G5. 592 Title XV. Mortgage. Ch. II. s. 32—38. O * O land the accessary. And if the mortgagor does not redeem, the personal representatives of the mortgagee will be entitled to the land, (a) 90 * * 33. A mortgage was forfeited, the heir of the mort- gagee was in possession, and no want of assets : but as the mortgage money was part of the personal estate, the heir was decreed to convey the lands to the administrator of the mort- gagee, (b) 34. In a modern case it was resolved, that lands, held origi- nally under old mortgages, passed by a general devise, though no release of the equity of redemption appeared ; and that there was no equity between the heir or devisee and the personal representative, to convert property from the state in which it is found at the death of the testator, (c) 35. If, however, it appear to have been the intention of the mortgagee that it should not go as personal estate, the personal representatives will not be entitled to it. 36. A testator having a mortgage in fee, devised it to his two daughters and their heirs. One of the daughters dying without issue, her husband and administrator claimed a moiety of the lands, as part of his wife's personal estate ; it being a mortgage not foreclosed, nor the equity of redemption released. The Court said, that although it was a mortgage as between the mortgagor and mortgagee, yet it being the testator's intention that it should pass as real estate, it must go to the deceased daughter's heir at law. (d) 37. Mr. Garret being indebted to his brother, devised to him a mortgage for a larger sum, for which he had got a decree of fore- closure, but died before the account was taken, or the mortgagor absolutely foreclosed. Lord King declared that the lands in mortgage, being devised as real estate, should be considered as such, between the devisor and devisee; therefore, though the legacy was greater than the debt, it should not go in satisfaction of it, but if assets fell short, it was still to be considered as per- sonal estate, for the payment of debts, (e) 38. It is said by Lord Mansfield, that " a mortgage is a charge upon land ; and whatever would give the money will carry the (a) Treat, of Eq. B. 3, c. 1, <§ 13. (b) Ellis v. Guavas, 2 Chan. Ca. 50. (c) Att.-Gen. v. Bowyer, 5 Ves. 300. (d) Noys v. Mordaunt, 2 Vern. 531. (e) Garret v. Evers, Mos. Rep. 364. Title XV. Mortgage. Ch. II. s. 38—39. 593 estate in the land along with it, to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts ; it will go to executors ; it will pass by a will not made and executed with the solemnities required by the Statute * of Frauds. The assignment of the debt, or for- * 91 giving it, will draw the land after it, though the debt were forgiven only by parol ; for the right to the land would follow, notwithstanding the Statute of Frauds." (a) 39. This passage can only mean that mortgages are so far out of the Statute of Frauds, at the payment of the debt converts the mortgagee into a trustee for the mortgagor ; who, by an ap- plication to the Court of Chancery, may obtain a decree to com- pel the mortgagee to reconvey, or assign the lands by proper assurances ; not that the payment of the money shall, of itself, have the effect of restoring the legal estate to the mortgagor, without any conveyance, (by (a) Martin v. Mowlin, 2 Burr. 978. (&) {Ante, c. 1, § 14. Post, c. 4, § 81, note.) i In the United States, the doctrine supposed to be most prevalent is, that by pay- ment of the debt by the mortgagor, the estate of the mortgagee is annihilated. This is universally agreed to be the case, where the mortgagor has remained in possession of the land, and the debt is paid before condition broken. If payment has been made, though after breach, it is a good defence to an action at law, by the mortgagee, to re- cover possession ; at least in those States where, before a writ of habere facias can be issued, the amount due on the mortgage is first to be ascertained, and a day allowed to the mortgagor to pay it ; and such provision, in substance, though in various forms in practice, exists in many of the States. For, as was observed by Story, J., " unless the mortgagor can resist a recovery by the mortgagee at law, he may be turned out of pos- session, when nothing is due on the mortgage, against the plainest principles of justice, and be driven by a circuity of action to enforce his acknowledged rights. If a cent only be due on the mortgage, the mortgagee can obtain no judgment at law in his suit, but a conditional one, and no possession at all if that cent is paid ; and yet, if nothing is due, his rights are absolute, and he is entitled to an unconditional surrender of the possession. I confess," added he, "I do not understand the reasoning upon which such a distinction can be maintained." 3 Mason, R. 527. Such was held to be the law in Maine, in Gray v. Wass, 1 Greenl. 257, 261, and Vose v. Handy, 2 Grcenl. 322 332 333 approved in Gray v. Jenks, 5 Mason, R. 520 ; see also Crosby v. Chase, 5 Snepl. 369; [Furbush v. Goodwin, 5 Foster, (N. H.) 425. Where a deed absolute on its face was decreed to be a mortgage, and the mortgage was paid, the Court in equity ordered the grantor and grantee to release the estate to the person equitably en- titled to it, with covenants of warranty against all persons claiming under them or either of them. Howe v. Russell, 36 Maine, (1 Heath,) 115 ; Carter v. Walker, 2 Ohio, N. S. 339.] And such is now held to be the law in Massachusetts. Wade v. Howard, 11 Pick. 289. The law is held in the same manner, on general grounds, irrespective of positive statutes, in Maryland; Morgan v. Davis, 2 Har. & McIIcn. 17 ; Faxon v. Faul, 50* 594 Title XV. Mortgage. Ch. II. 5. 40. 40. In the case of a mortgage in fee, the proviso in all modern deeds is, that upon payment of the money at the time specified, the mortgagor shall reconvey the estate. Now, in this case, even a strict performance of the condition will not operate so as to 3 Har. & McHen. 399 ; and in New York, Jackson v. Davis, 18 Johns. 7, 12 ; Jackson v. Blodget, 5 Cowen, 202; Rosevelt v. Stackhouse, 1 Cowen, 122; Avnot v. Post, G Hill, 65; Jackson v. Crafts, 18 Johns. 110. So, in New Jersey, Dcnn v. Spinning, 1 Halst. 471 ; Harrison v. Eldridge, 2 Halst. 407 ; Van Meter v. Van Meter, 3 Am. Law Journ. 152, N. S. And in Vermont ; Harvey v. Hurlburt, 3 Verm. 561, semble ; Barnes v. Beach, 3 Washb. 146 ; Burton v. Austin, 4 Verm. 105. And in Pennsylvania ; Kinley v. Hall, 4 W. & S. 426 ; Hodgdon v. Naglee, 5 W. & S. 217. And in Ohio ; Perkins v. Dibble, 10 Ohio R. 433 ; Walk. Intr. p. 304, 305. [See also Mason v. Hearne, 1 Busbee, Eq. (N. C.) 88.] But it is held otherwise in Connecticut; Sage v. Phelps, 2 Day, 151 ; Doton v. Russell, 17 Conn. 11. 146; and in Kentucky; Breckenridgc v. Brooks, 2 Marsh. 337 ; Breckenridge i\ Ormsby, 1 Marsh. 257 ; and in Virginia ; Faulkner v. Brockenbrough, 2 Rand. 225 ; 1 Lomax, Dig. 335, 336. In New Hampshire, the same doctrine has been held, as in Maine ; but it was placed by the Court mainly upon the language of the statute,' which declared that upon pay- ment or tender thereof within a time limited in the statute, the deed should be utterly void. Swett v. Horn. 1 N. Hamp. 332 : and see Willard v. Harvey, 5 N. Hamp. 252 ; [Heath v. West, 6 Foster, N. H. 191.] For the law of payment and tender, see 2 Greenl. on Evid. tit. Payment, § 516—536 ; Ibid. tit. Tender, § 600—611, a. In several of the States, provision is made by statutes for the discharge of mortgages bv the entry of satisfaction in the margin of the registry. See Massachusetts, Rev. St. 1836, ch. 59, § 33, 34 ; Maine, Rev. St. 1840, ch. 125, § 28 ; New Hampshire, Rev. St. 1842, ch. 131, § 5, 6 ; Vermont, Rev. St. 1839, ch. 60, § 29—31 ; Rhode Island, Rev. St. 1844, p. 260; New York, Rev. St. Vol. II. p. 45, 3d cd. : Elm. Dig.LL. New Jersey,?. 86, LL. Pennsylvania, by Dunlop, p. 35 ; Delaware, Rev. St. 1829, p. 92 ; Michigan, Rev. St. 1837, p. 261 ; Stat. 1839, No. 115, § 13, p. 219; Ohio, Rev. St. 1841, p. 270; Indiana, Rev. St. 1843, ch. 29, § 69, 70 ; Illinois, Rev. St. 1839, p. 155, 156 ; Missouri, Rev. St. 1845, ch. 122; Mississippi, Rev. St. 1840, ch. 34, § 33,34; Alabama, Toulm. Dig. p. 238; Arkansas, Rev. St. 1S37, p. 580. In Massachusetts, Vermont, Rhode Island, Pennsylvania, Delaware, Michigan, and Missouri, the neglect or refusal of the mortgagee to make such discharge, upon request, renders him liable to an action for whatever damages the mortgagor may sustain therefrom. In Illinois, Mississippi, Alabama, and Arkansas, a similar liability is enacted ; but the damages are limited, not to exceed the amount of the mortgage money. In the other States, where this mode of discharge is provided, it seems left at the option of the parties, and, therefore, no action is given by statute for refusal. Upon this provision, an argument was raised, in the case of Gray v. Jenks, before cited, in favor of the existence of a legal estate in the mortgagee, after payment ; on the ground that a release was thus recognized as essential to restore the title to the mortgagor. " But the whole argument," said Mr. Justice Story, " giving it its full latitude, falls far short of the cogency which is attributed to it. In respect to the statute action on the case, it lies only for such damages as may arise from the refusal to discharge the mortgage after satisfaction ; but it does not necessarily sup- Title XV. Mortgage. Ch. II. s. 40. 595 revest the legal estate in the mortgagor, without a reconveyance; and where the condition is not strictly performed, the case is much stronger, (a) x Where 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. And it is agreed that where the money is not paid at the time specified, the term becomes absolute, and must be surren- dered or assigned. In the case of ancient mortgages, a court of justice might pre- sume a reconveyance of the legal estate ; but this presumption admits the necessity of such reconveyance, (b) (a) Harrison v. Owen, 1 Atk. 520. (b) Tit. 12, c. 2. pose, that such mortgage constitutes a legal title. The existence of a satisfied mort- gage may throw a cloud over a title, to the injury of the owner, and may prevent a profitable sale. The evidence of payment is liable to be lost, or may exist only in pais, and depend upon the testimony of witnesses, whose death may take place long before a legal presumption of satisfaction can arise. No person can be insensible to the value of a clear unincumbered title apparent upon the face of the public records ; nor of the inconvenience of subjecting purchasers to the unravelling of accounts between mortgagors and mortgagees. The law, therefore, may wisely re- cpuire, that what is a charge upon record should, when discharged, be evidenced by an instrument of as high verity, not only as a preventive of litigation, but as a security of title, even though the charge were extinguished at law ; as equity some- times orders instruments to be delivered up, upon which there would be a good defence at law. A construction of the statute epiite as natural as that contended for at the bar is, that it supposes the mortgage extinguished at law by payment, and means only to provide a remedy for damages sustained by the refusal of the mort- gagee to put an acknowledgment of such payment on record." 3 Mason, R. 526. The general doctrine above stated, was clearly maintained by that eminent jurist, Chancellor Kent. See 4 Kent, Comm. p. 193—196, 4th ed. It may be further remarked, that the practice, almost universal in the United States, is to insert in the mortgage deed, whether of a freehold or a chattel interest, a proviso, that, on payment of the money at the time mentioned, the deed shall be void. And as the time of performance is not of the essence of this contract, and may be waived by parol, the acceptance of the money after the day amounts to a waiver of the time, and is a substantial performance of the condition. 1 In American mortgages, the proviso most usual, is, that the deed shall be void. See the preceding note. A mortgagor cannot compel the mortgagee to rcconvey the premises, prior to the time fixed for repayment of the mortgage-money ; although he should tender the full amount of principal and interest due at the time of the tender. Brown v. Cole, 9 Jur. 290. 596 CHAP. III. EQUITY OP REDEMPTION. Sect. 1. Nature of. 5. Similar to a Trust Estate. 8. Is alienable, devisable, and descendible. May be mortgaged and charged. Subject to Curtesy. But not to Dower. Unless the Mortgage be for Years. Subject to Crown Debts. 17. Is Assets in Equity. 22. And sometimes legal Assets. Effect of a Devise for Pay- ment of Debts. Who may redeem. A subsequent Incumbrancer. A Dowress, Jointress, and Tenant by the Curtesy. 33. The Crown. 9. 11. 13. 15. 16. Sect. 35. Whoever redeems must do Equity. 56. No precise Time is fixed for Redemption. 57. But twenty Years' Possession is a bar. 62. Exceptions. I. Where there is a Disability. 68. II. Where an Account has been settled. 72. III. Where the Mortgage has been acknowledged. 77. IV. Where no Time is ap- pointed for Payment. 84. V. Where the Mortgagor con- tinues in Possession. 88. VI. Where there- is Fraud in the Mortgagee. 90. [Committees of Lunatic Mort- gagee may convey.~] Section 1. We have seen that when the money borrowed on mortgage is not paid at the time specified, the mortgage becomes forfeited at law, and the legal estate absolutely vested in the morto-a o 'ee ; but that the Court of Chancery still allows the mort- gagor a reasonable time to redeem, on payment of the principal, interest, and costs; which is called an equity of redemption. 1 1 In those American States in which the cognizance of mortgages is vested in courts of general chancery jurisdiction, the rules of English law, stated in the text, form the general outline of the course of administering justice. But in very many of the States these rules, and the course of practice, are modified to a considerable extent by statutes. In Maim and Massachusetts, the land may be redeemed by a tender of the amount due, at any time within three years after entry of the mortgagee for the purpose of fore- closure, or other equivalent proceeding ; or, by a bill in chancery, or statute process in the nature of a bill, without a tender. And in the latter State, if the money tendered is Title XV. Mortgage. Ch. III. s. 2—3. 597 2. An equity of redemption is a mere creature of a court of equity, founded on this principle, that as a mortgage is nothing more than a pledge for securing the repayment of a sum of money to the mortgagee, it is but natural justice to consider the owner- ship of the land as still vested in the mortgagor, subject only to the legal title of the mortgagee ; so far as such legal title is necessary to his security. 3. By the statute 4 William & Mary, c. 16, it is enacted, that if any person shall borrow money, &c, or become indebted for any other valuable consideration, and for the payment thereof shall voluntarily give a judgment, statute, or recognizance, and shall afterwards borrow any other sum of money, or for any other valuable consideration become indebted to such other, and for se- curing the repayment and discharge thereof shall mortgage lands to the second lender, or to any other person in trust for him, and shall not give notice to the mortgagee of such judgment, &c, in writing, before the execution of the said mortgage or mortgages, such mortgagor shall have no benefit in the equity of redemption of the lands mortgaged, unless such mortgagor or his heirs, upon notice given by the mortgagee in writing, under his hand and seal, attested by two witnesses, of such former judgment, &c, shall within six months, pay off and discharge the same, and cause the same to be vacated and discharged ; and if any person, who shall once mortgage lands for a valuable consideration, shall again mortgage the same lands, or any part thereof, to any per- son, the former mortgage being in force, and shall not discover in writing, to the second mortgagee, the first mortgage, such refused by the mortgagee, the mortgagor may recover the land if he sues within a year. [On a bill to redeem, where the mortgagee had entered to foreclose for non-payment of interest, and pending the bill to redeem, the principal of the mortgage debt had become due, it was held, that the mortgagor, in order to redeem, must pay the whole sum due, principal and interest. Adams v. Brown, 7 Cush. 222 ; Stewart v. Clark, 11 Met. 384 ; Mann v. Richardson, 21 Pick. 355.] In several of the States, the common-law doctrine that a performance, or tender of performance, discharges the lien of the creditor, is ex- pressly applied by statute to mortgages, rendering the title of the mortgagee thenceforth void. Such is the case in New Hampshire ; in which State the mortgagor may redeem by performance or tender, after as well as before the breach of the condition. See Maine, Rev. St. 1840, ch. 125, § 6, 16; Mass. Rev. St. 1836, ch. 107, § 15—20; N. Hamp. Rev. St. 1842, ch. 131, § 4, 13. And seepost, ch. 6, § 1, note. In those States where the foreclosure is by sale of the lands, the sales are in most cases directed to be made in the same manner as sales on executions issued on judgments at law ; for which see ante, tit. 14, § 97, note. 598 Title XV. Mortgage. Ch. III. 5. 3—7. mortgagor shall have no relief, or equity of redemption, against the second mortgagee. 1 Provided, that this act shall not extend to bar any widow of any mortgagor of her dower, who did not legally join with such husband in such mortgage, or otherwise lawfully exclude herself. 4. It has been determined on the construction of this statute, 1. That if a mortgage becomes irredeemable by this statute, it will remain so in the hands of an assignee, though assigned in consideration of the principal, interest, and costs due thereon. 2. That if a subsequent mortgagee redeem such a mortgage, he shall hold the estate irredeemable. 3. That if there are more lands in the second mortgage than in the first, that seems to be a case omitted out of the statute. But the adding an acre or two shall not exempt it ; for that may be a contrivance to evade the statute, (a) 5. An equity of redemption is similar, in many respects, to a trust estate ; for the mortgagee is entitled to and holds the lands merely as a pledge for securing the repayment of money ; and in most other respects is a trustee for the mortgagor. 6. Lord Hale says, there is a diversity between a trust 94 * and a * power of redemption. For a trust is created by the contract of the party, and he may direct it as he pleases. Therefore one that comes in, in the post, shall not be liable to it without express mention made by the party. But a power of redemption is an equitable right, inherent in the land ; and bound all persons, in the post, or otherwise, because it was an ancient right to which the party was entitled in equity, (b) 7. While the mortgagor is allowed to retain possession of the estate, after forfeiture, he is in the same situation quoad the mortgagee as he was before the mortgage was forfeited. But quoad strangers his possession, both before and after forfeiture, («) Stafford v. Selby, 2 Vera. 589. (b) Hard. 69. 17 Ves. 133. 1 There is a provision, similar to this, in the statutes of South Carolina; see Stat, at Large, Vol. II. p. 535, 53G ; and of Georgia; see Hotchkiss, Dig. p. 421 ; and of Ten- nessee; Caruth. & Nichols. Dig. p. 497 ; and of North Carolina ; LL. N. Car. Vol. I. p. 232. But they are all originally of colonial enactment, probably either in the absence of any registration laws, or under the idea that registration was not notice to all the world. In the other States, this subject is left to be dealt with upon general law. See as to registration, post, Vol. IV. tit. 32, ch. 28. Title XV. Mortgage. Ch. III. s. 7—9. 599 has always been considered as similar to that of a cestui que trust, and attended with the same consequences in equity as a seisin in deed of a legal estate at law. And Lord Hardwicke has laid it down, that a person entitled to any equity of redemption, who is in the receipt of the rents and profits, has such a seisin and pos- session of the equitable estate in the land, as, in the consideration of a court of equity, is equivalent to an actual seisin of a legal estate in a court of law. And in a modern case it has been de- termined, that an equity of redemption may be divested, and an adverse possession of it obtained, (a) 8. It follows that an equity of redemption may be aliened, en- tailed, and devised by will, in the same manner as a trust estate. It is also descendible to the heir of the mortgagor. There may be a possessio fratris of it, and it will follow the customary descent ; for if lands held in borough English are mortgaged, the equity of redemption will go to the youngest son, to whom the legal estate would have descended. So in a mortgage of lands held in gavelkind, the equity of redemption will go to all the sons. 9. An equity of redemption may be mortgaged. But a mort- gage of this kind which is usually called a second mortgage, is seldom recommended by conveyancers, for two reasons : 1. Be- cause a third mortgagee without notice may, by paying off the first mortgage, acquire a preference over the second. 1 2. Because great difficulties may arise in calling in the money: for as a sec- ond mortgagee has no legal remedy, he is driven to the tedious and expensive process of a suit in equity, to recover even his interest. There is, however, one case where a second mortgage may be accepted ; that is, if he can get in a term for * years prior to the first mortgage ; for the acquisition of * 75 such a term will give the second mortgagee the legal estate, (b) (a) Infra, § 13, Cholmondeley v. Clinton, tit. 31, c. 2, § 07. (b) Vide infra, c. 5. Willoughby v. W., T. R. 763. S. C. 1 Powell, Mortg. [493,] 5th ed. 1 Li the United States, where all deeds are registered, and registration is notice to all the world, no mortgagee can lose his priority but by his own Laches ; and puisne mortgagees, without actual notice of the prior lien, may gain priority by diligence in registration; liens ordinarily having precedence in the order of their registration. Hence the rule stated in the text can rarely apply. Thompson v. Chandler, 7 Clieenl. 377 ; 4 Kent. Comm. 174—180. See post, Vol. IV. tit. 32. ch. 28. 600 Title XV. Mortgage. Ch. III. s. 10—12 s 10. A person having an equity of redemption in fee may charge it with the payment of an annuity. Thus Lord Eldon has said, that if a person, having an equity of redemption of an estate mortgaged in fee, had granted an annuity, that would have been established in a court of equity ; where, though not at law, this interest is acknowledged, and would have been rendered liable to the annuity, (a) 11. An equity of redemption is subject to curtesy; so that where a man marries a woman who is entitled to an estate that is mortgaged in fee, and has issue by her, he will be allowed in equity to hold it during his life as tenant by the curtesy. 12. A woman being seised of certain lands, made a mortgage in fee of them for securing £900. She afterwards married, and died without having paid off the mortgage, leaving issue a son. Her husband claimed to be entitled to the lands for his life, as tenant by the curtesy. The Master of the Rolls (Sir J. Jekyll) held he was not en- titled. * On an appeal to Lord Hardwicke, he observed that the case depended on two considerations: 1. What kind of interest an equity of redemption was considered to be in a court of equity. 2. What was necessary to entitle a husband to be tenant by the curtesy. As to the first, an equity of redemption had always been considered as an estate in the land ; it was such an interest as would descend from the ancestor to the heir; it might be granted, entailed, devised, or mortgaged, and that equitable in- terest might be barred by a common recovery ; which proved that an equity of redemption was not considered as a mere right, but such an estate whereof, in consideration of equity, there might be a seisin ; or a devise of it could not be good. The person entitled to the equity of redemption was, in equity, considered as the owner of the land, the mortgagee only retain- ing it as a pledge or deposit ; and for this reason it was, that a mortgage in fee was considered as personal estate, notwithstand- ing the legal estate vested in the heir of the mortgagee, in point of law. The husband of a mortgagee in fee could never be tenant by the curtesy of the mortgaged estate, unless there wa's a foreclosure ; or the mortgage had subsisted for so great a length (a) Tucker v. Thurstan, 17 Yes. 131. Title XV. Mortgage. Ch. III. s. 12. 601 of time as the Court of Chancery thought sufficient to * induce it not to grant a redemption. As a mortgage in *96 fee was only a chose in action, if the ownership of the land was not in the mortgagor, it was in nobody. An equity of redemption was no otherwise a right of action than every trust; and as there could be no benefit had of an equity of redemption, but by snbpama out of chancery, so was the case of every mere trust out of land, which was considered as real estate in chancery, but could not be come at without a subpoena. It was true, a mortgagee was not barely a trustee for the mort- gagor ; but it was sufficient for the present purpose if he was in part a trustee for the mortgagor. And it was most certain that, as to the real estate in the land, the mortgagee was only a trustee for the mortgagor ; for, until foreclosure, the mortgagee was only owner, as a charge or incumbrance, and entitled to hold as a pledge. As to the inheritance and real estate in the land, the mortgagee was a trustee for the mortgagor, until the equity of redemption was foreclosed. Secondly, what was requisite to entitle the husband to be ten- ant by the curtesy ? Four things, viz., marriage, issue, death of the wife, and seisin. It was admitted that the three first did occur; but the objection relied on was, that there was no actual seisin of the wife during the coverture ; which was contended to be as necessary in respect to an equitable as to a legal estate. The true question upon this point was, whether there was not such a seisin or possession in the wife, of the equitable estate in the land, as in consideration of equity was equivalent to an actual seisin of a legal estate at common law. That in the considera- tion of the Court of Chancery, he was of opinion, there was such a seisin of the wife, in the present case, of the equity of redemp- tion. He had shown that a person entitled to the equity of re- demption, was owner of the land; if so, there must be a seisin of the estate. And what other seisin could there be than what the husband and wife had in the present case ? for the wife was all along in possession until her death, and the mortgagee did not come into possession until after her death, nor was there any fore- closure. And though the possession of the wife was but as tenant at will to the mortgagee, yet it was, in equity, a possession of the real owner of the land, subject only to a pecuniary charge on it; vol. i. 51 602 Title XV. Mortgage. Ch. III. s. 12—13. and from thence it followed, that there could not be a higher seisin of an equitable estate. 97 * * That the husband might be tenant by the curtesy of this equitable estate, he cited Williams v. Wray, and Sweetapple v. Bindon ; and observed that there had been two objections made : 1. That the husband had it in his power to have had seisin in his wife's lifetime, for he might have paid off the mortgage ; therefore it was his own laches that he did not. 2. That a woman was not dowable of an equity of re- demption. As to laches in the husband, it was compared to his not making an entry at law ; but the comparison would not hold ; for it was not so easy to pay off the principal and interest due on a mort- gage, as to make an entry at law; nor was it to be done so speedily, for a mortgagee was in most cases allowed six months' notice to be paid. In the case of Sweetapple v. Bindon, the hus- band might have brought his bill in his wife's lifetime, to compel the laying out the money in the purchase of lands ; but though he omitted to do so till after his wife's death, yet that was not objected to him as laches. As to the objection of a wife's not being endowed of an equity of redemption of a mortgage in fee, and that therefore a husband ought not to be tenant by the curtesy of an equity of redemp- tion, this proved too much ; for it had been determined that a wife shall not be endowed of a trust estate, yet that a husband shall be tenant by the curtesy of it. The argument from dower to curtesy failed in this case. Perhaps it would be hard to find a sufficient reason how it came to be so determined in one case, and not in the other ; but it was safe to follow former precedents, and what were settled and established ; and if such precedents should be departed from, he held it fit rather that the wife should be allowed dower of a trust estate, and not that cur- tesy of a trust estate should be taken away. Decreed that the husband was entitled to curtesy, (a) 13. A widow, however, is not allowed to have dower out of an equity of redemption of a mortgage in fee made before the mar- riage ; upon the principle that it was analogous to a trust (a) Casburne v. Inglis, 2 Ab. Eq. 728. 1 Atk. G03. 2 Jacob & Walker's Bep. App. No. 2. Tit. 5, c. 2. Title XV. Mortgage. Ch. III. 5. 13—14. 603 estate.f And however severe this doctrine may seem, yet it was solemnly confirmed in the following case, (a) 1 *14. Abraham Dixon, being seised in fee of considera- *98 ble estates, died in 1782 without issue, leaving Ann Dixon, the plaintiff, his widow, having devised his estates to trustees upon several trusts. Abraham Dixon, not having in his lifetime made any settlement or other provision for his wife, in lieu or bar of dower, and she not having done any act to bar herself thereof, filed her bill against the trustees, stating the above facts, claiming dower out of all the testator's real estate, and praying to be let into the receipt of one third part of the rents and profits thereof. To this bill the trustees answered, that the testator had bor- rowed a large sum of money upon mortgage ; and for securing the repayment thereof, had, previous to his marriage with the plaintiff, conveyed the premises to the mortgagee in fee, subject to a proviso for redemption ; that the legal estate in the premises being, by this mortgage, absolutely vested in the mortgagee, previous to and at the time of the marriage of the testator with the plaintiff, and not being at any time afterwards reconveyed to him, but remaining vested in the mortgagee, at the time of his death ; and he being therefore only entitled to the equity of re- demption thereof, at the time of his marriage, and at all times thereafter, till the time of his death ; the plaintiff was not at any time dowable in or out of the said premises, either at law or in equity. On the hearing, the plaintiff could have proved by witnesses that the testator, her husband, understood and declared, 2 that after his death his widow would be entitled to dower out of his real («) Tit. 12, c. 2. [t By the Stat. 3 & 4 Wm. 4, c. 105, § 2, 14, statute widows, married after the 1st of January, 1834, are entitled to dower out of equitable estates.] 1 See ante, tit. 6, ch. 2, § 10, note; lb. § 25, note. See also Mr. Rand's note to 2 Pow. on Mort. 699. 2 Mr. Powell, in the third edition of his book on Mortgages, Vol. II. p. 095, a, (by Coventry & Rand,) says, that he has since been informed by the gentleman who drew the will in this case, that no such declaration could have been made; and that the question alluded to, as put by Mr. Dixon to the drawer of the will, was not put at the time of the making, nor at any other time in his recollection ; ho having drawn it without the knowledge of any mortgage or other charge affecting the estate. 604 Title XV. Mortgage. Ch. III. s. 14. estates; that he made his will under that idea; and it could have been also proved, if relevant, by the person who drew it ; Mr. Dixon having put the question to him, whether Mrs. Dixon would not be entitled to dower, to which he, being at that time igno- rant of the mortgage, answered, that she certainly wonld. The will itself sufficiently spoke the idea ; for the testator bequeathed to the plaintiff, by the name of his 'dear wife Ann Dixon, his coach and harness, and a pair of horses, together with as much of his plate as she should think proper, not exceeding the sum of <£60 ; which things she could have no occasion for, if she had not dower to support her. The claim of the widow was supported on three grounds: 1st, The general law. 2dly, The distinction between a 99 * mere * trust and an equity of redemption. 3dly, The authorities in favor of dower, under circumstances not more favorable than those attending this case. Under the first of these heads it was observed, that dower was a right of the first attention and most sacred preservation at the common law. It was a right, not only founded in our law, but a right consonant to the first principles or laws of morality and equity, as springing from the moral obligation a man was under to make a provision for his wife. And accordingly it was in a variety of cases, aided and extended beyond its strict legal limits, by the interposition of courts of equity, in removing trust terms, and other obstructions to it, in certain cases, which would stand in the way of it at common law. This proved it to be a right not merely confined to the common law, but a right recognized, protected, and aided in equity ; and which, so far as it was the subject of relief in equity, was an equitable right. This was the predicament in which it stood in the cases of Dudley v. Dudley, Wray v. Williams, and the other cases in which it had been decided that a dowress should have the benefit of a trust term attendant on the inheritance, as against the heir, (a) Considering it, therefore, as an equitable right, it well might be a wonder how it came about that a widow should not be entitled, against the heir, to dower of an equitable inheritance. Some, indeed, had confined the rule of her not being so to the cases where the trust was created by the husband himself. This («) Tit. 12, c. 3. Title XV. Mortgage. Ch. III. s. 14. 605 had been the opinion of the Master of the Rolls in Banks v. Sut- ton, (a) However, this opinion had been overruled ; and it seemed to be a settled point, that a widow was not dowable of a direct proper trust. This naturally led to the second head of argument in favor of the widow ; namelyy^the distinction between a mere trust, that was an use, as it was styled at common law, and an equity of redemption. The former was regarded at common law as quite a distinct interest from the legal estate, to which the right of dower was annexed. It cf course did not involve in it that right ; if it had, there would have been two opposite rights of dower in the same lands at the same time ; as the widow of both the trustee and the cestui que trust would have been entitled to dower. For the widow of the trustee was clearly entitled at common law; and when the Court of Chancery interposed to * prevent the legal title of the widow of the trustee, it * 100 seemed extraordinary that it did not, in its place, substi- tute an equitable one of the cestui que trust. However, these sorts of trusts being the creatures of the parties themselves, what- ever were the legal incidents or privileges they wanted, might have been supposed to have been voluntarily relinquished and abandoned by the parties creating those trusts. But it was otherwise with regard to an equity of redemption : that was not any interest created or reserved by or between the parties, beyond the express time of redemption ; it was a mere creature of a court of equity itself, founded on this principle, that as a mortgage was originally nothing more than a pledge or security to the mortgagee for his money, it was but natural justice between man and man to consider the original ownership of the lands as still residing in the mortgagor, subject to the legal title of the mortgagee, so far only as such legal title was requisite to the end of his security ; and accordingly the title of the mortgagee was not treated by equity as any thing beyond that point. His beneficial interest, though the mortgage was in fee, was considered only as personal estate ; he was not permitted to grant leases, or exercise any other act of ownership, to the prejudice of the mortgagor, to whom he was even accountable for the profits of his estate. His widow was not permitted to (a) Tit. 12, c. 2. 51* 606 Title XV. Mortgage. Ch. III. s. 14. claim dower ; nor could he, or those claiming under him, avail themselves of several other privileges and incidents attending real property. It seemed to be the regular consequence of the doctrine adopted by the courts of equity, in regard to mortgages, by con- sidering them strictly and merely in the nature of securities for the mortgage money, and entitling the mortgagee to no other of the incidents or privileges of ownership in the lands, than what was requisite for the end of such security ; that all such privi- leges and incidents of ownership of the lands as were not con- sidered as becoming vested in the mortgagee for the purpose of his security, should be held to remain in the mortgagor ; or, in other words, that he should to all purposes, not prejudicial to the mortgagee, be considered as the complete owner of the mortgaged lands. And accordingly this was found to be the established doctrine in several instances, when only volunteers were interested; 101* such *as revocations under powers, and revocations of de- vises ; as in the cases of Thorne v. Thorne, and Hall v. Dunch, and other like cases, (a) That in the case of Lincoln v. Eolle, the doctrine was expressly recognized, and admitted on both sides ; because in equity a mortgage did not make the estate another's, and because a mortgage was not an inheritance, but a personal estate ; and there seemed no reason in the world why these general incidents of complete ownership should be saved in favor of a devisee, or other volunteer, and not in favor of a wife, whose claims of dower stood upon the strongest grounds of moral and equitable right ; and who was in many instances considered as entitled to relief in equity, in regard to an intended provision, when a devisee or other volunteer was not. Agreeable to this doctrine was the case of Banks v. Sutton, where it was decreed in favor of the claim of dower out of an equity of redemption of a mortgage in fee ; which decision was founded on a variety of authorities and reasons delivered by the Master of the Rolls ; all which were equally forcible in the pres- ent case. That the case of Banks v. Sutton, was directly in point of the present question ; for though the Master of the Rolls (a) Tit. 32, c. 14. Tit. 38, c. 6. Show. Pari. Ca. 154. Title XV. Mortgage. Ch. III. 5. 14. 607 would not take upon himself to determine the question, in re- gard to dower, out of a mere trust, created, not by the husband, but by some other person, with no time limited for conveying the legal estate ; and avoided this point by shifting his ground to that of the husband's being entitled, under the express direction of the will under which he claimed, to have the estate conveyed to him at the age of twenty-one, which circumstance, under the application of a common principle of equity, of considering that as done which ought to have been done of course in equity, let the widow into the same degree of title as she would have had if the trustees had conveyed the estate to her husband at the time directed. And as the principle on which the Master of the Rolls got rid of the first point, did not apply to this, he accordingly found himself constrained, instead of changing his ground as before, to enter into a strict examination of it, and meet the ob- jections to dower with authorities, inferences, and general reason- ing ; and through them to come to a professed decision of the point, as he expressly did, when he said — " He did not know or could find any instance where dower of an equity of redemption was controverted and adjudged against the dowress." And * as there were authorities in cases less favorable, he * 102 therefore declared that the widow of the person entitled to the equity of redemption of the mortgage in question, which was a mortgage in fee, had a right of redemption ; and decreed her the arrears of her dower, from the death of her husband ; she allowing the third of the interest of the mortgage-money unsatis- fied at that time : that an authority more directly in point than this could not be expected. And though the subsequent case of the Attorney- General v. Scott, (a) before Lord Talbot, in which the widow was denied dower, was generally considered as an authority contrary to and superseding that of Banks v. Sutton, yet such a conclusion seemed too hasty, as the two cases appeared to differ materially ; for in that of the Attorney- General v. Scott, although there was a mortgage, yet the question did not turn upon that, because the legal estate was outstanding in trustees, in whom it was vested antecedent to such mortgage ; consequently the decision in that case was on a direct proper trust, not on a mere equity of re- (a) Tit. 12, c. 2. 608 Title XV. Mortgage. Ch. III. s. 14—17 s demption. The difference between a direct trust and an equity of redemption, and between the claim of a widow, and that of a devisee, or mere volunteer, was strongly insisted upon ; and the distinction between this case, and that of a claim of dower against a purchaser, fully enforced. The Lords Commissioners, Loughborough, Ashhurst, and Hotham, said, that the case of an estate by the curtesy in a trust was the anomalous case, 1 not the rule ; that the wife should not have dower. And this point was so much settled, that it would be wrong to discuss it much. The bill was dismissed, but without costs, the defendant not praying them, (a) 1 15. A widow was, however, entitled to dower out of an equity of redemption of a mortgage for a term for years; because in that case the husband was seised of the freehold and inheritance. And where a mortgage of this kind was satisfied, the Court of Chancery gave the dowress relief, by removing the term : but if the mortgage was not satisfied, then the dowress must keep down a third of the interest, or pay off a third of the prin- cipal, (b) 2 16. The statute 13 Eliz. c. 4, which enacts that all the lands, tenements, and hereditaments of persons who are accountants to the crown, shall be liable to the payment of crown debts, 103 * * extends to equities of redemption ; and by the statute 25 Geo. III. c. 35, they may be sold under an extent by the Court of Exchequer, (c) 17. An equity of redemption of a mortgage in fee is not assets at common law ; for the legal estate not being in the heir, he may plead Hens per descent? As to the question, whether an equity (a) Dixon v. Saville, 1783. 2 Powell. Mortg. 37, (693, Coventry's 6th ed.) (b) 2 P. Wms. 716. (c) Tit. 1, § 68. Rex v. Delamotte, Forr. Rep. in Excli. 162. Tit. 14. 1 See ante, tit. 6, ch. 2, § 25, note. 2 This rule is now exploded, and the more reasonable rule established, that a tenant for life is bound to contribute to the removal of an incumbrance, only in proportion to the benefit he derives from its removal. See post, ch. 4, § 54, note. 3 This is now altered in England, by the statute 3 & 4 Wm. 4, c. 104. In the United States, where all the property of the deceased debtor, subject to the rights of the widow, is liable as a trust fund for the payment of his debts, the equity of redemp- tion goes into the assets, to be administered by the executor or administrator. In sev- eral of the States it is so declared by express statutes; but it seems also necessarily to result from the principle above stated. See Massachusetts, Rev. St. 1836, ch. 65, § 15 ; Maine, Rev. St. 1840, ch. 125, § 13; Vermont, Rev. St. 1839, ch. 48, § 23; Michigan, Title XV. Mortgage. Ch. III. s. 17—21. 609 of redemption was assets in equity, the courts reasoned by anal- ogy from trust estates, which not being then assets, they held that equities of redemption were not assets. But when it was enacted by the Statute of Frauds that trust estate^should be assets, the Court of Chancery held that an equity of redemption should be assets in equity, (a) 18. Sir C. Cox, having a term for years, made a mortgage thereof, and died possessed of the equity of redemption, leaving greater debts than his estate would extend to pay. The question was, whether this mere equity of redemption was only equitable assets, and distributable equally pro rata among all the creditors, without regard to the degree or quality of their debts, or whether it should be applied in a course of administration ; in which last case the bond creditors would swallow up all the assets, without leaving any thing for those by simple contract. Sir J. Jekyll delivered his opinion, that this equity of redemption was equitable assets only, the mortgage being forfeited at law, and the whole estate thereby vested in the mortgagee ; so that it was barely an equitable interest, (b) 19. In a subsequent case, Lord Hardwicke also held, that an equity of redemption of a leasehold estate was equitable assets. But in a modern case, Lord Loughborough said, that an equity of redemption was not equitable assets as against judgment credi- tors, who had a right to redeem, (c) 20. It is held, that an equity of redemption in fee is not assets to pay simple contract debts ; for it cannot be reached, at law, by any creditors. 1 It is, notwithstanding, made assets in equity ; but only to pay debts of that description to which the land would have been liable, if it had been a legal estate. 21. An equity of redemption of a trust estate is equitable as- sets, because creditors can only attach this kind of property in a court of equity, (d) (a) 2 Vera. 61. 2 Atk. 294. Tit. 12, c. 2. (6) Creditors of Sir C. Cox, 3 P. Wms. 341. (c) Hartwell v. Chitters, Amb. 308. 4 Ves. 542. (d) Plunkett v. Penson, 2 Atk. 290. (1 Ves. 436. But see Sharpe v. E. of Scarborough, 4 Ves. 538.) Rev. St, 1837, p. 285, 286 ; Ohio, Rev. St. 1841, ch. 47, § 67, 68 ; Indiana, Rev. St. 1843, ch. 30, § 464. See infra, § 38, note (1.) 1 Altered in England, by Stat. 3 & 4 Wm. 4, c. 104. 610 Title XV. Mortgage. Ch. III. s. 22—26. 104* *22. When a person seised in fee makes a mortgage by a demise for years, the equity of redemption is assets at law; because the reversion, which attracts the redemption, being asse(p at law, the equity of redemption ought to be so too. And a creditor may have judgment at law, with a cessat executio during the term, (a) 23. An equity of redemption is, however, not extendible, by a judgment creditor, with or without the aid of the Statute of Frauds, (b) x 24. It was formerly held, that where an equity of redemption was devised to an executor for payment of debts, it then became legal assets ; because the devise of it to the executor showed the intention of the testator, that it should be applied like other assets. But where the equity of redemption was devised to trus- tees, upon trust to pay debts, it was equitable assets, (c) 25. This doctrine has been altered ; and it is said to be now established, that a devise to a mere executor shall bear the same construction as a devise to a trustee : that there is no reason to suppose the testator's meaning to be different in the one instance from the other : that, even in the case of a mere power, on the part of the executor, to sell, the descent seems to be broken, in- asmuch as the vendee is in by the devisor ; but that, whether the descent in such case be broken or not, the assets shall be equally equitable. In short, that if the real estate be, by any means, given to the executor, the produce of it, when sold, shall not be applied in a course of administration, but be distributed as equity prescribes, (d) 26. An equity of redemption being alienable and devisable, it follows that all those who derive an interest from, the mortgagor by purchase or devise, may redeem the mortgage. Where an (a) 2 Atk. 294. (&) Lyster v. Dolland, 1 Ves. jun. 431. See 4 Mad. 503. (c) Girling v. Lee, 1 Vern. 63. () Howard v. Harris, c. 1, § 24. (c) See Casburne v. Inglis, 2 Jac. & Walk. Appdx. II. 194. (d) Att.-General v. Crofts, 4 Bro. Pari. Ca. 136. Vide Pawlett v. Att.-Gen., Hard. 465. [t Sir S. Lovell's case, 1 Salk. 85, cited 1 Eden, 210. See also 2 Atk. 223.] Title XV. Mortgage. Ch, III. s. 35—38. 613 35. It is a maxim that lie who will have equity must himself do equity ; in consequence of which it has been long established, that when a mortgagor requires the redemption of his estate, he must in his turn allow full equity to the mortgagee, (a) 36. A person borrowed money upon mortgage, and afterwards borrowed more money from the same person upon bond ; the mortgage was forfeited. The Court said, although there was no special agreement proved in the case that the land should stand as a security for the bond debt, yet the mortgagor should not re- deem without paying both, (b) l 37. This doctrine was, however, soon altered ; and it is said by Mr. Vernon, and agreed to by the Court, in Trin. 1715, that if a man had a debt owing to him by mortgage, and another on bond from the same person, he could not tack them together against the mortgagor ; but would be let in to a redemption on payment of the mortgage money only, (c) 38. [But in order to avoid circuity of action, the law is other- wise with respect] to the heir at law of the mortgagor, who cannot redeem a mortgage made by his ancestor, without paying off the {a) St. John v, Holford, 1 Cha. Ca. 97. (6) Baxter v. Manning, 1 Vera. 244. (See 1 Pow. on Mortg. 338, 6th ed. Powis v. Corbet, 3 Atk. 556. Scripture v. Johnson, 3 Conn. E. 211. Post, c. 5, § 28.) (c) Challis v. Casborn, Prec. in Cha. 407. Archer v. Suatt, 2 Stra. 1107. 2 Ves. jun. 376. 1 The doctrine of tacking, though now established in England, is there taken with this most important qualification, that the party, who seeks to avail himself of it, is a bona fide purchaser, without notice of the prior incumbrance, at the time when lie took his original security; for if he then had such notice, he has not the slightest claim to the protection or assistance of a Court of Equity. But in the United States, tacking is never allowed, as against mesne incumbrances which are duly registered ; for the plain reason that registration under the registry acts, which exist in all the States, is held to be constructive notice to all persons ; and the acts themselves, some in express terms, and all by clear implication, declare the priority to he fixed by the registration. See 1 Story, Eq. Jur. § 421 ; 4 Kent, Comm. 177—179. So the latter point is held under the Irish registry act. Latouche v. Lord Dunsany, 1 Sch. & Lcfr. 157. And see Bond v. Hopkins, Ibid. 430. See also Dorrow v. Kclley, 1 Dall. 142 ; Grant v. U. S. Bank, 1 Caines, Cas. 112; Cleaveland v. Clarke, Brayt. 166 : Bridgen v. Car- hartt, 1 Hopk. 234. In most of the United States, also, the statutes, providing for the redemption of mortgaged estates, expressly give this right of redemption, on payment or tender of the amount due upon the morUjaije. See Loring v. Cooke, 3 Pick. 48, 50 ; Green v. Tanner, 10 Mete. 411. In Connecticut, where no such statute existed, the rule stated in the text has been applied. Scripture v. Johnson, 3 Conn. It. 211, 213. Sec post, § 55, note. vol. i. 52 614 Title XV. Mortgage. Ch. III. 5. 38—43. money due on bond; because, upon the ancestor's death, the bond becomes the heir's own debt, (a) 1 39. The same rule has been adopted in the case of mortgages for terms of years. Thus if the executor of the mortgagor brings a bill to redeem, he must pay both the mortgage-money and the bond debt, (b) 40. Since the statute made against fraudulent devises, the devisee of an equity of redemption cannot redeem without pay- ing off a debt upon bond, as well as the money due upon mort- gage ; because that statute puts the devisee in the same situation as the heir, (c) 107* *41. If a person first lends money upon bond, and afterwards takes an assignment of a mortgage, he has the same equity against the mortgagor and his heirs, to have both debts paid, (d) 42. If part of the money, originally secured by a mortgage, be paid off, and a further sum is borrowed from the same parties, upon a defective security, no redemption will be granted unless both sums are paid. 43. Husband and wife mortgaged the wife's land by fine for (a) Shuttleworth v. Laycock, 1 Vern. 245. (b) Anon. 2 Vera. 177. 1 P. Wms. 776. (c) Tit. 38, c. 1. 1 Will. 4, c. 47. (4 Kent, Comm. 175.) 1 Ab. Eq. 325. Prec. in Cha. 407. (d) Hallelay v. Kirtland, 2 Ch. R. 301. i In the settlement of estates, it is a cardinal rule of American law, that all the property of the deceased is charged as a trust fund for the payment of his debts. The personalty is first to be exhausted ; after which the executor, on application to the proper Court, obtains license to sell all or so much of the real estate as may be neces- sary to pay the remaining debts ; the proceedings being regulated by statutes. Ordi- narily, therefore, remedy can be had, in the first instance, only against the executor or administrator ; the heir being liable only in regard to those debts for which no action could have been had against the personal representative within the period mentioned in the statutes limiting such actions. Royce v. Burrell, 12 Mass. 395; Webber v. Webber, 7 Greenl. 127. The land descends to the heir, upon the death of the ancestor; his title being liable to be divested by a sale by the executor or administrator, as above stated. Gibson v. Farley, 16 Mass. 280. If he should apply to redeem a mortgage of his ancestor, in those States in which statute provisions exist entitling the mortgagor to redeem on payment of the mortgage money, it is conceived that the doctrine in the text could not be applied to his case. But in all other cases, where the redemption of the land would immediately constitute it assets in the hands of the heir, in respect to which he would be liable to the same creditor on the obligation of his ancestor, the principle in the text, of avoiding circuity of action, would doubtless be applied by a Court of Equity here, as in England. See 4 Kent. Comm. 175 ; 1 Story, Eq. Jur. § 418 ; 2 Story, Eq. Jur. § 1010; lPow.onMort. 348, note (G) by Coventry. See supra, § 17, note (2.) Title XV. Mortgage. Ch. III. s. 43—46. 615 £400, and the mortgage was forfeited. The husband paid off part of the mortgage money, but afterwards borrowed it back again. Decreed that the mortgagee having the estate in law in him, by the forfeiture of the mortgage, he should hold the land against the heir of the wife, until the whole money was paid, (a) 44. This privilege is only allowed against the mortgagor, his heir or devisee ; not against a purchaser or assignee of the equity of redemption, who may redeem without discharging a bond debt due to the mortgagee ; because the lands, in the hands of the alienee, can be charged with nothing but what is an imme- diate lien thereon, which the bond is not. (b) 45. A, seised in fee of lands, made a mortgage to B for ,£100, afterwards borrowed .£100 more of B upon bond, and died. The heir at law conveyed the inheritance and equity of redemption to trustees, in trust for the payment of all the bond and simple contract debts of his father, equally ; after which the trustees brought their bill to redeem against B, who insisted on being paid his debt by bond, as well as that by mortgage. It was de- creed, that though the heir must have paid the bond debt, before he was allowed to redeem, because it became his debt on the death of his ancestor ; yet it could not be said to be due from the assignee of the heir, the bond being no lien upon the land, (c) 46. A settlement was made by a father on the marriage of his son, with a covenant, that it should be free from incumbrances ; in consideration of which the son covenanted to reconvey part of the estate, after the father's death, or to pay £300 to such per- sons as the father should appoint. The father created an incum- brance of £300 by mortgage ; afterwards appointed £300 to his daughter, and died. The son brought a bill to have the estate disincumbered of that mortgage ; also to have a bond of the * father's to the mortgagee delivered up, and dis- * 108 charged out of the assets of the father. Lord Hardwicke said, the plaintiff had a plain equity to have the estate disincumbered of the mortgage brought on it, in fraud of the marriage settlement. As to the bond, where the mortgagor of an estate, either before or after the marriage, contracted («) Reason v. Sacheverell, 1 Vern. 41. 2 Cha. Ca. 98. See also Pitt v. Pitt, 1 T. & Russ. 180. (l>) 1 Vcs. 87. (c) Coleman v. Wyncc, 1 P. Wms. 775. Pree. in Cha. 511. Bayly v. Robson, Preo. in Cha. 89. 616 Title XV. Mortgage. Ch III. s. 46—48. another debt with the mortgagee, for which he gave a bond, and died, and the equity of redemption descended to the heir at law, a court of equity would permit the mortgagee to tack the bond to the mortgage, because otherwise it would cause an unnecessary circuity ; and the heir at law was debtor for both. But where the person claiming the equity of redemption, was a purchaser for a valuable consideration, there was no right to tack the bond to the mortgage, because the estate was not liable to the bond debt. Though the plaintiff was entitled to be indemnified, as against the father, for what he was bound to pay by the father's bond ; yet he was entitled only out of the father's assets, (a) 47. If there are several incumbrances on an estate, and a prior incumbrancer claims a debt secured by bond, he will not be allowed to add it to his mortgage ; but it will be postponed to all real incumbrances, whether by mortgage, judgment, or statute. For the bond is no charge on the estate ; nor has he the same equity against a subsequent incumbrancer, as against an heir at law ; who is liable to the bond, if he has assets. 48. A creditor, by judgment, in 1698, for £600, comes to an account in 1707 with the conusor, and settles the remainder due upon the judgment at £420 ; and then takes a mortgage in fee for that sum, as a collateral security to the judgment. One Saunders, an attorney, in 1716, takes an assignment of this mort- gage, in which there is a recital, that £90, the consideration of the assignment, was then the full worth of the estate ; and the assignment, likewise, was made at a time when there was a suit depending between particular creditors, upon several other estates of the mortgagor, in conjunction with judgment creditors at large, and the representatives of the mortgagor. Saunders was in possession, too, of another mortgage in 1688, upon the same estate as was subject to the judgment in 1698, and the mortgage in 1707. Lord Chancellor. " Saunders shall not be allowed to 109 * tack the * two mortgages together, viz., that in 1688, and the other in 1707, so as to defeat intermediate incum- brances between the years 1688 and 1698 ; and yet the mortgage in 1707 shall have relation back to the judgment in 1698 ; and, by consolidating them together, shall entitle Saunders to receive the sum due upon that judgment prior to creditors after the year (a) Trougbton v. Troughton, 1 Ves. 86. Title XV. Mortgage. Ch. III. s. 48—50. 617 1698 ; but as to money reported due since the year 1707, Saun- ders is to be paid only in priority to creditors subsequent to 1707. " The rule of the Court, as to prior incumbrancers taking in a subsequent incumbrance, so as to tack it to the prior, is, where he is a bond fide purchaser of the puisne incumbrance, without notice of intermediate ones. But here, the puisne incumbrance was bought in while there was such a lis pendens as will make Saunders a purchaser with notice." (a) *49. In a subsequent case, the question was, whether *110 a mortgagee, who lent a further sum upon bond, should be allowed to tack it to his mortgage, in preference to other cred- itors, under a trust for payment of debts, created by the will. of the mortgagor. Lord Hardwicke said he had considered this case ; and was inclined to think the mortgagee should not be allowed to tack the bond to the mortgage. With regard to the heir of the mort- gagor, the reason why he should not redeem the mortgage, with- out paying the bond likewise, was to prevent a circuity ; because *the moment the estate descended upon him, it * 111 became assets in his hands, and liable to the bond. A devisee too of the mortgaged premises, for his own benefit, was subject to the same rule, since the Statute of Fraudulent Devises, made in favor of bond creditors. But this was a devise in trust, for payment of debts, and the descent was consequently broke ; so that he was of opinion the mortgagee could have no priority, with regard to his bond ; but as to that, must come in pro ratd with the rest of the creditors, under the trust. But if the counsel for the mortgagee had an inclination to be heard on this point, it should stand over. The Attorney- General, who was counsel for the mortgagee, said he thought the point was too strong against his client to be maintained ; and the Court thereupon made an immediate decree accordingly, (b) 50. Upon further directions, the only question was, whether Mr. Carforth, a creditor by mortgage of Andrew Whelpdale deceased, and also a bond creditor for .£1834 3s. should tack his bond debt to his mortgage, against other specialty creditors. Lord Thurlow. " The only reason why the mortgagee can (a) Morrett v. Paske, 2 Atk. 52. Vide Ch. 5. (b) Heams v. Bunco, 3 Atk. 630. 52* 618 Title XV. Mortgage. Ch. III. s. 50—54. tack his bond to his mortgage is to prevent a circuity of suits : it is solely matter of arrangement for that purpose ; for, in natural justice, the right has no foundation. The principle explains the rule, and therefore it can go no further. The creditors, having another specific security, cannot give him in justice any priority for a lien that is subsequent. There being no foundation in jus- tice, the only question is, whether the Court is in the practice of doing it ; and it has not done it in any case but that of the heir, and merely to prevent circuity." (a) 51. It has been long settled, that where a man makes two several mortgages, of two several estates, to the same person ; and one of them proves defective in title or value ; neither the mortgagor nor his heir will be admitted to redeem one, without the other. 52. The plaintiff's bill was to redeem a mortgage made by his father to the defendant, who by his answer insisted that the plaintiff's father had made him two several mortgages of several lands ; that the plaintiff endeavored to defeat him of one of those mortgages by reason of an entail, and hoped that in equity he should redeem both or neither. But the Court said he 112* should * redeem both or neither; and so, if one mortgage had been deficient in value, and the other mortgage had been worth more than the money lent upon it, the heir should not have been admitted to redeem the one without the other. (6) 53. The plaintiff, as assignee of a bankrupt, brought his bill to redeem a mortgage of the manor of N. made by the bankrupt to the defendant. The defendant by his answer insisted that he first lent the bankrupt £200 on a mortgage of a particular tene- ment ; and afterwards lent him .£300 on a mortgage of the manor of N. which was of better value than the money due ; but the first mortgage was deficient in point of value. Per Cu- riam. If the plaintiff will redeem one, he shall redeem both, (c) 54. Lord Hardwicke appears not to have considered this case as an authority. But in Ambler's Reports the case of Tiliey v. Davis, before Lord Hardwicke, is cited, where two estates were separately mortgaged to the same person, by one and the same deed. The purchaser of the equity of redemption of one of the («) Lowthian v. Hasel, 3 Bro. C. C. 162. Harnerton v. Rogers, 1 Yes. Jan. 513. (b) Margrave v. Le Hooke, 2 Vera. 207. (c) Pope r. Onslow, 2 Vera. 286. Title XV. Mortgage. Ch. III. s. 54—56. 619 estates brought a bill to redeem the estate which he had bought ; and it was held by the Master of the Rolls that he was not en- titled to redeem one only, but must redeem both ; and the decree was affirmed by Lord Hardwicke. Also the case of Tribourg v. Lord Pomfret and Wilkins, at the Rolls, 16 July, 1773. The plaintiff had two distinct mortgages, upon two different estates, made by the defendant Wilkins, by different instruments. Lord Pomfret had a second morto-ao-e upon one of the estates only. Bill to be redeemed by Lord Pomfret and Wilkins, or to foreclose. Sir T. Sewell, M. R., de- creed Lord Pomfret to redeem both mortgages, or to stand fore- closed, (a) 55. In a modern case, Lord Alvanley, when Master of the Rolls, said, that if two separate estates were mortgaged, by which he understood the legal estate absolutely, and at law irredeemably conveyed, the Court of Chancery would not interpose in favor of the redemption of one, without the redemption of both. Pope v. Onslow, followed by two modern cases, had settled the point, that as against the mortgagor or his assigns, and therefore he must suppose against all creditors, if there were two legal mort- gages, which at law were become absolute (for that must be the principle) the mortgagee should insist on being redeemed * as to both, or neither ; and that Lord Kenyon had acted * 113 upon this doctrine, (by 56. With respect to the time within which a redemption of a mortgage is allowed, the Courts of Equity have not established any positive general rule, when the length of possession of the mortgagee shall bar the mortgagor's right of redemption ; as they consider that lands are usually mortgaged for much less than their real value, and that when a mortgagee receives his principal, interest, and costs, he cannot complain of any injury. (a) Ex parte Carter, Ambl. 733. Purefoy V. Purefoy, 1 Vern. 29, and Mr. Raithby's note. Willie v. Lugg, 2 Eden, 788. Roe v. Soley, 2 Black. R. 72G. {b) Jones v. Smith, 2 Ves. jun. 372. Ireson v. Denn, 2 Cox, R. 425. 1 In all the cases on the subject of tacking, it is to be observed, that there is a broad distinction taken between a bill to redeem and a bill to foreclose a mortgage. In the former case, redemption being asked for, on equitable grounds alone, the rule, that he who would have equity must do equity, applies, and tacking is allowed. But in a bill to foreclose a mortgage, the creditor applies on the ground of the mortgage debt alone. Chase v. McDonald, 7 liar. & Johns. 160; and see Cootc on Mortg. 393; Lee v. Stone, 5 G. & J. 1 ; Ogle v. Ship, 1 A. K. Marsh. 287. 620 Title XV. Mortgage. Ch. III. s. 57. 57. It being, however, extremely difficult for a mortgagee, who has long been in possession, to make out an exact account of the profits he has received, the Court of Chancery has laid it down as a rule, by analogy to the Statute of Limitations, 21 Jac. 1, that where the mortgagor has suffered the mortgagee to con- tinue for 20 years in the quiet and uninterrupted possession of. the lands mortgaged, the right of redemption shall be presumed to be abandoned. (a)f 1 (a) Tit. 31, c. 2. [ f See Stat. 3 & 4 Will. 4, c. 27, $ 28, whereby it is enacted that when a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent, comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such possession or receipt ; unless in the mean time an acknowledgment of the title of the mortgagor or of his right of redemp- tion shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, in writing, signed by the mortgagee or the person claiming through him ; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of such acknowledg- ments, if more than one, was given ; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknow- ledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent, by, from or under him or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent; and where such of the mortgagees or persons aforesaid as shall have given such acknowledgment, shall be entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem the same divided part of the land or rent, on payment, with the interest of the part of the mortgage money, which shall bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage.] 1 [After twenty years possession by the mortgagee after condition broken, the mort- gagor cannot redeem without special cause shown. Ayres v. Waite, 10 Cush. 72; Blethen v. Dwinal, 35 Maine, (5 Red.) 556 ; Cromwell v. Bank of Pittsburg, 2 Wal- lace, Jr. 569 ; Robinson v. Fife, 3 Ohio, N. S. 551 ; Jarvis v. Woodruff, 22 Conn. 548; Morgan v. Morgan, 10 Geo. 297.] The rule adopted in Courts of Equity, in cases not affected by any statutory provis- ions, is thus summarily stated by Mr. Justice Story. " In respect to the time within Title XV. Mortgage. Ch. III. s. 58. 621 * 58. In 13 Cha. II. upon a claim of redemption, it was * 114 pleaded that 20 years had elapsed since the mortgage had which a mortgage is redeemable, it may be remarked, that the ordinary limitation is twenty years from the time when the mortgagee has entered into possession, after breach of the condition, under his title, by analogy to the ordinary limitation of rights of entry and actions of ejectment. (Eaffety v. King, I Keen, K. 602, 609, 610, 616, 617 ; Cholmondeley v. Clinton, 2 Jae. & Walk. 1, 191, S. C. 4 Bligh, N. S. 1 ; Corbettu. Barker, 1 Anst. K. 138 ; S. C. 3 Anst. R. 755 ; White v. Parnther, 1 Knapp, R. 228. 229.) If, therefore, the mortgagee enters into possession in his character of mortgagee, and by virtue of his mortgage alone, he is for twenty years liable to account ; and, if payment be tendered to him, he is liable to become a trustee of the mortgagor, and to be treated as such. But, if the mortgagor permits the mortgagee to hold the possession for twenty years without accounting, or without admitting that he possesses a mortgage title only, the mortgagor loses his right of redemption, and the title of the mortgagee becomes as absolute in Equity, as it previously was in Law. In such a case the time begins to run against the mortgagor from the moment the mort- gagee takes possession in his character, as such; and if it has once begun to run, and no subsequent admission is made by the mortgagee, it continues to run against all per- sons, claiming under the mortgagor, whatever may be the disabilities to which they may be subjected. (Ibid*.) But, if the mortgagee enters, not in his character of mort- gagee only, but as purchaser of the equity of redemption, he must look to the title of his vendor and the validity of the conveyance, which he takes. So that, if the convey- ance be such as gives him the estate of a tenant for life only in the equity of redemp- tion, there, as lie unites in himself the characters of mortgagor and mortgagee, he is bound to keep down the interest of the mortgage like any other tenant for life for the benefit of the persons entitled to the remainder ; and time will not run against the remainder-man during the continuance of the life-estate. (Raffety v. King, 1 Keen, R. 601. 609, 610, 616—618 ; Corbett v. Barker, 1 Anst. R. 138 ; S. C. 3 Anst. 755 : Reeve v. Hicks, 2 Sim. & Stu. 403 ; Ravald v. Russell, 1 Younge, R. 19.) " Similar considerations will, in many respects, apply to the right of foreclosure of a mortgagee. If he has suffered the mortgagor to remain in possession for twenty years after the breach of the condition, without any payment of interest, or any admission of the debt, or other duty, the right to file a bill for a foreclosure will generally be deemed to be barred and extinguished. (Stewart v. Nichols, 1 Tamlin, R. 307; Christophers v. Sparke, 2 Jae. & Walk. 223 ; Trash v. White, 3 Bro. Ch. R. 289 ; Toplis v. Baker, 2 Cox, R. 119. See also, White v. Parnther, 1 Knapp, R. 228, 229.) However, in cases of this sort, as the bar is not positive, but is founded upon a presumption of pay- ment, it is open to be rebutted by circumstances. (Ibid.)" 2 Story, Eq. Jur. § 1028, a, 1028, I. And see 4 Kent, Comm. 187—190 ; Coote on Mortg. 541—547 ; 1 Pow. on Mortg. 360, Coventry's ed. ; Ross v. Norvell, 1 Wash. 14 ; Wells v. Morse, 11 Verm. R. 9 ; Dexter v. Arnold, 3 Sumn. 152 ; Stewart v. Nichols, Tam. 307. [Gould v. White, 6 Foster, (S. II.) 178 ; Richmond v. Aiken, 25 Vt. (2 Deane,) 324 ; Haskell v. Bailey, 22 Conn. 509 ; Evans v. Hoffman, 1 Halst. Ch. 354 ; Boyd v. Harris, 2 Md. Ch. Decis. 210: Roberts v. Welch, 8 Ired. Eq. 287. The production of the mortgage; and note having no evidence thereon of the payment of interest, raises a presumption that it has not been paid. Olmsted v. Elder, 2 Sandf. Sup. Ct. 325.] The supposed relation of the mortgagor to the mortgagee as his tenant,'is not allowed to operate against the pre- sumption of payment of the debt, resulting from his being permitted to remain in pos- session for a long period of time, without any demand of payment or other recognition 622 Title XV. Mbrtsra&e. Ch. III. s. 58—62. S"» been forfeited ; and that the land had descended to the heir at law of the mortgagee who had sold it. The plea was held good, (a) 59. In 29 Cha. II. upon a rehearing before Lord Keeper Bridgeman, assisted by Vaughan and Turner, Justices, concern- ing the redemption of a mortgage, made upwards of forty years before ; the Lord Keeper declared that he would not relieve mortgages after twenty years ; for that the statute 21 Jac. c. 16, did adjudge it reasonable to limit the time of one's entry to that period ; and though matters in equity were to be governed by the course of the Court, it was best to square the rules of equity as near the rules of reason and law as might be. (b) x 60. Although there be a decree to redeem and account, yet if it be not prosecuted within twenty years, no redemption will be allowed. 61. Mr. St. John mortgaged certain lands in 1639 to Sir Richard Holford, who entered into possession of them. In 1663, a bill was brought by the mortgagor for redemption, and a de- cree obtained to redeem. ; but he dying, the suit was revived by his three daughters ; and in 1672, another decree was obtained to account. The plaintiff having purchased from the daughters of St. John several estates — amongst the rest, their equity of re- demption — brought his bill in 1700 to redeem ; which was dis- missed, (c) 62. The Court of Chancery, in further imitation of the Statute (a) Clapham v. Bowyer, 1 Cha. Eep. 286. Pearson v. Pulley, 1 Cha. Ca. 102. (b) White v. Ewer, 2 Vent. 340. Aggas v. Pickerel!, 3 Atk. 225. (c) St. John v. Turner, 2 Vera. 418. of the debt. After twenty years, this presumption may be made, even in Chancery. Sec Christophers v. Sparke, 2 Jac. & W. 234; Cholmondeley v. Clinton, Ibid. 179 ; Cooke v. Soltau, 2 Sim. & Stu. 154 ; Giles v. Baremore, 5 Johns. Ch. II. 545. In law, it is freely permitted to be made by the jury. Jackson v. Wood, 12 Johns. 242 ; Col- lins v. Torrey, 7 Johns. 278 ; Jackson v. Hudson, 3 Johns. 375 ; Jackson v. Pierce, 10 Johns. 414; Jackson v. Pratt, Ibid. 381 ; Inches v. Leonard, 12 Mass. 379 ; Morgan v. Davis, 2 H. & McHen. 9. If the mortgagee enters in the lifetime of the tenant for life of the mortgaged estate, the remainder-man will be barred of his right to redeem, after twenty years from such entry. Harrison v. Hollins, 1 Sim. & Stu. 471. Whether length of time can bar a bill to redeem, in any other case than that of a mortgage in fee simple, qucere ; and see Cownc v. Douglass, McCle. & Y. 274. 1 The possession must be an actual, quiet, and uninterrupted possession for twenty years, or a period of time sufficient to toll the right of entry at law. Moore v. Cable, 1 Johns. Ch. R. 385. Title XV. Mortgage. Ch. III. s. 62—65. 623 of Limitations, has determined that where the neglect to claim a redemption has arisen from infancy, 1 coverture, imprisonment, or absence from the realm, a possession of twenty years shall not operate as a bar to the redeeming a mortgage, (a) f 63. Alice Cornel being seised in fee of copyhold lands, she and her husband mortgaged them to Doctor Mountford for £30. The premises being forfeited by non-payment of the mortgage money, Doctor Mountford took possession thereof; and disposed * of them to his wife for life, the reversion to * 115 the defendant. Alice Cornel lived twenty-six years after the mortgage was made, and then died, leaving the plaintiff her son and heir, who brought his bill to redeem. The defendant insisted that the plaintiff ought not to redeem the mortgage, being of such long standing, and the premises having been con- veyed away to a stranger. A redemption, was, notwithstanding, decreed, on account of the coverture of Alice Cornel, (b) 64. Where twenty years have elapsed after the mortgagee's entering into possession, and the time has begun to run against the ancestor, no legal disability in the heir will have any effect, (c) $ 65. The plaintiff's father had mortgaged the estate in ques- tion in 1686. Ten years after, this mortgage was assigned over to the defendant, who by agreement was then let into possession, and had continued so ever since. The mortgagor had been sev- eral years dead, leaving the plaintiff's father, his eldest son and heir, of full age, who died in 1714, leaving the plaintiff, his son and heir, about twelve years of age, who brought his bill for an account, and to be let in to a redemption of the estate, of which the defendant had been in possession thirty-three years, so that he was greatly overpaid both his principal and interest. Lord King dismissed the bill ; and ordered it to be entered down as one of the reasons of such dismissal, that the plaintiff (a) Tit. 31, c. 2. (6) Cornel v. Sykes, 1 Cha. Rep. 193. Price r. Copner, 1 Sim. & Stu. 347. (c) Vide tit. 31, c. 2. 1 An infant i.s allowed the twenty years after his arrival of age, in the absence of any other rule. Lamar v. Jones, 3 Har. & McIIcn. 328. [t Sec Stat. 3 & 4 Will. 4, c. 27, § 28, and § 16, 17, 18. \ [ I Sec Stat. 3 & 4 Will. 4, c. 27, § 17.J 624 Title XV. Mortgage. Ch. III. s. 65—69 o had no remedy, by ejectment at law, to recover the possession, being barred by the Statute of Limitations ; and he thought that a reasonable guide for a court of equity to follow ; and though the plaintiff was an infant at his father's death, yet the twenty years had elapsed before, when there was no infancy ; and there- fore would afterwards run against infants, (a) 66. On a demurrer to a bill to redeem a stale mortgage, where the mortgagee appeared by the bill to have been in possession above twenty years, the Court held, the defendant need not plead the length of time, but might demur ; that no redemption should be allowed in such case, unless there was an excuse by reason of imprisonment, infancy, or coverture, or by having 116 * * been beyond sea; and not by having absconded, which was an avoiding or retarding of justice. That there did not seem to be any certain time when the length of possession of the mortgagee should bar the mortgagor's right of redemption ; but as twenty years would bar an entry or ejectment, abstracting from the excuses above mentioned, there was the same reason for allowing it to bar a redemption. The demurrer was allowed by Lord King, (b) 67. The same rule was agreed to in another case by Lord Talbot, who likewise declared it to be his opinion, though the case was afterwards compromised, that whereas the Court of Chancery had not in general thought proper to exceed twenty years, where there was no disability, in imitation of the first clause of the Statute of Limitations ; so, after the disability re- moved, the time fixed for prosecuting, in the proviso, which was ten years, ought in like manner to be observed, (c) 68. As the difficulty of accounting is the principal reason that courts of equity will not allow a mortgage to be redeemed, after the mortgagee has been twenty years in possession, when that objection is removed, by an account having been settled ivithin twenty years the right of redemption will be thereby preserved, f 69. The bill was to redeem a mortgage made in 1642. The mortgagee entered in 1650 ; three descents on the defendant's (a) Knowles r. Spence, 1 Ab. Eq, 315. (b) Jeimeri). Tracey, cited 3 P. Wms. 287, n. (c) Belch v. Harvey, 3 P. Wms. 287, n. 17 Ves. 99. [tSee Stat. 3 & 4 Will. 4, c. 27, § 28, and § 16, 17, 18.] Title XV. Mortgage. Ch. III. s. 69—72. 625 'O l "» part, and four on the part of the plaintiff; yet the length of time being answered for the greatest part, by infancy or coverture, and forasmuch as in 1686 a bill was brought by the mortgagee to foreclose, and an account then made up by the mortgagee, the Court decreed a redemption, and an account, from the foot of the account in 1686. (a) 70. A mortgage, after forty years' possession in the mortgagee, was held to be redeemable upon the foot of a stated account, with an agreement for turning interest into principal ; and the decree was affirmed by the House of Lords, (b) 71. Length of time was insisted on by the defendant as a bar to the redemption of a mortgage, sought by the plaintiff's bill, it being twenty-nine years old. Lord Hardwicke said, he was not for encouraging redemption * of mortgages of very * 117 long standing: but then the Court must not wink so hard as not to allow it in any case. There was a pretence of coverture, which was no excuse, because if a woman became afterwards discovert, the Statute of Limitations would run from that time ; and though she should marry again, it would run after the second marriage. The next excuse was, that there was a tenancy by the curtesy : but there would be no bounds to a redemption, if that was an excuse ; no mortgagee could ever be quieted in the possession ; for it was of no consequence to the mortgagee, who had the equity of redemption ; if they did not make use of that right, they should be barred. But though the mortgage was in 1718, in this case ; yet no longer than 1730, (twelve years,) the clerk to the solicitor for the mortgagor had actually settled an account of what was due for principal and interest, in order to pay off the mortgage ; and though no further proceedings had been, yet that should save the right of redemption, (c) 72. Any act of the mortgagee, by which he acknowledges the transaction to be still a mortgage within twenty years from the time when a bill is brought to redeem, will preserve the right of redemption : as if the mortgagee, by his will, disposes of the money, in case the mortgage be redeemed, (d) f ] (a) Proctor v. Cowper, 2 Vera. 377. (b) Conway v. Shrimpton, 5 Bro. Pari. Ca. 187. (c) Anon. 2 Atk. 333. Barron v. Martin, 19 Ves. 327, S. C. Cooper, 192. (<•/) ( Hodle v. Healey, 6 Mad. 181. Rayner v. Castler, Ibid. 274.) [ t Stat. 3 & 4 Will. 4, c. 27, § 28.] i A verbal recognition has been held sufficient. Shepperd v. Murdock, 3 Mur. 218. vol. i. . 53 626 Title XV. Mortgage. Ch. III. s. 73—76. 73. A., in 1679, mortgaged lands to J. S., for a small sum of money, by an absolute conveyance and defeasance ; soon after, A.'s necessities forced him to go abroad, where he died, and his heir knew nothing of the mortgage. In 1702, J. S. devised, that if the mortgage should be redeemed, the money should go in a particular manner. About sixteen years after the will, a bill was filed for redemption, to which was objected the great length of time ; and that, by the settled rules of the Court, a mortgage should not be redeemed after twenty years. Sir Joseph Jekyll held, that decreeing a redemption would be no wrong or hardship to the party, for he would have a greater interest than the law then allowed ; that the not decreeing a redemption would be establishing a very great imposition ; and though absolute conveyances and defeasances were formerly much used in mortgages, yet the same was left off as dangerous, 118 * * by losing the defeasance, which was avoided by being in the same deed ; that there was sufficient for redemp- tion by the declaration in the will, where the mortgagee called it a mortgage. Lord Commissioner Gilbert was of the same opin- ion, and a redemption was decreed, (a) 74. In a modern case, Lord Thurlow said, that a man taking notice by a will, or any other deliberate act, 1 that he is a mort- gagee, will take the case out of the rule, that a mortgagor shall not redeem after twenty years, (b) 75. Where the mortgagee submits to be redeemed, no length of time will operate as a bar to redemption. 76. A bill was brought to redeem, where the mortgagee had been in possession for twenty-five years. The defendant, as it was a family affair, submitted to be redeemed, notwithstanding the length of time. Lord Hardwicke said, he saw no color for redemption : but, on the defendant's submission, he decreed an account of what was due, and directed the plaintiff to pay the same in six months after the Master's report, whereupon the (a) Orde v. Smith, Sel. Ca. in Cha. 9. (6) Perry r. Marston, 2 Bro. C. C. 397. Whiting v. White, 2 Cox, R. 290. Recks v. Postlethwaite, Cooper, R. 161. Hodle v. Healey, 6 Mad. 181. 1 As, by a recital in a deed. Price v. Copner, 1 Sim. & Stu. 347. Or, by any written memorandum. Quint v. Little, 4 Greenl. 495. Title XV. Mortgage. Ch. III. s. 76—81. 627 defendants were to convey ; but, in default, the bill was to be dismissed without costs, (a) 77. Where no particular time is appointed for the payment of mortgage money, as in the case of Welsh mortgages? a re- demption will be decreed at any time ; for it is the duty of the courts, both of law and equity, to effectuate the agreement of the parties. 78. On a bill to redeem a mortgage, the defendant demurred, because the mortgage was sixty years old : but the demurrer was overruled, it appearing to have been agreed that the mortgagee should enter and hold till he was satisfied, which was in the nature of a "Welsh mortgage ; and in such a case, length of time was no objection, (b) 79. One Davids made a mortgage of lands in Wales by lease and release, to one Reynolds and his heirs, for securing =£300. The proviso was, that if Davids, his heirs or assigns, should, at Michaelmas, 1702, or any Michaelmas following, pay to Reynolds, his heirs or assigns, the sum of .£300, and all arrears of rent or in- terest which should be then due, the conveyance was to be void. It was decreed that this was in the nature of a condi- tional * purchase, subject to be defeated on payment, by *119 the mortgagor or his heirs, of the sums stipulated, on any Michaelmas-day, at the election of the mortgagor or his heirs; so that there was an everlasting subsisting right of redemption, descendible to the heirs of the mortgagor, which could not be forfeited at law, like other mortgages ; therefore there could be no equity of redemption, or any occasion for the assistance of a court of equity ; but the plaintiffs might, even at law, defeat the Conveyance, by performing the terms and conditions of it ; which were not limited to any particular time, but might be performed on any Michaelmas-day to the end of the world, (c) 80. This perpetual right of redemption may, however, be lost by a subsequent agreement. 81. Robert Hartpole, in consideration of £600, conveyed cer- («) Proctor v. Oates, 2 Atk. 140. Whiting u. White, Coop. R. 1. Hodle ?•. Healy, 1 Ves. & B. 53. (&) Orde v. Henning, 1 Vera. 418. (c) Howell v. Price, Prec. in Cha. 423. 1 P. Wms. 291. 1 See ante, ch. 1, § 19, note 628 Title XV. Mortgage. Ch. III. s. 81—83. tain lands by feoffment to Oliver Walsh in fee, subject to re- demption, on payment of the money, at any last day of July or December. By a subsequent deed, Hartpole, in consideration of £2300, conveyed the premises in the former deed, and also other premises, to Walsh ; and covenanted, for himself and his heirs, that whenever Walsh, his heirs or assigns, should give him eighteen months' notice in writing, requiring payment of the said £2300, that then Hartpole, his heirs or assigns, should pay the said £2300 within eighteen months after such request. After a period of one hundred years had elapsed, the heir of the mort- gagor filed a bill for redemption, which was dismissed ; and the decree of dismissal affirmed by the House of Lords, upon the ground, I presume, which is stated in the printed reasons ; that the second mortgage deed, comprising all the mortgaged premises, put it in the power of the mortgagee or his representatives to ascertain and limit the time of redemption, by demanding the mortgage money ; and such demand was admitted to have been made by the son of the mortgagee ; therefore, from that time, the mortgage, whatever it was originally, became of such a na- ture, as made the equity of redemption liable to a foreclosure, either by a decree, or great length of time, (a) 82. Where lands are conveyed to a person till, by perception of the rents and profits, he is satisfied his principal and interest, no length of time will bar the redemption. 120 * 83. * One Palmer, by lease and release and fine, in 1699, conveyed two houses to Hambly and his heirs, until he should receive by the rents and profits thereof £50, then to the use of James Palmer for life, &c. The mortgagee entered and continued in possession upwards of forty years. Upon a question whether these two houses were then redeemable, Lord Hard- wicke held they were, for that no bar arose from the length of time. He said there was no doubt, if this mortgage had been made in the common form, and subject to a forfeiture upon non- payment, the length of time would have been a bar ; the courts of law and equity squaring their rules by the Statute of Limita- tions. But this was a conveyance of the inheritance for securing the sum of £50 advanced by Hambly, in trust that he should continue in possession till, by perception of the rents and profits, he should be satisfied his principal and interest. There never (a) Hartpole v. Walsh, 5 Bro. Pari. Ca. 267. Title XV. Mortgage. C/i. III. 5. 83—86. 629 could be a forfeiture under this deed, for the mortgagee was only in the nature of a tenant by elegit. As soon as his principal was satisfied by being paid off, or by perception of the rents and profits, the estate ceased in Hambly, and Palmer or his repre- sentatives might have maintained an ejectment. Nor would any bar have arisen from the length of time, unless the Statute of Limitations had run, by the mortgagee's continuing in posses- sion twenty years after the money had been paid off. He said he did not see this case at all differed from a Welsh mortgage, though he did not say but there were circumstances which might create a bar, even in that case. But in common Welsh mort- gages, on tendering principal and interest, they might come into the Court of Chancery at any time, (a) *Lord Hardwicke concluded with declaring that the *121 plaintiff was entitled to redeem, upon the common terms of paying principal, interest, and costs ; and to have an account of what had been received, and what remained due ; and was not obliged to bring an ejectment for the possession, but should have a decree for it, after the mortgage was reported to be satisfied, (b) 84. Where the mortgagor continues in possession, [and no ac- knowledgment of the debt nor payment of interest by him for twenty years, the mortgagee will be barred upon the presumption of satisfaction, (c) 85. In an early case it was decided that if the mortgagor was in possession of any part of the mortgaged premises, he should be admitted to redeem the whole, though the mortgagee was in pos- session of the other part for more than twenty years without any payment of interest by the mortgagor to him.] 86. The case was Rakestraw v. Brewer, where a person in 1687 mortgaged a set of chambers in Gray's Inn, but continued in possession of the whole until 1700, at which time an order of the Bench was made, to deliver possession to the mortgagee, who entered into part ; but, as to the remainder, the mortgagor continued in possession until 1708, leaving the plaintiff an infant, A bill was brought to redeem in 1726. It was so decreed at the Rolls, and affirmed by Lord King, who said nothing was (a) Yates r. Hamblv, 1 Atk. 360. (&) Doc v. Reed, 5 Bar. & Aid. 232. (c) Christopher i\ Sparko, 2 Jac. & Walk. 223; and see Cholmondeley v. Clinton, 1 Jac. & Walk. 191. Hall V. Doe, 5 Bar. & Aid. 687. 53* 630 Title XV. Mortgage. Ch. III. s. 86—89. more clear, than that if the mortgagor was in possession of any part, he should be permitted to redeem the whole, as being in possession thereof ; and part he could not, separately from the whole ; therefore he should redeem the whole, (a) 87. [Notwithstanding the preceding case, it does not appear to be settled, that because a mortgage is redeemable as to part of the premises, that, therefore, in no case shall the equity of redemption be barred as to another part. A contrary doctrine may be inferred, from a case cited by Lord Loughborough, C, in Lake v. Thomas, as follows : " There was a very long case, I think, before Sir Thomas Clark, about redemption. The title of the estate had come into two different hands ; the part in the hands of one family was held irredeemable : as to the other, the mortgagee had kept accounts, and I think there was a 122* * devise of it as a mortgage: and the redemption was open as to that, after a number of years."] (b) 88. Where any species of fraud has been practised by a mort- gagee, at the time when the mortgage was made, a court of equity will interfere, and give relief, notwithstanding a possession of twenty years, (c) 89. Thus, in the case of Orde v. Smith, which has been already stated, it was expressed that the redemption should be with the mortgagor's own money. And the Master of the Rolls said, that the words in the defeasance, however fettered, signi- fied nothing, where the money was to be repaid ; for the bor- rower being necessitated, and so under the lender's power, the law made a benign construction in his favor. But this was a fraud in its creation, and in such case was redeemable after any length of time, (d) 2 f (a) Select Ca. in Chan. 55. (b) 3 Ves. 22. (c) (Marks v. Pell, 1 Johns. Ch. R. 594.) (d) Ante, § 73. 2 Crom. & Jer. 481. 1 Upon a decree to pay the mortgage debt, whether on a bill to redeem or a bill to foreclose, a short period is usually allowed to the debtor within which to pay the money. Where this period is not regulated by statute, the usual course in Chancery on a bill to redeem, is to allow six months after the debt is liquidated by the Master's report. Novosielski v. Wakefield, 17 Ves. 417 ; Perine v. Dunn, 4 Johns. Ch. R. 140. And this period will not, ordinarily, be enlarged, on motion for further time. Ibid ; Brinck- erhoff v.Lansing, 4 Johns. Ch. R. 65, 76; Thorpe v. Gartside, 2 Y. & Col. 730; t [Where mortgagees become lunatic, their committees are empowered to convey by the Stat. 1 Will. 4, c. 60, § 3, under the direction of the Lord Chancellor.] Title XV. Mortgage. Ch. III. s. 89. 631 Eyre v. Hanson, 2 Beav. 478 : Faulkner v. Bolton, 7 Sim. 319. But on a bill for a strict foreclosure, vesting the estate absolutely in the mortgagee, the time may be enlarged from six months to six months, upon equitable terms ; but this indulgence is not ordinarily granted in eases of a decree for the sale of the premises according to the usual practice of the Court. Perine v. Dunn, supra. The rule to allow six months is also applied on a bill by an equitable mortgagee. Parker v. Housefield, 2 My. & K. 419. 632 CHAP. IV. PAYMENT OF THE MORTGAGE MONEY AND INTEREST. Sect. 1. The Personal Estate first liable. Sect. 53. 4. Even in Favor of a Devisee. 9. A Disposition of the Personal Estate will not alter this 54. Rule. io. Nor a Charge on the Real Estate. 56. 15. Lands devised for Payment of Debts are applied. 58. 19. And also Lands descended. 02. 21. The Personal Estate may be exempted. 64. 25. A Specific Gift of a Chattel ivill exonerate it. 05. 27. The Personal Estate not liable. 66 28. I. Where the Debt was con- tracted by another. 67 30. Though there be a Covenant to pay it. 09 34. Or a Charge on the Real Estate. 71 36. II. Where an Equity of Re- demption is purchased. 73 41. Unless the Purchaser makes the Debt his own. 78 43. Mortgages by Husband and Wife. [Effect upon the Wife's right where the Equity of Re- demption is not reserved, to her. 2 Contribution between Tenant for Life and Remainder- man. Wliere Tenant for Life or in Tail pays off a Mortgage. Interest. Interest upon Interest not allowed. Exceptions: — 1. Where a Mortgage is assigned. 2. Where there is an Accoun t settled by the Parties. Or settled by a Master. 3. Where the Time is en- larged. 4. Where the Parties are In- fants. [ Interest by Mortgagee in Possession after Mortgage satisfied.] Who are bound to pay In- terest. Mortgage Money is payable to the Executor. Section 1. It is a rule in equity, where a person dies, leaving a variety of funds, one of which must be charged with a debt, that the fund which received the benefit^ by contracting the debt, shall make satisfaction. It has, therefore, been long settled, that if a person borrows money on mortgage, and dies, 124 * leaving a real and personal * estate, without specifically Title XV. Mortgage. Ch. IV. s. 1—4. 633 charging either of them with the payment thereof, his per- sonal estate shall be first applied towards the payment of the mortgage ; because it was increased by the money borrowed. 1 The executor of a mortgagor is, therefore, in general, compel- lable to redeem a mortgage for the benefit of the heir, even though there be no covenant in the mortgage for the payment of the money, (a) 2. A father and son joined in a mortgage of the father's estate; the father received the money, and the son conveyed in considera- tion of 105. There was no covenant in the mortgage for pay- ment of the money. The bill was brought to make both the real and personal assets of the father and son liable to the mort- gage money, the estate mortgaged being subject to prior incum- brances. Lord Hardwicke said it had been determined that the personal assets were liable, though there were no covenant in the deed for payment of the mortgage money, because there was a debt con- tracted by the borrowing. 2 This demand went a step further, seeking to charge the real assets of the father, in the hands of the son, which were not liable in the hands of the heir, even by a bond or covenant of his ancestor, unless the heir was specially named. As to the son, his assets were no way liable, for he con- veyed only in consideration of 10s., and had no part of the money, consequently was no debtor ; and neither his real nor personal assets were bound, (b) 3. In the case of Howell v. Price, it was contended that the personal estate of the mortgagor was not subject to the payment of the mortgage, because it was a conditional sale between the mortgagor and mortgagee, that the mortgagee should have the land until the mortgagor or his heirs should repay the money ; that it was in the election of the mortgagor whether he would pay it or not ; nor would any action of debt lie for it. The Court, however, decreed, that the personal estate of the mortgagor should be applied in payment of the mortgage, (c) 4. The personal estate is liable to the payment of a mortgage (a) Cope v. Cope, 1 Salk, 449. Bateman v. Bateman, 1 Atk. 421. Lanoy v. Athol,2 Atk. 444. Lord Portsmouth v. Lady Suffolk, 1 Vez. 31. (6) Lloyd v. Thursby, 1743, MS. Rep. (c) Ante, c. 3, § 79. i See 1 Story, Eq. Jur. § 571—577, where this subject is fully treated. 2 See ante, ch. 1, $ 15, note. 634 Title XV. Mortgage. Ch. IV. estate, except the leasehold given to his wife. The question was, whether there being, as usual, a covenant to pay the mortgage money, the leasehold premises devised to the wife should be liable to discharge the mortgage. Sir J. Jekyll, after taking time to consider of it, and being attended with precedents, decreed that, as the testator had charged the real estate by this mortgage, and, on the other hand, specifically bequeathed the leasehold to his wife, the heir should not disappoint her legacy, by laying the mortgage debt upon it, as he might have done, had it not been specifically devised ; and although the mortgaged premises were also specifically given to the heir, yet he to whom they were thus devised, must take them cum onere, as probably they were intended, (a) 27. The rule that the personal estate shall be first applied in payment of mortgages, is founded on the principle that the debt was originally a personal debt of the mortgagor, and the charge on the real estate merely a collateral security ; but where this principle fails, the rule does not apply. 28. Thus, where the mortgage debt was contracted by one per- son, and the lands so mortgaged descend to another, his personal estate will not be liable to the payment of the money. 29. Thus, it is laid down by the Court of Chancery in the case of Cope v. Cope, (b) that if a grandfather mortgages his estate, and covenants to pay the mortgage money ; and the land descends to his son, who dies without paying off the mortgage, leaving a personal estate and a son ; the intermediate son's personal estate shall not be applied in payment of the mortgage ; for the debt was not contracted by him, and so his personal estate derived no advantage from it. 30. A covenant to pay the money due on a mortgage, created by another person, will not make the personal estate oT the cove- nantor liable in the first instance to the payment of it ; 139* such a covenant *being only considered in equity as an additional security, which does not alter the nature of the debt. 31. Sir E. Bagot married the daughter and heir of Sir Thomas Wagstaff ; and for raising part of her portion, Sir T. Wagstaff mortgaged part of his estate for £3500, and died, leaving Lady (a) Oneal v. Mead, 1 P. Wms. 693. (b) 1 Salk. 449. Title XV. Mortgage. Ch. IV. s. 31—32. 643 Bagot his daughter and heir. The mortgagee, wanting his money, Sir Edward joined in an assignment of the mortgage, and cove- nanted that he or his wife would pay the money ; in conse- quence of which a question arose, whether, by reason of this covenant, Sir Edward's personal estate should be liable to pay the same. Lord Cowper declared, that this covenant by Sir Edward, did not oblige his personal estate to go in ease of the mortgaged premises ; forasmuch as the debt being originally Sir Thomas Wagstaff's, and continuing to be so, the covenant, upon trans- ferring the mortgage, was an additional security for the satisfac- tion only of the lender, and not intended to alter the debt, (a) l 32. George Evelyn the father, in pursuance of a power, mort- gaged an estate whereof he was tenant for life, with remainder to his first and other sons, for raising X1500. Upon an assign- ment of this mortgage, George Evelyn the son, covenanted to pay the mortgage money. At his death, it became a question whether his personal estate should be applied in payment of the mortgage made by his father, as he had covenanted to pay it. Lord King, assisted by Lord C. J. Raymond and the Master of the Rolls, was of opinion, that the personal estate of the son should not be applied to pay off the mortgage made by the father; forasmuch as the charge was made by George Evelyn the father, in pursuance of his power. That this, being the original debt of George Evelyn the father, though his personal estate, if any such were to be found, would be liable thereto, yet the son's personal estate ought not to be charged with the father's debt; and notwithstanding that the son did afterwards, on the assignment of the mortgage, covenant to pay the mort- gage money, yet since the land was the original debtor, the covenant from the son should be considered only as a surety for the land, (b) («) Bagot v. Ougliton, 1 P. Wms. 34". Donisthorpe v. Porter, 2 Eden, 1G2. (b) Evelyn v. Evelyn, 2 P. Wms. 659. 1 So, if the purchaser or devisee of the mortgaged premises renders himself person- ally liable for the debt, the land, so far as relates to the marshalling of assets, is still the primary fund for payment of the debt, unless a contrary intent be clearly shown. Duke of Cumberland u. Codrington, 3 Johns. Ch. 252. But the purchaser, by express direc- tions in his will, or by dispositions or language equivalent to express directions, may throw the burden upon his personal estate. Ibid. 644 Title XV. Mortgage. Ch. IV. s. 33—35. 33. George Delaval, in 1722, mortgaged lands to W. C. to se- cure the repayment of £5000 with interest at 5 per cent., 140 * and * by his will, made in 1723, he devised the lands to his nephew, G. Shafto, in tail male, remainder to the plaintiff in tail male, remainder over ; and died soon after. In 1725, G. Shafto suffered a recovery to the use of himself in fee. The mortgagee calling for his money, W. Gibbons agreed to ad- vance the .£5000 at 4 per cent., on an assignment of the mort- gage ; which was accordingly assigned to him, with a proviso for a redemption, on payment of the principal and interest at 4 per cent. And G. Shafto covenanted for himself, his heirs, executors, and administrators, to pay Gibbons the said principal and inter- est. In 1779, Shafto agreed to raise the interest to 5 per cent. ; and by deed covenanted with the mortgagees, that the estate should remain as security for the £5000, with interest at 5 per cent. ; and that he, his executors, &c. would pay such interest for the same. In January, 1782, G. Shafto died, the interest on the mortgage being then in arrear for about ten months. The bill was ^brought, among other things, to have the £5000 and inter- est paid out of the personal estate of G. Shafto, or at least the arrear of interest due at his death, and the additional 1 per cent. charged by the deed of 1779. But Lord Thurlow was clearly of opinion, that the personal estate ought not to discharge the mort- gage, the land being the primary fund. He also thought that the interest must follow the nature of the principal ; and that the contract for the additional interest, turning upon the same sub- ject, must be in the nature of a real charge, (a) 34. Although a person should charge his real and personal estate with the payment of his debts ; yet this will not render his personal estate liable to the payment of a mortgage created by another. 35. H. Lawson being seised in fee by descent of an estate at Cramlington, in the county of Northumberland, and of other estates both freehold and copyhold, devised his estate at Cram- lington, which was subject to a mortgage contracted by an an- cestor, and also ' another estate, to be sold ; charged the same, and also all his personal estate, with the payment of his debts ; and devised the residue of his real estate in trust for his brother, in strict settlement. («) Shafto r. Shafto, 2 P. Wms. 664, n. Title XV. Mortgage. Ch. IV. s. 35—36. 645 The question was, whether the personal estate of H. Lawson, the testator, was liable to the payment of this mortgage ; and * it was decreed by Lord Thurlow that the personal * 141 estate was not liable. On an appeal to the House of Lords, it was said — 1. That by the established rules of equity the personal estate of the tes- tator, whose will does not require such an application of it, is not to be applied in favor of those who claim his real estate, for the purpose of exonerating it from debts not originally contracted by such testator. Courts of equity distinguish between the debts of a testator and the debts of his estate. If the testator had received the money for which his real estate was pledged, his personal estate having received the benefit of the charge made upon the real estate, would in equity be liable to disincumber the real estate ; but if the testator's ancestor created the charge, the testator's personal estate not having received any augmenta- tion, at the expense of the real estate, could not in such a case be considered as a debtor to it ; and this held equally whether the testator was seised in fee simple, or for a less estate, in the lands charged. This was the true principle of all the cases de- termined on the subject. The circumstance of the testator's having been personally liable, was often mentioned, as the ground of decisions which have directed the application of personal estate in exoneration of real ; but there were many cases in which courts of equity had refused to direct personal estate to be so applied, though the testator had entered into covenants, or other personal engagements, to pay the debt for which the real estate had been pledged by his ancestors, or those through whom he claimed. 142 * * 2dly. There was no express mention made of the debt in H. Lawson's will, nor any clause that afforded a proof that he considered it as his debt. The testator created a fund for the payment of his debts, legacies, and funeral expenses ; but to app]y that fund, or any part of it, in discharge of the mortgage debt, would be to dispose of it for the payment of a debt which certainly was not his debt, in contemplation of law. The decree was affirmed, (a) 36. Where a person only purchases an equity of redemption, (a) Lawson v. Hudson, 1 Bro. C. C. 58. 3 Bro. Pari. Ca. 424. Tankcrvillc v. Fawcctt, 1 Cox, R. 237. 646 Title XV. Mortgage. Ch. IV. 5. 36—40. 5 his personal estate will not be applied towards payment of the mortgage money; because it was not benefited by the loan. 37. Thus, it is laid down by counsel in the year 1681, as a doctrine fully established in Chancery, that where a person pur- chases an equity of redemption, in that case, although he pur- chases the land, subject to the debt due on the mortgage, and must hold the lands subject to such debt, yet that debt could never charge his person, nor did it in any sort become his own proper debt, (a) 38. John Aynesley purchased an estate from William Aynesley, which was subject to a mortgage for X2000. Not having paid it off, he devised the lands, together with other real estates, but subject nevertheless to the payment of all his debts, to his son, in strict settlement. The question was, whether the personal estate of John Aynesley should be applied in discharge of this mortgage. Lord Thurlow said, this case was exactly the same with that of Rochfort v. Belvedere, 5 Brown's Pari. Ca. 299, where the House of Lords decreed that the personal estate was liable to the payment of the mortgage ; but, notwithstanding, he said he was of a different opinion. The personal estate never was liable, nor was the party ever liable, to an action for recovery of the money ; and therefore it ought not to be applied in payment of the mort- gage, (b) 39. A covenant from the purchaser of an equity of redemption for payment of the mortgage money, will not make his personal estate liable in the first instance to the payment of it. 143 * * 40. Mr. Leigh, the testator, had purchased several es- tates subject to mortgages ; with regard to one of which, he entered into a covenant for payment of the mortgage money, for the purpose of indemnifying a trustee ; and as to another which weS' a part only of an estate, subject to a mortgage, upon splitting the incumbrance, both parties covenanted to pay their respective shares, and to indemnify each other. Lord Hardwicke thought these covenants would not have the effect of making the mortgages personal debts of the testator, (a) Pockley v. Pockley, 1 Vern. 37. (b) Tweddell v. Tweddell, 2 Bro. C. C. 101. Butler v. Butler, 5 Ves. 536. Aucaster v. Mayer, ante, § 24. Title XV. Mortgage. Cli. IV. s. 40—42. 647 they having been entered into for particular purposes ; and de- clared his opinion accordingly in the decree, (a) 1 41. But where it appears to have been the intention of the purchaser of an equity of redemption to make the debt his own, there his personal estate will be applied in payment of the money due upon it. 2 42. A person agreed to purchase an estate which was in mort- gage for <£90, of which he covenanted to pay <£86 to the mort- gagee, and £4 to the owner of the estate. The purchaser died • and the question was, whether the heir at law was entitled to have the money paid out of the personal estate of the pur- chaser. Lord Hardwicke was of opinion that he was. 1st. It was an express contract to pay, and the representative of the mortgagor might maintain an action for the money ; and so might the mort- gagee oblige the mortgagor to let him make use of his name to («) Forrester v. Leigh, cited 2 P. Wins. 664. 1 But if an estate descends, subject to a mortgage, and the heir creates a new mort- gage for security both of the old debt and of another contracted by himself, fixin"- a new day of payment, he makes himself personally liable for both. Lushington v. Sewall, 1 Sim. 435. 2 Where the mortgagor has conveyed the entire equity of redemption, absolutely and without warranty, the mortgaged premises constitute the primary fund for the payment of the debt ; and the mortgagor is not a necessary party to a bill of foreclosure. Bio-c- low v. Bush, 6 Paige, 343; Heyer v. Pruyn, 7 Paige, 465. But where he has sold only a part of the equity of redemption, for good or valuable consideration, the entire resi- due is applicable in the first instance to the discharge of the mortgage, in favor of the bona fide purchaser. Hartly v. 'Flaherty, Lloyd & Goold, Cas. Temp. Plunket, 216 ■ [Howard Ins. Co. v. Halsey, 4 Sandf. Sup. Ct. 565. It is a general principle that where the owner of land mortgaged for a debt, afterwards sells the equity of redemption subject to the lien of the mortgage, and the purchaser assumes the payment of the mortgage as a portion of the purchase-money, the latter becomes personally liable for the payment of the debt of the former in the first instance, and if the mortgagor is compelled to pay it he can recover it from the purchaser of the equity of redemption. Flagg v. Thurber, 14 Barb. Sup. Ct. 196 ; Andrews v. Wolcott, 16 lb. 21 ; Russell v. Pistor, 3 Selden, (N. Y.) 171 ; see Mellen v. Whipple, 1 Gray, 317. Where the estate of the mortgagor and the mortgagee coexist in the same person a court of law will, when necessary for just purposes and to effectuate the proper in- tention of the parties, treat them as distinct interests. Hutchins v. Carleton, 19 N. II. 487. But where such a person, i. e., one in whom the mortgage and the equity have united, takes and retains other security for the debt, qucere how far he may be required by the debtor to apply the value of the land towards extinguishing the debt, before resorting to the other fund of which the general property remains in such debtor. Smith v. Packard, lb. 575; Jackson v. Tift, 15 Geo. 557 ; Vannest v. Latson, 19 Barb. Sup. Ct. 604; Walker v. Baxter, 26 Vt. (3 Dean,) 710.] 648 Title XV. Mortgage. Ch. IV. 5. 42—44. recover the money. This was as strong a case as could well come before the Court. 2dly. It being agreed to be part- of the purchase-money, the heir would, if there was nothing more in the case, be entitled to have the money paid out of the personal estate, as where one articles to purchase an estate, and dies before the purchase is completed, (a) 43. Where a wife joins Iter husband in a mortgage of her own estate, and the money is applied for the husband's benefit, the personal estate of the husband will be first applied in payment of the mortgage. 1 44. Lord Huntingdon and his first wife joined in a mortgage for a term of years of her estate for £4500, by the execution of a power of appointment, to pay for a place of captain of the band of pensioners, for Lord Huntingdon, who promised 144* *to repay the money out of the profits of the place, or otherwise. The mortgagee, together with the earl and countess, assigned the mortgage, subject to a proviso, that if the earl or countess, or either of them, should pay the money and interest, the term should cease. The earl afterwards paid off the mortgage, and procured the term to be assigned to a trustee for himself. The countess died; and the earl having married again, made his will, and devised the mortgage, with all other his personal estate, to his executors, in trust for his children by his second wife. The son of the first wife, who became Lord Hun- tingdon upon the death of his father, filed his bill to have the term assigned to attend the inheritance, which had descended to him from his mother. Lord Keeper Wright declared he could not decree for the plaintiff, but upon the usual terms of redemption, on payment of principal, interest, and costs, and discounting profits. The plaintiff appealed to the House of Lords, insisting that (a) Parsons v. Freeman, Amb. 115. Waring v. Ward, 7 Ves. 332. Earl of Oxford v. Kod- ney,_14 Ves. 417. 1 Where she joins with the husband in a mortgage for his debt, she is entitled, after the husband's death, to the rents and profits of her dower or other interest in the premises, until foreclosure. And if the debt is payable by instalments, and the amount which has become due can be raised by a sale of only a part of the premises, the in- come of her share of the residue will not be taken to satisfy the portion of the debt which is not yet payable. Bank of Ogdensburg v. Arnold, 5 Paige, 39. Title XV. Mortgage. Ch. IV. s. 11 17. 649 he was in effect decreed to pay the mortgage debt, which was wholly a debt of the late earl, created to serve his particular occasions, and never was in any shape the debt of the late count- ess, nor did any part of the money come to her use. *It was ordered and adjudged, that so much of the *145 decree as was complained of should be reversed ; and that the premises in question should be discharged from the de- mands of the respondents, and the term assigned, as the appel- lant should direct, (a) 45. Mr. Alexander and his wife, who was the daughter and heir of one Dayly, made a mortgage of the wife's estate. The husband covenanted to pay the money ; but the equity of * redemption was reserved to them and their heirs. Mr. * 146 Alexander, the husband, died ; and made the defendant his executor, the wife surviving. After a decree to account, the question was upon exceptions to the Master's report, whether the mortgage money should stand charged upon the land, or the land be exonerated out of the husband's personal estate. Per Our. — The husband having had the money, is in equity the debtor, and the land is to be considered but as an additional security ; and so decreed it, according to the judgment in the House of Peers, in the case of Lord and Lady Huntingdon, (b) 46. The wife joined with her husband in a fine to raise £400 out of her own estate, for the use of her husband, to equip him as an officer in the army. The question was, whether the hus- band's personal estate should be applied to exonerate the mort- gage. Per Cur. — The wife subjected her estate to supply the wants of her husband. It must be taken to be a debt due from the husband ; and to be paid out of his personal estate, if he be able ; but all other debts should be first paid, (c) 47. Lord Hardwicke has said — "Suppose a husband has a mortgage upon his estate, and a wife joins with him in charging her own ; if she survives him, though her estate is liable to the mortgagee, yet in this court her estate shall be looked upon only as a pledge; and she is entitled to stand in the place of the mort- gagee, and to be satisfied out of her husband's estate." (d) («) Huntingdon v. Huntingdon, 1 Ab. Eq. 62. 2 Bro. Pari. Ca. 1. (0) Pocock i\ Lee, 2 Vera. 604. (c) Tate v. Austin, 2 Vern. 689. 1 P. Wms. 264. (d) 2 Atk. 384. 3 Bro. C. C. 545. 1 Vez. 252. vol. i. 55 650 Title XV. Mortgage. Ch. IV. s. 48—50 5 48. [But where the charge on the wife's estate is not the debt of the husband, her claim to exoneration fails. Thus, where the estate descended to the wife subject to a mortgage, and the mortgage was assigned, the husband cove- nanting in the assignment to pay the mortgage money ; it was decided that, the debt not being the husband's, his personal assets should not exonerate the wife's estate ; the husband's covenant was only considered an additional security, (a)] 49. So also, where money is borrowed on the wife's estate, partly to pay her debts, and partly for the husband's use, the hus- band will not be required to indemnify his wife's estate against any part of it. 1 50. On a bill to have a sum of £1100 paid by the defendant, as having been borrowed by him on the security of his late wife's estate, Lord Hardwicke said, the general rule was, that where the husband borrowed a sum of money for his own use, and 147 * the *wife joined in a mortgage of her jointure for repay- ment of it, her estate should be a creditor on the husband for that sum. So it was where there was no settlement, and the wife mortgaged her estate of inheritance to raise money for the husband. But there was no instance where, at the time of such mortgage or security made, if at the same time a settlement was made either before or after marriage, that the husband was considered as answerable to the wife's estate, for the money borrowed ; that was an exception out of the general rule ; other- wise it would be very inconvenient to men that were going to be married, and, nine times in ten, contrary to the intention of the parties. Besides, in this case, the greatest part of the money borrowed was to pay off a debt due from the wife dum sola ; and it was against equity to say that the husband ought to indemnify the wife's estate against that debt. The husband, (a) Bagot v. Oughton, 1 P. Wms. 347. 1 A feme sole made a mortgage, and afterwards married. The mortgage was then assigned, the husband joining in the transfer, and covenanting to pay the money ; which, during the coverture, he paid in part. By his will he made a disposition of the mortgaged premises, and died, living the wife ; who afterwards filed a bill to redeem the mortgage, claiming to be entitled by survivorship. The redemption was decreed upon the terms that the husband's estate should stand in the place of the mortgagee, for the sums paid by him out of his own property, in reduction of the mortgage debt. Pitt v. Pitt, Turn. & Russ. 180. Title XV. Mortgage. Ch. IV. s. 50—52. 651 it was said, was liable to the wife's debts, contracted before marriage ; and so he was : but if he was not sued in her lifetime, he was not liable even at law, unless she had a separate allow- ance, and left any thing behind her, which he possessed as her executor. It was said, part of this money was paid to the husband and wife, not in order to discharge the wife's debts, but to the hus- band's use ; that payment to the husband and wife was payment to the husband. The Court would not, however, set up two presumptions, but adhere to one only. As the greater part was manifestly not intended to be accounted for by the husband to the wife's estate, so he should take it that the rest was not. It was said the husband gave bond for payment of the money, and performance of covenants ; that the creditors might have sued him on this bond, and then he must have come as plaintiff into the Court of Chancery, to be repaid out of the wife's estate, which the Court would not have done ; and there was no more reason for it then ; and he was of opinion the Court would have relieved him. Therefore decreed the defendant only to keep down the interest for life, &c. (a) 51. If, however, it appear not to have been the intention of the wife to stand as a creditor for the mortgage money, the husband's personal estate will not be liable. 52. A bill was filed by the widow of William Clinton, to have her estate exonerated, by the estate of her husband, from a mort- gage made by the husband and plaintiff, for which he received * the money. The facts were, that in 1746, the * 148 plaintiff intermarried with William Clinton, who was then in indifferent circumstances, and received from her father a proper fortune. In 1762, she became entitled to some real estates ; and, in order to raise money for her husband, she joined with him in a mortgage of those estates. After the death of Clinton, the plaintiff filed her bill to have her estates exonerated, to which the devisee of the personal estate and executor of her husband put in an answer, in which they contested the plaintiff's right, on the ground that it was a voluntary gift, by the plaintiff to her husband, in order to enable him to complete a purchase (a) Lewis v. Nangle, Amb. 150, S. C. 2 P. Wms. 664, in nolis. See Kinnoul v. Money, 1 Ves. 186, and 1 Rop. Husb. and Wife, c. 4, § 2. 652 Title XV. Mortgage. Ch. IV. s. 52—54. which had been made at her request ; and that upon settling some accounts, the matter respecting the mortgage had been fully entered into, on which occasion the plaintiff admitted she had been advised to claim the mortgage money, but had relin- quished that idea, and did not desire it, and promised to dis- charge the same, and accept the provision made for her by her husband's will. Lord Thurlow admitted parol evidence of the wife's having relinquished this demand against her husband ; and dismissed her bill, (a) 53. Where lands are in settlement, and the husband and wife join in a mortgage of them, if the deed creating the security is no more, in effect, than a simple charge on the lands, and does not alter the limitations further than is necessary to create the charge, the right of redemption, although it be reserved by the deed to the husband and wife, or either of them, their or either of their heirs, belongs only to those ivho are entitled under the settlement, and not to the heirs of the husband, if he survives the wife. But where the wife's lands, on her marriage, were limited to the use of the husband and wife successively for life, remain- der to their issue, with the reversion to the wife and her heirs, and the deed contained a power of revocation and new appoint- ment, and the husband and wife made a mortgage for a term of years, and afterwards executed a deed of further charge, and levied a fine, and thereby limited the lands, subject to the term to themselves for life, with remainder to the heirs of their bodies, and for default of such issue to the right heirs of the survivor, it was held, that, as there was, on the face of the deed, a clear manifestation of an intention to effect a change of the beneficial interest, the husband and his heirs (the wife being dead 149 * * and there being no issue) was entitled to the equity of redemption, (b) 54. "Where an estate in mortgage was vested in a person for life, with remainder to another in fee, the rule formerly was, that the tenant for life should pay one third, and the remainder-man the other two thirds, of the money due on the mortgage. [But the rule respecting contribution by the tenant for life, of one third (a) Clinton v. Hooper, 3 Bro. C. C. 201. (6) Jackson v. Lines, 1 Bligh, 104, in which all the authorities on this point are referred to. Ruscombe v. Hare, 6 Dow, 1. See Hop. Husb. & Wife, vol. 1, c. 4, § 3. Title XV. Mortgage. Ch. IV. s. 54. 653 of the principal money, is ^iow exploded. 1 He is bound, how- ever, to keep down the interest, and beyond that, to contribute, in some cases, in proportion to the benefit he derives from the liquidation of the mortgage.] And where the mortgage is not redeemed during the life of the tenant for life, there the whole of the money must be paid by the person who becomes possessed of the remainder, who cannot compel the representatives of the tenant for life to contribute any thing towards the payment of the mortgage money, (a) (a) Ballet v. Sprainger, Free, in Cha. 62. Clyatt v. Battison, 1 Ab. Eq. 117. 5 Ves. 107. White v. White, 4 Ves. 33. 9 Ves. 554. Montfort v. Lord Cadogan, 17 Ves. 485. 19 Ves. 635. 2 Mer. 3. Allan v. Backhouse, 2 Ves. & Bea. 70; and see Roper on Leg. vol. 1, c. 4. § 6, 3d ed. 1 On the subject stated in the text, Mr. Coventry has the following note :— " This rule, as to the tenant for life paying a gross sum, is now exploded as unreasonable : Penrhyn v. Hughes, 5 Ves. 107 ; White v. White, 4 Ves. 33 ; and the following more equitable one adopted in its stead, viz., that the tenant for life shall contribute beyond the in- terest in proportion to the benefit he derives from the liquidation of the mortgage debt, and the consequent cessation of annual payments of interest during his life, (which, of course, will depend much on his age, and the computation of the value of his life.) And a refer- ence will be directed to the Master to inquire what proportion of the capital he ought to pay. Allan v. Backhouse, 2 Ves. & Bea. 70. See also Nightingale v. Lawson, 1 Bro. C. C. 440; Shrewsbury v. Shrewsbury, 1 Ves. jun., 233, 234; Jennings v. Looks, 2 P. Wms. 278 ; Jones v. Selby, Pre. Ch. 289; Lloyd v. Johnes, 9 Ves. 37; Montford v. Cadogan. 17 Ves. 485. This subject was much discussed at the Rolls, in the case of White v. White, 4 Ves. 24, and 5 Ves. 554, and afterwards before the Chancellor, on appeal, when the decision of the Master of the Rolls was as to the main points affirmed. 9 Ves. 554. Lord Alvanley, M. R., is reported to have said, that the tenant for life ought to pay nothing but the interest. The present Lord Chancellor, however, when that case came on upon appeal, disapproved of that doctrine, on the ground of the possible inequality; and stated the rule as an obiter dictum to be, that in general cases, where the tenant for life is bound to pay any thing beyond the interest, he is bound to pay in proportion to the benefit he de facto takes under the transaction ; and that the remain- der-man ought also to pay with reference to his proportion of the benefit. But his Lordship would not finally decide the question then, it being in that case unnecessary to give a definite opinion on the subject. The rule, however, as above stated, was sub- sequently acknowledged and acted on, in the case of Allan v. Backhouse, ubi supra. and such must now be taken to be the standing doctrine of the Court. - ' Sec 1 Pow. Mortg. 312,313, Rand's ed. ; 3 Pow. Mortg. 921, note (n). Sec also 1 Story, Eq. Jour."* 487,488, 488, a; Swaine v. Pcrine, 5 Johns. Ch. 482; Clyatt v. Batteson, 1 Vern. 404; Thynn v. Duvall, 2 Vern. 117 ; 4 Kent, Comm.74, 75. The same gen- eral principle was administered in Foster v. Milliard, I Story, It. 77 ; where a sale of an estate was made by the tenant for life and the person in remainder ; and it was held, in the absence of countervailing circumstances, that the purchase-money should be divided according to their respective interests, calculated according to the value of the estate of the tenant for life, by the common tables. 55* 654 Title XV. Mortgage. Oh. IV. s. 55—57. 55. If a tenant for life of an equity of redemption pays off the mortgage money, and procures the term to be assigned to a trustee for himself, makes improvements, and dies, and after- wards the remainder-man comes to redeem, [the rule formerly was that] the representatives of the tenant for life should have an allowance of two thirds of the lasting improvements, but noth- ing for the other third, because he received the benefit thereof during his life. [But modern decisions seem to have altered this rule, and to have allowed the tenant for life and the mortgagee making lasting improvements, the whole of the principal money expended, and interest from the period of the advances ; but of course the representatives of the tenant for life cannot claim in- terest of the money paid in discharge of the mortgage debt, for that the tenant for life was bound to keep down.] (a) 56. Wliere a person who is tenant for life of an estate that is mortgaged pays off the mortgage money, his personal represen- tatives will be entitled to call on the remainder-man for all the principal money so paid ; but where a tenant in tail pays off a mortgage, the presumption is, that this was done in exoneration of the estate, unless the contrary appears, (b) 57. A, tenant in tail of an equity of redemption, under his father's will, paid off a mortgage secured on the estate, by a term for years, but did not procure an assignment of the term, and afterwards devised the lands. The remainder-man 150 * claimed * the lands, the estate tail not being barred, dis- charged of the incumbrance. Lord Hardwicke held, that there being a terra for years in the mortgagee, which stood out in point of law, as it did before, no assignment in law having been made thereof, none of the parties before the Court had the legal estate, for a conveyance of which the plaintiff came; therefore, that conveyance must be upon equitable grounds. So far as it appeared, tenant in tail paid it off with his own money. He might have taken an assignment of the term, either in trust to attend the inheritance, which would have ended the question, or in trust for himself, his execu- tors, or administrators ; which would, notwithstanding the re- mainder over, have kept this incumbrance on foot for the benefit (a) Newling r. Abbot, 1 Yin. Ab. 1S5. Decree in Webb v. Eorke, 2 Sch. & jLef. 661, 674. Godfrey v. Watson, 3 Atk. 517. Turner v. Crane, 1 Ver. 184, n. 1. Walley v. W alley, lb. 487. (b) Tit. 3, c. 1, § 27, 28. Tit. 2, c. 1, § 40. Tit. 12, c. 3, § 12, et seq. Title XV. Mortgage. Ch. IV. s. 57—59. 655 of his personal estate, and those entitled thereto ; or he might have called for an assignment of it during his life, if he had dis- covered this limitation in remainder, that it might have been made for the benefit of his executors, not of the remainder. But his not doing any of these clearly proved, that he conceived he had the absolute ownership of the estate ; and the Court could not decree to persons claiming this, in contradiction to his appre- hension and intent, a conveyance of the inheritance, and like- wise of the term, without making a satisfaction to the personal estate of the tenant in +ail ; as that would be contrary to the maxim, that he who would have equity must do equity. The plaintiffs were decreed to have the estate, subject to the money paid by the tenant in tail, in discharge of the mortgage, (a) 58. In all mortgages, it is expressly stipulated that the mort- gagor shall pay interest for the money borrowed ; but in conse- quence of the Stat. 12 Ann. st. 2, ch. 16, s. 1, all assurances for the payment of any principal money to be lent, whereupon there shall be reserved above 5 per cent., shall be utterly void. And Lord Hardwicke has said, that if a mortgage be drawn only for 5 per cent, and the mortgagee takes six, it would be void upon the word take in the statute. (b) 1 f 59. Interest on mortgages $ is due de die in diem ; and, * 151 (a) Kirkham v. Smith, 1 Ves. 258. (&) Tit. 32, c. 27. 3 Atk. 154. 1 This dictum of Lord Hardwicke, in its obvious acceptation, is not law. The secu- rity itself is not affected by usury, unless the usury is thereby reserved ; i. e. unless it is given upon an usurious agreement, made at the same time. If the security is for the actual debt only, with lawful interest, and afterwards, upon a new motive, usury is received ; the taker is liable to the penalty of the statute, but the security is good. See Rex v. Allen, T. Raym. 197 ; Abrahams v. Bunn, 4 Burr. 2253 ; Gray v. Fowler, 1 H. Bl. 462; Floyer v. Edwards, Cowp. 114; Ferrall v. Shaen, 1 Saund. 295, n. (1,) by Williams. Mr. Ord has attempted to vindicate Lord Hardwicke's remark, by suppos- ing him to mean that the taking of usury was conclusive evidence of an original cor- rupt agreement to take it. Ord on Usury, p. 104. See Chitty on Contracts, p. 540— 549, with Perkins's notes. [t By the statute 14 Geo. 3, ch. 79, it is enacted, that all mortgages which shall be made and executed- in Great Britain, of or concerning any lands, tenements, heredita- ments, &c, being in the kingdom of Ireland, or in any of the British colonics or plan- tations in the West Indies, to any of his majesty's subjects, and all bonds, covenants, and securities, for payment thereof, and the interest thereof, and all transfers and assignments thereof, shall be as good and effectual as if the same were made and exe- cuted in the kingdom, island, plantation, or place where the lands, &c, severally lie, at the rate of interest allowed in those places. Tit. 32, ch. 27.] [t By Statute 3 & 4 Will. 4, ch. 26, s. 42, it is enacted, that after the said 31st day of 656 Title XV. Mortgage. Ch. IV. s. 59—61. therefore, if a person be entitled to the interest of a mortgage for his life, with remainder to another, his executor will be entitled to interest up to the day of his death, (a) 60. It has been usual, where the interest of money lent on mortgage is reserved at the rate of five per cent, to insert a proviso, that if it is punctually paid, the mortgagee will accept of four, or four and a half per cent, which is allowed to be good ; but where the interest reserved was five per cent, with a proviso that if it was not paid within two months after it became due, it should be raised to five and a half per cent, and the interest was not paid within the time, the Court of Chancery would not allow the mortgagee to recover the additional half per cent., because it was in the nature of a penalty, and, therefore, relievable in equity, (b) 61. It is held in an old case, that where money was lent upon mortgage at five per cent, and the mortgagor covenanted to pay six per cent, if he made default for the space of sixty days after the time of payment, the Court decreed that from default made he should pay six per cent. The covenant being the agreement of the parties, was not to be relieved against as a penalty. And the same doctrine was held by the House of Peers in 1725, on an appeal from a decree of the Court of Chancery of 152 * * Ireland. It does not, however, appear how a distinction can be made between the creation of a penalty by a pro- viso, or by a covenant, (c) (a) Edwards v. Warwick, 2 P. Wins. 176. (b) Jory v. Cox, Prec. in Cha. 160. Strode v. Parker, 2 Vera. 316. Nichols v. Maynard, 3 Atk. 519. Brown v. Barkham, 1 P. Wms. 652. (c) Halifax v. Higgins, 2 Vera. 134. Stanhope v. Manners, 2 Eden, 197. Burton v. Slat- tery, 5 Bro. Pari. Ca. 233. December, 1833, no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any dis- tress, action or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent ; provided, nevertheless, that where any prior mortga- gee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years.] Title XV. Mortgage. Ch. IV. s. 62—66. 657 62. It is a general rule that interest shall not be allowed upon interest; and that no agreement, entered into at the time when a morto-ao-e is made, will be sufficient to make future interest principal. 1 63. A mortgagee compelled the mortgagor to agree that the interest should be turned into principal at the end of every six months. But Lord Hardwicke relieved the mortgagor ; and said that interest was seldom allowed to be turned into principal, except upon the advance of fresh money; and even then, it was reckoned a hardship upon the mortgagor, and an act of oppression, (a) 64. There are, however, several exceptions to this rule : 2 — 1. Where the mortgagee assigns over the mortgage to a stranger bond fide, and with the consent of the mortgagor, all the money paid by the assignee that was due to the mortgagee will be con- sidered as principal ; and the assignee shall have interest upon the interest then due, and paid by him, as well as upon the principal originally lent, (b) 65. — 2. Where an account has been regularly settled between the parties, and signed by them, it will carry interest, because in such a case there is an implied contract on the part of the debtor to pay. And all contracts to pay, (says Lord Thurlow,) undoubt- edly give a right to interest from the time when the principal ought to have been paid, (c) 66. WJiere an account has been settled, between a mortgagor and a mortgagee, by a Master in Chancery, pursuant to an order, and confirmed by the Court, interest will be allowed upon what is due, from the time of such settlement, even though part of it be in respect of costs, (d) [So where a mortgage of land was made, by way of collateral (a) Thornhill v. Evans, 2 Atk. 330. Sackett v. Bassett, 5 Mad. 58. (6) Askenhurst v. James, 3 Atk. 270. Conway v. Shrimpton, 5 Bro. Pari. Ca. 187. (c) Brown v. Barkham, 1 P. Wins. 652. Boddam v. Piiley, 2 Bro. C. C. 2. (d) Kelley v. Bellew, 4 Bro. Pari. Ca. 495. 2 Ves. 471. 1 T. & Pus. 477. 1 But if a new note is given for the amount of principal and interest then due ; or the debt is otherwise liquidated, by adding the interest to the principal, as a new capital carrying interest, by agreement of the parties, it is valid. Brown v. Barkham, 1 P. Wms. 652. And see Brown v. Brent, 1 H. & Munf. 4 ; Hamilton v. Le Grange, 4 T. R. 613 ; 2 H. Bl. 144, S. C. ; Pierce v. Rowe, 1 N. Hamp. R. 179 ; Dow v. Drew, 3 N. Hamp. R. 40. 2 Sec, on the subject of annual rests, ante, ch. 2, § 30, note. 658 Title XV. Mortgage. Ch. IV. s. 66—71. security, for such balance as might eventually be due from the customer to his banker, it was no objection to charging the land with such balance, that it had been partly composed of interest turned into principal by rests, and interest on that interest, according to the course of dealing between a banker and his customers, (a)] 153 * * 67. — 3. Where the Court of Chancery enlarges the time for the mortgagor, that is a favor, as he would other- wise be foreclosed ; and it is but just and reasonable that he should pay for it. (b) 68. Thus where on a bill to foreclose, principal, interest, and costs were lumped into one sum by the Master; and it was held, that if the mortgagor, or a puisne mortgagee, prayed longer time to redeem, they must pay interest for the whole sum. (c) 69. — 4. In the case of infants, interest is not generally allowed on interest. For one of the grounds upon which in- terest is turned into principal, is as a punishment on the mort- gagor for the non-performance of his contract, which ought not to operate against an infant ; but where a benefit accrues to an infant, it is otherwise. 70. J. S. mortgaged his estate to the plaintiff, and died, leav- ing the defendant, his daughter and heir, who was an infant, and had nothing to subsist on but the rents of the mortgaged estate. The interest being suffered to run in arrear for three years and a half, the plaintiff grew uneasy at it, and threatened to enter on the estate, unless his interest might be made prin- cipal ; upon which the defendant's mother, with the privity of her nearest relations, stated the account ; and the defendant her- self, who was then near of age, signed it. The account being admitted to be fair, it was held that though regularly interest should not carry interest, yet in some cases, and in some circum- stances, it would be injustice if interest should not be made principal. And the rather in this case, because it was for the infant's benefit, who, without this agreement, would have been destitute of a subsistence, (d) 71. [ Where a mortgagee in possession receives the rents of the mortgaged estate, after his debt has been satisfied, and does not (a) Rufford v. Bishop, 5 Russ. 346. (b) 1 M. & Yo. 567. (o) Neale v. Attorney-Gen., Moseley, 246. (Bruere v. Wharton, 7 Sim. 483.) (c?) Chesterfield v. Cromwell, 1 Ab. Eq. 287. Title XV. Mortgage. Ch. IV. 5. 71—74. 659 immediately pay them over to the mortgagor, but retains them for his own use, he is chargeable with interest thereon, for he is availing himself of another man's money, (a) 72. So, when he is in the actual possession of the mortgaged premises, though not in receipt of rent, he is, in fact, in receipt of profits, and he will be charged with an occupation ; and the Court of Chancery will direct annual rests to be made with the view to the computation of interest.] * 73. All persons seised in fee simple of lands in mort- * 154 gage are bound to pay the interest of the mortgage ; and even a tenant for life may be compelled by the person in remain- der or reversion to keep down the interest of a mortgage. But where a person is tenant in tail in possession, and in receipt of the rents and profits of lands which are mortgaged, if he suffers the interest to run in arrear, neither the issue in tail, nor the remainder-man, can compel him to pay the interest incurred dur- ing his possession. For the courts of law, as well as those of equity, consider the remainder or reversion to be in the power of the tenant in tail. Nor will his personal estate be liable, after his death, to the payment of the interest, which became due in his lifetime, (b) 74. A person made a mortgage for years ; then entailed the estate mortgaged on himself and the heirs male of his body, remainder to his brother, and died leaving issue an infant son, who suffered the interest to accrue on the mortgage for several years ; and died just before he came of age, leaving a personal estate. Whereupon it was objected that the executors of the infant son, seeing their testator took the rents and profits of the estate, ought to keep down the interest ; the rather for that he never had it in his power to bar the remainder by a recovery. Lord Talbot said there was no precedent of a tenant in tail being obliged to keep down the interest on a mortgage. A ten- ant for life was without doubt compellable to do it ; but as a tenant in tail had an estate which might last forever, and the remainder over was not assets, nor regarded in law, and as such tenant in tail had a power over the estate, to commit any waste or spoil thereon, a court of equity had never enjoined him to keep down the interest. "Wherefore he refused to make any (a) Wilson v. Metcalfe, 1 Euss. 530. S^e 1 Mad. 269. {b) Tit. 3, c. 1, § 2S. 660 Title XV. Mortgage. Ch. IV. s. 74—79. order upon the executors of the tenant in tail, to pay the arrears of interest ; though it appeared there was near twenty years' interest due ; and though the tenant in tail died during his in- fancy, and consequently before it was in his power to have barred the remainder by a recovery, (a) 75. It was, however, determined in a subsequent case, that although a tenant in tail of full age was not obliged to keep down the interest of a mortgage, for the benefit of the remainder- man or reversioner, yet where an infant was tenant in tail of lands in mortgage, and his guardian or trustees were in 155 * the receipt * of the rents and profits, he should be liable to the payment of the interest as far as the rents and profits would extend. 76. Jane Pitt was tenant for life, with power to charge any sum not exceeding .£4000 on the estate, which was limited to her son William Pitt, in tail, remainder to the right heirs of his father. Jane Pitt charged the estate accordingly, and died. William Pitt died without issue, and under age, leaving the interest in arrear. The Court determined that W. Pitt, being an infant, his guardian ought to have applied the rents and profits of the estate to keep down the interest ; therefore what ought to be done by the guardian should be considered as done ; and con- sequently the real estate discharged, so far as the rents and profits in the life of the infant would go in discharge ; but if that was not sufficient, it was to be an incumbrance on the re- mainder, (b) 77. If a tenant in tail of land, or the husband of a tenant in tail, pays the interest of a mortgage on the estate tail, neither he, nor any person in his place, will be permitted to set up that as a fact undone ; but the remainder-man shall have the benefit of it. (c) 78. In consequence of the principle that all mortgages are deemed part of the personal estate, it is now fully established that the money due upon mortgage is to be paid to the executor of the mortgagee, by reason of a rule of equity that the satisfaction should accrue to the fund which sustained the loss, (d) 79. [And where the mortgage money due on a mortgage in (a) Chaplin v. Chaplin, 3 P Wms. 235. (h) Sarjeson v. Cruise, cited 1 Ves. 478. 2 Atk. 416. (c) Amesbury v. Brown, 1 Ves. 477. (d) Thornborough v. Baker, 1 Cha. Ca. 283. S. C. 3 Swan. Appendix, 628. Title XV. Mortgage. Ch. IV. 5. 79—81. 661 fee is paid to the heir of the mortgagee, the executor may recover it from him. (a)] 80. Where a person having a mortgage in fee, devised all his lands and tenements to the plaintiff, and after giving several legacies, gave all the residue of his personal estate to (leaving a blank which he never filled up,) whom he appointed sole execu- tor ; the plaintiff, as devisee of all the lands and tenements, claimed the mortgage money. But the administratrix insisted, that by the rule and course of the Court, where lands were mort- gaged, the money was accounted part of the personal estate, though the mortgage was in fee ; even where the money was payable to the mortgagee and his heirs. That the personal estate being devised to the executor, was a good declara- tion that it * should go to the executor, though void as a * 156 devise, for want of naming an executor, and consequently belonging to the administratrix. Decreed accordingly, (b) 81. It has been stated, that in all cases of mortgages, the money borrowed is the principal, and the land the accessary : it follows, that when the debt is discharged, the interest of the mort- gagee in the land ceases in equity, though the -legal estate con- tinues in him. (c) ^ (a) Tabor v. Tabor, 3 Swan. Append. 636. (b) Winne v. Littleton, 2 Cha. Ca. 51. Canning v. Hicks, 2 Cha. Ca. 187. (c) Ante, c. 2, § 42, 43. 1 The mortgage being made to secure the payment of the money due, it follows that a change of the security, so long as the same debt remains, is no discharge of the mort- gage. It has therefore been often held that though the former security be given up and a new one given for the same debt, the mortgage still remains in force ; even though the new security be of an higher nature than the old, or other names be added to the original obligation. Davis v. Maynard, 9 Mass. 242 ; Pond v. Clarke, 14 Conn. E. 334; Watkins v. Hill, 8 Pick. 522; Dana v. Binney, 7 Verm. 501; Pomroy v. Rice, 16 Pick. 22; Elliot v. Sleeper, 2 N. Hamp. R. 525; Bank v. Willard, 10 N. Hamp. 210; Franklin v. Cannon, 1 Root, 500; Brinckerhoff v. Lansing, 4 Johns. Ch. 73, 74; Dunham v. Dey, 1 5 Johns. R. 555 ; Bolles v. Chauncey, 8 Conn. R. 390 ; [Hadlock v. Bul- finch, 31 Maine, (1 Red.) 246 ;'Cullum v. Branch Bank of Mobile, 23 Ala. 797 ; Union Bank of Louisiana v. Stafford, 12 How. IT. S. 327.] But where the mortgage was given to a surety of the mortgagor in a promissory note, and was conditioned to pay him the contents of the note or indemnify him against his liability on it ; and afterwards the note was taken up by the mortgagor, on giving in its stead another note with a dif- ferent surety ; it was held that the mortgage was discharged. Abbot v. Upton, 19 Pick. 434. And sec Grugeon v. Gerard, 4 Young & Coll. 119. The lien on the land is also discharged by a tender and refusal, though the debt re- mains due. 1 Pow. on Mortg. 6; 1 Inst. 209 6; Jackson v. Crafts, 18 Johns. 110. vol. i. 56 662 Title XV. Mortgage. Ch. iy. s. 81. But a tender after breach of the condition, does not turn the equity of redemption into an absolute legal estate in the mortgagor. Merritt v. Lambert, 7 Paige, 344. See ante, ch. 2, § 39, note, and cases there cited. For the law of tender, see 2 Greenl. on Evid. tit. Tender, § GOO — 611 a. Where no place of payment is appointed by agreement of the parties, the money is to be paid or tendered to the mortgagee in person, or at his house, as in other cases of personal obligation to pay money. Litt. § 340; 1 Inst. 210 a ; Williams v. Hance, 7 Paige, 581. [Where a tender of the debt was made to the mortgagee, in pursuance of an agree- ment that if the mortgage debt was paid at a certain time subsequent to its becoming due, no advantage should be taken of a foreclosure, it was held that interest should not be cast on the debt after the tender. McNeil v. Call, 19 N. H. 403. A receipt in full of the mortgage debt by the mortgagee, is an equitable release of the mortgage. Mar- riott v. Handy, 8 Gill. 31. A mortgagee may release his mortgage by a sufficient parol agreement, though the mortgage be under seal, and the debt unpaid. Wallis v. Long, 16 Ala. 738. A mortgage of land can be discharged only by payment or release. Had- lock v. Bulfinch, 31 Maine, (1 Red.) 246.] 663 CHAP. V. ORDER IN WHICH MORTGAGES ARE PAID, AND MEANS OF GAINING A PRIORITY. Sect. 1. Mortgages paid according to their Priority. 5. But not preferred to Stat- utes, $c. 7. Legal Incumbrances prefer- red to equitable ones. 9. Where Possession of the Deeds gives Priority. 17. A defective Mortgage not preferred to a second ef- fective one. 19. But will be preferred to Bond Debts. 22. Priority may be lost by Fraud. Sect. 28. Of Tacking subsequent to prior Incumbrances. 29. Effect of obtaining a prior Term for Years. 33. Where a Declaration of Trust of a Term is sufficient. 35. How far an Incumbrance will protect. 40. At what Time a prior Incum- brance may be got in. 45. Notice. 46. Direct Notice. 55. Constructive Notice. Section 1. Where there are several mortgages on an estate, they must be paid according to the priority of their respective dates; in pursuance of a rule adopted from the civil law, — Qui prior est in tempore, potior est in jure. 1 2. Where a clause is inserted in a mortgage deed, by which 1 In the United States, where all conveyances of lands arc registered, and the regis- tration is notice to all the world, in cases not specially excepted by statute, incumbrances generally have priority, not in the order of their dates, but in the order of their regis- tration. The oidy exceptions, known to the editor, are the case of the registration of the assignment of a mortgage ; which is declared in the statutes of several States not to operate of itself as notice to the mortgagor, so as to invalidate any payment which he may subsequently make to the mortgagee, before he has actual notice of the assign- ment : see Indiana Rev. St. 1843, ch. 29, § 71 ; New York Rev. St. pt. 2, ch. 3, § 48, 3d ed. ; and the case of a mortgage given for the purchase-money at the time of the convey- ance of the title. This incumbrance, in New York and Indiana, is preferred over prior judgments against the mortgagor; see New York Rev. St. pt. 2, ch. 1, tit. 5, § 5 ; In- diana Rev. St. 1 843, ch. 29, § 68 ; and in Delaware, if recorded in sixty days from its date, it is preferred over judgments and every other lien created by the mortgagor. 664 Title XV. Mortgage. Ch. V. s. 2. the lands mortgaged are made a security for any further sums which shall be advanced by the mortgagee, a subsequent loan will be considered as part of the original transaction, and will have a priority over a second mortgage, though subsequent to such second mortgage ; and though the first mortgagee had notice of the second mortgage at the time when he made the subsequent loan. 1 Del. Rev. St. 1829, p. 91. See farther, post, § 50, note. Also, Vol. IV. tit. 32, ch. 29 ; 4 Kent, Comm. 174 — 180; Grant v. Bissett, 1 Caines, Cas. 112. [Boyee v. Boyce, 6 Rich. Eq. (S. C.) 302.] If a mortgage is made by a tenant in common, of his share of the land held in com- mon, the lien thus created will attach to the portion of the land afterwards set off to the mortgagor, in a regular process of partition. Crosby v. Allyn, 5 Greenl, 453 ; Williams College v. Mallett, 3 Fairf. 398; Randell v. Mallett, 2 Shepl. 51. 1 Where a mortgage to secure future advances or liabilities, is set up against another and subsequent incumbrance, it is requisite that .the mortgage deed should disclose the fact that it was intended to cover such advances, giving such information as to the ex- tent and certainty of the contract, that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the incumbrance. This is requisite to secure good faith, and prevent error and imposition in dealing. The prior mortgagee cannot enlarge his demand beyond what appears upon record, or is there indicated with sufficient certainty to put subsequent creditors or pur- • chasers upon inquiry, and enable them to ascertain, by inquiry aliunde, the extent of the incumbrance ; or, from its nature, as in case of a mortgage for indemnity, that there is a prior lien which is incapable of present definite ascertainment. See 4 Kent, Comm. 175. 176; Hubbard v. Savage, 8 Conn. 215, 219; Crane v. Deming, 7 Conn. 387, 396 ; St. Andrew's Ch. v. Tompkins, 7 Johns. Ch. R. 14; Garber v. Henry, 6 Watts. 57; United States v. Hooe, 3 Cranch, 73, 89 ; Conard v. Atlantic Ins. Co. 1 Pet. 448 ; Bad- lam v. Tucker, 1 Pick. 389, 398 ; Shirras v. Caig, 7 Crunch, 34, 50, 51. [A mortgage made to secure future advances is valid against the creditors of the mortgagor, if it is free from fraud. Seaman v. Fleming, 7 Rich. Eq. (S. C.) 283; Collins v. Carlisle, 13 111. 254. But see In re Young's Estate, 3 Md. Ch. Decis. 461. A mortgage to secure advances and credits to be made within a time limited therein, secures none made after- wards. Miller v. Whittier, 36 Maine, (1 Heath,) 577 ; Trescott v. King, 2 Selden, N. Y. 147. Where a mortgage is given to secure a party, who is bound to accept drafts, the lien of the mortgage attaches from the date of the negotiation or acceptance of the draft. Choteau v. Thompson, 2 Ohio, (N. S.) 114.] By the law of New Hampshire, Rev. Stat. 1842, ch. 131, § 2, no estate can be incum- bered, by any agreement, "unless it is inserted in the condition and made part thereof, stating the sum of money to be secured, or other thing to be performed." But this has been expounded by considering it only to require that the nature and extent of the claim be so far set forth as to leave no doubt as to its identity. The same statute, § 3, provides that no mortgage shall be valid " for the payment of any sum of money, or the performance of any other thing, the obligation or liability to the payment of which arises, is made or contracted after the execution and delivery of such mortgage." But it is held, that a mortgage, intended to secure a present debt, and also future advances, not then contracted for, is valid as to the present debt, and void only as to the residue. Leeds v. Cameron, 3 Sumn. R. 488 ; New Hamp. Bank v. Willard, 10 N. Hamp. R. 210. Title XV. Mortgage. Ch. V. s. 3—6. 665 3. A mortgaged to B for a term of years, to secure a sum of money already lent, and also such other sums as B should afterwards * lend or advance to him. A made a subse- * 158 quent mortgage to C for a certain sum, with notice of the first mortgage ; and then the first mortgagee, having notice of the second mortgage, advanced a further sum. The question was, upon what terms the second mortgagee should redeem the first mortgage. Lord Cowper declared the second mortgagee should not redeem the first mortgage without paying all that was due, as well the money lent after, as that before, the second mort- gage was made ; for it was the folly of the second mortgagee, with notice, to take such a security, (a) ] 4. Where there are several equitable interests affecting the same estate, they will also attach upon it, according to the re- spective times at which they commenced ; it being a rule of the Court of Chancery, that equity follows the law.(6) 2 5. Mortgages are, however, not preferred in a court of equity to statutes, judgments, or recognizances ; but each of these secu- rities takes place according to the priority of its date, in the same manner as in a court of law. 6. Sir W. Bassett being seised in fee of several real estates, and indebted to several persons, by mortgages, judgments, and otherwise, devised all his estates to trustees, to be sold for the payment of his debts and legacies. Controversies having arisen among the creditors concerning the priority of their respective securities, two suits were insti- tuted in the Court of Chancery, where it was decreed that the («) Gordon v. Graham, 7 Vin. Ab. 52. Vernon r. Bethell, 2 Eden, 110. (b) 2 P. Wms. 495. Frere r. Moore, 8 Price, 475. 1 Sec Brinckerhoff v. Marvin, 5 Johns. Ch. 320, 326 ; 2 Pow. on Mortg. 534, a, note (E) by Coventry; Demainbray v. Metcalfe, 2 Verm. 69S, note (3) by Raithby. - The general doctrine may here be noted, that where one creditor has a lien on two estates, and another creditor has a lien on one of them only, the latter may compel the former to resort first to the fund that is not common to them both. Lanoy v. D. of Athol, 2 Atk. 446 ; Aldrich v. Cooper, 8 Ves. 388; Greenwood v. Taylor, 1 Russ. & Mylne, 185, 187 : Evertson v. Booth. 19 Johns. 486 ; Dorr v. Shaw, 4 Johns. Ch. R. 17; Hawlcy v. Mancius, 7 Johns. Ch. P. 174, 184; Conrad'r. Harrison, 3 Leigh, 532; Wiggin v. Dorr, 3 Sumn. 410, 414. And see 1 Story, Eq. Jur. § 559,633—635, 642. If the mortgagee, upon the insolvency or bankruptcy of the mortgagor, proves his entire debt under the proceedings for settlement of the estate, receiving his dividend upon the whole amount, it is a waiver of the mortgage. Hooker v. Olmstcad, 6 Pick. 481 ; Amory v. Francis, 16 Mass. 308 ; 2 Madd. Chan. 655. 56* 666 Title XV. Mortgage. Ch. V. s. 6—8. money arising from the sale, should be applied, in the first place, to pay the mortgages, and in the next place the judgment and statute creditors. The persons whose judgments were prior to the mortgages, appealed to the House of Peers, insisting that they ought to be paid their several debts according to the due course of law and equity ; that their securities by judgment did in law affect the real estate, and the trust thereof, from the several days on which such judgments were signed, without the aid of the will, therefore ought to take place according to their respective pri- orities, as well on equities of redemption, as on legal estates ; more especially in preference to mortgages which were not in being when those judgments were signed, which could not, therefore, take from the appellants any security that was before legally or equitably vested in them ; or render their judg- 159* ments *in any degreeless effectual than they were at the respective times of signing the same. On the other side it was said that the equity of redemption of the testator's estate was actually mortgaged without notice of the judgments, and before the same were extended ; that, therefore, those mortgages ought to be satisfied before them ; and that in a court of equity, judgment creditors could only compel the sale of an estate of inheritance for their satisfaction. If that estate hap- pened to be in mortgage, it was not reasonable that the mort- gagees should be decreed to convey to a purchaser, without first receiving their money. It was ordered that the appellants should be let into a satis- faction of their debts, according to the priority of their several securities, (a) 7. Where incumbrances are all merely equitable, a mortgage of the legal estate to a person who has no notice of such incum- brances, will give such mortgagee a priority over them. But if any of the equitable incumbrances are excepted, that cir- cumstance will give them a priority over those that are not excepted. 8. T. Gibson & Co. being scriveners, and having large sums of money of other people in their hands, had lent Mr. Stiles, upon a mortgage of the manors of Bremhill and Cadenham, and (a) Symmes v. Symonds, 4 Bro. Pari. Ca. 328. Title XV. Mortgage. Ch. V. s. 8. 667 other lands in Wiltshire, several sums, which in 1743, were re- ported to amount to above £50,000 : and those estates were then decreed to be sold for payment thereof. Before this, Gib- son and his partners had given declarations of trust to several of their creditors, who had money in their hands, assigning them several parts of the mortgage money due by Mr. Stiles, and declaring themselves trustees for them according to their respective demands. These declarations of trust amounted originally to £ 27,900, of which £2000 was to be paid out of £8500 due to Gibson & Co. by Sir John Eyles upon the manor of Gidea Hall; and the remaining £25,900 out of the money due upon Bremhill. Gibson & Co. were reported the best pur- chasers of Bremhill and Cadenham ; the first at £50,000, and the last at £10,000. This report being confirmed, by lease and release in 1744, Bremhill was conveyed to Gibson and Sutton who were the surviving partners ; Cadenham was conveyed to a trustee for them. * Gibson & Co. being indebted by two several bonds to *160 Mr. Pelham in £23,500 and interest, and to Mr. Win- nington in £15,000 and interest, by lease and release, in 1744, conveyed to Mr. Pelham and Mr. Wilmington all their interest in Gidea Hall, which had been then lately conveyed to the trus- tees to sell, for payment of the debt due to Gibson ; and also conveyed to them the manor of Bremhill, and other lands which had belonged to the late Mr. Stiles, with a proviso for redemp- tion upon payment of £23,500 and interest to Mi*. Pelham, and £15,000 and interest to Mr. Wilmington ; but in the deed was contained an exception of an assignment and declaration of trust made by Gibson & Co. in October, 1735, to John Witham for £7000 and interest, part of the money due to them from Stiles on the security of Bremhill; another to Sarah and Benjamin Lethuilier, of 18th February, 1741, for £5500, part also of that security ; another to Hinde and Pickard, of 20th February, 1741, for £2000, as part also thereof; another to Ashby, of 8th April, 1742, for £2500 on the same account ; another to Sarah Lethu- ilier, of 2d September, 1742, for £2000, part of the money se- cured upon Gidea Hall. The manor of Gidea Hall was afterwards sold ; and Mr. Pel- ham in a great measure, paid off out of the purchase-money, as was also Sarah Lethuilier her £2000. 668 Title XV. Morteraere. Ch. V. s. 8. o "r> T. Gibson died in 1744. Sutton, the surviving partner, being a bankrupt, and there being a considerable deficiency for pay- ment of the creditors, the plaintiff, as executor to Mr. Winning- ton, brought his bill for a sale of Bremhill, and the other prem- ises comprised in the mortgage of 1744, and to have the priority of such creditors as had any demands on the mortgaged premises settled. It came out upon the answers of the defendants, that there were several other creditors who, previous to Mr. Pelham and Mr. Wilmington's mortgage, had assignments and declarations of trust of and upon the mortgage money secured by Bremhill, most of which were prior in time to those excepted in Mr. Pel- ham and Mr. Wilmington's mortgage. The question made between the defendants was, whether the excepted and unexcepted creditors, being all but equitable in- cumbrancers, under their several declarations of trust from Gib- son & Co., were not to be satisfied according to their 161 * several * priorities : or whether those excepted had not gained a preference, by the notice which Mr. Pelham and Mr. Wilmington had of their demands ; for Mr. P. and Mr. W. having the legal as well as an equitable estate in them, it was allowed that, till after they were satisfied, nothing more could be drawn from them than the sums excepted in their mortgage. Lord Hardwicke. The bill is brought by the plaintiff, as representative of Mr. Winnington, for a satisfaction of his de- mand out of the mortgaged premises, and if those not sufficient, out of Gibson's general estate ; next, to have the priority of the several creditors settled. In this arises a question between the unexcepted and excepted creditors, in the conveyance made to Mr. Pelham and Mr. Winnington ; whether the exception of some of the creditors taken sparsim, and not as they stood in point of time, will give them any preference to those who were not excepted. Mr. Stiles was seised of these two manors of Bremhill and Cadenham ; and having borrowed upon a mortgage £50,000 of Gibson and Sutton, scriveners, they who lent their clients' money, gave them security by declarations of trust, upon the security which they had themselves from Mr. Stiles. The dec- larations of trust thus given by them, amounted, originally, to Title X. Mortgage. Ch. V. s. 8. 669 £27,900, of which £2,000 was part of a debt from Sir John Eyles, secured on Gidea Mall. Mr. Stiles being dead, Gibson and Sutton being reported the best purchaser of Bremhill and Cadenham, and having got in the legal estate in May, 1744, they in June following, convey these premises by way of security to Mr. Pelham for £23,500, and to Mr. Wilmington for £15,000, payable on the 15th of December then next, in which security they except several declarations of trust upon, and assignments of; part of the mortgage money secured on Bremhill, amounting to £20,000, and one of £2000, secured upon the money due from Gidea Hall. Hence it is clear that Mr. Pelham and Mr. Wilmington had notice of these incumbrances ; but as clear that they had no notice of any other. After this, Gibson dies, and. Sutton becomes a bankrupt. Now it is come to be a question be-> tween their creditors, excepted in Mr. Pelham and Mr. Winning- ton's securities, and those not excepted, whether they all shall stand in their priority in order of time ; or whether those excepted have thereby gained any preference to the others. No * case exactly similar to the present has been cited ; and I * 162 wish that, all being equally fair and honest creditors, I could in this general shipwreck, let them all in equally : but as the rules of the Court will not warrant me in so doing, one or the other set of creditors must lose. The questions, therefore, are, — -1st. How the right stood as between themselves before the conveyance to Mr. Pelham and Mr. Wilmington ? 2dly. What alteration was made by that con- veyance ? As to the first, all the creditors being but equitable incum- brancers, and none of them having a better right to call for the legal estate than the other, the rule Qui prior est tempore, potior est in jure, must have place between them ; and yet they had left in the power of Gibson and Sutton to give a preference to any one of them they pleased, even to the very last of them, by granting him the legal estate, who must then have been preferred to all the rest ; for having got the law on his side, and equal equity with the others, this Court could not take the benefit of the law from him. (a) The next question is, whether the excepted creditors have gained any preference by that exception, which on the one hand (a) Tit. 12, c. 3, § 34. 670 Title XV. Mortgage. Ch. V. s. 8. is contended to be notice sufficient to Mr. Pelham and Mr. Win- nington to make them trustees for such excepted creditors; and on the other is said to be only a notice to them, that so much and no more was to be drawn out of their estate ; but that they were no way concerned to whom the money drawn from them should be paid. I am sorry to say that the exception has the effect of making Mr. Pelham and Mr. Wilmington trustees for the ex- cepted creditors ; because I heartily wish all the creditors could come in equally; but not having the power of making it so, the rule of the Court must take place. The argument used for the excepted put the unexcepted credi- tors to a dilemma. We are, say they, prior to Mr. Pelham and Mr. Winnington, who are prior to you ; consequently, we must be prior to you too. Had this been a conveyance with a cove- nant from Mr. Pelham and Mr. Winnington to pay those credi- tors, it had been impossible to say that the other creditors should have any benefit of that covenant : but Mr. Pelham and Mr. Win- nington would have been not only trustees for, but debtors to, those whom they had so covenanted to pay; or had 163* *the conveyance been to trustees, to raise money by sale or mortgage to pay these creditors, and then to pay Mr. Pelham and Mr. Winnington, the legal estate being conveyed for their benefit, would have given them a preference. Now this conveyance, though by way of mortgage, to Mr. Pelham and Mr. Winnington, comes very near a conveyance to trustees to sell, as those creditors could only have remedy by a sale ; for having no legal estate in them, a decree of foreclosure would have signified nothing to them, as foreclosure is of no effect but where the party foreclosing has the legal estate. The question, therefore, turns upon the rules of the Court as to notice, which binds the con- science of the party, as to the right of another party, whereof he has notice ; and this Court always raises an implied trust from that notice. So Mr. Pelham and Mr. Winnington, having notice of these excepted creditors, became trustees for them, and their conscience was bound as to those creditor's demands ; but could not be so as to other creditors, of whom they had no notice. — Upon the rules of the Court, therefore, I am of opinion that I cannot divest the excepted creditors of the right they have ac- quired by Mr. Pelham and Mr. Wilmington's having notice of their demands, (a) (a) Ingram v. Gibson, MSS. Kep. 1752. Arab. 153. Title XV. Mortgage. Ch. V. s. 9. 671 9. It was laid down by the late Mr. J. Buller, that where a second mortgagee is in possession of the title deeds of the estate morto-ao'ed, that circumstance will entitle him to a priority over the first mortgagee ; because where a person lends money upon mortgage, without requiring the title deeds to be delivered to him, he thereby enables the mortgagor to practice a fraud upon a third person. This rule is, however, much too general, as there are many cases in which the title deeds cannot be delivered up. And the doctrine always was, that nothing but a voluntary, dis- tinct, and unjustifiable concurrence on the part of the first mort- gagee, to the mortgagors retaining the title deeds, should be a reason for postponing his priority, (a) } («) Goodtitle v. Morgnn,[infra. Treat, of Eq. B. l,"c. 3, § 4. 1 It has already been seen, ante, ch. 1 , § 20, note, that whether an equitable mortgage can be created in the United States, by the mere deposit of title deeds, is at least extremely doubtful. It would seem equally questionable whether a, priority can be gained by the possession of the title deeds alone without any other element of superior equity in the case. The principle of the floctrine in the text has been stated by Chancellor Kent in the following terms : — " It is understood to have been the old rule in the English Chancery, that if a person took a mortgage, and voluntarily left the title deeds with the mort- gagor, he was to be postponed to a subsequent mortgagee, without notice, and who was in "possession of the title deeds. The reason of the rule was, that, by leaving the title deeds, he enabled the mortgagor to impose upon others who have no registry to resort to, except in the counties of Yorkshire and Middlesex, and who, therefore, can only look for their security to the title deeds, and the possession of the mortgagor. The rule was so understood and declared, by Mr. Justice Burnet, in Ryall v. Rolle, (1 Atk. 168, 172 ; 1 Vcsey, 360,) and by Mr. Justice Buller, in Goodtitle v. Morgan, (1 Term Rep. 762,) and there are decisions which have given great weight to the circumstance of the title deeds being in possession of the junior mortgagee. Thus in Head v. Eger- ton, (3 P. "Wins. 280,) the Lord Chancellor said, it was hard enough upon a subsequent mortgagee, that he had lent his money upon lands subject to a prior mortgage, without notice of it, and, therefore, he could not add to his hardship, by taking away from him the title deeds, and giving them to the elder mortgagee, unless the first mortgagee paid him his money ; especially as the first mortgagee, by leaving the title deeds with the mortgagor, had been, in some measure, accessary in drawing in the defendant to lend him money. This case, however, so far from establishing what was supposed to be the old rule of equity, evidently contradicts it, and admits the better title in the first mort- gagee. So, in the case of Stanhope v. Verney, before Lord Northington, (ButlerV note to Co. Litt. 290, 296, § 13,) the second mortgagee, without notice, had possession of the title deeds, but the Chancellor did not give him the preference on that single circumstance, but because he also had got possession of an outstanding term. There does not seem, therefore, to lie the requisite evidence of the existence of any such rule in equity, as has been stated by some of the judges ; and if there was, a different rule has been since established. It is now the settled English doctrine, that the mere cir- 672 Title XV. Mortgage. Ch. V. 5. 10—13 © v "& 10. Thus, where it appeared that the mortgagor got back the title deeds from the first mortgagee, upon a reasonable pretence, Lord Cowper dismissed the bill brought by the second mortgagee to postpone the first, (a) . 11. Mr. Fonblanque mentions a case, where it appearing that the first mortgagee had required, and was assured by the mort- gagor, that he had delivered to him all the title deeds ; 164* Lord * Thurlow held, there must be a voluntary leaving of the deeds to entitle the second mortgagee to a pri- ority, (b) 12. In another case Lord Thurlow held that a mortgagee of a reversion, who had not the title deeds, should not be postponed to a second mortgagee, whose mortgage was made after the mort- gagor had come into possession, and who had got the title deeds ; there being neither fraud nor gross negligence, (c) 13. One Basnett having deposited the title deeds of an estate in the hands of Plumb, to whom he was indebted, afterwards mortgaged the estate to Fluitt, to whom he was also indebted. Basnett having become a bankrupt, Plumb filed his bill against Fluitt for a sale of the estate, and to restrain the defendant from proceeding at law to recover possession of the premises. The circumstances of the transaction were disputed. The plaintiff (a) Peter v. Russell, 1 Ab. Eq. 321. (b) Pinner v. Jemmett, Treat, of Eq. B. 1, c. 3, § 4. (c) Tourle v. Rand, 2 Bro. C. C. 650. cnmstance of leaving the title deeds with the mortgagor, is not, of itself, sufficient to postpone the first mortgagee, and to give the preference to a second mortgagee, who takes the title deeds with his mortgage, and without notice of the prior incumbrance. There must be fraud, or gross negligence, which amounts to it, to defeat the prior mortgage. There must be something like a voluntary, distinct, and unjustifiable con- currence, on the part of the first mortgagee, to the mortgagor's retaining the title deeds, before he shall be postponed. Lord Thurlow, in Tourle v. Rand, (2 Bro. 650.) said he did not conceive of any other rule by which the first mortgagee was to be postponed, but fraud or gross negligence, and that the mere fact of not taking the title deeds was not sufficient ; and that if there were any cases to the contrary, he wished they had been named. So the rule was also understood by Chief Baron Eyre, in Plumb v Eluitt, (2 Anst. 432,) and has since been repeatedly recognized. (Lord Eldon, in 6 Vesey, 183, 190; Sir William Grant, in 12 Vesey, 130 ; 1 Fonb. 153, 155, note.) It is admitted, by these same high authorities, to be just, that the mortgagee, who leaves the title deeds with the mortgagor, so as to enable him to commit a fraud, by holding him- self out as absolute owner, should be postponed ; but the established doctrine is, that nothing but fraud, express or implied, will postpone him." Berry v. Mutual Ins. Co., 2 Johns. Ch. R. 608—610. Title XV. Mortgage. Ch. V. s. 13. 673 endeavored to fix the defendant with actual notice of the de- posits ; and for that purpose read the testimony of Basnett, who swore that he had informed the defendant of the deposit of the title deeds before the execution of the mortgage ; and this evi- dence was admitted by the Court. Lord Chief Baron Eyre said — The legal estate being in the defendant, the question was, whether the plaintiff could raise a trust upon his estate, so as to gain a priority for his own demand. It was fully settled that a deposit of title deeds, as a security for a debt, amounted to an equitable mortgage. If the plaintiff could prove actual or constructive notice of the deposit in the defendant, it raised a trust in him to the amount of that equitable mortgage. As to the evidence of actual notice, the testimony of Basnett alone, unsupported and opposed, was too weak to found a decree, or even to direct an issue upon it. Swearing to the fraudulent intention of his own deed, he could expect little credit in a court of equity. A great deal had also been said about con- structive notice, which he took to be in its nature no more than evidence of notice, the presumptions of which were so violent, that the Court would not allow even of its being controverted. Thus, if a mortgagee had a deed put into his hands, which recited another deed, that showed a title in some other person, the Court would presume him to have notice, and would not per- mit any evidence to disprove it. The only reason that could raise in this case a notion of constructive notice was, that the deeds were not forthcoming. But was it possible that *this circumstance could of itself be notice of the hands *165 into which they were fallen, or the purpose to which they had been applied ? At the utmost, it could only be a circum- stance of evidence, to show that there was reason for further inquiry ; but, being unsupported by any other circumstances, it proved nothing. It was said, no man would advance money upon an estate without seeing the title deeds, unless with a fraudulent intention. He wished he saw, in a court of equity, some solid distinction established between a consideration which was an old debt, and a sum advanced de novo. There certainly was a great difference. In the one case the creditor jumped at any security he could get; he took the deed of conveyance, and trusted to get the title deeds vol. i. 57 674 Title XV. Mortgage. Ch. V. s. 13—14. s ' afterwards. But till such a distinction was established, it was difficult to apply the reasoning which would belong to it. The person who took the legal estate without the deeds, in a case like this, appeared to him, unless there was fraud, to be less blamable than he who took the deeds without the estate. Upon all the circumstances, he could see nothing in the case that amounted to constructive notice. With respect to the general question, the effect of leaving the title deeds in the hands of the mortgagor, the most intelligible rule, and, in his opinion, the most agreeable to justice, would have been to say, that if a man took, as his security for his mortgage, a single deed, and left the other deeds in the hands of the mortgagor, so as to enable him to commit a fraud, that he should in all such cases be postponed, without reference to the quantity of pains or diligence which he exercised to obtain the deeds ; for whether the pains were more or less, the mischief was the same. And if he had found the rule so laid down, he should have been perfectly satisfied. But it had been decided otherwise iu the late cases ; which established the rule, that nothing but fraud, or gross and voluntary negligence in leaving the title deeds, would oust the priority of the legal claimant. In the present case, all the negligence, or all the activity in the world, would have left the defendant in exactly the same situation in which he then was. He took his mortgage as the only security he could get ; if it was already mortgaged, he was only where he was before. He seized it as a plank, to save something; for as a second mortgage it was worth nothing. 166* *The plaintiff having therefore failed in making out •his case, either by actual or constructive notice, and the general proposition not being supported, which, if established, must apply to purchases as well as to mortgages, the bill must be dismissed with costs, (a) 14. In a subsequent case, Lord Eldon said, " The doctrine at last is, that the mere circumstance of parting with the title deeds, unless there is fraud, concealment, or some such purpose, or some concurrence in such purpose, or that gross negligence that amounts to evidence of a fraudulent intention, is not of itself a sufficient ground to postpone the first mortgage. I agree with (a) Plumb v. Fluitt, 2 Anstr. B. 432. Title XV. Mortgage. Ch. V. s. 14—16. 675 Chief Justice Eyre, I should have been glad to have found the rule established in the Court the other way ; at the same time, allowance must be made for the cases put by Mr. Fonblanque, of joint tenants and tenants in common, cases of necessary excep- tion. All cannot have the deeds ; therefore, if the rule could be pressed to the extent to which Mr. Justice Buller carried it, those cases must be excepted, in which, from the nature of the title, the deeds may be honestly out of the possession. With that excep- tion, such a rule would avoid a great deal of fraud in mortgage titles ; upon which this observation arises, that no man can tell when he is perfectly secure. But there is not such a rule." (a) 15. [In Harper v. Faulder, (b) it was decided that the first incumbrancer, leaving the deeds with the mortgagor, should not be postponed, unless the possession of the title deeds were legally incident to his security. In that case, estates were vested in trustees in trust to raise ,£35,000 next to indemnify the lenders of that sum from a rent- charge of £400 per annum, and against a portion of £5000 for younger children. In order to raise part of the £35,000, the trustees, in consideration of £5000, granted an annuity to R, which was secured tfy a term and a judgment not docketed. The annuitant permitted the deeds to remain in the custody of the trustees, who afterwards made a mortgage for raising the other part of the £35,000, without informing the mortgagee of F.'s incumbrance. The question was, whether the annuitant should be postponed to the mortgagee. Sir John Leach, V. C, decided in the negative, observing, that not only was the possession of the * title deeds not legally incident to F.'s * 167 estate, and that he was not required, upon the principle of reasonable diligence, to have stipulated' for them ; but that it would have been a breach of trust in the trustees to have given one incumbrancer those deeds which they were bound to keep for the security of all persons advancing money upon the credit of their trust.] 16. It should, however, be observed, that where a second mortgagee has got possession of the title deeds, a court of equity will not take them from him, unless the first mortgagee pays him his money, (c) (a) Evans V. Bicknell, 6 Ves. 190. Bamett v. Weston, 12 Ves. 130. (b) 4 Mad. 129. (c) Head v. Egerton, 3 P. Wms. 280. 676 Title XV. Mortgage. Ch. V. s. 17—19. 17. If a person mortgages his lands by a defective conveyance, and afterivards mortgages them by an assurance that is good and effectual.) to a person who has no notice of the defective convey- ance, the second mortgage will prevail ; because that carries the legal estate ; and equity will not interfere, where both parties are equally innocent. 18. Copyhold lands were mortgaged, but without a surren- der ; they were afterwards mortgaged to another person, and surrendered to him. The Master of the Rolls, on solemn argu- ment, dismissed the bill of the first mortgagee with costs, and held that equity would not supply the defect of a surrender against a person who came in by title, upon surrender of the same premises. The case was reheard before Lord Cowper, who was of the same opinion ; and took this difference, that when there are two persons that have equal equity, then those that have the legal estate shall prevail, because there is no equity to take from such persons the title that they have gained at law. (But if the con- tending parties in equity have not equal equity, then those that have the greatest equity shall prevail against the legal title ; as, if a creditor takes hold of the land by a feoffment in mortgage, with livery, equity will supply the defective conveyance against a subsequent judgment creditor ; because the judgment creditor, not relying on the land for his security, he hath not an equal equity to have it applied for the payment of his debt, as he that took it in mortgage.) (a) 1 19. But if a person mortgages his land by a defective convey- ance, and there be subsequent debts, which did not originally affect the land, such as debts by bond, there the defect of such conveyance will be supplied, in equity, against such incum- brancers, though they afterwards acquire a legal title to the land. For since the subsequent incumbrancers did not originally take the lands for their security, nor had an intention to affect them, when afterwards the lands are affected, and they come in under the person who was obliged in conscience to make the security good, they will not be allowed to stand in his place ; but will be postponed to such defective conveyance. 2 (a) Oxwick v. Plumer, 5 Bac. Ab. 43. 1 See Coote on Mort. 223 — 230. 2 If a prior mortgagee has a mortgage of two funds, and a second mortgagee has a Title XV. Mortgage. Ch. V. s. 20. 677 *20. Henry Francis, father of the defendant Henry, in * 168 consideration of £400, mortgaged the premises by feoff- ment in fee to the plaintiff's testator, but made no livery thereon, and covenanted for further assurance. Henry Francis, the father, borrowed of Burgh, the testator, =£77 on bond; and promised that the mortgaged premises should be security for it. He after- wards made his will; and thereof appointed his son, Henry Francis, executor. Burgh died, and the plaintiff proved his will. The defendant, Henry Francis, confessed several judgments on bonds entered into by his father, namely, seven judgments as hen, and one as executor to his father. One of these seven judgments was obtained by Hayman, a defendant, in Hilary Term, 1670, for £400 ; all the other judgments were entered about the same time. The cause was heard by Lord Keeper Finch, assisted by Judge Wild, who declared, the Court was fully satisfied that the plain- tiff ought to be relieved, and the said judgments ought not to incumber the premises, till the mortgage money was fully paid ; wherein the Court did not ground its judgment upon the man- ner of obtaining the judgments, all in a term, and most of them together ; nor on the special way whereby the heir charged the lands, by pleading news per descents ; but upon the true nature of the case. The Court declared, that the debt due upon mort- gage did originally charge the lands, which the bonds did not, till they were reduced to judgments ; and it ought not to be in the heir's power, by confessing judgments, to charge the lands in the prejudice of that equity, the rather because of the cove- nant for further assurance. And though the mortgage was de- fective in law, for want of livery, yet equity, which supplied that defect, charged the lands; and though the creditors had no notice, yet they should be bound, because they were put in no worse condition than they ought to be, viz. to be postponed to the mortgage. Therefore, it was decreed, that the defendant Henry, the heir, should convey to the plaintiff or her assigns in mortgage of only one of the same funds, the former must first exhaust the fund mort- gaged to himself alone, before he can resort to that which is mortgaged to both credit- ors ; and this, though there may be a question as to the validity of the first mortgage. York & Jersev Steamboat Co. v. Jersey Co. 1 Hopk. 460. 57* 678 Title XV. Mortgage. Ch. V. s. 20—23. fee, redeemable on payment of £400, and the premises to be held quietly against the plaintiffs, (a) } 21. A surrendered a copyhold estate, by way of mortgage, for money lent ; but the surrender was not presented. A became a bankrupt ; his assignees were admitted to the copyhold, and brought their ejectment to obtain possession of it. The 169 * * mortgagee brought his bill in Chancery to be relieved. The Court decreed a perpetual injunction in behalf of the mortgagee ; for though it was said that the creditors of the bank- rupt were equally valuable as the mortgagee, and having the title at law, they ought to be preferred ; yet it was overruled, because the other creditors of the bankrupt did not lend on the credit of the land, as the mortgagee did ; therefore, when such . creditors came under the bankrupt to charge the land, they ought to stand in his place, and come under the same obligation of conscience, to make good the defective security, (b) 22. The priority of payment, according to the date of e'ach mortgage, or other incumbrance, may be lost by any fraud or artifice of the first mortgagee, in concealing his own mortgage, for the purpose of inducing another person to lend money on the same lands. For in such a case the Court of Chancery will give a priority to the subsequent incumbrance, (c) 23. A person who was a counsellor, having lent £8000 to A, upon a mortgage in fee of a manor, and on a statute, in the pen- alty of £16,000, was afterwards consulted by B as to a loan of £2000 to A ; encouraged him to lend the money, and drew the mortgage deed, in which he inserted a covenant, that the estate was free from incumbrances. It was decreed that B, the second mortgagee, should have a priority, (d) (a) Burgh v. Francis, 1 Ab. Eq. 320. Finch. 28. 5 Bac. Ab. 41. S. C. 3 Swan. A t >p. 536. Lord Nottingham's MSS. (6) Taylor v. Wheeler, 2 Vera. 5C4. 1 P Wms. 279. (c) Treat, of Eq. B. 1, c. 3, § 4. (1 Story, Eq. Jur. § 390. Lee v. Munroe, 7 Crane'.:, 3GG, 368. Lasalle v. Barnett, 1 Blackf. 150.) (d) Draper v. Borlace, 2 Vern. 2i>i - 1 It has been doubted whether this case authorizes the general position, that equity will in every case, postpone a subsequent judgment creditor to a prior defective mort- gage. For, in the first place, it is a general rule of equity, that the Court will not interpose in prejudice of a defendant having a legal interest, for a valuable considera- tion, and without notice of the plaintiffs equity ; and secondly, as the defect arises from the neglect of the mortgagee himself, he does not appear entitled to much favor to the prejudice of a more prudent creditor. See 1 Fonbl. on Eq. 38 ; Coote on Mortg. 227, h. Title XV. Mortgage. Ch. V. s. 24—27. 679 24. A mortgagee was present when the mortgagor was in treaty with the father of the lady for the marriage of his son ; and the lands which were in mortgage, being agreed to be settled upon his marriage, to the intended husband for life, remainder to the wife for life, remainder to the issue of the marriage ; it was not opposed by the mortgagee, who fraudulently concealed his mortgage, and at the same time privately assured the father of the young man that he would trust to his personal security. It was decreed that the son, and the issue of the marriage, should hold the lands quietly against the mortgagee and his heirs, (a) 25. But where the party to whom the fraud is imputed was not conusant of the treaty, nor in any manner, nor for any fraud- ulent purpose, confederating with the party practising the fraud, this principle does not apply. 26. Thus, if a person, intending to advance money on a mort- gage, applies to a prior incumbrancer to know whether he has *any charge on the estate on which he intends to lend *170 his money, and he denies that he has any charge, he will thereby lose his priority. But the person intending to advance the money, or his agent, must inform the prior incumbrancer that he intends to lend money on the lands ; for the prior incum- brancer is not bound to answer, unless he knows of such inten- tion ; as the question may be asked merely to satisfy an imperti- nent curiosity, (b) 27. It was formerly held, that if a mortgagee was witness to a second mortgage deed, it would give a priority to the second mortgagee. In a subsequent case, Lord Hardwicke is reported to have said, he did not think the bare attesting a deed by a per- son as a witness would create such a presumption of his knowl- edge of the contents, as to affect him with any fraud ; for a witness is only to authenticate it, and not to be privy to the con- tents. And in a modern case, Lord Thurlow said : — " I do not leave this as a case which I should determine in the same man- ner ; for a witness, in practice, is not privy to the contents of the deed." (c) 1 (a) Berisford v. Milward, 3 Atk. 49. (b) Ibbotson v. Rhodes, 2 Vern. 554. Pasley o. Freeman, 3 Term. R. 51. 6 Ves. 186. Pearson v. Morgan, 1 Bro. C. C. 03. 2 Bro. C. C. 388. (c) Moeatta ». Murgatroyd, 1 P. Wins. 393. Welford v. Beazeley, 1 Ves. C. Digby r. Craggs, 2 Eden, 200. Becket v. Cordley, 1 Bro. C. C. 353. 1 The ground of postponing the prior title in such cases is, that the party, by his 680 Title XV. Mortgage. Ch. V. s. 28—30 28. It has been already stated, that if a purchaser, without notice of any incumbrance, obtains an assignment of a prior statute, judgment, or recognizance, to a trustee for himself, he may by that means protect the lands purchased from any mesne incumbrances. Now, as mortgagees are considered in equity as purchasers pro tanto, the same doctrine has been extended to them ; and it has been long settled, that a mortgagee who has advanced his money, without notice of any prior incumbrance, may, by getting an assignment of a statute, judgment, or recog- nizance, protect himself from any incumbrance subsequent to such statute, judgment, or recognizance, though prior to his mort- gage ; that is, he will be allowed to tack 1 or unite his mortgage to such old security, and will by that means be entitled to recover all the moneys for which such security was given, together with the money due on his mortgage, before the prior mortgagees are entitled to recover any thing, (a) f 174 * * 29. The nature of outstanding terms for years, and the distinction between terms in gross and terms attendant on the inheritance, having been already explained, it will be 175* sufficient *here to state, that where a second or third mortgagee, who advanced his money without notice of any prior incumbrance, can obtain an assignment of an old term in gross to a trustee for himself, he will be thereby enabled to retain possession of the legal estate, till he is repaid all the money due on his mortgage, (b) 30. Although a term has been assigned upon an express trust to attend the inheritance ; yet if a subsequent incumbrancer gets an assignment of it to a trustee for himself, it will protect him (a) Tit. 12, c. 3, § 34. Tit. 14, § 108. (6) Tit. 12, c. 3. silence, has knowingly participated in what would otherwise be a fraud on the second incumbrancer. Thus, where S. & P. were joint occupants of land, the title to which was in S. alone ; and P., with the knowledge and assent of S., made a mortgage of the land, which S. afterwards treated as a valid and subsisting mortgage, paying part of the money due ; it was held, in a suit by the mortgagee for foreclosure and sale against S. & P., that S. was estopped from setting up his title against the innocent mortgagee. Lee v. Porter, 5 Johns. Ch. 268. And see Brinckerhoff v. Lansing, 4 Johns. Ch. 65 ; Green v. Price, 1 Munf. 449. 1 As to the doctrine of tacking, see ante, ch. 3, § 36, 55, notes. [t But if a third incumbrancer, having constructive notice of the second mortgage, fails to keep the first security on foot for his protection, he is not entitled to stand in the place of the first mortgagee against the second. Parry v. Wright, 1 Sim. & Stu. 369. See also Toulmin v. Steere, 3 Mer. 210.] Title XV. Mortgage. Ch, V. s. 30—32. 681 against all mesne incumbrances, in the same manner as if it had been a term in gross, (a) 1 * 31. The doctrine, that a term which has been assigned, *184 upon an express trust to attend the inheritance, may notwithstanding be severed from the inheritance, and assigned to protect a particular incumbrance, has been confirmed by a court of law. 32. R. Jones, being seised in fee of several estates, demised the same in 1761 to Aubrey for 999 years, by way of mortgage. In 1768 this term, the money being paid off, was assigned to Lockwood, in trust for Jones, as to the manor of Penmarke, and to attend the inheritance ; and as to the other lands, in trust for Lockwood and Morris. In 1767, Jones mortgaged to Morgan, * and in 1769 to David ; both these mortgages * 185 were in fee. In 1769, Jones having borrowed £ 10,000 from Sprigg, assigned the term to Moreland, in trust for Sprigg ; and, by indentures of lease and release, mortgaged the same lands in fee to Sprigg, to secure the X 10,000. On the mortgage to Sprigg, all proper searches were made for incumbrances ; he had all the title deeds that could be found delivered to him, at the time when he advanced his money, except the demise of the term for 999 years, and the assignments of it, which were kept in the hands of Lockwood, on account only of containing other premises in mortgage to Lockwood, which were not included in the mortgage to Sprigg, nor assigned to Moreland, his trustee ; but counterparts of them were then delivered to Sprigg. Mor- gan and David were in possession, by ejectments brought on their several mortgages. The personal representatives of More- land, the trustee of the term for Sprigg, brought an ejectment for the recovery of the lands. On the part of Morgan and David, it was contended that the term must be considered as attendant upon the inheritance ; consequently, at the times of the respec- tive mortgages to them, the trustee of the term became their trustee, and the term could not be separated from the inheritance, but by their consent; that if, previous to the conveyance to Sprigg in 1769, Morgan and David had brought ejectments upon (a) Willoughby v. Willoughhy, 1 Term. Rep. 763. ' Sec ante, tit. 12, ch. 3. ad calc. 3 Wheat. 224, n. 682 Title XV. Mortgage. Ch. V. s. 32—34. their mortgages, neither Jones, nor Lockwood his trustee, could have set up this term as a bar to their ejectment. Then, if Jones himself could not set up the term, it was absurd to say that those who claimed under him might; for they could not claim a greater estate than he had. Then Jones, having parted with the inheritance, had no power afterwards to make any appointment of it differently ; his power was gone, though it were collateral, by the conveyance of the land. Mr. Justice Ashurst said : No man ought to be so absurd as to make a purchase, without looking at the title deeds ; if he was, he must take the consequence of his own negligence. If the first mortgagee had used ordinary precaution, he must have known that this term was then outstanding ; if he did know of it, and neglected to take an assignment of it, that was enabling the mortgagor to commit a fraud, by mortgaging the same estate again. By this, therefore, he became particeps criminis, 186 * and must * suffer for the consequences of the fraud ; for the lessors of the plaintiff claiming under Sprigg, who had got the legal estate, must be preferred. Mr. Justice Buller was of opinion that the plaintiffs, having the title deeds, were entitled to recover, (a) 33. A declaration of trust of a term for years, in favor of an incumbrancer, is tantamount to an actual assignment of it to a trustee for him. And the custody of the title deeds respecting a term for years, with a declaration of trust of it, in favor of a second incumbrancer, is equivalent to an actual assignment. 34. Henry Sayer, being seised in fee of certain estates, subject to an outstanding term of years in Rigby and Eyre, by inden- tures of lease and release, bearing date the 4th and 5th June, 1732, conveyed them to Lady Dysart and her heirs, for securing the payment of ,£1000, with interest; and covenanted to pro- duce the deeds respecting the terms of years. Afterwards, Rigby and Eyre assigned the term to Cunningham and Clayton, in trust for Sayer, his heirs and assigns ; and then Sayer, by indenture dated 19th December, 1732, conveyed the same estates to Mrs. Nash, under whom Lord Verney claimed, by way of mortgage, for seeming to her £3000 and interest, with a declaration that Cunningham and Clayton should stand possessed of the term in (a) Goodtitle v. Morgan, 1 Term R. 755. Vide ante, § 9. Title XV. Mortgage. Ch. V. s. 34—36. 683 trust for her. The deeds respecting it were delivered to her, and neither she nor the trustees had notice of the mortgage to Lady Dysart. Lady Dysart brought an ejectment ; Lord Verney de- fended and set up the term, with a declaration of trust of it, in favor of Mrs. Nash, under whom he claimed. Upon this, Lady Dysart brought her bill in equity. The question was, which should be preferred, Lady Dysart, who had the first declaration of the trust of the term, or Lord Verney, who had the subsequent declaration of the trust, but had the custody of the deeds. Lord Northington held that a declaration of trust, in favor of an incumbrancer, was tantamount to an actual assignment, unless a subsequent incumbrancer bond fide, and without notice, pro- cured an assignment. And that the custody of the deeds re- specting the term, with a declaration of the trust of it, in favor of a second incumbrancer, was equivalent to an actual * assignment ; and therefore gave him an advantage over * 187 the first incumbrancer, which equity would not take from him. (a) f 35. If the first incumbrance only extends to part of the estate comprised in the latter mortgage, it will only protect that part ; but if the first incumbrance extends to estates not comprised in the subsequent mortgages, the puisne mortgagee shall hold all the estates till he is satisfied. 1 36. A person mortgaged the manor and rectory of D to A, then mortgaged the rectory to B without notice of the mortgage to A; afterwards B purchased in a precedent incumbrance on both the manor and the rectory. The question was, when B had received all the money due on the first security, whether he should receive any more profits of the manor, or only keep the incumbrance on foot, to protect the rectory. This was argued before Lord Keeper Finch, in the (a) Stanhope r. Verney, 1 Inst. 290 b, n. § 13. 2 Eden, 81. I [Lord Loughborough has observed, 6 Ves. 184, that this doctrine has been weakened by some determinations at law, where a satisfied term has not been allowed to be set up in bar to a plaintiff in ejectment. But the law on that point has been since altered. Vide tit. 12, c. 3. — Note to former edition.] 1 But where there arc successive mortgages, the first being of two estates and the second of only one of them, the first mortgagee will be obliged to exhaust first the estate not included in the second mortgage, before he can resort to the other. York & Jersey Steamboat Co. v. Jersey Co., I Hop. 460. 684 Title XV. Mortgage. Ch. V. s. 36—38. presence of Wyld and Twisden. The two Judges held that B should not receive the profits of the manor after the first incum- brance was satisfied, because he had taken the rectory only for his security of that sum ; and it would be unreasonable to give him a security beyond what he had in his original intention. But the Lord Keeper overruled it ; for that when he had pur- chased the precedent incumbrances, which comprehended both the manor and the rectory, and were forfeited at law, it was but reasonable that the estate should not be taken away by the mesne incumbrancer in a court of equity, which by no methods could be evicted at law, unless the person who sought relief would do equity, and pay the whole money due on both securities, (a) 37. It has been long established as a rale in Chancery, that where a mortgagee buys in an incumbrance, to protect his estate at law, on compositions, he shall be allowed the full money due on such incumbrances ; and the same shall not be redeemed by the mortgagor, or his heir, till payment of all the money due on such incumbrances ; without regard to the beneficial bargains and compositions made by such purchaser, (b) 38. A distinction has, however, been made in cases of 188 * this * kind between a stranger and a trustee or heir at law. For w T here a trustee or heir buys in an incumbrance, he shall be allowed no more than what he really paid for it, unless he bought it to protect an incumbrance to which he himself was entitled. But where a stranger, who has an incumbrance on an estate, buys in another security, to protect his own, he shall not only hold till he has satisfied his own debt, and has reimbursed himself the money paid for the incumbrance bought in, but even till he has received all the money and arrears of interest due on the security so bought in. (c) l (a) Bovey v. Skipwith, 1 Cha. Ca. 201. 1 Ab. Eq. 323. (6) Ascough v. Johuson, 2 Vera. 66. (c) Darcy r. Hall, 1 Vern. 49. 2 Atk. 54. 1 The principle seems to be this, that where the purchaser of a debt or incum- brance sustains a fiduciary relation to the debtor in respect of the same debt or incum- brance, he shall be presumed to have made the purchase pursuant to his duty, and for the benefit of the debtor ; and therefore is allowed only what he actually paid. The same principle also applies in all cases where the payment of the debt was the duty of the payer. In this predicament are heirs, sureties, guardians, executors, administrators, agents, and all other persons chargeable as trustees. The law secures the faithfulness of the party, by removing the temptation to defraud. See 1 Story, Eq. Jur. § 316, 322, Title XV. Mortgage. Ch.. V. s. 39- 42. 685 39. In the case of judgments or statutes, it is laid down by Sir Joseph Jekyll, that if a puisne mortgagee without notice buys in a prior judgment or statute, and that judgment or statute is extended upon an elegit, at a value much under the real, the mesne mortgagee shall not make the puisne mortgagee, who has got in such judgment, account otherwise, or for more than the extended value ; . nor will the Court of Chancery give any relief against the judgment or statute, but leave the mesne mortgagee to get rid of them, as well as he can, at law. (a) 40. With respect to the time when a second or third mort- gagee may purchase in a prior incumbrance, it has been long established that this may be done at any time before the decree, even pendente lite ; for it may happen that the second or third mortgagee only discovers the first mortgage by the proceedings in the suit, (b) 41. But where a puisne incumbrancer after the bill brought, and after the first decree made, and after the report, got an as- signment of an old judgment and mortgage, hoping thereby to gain a preference to his debt ; the Court said : The assignment being after the decree made, he should not profit by it, or change the order of payment ; but must come in according to the order of time of his own incumbrance, without regard to the old judgment and mortgage which he got in after the decree and report, (c) 42. A person bought in an old judgment, after a decree had been made in a cause in which he had been a party with other creditors, and the Master had been directed to inquire into the priority of their demands ; he made claim before the Master to have it tacked to his mortgage, thereby to gain a priority, as to which the Master refused to make any report, whereupon he filed * his bill : one question was, whether he could * 189 tack the incumbrance, bought in after the decree, to his mortgage. (a) 2 P. Wms. 494. (6) Hawkins v. Taylor, 2 Vern. 29. Turner v. Richmond, 2 Vern. 81. (c) Bristol v. Hungerford, 2 Vern. 524. 323; 2 Story, Eq. Jur. § 1211, 1211, a; Phillips v. Vaughan, 1 Vern. 336; Brathwaitc p. Brathwaite, Ibid. 335 : Long v. Clopton, Ibid. 464 ; Williams v. Springfield, Ibid. 476 ; Baldwyn v. Banister, 3 P. Wms. 251, note (A) ; Francis's Max. 9—11 ; Forbes v. Boss, 2 Bro. Ch. Cas. 430, note 16) by Perkins. vol. i. 58 686 Title XV. Mortgage. Ch. V. s. 42— 44. Lord Hardwicke, (after laying down the general doctrine as already stated,) said, " that if a puisne incumbrancer took in the first incumbrance pendente lite, still he should have the same benefit ; for in Marsh v. Lee there was a Us pendens, yet was not the party affected by it; and so, I take it, in general it would be, notwithstanding a lis pendens ; because the principle upon which all these cases depend is this, that a man's having notice of a second incumbrance, at the time of taking in the first, does not hurt ; it is the very occasion that shows the necessity of it. It is only notice at the time of taking in the third, that will affect him ; for then no act that he can do will help him. Then a lis pendens is nothing but notice : an actual notice is certainly as good as that by a lis pendens ; one notice is, in con- sideration of this Court, as strong as another. Nay, actual notice is stronger than that implied by a lis pendens ; it will not, there- fore, affect him. That was Marsh v. Lee, and the other cases which I agree to : but no case is cited wherein a puisne incum- brancer, a party in a cause, and a decree made in that cause for satisfaction of incumbrancers, according to their respective priorities, has taken in a prior, to tack to his puisne incumbrance, that he should be allowed to make use of that in any other shape than that original incumbrancer would be." He was of the same opinion as Lord Cowper was in the Earl of Bristol v. Hunger- ford, in general ; and did think it would be most mischievous and pernicious if the Court should allow the doctrine of tacking to be carried to that extent, (a) 191 * * 43. In the following case it was determined by the Court of Chancery, and the House of Lords, that a third or other subsequent mortgagee, after a bill filed for sale of the estate, and payment of all the mortgages, to which the first mort- gagee had put in an answer, and submitted that the incumbrances might be discharged according to their respective priorities, might buy in the first mortgage, and thereby gain a priority over the second and other mesne mortgages, (b) 44. John Butler, being seised in fee of some lands in Surrey, mortgaged them to five successive persons, and delivered the title deeds to the fifth mortgagee. Upon the death of the mortgagor, («) Wortley V. Birkhead, 2 Ves. 571. 3 Atk. 809. Tit. 12, c. 3, § 34, n. Ante, § 54, (6) Robinson v. Davison, 1 Bro. C. C. 63. See per Lord Eldon, Mackretk v. Symmons. 15 Ves. 335. Title XV. Mortgage. Ch. V. s. 44—47. 687 the second mortgagee filed a bill in the Court of Chancery against all the other mortgagees, praying that they might set forth their interest in the premises ; and that the mortgaged premises might be sold, and the money applied towards the payment of all the incumbrances, in their just order. To this bill all the other mort- gagees put in their answer : the first mortgagee submitted that all the incumbrances might be paid according to their respective priorities ; and the last mortgagee insisted, that having the title deeds, he ought to be paid immediately. After all these answers had been put in, the last mortgagee purchased in the interest of the first mortgagee, and riled a cross bill, stating this matter, and that by means of the assignment from the first mortgagee, the legal estate in the premises was vested in him ; therefore he was entitled to what was due on his own mortgage, preferably to any of the intervening mortgages. It was decreed by Lord Keeper Henley, that the lands should be applied, first in discharge of all that was due to the last * mortgagee, as well on account of the first mortgage, *192 which he had purchased, as on account of his own mort- gage, (a) On an appeal to the House of Peers, the decree was affirmed. *45. As the principal point upon which the doctrine * 194 of tacking subsequent to prior incumbrances- depends is, whether the mortgagee had notice of the prior incumbrance at the time when he advanced his money ; it will be necessary to ascertain ivhat circumstances constitute notice ] of a prior incum- brance. (This is often a point of considerable nicety; resolving itself sometimes into matter of fact, and sometimes into matter of law. Hence notice is said to be either direct and actual, or inferential and constructive.) 46. Direct notice is an actual and positive knowledge of a prior incumbrance, regularly and formally communicated to the mortgagee. 47. A notice given to the counsel, attorney, solicitor, or agent (a) Belchier v. Renforth, 5 Bro. Pari. Ca. 292. 1 Eden, 523. [ l The notice must be direct and positive or implied ; a notice which is barely suffi- cient to put a party on inquiry, is not enough. Fort v. Burch, 6 Barb. Sup. Ct. 60.] 688 Title XV. Mortgage. Ch. V. s. 47—50. of a mortgagee, is a sufficient notice to such mortgagee. But a notice of this kind must be confined to the same transaction ; for notice in another transaction will have no effect, (a) 1 48. Where all the securities are prepared by the same person, notice to that person will operate as a notice to all the parties concerned in the transaction, (b) 195 * * 49. A. judgment, though on record, is not in itself notice to a purchaser or mortgagee. For although a purchaser is, at law, bound to take notice of a judgment; yet, in equity, where the cognizee of a judgment claims to be allowed to extend his judgment against a purchaser, who has got a prior term or incumbrance, he must prove express or constructive notice of the judgment, otherwise he will not be relieved, (c) 50. A memorial of a conveyance, duly registered in the manner required by the register acts, is not of itself notice to a subsequent incumbrancer, (d) 2 (a) 2 Vern. 574. Gilb. R. 8. 3 Atk. 294. (b) Treat, of Eq. B. 2, c. 6, § 4. Le Neve v. Le Neve, tit. 32, c. 29. (c) 1 Cfaa. Ca. 36. 2 Atk. 275. (d) Tit. 32, c. 29. Amb. 678. 1 Lawrence v. Tucker, 7 Greenl. 195; Jackson v. Sharp, 9 Johns. 163; Jackson v. Van Valkenburg, 8 Cowen, 260. Notice to a creditor of a prior conveyance by his debtor, will prevent him from acquiring a title by attachment of the land as the prop- erty of the debtor. Priest v. Rice, 1 Pick. 164; Matthews v. Demerritt, 9 Shepl. 312. See further, post, tit. 32, ch. 29. 2 In the United States, the registration of any instrument of title which the law re- quires to be registered, if the instrument be duly executed, is of itself notice to all subsequent incumbrancers or grantees, claiming under the same grantor. See post, Vol. IV. tit. 32, ch. 29, where this subject is further treated. [Moor v. Ware, 38 Maine, (3 Heath,) 496 ; Pike v. Collins, 33 lb. (3 Red.) 38. See also Coster v. Bank of Georgia, 24 Ala. 37; DeVendal v. Malone, 25 lb. 272; Center v. P. & M. Bank, 22 lb. 743 ; Dean v. De Lezardi, 24 Miss. 424; Brown v. Kirkman, 1 Ohio State R. 116.] Beside the general statutory provisions for the registration of all deeds of conveyance, there are special provisions, in several of the United States, in regard to mortgages. In some, the provision is in general terms, requiring that all mortgages be registered ; without which, it would seem, they would be inoperative as mortgages, whatever rights might exist in equity between the parties. In New Jersey, an unrecorded mortgage, though valid between the parties, is of no force against subsequent judgment creditors, or bond fide purchasers and incumbrancers for valuable consideration, unless it is recorded or lodged with the clerk or register, prior to the entry of judgment or to the registry of the subsequent deed. Elmer's Dig. p. 87. In Delaware, a mortgage not recorded within a year from its date, is of no force against subsequent purchasers and incumbrancers bond fide, for valuable consideration and without notice; and mortgages become liens, and have priority inter sese, not according to their dates, but according to the time of Title XV. Mortgage. Ch. V. s. 51 — 55. 689 51. A person is not bound to take notice of an act of bank- ruptcy ; for it may be committed in so secret a manner, as not to be easily known, (a) 52. Sir William Grant seems to have doubted whether a per- son purchasing a copyhold estate, must be presumed to have notice of everything on the court rolls relating to it. Sir John Leach, V. C, has held that the court rolls are the title deeds of copyholds, and that a purchaser is affected with notice of the con- tents as far back as a search is necessary for the security of the title, (b) 53. [A private act of parliament is not notice to strangers, but a public act of parliament is notice to all. (c) So is lis pendens, where not collusive ; (d) but it is not of itself notice for the pur- pose of postponing a registered deed, (e) nor to prevent a third mortgagee from obtaining the benefit of the legal estate from the first incumbrancer. (/) 54. A decree of a court of equity is not of itself notice, (g)] 55. Lord Chief Baron Eyre has defined constructive notice to be no more than evidence of notice, the presumptions of which were so violent that the Court would not allow even of its being (a) Hitchcock v. Sedgwick, 2 Vern. 157. See Sugd. on Vend. 719, 722, 6th ed. (6) Hansard v. Hardy, 18 Ves. 462. Pearce v. Newlyn, 3 Madd. 186. (c) 2 Vez. 480. 2 Bos. & Pul. 578. (d) 2 Cha. Ca. 116. 2 Sim. 433. (Chaudron v. Magee, 8 Ala. E. 570.) (e) 19 Ves. 439. if) 1 Bro. C. C. 63. (g) Worsley v. Scarborough, 3 Atk. 392. their registration. Del. Eev. St. 1829, p. 91. In South Carolina and Kentucky, the same classes of purchasers, including creditors, have priority over mortgages not re- corded within sixty days from their execution. S. Car. Stat. 1843, No. 2890, § 1 ; Ken- tucky, Eev. St. Vol. I. p. 448. In Georgia, a mortgage not recorded within three months from its date is postponed, in favor of all judgments rendered before the fore- closure of the mortgage, and all subsequent mortgages duly recorded. LL. Georgia, p. 420, Hotchkiss's Dig. In New York, every conveyance not recorded, is void against subsequent purchasers in good faith, for valuable consideration, whose deeds are duly recorded. LL. N. York, Part 2, ch. 3, § 1, Vol. II. p. 40, 3d ed. [As between parties a mortgage is valid without registration. Lcggett v. Bullock, Busbee, Law, (N. C.) 283; Fosdick v. Barr, 3 Ohio, N. S. 471. And is valid as against subsequent purcha- sers with notice. Dearing v. Watkins, 1G Ala. 20. But the registration of a mortgage, without an acknowledgment or proof, according to the statute, is a nullity, and conveys no notice. Work v. Harper, 24 Miss. 517 ; White v. Denman, 1 Ohio State R. 110. And where a recorded mortgage is discharged by a person not the mortgagee, a sub- sequent incumbrancer is bound to inquire what authority he had to discharge it, and is chargeable with notice of such facts, as by proper inquiry he could have ascertained. Swartwout v. Curtis, 1 Selden, 301.] 58* 690 Title XV. Mortgage. Ch. V. s. 55—56. controverted. And Mr. Fonblanque has observed that it would be extremely difficult to extract from the cases any general * 196 rule * on this subject. It seemed, however, to be held, that every man shall have notice of the instrument under which the party with whom he contracts, as executor or trustee, derives his power. It seemed also agreed, that where a purchaser could not make out a title, but by a deed which led him to another fact, he should be presumed to have notice of such fact. 1 So whatever was sufficient to put a party on inquiry, was good notice in equity, (a) 56. It is laid down by Lord Eldon, in a modern case, that the possession of a tenant is constructive notice to a purchaser of the actual interest he may have, either as tenant, or under an agree- ment to purchase the premises, (b ) (a) Plumb v. Fluitt, ante, § 13. Treat, of Eq. B. 3, c. 3, § 1. Surman r. Barlow, 2 Eden, 165. (b) Daniels v. Davison, 16 Ves. 249. 17 Ves. 433. 1 See further, as to notice, post, tit. 32, ch. 29, § 20, note, where this rule is qualified, and the subject is treated more at large. 691 CHAP. VI. FORECLOSURE. Sect. 1. Nature of. 5. A Foreclosure binds an En- tail. 7. How far Infants are bound by it. Sect. 11. Married Women are bound by it. 1 2. Decrees of Foreclosure some- times opened. 14. A Sale sometimes decreed. Section 1. As the courts of equity allowed persons who had mortgaged their lands to redeem them, long after the time of payment was passed, and the condition forfeited at law, it be- came also necessary to establish certain rules for enabling mort- gagees to determine and destroy the right of redemption. This may be done after the day of payment is past, by the mortgagee's filing a bill of foreclosure ; that is, by his calling on the mort- gagor, in a court of equity, to redeem his estate presently ; or in default thereof, to be forever foreclosed, and barred from any right of redemption. 1 1 The methods of foreclosing mortgages in the United States are various; but subject to some diversities in the details of proceedings, not within the scope of these notes to be mentioned, they may be arranged into these classes : — First, by bjM in Chancery, under the general and inherent jurisdiction of Courts of Equity. Here an interlocutory decree is passed, for the payment of the money into court, by a day limited, either by the Court, in its discretion, or, as in some cases, by statute ; on default of which the land is decreed to be sold by the Master, and the money being brought into court, the debt is paid, with the costs, and the balance, if any, is delivered to the debtor. See 4 Kent, Comm. 182—186; Elmer's Dig. LL. New Jersey, tit. Chancery, p. 62, § 57 ; New York, Rev. St. pt. 3, ch. 1, tit. 2, art. 6 ; [Potter v. Rowland, 4 Selden, (N. Y.) 448 ;] LL. Maryland, Vol. I. p. 208, Dorsey's ed.; Vermont, Eev. St. 1839, ch. 24, § 23 ; South Carolina, Stat, at Large, Vol. IV. p. 642; Michigan, Rev. St. 1837, p. 376; Indiana, Rev. St. 1843, ch. 29, § 32, 33, 34 ; Missouri, Rev. St. 1845, ch. 122; Alabama, Toulm. Dig. p. 487 ; [Carradine v. O'Connor, 21 Ala. 523;] Thompson's Dig. LL. Florida, p. 380. So, in Virginia, 1 Lomax, Dig. tit. 13, ch. 6, p. 397, and in some other States. In some States, the Court exercising Chancery powers, may decree a strict foreclosure, whereby the title becomes absolute in the mortgagee, on the failure of the mortgagor to redeem the land within the time expressed in the decree. See Dutton's Dig. LL. Con- necticut, p. 515, 516; Derby Bank v. Landon, 3 Conn. R. 62; Swift v. Edson, 5 Conn. 692 Title XV. Mortgage. Ch. VI. s. 2. 2. A mortgagee brought his bill against the mortgagor to com- pel him, as tenant in tail, to make a good title, by suffering a R. 531. [Johnson v. Donnell, el. al. 15 Illinois R. 100.] In Maryland, if the mort- gagor is an infant, or non compos mentis, the Court may decree either a sale or a strict foreclosure, in whole or in part, at its discretion. LL. Maryland, ubi supra. In Michigan and Indiana, the Court of Chancery is authorized by statute, when the proceeds of sale are insufficient, to render judgment for the balance of the debt, and issue execution therefor, as at common law. In Arkansas, and, as it seems, in Louisiana, the Court renders judgment for the whole debt, and also for foreclosure and sale ; and if the proceeds of sale are insufficient, execution issues for the balance, as in ordinary cases. But in South Carolina and Missouri, this may be done only by the court of common law, on petition, under the statute, Chancery having power only to proceed according to the usual course of Chancery. See LL. Michigan, Missouri, and Indiana, ubi supra; LL. South Carolina, Vol. V. p. 169, 170; Arkansas, Rev. St. 1837, ch. 101. See also Louisiana Civ. Code, art. 3361. In Connecticut, a strict foreclosure is held a complete extinguishment of the mortgage debt. Kent v. Edson, 5 Conn. R. 531. But in Massachusetts, Maine, New Hampshire, Maryland, and several other States, it is held only a payment pro tanto ; and the creditor may recover the balance of the debt in a suit at law, the value of the land, when foreclosed, being estimated by the jury. Amory v. Fairbanks, 3 Mass. 562 ; West v. Chamberlain, 8 Pick. 336 ; Portland Bank v. Fox, 1 App. 99; Hunt v. Stiles, 10 N. Hamp. 466; Doe r. McLosky, 1 Ala. 708; Spencer v. Harford, 4 Wend. 381 ; Andrews v. Scotton, 2 Bland, 629; Hatch v. White, 2 Gall. 152; Globe Ins. Co. v. Lansing, 5 Cowen, 380; Lansing v. Goelet, 9 Cowen, 346 ; Omaly v. Swan, 3 Mason, 474 ; Hedge v. Holmes, 10 Pick. 3S0, 381 ; Hughes v. Ed- wards, 9 Wheat. 489. And see 1 Daniell's Ch. Pr. 331, note by Perkins ; Post, § 12, note. [If a mortgagee foreclose his mortgage, his debt becomes by that act extin- guished to the extent of the value of the land at the time of the foreclosure ; and any other collateral security which he may hold for the same debt, becomes thereby exoner- ated to the same extent. Smith v. Packard, 19 N. H. 575. If lands are mortgaged as one entire lot, and are afterwards subdivided by the mortgagor into parcels, the mort- gagee, upon foreclosure, is not bound to advertise and sell in parcels, but may sell as one undivided lot, by the description in the mortgage. Lamerson v. Marvin, 8 Barb. Sup. Ct. 9.] Secondly. BfPsaZe under a power for that purpose in the mortgage deed, or in a con- temporary instrument, duly authenticated and registered. Such a power, being coupled with an interest, is irrevocable and inextinguishable ; and a sale under it divests the title of the mortgagor as well in equity as at law, absolutely and forever. In Massachu- setts, and some other States, this subject remains as at common law ; but in others it is regulated by particular statutes, prescribing the manner of sale, and limiting the power of the creditor, in order to prevent oppression and undue advantage. See New York, Rev. St. pt. 3, ch. 8, tit. 15, 3d ed. ; [Stanton v. Kline, 1 Kernan, (N. Y.) 196, S. C. 16 Barb. Sup. Ct. 9; Bunce v. Reed, lb. 347; Cohoes Co. v. Goss, 13 lb. 137 ; King v. Duntz, 11 lb. 191 ;] Michigan, Rev. St. 1837, p. 499, St. 1843, No. 75 ; Indiana, Rev. St. 1843, ch. 29, § 51—53 ; Mississippi, Stat. Feb. 21, 1840, § 7. Thirdly. By entry under process of law, sued out for this purpose by virtue of statutes regulating such proceedings. This may be done in Maine, New Hampshire, Massachu- setts, Rhode Island, and Vermont, by process sued out at any time after breach. [The assignee of two mortgages of the same land, made by the same mortgagor at different times, to different mortgagees, may unite them in one action of foreclosure, and recover Title XV. Mortgage. Ch. VI. s. 2. 693 recovery. Mr. Justice Wright, sitting at the Rolls, said he did not apprehend that the Court would point out what title the thereon a conditional judgment, specifying the amount due on each. Peirce v. Balkam, 2 Cush. 374.] So, in Pennsylvania and Delaware; except that in these States process is not to issue until twelve months after breach. [Wilson v. McCullough, 19 Penn. (7 Harris,) 77; Larimer's Appeal, 22 lb. (10 Harris,) 41 : Perry's Appeal, lb. 43.] In Georgia, the course is by petition, and a rule for payment of the money in six months; after which, if the money is not paid, an order is made for sale of the land. In Florida, the same general object is effected by a provision that the process shall be served four months before the return day ; at which time, if no good cause is shown, the Court is bound to render judgment fdr the debt and also for foreclosure. In the New England States above mentioned, except New Hampshire, a time is limited by statute or in the decree, within which the debtor may pay the money and prevent the issue of the writ of possession. In Maine, Massachusetts, and Rhode Island, this statute period is two months. Fourthly. By entry en pais, openly and peaceably made, and without process of law. This method may be pursued in Maine, Massachusetts, Neiu Hampshire, and Rhode Island. In the two former States, the entry must be made in the presence of two witnesses, and verified by their affidavit, duly recorded [within thirty days of the entry,] or by consent of the mortgagor, indorsed on the back of the deed. [If the mortgagor has conveyed the right of redemption, the consent of such grantee must be obtained. Chase v. Gates. 33 Maine, (3 Red.) 363. Before the Rev. Stat., if a mortgagee entered into possession of the premises under a deed of demise and lease from the mortgagor for one year, and if he claim to hold afterwards to foreclose, he must notify the party entitled to redeem. Ayres v. Waite, 10 Cush. 72. An entry to foreclose by a mortgagee on one of two separate tracts of land, both situated in the same county, and mortgaged by the same deed, on the same condition, is an entry as to both. Bennett v. Conant, 10 Cush. 163. A mortgagor who signs a certificate on the mortgage of a lawful entry on the mort- gaged premises, cannot deny the fact of such entry. Ibid. Nor can the effect of such entry be avoided by proof that the mortgagee did not actually go on the land. Oakham v. Rutland, 4 Cush. 172. See also Lawrence v. Pletcher, 10 Met. 344. A mortgagee who has duly taken possession of the mortgaged premises for the purpose of foreclosure, need not continue in actual occupation and use of the premises in order to bar the right of redemption in three years ; the mortgagor, or any one under him, not being in occu- pation during said time. Bennett v. Conant, 10 Cush. 163. And if he has duly taken actual possession thereof, for breach of condition, for the purpose of foreclosure, the mortgage becomes absolute at the end of three years from such entry, although the mortgagor afterwards remains in the occupation of the premises, in the same manner as before for a longer period than three years. Swift v. Mendell, 8 lb. 357. Where a mortgagee quitclaimed his interest in a portion of the mortgaged premises, and subsequently duly entered, with the knowledge of the mortgagor, on the mortgaged premises, for breach of condition and for the purposes of foreclosure, but the certificate of entry, indorsed on the deed and duly recorded, did not state on what part of the premises the entry was made, it was held that such entry, with the continued possession of the grantee of the part conveyed to him for three years after the entry, constituted a perfect foreclosure of the mortgage as to that part of the premises held by the latter. Raymond v. Raymond, 7 Cush. 605. In Maine, it is held that the possession must be actual, and is not proved by the con- sent, in writing, of the mortgagor that the mortgagee may enter, and that possession is 694 Title XV. Mortgage. Ch. VI. s. 2. mortgagor should make, but would decree him to make such title to the mortgagee as he was capable of doing ; and, therefore, thereby given. Chamberlain v. Gardiner, 38 Maine, (3 Heath,) 548. See also Pease v. Benson, 28 Maine, (15 Shep.) 336.] In Rhode Island, also, two witnesses are requisite ; who only give a certificate of the fact to the mortgagee, to be recorded in like manner. In New Hampshire, notice of the fact of entry is required to be published in the newspapers. The possession of the mortgagee, in either of these cases of entry, must have been continued during the whole period, in order to effect a strict foreclosure. If it is restored to the mortgagor, the entry is waived. Botham v. Mclntier, 19 Pick. 346. [The com- mencement of a suit by a mortgagee in possession to foreclose the mortgage by action, is not an abandonment of the possession. Page v. Robinson, 10 Cush. 99 ; Merriam v. Merriam, 6 Cush. 91.] Fifthly. In Maine, if the mortgagee elects not to take possession, a mortgage may be foreclosed without entry, by an advertisement in the newspapers, or by a notice to the mortgagor, served by the sheriff, stating his title and claim with due particularity, and the breach of the condition, by reason whereof he claims to foreclose the mortgage. And wherever a foreclosure may be made by entry, in the preceding cases, if the mortgagee is already in possession, a notice that he thenceforth holds for breach of the condition, and for foreclosure, is equivalent to an actual entry de novo. After an entry for the purpose of strict foreclosure, whether made under process, or en pais, and after advertisement instead of entry, as last mentioned, the mortgagor is in several of the States allowed a term of time, fixed by statute, within which he may still redeem the land by payment of the mortgage money with interest and legal costs. This period, in Maine, Massachusetts, and Rhode Island, is three years. [In Maine, when the foreclosure is by advertisement in the newspapers, the three years begin to run from the date of the last publication. Holbrook v. Thomas, 38 Maine, (3 Heath,) 256.] In New Hampshire, it is one year. In most other States, where the foreclosure is by sale, under a judgment or decree, the sales are generally made as in the case of lands sold under executions at common law ; and are redeemable in like manner. The foreclosure of a mortgage in any of the preceding modes, is also affected, in some of the States, by any proceedings at law for recovery of the debt. In Massachusetts, a subsequent judgment at law for the balance of the debt, opens the foreclosure. Rev. Stat. 1836, ch. 107, § 33. In some other States, the mortgagee, if he has proceeded at law for the debt, can have no decree of foreclosure unless the execution is returned not fully satisfied. In Indiana, it must also be certified by the sheriff that the debtor has no other estate except the mortgaged land. Ind. Rev. St. 1843, ch. 29, § 38. The foregoing provisions will be found in Mass. Rev. Stat. 1836, ch. 107; Maine, Rev. St. 1840, ch. 125; N. Hamp. Rev. Stat. 1842, ch. 131 ; Vermont, Rev. St. 1839, ch. 24 ; R. Island, Rev. St. 1844, p. 197—199 ; N. York, Rev. St. pt. 3, ch. 1, tit. 2, art. 6 ; lb. pt. 3. ch. 8, tit. 15 ; lb. pt. 2, ch. 3, § 48; lb. ch. 1, tit. 5, § 5 ; Elm. Dig. tit. Chancery, § 57, p. 62 ; lb. p. 85—87 ; lb. tit. Conveyances, p. 31—37, 40; LL. Penn- sylv. by Dunlop, p. 23 ; Del. Rev. St. 1829, p. 91, 92, 206 ; LL. Mary], by Dorsey, Vol. I. p. 208; LL. S. Car. Vol. IV. p. 642, Vol. V. p. 169, 170; LL. Georgia, by Hotchkiss, p. 420, 621, 622; LL. Florida, by Thompson, p. 376, 377, 380; Mich. Rev. St. 1837, p. 376, 378. 499, 501. (But see further, as to time of redemption, Stat. 1839, No. 115, §20; Stat. 1840, No. 91 ; Stat. 1843, No. 75, § 8— 11.) LL. Ohio, 1841, p. 266— 268; Walker's Introd. p. 302—305, 602 ; Indiana, Rev. St. 1843, ch. 29; Illinois, Rev. St. Title XV. Mortgage. Ch. VI. s. 2—5. 695 directed a good title to be made by the defendant to the plaintiff; and the principal, interest, and costs, to be paid in six months, or the defendant to stand absolutely foreclosed, (a) 3. A mortgagee may bring an ejectment at the same time that he has a bill of foreclosure depending in Chancery. But special circumstances may arise which will take the case out of the com- mon rule, and induce the Court to grant an injunction to stay the proceedings at law. (b) * 4. In Welsh mortgages, where no precise time is fixed * 198 for redemption, there can be no foreclosure, although the mortgagor may redeem at any time, (c) 5. Where an equity of redemption is entailed, a decree of fore- closure will bind all persons claiming under such entail. (a) Sutton v. Stone, 2 Atk. 101. (b) Booth v. Booth, 2 Atk. 343. 7 Term R. 185. (c) 1 Ves. 406. 1839, p. 393; Stat. Feb. 19, 1841, p. 172 ; Missouri, Rev. St. 1845, ch. 122; Missis- sippi, Rev. St. 1840, ch. 34 : Alabama, Toulm. Dig. p. 487 ; Arkansas, Rev. St. 1837, ch. 101. An entry, in order to foreclose a mortgage, must have been made with that intent. If made on any other ground, opposed to the mortgage title, it cannot afterwards be justified under the mortgage. Merithew v. Sisson, 3 Kerr, N. B. Rep. 373. It is further to be observed, that the entry of the mortgagee, whether made en pais, or asserted bv an ejectment, must be made within the period fixed in the statutes of limitation respecting entries and ejectments. See 4 Kent, Comm. 187, 1S8. It may also be barred, even in equity as well as at law, by such lapse of time or other circum- stances, as raise a presumption of payment. Ibid. 2 Story, Eq. Jur. § 1028, a, b ; Angcll on Limitations, ch. 6. There can be no foreclosure of part only of the premises ; but if the mortgagor has a right to redeem' any part, he may redeem the whole. Spring v. Haines, 8 Shepl. 126. In taking the account, in a bill of foreclosure, the course is, to compute the interest and the charges down to the time of the report. Holabird v. Burr, 17 Conn. R. 556. [In New Hampshire, the conduct of the agent of the mortgagee having been un- conscientious and oppressive towards the mortgagor, it was held that the mortgagor in his bill to redeem was entitled to costs. McNeil v. Call, 19 N. H. 403. Where a mort- gagee in possession for foreclosure neglects to render an account of rents and profits when legally demanded so to do, and claims a greater sum than is due upon the mort- gage, he is liable for costs in the suit to redeem. Sprague v. Graham, 38 Maine, (3 Heath,) 328.] Where the debt is payable by instalments, a bill of foreclosure may be filed on de- fault of the first payment. Lansing v. Capron, 1 Johns. Ch. R. 617. But whether the plaintiff may proceed to a complete foreclosure before another default, does not seem to be perfectly agreed. That he may, see Salmon v. Claggett, 3 Bland, 126 ; Kimmell v. Willard, 1 Doug. Mich. R. 217. But the course elsewhere deemed most consonant with the rules of equity is to require the defendant to pay the instalment fallen due, with the costs, and to put in an answer, confessing the debt, and consenting to a decree 696 Title XV. Mortgage. Ch. VI. s. 6. 6. A person having made a mortgage, afterwards settled the equity of redemption on himself for life, remainder to his issue in tail, remainder to his brother in tail. The mortgagee exhibited his bill against the mortgagor to foreclose, without making his brother a party, and obtained a decree for that purpose. Upon the death of the mortgagor without issue, his brother filed his bill to redeem, (a) The cause was heard before Lord Keeper Finch, assisted by Lord Chief Justice Hale, Wyld, and Wyndham. It was insisted for the defendant, that the deed under which the plaintiff claimed was voluntary ; that although a voluntary conveyance would pass an equity of redemption, yet, in this case, where the plaintiff claimed an equity of redemption by way of entail, it ought not to be countenanced in equity ; for the consequence would be, to make an equity of redemption perpetual. Lord Chief Justice Hale said, that " by the growth of equity on equity, the heart of the common law is eaten out, and legal settlements are destroyed ; and was of opinion there was no color for a decree. In 14 Richard II. the parliament would not admit of redemption ; but now there is another settled course. As far as the line is given, man will go ; and if an hundred years are o-iven, man will go so far ; and we know not whither we shall go. An equity of redemption is transferable from one to another now, and yet at common law if he that had the equity made a feoff- ment or levied a fine, he had extinguished his equity at law ; and it hath gone far enough already, and we will go no further than precedents in the matter of equity of redemption, which hath too much favor already; and concluded there should be no decree for the plaintiff : and a decree to foreclose a tenant in tail shall (a) Roscarrick v. Barton, 1 Cha. Ca. 217. Beynoldson v. Perkins, Amb. 564. of foreclosure, to remain subject to the order of Court upon a subsequent default. Lansing v. Capron, supra. And see Caufman v. Sayre, 2 B. Monr. 204 ; Adams v. Essex,! Bibb, 150; Day v. Cushman, 1 Scam. 475 ; 3 Pow. on Mortg. 903, notes, by Coventry & Rand. In New York, it is now provided by statute, that upon payment of the instalment due, with costs, the bill shall be dismissed. 2 Rev. St. p. 255, § 211, 3d ed. And see ace. Massina v. Bartlett, 8 Port. 277 ; Walker v. Hallett, 1 Ala. R. 379, N. S. [Where the condition of a mortgage was that the principal should become payable upon the failure to pay an instalment of interest when due, a neglect to pay such instal- ment when due, works a forfeiture of the mortgage. Ottowa N. R. R. Co. v. Murray, 15 111. 336.1 Title XV. Mortgage. Ch. VI. s. 6—11. 697 bind his issue in an equity of redemption, because that is a right only set up in a court of equity, and so may be here extin- guished." The Lord Keeper concurred in opinion, and the bill was dismissed, (a) 7. A decree of foreclosure may be obtained against an infant. But in all such decrees a day is given to the infant to show * cause against it, within six months after he attains his * 198 age of twenty-one years? If he does not show any cause within that time, the decree is made absolute upon him ; but he may upon motion put in a new answer, and make a new defence, (b) 8. In a case of this kind, though the infant has six months after he comes of age to show cause against the decree, yet he will not be allowed to open the account. Nor is he entitled to redeem the mortgage by paying what is reported due ; but is only permitted to show an error in the decree, (c) 9. Where the validity of a mortgage depended on a disputable title, — namely, whether the ancestor of the infant had properly executed a power from which his right to mortgage arose ; the Court would not decree the infant to be foreclosed, till he came of age. (d) 10. It has been determined in a modern case, that where a bill prayed a foreclosure against an infant, and the mortgagees consented to a sale, an inquiry should be directed whether it would be for the benefit of the infant. Lord Eldon said it would be too much to let an infant be foreclosed, when, if the mort- gagee would consent to a sale, a surplus might be got for the infant. And if there was no precedent, he would make one. (e) 11. A married woman is bound by a decree of foreclosure ; and has no day given to her or her heirs to show cause against the decree, after the coverture is determined ; for, having by her own act delegated her power to her husband, she must be liable to all the consequences of his neglect. (/) («) Roscarrick v. Barton, 1 Cha. Ca. 217. Reynoldson v. Perkins, Amb. 564. (6) 3 P. Wms. 401. (c) 3 P. "Wins. 352. (d) Sale v. Freeland, 2 Vent. 351. (e) Mondey v. Mondey, 1 Ves. & B. 223. (f) 3 P. Wms. 352. 1 This indulgence is granted to the infant only in cases of strict foreclosure. If there is a decree for the sale of the mortgaged premises, the infant is bound by the sale. Mills v. Dennis, 3 Johns. Ch. K. 367. vol. i. 59 698 Title XV. Mortgage. Ch. VI. s. 12. 12. The Court of Chancery has, in some cases, opened decrees of foreclosure, and allowed the mortgagor further time to redeem his estate. But no general rule can be laid down in this matter, as every case must depend on its own peculiar circumstances. 1 1 In one case the decree of foreclosure was opened after sixteen years, the equity of redemption being worth much more than was due upon the account, and the mortgagor having been distressed. Burgh v. Langton, 15 Vin. Abr. 476 ; 2 Eq. Cas. Abr. 609. In other cases, relief has been granted on fresh evidence adduced on behalf of the mort- gagor. Cocker v. Bevis, 1 Ch. Cas. 61 ; Ismood v. Claypool, 1 Ch. Hep. 262. There are also certain acts of the mortgagee, which, it is said, will of themselves open the decree; as, if the decree has been obtained by fraud or unfair conduct on his part. Loyd v. Mansell, 2 P. Wms. 73 ; Gore v. Stackpole, 1 Dow, 18; Harvey v. Teb- butt, 1 Jac. & Walk. 197. Whether subsequently proceeding at law to recover the debt, will have that effect, is not perfectly clear. In England, it seems that it will amount to a waiver of the foreclosure. Dashwood v. Blythway, 1 Eq. Cas. Abr. 317, pi. 3 ; 3 Pow. on Mortg. 1002 — 1006, by Coventry, note (i), and cases there cited. But in the United States, it is held that a suit at law, or the acceptance of part of the mortgage money, may or may not open the foreclosure, according as, in connection with the circumstances, it may be satisfactory evidence of an admission on the part of the creditor, that he still regarded the land as a mere security for the money. Lawrence v. Fletcher, 10 Mete. 344, 347. If he accepts the whole amount of the debt, it is con- clusive evidence that the foreclosure is waived. Batchelder v. Pobinson, 6 N. Hamp. E. 12. So, if a second entry to foreclose is made, it is a waiver of the first. Fay v. Valentine, 5 Pick. 418. And see Dexter v. Arnold, 1 Sumn. 109, 118. So, a receipt of part of the money, and a contemporaneous lease for a year from the mortgagee to the mortgagor, reserving to the latter " all the right in equity to redeem said premises which he now has," was held a waiver of the foreclosure. Deming v. Comings, 11 N. Hamp. K. 474, 483. But the receipt of part of the money, alone, and without other circum- stances, has not that effect. Lawrence v. Fletcher, supra ; 8 Met. 153, S. C. The question whether, after foreclosure, the creditor may proceed at law upon the bond or other security given for the money, has been much discussed both in England and in the United States. A distinction has been taken between the cases where the land remained in the hands of the mortgagee, and where it had been sold to a stranger. But this distinction is now exploded in this country ; and the better opinion is, that after a foreclosure, whether with or without a sale, the mortgagee ma)- sue at law for the balance remaining due to him, the land being deemed payment pro tanto, according to its value as found by the jury. See 4 Kent, Comm. 182, 183. In Hatch v. White, 2 Gall. 152, this point was elaborately considered, and the authorities reviewed, by Mr. Justice Story, and decided in favor of the mortgagee. See also 3 Pow. on Mortg. 1002, note (1 ), by Mr. Eand ; Tooke v. Hartley, 2 Bro. Ch. Cas. 125, andnotcs by Mr.Perkins ; Dunkley v. Van Buren, 3 Johns. Ch. 330 ; Lansing v. Goelet, 9 Cowen, 346 ; ante, § 1, note 1, and cases there cited. [Porter v. Pillsbury, 36 Maine, (1 Heath,) 278 ; Paris v. Hulett, 26 Vt. (3 Deane,) 308.] But it has been recently held in England that if the mortgagee, after foreclosure, sells the estate for less than was due to him, he cannot recover the balance, in a suit at law ; that he may pursue all his remedies, both at law and in equity, at the same time; and that if he obtains part payment at law, he may go on with his foreclosure bill for the residue ; and that if he foreclose first, and the value of the estate is less than is due Title XV. Mortgage. Ch. VI. s. 13—14. 699 13. [It is not of course to enlarge the time for foreclosing the mortgage, though the interest be paid up and costs. The Court of Chancery, in order to induce it to enlarge the time, must have some reason assigned, (though it does not require a very strong one,) why the mortgagee did not pay interest, principal, and costs, at the time appointed by the report, (a)] 14. Where the estate mortgaged is reversionary, and in many other cases, the prayer of the bill is, that the estate may be sold, and the mortgagee paid his principal, interest, and costs; in which case, if there be a surplus, it goes to the mortgagor (b) 1 (a) Quarles v. Knight, 8 Pri. 630.' Nanny v. Edwards, 4 Russ. 124. (Ante, ch. 3, § 89, note. ) (i) Perry v. Barker, 13 Ves. 198. to him, he may, while the estate remains in his power, sue on the bond or covenant ; but that such suit will open the foreclosure and admit the mortgagor to redeem. Lockhart v. Hardy, 9 Beav. 349 ; 10 Jur. 532. 1 It is not a matter of course to order the whole to be sold. If the estate can be conveniently divided, and the value is greater than the debt, no more ought to be sold than will pay the debt and costs. Delabigarre v. Bush, 2 Johns. 490. All sales under a decree of foreclosure, are made before a Master,~or under his direc- tion. 2 Daniell's Ch. Pr. 1447, 1448, by Perkins. But in New York, the terms of the statute are deemed to require the master's presence at the sale. Heyer v. Deaves, 2 Johns. Ch. R, 154- If the mortgagor, subsequent to the mortgage, has sold the premises in lots, to several purchasers, at different periods, the Court will direct the sale of the lots in the order in which they were sold, beginning with the last, and proceeding in the order of their dates to the first conveyance. Stoney v. Shultz, 1 Hill, Ch. R. 500 ; dishing v. Ayer, 12 Shepl. 383. See further, on the subject of sales, ante, § 1, note. [The agent of a mortgagee agreed that if the mortgage debt should be paid by a certain time subsequent to its becoming due, no advantage should be taken of a fore- closure, and a tender of the amount was made in accordance with the agreement, it was held that the forfeiture was waived and the foreclosure opened. McNeil v. Call, 19 N. H. 403.] 700 TITLE XVI. REMAINDER. BOOKS OF REFERENCE UNDER THIS TITLE. Blackstone's Commentaries. BookLT.ch.il. Kent's Commentaries. Vol. IV. Lect. 59. Chief Baron Gilbert. Treatise on Remainders and Reversions. This treatise is contained in Mr. Gwillim's edition of Bacon's Abridgment, under the title of Remainder. See his Preface ; and 4 Kent, Comm. 235, note. Charles Fearne. Essay on the Learning of Contingent Remainders, &c. Butler's edition, with notes by J. W. Smith, 1844. Wm. F. Cornish. Essay on the Doctrine of Remainders, &c. Richard Preston. Tracts on Cross-Remainders, &c. The Same. Essay on Estates. Vol. I. p. 89 — 123. Flintoff. On Real Property. Vol. II. Book I. ch. 4, § 2. CHAP. I. NATURE AND DIFFERENT KINDS OF REMAINDERS. CHAP. II. EVENT UPON WHICH A CONTINGENT REMAINDER MAY BE LIMITED. CHAP. III. ESTATE NECESSARY TO SUPPORT A CONTINGENT REMAINDER. CHAP. IV. TIME WHEN A CONTINGENT REMAINDER MUST VEST. CHAP. V. REMAINDERS LIMITED BY WAY OF USE, AND CONTINGENT USES. CHAP. VI. HOW CONTINGENT REMAINDERS AND CONTINGENT USES MAY BE DESTROYED. CHAP. VII. TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. Title XVI. Remainder. Ch. I. s. 1—2. 701 CHAP. VIII. OTHER MATTERS RELATING TO REMAINDERS. CHAP. I. NATURE AND DIFFERENT KINDS OF REMAINDERS. Sect. 2. Remainders. 8. Vested Remainders. 10. Contingent Remainders. 1 1 . Different kinds of 24. Exceptions. 25. Limitation to A for ninety years, if he shall so long live. 32. Rule in Shelley's Case. 33. Limitation to the right Heirs of the Grantor. 34. Heir sometimes a Descriptio Persons. 35. What Kind of Uncertainty renders a Remainder con- tingent. 44. An intervening Remainder may be 'contingent, and a subsequent one vested. 56. 60. Sect. 49. Two contingent Fees may be limited in the Alternative. But no Estate after a Re- mainder in Fee can be vested. Unless it be a contingent determinable Fee. 62. A Power of Appointment does not suspend Remainders. 63. Effect of a Contingency an- nexed to a preceding Es- tate. 75. Adverbs of Time only denote the Period when a Re- mainder is to vest in In- terest. 83. A Contingency sometimes considered as a Condition subsequent. Section 1. We now come to consider estates with regard to the time of their enjoyment, as they are either in possession or expectancy. Estates in possession are those where the tenant is entitled to the actual pernancy of the profits. Estates in expec- tancy are those where the right to the pernancy of the profits is postponed to some future period ; and are of two sorts, namely, estates in remainder, and estates in reversion^ 1 2. An estate in remainder may be defined to be " an estate t [It would be impossible to treat of this title without transcribing many parts of Mr. Fearne's excellent work on Contingent Kemainders. The reader will, however, observe that the cases are in general more fully stated. Note by Mr. Cruise.] 1 The learning of remainders is treated with great perspicuity and depth of research, in the admirable Commentaries of Chancellor Kent, Vol. IV. Lect. 59, to which the student, desirous of mastering this abstruse subject, will not fail to direct his diligent attention. 59* 702 Title XVI. Remainder. Cli. I. 5. 2—5. limited to take effect, and be enjoyed, after another estate is determined." } As if a man, seised of lands in fee simple, grants them to A for twenty years, and after the determination of that term, to B and his heirs forever. Here A is tenant for twenty years, with remainder to B in fee. (a) 3. In the above case, an estate for years is created or carved out of the fee, and given to A, and then the residue or remainder of the estate is given to B. Both these estates are, however, but one estate ; the present term for years, and the remainder after, when added together, being equal only to one estate in fee. They are different parts, constituting one whole, being carved out of one and the same inheritance ; they are both created and subsist at the same time, the one in possession, and the other in expectancy, (b) 4. Lord Coke has denned a remainder to be — " A remnant of an estate in lands or tenements expectant on a particular estate created together with the same, at one time." From 203 * which it * follows, that wherever the whole fee is first limited, there can be no remainder in the strict sense of that word; for the whole being first disposed of, no remnant exists to limit over. 2 Thus, if lands are limited to a person and his heirs, and if he dies without heirs, that they shall remain over to another, the last limitation is void. 3 (c) 5. A person devised lands in London to the prior and con- vent of St. Bartholomew, and their successors, so as they paid (a) (2 Bl. Coram. 163. 2 Flintoff on Real Property, p. 255.) (b) (Wymple v. Fonda, 2 Johns. 288.) (c) 1 Inst. 143, a. 1 Ab. Eq. 186. 1 Chancellor Kent has defined a remainder to be — " A remnant of an estate in land, depending on a particular prior estate, created at the same time, and by the same in- strument, and limited to arise immediately on the determination of that estate, and not in abridgment of it." 4 Kent, Coram. 197. In the statutes of New York, a remainder is denned as " an estate limited to commence in possession at a future day, on the determination, by lapse of time or otherwise, of a precedent estate, created at the same time." Rev. St. Vol. II. p. 9, § 10, 11, 3d ed. 2 In Neiv York, a fee may be limited upon a fee, upon a contingency which, if it should occur, must happen within two lives in being at the creation of the estate. Rev. Stat. Vol. II. p. 10, 11, § 15—24. So, in Indiana, Rev. St. 1843, ch. 28, § 59. 3 Wherever the first grantee has the absolute right of disposal, a limitation over is void, being inconsistent with such right. As, if there] be a devise to A and his heirs forever, a devise over of what he should leave, if he should die without heirs, is void. Ide v. Ide, 5 Mass. 500 ; Jackson v. Delancy, 13 Johns. 537 ; Riddick v. Cahoon, 4 Rand. 547 ; Burbank v. Whitney, 24 Pick. 146 ; Cox v. Marks, 5 Ired. 361. Title XVI. Remainder. Ch. I. s. 5—8. 703 annually sixteen marks to the dean and chapter of St. Paul ; if they should fail of payment, that their estate should cease, and the dean and chapter should have it. Held, that the limitation over was void as a remainder, because, the first devise, carrying a fee, nothing remained to be disposed of. (a) J 6. In the case of a qualified or base fee, no remainder can be limited upon it. Thus, Lord Coke says, if lands be given to A and his heirs, so long as B has heirs of his body, remainder over in fee,. the remainder is void. But since the Statute De Donis, a remainder may be limited after an estate tail, (b) 7. Lord Chief Baron Gilbert says, the word remainder is no term of art ; nor is it necessary to create a remainder, for any other word sufficient to show the intent of the party will create it ; because such estates take their denomination of remainders more from the nature and manner of their existence, after they are limited, than from any previous quality inherent in the word remainder, to make them such. Therefore, if a man gives lands to A for life, and that after his death the land shall revert and descend to B for life, &c, this is a good remainder, (c) 8. Remainders are either vested or contingent.^ Vested remain- ders, or remainders executed, are those by which a present in- terest passes to the party, though to be enjoyed in future, and by which the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. 2 As if A be tenant (a) Dyer, 33 a. (b) 1 Inst. 18, a. 10 Eep. 97, b. Vaugh. 269, contra. Plowd. 235. (Wilkes v. Lion, 2 Cowen, 333.) (c) Bac. Ab. 8vo. Tit. Eem. B. t [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 enjoyment is to accrue on an event which is dubious and uncertain. Fearne's Introduction.] 1 The estate devised in this case was a fee simple, vested in the prior and convent ; and the payment, required to be made to the dean and chapter, was not deemed a con- dition, but a conditional limitation in remainder, which being limited after a fee simple already vested, was void. Higgins v. Dowler, 1 P. Wms. 98; 1 Salk. 156, S. C. ; explained and approved in Stanley v. Leigh, 2 P. Wms. 686, 694. And see Massen- burgh v. Ash, 1 Vern. 234. 2 It is a rule of law, that a remainder is not to be considered as contingent, when it may be construed, consistently with the grantor's or testator's intention, to be vested; and this, for the sake of greater certainty in titles; because contingent 704 Title XVI. Remainder. Ck. I. s. 8—11. for years, remainder to B in fee, hereby B's remainder is vested, which nothing can defeat or set aside. So, where an estate is conveyed to A for life, remainder to B in tail, remainder 204 * to C * in tail, with twenty other remainders over in tail to persons in esse, all these remainders are vested. 9. The person entitled to a vested remainder has an immediate fixed right of future enjoyment ; that is, an estate in prcesenti, though it is only to take effect in possession and pernancy of the profits at a future period ; and such an estate may be transferred, aliened, and charged, much in the same manner as an estate in possession. 10. A remainder is contingent when it is limited to take effect on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determina- tion of the preceding particular estate, in which case, as will be shown hereafter, such remainder never can take effect. 11. There are, according to Mr. Fearne, four kinds of contin- gent remainders : ] — First, Where the remainder depends entirely remainders, being in the power of the particular tenant, may be destroyed. See 4 Kent, Comm. 203 ; Doe v. Perryn, 3 T. E. 494, per Buller, J. ; Dingley v. Dingley, 5 Mass. 537 ; Doe v. Prigg, 8 B. & C 231, per Bayley, J.; Driver v. Frank, 6 Price, 41, per Burrough, J. ; Olney v. Hull, 21 Pick. 313. A testator devised to his sons, for a term of years, the improvement and income of his farm, and after the end of the term, to his grandchildren, the sons and daughters of his sons, in fee. It was held a vested remainder in the grandchildren living at the testator's death, subject to open and let in all born afterwards. Bal- lard v. Ballard, 18 Pick. 41. And see Wager v. Wager, 1 S. & E. 374 ; Doe v. Pro- voost, 4 Johns. 61 ; [Williamson v. Berry, 8 How. U. S. 495 ; Yeaton v. Eoberts, 8 Fos- ter, (N. H.) 459 ; Wight v. Baury, 7 Cush. 105 ; McGregor v. Toomer, 2 Strobh. Eq. 51.] 1 The whole doctrine of remainders is discussed by Sir Wm. Blackstone, in his Commentaries, B. 2, ch. 11, with a degree of ability, clearness, and philosophical elegance, unequalled by any writer on the law of real property. The study of the entire chapter is earnestly commended to the student, as the easiest method of mas- tering this abstruse title of the law. His statement of the doctrine of contingent remainders is so far preferable to that of Mr. Eearne, and at the same time is so perspicuously compact, that its insertion here, by way of contrast, cannot but be acceptable. "Contingent or executory remainders," he observes, ("whereby no present inter- est passes,) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect. "First, they may. be limited to a dubious and uncertain person. As if A be tenant for life, with remainder to B's eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no ; but the Title XVI. Remainder. Ch. I. 5. 11. 705 on a contingent determination of the preceding estate itself. As, if A makes a feoffment to the use of B till C returns from Rome, instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B's son was born, the remainder would have been absolutely gone ; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A were tenant for life, remainder to his eldest son in tail, and A died without issue born, but leaving his wife encienti, or big with child, and after his death a posthumous son was born, this son could not take the land by virtue of this remainder; for the particular estate determined before there was any person in esse, in whom the remainder could vest. But, to remedy this hardship, it is enacted by statute 10 & 11 Will. 3, c. 16, that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father's lifetime ; that is, the remainder is allowed to vest in them, while yet in their mother's womb. " This species of contingent remainders to a person not in being, must however, be limited to some one, that may, by common possibility, or potentia propinqua, be in esse at or before the particular estate determines. As 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, nemo est hceres 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 is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law. But a remain- der to the right heirs of B, (if there be no such person as B in esse,) is void. For here there must two contingencies happen : first, that such a person as B shall be born ; and, secondly, that he shall also die during the continuance of the particular estate ; which make it potentia remotissima, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have seen) is good, for by common possibility he may have one ; but if it be limited in particular to his son John, or Richard, it is bad, if he have no son of that name ; for it is too remote a possibility, that he should not only have a son, but a son of a particular name. A limitation of a remainder to a bastard before it is born, is not good : for though the law allows the possibility of having bas- tards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it. "A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect, is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee: here B is a certain person, the remainder to him is a contingent remain- der, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent ; and if B dies first, it never can vest in his heirs, but is forever gone ; but if A dies first, the remainder to B becomes vested. " Contingent remainders of either kind, if they amount to a freehold, cannot be lim- ited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void ; but if granted to A for life, with a like remainder, it is good. For> unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void ; it cannot pass out of him, without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest nowhere ; unless, therefore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is 706 Title XVI. Remainder. Ch. I. s. 11—15. and after such return of C, then to remain over in fee ; here 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 event which possibly may never happen ; therefore the remainder, which depends entirely upon the determination of the preceding estate by it, is contingent, (a) 12. A fine was levied to the use of A and the heirs male of his body, until the said A should do such a thing, and after such a thing done by the said A, to the use of B in tail. A died without issue, and without performing the condition. It was adjudged that the remainder was contingent, (b) 13. The second kind of contingent remainder is where some uncertain event, unconnected with and collateral to the determi- nation of the preceding estate, is by the nature of the limitation to precede the remainder. 14. Thus, Lord Coke says, if a lease for life be made 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 ; nevertheless it must pre- cede and give effect to B's remainder ; but as such an event is dubious, the remainder is contingent, (c) 15. Thomas Lane devised his messuage, &c, unto and to the use of his brother George Lane and his assigns, for and 205 * during *the term of his natural life, without impeachment of waste ; and from and after his death, then to the use of Catherine Benger, her heirs and assigns forever, in case she, the said Catherine Benger, should survive and outlive his said brother, but not otherwise ; and in case the said Catherine Ben- ger should die in the lifetime of his said brother, then he devised the said messuage, &c, to the use of his brother, George Lane, his heirs and assigns forever. It was held that this was a con- tingent remainder in Catherine Benger. (d) (a) Fearne, Cont. Rem. 5. 8th edit. (6) Arton v. Hare, Poph. 97. Large's case, 3 Leon. 182. (c) 1 Inst. 378, a. (d) Doe v. Scudamore, 2 Bos. & Pul. 289. void." 2 Bl. Coram. 169 — 171. See also 4 Kent, Comm. 208, note (a). Blaekstone has followed the classification of Ld. Ch. Justice Willes, in Parkhurst v. Smith, Willes, R. 327, 338; 3 Atk. 135, 139, S. C. Post, p. 214. [It is the uncertainty of the right which renders a remainder contingent, and not the uncertainty of the actual enjoyment. Williamson v. Field, 2 Sandf. Ch. R. 533.] Title XVI. Remainder. Ch. I. s. 16—21. 707 16. In the contingent remainders which fall under this head, the event which makes them contingent, does not in any way depend on the manner in which the particular estate determines ; as, whether it determines in one manner or another, the re- mainder takes place equally. This distinguishes them from the first sort. 17. The third kind of contingent remainder is, where it 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. For it is a rule of law, which will be discussed in a subsequent chapter, that a remainder must vest, either during the continuance of the par- ticular estate, or at the very instant of its determination. So that if the event does not happen during the continuance of the particular estate, the remainder becomes void. 18. Thus, Lord Coke says, if 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 determine, and the remainder become void, (a) 19. The fourth sort of contingent remainder is, where it is lim- ited to a person not ascertained, or not in being at the time when such limitation is made. 20. Thus, 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 hceres viventis ; and J. S. may not die till after the determination of the particular estate ; therefore, such remainder is contingent, (b) 21. So where an estate is limited to two persons during their * joint lives, remainder to the survivor of them in fee, *206 such remainder is contingent, because it is uncertain which of them will survive, (c) ' (a) Boraston's case, 3 Rep. 20, a. (b) 4 Inst. 378, a. 3 Eep. 10, a. (c) Cro. Car. 102. 1 A testator gave to his wife the use and improvement of his lands while she should remain his widow ; and in ease of her death or marriage, the land then to be divided among his surviving sons. It was held, that the devise over was to such of his sons as should be survivors at the termination of the wife's estate for life ; and that the remain- der was contingent, upon the uncertainty which of the sons would then be living. Olney v. Hull, 21 Pick. 311. So, where one devised lands to his daughter II. and her 708 Title XVI. Remainder. Ch. I. s. 22—24. 22. The usual remainder limited in all settlements before mar- riage, to the first and other sons of the intended husband, by his intended wife, is a contingent remainder. 23. The instances produced of the first kind of contingent remainders may appear to be cases of conditional limitations, not falling strictly within the definition of a remainder ; but it will be proved in the next chapter, that they are remainders in the most strict and technical sense of the word. 24. There are some cases which fall literally under one or husband, for their respective lives, and after their deaths, to the heirs of H. ; it was held that the remainder was contingent until the death of H., and then vested in the persons who were then her heirs. Richardson v. Wheatland, 7 Met. 169. [So where a testator devised land to his wife during her life, and at her decease to be divided among his children and the heirs of such as may then be deceased, the remain- der was held contingent until the death of the wife, and then became vested. Hunt v. Hall, 37 Maine, (2 Heath,) 363. A testatrix devised to T. for life, and, at his death, to his second son on his attaining twenty-one ; but in default of there being a second son of T., to the second son of C, on attaining twenty-one. After her death, T. had sons, the second of whom, G., died before he was twenty-one. T. died intestate. Held that G. did not take in fee with an execu- tory devise over, but took a contingent remainder; and that the contingency of G.'s becoming twenty-one, not having happened at the death of T., the limitation over failed, and the heir at law was entitled. Alexander v. Alexander, 30 Eng. Law & Eq. Eep. 435. See also Festing v. Allen, 12 Mee. & W. 279 ; and Doe d. Rew v. Lucraft, 8 Bing. 386. See also Tayloe v. Gould, 10 Barb. Sup. Ct. 388 ; Evers v. Challis, 2 Eng. Law &Eq. Rep.215.] Where an estate is left to parents, for their lives, and then to the use of such children as may be born between them ; the remainder ceases to be contingent immediately on the birth of a child ; but still might be defeasible and determinable on a subsequent contingency ; and, upon the happening of such contingency, might pass, by way of shifting executory use, to other persons in fee ; thus mounting a fee upon a fee. Carver v. Jackson, 4 Pet. 1, 90. A devise " to A, and to his male children, lawfully begotten of his body, and their heirs forever, to be equally divided among them and their heirs forever," passes a life-estate to A, with a contingent remainder in fee to his children, he having no child at the time of making the will. Sisson v. Seabury, 1 Sumn. 235. Where lands were devised to A for life, and if he had issue, then to him, his heirs and assigns forever ; but if he had no issue, then to the testator's children in fee ; and A suffered a common recovery, and had issue, who died during his life ; it was held that the ulterior limitation was a contingent remainder, and not an executory devise, and was barred by the recovery. Waddell v. Rattew, 5 Rawle, 231. Where a contingent remainder is limited to persons, not by name, but by description as a class, and the contingency consists not merely in the uncertainty of the persons who may compose the class when the remainder is to take effect, but in events wholly disconnected with them, and collateral ; the estate will vest in the persons answering the description when the contingency happens. Den v. Crawford, 3 Halst. 90. Title XVI. Remainder. Ch. I. s. 24—27. 709 other of the two last kinds of contingent remainders, which are nevertheless classed among vested estates. 25. With respect to those cases which are exceptions to the third kind of contingent remainders, it has been held that a limitation to A for eight// or ninety years, if he shall so long- live, with a remainder over after the death of A to B in fee, is not a contingent remainder ; for the mere possibility that a life in being may endure for eighty or ninety years after such a limitation is made, does not amount to a degree of uncertainty sufficient to render a remainder contingent. 1 26. Lord Derby covenanted to stand seised to the use of him- self for life, remainder to another person for eighty-nine years, if Ferdinando, his son, should so long live ; remainder after the death of Ferdinando to his second son in tail. Adjudged that the remainder vested presently, and that the possibility of Ferdi- nando's outliving the term of eighty-nine years would not make it contingent, (a) 27. A made a feoffment in fee to the use of himself for life, remainder to the feoffees for eighty years, if B and C his wife, should so long live ; if C survived B, then to the use of C for life ; after her death, to the use of the first son of C and B in tail ; for default of such issue, to the use of D and E, and the heirs of their bodies, remainder to the right heirs of A. A died, and C died, leaving a son, who died without issue ; thereupon D and E entered, and made a lease to the plaintiff, upon whom the defendant, as son and heir of A, entered. The question was, whether the remainder in tail to the first son of C and B, and the remainder to D and E were executed, * or were contingent upon the estate for life to * 207 C. Adjudged that they were vested and not contingent ; that the possibility of B and C outliving the term of eighty-nine years, did not make the remainders to them contingent ; and Lord Derby's case was stated and admitted, (b) (a) Lord Derby's case, Lit. Rep. 370. Pollcx. 67. (b) Napper v. Sanders, Hut. 118. 1 If the particular tenant is so old, at the creation of the estate, that by the common tables of the probability of duration of life, he will not live out the number of years mentioned, qucere whether his estate is not to be.regarded as a freehold. And see Fcarnc on Kern. p. 21—23 ; Post, ch. 3, § 8, 9, 10. vol. i. 60 710 Title XVI. Remainder. Ch. I. s. 28—30. 28. This doctrine is further confirmed by Lord Hale, who has laid it down that if a feoffment were made to the use of A for ninety-nine years, if he should so long live, and after his death to the use of B in fee, this should not be contingent, but it should be presumed that his life would not exceed ninety-nine years, (a) 29. If the term of years is so short as to leave a common pos- sibility that the life on which it is determinable may exceed it, the remainder will be deemed contingent; therefore, if an estate is limited to A for twenty-one years, if he shall so long live, and after his death to B in fee, this is a contingent remainder, be- cause there is no improbability in supposing that the life may exceed the term, (b) 30. Sir James Beverly devised lands to his eldest son Thomas for the term of sixty years, if he should so long live ; from and after his decease, to his grandson James, the eldest son of Thomas in tail mail; remainder in tail to Thomas his next brother. James the grandson, intermarried with the plaintiff, upon which a settlement was made, and a common recovery suffered by Thomas the father, and James the son. It was objected that the devise to Thomas, being only of a term of sixty years, if he should so long live, then to James, that the freehold, during the life of Thomas, was in abeyance, and no good tenant could be made to the prcecipe. By con- sequence, James the grandson, being dead without issue male, the lands belonged to the defendant Thomas, under the entail. Mr. Finch argued for the plaintiff that the recovery was well suffered ; that the limitation of the entail was good, expectant on the term for sixty years ; and that it was so resolved in Lord Derby's case. That the devise to Thomas for sixty years, if he should so long live, and from and immediately after his decease then over, ought to be intended of his dying within the term, which was highly presumable ; Thomas being then above forty years old, the possibility that Thomas might overlive the term was very remote ; so that there was not any gap or hiatus 208 * in the * settlement : but by this construction the freehold vested immediately in James ; and Thomas had only a term for sixty years, if he should so long live. («) Pollex. 67. (b) 3 Kep. 20. a. Title XVI. Remainder. Ch. I. s. 30—33. 711 The Court said it would be hard to make such construction en the words of the will, as to say, where a term is limited to a man for sixty years, if he shall so long live,, and from and after his decease to A B, that it must be meant, from and after his decease within the term ; for suppose he should outlive the term, should the remainder-man take in the lifetime of Thomas ? That were a construction contrary to the words and intention of the testator, (a) 31. In all cases where it is not admitted that there is such a degree of possibility of the life's exceeding the term, as is sup- posed sufficient to create a contingency in the remainder, there (says Mr. Fearne) the remainder cannot fall within the descrip- tion of a freehold to commence in futuro ; for when we suppose the remainder to be vested, we of consequence admit that it passes immediately, subject to and expectant on the preceding term ; otherwise it cannot be vested ; and then it is a freehold commencing in prcesenti and not in futuro. If the life cannot exceed the term, and the term must determine with the life, the limiting an estate to commence from the expiration of the life, is in effect limiting it to commence from the determination of the term. In which latter mode of limitation there could exist no doubt of the remainder's passing immediately and being vested. Upon these principles alone, without recurring to any other, the case put, and distinction taken, by Lord Hale, may be admitted as law. (b) 32. There are three exceptions to the fourth sort of contingent remainders. The first arises from a rule of law, that wherever the ancestor takes an estate of freehold, and a remainder is there- on limited in the same conveyance to his heirs, or to the heirs of his body, such remainder is immediately executed in the ancestor so taking -the freehold, and is not contingent, (c) 1 33. The second exception arises from a rule of law, which has (a) Beverley v. Beverley, 2 Vern. 131. (i) Ante, § 28. (c) Shelley's case, 1 Rep. 104. 1 The origin and reasons of this rule, and the cases governed by it, will be found in Vol. IV. tit. 32, ch. 23, and Vol. VI. tit. 38, ch. 14. See also 4 Kent, Comra. p. 216, 217. [The rule in Shelley's case is not applicable to a devise of an equitable estate for life to the ancestor, and a legal estate, after the termination of the life-estate, to the heirs. Ward v. Amory, 1 Curtis, Ct. Ct. 419.] 712 Title XVI. Remainder. Ch. I. s. 33—36. been stated in Title XL, Use, That an ultimate limitation to the right heirs of the grantor of an estate is void ; and it will 209 * continue * in him as his old reversion, and not as a re- mainder, though the freehold be expressly limited from him. (a) f 34. The third exception arises from the respect which the law pays to the intent of a testator, where it can be plainly collected from his will that he used the word heir as a descriptio persona, or sufficient designation of the person for the remainder to vest ; notwithstanding the general rule that nemo est hares viventis.% 35. There is a very material difference between that kind of uncertainty which makes the estate in remainder contingent, and an uncertainty of another kind, namely, the uncertainty of a re- mainder's ever taking effect in possession ; for wherever there is a particular estate, the determination of which does not depend on any uncertain event, and a remainder is thereon absolutely limited to a person in esse, and ascertained ; in that case, not- withstanding the nature and duration of the estate limited in remainder may be such as that it may not endure beyond the particular estate, and may, therefore, never take effect, or vest in possession, yet it is not a contingent, but a vested remainder. As if a lease be to A for life, remainder to B for life or in tail, here, notwithstanding B may possibly die without issue in the lifetime of A, and consequently never come into possession, yet is his remainder vested in interest, and by no means comprised in the legal notion of a contingent estate, (b) 36. It is not the uncertainty of ever taking effect in possession that makes a remainder contingent ; for to that every remainder for life or in tail, expectant on an estate for life, is and must be liable, as has been observed in the preceding section. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant, before the estate limited in remainder deter- (a) Tit. 11, c. 4, [§ 30, 31, and notes.] (b) [Fearne, Cont. Rem. 32S. Ives r. Legge, 3 T. R. 488, note.] [t Now altered as regards such limitations in deeds executed after the 31st day of December, 1833. See Stat. 3 & 4 Will. 4, c. 106, § 3. J [| The cases in which this point has occurred will be stated in title 38, Devise, ch. 14.] Title XVI. Remainder. Ch. I. s. 36—39. 713 mines, universally f distinguishes a vested remainder from one that is contingent, (a) *37. Thus, if there be a lease for life to A, remainder *210 to B for life, (remainder over in fee ;) the remainder to B, although it may possibly never take effect in possession, be- cause B may die before A, yet from the very instant of its limitation it is capable of taking effect in possession, if the pos- session were to fall by the death of A. It is, therefore, vested in interest ; though, perhaps, the interest so vested may determine by B's death, before the possession he waits for may become vacant, (b) 38. On the other hand, if there be a lease for life to A, and after the death of J. D., remainder to B in tail, in that case the remainder to B is not capable of taking effect in possession during the life of J. D., although the possession should fail by the determination of A's estate. But if J. D. chance to die before the determination of the particular estate, then does B's remainder, by such event, become capable of taking effect in possession, when it shall happen to fall, and is then in the same state as if it had been originally limited without any regard to the death of J. D. (c) 39. This very essential alteration in the nature of B's remain- der, occasioned by the timely event of J. D.'s death, is the change of a contingent into a vested estate. Before that event, it had not the capacity of vesting in possession ; and it was doubtful whether it ever would have it or not ; it was, therefore, not vested at all. By that event it acquires the capacity of vesting in possession, when the possession becomes vacant ; it is therefore vested in interest, though it is yet uncertain whether it will ever vest in possession ; for it is still possible that B may die without issue during the continuance of the particular estate, (d) (a) (Fearne, Cont. Rem. 328, 329.) (&) Idem. 216, (329.) (c) Idem. () Gilb. Uses 194. ic) Ante, c. 5. § 6. 784 Title XVI. Remainder. Ch. VI. 5. 35—39. destroyed by the destruction of the particular estate, before the event happens on which such contingent remainder is to arise. 36. Sir Richard Chudleigh enfeoffed several persons of his estate, to the use of the feoffees and their heirs, during the life of Christopher Chudleigh his eldest son, (who had killed a gen- tleman and fled into France,) remainder" to the use of the first and other sons of his eldest son in tail. Before the birth of a son, the feoffees enfeoffed Christopher Chudleigh of the lands in question in fee simple, without consideration, and with notice of the uses ; afterwards, Christopher Chudleigh had a son ; the question was, whether the contingent remainder to him was barred by the feoffment. It was adjudged, upon solemn argument in the Exchequer Chamber, that there being no son of Christopher to take, when the particular estate determined by the feoffment, which was a forfeiture, the son could never after take ; for that a remainder in use ought to vest during the particular estate, or at least eo instanti when it determines, as well as a remainder at common law. (a) 37. A person conveyed his lands, by feoffment, to the use of himself and his wife, and to the heirs of the survivor of them. The husband afterwards made a feoffment of the land and died. Resolved, that the right of entry in the wife was not sufficient to support the contingent remainder, and vest it in her on the death of her husband ; for the particular estate was not sub- sisting at the husband's death, when the fee should have vested, because the second feoffment had destroyed it during the cover- ture ; and though the wife's right of entry took effect at the in- stant the remainder should have vested, yet it was insufficient ; for it should have been then actually existing, (b) 38. With respect to the manner in which springing and shift- ing uses may be destroyed, as there must be a seisin to every contingent use when it arises, it follows that where such 278 * * seisin is destroyed, before the event happens on which the' springing or shifting use is to arise, the use also will be destroyed. 39. A person made a feoffment to the use of D., his wife, for (a) Chudleigh's case, 1 Eep. 120. Poph. 70. (b) Biggot v. Smith, Cro. Car. 102. 1 Ld. Raym. 316. Title XVI. Remainder. Ch. VI. s. 39—41. 785 her life ; in case the feoffor should survive his said wife, then to the use of the feoffor and such person as he should happen to marry, for their lives, remainder to a stranger in fee. The per- son in remainder, together with the feoffees, by the consent of the feoffor, made a feoffment of the lands to new feoffees, to other uses ; and the feoffor levied a fine to the new uses. D., the wife of the feoffor, died ; afterwards, he married a second wife, and died. The second wife entered, claiming under the first feoffment. Mounson and Harper were of opinion that her entry was lawful. But Dyer and Manwood contended that the contingent use limited to her by the first feoffment was destroyed by the second feoffment and fine ; because the seisin of the first feoffees was thereby divested. Judgment was entered for the widow by assent of the parties ; but in Chudleigh's case, Anderson is reported, by Lord Ch. J. Popham, to have said: — " And for Brent's case, I have always taken the better opinion to be, that the wife cannot take in that case, for the mean disturbance, notwithstand- ing the judgment, which is entered thereupon, which was by assent of the parties, and given only upon a default made after an adjournment upon the demurrer." In the same case, Lord Coke reports that Gawdy said of Brent's case : — " If the husband makes the feoffment in fee, before the taking wife, the wife shall never take ; for the possession and estate of the land is altered, changed and transferred to the pos- session of another, before the title of the wife doth accrue. But if no divesting or alteration had been, then the use shall vest in wife." (a) 40. A devise of land out of which a future use is limited, will destroy such future use ; but a devise of portions out of land will not destroy it ; for such a devise does not alter the freehold, (b) 41. A levied a fine to the use of himself and his heirs, till a marriage had between B, his son, and M, and after to the use of A for life, remainder to B in tail, &c. A, by his will, devised portions to his daughters out of the land, and died ; afterwards the marriage between B, his son, and M took place. The two Chief Justices refused, on account of the dim- fa) Brent's case, Dyer, 340, a. 2 Leon. 14. Poph. 76. 1 Eep. 136, a. (b) Gilb. Uses, 126. 66* 786 Title XVI. Remainder. Ch. VI. s. 41—43. 279 * culty, * to resolve the case ; they, however, inclined clearly, that if there had been a devise of the land, it would have interrupted the rising of the future use. But they doubted, because he devised portions out of the land only, and did not devise the land itself, (a) 42. Where future uses are limited, and the freehold is not conveyed away or divested, but only a term for years is limited, or a rent granted out of the lands, the future uses will not be totally destroyed; because the seisin out of which they are to arise, is not divested ; but such lease or rent will bind the future uses, (b) 43. Sir John Russell covenanted by indenture, in consideration of a marriage to be had between him and Lady Russell, to stand seised, to the use of himself and his heirs, till the marriage; after to the use of himself and Lady Russell, and the heirs of his body, remainder over. Subsequent to the execution of this deed, but before the marriage, Sir John Russell made a lease of the lands for thirty-one years, to commence from the determina- tion of a former term. The marriage took effect ; and upon the death of Sir John Russell, his widow entered. The question was, whether her entry was lawful or not. Tanfield. " The point is double. 1. Whether the lease shall destroy the future use. 2. If it shall not destroy it, whether it shall not bind the future use. For it ought to arise out of the estate which the covenantor had at the time of the covenant; which estate ought to continue without alteration till the time that the use shall arise, which is not here, for this is a term in reversion. To the second, this lease made upon good considera- tion before the use did arise shall bind it ; for the use shall not otherwise be executed, than if it had been at the common law. And a lease made bond fide to one who had not notice thereof, shall bind it." Popham. " The statute executes only uses in esse, and not any contingent uses, until they happen in esse ; then this use was merely void until marriage, for there was not any new estate in him ; and if he, after that covenant, had made a feoffment, or a gift in tail, to one who had not any notice thereof, it would questionless never have arisen. And as at the common law (a) Strangeways v. Newton, Moo. 731. (6) Gilb. Uses, 126. Title XVI. Remainder. Ch. VI. s. 43-^45. 787 feoffees might destroy uses in esse, so now may he out of whose estate a future use is to be raised, for the freehold is destroyed *out of which it should arise; and whether *280 the lease for years should altogether destroy the arising thereof, is not in this case material ; but clearly it shall bind the contingent use ; and so resolved in Strangeways' case. And at the common law, it is clear that the cestui que use shall not avoid such a lease made by the feoffees upon good consideration, no more than a contingent use at this day." Fenner agreed — " That if a freehold be conveyed to one upon consideration, the future use shall not arise ; for there is not any person seised to that use when it should arise. But this lease will not destroy or hinder it ; for the same freehold remains, and the use is annexed to the lease, and, therefore, the lease shall not disturb nor bind it." Clench — « Agreed with him for this last reason ; but it was adjourned." This case appears to have been again argued in 43 & 44 Eliz., when Gawdy, Popham, and Clench held — " That the lease made (whereout the use did arise) was good, and should bind the future use, as a lease by feoffees, made upon a good considera- tion, shall bind cestui que use at common law. But it shall not destroy the whole future use, but shall stand for the freehold, because the seisin is not changed." And Popham said — " That he had conferred with divers of the other Justices at Serjeants' Inn, who agreed with this opinion." But Fenner, e contra — " Because the lease did not disturb the freehold when the use is executed, this shall relate to the limitation, and shall bind all mesne acts ; and, therefore, shall not bind the feme as to her jointure ; wherefore it was adjourned, (a) 44. In another case, which was argued about the same period, Popham and Anderson appear to have been clearly of opinion that a lease for years would prevent the arising of a future use. But in the following case, the contrary doctrine seems to have prevailed, (b) 45. Sir H. "Winston covenanted by indenture, in consideration of natural love and affection to William Winston, his eldest son, to stand seised to the use of his said son for life, remainder (a) Wood v. Reigaold, Cro. Eliz. 764. 854. Ante, § 41. (b) Barton's case, Moo. 743. 788 Title XVI. Remainder. Ch. VI. s. 45-47. to such wife as he should marry for life, remainder over. After- wards, the said W. Winston being unthrifty, and in Gloucester jail, Sir H. Winston, to disturb the rising of the use to the 281 * * woman whom his son should marry, made a lease of the land for a thousand years to his younger son. W. Winston married the jailer's daughter, and died without issue. The ques- tion was, whether this lease was good against his widow. Croke reports the Court to have been of opinion that the lease should not bind the estate of the wife, because there was a good estate by the first limitation ; which, if not destroyed, could not be charged or encumbered, after it was raised ; for it had relation to the first covenant, and none had interest to charge it : and that the lease should not destroy it, but must be construed to arise out of the reversion which Sir H. Winston had, and might lawfully charge. Noy, who has reported this case by another name, says, the Court thought the lease for years did not hinder the rising of the contingent use ; but that the lease has in this case took effect as a future interest, out of the fee that was in the covenantor, after the estate determined ; and at the worst the wife should have the reversion and rent during her life, (a) 46. The determinations in the preceding cases are very un- satisfactory, and are contradicted by others of equal authority. Thus, where a tenant for life levied a fine to the reversioner in fee, and the uses of it were declared, to the cognizee and his heirs, upon condition that he would pay an annuity to the cog- nizor, the tenant for life, and in default of payment that the use should be to the cognizor for life, and one year more : The cog- nizee made a feoffment of the land ; and it was determined that this feoffment did not destroy the future use, which was to arise upon default of payment of the annuity, (b) 47. In the case of Lloyd v. Carew, the last in which this point arose, Richard Carew and Penelope his wife, levied a fine for the express purpose of destroying the contingent use ; and yet the House of Lords determined that the contingent use arose, and that the fine could not bar the benefit of the proviso ; for that the same never was, nor ever could be, in Penelope who levied the fine, (c) («) Bould v. Winston, Cro. Jac. 168. Bolls v. Winston, Noy, 122. Gilb. Uses, 138. ib) Smith 17. Warren, Cro. Eliz. 688. (c) Ante, c. 5. Title XVI. Remainder. Ch. VI. s. 48—50. 789 48. In a note to a passage in Viner's Abridgment, by the late Mr. Sergeant Hill, which has been published by Mr. Sugden, he states his opinion, that where a future contingent use was not limited in remainder after a particular estate, but as a springing * use after a fee, there no act done by him, who * 282 had the base or qualified fee, would destroy it, except in the case of a covenant to stand seised to future uses, (a) 49. The doctrine that contingent uses are supported by a scintilla juris, or possibility of entry in the original feoffees, re- leasees, &c, stands only upon the authority of an extrajudicial opinion of a majority of the Judges in Chudleigh's case. It is very strongly combated by Lord Chief Justice Pollexfen, who makes the following observations on the great inconveniences that would follow from its admission : (b) 50. " If it should now remain in the power of these conusees, feoffees, or covenantors, and their heirs by their fine, feoffment, or any other act, to destroy all those contingent remainders, what room and place will there then be for confederacies and contrivances ; and the estates of most of the families in England, in respect to their issues and posterity, be put into danger, and into the will and power of strangers and mean persons ; such as feoffees and conusees, and their heirs, commonly are. " How unsafe will it be for any man to meddle with these estates ; for it must not only be inquired, what acts have been done by those that had the particular estates, and were esteemed as the owners of the land, and whether these particular estates continued in being till the contingent estates came in esse ; but it must also be known whether the conusees or feoffees, or their heirs, have done no act before those remainders came in esse, whereby these remainders should be destroyed. " How dangerous will this be to all farmers and tenants that take leases under provisos and powers of making leases, which are common in all settlements ; for if the conusees or feoffees or their heirs, have done any such act, all their leases and estates will be void : for if there remains any estate or interest in the conusees or feoffees, which must continue in them to supply the uses appointed and declared by these leases, then that estate or interest being defeated, those leases must all be naught." ( 6') (a) Gilb. Uses, 3d edit. 288. (b) Ante, c. 5. (c) Hales v. Risley, Pollexf. 383. 790 Title XVI. Remainder. Ch. VI. s. 51—52. 51. In the Treatise of Equity is the following passage, which is taken from the subsequent part of Lord Chief Justice Pollex- fen's argument in the case above cited. " It was formerly held that the feoffees, after the statute, had a possibility to serve a future use, when it came in esse ; 283 * and that * they should be reputed the donors o/ all the contingent estates, when they vested ; and if the posses- sion was disturbed, the feoffees should have power to re-enter, to revive the future uses, according to their trust ; but if they bar themselves of their entry, then this case, not being remedied by the statute, remains at common law. But this opinion has been since contradicted ; and it is now held that, to the raising of the future uses after the statute, the regress of the feoffees is not requisite, and that they have no power to bar these future uses : for the statute has taken and transferred all the estate out of them, and they are as mere instruments ; so that contingent uses do now, like other contingent remainders, depend upon the par- ticular estate. For to reduce the estates, conveyed by way of use to the common law, which all sides agree was the chief end of the Statute of Uses, nothing ought to be left in the feoffees, no need of any scintilla juris, or power of reentry, for the benefit of the contingent uses, nor power in the feoffees to destroy them ; but they are mere conduit pipes. And the other conceit was grounded, as it seems, upon a zeal against perpetuities and con- tingent remainders, there being at that time no received opinion that the destruction of a particular estate would destroy a con- tingent remainder, till afterwards in Archer's case it was so adjudged." (a) 52. To these authorities may be added that of the late Mr. Fearne, who appears to have fully concurred in opinion with Lord Chief Justice Pollexfen as to the dangerous consequences that would follow from the fiction of a scintilla juris in the feof- fees or releasees ; and who therefore contends that, as the Statute of Uses expressly enacts, that where any person, &c, is seised to the use of others, such other persons shall be deemed and ad- judged in lawful seisin, estate, and possession, &c, to all intents, constructions, and purposes in the law, of and in such like estates as they had in the use, &c. And must not these words, to all (a) Treatise of Equity, B. 2, c. 6, $ 1. Ante, § 4. Title XVI. Remainder. Ch. VI. s. 52. 791 intents, constructions, and purposes in the law, be referred to the legal properties, qualities, and capacities of estates of the like degree or measure at common law ? If so, the cestuis que use become entitled to, and take by virtue of this statute, estates possessing and bearing in themselves all the qualities, properties, and capacities of estates at common law, of the like degree or measure. Now, one of the legal qualities or capacities of an estate at common law of the degree or measure of free- *hold is, that after it is divested and turned to a right of *284 entry, such right of entry will support a contingent remain- der; and one of the qualities or capacities of a contingent re- mainder at common law is, a capacity of being supported by such right of entry. Why then do not a preceding vested use, of the degree or measure of freehold, and a subsequent contin- gent use, respectively, acquire these legal qualities, properties, or capacities, amongst other qualities or properties of estates of like nature and degree at common law ? If they do, it is obvious there can be no necessity for any actual entry by any body to restore a contingent use, where there subsists a right of entry in a cestui que use of a preceding vested freehold to support it ; but such right of entry alone will preserve its capacity of vesting and taking effect. If we deny this, we at the same time deny that the cestuis que use have lawful seisin, estate, and possession, &c, to all intents, constructions, and purposes in the law of such estate, as they have in the use. (a) 1 (b) Fearne, Cont. Rem. 300. See also Sugd. Pow. c. 1, § 3. 1 This opinion of Mr. Fearne, that there is no necessity of an actual entry, in order to regain the seisin requisite to serve a contingent use, any more than in the case of a contingent remainder, has the full concurrence of Chancellor Kent ; who holds that the consideration paid by the tenant for life, ought, in good sense, to enure to sustain the deed through all its limitations, in like manner as a promise to B, for the benefit of C, will enure to the benefit of the latter, and give him a right of action. He quotes, with entire approbation, the opinion of Mr. Sugden, that the sound construction of the Statute of Uses requires that limitations to uses should be construed in like manner as limitations at common law ; and tHat the statute divests the estate of the feoffees, and the estates limited prior to the contingent uses take effect as legal estates, and the con- tingent uses take effect as they arise, by force of the original seisin of the feoffees ; the vested estates being subject to open and let in these uses. See 4 Kent, Coram. 243 — 246 ; Sugd. on Pow. ch. 1, § 3. In New York, and as it seems, in Delaware, also, uses are abolished, and the interest of the cestui que use is turned into a legal estate. Sec ante, tit. 11, ch. 3, § 3, note. 792 CHAP. VII. TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. Sect. 1. Invention of. 6. A Conveyance by them is a Breach of Trust. 8. Sometimes not punished for destroying Contingent Re- mainders. Sect. 11. Sometimes directed to join in destroying them. 16. In other Cases such Direction refused. 25. Bound to preserve the Tim- ber, Sfc. Section 1. Contingent remainders being liable to be defeated by the alienation or forfeiture of the tenant for life, and also by the various acts before mentioned ; a mode of preventing this inconvenience was invented, by limiting an estate to trustees and their heirs, to commence from the determination of the particu- lar estate, by forfeiture or otherwise, in the lifetime of the tenant for life, and to continue during the life of the tenant for life, upon trust to support the contingent remainders after limited from being defeated or destroyed ; by which means, if the tenant for life should alien or forfeit his estate, or if it should be merged or destroyed by any other means, the trustees, having a vested remainder, immediately acquire a right of entry, which, as has been shown, is sufficient to support the contingent remain- ders. (a) 1 2. This improvement is generally attributed to Sir Orlando Bridgeman and Sir Geoffrey Palmer, who retired from the bar during the civil wars, and confined themselves to conveyancing. When, after the restoration, these persons came to fill the first (a) Ante, c. 1. 1 The necessity of trustees to preserve contingent remainders, in the case of posthu- mous children, is expressly taken away by the statutes of Georgia, Rev. St. 1845, p. 332, 333, ch. 12, art. 3 ; South Carolina, Vol. II. p. 542 ; Delaware, Rev. St. 1829, p. 314 ; New York, Vol. II. p. 1 1, § 34, 3d cd. ; Illinois, Rev. St. 1839, p. 157 ; Kentucky, Vol. I. p. 443, § 11 ; and Mississippi, Rev. St. 1840, p. 349, § 27. It is also taken away by the operation of the statutes of several other States. [See Webster v. Cooper, 14 How. TJ. S. 488.] Title XVI. Remainder. Ch. VII. s. 2—7. 793 offices in the law, they supported this invention within reasona- ble and proper bounds ; and thus it was introduced into general use. (a) 3. A limitation of this kind is as necessary where contingent remainders are created by way of use, as where they are limited * by a common-law conveyance : for if the uses * 286 are divested, we have seen that an actual entry by the feoffees or releasees to uses, or by .some person having a preced- ing vested estate, is deemed necessary to revest the contingent uses. And though that doctrine appears very doubtful, yet it is quite clear that a right of entry is necessary in those cases, (b) 4. It should, however, be observed, that where an estate is limited in a bargain and sale, or covenant to stand seised, to a stranger, upon trust to preserve contingent remainders, that limitation will be void; because no use will arise under these conveyances without a consideration, (c) 5. "Where the legal estate is vested in trustees, and the con- tingent limitations are only trusts, there is no necessity to limit an estate to trustees to preserve the contingent estates. It is the same in the case of copyholds, for the estate of the lord will preserve contingent remainders against forfeiture, (d) 6. It was declared by Lord Keeper Harcourt, that where there were trustees appointed by will to preserve contingent remain- ders to unborn sons, and they before the birth of a son joined in a conveyance to destroy the remainders, this was a plain breach of trust; that any person taking under such conveyance, if volun- tarily or with notice, should be liable to the same trusts. It was objected that this had been only obiter said in equity, and that there never was any precedent of a decree in such a case : but Lord Harcourt said it was very plain and reasonable ; and that if there was no precedent in this case, he would make one. (e) 7. A person devised lands to trustees and their heirs, to the use of his sister for life, remainder to the same trustees and their heirs during the life of his sister, to preserve contingent re- mainders, remainder to the use of the first and other sons of his sister in tail male, remainder over in fee. Upon the death of the testator, his sister entered and married ; she and her husband then joined with the remainder-man in fee in a feoffment and ' (a) 2 Bl. Coram. 172. (b) Vide Doe v. Heneagc, ante, c. 5. (c) Tit. 32, c. 9 & 10. {d)Ante, c.6, $9. 2 Ves. Jun. 209. (e) Pye v. Gorge, 1 P. Wms. 128. VOL. I. 67 794 Title XVI. Remainder. Ch. VII. s. 7. fine to trustees, to the use of the husband and his heirs. Some- time after, the trustees conveyed the estate by lease and release to the husband of the devisee for life in fee, his wife being at that time ensient with a son. A bill was filed by that son, after the death of his mother, to have the benefit of the will of his uncle. 287 * * It was resolved by Lord King, assisted by Lord Chief Justice Raymond and Chief Baron Reynolds : — First. That the feoffment and fine by the devisee for life and her husband did not destroy the contingent remainders to the first and other sons ; but that the right to the freehold in the trustees supported them. Secondly. That when the trustees joined in the lease and re- lease to the husband of the devisee, for life and his heirs, this destroyed the contingent remainders. Thirdly. That the joining of the trustees to destroy such remainders was a plain breach of trust ; and though this had not been before judicially determined, yet it seemed to the Court, in common sense, reason, and justice, to be capable of no other construction. For when trustees are appointed to preserve an estate in a family, and for no other purpose, and they, instead of preserving it, do a wilful act with an intent and in order to de- stroy it ; — how can this be otherwise than a plain breach of trust, or how can it be rendered clearer than by barely putting the case ? Should the Court hold it to be no breach of trust, or pass it by with impunity, it would be making proclamation that the trus- tees in all the great settlements in England, were at liberty to destroy what they had been entrusted only to preserve. As to the remedy, — had the premises been conveyed to one without notice, and for a valuable consideration, such purchaser must have held the lands discharged of the trust ; and the son of the marriage, who was injured by the breach of trust, have taken his remedy against the trustees only ; who would have been de- creed to purchase lands, with their own money, equal in value to the lands sold, and to hold them upon the same trusts and limitations as they held those sold by them. But even in case of a purchase, if the purchaser had notice of the trust which the trustees were subject to, as annexed to their estate, such notice Title XVI. Remainder. CIi. VII. s. 7—9. 795 would have made him liable to the same trust. So, if there had been a voluntary conveyance made of this estate, though with- out notice, the voluntary grantee would have stood in the place of the grantors, and have been liable to the trust in the same manner as the trustees themselves w T ere. But in the present case it was much stronger, for here was not only notice of the trust, but the conveyance itself voluntary, and made to the husband * of the tenant for life ; so that the lands * 288 conveyed by these trustees must remain liable to the same trusts as they were when the trustees joined in the con- veyance, (a) 8. There have been some cases where a court of equity has refused to punish trustees for joining- in a conveyance to destroy contingent remainders ; as where, upon a subsequent remainder to the right heirs, a collateral relation only has been affected by it, there having been no issue of the marriage. For, next after the parties to the marriage, the Court considers the issue to be the only objects of the settlement and trusts, and pays less re- gard to the remainder over to the right heirs, as no immediate objects of the consideration in the settlement ; as also where the application to the Court for relief has been made by one who was not at the time, nor possibly ever might be, entitled to the remainder under the words of the limitation, (b) 9. Thus, where a settlement was made in consideration of a marriage and £3000 fortune, and for settling the lands in ques- tion in the name and blood of the husband ; and the lands were limited to trustees in trust for the intended husband for ninety- nine years if he should so long live, remainder to trustees during his life to support contingent remainders, remainder to the first and other sons of that marriage, remainder to the heirs of the body of the husband, remainder to the right heirs of the hus- band. The marriage took effect; the husband and wife, and trustees to support, &c. by fine and conveyance, settled the lands on the husband for ninety-nine years if he should so long live, remainder to trustees during his life to support contingent re- mainders, remainder to the wife for her jointure, remainder to the first and other sons of the marriage, remainder over to several (a) Mansell v. Mansell, 2 P. Wms. 678. Forrest, R. 252. Pearce i\ Newlyn, 3 Madd. 186. (b) Fearne, Cont. Rem. 328. 796 Title XVI. Remainder. Ch. VII. s. 9—10. other persons. The husband and wife died without leaving any issue. The plaintiff, being heir at law to the husband, brought his bill to set aside the second conveyance by the trustees, as being made in breach of their trust ; and insisted that they were trustees, as well for the support of this remainder, as of the re- mainder to the first and other sons ; all being contingent remain- ders ; that such conveyances ought to be set aside, as had been the practice of the Court. Lord Harcourt held it to be so, as to the first and other 289 * sons, * who came in and were to be considered as purcha- sers under the marriage settlement and portion ; and said it would be dangerous for any trustees to make the experiment for that it was most certainly a breach of trust ; and if it should ever come in question, he thought the Court would set aside such a conveyance ; not but that, he said, the case might possibly be so circumstanced, as that the Court could not relieve against it. But where relief was to be given in such case, it was only to those who came in and claimed as purchasers, as the first and other sons ; but all the remainders after to the heirs of the body of the husband, and to his right heirs, were merely voluntary, and not to be aided in equity. The bill was dismissed, (a) 10. A made a feoffment to the use of himself for ninety-nine years, if he so long lived, remainder to trustees and their heirs during his life to preserve contingent remainders, remainder to the use of the heirs of his body, remainder to himself in fee. A having two sons, he and the trustees, together with the eldest son, joined in a feoffment and fine to B in fee, as a security for a sum of money. The eldest son died without issue ; the second brought a bill to set aside the feoffment and fine. Lord Cowper said, this was plainly a contingent remainder, being limited to the heirs of the body of A, who could have no heir during his life ; and it was plain that the feoffment did, at law, destroy the contingent remainder, the trustees, who had the freehold, having joined. But it might be a question whether this was a breach of trust in the trustees. It was true, if the eldest son joined in a feoffment, where the remainder in tail was limited to him, it prevented any breach of trust in the trus- tees. But here the limitation being to the heirs of the body of (a) Tipping v. Pigot, 1 Ab. Eq. 385. Title XVI. Remainder. Ch. VII. s. 10—12. 797 A, who could not have an heir of his body during his own life ; the joining of the eldest son was not in this case so material ; yet it seemed hard when the heir apparent joined, in a case where it would be no breach of trust, if the limitation were to the eldest son, that it should be a breach of trust in respect to the limitation to the heir. But the trustees, appointed to preserve the contingent remainders, ought not to join in destroying those remainders, which would be acting the reverse of their trust. He was, however, of opinion, that the second son, though he had survived the eldest, had no right to a bill in his father's life- time ; for he neither was, nor possibly ever would be, the * heir of his father, unless he survived his father, which * 290 was uncertain, (a) 11. There are also some instances of a court of equity, exer- cising a discretionary power of directing trustees for preserving contingent remainders to join with the tenant for life, or his first son, in barring the subsequent contingent limitations. This, however, has only happened under peculiar circumstances, either of pressure to discharge incumbrances prior to the settlement, or in favor of creditors, where the settlement was voluntary ; or for the advantage of the persons who were the first objects of the settlement, as to enable the eldest son to make a settlement upon an advantageous marriage, (b) 12. The defendant, Richard Sprigg, (c) made a mortgage of the lands in question for the term of 1000 years, to secure £1000, and also confessed a judgment for £150. Afterwards, upon his marriage, he settled the same lands to the use of himself for life, remainder to trustees to preserve contingent remainders, remain- der to his wife for life, remainder to his first and other sons in tail, remainder to his own right heirs. There being no issue of the marriage, Sprigg articled to sell the lands to the plaintiff, who brought his bill setting out these facts ; and that the trus- tees refused to join, and the mortgagee threatened to enter ; praying a specific execution of the agreement, and that the trus- tees might join in conveyances. Sprigg and his wife, by their answer, set out the settlement, that they had been married six years, and had no issue ; con- fessed the contract with the plaintiff, and that they were willing («) Else v. Osborne, 1 P. Wms. 387. 2 P. Wms. 683. (b) Fearne, Cont. Rem. 331. (c) Piatt v. Sprigg, 2 Vera. 303. 67* 798 Title XVI. Remainder. Ch. VII. 5. 12—14. to perform it. The trustees set out the marriage settlement, and that they were willing to do what the Court should direct, being indemnified. For the plaintiff it was insisted that the settlement being only of an equity of redemption, the mortgagee was not bound there- by, but might enter and foreclose ; which would bind, though there should be issue afterwards born ; and the husband, not being able to redeem, a sale was absolutely necessary, otherwise the benefit of redemption would be lost, as well to the husband and wife, as to the issue, in case there should be any. The Master of the Rolls (Sir J. Trevor) decreed the trustees to join, and to be indemnified, the settlement being only 291 * of an equity * of redemption ; the wife being in court, and examined whether she freely consented thereto or not. 13. J. S., by marriage settlement, was tenant for ninety-nine yeaj.\s, if he should so long live, remainder to trustees and their heirs during his life, to support contingent remainders ; remainder to his first and other sons in tail male ; remainder to trustees for five hundred years, in trust, to raise portions for daughters, if there were no issue male. J. S. had issue a son, who being of age, and about to marry, he and his father brought a bill to have the trustees to join in making an estate, in order to suffer a common recovery, that he might be enabled to make a settlement on his marriage. It was urged, that the trustees were only trustees for the son, and ought to execute estates as he should direct, he having the inheritance in him ; and that the end of the trust was to hinder the father from defeating the son of the estate. On the other side it was said that these trustees were not only trustees for the eldest son, but were designed as a guard for the whole settlement ; that the mother being living, there might be other children ; and for the trustees to join would be a breach of trust. There being a daughter in this case, Lord Harcourt directed that, upon giving security for the daughter's portion, the trustees should join in the recovery, (a) 14. A person after marriage, made a voluntary settlement to himself for life; remainder to trustees, to support contingent remainders ; remainder to his first and other sons in tail ; remain- der to himself in fee. He afterwards made a conveyance of his (a) Frewin v. Charlton, 1 Ab. Eq. 386. Title XVI. Remainder. C/i. VII. s. 14—15. 799 estate to other trustees, for payment of his debts. The creditors brought their bill ; and inter alia insisted that the trustees for preserving contingent remainders should join in a sale, to destroy the contingent remainders. The cause came on by consent, before Sir Joseph Jekyll, who took time to consider of it; alleging, that though in the case of Sir Thomas Tipping, where trustees had joined in cutting off remainders, created by a voluntary settlement, the Court, on a bill brought by a remote relation, had refused to punish them, as distinguishing between a voluntary settlement and one made on a valuable consideration; yet he had not known a precedent * where the Court ever decreed the trustees to * 292 join in destroying the contingent remainders, this being the reverse of the purpose for which they were at first insti- tuted, (a) 15. Upon the marriage of the plaintiff, Mr. Wilmington, who was the eldest son of Sir Francis Wilmington, the family estate was settled upon the plaintiff for ninety-nine years, if he should so long live, remainder to trustees during his life, remainder to the first and other sons of that marriage in tail male, remainder to the first and other sons of any other marriage, remainder over. Mr. Wilmington had, by his lady, who was then dead, one son of age, and for whose marriage he was in treaty. The surviving trustee for preserving contingent remainders being dead, leaving an infant heir, Mr. W. and his son brought a bill against him, praying that he might be directed to join in making a tenant to the precipe, in order to a common recovery for making a settle- ment on the son's marriage. On the hearing, Lord Parker declared that the trustee being appointed to preserve contingent remainders, and here being a vested remainder in tail, if this were for the good of the family, he did not see but such trustee might lawfully join ; and referred it to the Master to state whether this was for the good of the family. The Master reported that the son was in treaty for the mar- riage above mentioned ; that it was a beneficial marriage for the family ; and that it was necessary a new settlement should be made of the estate, which could not be done without a re- covery. (a) Baseett v. Olapham, 1 P. Wins. 358. Ante, § 9. 800 Title XVI. Remainder. Ch. VII. s. 15—18. Lord Parker said, it might be greatly mischievous to a family if such a trustee should stand out, and not join with the father and son in cutting off the old settlement, and making a new one. This was plainly for the benefit of the family ; for by the intended settlement, the son was to be but tenant for life, instead of tenant in tail, so that it was a means of preserving the estate longer in the family. Also the wife of Mr. Wilmington, the father, being dead, there was an end of the contingent remainders by that marriage ; as to any remainders by another marriage, no remainder not in esse ought to be so much regarded as the re- mainder in tail, which was actually vested in Mr. Winnington, the son. He, therefore, directed that the trustee should 293 * join with * the father and son, in order to make a new settlement ; and that the Master should direct a proper conveyance, in which the trustee should join, (a) 16. But, however, the Court of Chancery may judge it proper to direct trustees to concur in destroying contingent remainders, under circumstances like those in the above cases ; yet it has repeatedly denied the same interposition in cases where such ingredients were wanting. 17. By a marriage settlement, lands were limited to the hus- band and wife for life, remainder to trustees to preserve contingent remainders, remainder to their first and other sons in tail male. The husband and wife having been married twelve years, and no issue, and the husband being in debt, they brought a bill, pray- ing that they might be enabled to sell part of the lands for the payment of them ; to which the trustee consented, provided he might be indemnified. Though it was urged that there were precedents of like cases, yet Lord Keeper North refused to make any such decree ; saying, he had known people married near twenty years without issue, who after had children, (b) 18. By a settlement on the marriage of the defendant, John Lawton, senior, lands were limited to his use for ninety-nine years, if he should so long live, remainder to trustees, of which Mr. Montague was the survivor, for the life of John Lawton, senior, to preserve contingent remainders, remainder to his wife for life, remainder to the first and other sons of the marriage in (a) Winnington ». Foley, 1 P. Wins. 536. (b) Davies v. Weld, 1 Ab. Eq. 386. Title XVI. Remainder. Ch. VII. s. 18—19. 801 tail male, remainder over. The wife was dead ; and the de- fendants, Edward and John Lawton, were the only issue of the marriage. John Lawton, the father, having mortgaged the prem- ises to the plaintiff, and Edward Lawton, the son, being come of age, the father and son entered into articles with the plaintiff, and thereby covenanted that they would suffer a recovery, and procure Mr. Montague, the surviving trustee, to join therein. But Mr. Montague refusing, the plaintiff brought his bill to compel a specific performance of the covenant, and that Mr. Montague might join in suffering the recovery. Lord King asked if the younger brother would consent that the trustees should join. Being told that he refused, he said he would not decree the trustee to join ; for that he would not take * away any man's right. It was insisted that *294 the same was done in the case of Wilmington v. Foley, to which he said he would also do so, were the like case to come before him; in that case, the trustee was decreed to join, in order to preserve the estate in the family ; but in the principal case they would have the same done with a view only to alien. The bill was dismissed, (a) 19. A bill was brought to compel trustees to join in a sale, which would destroy the contingent remainders in a settlement, the limitations of which were to the husband for ninety -nine years, if he so long lived, remainder to the wife for her life, re- mainder to trustees to preserve contingent remainders, remainder to the heirs begotten on the body of the wife, remainder to the heirs of the husband. And the first declaration under it was, that it was the intention of the settlement to make a provision for the children of the marriage. Lord Hardwicke said, there were many cases in which the Court would compel trustees to join in such a conveyance as would destroy contingent remainders; but then it must be in some measure to answer the uses originally intended by the set- tlement ; and had been usually done in the case of old set- tlements only, as in Winnington v. Foley. But he believed there was no instance where they had compelled such trustees to join with a father, termor for ninety-nine years, and his son, to sell the estate, (b) (a) Townsend v. Lawton, 2 P. Wms. 379. Ante, § 15. (b) Symmance v. Tattam, 1 Atk. C13. Ante, § 15. 802 Title XVI. Remainder. Ch. VII. s. 20. 20. Sir John Hoskins devised his real estate to his eldest son, Bennett Hoskins, for ninety-nine years, if he should so long live, remainder to trustees during the life of Bennett, to preserve con- tingent remainders, remainder to the first and other sons of Ben- nett in tail male, remainder to the testator's second son, Hunger- ford Hoskins, for ninety-nine years, if he should so long live, remainder to trustees during the life of Hungerford, to preserve contingent remainders, remainder to his first and other sons in tail male, with like remainders to his younger sons, remainder to his own right heirs ; and the testator empowered his sons to re- voke the uses limited by his will, and to appoint new uses, pro- vided they limited the same to their sons for ninety-nine years, and in strict settlement ; with several other powers and directions for the effectuating his intention of preserving the estate in his family. Bennett Hoskins died without issue ; the defend- 295 * ant, Sir Hungerford * Hoskins, coming into possession of the estate, had issue an only son, Chandos Hoskins, who had attained his age of twenty-one ; and borrowed several sums of money from the plaintiffs, for which he and his son became bound. Soon after the son's being thus bound for his father, articles were entered into between Sir Hungerford and Chandos Hoskins on the one part, and the plaintiffs on the other, whereby, after reciting the debts, and that Chandos was bound for the payment of them, as surety for his father, Sir Hungerford and Chandos covenanted with the plaintiffs to convey the estate in question to them and their heirs, upon trust, to sell the same, and apply the money to the payment of their debts, and to pay the surplus thereof to Sir Hungerford. The bill was brought against Sir Hungerford and ^Chandos for a specific performance of the articles, and likewise' against the heir of the surviving trustee for preserving contingent remainders ; that he should join in a conveyance for making a tenant to the prcecipe, in order to the suffering a recovery ; and also to have the power of revoca- tion declared void as to all the remainder-men under the will of Sir John Hoskins. Lord Hardwicke. " Had this case depended upon the power of revocation, I should not have determined it without the assist- ance of the Judges ; but the previous point is, whether the Court will compel the trustees to join in enabling the father and son to suffer a recovery. Indeed, thus much use may be made of the Title XVI. Remainder. Ch. VII. s. 20. 803 power of revocation, that it plainly shows Sir John Hoskins intended to make as strict a settlement as he could, and to pre- serve the estate in his name and blood as long as he was able ; and where clauses of this nature, tending to perpetuities, have been inserted in deeds or wills, it has been a prevailing motive with the Court to supply defects in other parts of the deeds or wills ; and to make as strict a settlement as possible ; as was done by Lord Cowper in Stamford and Sir J. Hobart's case (a) upon Serjeant Maynard's will, where trustees to preserve contin- gent remainders were inserted by the Court. " It has been admitted in the present case, that there is no precedent for such a decree as is prayed by the bill ; and I do not think the present case such as will warrant me in making one. Trustees of this kind have often been called honorary trustees, i. e. that such a trust is reposed in them as they may exercise * at discretion ; and that, therefore, the Court * 296 ought not to consider them as guilty of a breach of trust for such exercise of their discretion. But since the case of Man sell v. Mansell, (b) where it was determined to be a breach of trust, and to affect a purchaser with notice, that notion has been laid aside. I will not say that the Court would decree the trustees joining in such a case as the present to make a tenant to the pr&cipe, a breach of trust in them ; that being a quite different question. " It has been said that this kind of settlement, where the father is made but tenant for years, is very inconvenient, and tends to perpetuities ; but I do not know that this doctrine has been ever laid down by the Court. To some public purposes these settlements may be inconvenient ; however, they were for- merly very common, and no objection made to the propriety of them. Now what was the reason of such a limitation ? Most certainly to preserve the estate longer from alienation than if the father was made tenant for life; because in this last case the father and son might pass by the trustees, and suffer a recovery without them ; and therefore the estate was limited for years, to prevent that consequence ; and also for that the son being greatly under the father's power for his maintenance, the father might distress and force him to join in selling the estate, where the freehold is in the father; whereas by vesting the freehold in (a) 3 Bro. Purl. Ca. 31. (l>) Ante, § 7. 804 Title XVI. Remainder. Ch. VII. s. 20—21. trustees, that consequence is likewise avoided. Now the occa- sion for suffering a recovery in the present case, is considerable. It is not for the making any marriage settlement, nor upon account of any particular misfortune in the family, nor for pay- ment of the son's debts, but for payment of the father's ; the son being only a surety for the father, and entering into bond but just before the making of the articles ; and it is very proba- ble the estate was settled in this manner by Sir John Hoskins to guard against the very event of the son's being drawn into a sale of the estate for payment of the father's debts. It has been said that the son, as tenant in tail, is owner of the estate, and that it is not necessary to make the subsequent remainder-man party to bills relating to his estate. But where a man is only tenant in tail in remainder, and has not the freehold in him, I do not think he is to be considered as owner ; and in all cases the owner of the freehold must be before the Court. " The precedents of decreeing trustees to join in suffer- 297* ing Recoveries are not many, and have not gone so far as the present case. In that of Mr. Wilmington, (a) the end was the making a marriage settlement, which was carrying on the donor's intention, and not to put the estate out of the family. It was objected, that the trustees joining with the father would be no breach of trust in them, and that the Court would not decree them to make satisfaction, nor affect a purchaser with the trust ; and that therefore what is prayed by the plaintiff's bill should be decreed ; but there is a medium between the two propositions, for the Court will not always decree a man to do what would not possibly be a breach of trust in him if he did it. The reasons and motives of a trustee's joining would be con- sidered in determining whether he was or was not guilty of a breach of trust. But as the trust in question was most probably created to prevent the father and son from selling or disposing of the estate, as soon as he came of age, the decreeing the trustees to join in suffering a recovery would be decreeing them to act directly contrary to their trust." The bill was dismissed, (b) 21. Francis Barnard devised freehold and copyhold estates to T. C. Barnard for ninety-nine years, if he should so long live, remainder to the defendant Large during the life of T. C. Bar- («) Ante, $ 15. (b) Woodhouse v. Hoskins, MSS. Rep. S Atk. 22. Title XVI. Remainder. Ch. VII. 5. 21—22. 805 nard, in trust to preserve contingent remainders, remainder to the first and other sons of T. C. Barnard in tail male, remainder to J. Wall in fee. T. C. Barnard had issue only one son, who attained twenty-one years, the father and son filed a bill against Large the trustee, and Wall the remainder-man, stating that they were desirous of suffering a recovery, and of limiting the estate so as to preserve the contingent remainders to the second and other sons of T. C. Barnard ; and praying that Large the trustee, might be decreed to join in making a tenant to the praecipe for that purpose ; submitting to declare the uses of the recovery to the second and other sons of T. C. Barnard, by way of contin- gent remainders, as limited by the will; and to limit an estate to a trustee, for the purpose of supporting and preserving those con- tingent remainders. Sir T. Sewell, M. R., observed, that with respect to remain- ders to remote relations in settlements, where the persons to whom they were limited were not the immediate objects of the parties, or where they stand in opposition to the first tenant in *tail; desiring a reasonable benefit, consistent *298 with the intentions of the creator of the limitations, their pretensions had not been much considered ; but in the present case all took as volunteers, and were all equally to be attended to. He then considered the several cases on this subject, and said that, from a review of them all, it seemed that when the eldest son, tenant in tail, is of age, and about to marry, and thereby continue, instead of destroying the purposes of the settle- ment, and in some cases where there has been particular distress, under particular circumstances, which ought to have induced the trustee to join, the Court had interfered ; otherwise not. That in the principal case he was called upon to disturb the testator's disposition, merely for the sake of disturbing it ; for which he saw no reason ; and dismissed the bill with costs, (a) 22. It is observable that in the two last cited cases, a distinc- tion was made between punishing- trustees for joining to destroy contingent remainders, and compelling them to join. This dis- tinction seems to flow from the supposing any discretion at all in the trustees ; because there may be circumstances sufficient to jugtify, though short of an obligatory call for such an exercise of (a) Barnard v. Large, Amb. 774. 2 P. Wms. 084, note. (Osbrey r. liury, 1 B. & Beat. 58.) vol. i. 68 806 Title XVI. Remainder. Ch. VII. s. 22—24. their discretion. And Mr. Fearne has observed, that however this may be, it seemed the safest way for trustees not to act, except in the clearest cases, without the direction of the Court of Chancery ; and recommends to their discretion the words of Lord Harcourt in Pye v. Gorge, " That it would be a dangerous experiment for trustees in any case to destroy remainders, which they were appointed by the settlement to preserve." [a) 23. In the following modern case it was held that trustees, to preserve contingent remainders, joining in a recovery, was not a breach of trust. 24. Upon a bill for the specific performance of a contract for the sale of an estate, an objection was taken to the Master's re- port approving of the title. The abstract stated indentures of lease and release in 1693, previous to the marriage of William Levinz and Anne Buck, by which Sir Creswell Levinz, and "William Levinz, his son and heir apparent, conveyed to trustees and their heirs, to the use of "William Levinz for ninety-nine years, if he so long lived, with remainder to trustees and their heirs, for the life of 299 * William * Levinz, in trust to preserve contingent remain- ders ; remainder to the first and other sons of the marriage in tail male ; remainder in case William Levinz should die with- out leaving any issue male then born and alive, and leaving his wife with child, to such after-born child or children, if a son or sons ; remainder to William Levinz, brother of Sir Creswell Levinz, for one hundred and twenty years, if he should so long live ; remainder to trustees to preserve contingent remainders ; remainder to his first and other sons in tail male ; remainder to Sir Creswell in fee. The issue of the marriage was one son, William Levinz, who attained the age of twenty-one in 1734, and three daughters, one of whom died unmarried. The abstract further stated that, by indentures of bargain and sale in 1734, William Levinz and his son, and the heir of the surviving trustee for preserving contingent remainders, conveyed to a tenant to the prcecipe, for the purpose of suffering a re- covery, to enure to the use of William Levinz the father, for life, remainder to the son in tail general, remainder to the right heirs of the father ; with power to the father and son jointly, or (a) Fearne, Cont. Kem. 493. 2 P. AVms. 684. Title XVI. Remainder. Ch. VII. s. 24. 807 to the survivor, to revoke the uses, and to sell or declare new uses. The plaintiff was seised in fee under conveyances and devises derived from this title. The objection was, that the heir at law of the surviving trustee for preserving contingent remainders in the settlement of 1693, had been guilty of a breach of trust in joining with William Levinz the father and his son, in the deed of 1734, for making a tenant to the precipe, for suffering a recovery of the estate, and thereby destroying the remainders, unless the plaintiff could show that William Levinz the younger, was dead without issue ; and also that there was a failure of issue male of William Levinz, the nephew of Sir Creswell ; and also that Sir Creswell did not by his will dispose of the reversion in fee. Lord Eldon said, it was agreed on all sides that a good legal title to the estate could be made. The question was, whether, under the circumstances, that title, good at law, would also be a good equitable title ; or, putting it in another shape, whether there was in the year 1734 such a breach of trust committed, in the execution of the conveyance of that date, that supposing any person descended from the son of William Levinz, that person could now, allowing for all incapacities of infancy or otherwise, * claim under the instrument executed in the * 300 preceding century ; and insist in this Court that there was that sort of breach of trust upon which he could say that the equitable estate belonged to him, however good the legal title might be in the vendor. (And he was of opinion that there was no such breach of trust.) (a) 1 (a) Moody v. Walters, 16 Ves. 283. i " It is not a little difficult," said Mr. Justice Story, " to ascertain from the authori- ties the true nature and extent of the duties and liabilities of trustees to preserve con- tingent remainders ; and in what cases they may or ought to join in conveyances to destroy them, or not, Lord Eldon has expressed himself unable to deduce the true principle from them. His language is : ' The cases are uniform to this extent ; that if trustees, before the first tenant in tail is of age, join in destroying the remainders, they arc liable for a breach of trust ; and so is every purchaser under them with notice. But, when we come to the situation of trustees to preserve remainders, who have joined in a recovery after the first tenant in tail is of age, it is difficult to say more, than that no Judge in equity has gone the length of holding, that he would punish them, as for a breach of trust ; even in a case, where they would not have been directed to join. The result is, that they seem to have laid down, as the safest rule for trustees, but certainly 808 Title XVI. Remainder. Ch. VII. s. 25—26. 301* * 25. Trustees to preserve contingent remainders are not only bound to preserve all the limitations created by the settlement ; but also to protect the inheritance, and to keep it as entire as possible. Now, as the inheritance consists of land, timber, mines, &c, all these are under the protection of the trus- tees ; and in the execution of this trust, they are entitled to every assistance which a court of equity can afford them. And where there is a limitation to trustees to preserve contingent remainders, the Court of Chancery will not permit a tenant for ninety- 302* nine years, *if he shall so long live, to join with the person entitled to the inheritance for the time being, to cut down timber. This doctrine was laid down by Lord Hard- wicke, in the following case lately published from his own manuscripts, (a) 1 26. Richard Bovey Garth, being tenant for ninety-nine years, if he should so long live, without impeachment of waste, volun- tary waste excepted, with remainder to trustees during his life to preserve contingent remainders, remainder to his first and other sons in tail male, with the ultimate remainder to Sir John Hind Cotton in fee, and, having no children, he entered into an agreement with Sir John Hind Cotton for cutting down part of the timber then standing on the estate, the money to arise from such timber to be divided between Bovey and Sir J. H. Cotton. A quantity of timber was felled in consequence of this agree- ment, and Sir J. H. Cotton received a part of the money. Some years after Bovey had a son, who, after the death of his (a) See 2 Swanst. 144, and note («) most inconvenient for the general interests of mankind, that it is better for the trustees never to destroy the remainders, even if the tenant in tail concurs, without the direction of the Court. The next consideration is, in what cases the Court will direct them to join. And, if I am governed by what my predecessors have done, and refused to do, I cannot collect, in what cases trustees would or would not be directed to join ; as it requires more abilities than I possess, to reconcile the different cases with reference to that question. They all, however, agree, that these trustees arc honorary trustees ; that they cannot be compelled to join ; and all the Judges protect themselves from saying, that if they had joined, they should be punished; always assuming that the tenant in tail must be twenty-one.' " 2 Story, Eq. Jur. § 997 ; Biscoe v. Perkins, 1 V. & B. 491, 492. 1 His judgment is a very learned dissertation upon the subject, and was therefore printed at large by Mr. Cruise ; but it is deemed not to be of sufficient importance to American lawyers to warrant its insertion entire, in this edition. Title XVI. Remainder. Ch. VII. s. 26. 809 father, suffered a recovery ; and filed his bill against [the repre- sentatives of] Sir J. H. Cotton, praying a satisfaction for so much as he had received of the money which arose from the sale of the timber. Lord Hardwicke observed, that upon this case the general question was, whether the plaintiff was entitled to satisfaction for so much as Sir J. H. Cotton received out of the inheritance by the fall and sale of timber, before the plaintiff came in esse, and, consequently, before he had any estate in him in the land, and whilst the remainder, which vested in him afterwards, rested in mere contingency or possibility. And he was of opinion that he was ; and accordingly decreed satisfaction to the plaintiff for what the late Sir J. H. Cotton received out of his assets, (a) (a) Garth v. Sir J. Cotton, Dickens, 183. 68 810 CHAP. VIII. OTHER MATTERS RELATING TO REMAINDERS. Sect. 1. Where Contingent Remain- ders are limited, the In- heritance remains in the Grantor. 12. How far this Doctrine is ap- plicable to Common-Late Conveyances. Sect. 14. Contingent Remainders are transmissible. 18. Exception to this Rule. 20. A Contingent Remainder may pass bij Estoppel. 22. May be assigned in Equity. 23. And devised by Will. Section 1. Where a remainder of inheritance is limited in con- tingency, by ivay of use, the inheritance, in the mean time, if not otherwise disposed of, remains in the settlor or grantor, until the contingency happens, to take it out of him. 2. Thus, in Sir E. Clere's case, it was resolved by Popham, Chief Justice, and Baron Clarke, upon conference had with the other Justices, that — " If a man seised of lands in fee makes a feoffment to the use of such person and persons, and of such estate and estates as he shall appoint by his will, that by opera- tion of law, the use doth vest in the feoffor, and he is seised of a qualified fee ; that is to say, till declaration and limitation be made according to his power." And that " when a man makes a feoffment to the use of his last will, he has the use in the mean time." (a) 3. A feoffment was made to the use of the feoffor for his life, afterwards to the use of such tenants as he should demise any part of the premises to, for life or years, &c. ; afterwards to the use of the performance of his will, and to the use of such person and persons to whom he should devise any estate in the premises ; and after performance of his will, to the use of several persons successively in tail ; and ultimately to the use of himself and his heirs forever. (a) 6 Eep. 18 a. Title XVI. Remainder. Ch. VIII. s. 3—7. 811 It was held that nothing vested till the death of the feoffor, * because he had power by his will to devise to * 327 any person even in fee simple ; from which it followed that, in the mean time, the use of the fee vested in the feoffor, as it was adjudged in Clere's case, (a) 4. In the case of Davis v. Speed, (b) Lord Holt put this case, — " If a feoffment in fee is made to the use of A and the heirs of his body begotten, the remainder in fee to the right heirs of T. S., who is then living, in such case, the fee simple is not in abey- ance, nor in the feoffee ; but the use of the fee shall result to the feoffor, and remain in him until the contingency, viz., the death of T. S. shall happen." 5. It is the same where a contingent remainder is created by a devise ; as the inheritance will descend to the heir of the devisor. 6. Thus, in the case of Plunkett v. Holmes, (c) it was said by Wyndham and Twisden, and agreed by the other Judges, that the fee descended to T. as heir, till the contingency happened, though not so as to confound his estate for life, and was not in abeyance. That in relation to L., T. took only an estate for life ; but, in the mean time, by operation of law, he had the fee in such sort, as that there should be an hiatus, to let in the contingency when it happened. 7. Sampson Shelton devised to his wife for life ; and if she had a son, and caused it to be called by his christian name and surname, then he gave the inheritance of his lands to him ; and if he died under twenty-one, then to his own heirs. After the death of the devisor, (without issue,) his widow married (John Broughton,) and procured a conveyance of the inheritance from the heir at law to her husband and herself, and levied a fine to them. (After this, she had a son by Broughton, and called him Sampson Shelton Broughton.) Saunders urged, that the contingent remainder to the son was not destroyed ; for that at the time of the fine, the heir of the testator had no reversion or estate in him ; because an estate for life was devised to the wife, and the remainder in fee was de- vised to her son upon a contingency ; so that, until it could be known whether such contingency would happen or not, the re- (a) Leonard Lovie's case, 10 Rep. 78. {b) Carth. 262. (c) Ante, c. 6, § 23. 812 Title XVI. Remainder. Ch. VIII. s. 7—11. version must be in abeyance, not in the heir ; and then his con- veyance gave no estate to the husband and wife, but they were . only tenants for the life of the wife, as before. Lord Hale interrupted him ; and said it was clear the rever- sion was in the heir of the testator by descent, not in 328 * abeyance. * Accordingly, it was adjudged that the con- tingent remainder was destroyed, (a) 8. In the case of Carter v. Barnardiston, which has been already stated under another name, a question arose whether the fee was in abeyance, or descended to the testator's heir at law. Sir J. Jekyll considered the fee as in abeyance. But upon an appeal to Lord Parker, this decree was reversed, (b) 330 * * 9. Notwithstanding the authority of the preceding cases, the doctrine of the fee simple being in abeyance, was held by Lord Talbot in the following case. 10. A devised lands to B and C, and the survivor of them, and the heirs of such survivor, in trust to sell ; the estate was decreed to be sold ; and it being referred to the Master to see whether the parties could make a good title, he reported that they could not make a good title, there being no fee simple in the trustees, for that the remainder in fee could only be vested in the survivor, and it was uncertain which of the two trustees would be the survivor. Exceptions being taken to the Master's report, Lord Talbot held that the trustees joining in a fine of the premises, would pass a good title to the purchaser by estoppel ; that here the fee was in abeyance. 1 And it being said by the counsel that the heir of the devisor would join in the conveyance to the purchaser, he replied that the heir's joining would supply the want of proving the will, but that in every other respect it would be void, (c) 11. Mr. Fearne has observed that the opinion in this case does not appear to have been the subject of sufficient consideration to be relied on as an authority against the doctrine relative to the descent of the inheritance to the testator's heir ; which («) Purefoy v. Rogers, 2 Saund. 3S0. (b) Loddington ». Kyrne, ante, c. 1, § 55, 59, 62. Carter v. Barnardiston, 1 P. Wms. 511. 2 Bro. P. C. 1. (c) Vick v. Edwards, 3 P. Wms. 372. 1 The position, that the fee was in abeyance, is questioned by Mr. Butler, in his note 78, to 1 Inst. 191, a. Title XVI. Remainder. Ch. VIIL' s. 11—12. 813 appears to have been so directly and fully established by the several cases above stated, that to dispute the descent of the inheritance to the heir at law of the testator, in the case of a contingent remainder created by will, would be sacrificing the authority of a series of cases wherein that point had been solemnly decided, and repeatedly recognized, after the'maturest discussion, to the occasional opinion of Lord Talbot, in Vick v. Edwards, where that point was not debated, nor the direct subject of decision, (a) 12. The preceding doctrine of the continuance of the inheri- tance in the grantor and his heirs, or in the heirs of the devisor, axe confined to cases of conveyances by way of use, and dispositions by will ; for different opinions have prevailed in respect to its ad- mission in conveyances at common law. 1 * Some have held that in case of a lease for life, re- * 331 mainder to the right heirs of J. S., then living, no estate at all remains in the grantor ; and that he cannot enter for the forfeiture in case of a feoffment by the tenant for life ; whilst others, though disinclined to admit that any estate remains in the grantor in such case, still allow him a right of entry for the forfeiture, upon a feoffment by the tenant for life ; no less than on the determination of his estate by death, before the contin- gency happens. These opinions are founded on an assumption that the remainder must pass out of the donor at the time of the livery, consequently that no estate shall remain in him after such livery ; therefore, in the case of a lease to one for life, remainder to the right heirs of J. S., the remainder is in abeyance, or in nubibus, or in gremio legis ; though, says Mr. Fearne, by way of some sort of compromise between common sense, and the sup- position of an estate passing out of a man, when there is no person in rerum naturd, no object besides hard and hardly intelligi- ble words for the reception of it, at the time of the livery, they are (a) Fearne, Cont. Rem. 525. Ex parte Harrison, 3 Anstr. 836. 1 The better opinion now is, that this doctrine is applicable to conveyances at com- mon law, in all cases ; and that in the case of a lease for life, remainder to the right heirs of J. S., who is then living, the inheritance remains in the grantor, until J. S. dies during the estate for life, and then vests in the persons who are his heirs. See Shapleigh v. Pilsbury, 1 Greenl. 271, where the doctrine of abeyance is very fully discussed by Mellon, C. J. 4 Kent, Comm. 258; 1 Inst. 191, a, note 78, by Mr. Butler; Rice v. Osgood, 9 Mass. 38. 814 Title XVI.' Remainder. Ch. VIII. 5. 12—15. compelled to admit such a species of interest to remain in the grantor, as upon the determination of the estate, ^before the con- tingent remainder can take place, entitles the grantor or his heirs to enter, and reassume the estate, (a) 13. In 2 Roll's Abridgment, 418, it is laid down, that if a lease for life or in tail be, the remainder to the right heirs of J. S., and tenant for life dies without issue, living J. S., the remainder is void, because J. S. cannot have an heir during his life ; and inasmuch as this does not take effect during the particular estate, it shall never take effect, though he dies after and has an heir ; in such case, inasmuch as the remainder cannot take effect, the donor shall have the land again. What is this in effect, says Mr. Fearne, but admitting no more actually passed out of the grantor than the estate to the tenant for life, or in tail ; until and unless J. S. died before the estate of such tenant determined ? (b) 14. A contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens. 15. Richard Lower made a feoffment to the use of himself for life ; after the death of himself and P., his wife, to the use of Thomas, his eldest son, for life ; after the death of Rich- 332* ard, and *P., his wife, and Thomas, to the use of Jane, the wife of Thomas, and of such issue male or female, as the said Thomas should beget on her; if Thomas should have no issue by her, then to the use of Jane for life ; and after the death of Richard and P., his wife, and Jane, all the lands to the use of Thomas and the heirs male of his body; remainder to the right heirs of Thomas. Thomas had issue a daughter, then made a lease of all the lands by deed indented, for five hundred years ; afterwards granted the lands by fine to the lessee for five hundred years, and died in the lifetime of Richard. It was held that the estate limited to Thomas was a contin- gent remainder, for the particular estate was only for the life of Richard, whereas Thomas's estate was not to commence till after the death of Richard and P., his wife ; and though Thomas levied the fine for five hundred years, and died before the contingency happened, yet his heir afterwards, when the contingency did hap- pen, was bound by the fine, and the lease for five hundred years (a) 1 Inst. 342, b. 1 P. Wms. 515. (b) Vin. Ab. tit. Rem. (I.) Fearne, Cont. Rem. 528. Title XVI. Remainder. Ch. VIII. s. 15—20. 815 took place ; for it was agreed that the contingent remainder de- scended to his heir, (a) 16. The same law hoids with respect to contingent uses, which will also descend, where the person to whom they are limited, dies before the contingency. 17. Thus, it is laid down in Shelley's case, that if a man seised of the manor of $., covenants with another that when J. S. shall enfeoff him of the manor of D., then he will stand seised of the manor of S. to the use of the covenantee and his heirs ; the cov- enantee dies, his heir within age. J. S. enfeoffs the covenantor. Held, that the heir should be adjudged in, in course and nature of a descent ; and yet it was neither a right, title, use, nor action that descended, but only a possibility of an use, which could neither be released nor discharged ; but it might, if the condition had been performed, have vested in the ancestor ; and then the heir had claimed it by descent, (b) 18. Mr. Fearne has observed, that some cases may arise where the existence of the devisee of a contingent remainder, at some particular time, may, by implication, enter and make part of the contingency itself, upon which such interest is intended to take effect ; in which case it cannot descend, (c) 19. Thus, in a modern case, where a husband and wife settled certain lands, which were the inheritance of the wife, to the use * of the wife for life, remainder to the husband for life, *333 if he and his wife should have any issue that should so long live, remainder to all such children in fee, as tenants in common ; if the wife should die without issue, or all such issue should die before twenty-one, then, as to one moiety, to the husband in fee. The husband died in the lifetime of his wife. The Court was clearly of opinion that, upon all the circum- stances of the case, the contingency upon which it was intended that the estate of the husband should arise, was that of his sur- viving his wife ; and that as he died first, the contingency never arose. (d) 20. A contingent remainder might, by the common law, be (a) Weale 9. Lower, Pollex. 54. {b) Wood's case, 1 Rep. 99, a. Wilson v. Bayley, 3 Bro. Pari. Ca. 195. (c) Fearne, Cont. Rem. 364. (d) Moorhouse v. Wainhouse, 1 Black. Rep. 638. 816 Title XVI. Remainder. Ch. VIII. s. 20—23. passed by fine, operating by way of estoppel, so as to bind the interest which shall afterwards accrue by the contingency, (a) 21. Thus, in the case of Weale v. Lo&er, it was determined, that though the fine operated at first by conclusion, and passed no interest, yet the estoppel should bind the heir; that upon the happening of the contingency, the estate by estoppel became an estate in interest, of the same effect as if the contingency had happened before the fine was levied; and that if the fine had been in fee, it would have barred the heir, and operated to the benefit of the possession, as the fine of a disseisee to a stranger ; but being only for years, the fee was vested and the term good, being drawn out of the fee. (b) 22. Although a contingent remainder cannot be passed or transferred by a conveyance at law, before the contingency hap- pens, otherwise than by estoppel, by deed or fine, or by a com- mon recovery, wherein the person entitled to the contingent estate comes in as vouchee ; yet it seems that contingent estates are assignable in equity, (c) 23. Contingent remainders were formerly held not to be de- visable by the persons entitled thereto, whilst they remained in contingency ; but it has been determined in some modern cases, that where contingent remainders are descendible to the heirs of the persons entitled to them, they may be devised by will, like any other estates, of which an account will be given here- after, (d) (a) Fearne, Cont. Eem. 365. Altered by Stat. 3 & 4 Will. 4, c. 74, § 2. (b) Ante, $ 15. Davies v. Bird, 1 M. & Yo. 88. Doe v. Oliver, 10 Bar. & Cress. 181. lb. 191. Infra, vol. 5. Tit. 35, c. 11, § 9. Vick v. Edwards, ante, § 10. (c) Fearne, Cont. Rem. 366, 550. Tit. 36. Tit. 38, c. 20. (d) Tit. 38, c. 3. Roe d. Perry r. Jones, 1 Hen. Bl. 30. 17 Ves. 182. (3 T. R. 88.) 817 TITLE XVII. REVERSION. BOOKS OF REFERENCE UNDER THIS TITLE. Blackstone's Commentaries. Book II. ch. 11. Kent's Commentaries. Vol. IV. Lect. 63. Coke upon Littleton, 22, b. Flintoff on Real Property. Vol. II. Book I. ch. 4, § 3. Preston on Abstracts of Title. Vol. II. p. 80—85. Sect. 1. Description of. 11. Arises from the Construction of Law. 13. Is a vested Interest. 1G. But may be divested. 18. Incidents to Reversions. 21. After Estates for Years are present Assets. 24. After Estates for Life are quasi Assets. Sect. 27. After Estates Tail are Assets when they come into Pos- session. 28. And liable to the Bond Debts of the Settlor. 32. And also to Leases. 35. All particular Estates merge in the Reversion. Section 1. The second kind of estate in expectancy is called a reversion ; and is defined by Lord Coke to be the returning' of the land to the grantor or his heirs, after the grant is determined. Reversio terrce est tanquam terra revertens in possessione dona- tori, sive hceredibus suis, post donum finitum. In another place, Lord Coke describes a reversion to be, where the residue of the estate always continues in him who made the particular estate, (a) 2. The idea of a reversion is founded on the principle, that where 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. Hence Lord Coke (a) 1 Inst. 22, b. 142, b. Plowd. 151. vol. i. 69 818 Title XVII. Reversion, s. 2—7. says, — " And the law termeth a reversion to be expectant on 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." (a) 3. If, therefore, a person who is seised in fee conveys his estate to A for life, remainder to B for life, remainder to twenty other persons for life, he still retains the fee simple of the lands, 335 * * because he has not parted with it. But as that fee simple can only return or fall into possession upon the determination of the preceding estates, it is only an estate in re- version. 4. Before the Statute De Donis Conditionalibus, no reversion remained in the donor, after he had created a conditional fee ; because the grantee of such an estate was considered as having the entire property of it ; and the donor had only a possibility of reverter, not an actual estate in reversion. But as soon as the Statute De Donis was made, the Judges held that the estate given to a man and the heirs of his body, was only a particular estate, therefore there remained an estate in reversion in the donor, (b) 5. Lord Coke has observed that this point was once doubted, but without reason, for at the same session of parliament in which the Statute De Donis was made, ch. 3, it is expressly said, velper donum in quo reservatur reversio. So that, by the judg- ment of the same parliament, a reversion was settled in the donor, (c) 6. Where a gift is made of a qualified or base fee, no reversion remains in the donor. For Lord Coke says : — "If lands be given to A and his heirs, so long as B hath heirs of his body, remainder over in fee, the remainder is void." But Lord C. J. Vaughan observing upon this passage, doubts whether it be law ; and says : — " When such a base fee determines for want of issue of the body of B, the land returns to the grantor and his heirs, as a kind of reversion ; and if there can be a reversion of such an estate,. I know not why a remainder may not be granted of it. (d) 7. Where a person creates an estate for years by lease, he has a reversion as soon as the lessee enters, and not before. But . (a) 1 Inst. 183, b. (b) Tit. 2, c. 1. Plowd. 248. Lit. § 18, IP. (c) 1 Inst. 22, b. (d) 1 Inst. 18, a. Vaugh. R. 269. Title XVII. Reversion, s. 7—12. 819 when an estate for years is created by a conveyance deriving its effect from the Statute of Uses, the person to whom such estate is limited acquires the actual possession without entry ; conse- quently the person who creates the estate for years has a rever- sion immediately upon the execution of the conveyance, (a) S. Where a person having only a particular estate in lands, grants a smaller estate than his own, he has a reversion left in himself. Thus, if tenant in tail grants an estate for the life of another, he has a reversion in him ; because he has not parted with his whole interest. * 9. In the same manner, where a person who has an * 336 estate for ninety -nine years, grants it for ninety-eight years, or for any other shorter term, he has a reversion left in him ; if he even grants it for ninety-nine years, less one day, he has a reversion. 10. Lord Coke says, if a man extends lands by force of a statute merchant, statute staple, recognizance, or elegit, he leaves a reversion in the cognizor. (b) 11. A reversion cannot be created by deed or other assurance, but arises from construction of law. Thus Lord Coke says, if a man makes a gift in tail, or a lease for life, the remainder to his own right heirs, the remainder is void, and he has the reversion in him. So if a man makes a feoffment in fee, to the use of himself for life, and after to the use of another in tail, and after to the use of his own right heirs, the reversion is in him by con- struction of law, and not by the limitation ; f because the use of the fee continued ever in him ; and the Statute of Uses exe- cutes the possession to the use, in the same plight as the use was limited, (c) 12. Lord Coke also says, if a man makes a feoffment in fee, to the use of himself in tail, and after to the use of the feoffee in fee, the feoffee has no reversion, but in the nature of a remain- der ; albeit the feoffor have the estate tail executed in him by the («) 1 Inst. 46, b. Tit. 8, c. 1, § 12. Tit. 11, c. 4, § 11. (b) 1 Inst. 22, b. (c) 1 Inst. 22, b. Tit. 11, c. 4. [t Although it is still true that a reversion cannot he created by deed, but arises by construction of law. yet such limitations as those above stated by Lord Coke to the right heirs of the settlor, are now, by the recent statute 3 & 4 Will. 4, c. 106, $ 3, made valid, and have the effect of conferring the remainder in fee upon the settlor by pur- chase. Vide supra, tit. 11, ch. 4, § 34, note.] 820 Title XVII. Reversion, s. 12—13. Statute of Uses, and the feoffee is in by the common law ; which, he says, is worthy of observation, (a) 13. Although a person can only be said to be entitled to, not seised of, an estate in reversion ; yet estates in reversion are properly classed under the general denomination of vested inter- ests ; because a person entitled to an estate in reversion has an immediate fixed right of future enjoyment; that is, an estate vested in prcesenti, though it is only to take effect in possession and profit in futuro ; and which may be aliened and charged much in the same manner as an estate in possession. 1 (a) 1 Inst. 22, b. 1 In Massachusetts, a mesne reversioner, by conveyance from the original rever- sioner, becomes a new stock of descent ; and the reversion, though expectant on the determination of a freehold, vests, by descent, in the heirs of the mesne reversioner, upon his decease during the existence of the tenancy for life. Miller v. Miller, 10 Met. 393. That this is also the true exposition of the common law of this country, seems evident from the strong reasoning of Shaw, C. J., in the same case, p. 399, 400 ; and from that of Mr. Justice Story, in Cook v. Hammond, 4 Mason, 467, 484, 4S5. " The rale," as the latter remarks, " as to reversions and remainders, expectant upon estates in freehold, is, that unless something is done to intercept the descent, they pass, when the particular estate falls in, to the person who can then make himself heir of the orig- inal donor, who was seised in fee and created the particular estate, or if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or remainder may, in the intermediate period, have vested by descent ; they do not, of course, form a new stock of inheritance. The law looks only to the heir of the donor or first purchaser. But while the estate is thus in expectancy, the mesne heir, in whom the reversion or remainder vests, may do acts, which the law deems equivalent to an actual seisin, and which will change the course of the descent, and make a new stock. Thus, he may by a grant, or devise of it, or charge upon it, appropriate it to himself, and change the course of the descent. In like manner, it may be taken in execution for the debt of such mesne remainder-man or reversioner during his life, and this, in the same man- ner, intercepts the descent. But if no such acts be done, and the reversion or remain- der continues in a course of devolution by descent, the heir of the first donor or pur- chaser will be entitled to the whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men through whom it has devolved. ; 'Now the operation of this doctrine in respect to estates in fee in possession, which are subject to dower and tenancy by the curtesy, is very important. In the former case, though the heir at law may obtain an actual seisin by entry into the whole estate, yet, by the assignment of dower, that seisin, as to the third part assigned as dower, is defeated ab initio ; for the dowress is in of the seisin of her husband, and her estate is but a continuance of this seisin. The same principle is true of tenant by the curtesy. It is even stronger; for the law vests the estate by curtesy in the husband without any assignment, and even without any entry, if the wife were already in possession, his estate being initiate immediately on issue had, and consummate by the deatli of his wife. So that there is no chasm between the death of the wife and his possession, as Title XVII. Reversion, s. 14—15. 821 14. The law is as careful of the rights of the reversioner, as of those of the tenant in possession ; and will therefore allow an * action to be brought by the reversioner, as well * 337 as by the tenant in possession, for an injury done to the inheritance. 1 15. A person in reversion brought an action for erecting a wall, whereby his light was obstructed ; and obtained a verdict, with general damages. On a motion in arrest of judgment, it was objected, that this action would not lie by a reversioner, being only an injury to the person in possession. The Court was of opinion that an action might be brought by one, in respect of his possession, and by the other in respect of his inheritance, for the injury done to the value of it ; for if the reversioner wanted to sell the reversion, this obstruction would certainly lessen the value of it. (a) 2 («) Jesser v. Gifford, 4 Burr. 2141. (Ripka v. Sergeaut, 7 Watts & Serg. 9. Little v. Palister, 3 Greenl. 6.) there is in ease of the death of the husband and the assignment of dower to the wife, in which there can be a mesne seisin. Nothing, therefore, but a reversion passes in such case to the heir. But it is a misnomer to call it a case of suspended descent. In such case of curtesy, the reversion descends and vests absolutely in the heir. He may sell it, incumber it, devise it; and it is subject to execution as part of his property dur- ing his life. The descent to the heir is not suspended, but the actual seisin of the fee is not in him, since by law the actual seisin is in the tenant by the curtesy." See 4 Mason, 4S5, 486. See, also, Marley v. Rodgers, 5 Ycrg. 217. [Fowler v. Griffin, 3 Sandf. Sup. Ct. 385.] 1 Timber trees, cut for sale by the tenant for life, become immediately the personal property of the reversioner ; and he may maintain an action for them. Richardson v. York, 2 Shepl. 216. [Reversioners entitled to land only upon the determination of a life-estate, have no right to authorize the cutting, during the life-estate, of trees stand- ing upon the land. Simpson v. Bowdcn, 33 Maine, (3 Red.) 549. A house was built and occupied by a reversioner, with the assent of the tenant for life, and was subse- quently conveyed by the reversioner. Held, that the grautee could not enter and oc- cupy the house against the tenant for life. Cooper v. Adams, 6 Cush. 87.] The statute of New York gives the reversioner or remainder-man an action of waste against the tenant, or trespass against a stranger, for any injury to the inheritance, notwithstanding any intervening estate for life or years ; and admits him to defend as a party to suits against the tenant. And his right to restitution is not barred by any judgment against the tenant. New York Rev. Stat. Vol. II. p. 34, § 8 ; Ibid. p. 433, § 1, 2, 3, 3d ed.; Livingston v. Haywood, 11 Johns. 429. The first of these provisions is also found in Indiana, Rev. Stat. 1843, eh. 28. § 225. And see ante, ch. 6, § 3, note. If the act was done by a stranger, by authority of the tenant, tresj>ass will not lie against him. Livingston v. Mott, 2 Wend. 605. ., 2 The right of the reversioner is not affected by a descent cast, nor by the Statute of Limitations, if a particular estate existed at the time of the disseisin, or when the 69* 822 Title XVII. Reversion, s. 16—19. 16. An estate in reversion expectant on an estate for life may be divested by the feoffment of the tenant for life ; by which nothing but a right of entry will remain in the rever- sioner. («.) f 17. But where the particular estate was only for years, a fine levied by the termor would not have that effect. 18. The usual incidents to an estate in reversion are said to be fealty and rent ; where no rent is reserved out of the particular estate, fealty results of course, and may be demanded as a badge of tenure. 19. Lord Coke says, that in the case of a gift in tail, lease for life, or years, fealty is an incident inseparably annexed to the reversion ; so that the donor or lessor cannot grant the reversion over, and save to himself the fealty, or such like service : 338 * but the * rent he may except, because the rent, though it be incident to the reversion, yet is not inseparably incident, (b) 1 (a) Hard. R. 401. Gobdright v. Forrester, tit. 35, c. 12. (b) 1 Inst. 143, a. 151, b. (Condit v. Neighbor, 1 Greerj, 83.) adverse possession began ; for the right of entry did not then exist ; and the laches of the tenant for life shall not operate to his injury. Jackson v. Schoonmaker, 4 Johns. 390 ; Jackson v. Mancius, 2 Wend. 357. [A reversioner is not bound to enter imme- diately for a disseisin of. or a forfeiture by, the tenant for life, but a new right of entry accrues at the death of such tenant, and the Statute of Limitations begins to run against the reversioner from that time, how long soever the tenant may have been disseised, Miller v. Ewing, 6 Cush. 34, 41 ; Foster v. Marshall, 2 Foster, (N. H.j 491.] The injury, to entitle the reversioner to an action, must be such as is necessarily prejudicial to his reversionary right. If the act be injurious only to the particular tenant, he alone can maintain the action. Jackson v. Pesked, 1 M. & S. 234 ; Little v. Palister, 3 Greenl. 6 ; Randall v. Cleveland, 6 Conn. R. 328. t [Previously to the 31st day of December, 1833, his fine would have the same operation: the fine, however, is now abolished by the recent statute 3& 4 Will. 4, c. 74. The effect of a feoffment, and of a fine by tenant in tail in possession, to work a discontinuance of the reversion, has been noticed under a former title. The rever- sioner, as before stated, was thereby deprived of his right of entry, and put to his real action. But real actions (except writs of right of dower, writ of dower uncle nihil habet, quare impedit, an ejectment and plaint for frecbench or dower) are taken away by stat- ute 3 & 4 Will. 4, c. 27, § 36, 37, after the first day of June, 1835 ; from which period, it would seem that there will not virtually be any difference between a right of action and a right of entry, for the recovery of real estate — the right of entry being in effect the right to bring an ejectment.] Tit. 2, c. 2, § 7 — 12. i A grant of the reversion, whether absolutely, or in mortgage, entitles the grantee to the rents which subsequently accrue, as incident to the reversion ; but not to the rents then in arrear. Burden v. Thayer, "3 Met. 76 ; Birch v. Wright, 1 T. R. 378 ; Demarest v. Willard, 8 Cowen, 206; Peck v. Northrop, 17 Conn. 217. Title XVII. Reversion, s. 20—24. 823 20. It has been stated that curtesy and dower are incident to reversions expectant on estates for years, but not to reversions expectant on estates of freehold, (a) 1 21. A reversion expectant on the determination of a term for pears, is present assets, for payment of debts. For the heir can- not plead a term of this kind, created by his ancestor, in delay of execution, but must confess assets. 2 22. In an action of debt against the heir, upon the obligation of his ancestor, the defendant, not denying the action or obliga- tion, pleaded that his ancestor was seised in fee, and that he demised the same for 500 years to A, who entered ; and that the said reversion descended, et riens ultra ; and that, at the time of the action brought, he had no tenements in fee simple by descent, except the said reversion. It was not questioned, but judgment ought to be given for the plaintiff; the doubt was, whether general or special. The Court was of opinion that a general judgment ought to be given. And Lord Holt said, it had been a doubt, whether the heir could plead a term for years in delay of present execution ; and, though there were even some precedents to that purpose, yet he was of opinion, the heir could not plead a term in delay, but ought to confess assets : for the reversion is assets, and the common law had no regard to a term for years. And there is no mischief in this : for though, in consequence, a levari facias may go, yet the lessee may main- tain himself against an ejectment by virtue of his lease, (b) 23. In a subsequent case the Court of Common Pleas acqui- esced in the doctrine laid down by Lord Holt; but gave judg- ment upon another point, (c) 24. A reversion expectant on the determination of an estate for life is quasi assets, and ought to be pleaded specially by the («) Tit 5, c. 2, § 23. Tit. C, c. 2, § 8. (Robison v. Codman, 1 Sumn. 121, 130. 4 Dane's Abr. 664.) (b) Smith v. Angel, 1 Salic. 354. 2 Ld. Raym. 783. 7 Mod. 40. Osbaston v. Stanhope, 2 Mod. 50. 2 Inst. 321. (c) Villers v. Handley, 2 Wils. R. 49. 1 The purchaser of a term of years must surrender to the reversioner, and not to the vendor. Bruce v. Halbert, 3 Monr. 64. 2 [Where the statute makes a reversionary interest liable to attachment on mesne process, and to be taken on execution for the debts of the owner, the reversion of a feme covert may be levied on for debts of her contracting before coverture. Moore v. Richardson, 37 Maine, (2 Heath,) 438.] 824 Title XVII. Reversion, s. 24—29. heir ; and in such case the plaintiff may take judgment of it quando accident, (a) 25. In debt against the niece, as cousin and heir to the uncle, the obligor, the defendant confessed the bond by nient dedire, but that nothing in fee simple descended to her beside a reversion of thirty acres of marsh in S., &c, after the death of such 339 * a * one. It was held that the plaintiff might pray a spe- cial judgment upon the confession, viz., that he should recover the debt and damages of the aforesaid reversion, to be levied when it should fall in ; and a special writ should issue to extend the whole thirty acres, (b) 26. A man, seised of a reversion expectant upon an estate for life, bound himself and his heirs in a bond, and died, living the tenant for life ; it was held that this reversion should be assets in the hands of the heir, whenever it came into possession, (c) 27. A reversion, expectant on the determination of an estate tail, is said not to be assets during the continuance of the estate tail. But this is only because, during that time, it is considered to be of no value ; as it is in the power of the tenant in tail to bar and destroy it whenever he pleases, by suffering a common recovery. But whenever a reversion of this kind falls into pos- session, it then becomes assets, (d) 28. A reversion of this kind is liable to the bond debts of the person who was originally seised of the fee simple in possession of the estate, and who afterwards created the preceding estates. 29. In a special verdict it was found that John Rowden, the father of Richard, (the defendant,) was seised in fee of a mes- suage, &c; and, being so seised, had issue John Rowden, his eldest son, and the defendant ; that John, the eldest, settled the premises on himself for life, remainder to John his eldest son in tail male, remainder to his own right heirs. After the death of the father, John, his eldest son, entered and was seised in tail, and also entitled to the reversion in fee, and died leaving an only son, who soon after died without issue ; whereupon the lands descended to the defendant as heir to his nephew, who entered, and was seised in fee. The question was, whether he was liable to the payment of a bond debt of his father's. The counsel on (a) (Kellow r. Rowden, Carth. 129. Whitney v. Whitney, 14 Mass. 88, 91.) (6) Dyer, 373, b. pi. 10. (c) Rook v. Clealand, 1 Ld. Raym. 53. Lutw. 503. {(I) 1 Roll. Ab. 269. Tit. 2, c. 2. Title XVII. Reversion, s. 29—31. 825 both sides agreed that the reversion, having come into possession by the determination of the estate tail, was chargeable with the debt ; and the only doubt was, whether the plaintiff ought to have named the intermediate heirs to the reversion. Three of the Judges observed that the question was not, whether the defendant was liable to the debt, but whether he was properly charged as heir to his father, or whether he should have been charged as heir to his nephew, who was last seised. And it * must be admitted, that if the lands had descended to * 340 the brother and nephew of the defendant in fee, then they ought to have been named ; but they had only a reversion in fee, expectant upon an estate tail, which was uncertain, and there- fore of little value. But here the reversion in fee was come into possession, and the defendant had the land as heir to his father ; it was assets only in him; and was not so either in his brother or nephew, who were neither of them chargeable ; because a reversion, expectant upon an estate tail, was not assets, (a) 30. Though a reversion of this kind should be devised away, yet it will still be assets for payment of the bond debts of the settlor. For by the statute 3 Wm. and Mary, c. 14, f such a devise is rendered fraudulent and void against creditors. 31. A settlement was made in 1707 of lands, by Thomas Delahaye to the use of himself for life, remainder to trustees to preserve contingent remainders, remainder to his first and every other son in tail male, reversion to his own right heirs. Thomas, being indebted by bond to several persons, and, among others, to one Blacket, gave him a collateral security of some stock, which was transferred for that purpose, and agreed to be retransferred upon payment of . principal and interest; and, being likewise indebted by simple contract, died in 1724, leaving issue one son, Thomas. In 1725, there was a decree obtained, by which the father's estate was directed to be sold for the payment of his debts, and the simple contract creditors to stand in the place of the bond creditors ; and, under this decree, some fee simple lands were sold and applied. In 1738, Thomas, the son, devised the (a) Kellow v. Rowden, 3 Mod. 253. (Carth. 12G, 1 Show. 244, S. C.) t [Repealed and amended enactments substituted by 11 Geo. 4, and 1 Win. 4, c. 47, § 2, 3, &c. Sec also 3 & 4 Wm. 4, c. 104.] 826 Title XVII. Reversion, s. 31—34. settled estate to the defendant, and died without issue ; whereby the estate tail was spent, and the reversion in fee came into pos- session. The plaintiffs brought their bill to have this estate applied towards satisfaction of their debts, notwithstanding the devise of it by the son. And now the question was, whether this reversion in fee was to be considered as real assets of the father, applicable to the payment of his debts ; or if it was pre- vented from being so by the devise of the son. (a) (And it was decreed, that the estate descended from Thomas the father, and devised by Thomas the son, was liable and should be applied in satisfaction of the debts due to the plaintiffs. 1 ) 32. A reversion expectant on an estate tail is also liable to the leases made by all those who were at any time entitled to it, and to all the covenants contained in those leases, whenever such re- version comes into possession. 33. William Martin, being tenant in tail with the immediate reversion in fee in himself, demised the premises to Elizabeth Westcombe for ninety-nine years, if two persons should so long live, to commence after the determination of a preceding lease. William Martin died, leaving issue Nicholas Martin his eldest son and heir ; who, being the issue in tail, and also entitled to the immediate reversion in fee, levied a fine to the use of himself and his heirs. It was resolved, that, as the reversion in fee came into posses- sion by the operation of the fine, the lease became a charge on that reversion ; and could not be avoided either by Nicholas Martin, or the cognizee of the fine, (b) 34. Charles Lord Shelburne, being tenant in tail male of the lands in question, with remainder to his brother Henry in tail male, remainder to his own right heirs ; demised them 361 * for three * lives, with covenants for perpetual renewal. Charles Lord Shelburne died without issue, by which (a) Kynaston v. Clarke, MS. Rep. 2 Atk. 204. (6) Symonds v. Cudraore, 4 Mod. 1. Vide tit. 38. l By Stat. 3 & 4 Will. 4, c. 104, all the interest in any freehold, customary or copy- hold lands, of which any person may die seised, is made assets for the payment of his specialty and simple contract debts. See ante, tit. 1, § 56, note. In the United States, all real property is made liable for the debts of the owner; and may be reached, after his death, througlvhis executor or administrator; and in certain cases, through the heir. Ibid. § 58, note; Webber v. Webber, 6 Greenl. 127. Title XVII. Reversion, s. 34— 35. 827 means his brother Henry became entitled to an estate in tail male in the premises, with the reversion in fee in himself. In the year 1697, Henry Lord Shelburne levied a fine of those lands ; and, in consideration of his marriage, settled them on himself for life, with remainder to his first and other sons. The lessees having claimed a renewal on the death of some of the persons for whose lives the leases were granted, Henry Lord Shelburne refused to renew, alleging, that as his brother Charles was only tenant in tail of the lands comprised in those leases, he had no power to make them, and was not bound by the covenants for renewal. The Court of Exchequer in Ireland decreed that Henry Lord Shelburne should renew those leases. From this decree there was an appeal to the House of Lords, w T ho affirmed the decree, (a) * 35. All particular estates are subject to merge in the * 362 reversion, whenever the same person becomes entitled to both, except estates tail. And when, previously to the statute 3 & 4 Will. IV. c. 74, the protection of the Statute De Bonis Conditionalibus was taken away from estates tail, and they were converted into base fees, then they merged in the reversion, and became liable to the charges and leases of all those who were at any time entitled to such reversion ; but now, by the 39th sec- tion of the above statute, such base fees do not merge, (b) (a) Shelburne v. Biddulph, 6 Bro. Pari. Ca. 356. (b) Tit. 35, c. 12. Tit. 39, Merger. 828 TITLE XVIII. JOINT TENANCY. BOOKS OF REFERENCE UNDER THIS TITLE. Blackstone's Commentaries. Book II. ch. 12. Kent's Commentaries. Vol. IV. Lect. 64. Coke upon Littleton, 179, b. — 188, a. Flintoff on Real Property. Vol. II. Book I. ch. 5, § 2. Preston on Abstracts of Title. Vol. II. p. 62—68. Lomax's Digest. Vol. I. tit. 15. Charles Blake Allnatt. A Practical Treatise on the Law of Partition. CHAP. I. NATURE OF AN ESTATE IN JOINT TENANCY. CHAP. II. HOW A JOINT TENANCY MAY BE SEVERED AND DESTROYED. CHAP. I. NATURE OF AN ESTATE IN JOINT TENANCY. Sect. 1. Estates in Severalty. 2. In Joint Tenancy. 11. Circumstances required to this Estate. 12. Unity of Interest. 16. Unity of Title. 17. Unity of Time. 26. Unity of Possession. Sect. 45. Husband and Wife cannot be Joint Tenants. 51. Not subject to Curtesy or Dower. 53. Joint Tenants cannot charge their Estates. 57. Except by Lease. 59. In what Acts they must all 27. Joint Tenancies go to the ; . join. Survivor. 63. The possession of one is that 33. Not favored in Equity. of the other. 38. Who may be Joint Tenants. 65. Remedies against each other. Section 1. With respect to the number and connection of the owners of real estates, lands and tenements may be held in four different ways ; namely, in severalty, joint tenancy, coparcenary, and common. Title XVIII. Joint Tenancy. Ch. I. s. 1—2. 829 Where a person holds lands in his own right only, without hav- ing any other joined or connected with him in point of interest, during the estate therein, he is said to hold in severalty. * 2. But where lands are granted to two or more per- * 364 sons, to hold to them and their heirs, or for term of their lives, or for term of another's life, without any restrictive, exclu- sive, or explanatory words ; all the persons named in such instru- ment, to whom the lands are so given, take a joint estate, and are called joint tenants. For the law will interpret a grant of this kind, so as to make all its parts take effect, which can only be done by creating an equal interest in all the persons who take under it. (a) f 1 (n) Lit. § 277. (Aveling v. Knipe, 19 Ves. 441.) t [ Sometimes lands are ignorantly conveyed or devised to two (trustees) and the survivor of them and the heirs of the survivor ; this does not create a joint tenancy in fee, but gives a joint estate for life, and a contingent remainder to the survivor. Until the contingency happens, the fee results to the grantor, or to the heir at law of the devisor. 3 Anstr. 836 ; 2 Ves. jr. 209, 210 ; Butl. Co. Lit. 191, a, note (1) ; Fearne, C. R. 357.] 1 In the United States, the general rule is, that all estates vested in two or more per- sons, are to be deemed tenancies in common, unless a different tenure is clearly ex- pressed or implied in the instrument creating the estate. So it is declared, in the statutes of Maine, New Hampshire, Massachusetts, Vermont, Rhode Island, New York, New Jersey, Delaware, Michigan, Indiana, Illinois, Missouri, and Arkansas. In several of these States, however, certain cases are specially excepted from the operation of the statutes ; thereby leaving them to be governed by the rules of the common law. Thus, all estates, vested in trustees and executors as such, are excepted in the statutes of New York, Michigan, Indiana, Illinois, Missouri, aud Arkansas. Mortgages, also, are ex- cepted in the statutes of Maine, Michigan, and Indiana ; and conveyances to husband and wife also are excepted, in the statutes of Massachusetts, Vermont, Michigan, and In- diana ; and by construction, in New Jersey. Den v. Hardenberg, 5 Halst. 42. In other States, the only change by statute, is the abolition of the jus accrescendi, or right of survivorship. This has been done, without any exception, in Georgia, Florida, Kentucky, Mississippi, Alabama, and Virginia ; [but the statute in Alabama, applies only to those who hold the property in their own right and not to those who hold as trustees merely, or in autre droit. Parsons v. Boyd, 20 Ala. 112] ; and in Pennsylvania, with the ex- ception of estates vested in trustees ; and in North Carolina and Tennessee, with the exception of estates held by commercial partners, as partnership property. In Con- necticut, the existence of the right of survivorship has been denied by the Courts. 1 Root, 48. In Ohio, also, the Courts have declared that estates in joint tenancy were always unknown. Walker's Introd. p. 292 ; Sergeant v. Steinberger, 2 Ohio R. 300 ; White v. Sayre, Ibid. 103 ; Miles v. Fisher, 10 Ohio R. 1. See Maine, Rev. St. 1840, ch. 91. § 13 ; N. Hamp. Rev. St. 1842, ch. 129, § 2, 3 ; Mass. Rev. St. ch. 59, § 10, 11 ; Verm. Rev. St. 1839, ch. 59, § 2, 3 ; R. Island, Rev. St. 1844, p. 197, § 16 ; N. York, Rev. St. Vol. II, p. 12. § 44, 3d ed. ; Elm. Dig. p. 86, § 38; Penn. Dunlop, Dig. p. 240, ch. 190 ; Delaware, Rev. St. 1829, p. 167 ; Tate's vol. i. 70 830 Title XVIII. Joint Tenancy. Ch. I. s. 3 — 4. 3. An estate in joint tenancy can arise only by purchase or grant, that is, by the act of the parties, and never by the mere act of law. As to the words by which this estate may be cre- ated, the cases on that point will be stated in Title XXXII. Deed, and Title XXXVIII. Devise. 1 4. An estate in joint tenancy may be had in remainder. Thus if a gift be made to two men, and the heirs of their two bodies, remainder to them two and their heirs ; they are joint tenants of the remainder in fee. (a) 2 (a) 1 Inst. 183, b. Dig. p. 725 ; 1 Lomax, Dig. p. 477 ; N. Car. Rev. St. Vol. I. p. 258 ; Georgia, Rev. St. 1845, p. 413, ch. 15, § 46 ; Florida, Rev. St. 1845 ; Thompson's Dig. p. 191 ; Michi- gan, Rev. St. 1837, p. 258, § 8, 9; Kentucky, Rev. St. 1834, Vol. II. p. 876, 877 ; Tenn. Rev. St. 1836, p. 417 ; Indiana, Rev. St. 1843, ch. 28, § 18, 19 ; Illinois, Rev. St. 1839, p. 149 ; Missouri, Rev. St. 1845, ch. 32, § 13; Mississippi, Rev. St. 1840, ch. 34, § 59 ; Ala. Toulm. Dig. p. 249 ; Ark. Rev. St. 1837, ch. 31, § 9. [See Maryland Act, 1822, c. 162. Craft v. Wilcox, 4 Gill, 504.] It has been held in Massachusetts, that a conveyance to two or more in mortgage, [to secure a debt jointly due to the mortgagees,] creates a joint tenancy, [until the mort- gage is foreclosed,] notwithstanding the statute ; on the ground that as, upon the death of one, the remedy to recover the debt would survive, it is clearly to be implied that the parties intended that the collateral security should follow and comport with the remedy. Appleton v. Boyd, 7 Mass. 131 ; Goodwin v. Richardson, 11 Mass. 469. [But after foreclosure such estate is held by the mortgagees as tenants in common. Goodwin v. Richardson, ubi supra.] But this was denied by Story, J., and the contrary held, under a similar statute of Rhode Island, in Randall v. Phillips, 3 Mason, R. 378. [See Root v. Bancroft, 10 Met. 44, and Root v. Stow, 13 lb. 5.] The statute of Virginia, abolishing the jus accrescendi, has been held to extend to partnership property, as well as all other. Delancy v. Hutchinson, 2 Rand. 183. In most of the statutes turning joint tenancies into tenancies in common, it is expressly declared that the law shall apply as well to existing jointHenancies as to those afterward to be created. But it is held that the statutes have this effect, proprio vigore, and with- out any such express words ; the law being beneficial, by rendering the tenure more cer- tain and valuable. Miller v. Miller, 16 Mass. 61 ; Bornbaugh v. Bombaugh, 11 S. & R. 191. Grants of townships to several persons, by the State, have always been deemed to create tenancies in common, on the ground of intention in the State, and of public policy. Higby v. Rice, 5 Mass. 350 ; University, &c. v. Reynolds, 3 Verm. 543. [It is not sufficient that the words employed by the parties, would, but for the act of Mary- land, 1822, ch. 162, be construed to create a joint tenancy, unless the instrument ex- pressly provides that the land shall be held in joint tenancy. Purdy v. Purdy, 3 Md. Ch. Decis. 547.] 1 If two or more jointly disseise another they become joint tenants by this act, as well as if it were a grant. Lit. § 278 ; Putney v. Dresser, 2 Met. 583, 586. [But see Fowler v. Thayer, 4 Cush. 111.] 2 A devise to A for life, remainder to B and C, and their heirs, makes them joint tenants. Campbell v. Heron, 1 Tayl. 199. Title XVIII. Joint Tenancy. Cli. I. s. 5—7. 831 5. Where lands are conveyed to two persons, and the heirs of one of them, they are joint tenants for life, and the fee simple is in one of them. If the person who has the fee dies, the other shall hold the entirety, by survivorship, during his life. In the same manner, where lands are given to two persons, and the heirs of the body of one of them, they are joint tenants for life, and the estate tail is in one of them, (a) 6. Lord Coke says, when land is given to two, and to the heirs of one of them, he in remainder cannot grant away his fee simple. Mr. Hargrave observes that there is a seeming difficulty in this passage, but conceives Lord Coke's meaning to be, that though for some purposes the estate for life of the joint tenant having the fee is distinct from, and unmerged in, his greater estate ; yet for granting, it is not so ; but both estates are in that respect consolidated, notwithstanding the estate of the other joint tenant. Therefore, that the fee cannot, in strictness of law, * be granted as a remainder, eo nomine, and as an * 365 interest distinct from the estate for life, (b) 7. Two persons may have an estate in joint tenancy for their lives, and yet have several inheritances. Thus Littleton says, " If lands be given to two men, and to the heirs of their bodies begotten, the donees have a joint estate for term of their lives, and yet they have several inheritances. For if one of the donees hath issue and die, the other which surviveth shall have the whole term for his life ; and if he which surviveth also have issue and die, then the issue of one shall have one moiety, and the issue of the other the other moiety ; and they shall hold the land between them in common, and are not joint tenants, but tenants in common. And the cause why such donees have a joint estate for term of their lives is, for that at the beginning, the lands were given to them two ; which words, without more saying, make a joint estate to them for term of their lives. And the reason why they shall have several inheritances is this, inas- much as they cannot by any possibility have an heir between them, as a man and a woman may, the law will that their estate and inheritance be such as is reasonable, according to the form and effect of the. words of the gift; and this is, to the heirs («) Lit. h 285. (6) 1 Inst. 184, b. n. 2. 832 Title XVIII. Joint Tenancy. Ch. I. s. 7—11. which the one shall beget of his body by any of his wives ; and to the heirs which the other shall beget of his body by any of his wives ; so as it behooveth by necessity of reason that they have several inheritances." (a) 8. Littleton says, it is the same where lands are given to two females, and the heirs of their two bodies. And Lord Cowper has observed that where there was a devise to the testator's two daughters, and the heirs of their two bodies, it was a joint estate for life, with several inheritances. But the testator never meant that the surviving daughter should turn out the issue of her deceased sister, (b) That was the point upon the appeal in Wil- kinson v. Spearman, where the Lords inclined to the appellant ; yet the Judges all agreeing that the law was so settled, the Lords would not alter it. His Lordship also said that a devise to the testator's two daughters and their issue, and in default of such issue, to J. S., gave them a joint estate for life, and several inheritances, (c) 9. If a person gives lands to two men and one woman, and the heirs of their three bodies begotten ; in this case they 366 * have * several inheritances. For though it might be said that the woman may by possibility marry both the men, one after another ; yet, first, she cannot marry them both in prcesenti; and the law will never intend a possibility upon a possibility ; as first to marry the one, and then to marry the other. So it is if a gift be made to one man and two women, mutatis mutandis, (d) 10. In the same manner, if a gift in tail be made to a man and to his mother, or to a man and to his sister, or his aunt, the parties take several inheritances ; because they cannot marry. Lord Coke says that in all these cases there is no division be- tween the estates for life, and the several inheritances ; for they cannot convey away the inheritance after their decease, because it is divided only in supposition and consideration of law ; and to some purposes the inheritance is said to be executed, (e) 11. The nature of a joint tenancy requires the following cir- cumstances : 1. Unity of interest. 2. Unity of title. 3. Unity of time. 4. Unity of possession ; or, in other words, joint tenants (a) Lit. $ 283. (6) Lit. § 284. Cook v. Cook, 2 Vera. 545. (c) Printed Cases, 1705. 2 P. Wms. 530. (d) 1 Inst. 184, a. (e) 1 Inst. 182, b. 184, a. Title XVIII. Joint Tenancy. Ch. I. s. 11—16. 833 have one and the same interest, accruing by one and the same conveyance, commencing at the same time, and held by one and the same undivided possession. 12. With respect to unity of interest, one joint tenant cannot be entitled to one period of duration, or quantity of interest, and the other to a different one. One cannot be tenant for life, and the other for years ; one cannot be tenant in fee, and the other tenant in tail. It has, however, been stated that where an estate is limited to two persons, and to the heirs of one of them, they are joint tenants for life, (a) 13. If a man demises lands to two persons, to hold to the one for life, and to the other for years, they are not joint tenants. For an estate of freehold cannot stand in jointure with a term of years, and a reversion upon a freehold cannot stand in jointure with a freehold and inheritance in possession, (b) 14. It is, however, said by Lord Coke, that a right of action and a right of entry may stand in jointure} For at common law, the alienation of the husband was a discontinuance to the wife of one moiety, and a disseisin of the other ; so, as after the death of the husband, the wife had a right of action to one moiety, and the other joint tenant a right of entry into the other ; * but they were joint tenants of the right, because they *367 might join in a writ of right, (c) 15. Secondly, that a right of action, or a bare right of entry, cannot stand in jointure with a freehold or inheritance in posses- sion ; therefore, if the husband made a feoffment of the moiety, this was a discontinuance of that moiety ; and the other joint tenant remained in possession of the freehold and inheritance of the other moiety ; which, for the time, was a severance of the jointure, (d) 16. As to unity of title, the estate of joint tenants must be created by the same act or instrument, whether legal or illegal ; as (a) Ante, § 5. (b) 1 Inst. 188, a. (c) 1 Inst. 188, a. {d) 1 Inst. 188, a. 1 The case put by Lord Coke is, where a husband and wife and a third person pur- chased land to them and their heirs ; whereby the husband and wife acquired a moiety, and the third person the other moiety; and the husband aliened the whole to a stranger in fee, and died. Here, the wife had a right of action only, the husband's alienation having discontinued her estate, by the common law; and the third person had a right of entry. 1 Inst. 187,6. 70* 834 Title XVIII. Joint Tenancy. Oh. I. 5. 16—21. by one and the same feoffment, grant, fine, or other conveyance or assurance, or by one and the same disseisin ; for a joint ten- ancy cannot arise by descent or act of law, as has been already observed, but only by purchase or acquisition of the party. 17. With respect to unity of time, the estate must become vested in all the joint tenants at one and the same instant, as well as by one and the same title. Thus, if lands be demised for life, remainder to the right heirs of J. S. and J. N., J. S. hath issue and dies, and afterwards J. N. hath issue and dies, the issues are not joint tenants ; because the one moiety vested at one time, and the other moiety at another time, (a) 18. Lord Coke, however, says, that in some cases there may be joint tenants, and yet the estate may vest in them at several times. Thus, if a man makes a feoffment, to the use of himself, and of such wife as he shall afterwards marry, for term of their lives ; and after he takes a wife, they are joint tenants ; and yet they come to their estates at several times, (b) 19. A man made a feoffment in fee, to the use of himself for life ; then to the use of every one of his issue female, and to the heirs of their bodies ; then to the issue of one daughter at one time, of a second daughter at another time, and of a third daugh- ter at another time ; so that this was to vest severally in them, and afterwards to all. Lord Coke said it was adjudged that they were joint tenants ; and yet they came in at several times ; but the reason of this was, because the root was joint, (c) 20. A person devised lands to his two sons, and the heirs of their bodies ; and that his executors should have them 368* until they *came to their several ages of twenty-one years. The question was, whether one of them might enter ; for it was objected that it was a joint estate to them, which could not be, if they should have several commencements. But four of the Judges were of opinion, that when either of them came to the age of twenty-one, he should then have his part and possession ; and yet the joint tenancy should take place, (d) 21. A person levied a fine to the use of himself for life, re- mainder to his wife for life, remainder to Sir Peter Temple and Anne, his wife, for their lives, and the life of the survivor of them, remainder to their first and other sons in tail, remainder to the (a) 1 Inst. 188, a. (6) 1 Inst. 188, a. Gilb. Uses, 71. Tit. 16, c. 5. (c) Blanclford v. Blandford, 3 Bulst. 101. (c7) Aylor v. Chep, Cro. Jac. 259. Title XVIII. Joint Tenancy. Ch. I. s. 21—26. 835 issues female of their bodies, and the heirs of their bodies be^ot- ten. Sir Peter Temple had issue by Anne, two daughters, Anne and Martha. Martha died without issue ; afterwards Anne died. It was argued that the two sisters were tenants in common. But, per Holt, the estate was limited by way of use to the issues fe- male, and issues female comprehended all issues female. Then the case was, tenant for life, remainder to all his issues female, &c. If the tenant for life has but one daughter, she shall have the whole estate tail ; if he has more daughters, they shall be joint tenants for life, with several inheritances. The case in Coke, Lit. 188, a, of a feoffment to the use of himself for life, and of such wife as he should afterwards many, and then he marries, he and his wife are joint tenants, would rule the case in question ; for it was a joint claim by the same conveyance which made joint tenants, and not the time of vesting, (a) 22. Lands were devised to a woman and her children, on her body begotten, or to be begotten, by W. A. and their heirs for- ever. It was determined that the devisee and all her children took as joint tenants ; and it was no objection that by this means the several estates might commence at different times, (b) 23. Although some of the persons to whom an estate is limited be in by the common law, and others by the Statute of Uses, yet they will take in joint tenancy. 24. A fine was levied to A and B, to the use of the said A and B, and also to C. Adjudged, that they were all joint tenants ; though A and B were in by the fine, and C by the Statute of Uses, (c) 25. In a modern case, which will be stated hereafter, Lord Thurlow held, that whether a settlement was to be con- sidered as * a conveyance of a legal estate, or a deed to * 369 uses, would make no difference ; and that the vesting at different times would not prevent its being a joint tenancy, (d) 26. With respect to unity of possession, joint tenants are said to be seised per my et per tout; that is, each of them has the entire possession, as well of every part, as of the whole. They have not one of them a seisin of one half, and the other of the remaining half ; neither can one be exclusively seised of one acre, and his companion of another ; but each has an undivided moiety (a) Sussex v. Temple, 1 Ld. Raym. 310. Ante, § 18. (6) Outes v. Jackson, 2 Stra. 1172. (c) Watts v. Lee, Noy, 124. Sammes's case, tit. 32, c. 21. () 1 Inst. 199, b. Cro. Eliz. 641. t [Now otherwise by statute 3 & 4 Will. 4, c. 27, § 12, supra, tit. 18, eh. 1, § 26.] 1 See, accordingly, Barnard v. Pope, 14 Mass. 434; Brown v. Wood, 17 Mass. 68; Shuraway v. Holbrook, 1 Pick. 114 ; Catlin v. Kidder, 7 Verm. 12 ; Jackson v. Tibbits, 9 Cowen, 241; McClung v. Boss, 5 Wheat. 116; Knox v. Silloway, 1 Fairf. 201; Parker v. Proprietors of Locks, &c, 3 Met. 99 ; Taylor v. Cox, 2 B. Monr. 429 ; Thomas v. Hatch, 3 Sumn. 170 ; Clymer v. Dawkins, 3 How. S. C. Rep. 674 ; Colburn v. Mason, 12 Shepl. 434 ; [Small v. Clifford, 38 Maine, (3 Heath,) 213. Buckmaster v. Needham, 22 Vt. (7 Washb.) 617 ; Cunningham v. Roberson, 1 Swan, (Tenn.) 138.] 2 See Lloyd v. Gordon, 2 H. & McHen. 254 ; Willison v. Watkins, 3 Pet. 51 ; Cham- bers v. Chambers, 3 Hawks, 232 ; [Wass ». Buckman, 38 Maine, (3 Heath,) 356 ; John- son v. Toulmin, 18 Ala. 50.] 3 It is well settled that one tenant in common may disseise another. The nature of a disseisin, and what acts amount to it, have already been shown. See ante, Vol. I. tit. 1, § 34, note ( 3 ). But acts of ownership are not, in tenancies in common, neces- sarily acts of disseisin. It depends on the intent with which they are done, and their notoriety. The law will not presume, without evidence, that any man intends to do an unlawful act; but will presume that every man, having a right of entry or possession, enters or occupies according to his title ; and of course it presumes that those acts, which, if done by a stranger, would per se be a disseisin, are, when done by a tenant in common, susceptible of explanation, consistent with his [legal title. The question, therefore, of ouster of one tenant in common by another, is a question of intention, to be found by the jury, from the overt acts, proved in the case. See Prescott v. Nevers, 4 Mason, 330; Parker v. Proprietors of Locks, &c, 3 Met. 99. The acts themselves must be such as, if done by a stranger, would be acts of disseisin ; and must be shown to have been done adversely to the right of the co-tenant, and with intent to oust him and to assert the actual and exclusive ownership of the entirety. Thus, an ouster has Title XX. Tenancy in Common, s. 15. 873 15. Lord Hobart reports it to have been laid down by the Court of Common Pleas, in 12 James, that the entry of one tenant in common might be in three ways; either in the name of herself or her fellow; or, generally, which shall always be taken according to right, as being under construction of law, and, therefore, lawful; or, lastly, entry claiming all expressly; which cannot dispossess her fellow ; for her possession is over all lawful, as well before as after such claim ; so that there is no possession altered by such claim. Then a sole claim without more can never change the possession ; and without a change of possession it remains as before. From which it follows, that a tenant in * common can never be disseised by his *403 fellow, but by an actual ouster, (a) {a) Smals v. Dale, Hob. 120. 1 Salk. 392. 2 Salk. 423. been proved by evidence that the party refused to suffer his companion or his agent to enter, and denied his title, retaining the exclusive possession. Bracket v. Norcross, 1 Greenl. 89. So, where one entered, claiming title to the entirety under a deed which was defective as to a moiety; it was held a disseisin as to that moiety. Prescott v. Nevers, supra. So, where one tenant in common, in possession, refused rent demanded by the other, and claimed the whole land. Gregg v. Blackmore, 10 Watts, 192. So, an entry and exclusive possession by an heir, claiming the whole under a title para- mount to that of the ancestor, is a disseisin of his co-heirs. Bicard v. Williams, 7 Wheat. 60, 121. So, the purchase, by one tenant in common, of his companion's title, at a sheriffs sale, and an exclusive claim under it; Jackson v. Brink, 5 Cowen, 483 : and an exclusive claim under a partition, which turned out to be void; Jackson v. Tib- bits, 9 Cowen, 241 ; have been held sufficient proof of an ouster. So, a conveyance of the whole, by deed, and an entry by the grantee, under his deed. Bigelow v. Jones, 10 Pick. 161. [So where one of two joint tenants overflows the lands of the joint estate so as to appropriate them. Jones v. Weatherbee, 4 Strobh. 50.] But a conveyance of a distinct portion of the land, by metes and hounds, by one joint tenant or tenant in com- mon, though it be with warranty, cannot operate to the injury of his co-tenant ; though it may bind the grantor, by way of estoppel. Bartlett v. Harlow, 12 Mass. 348; Var- num v. Abbot, Ibid, 474. Porter v. Hill, 9 Mass. 34; Baldwin v. Whiting, 13 Mass. 57; Eising v. Stannard, 17 Mass. 285. In Ohio, it has been held otherwise. See 4 Kent, Comm. 368, and cases there cited. Infra, § 30, note. And see 2 Greenl. on Evid. fj. 318. [One tenant in common, by his own deed, whatever it may purport to convey, can have no effect upon the title and interest of his co-tenant. Bigelow v. Top- liff, 25 Vt. (2 Deanc,) 273. One of two tenants in common cannot be ousted by the other, except by a notorious and continued possession, unequivocally hostile. Peck v. Ward, 18 Penn. State E. (6 Harris,) 506; Small v. Clifford, 38 Maine, (3 Heath,) 213; Wass v. Buckman, lb. 356; Abcrcrombie v. Baldwin, 15 Ala. 303. Where two mort- gagees are tenants in common, an entry by one under the purchase of the equity of redemption, or under color of a judgment, or otherwise, would not be an ouster of the other, but as between them it enures for the benefit of both. Boot v. Stow, 13 Met 10. A mortgage of the whole estate by one tenant in common is not conclusive evi- dence of an ouster of his co-tenants. Wilson v. Collishaw. 13 Penn. State E. (1 Harris,* 874 Title XX. Tenancy in Common, s. 16 — 18. 16. One tenant in common received all the rents for twenty- six pears. In an ejectment brought by the other tenant in com- mon, for the recovery of his moiety, the question was, whether this possession of twenty-six years amounted to an expulsion of the companion so as to divest his estate. It was said that tenants in common, as well as joint tenants and coparceners, have a joint possession, and the possession of one is the possession of both ; that the perception of the profits did not amount to an expulsion. One tenant in common might, indeed, disseise another ; but then it must be done by an actual disseisin, and not by a bare perception of the profits only. The Court was of opinion that there was no adverse possession, no keeping the plaintiff out of possession. One tenant in com- mon had received the rent, and not accounted for it to the other ; but there was no expulsion, no ouster, (a) 17. Notwithstanding the principle established in the preceding case, it has since been determined that thirty-six years sole and uninterrupted possession by one tenant in common, without any account or demand made, or claim set up by his companion, was a sufficient ground for a jury to presume an actual ouster of the co-tenant. 18. Upon a rule to show cause why a new trial should not be («) Fairclaim v. Shackleton, 5 Burr. 2604. 276. See Moore v. Collishaw, 10 Barr, 224. One of two tenants in common cannot by the purchase of an outstanding title, or of an incumbrance, acquire title to the whole as against his co-tenant, but such purchase will operate to the benefit of both, and the purchaser is entitled to claim contribution from his co-tenant. Jones v. Stanton, 11 Mis. 433. See also Gray v. Bates, 3 Strobh. Eq. 24 ; Watkins v. Eaton, 30 Maine, (17 Shep.) 529.] In some cases an ouster may be presumed by the jury, from an exclusive and peace- able occupancy for a long period of time. Thus, such presumption has been authorized from an occupancy of about forty years; Jackson v. Whitbeck, 6 Cowen, 632; thirty-six years; Doe v. Prosser, Cowp. 217; more than tiuenty-one years; Mehaffy v. Dobbs, 9 Watts, 363 ; Frederick v. Gray, 10 S. &. R. 182; and twenty years and upwards; Lloyd v. Gordon, 2 H. & McH. 254. And see Chambers v. Pleak, 6 Dana, 426 ; Bolton v. Hamilton, 2 Watts & Serg. 294 ; Watson v. Gregg, 10 Watts, 289; [Cross v. Robinson, 21 Conn. 379 ; Black i\ Lindsay, Busbee, Law, (N. C.) 463 ; Johnson v. Toulmin, 18 Ala. 50 ; Gill v. Fauntleroy, 8 B. Mon. 177. So, if a tenant in common renounces the title of his co-tenant, and then holds continued adverse possession for twenty years, he thereby acquires title to the land. Larman v. Huey, 13 B. Mon. 436.] In an early case in New York, an exclusive and quiet possession, for forty-two years, was held to raise a conclusive presumption of law, of an ouster. Van Dyck v. Van Beu- ren, 1 Caines, 84. But this is contrary to the current of authorities, the presumption, being now regarded as a mere inference of fact. See Doe v. Prosser, and Jackson v. Whitbeck, supra. Title XX. Tenancy in Common, s. 18. 875 granted, Lord Mansfield reported that from the year 1734, one tenant in common had been in the sole possession of the lands, without any claim or demand by any person or persons claiming under the other tenant in common. That no actual ouster was proved ; but, upon the circumstances, he had left it to the jury to say, whether there was not sufficient evidence before them to presume an actual ouster; and supposing there was an actual ouster, in that case the lessors of the plaintiff were barred. The jury found there was sufficient evidence to presume an actual ouster. After the case had been argued, Lord Mansfield said: — " It is very true that I told the jury they were warranted by the length of time in this case, to presume an adverse possession and ouster by one of the tenants in common of his companion ; and I am * still of the same opinion. Some ambiguity seems *404 to have arisen from the term actual ouster, as if it meant some act accompanied with real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by rightful possession ; and yet hold over adversely, with- out a title. If he does, such holding over, under circumstances, will be equivalent to an actual ouster. For instance, length of possession during a particular estate, as a term for 1000 years, or under a lease for lives as long as the lives are in being, gives no title; but if tenant pour outer vie hold over for twenty years, after the death of cestui que vie, such holding over will in ejectment be a complete bar to the remainder-man or reversioner, because it was adverse to his title. So, in the case of tenants in common, the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion, because such possession is not adverse to the right of his companion, but in support of their common title ; and by paying him his share, he acknowledges him to be co-tenant. Nor, indeed, is a refusal to pay of itself sufficient, without denying his title ; but if, upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole, and will not pay, and con- tinues in possession, such possession is adverse, and ouster enough. The question then is, whether the possession in this case, after the particular estate ended, was a possession as tenant in common eo nomine, or adverse. " It is a possession of near forty years, which is more than 876 Title XX. Tenancy in Common, s. 18 — 20. quadruple the time given by the statute for tenants in common to bring their action of account, if they think proper, namely, six years ; but in this case no evidence whatsoever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowl- edgment of the title in them, or in those under whom they would now set up a right ; therefore, I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession, for such a length of time, is a sufficient ground for the jury to pre- sume an actual ouster, and that they did right in so doing." The other Judges concurred, and the rule for a new trial was discharged, (a) 19. It was determined, in the following modern case, 405* that * where one tenant in common levied a fine of the whole estate, and took the rents and profits afterwards, without account, for nearly five years, this was no evidence whence a jury should be directed, against the justice of the case, to find an ouster of his companion at the time of the fine levied, 20. Philip Fincher being tenant for life, remainder to his first and other sons in tail, remainder to all his daughters as tenants in common in tail, (who afterwards levied a fine,) died, leaving three daughters ; Mary married to Thomas Hornblower, Ann married to Nicholas Pearsall, and Margaret, who died unmarried before her sister Mary. Mrs. Hornblower, under her marriage settlement, having a power to dispose of her share, executed it in favor of the right heirs of her husband, with a power of revo- cation. She survived her husband, and died in March, 1796. The lessor of the plaintiff claimed as heir at law of her husband, under her appointment. After her death, N. Pearsall and Ann his wife, levied a fine of the whole estate as of Easter term, 1796. It was understood before the trial, that the defendants meant to claim under a deed or will, or both, of Mrs. Hornblower, exe- cuted subsequent to the deed of appointment before mentioned ; in consequence of which the plaintiff's counsel produced evi- dence by anticipation, which went decidedly to prove that at the time, and long before, when the supposed instrument bore date, Mrs. Hornblower was insane ; whereupon the defendant's coun- sel, saying they were not then prepared to meet that case, stood (a) Doe v. Prosser, Cowp. 217. Doe r. Bird, 11 East, 49. Title XX. Tenancy in Common, s. 20. 877 upon their title, derived from the fine, operating upon what they contended was an adverse possession, by Pearsall and his wife, of the whole estate, at the time of the fine levied ; as to which it appeared in evidence, that since the death of Mrs. Hornblower, and till Pearsall's death, the latter alone received the whole rent ; and that no rent was ever paid to the lessor of the plaintiff, and no entry was proved to be made by him. * The jury, under the Judge's direction, found a verdict * 406 for the plaintiff; and leave was given to the defendant to enter a nonsuit, if the Court should be of opinion that an entry was necessary to avoid the fine. Lor,d Kenyon. The whole of the defence is founded in a most unrighteous and fraudulent proceeding ; and, in order to give effect to it, the legal operation of the fine is insisted on ; and it is asked, if this were not an adverse possession by Pearsall, at the time of the fine levied, where the line was to be drawn. He said he had no hesitation in saying where the line of adverse possession began, and where it ended. Primd facie, the posses- sion of one tenant in common was that of the other, and every case and dictum in the books were to that effect. But it might be shown that one of them had been in possession, and had received the rents and profits to his own use, without account to the other ; and that the other had acquiesced in this for such a length of time as might induce a jury, under all the circum- stances, to presume an actual ouster of his companion, and there the line of presumption ended. In the case of Doe v. Prosser,(a) Lord Mansfield rightly said, it was not necessary to show actual force, in order to prove an ouster, as by turning a man out by the shoulders ; but, as was also observed by Mr. Justice Aston, it might be inferred from circumstances, which circumstances were matter of evidence to be left to a jury. There, there was an undisturbed and exclusive possession by one tenant in com- mon for forty years, which the Court properly held to be suffi- cient evidence of an ouster, to leave to a jury ; but no Judge could think himself warranted in directing a jury to make such a presumption in this case, in order to work the grossest injus- tice, and in aid of fraud. What was the case here ? During Mrs. Hornblower's life, Pearsall held as tenant in common with (a) Ante, $ 18. vol. i. 74 878 Title XX. Tenancy in Common, s. 20. her ; he received all the rent, but he accounted for her propor- tion. She died in the month of March, 1796, the defend- 407 * ants or * Pearsall having, as was supposed, procured from her, at a time when the jury had found her to be insane, an instrument conveying the property to them. Then in Easter term following, for the purpose of securing the possession of this ill-gotten property, the fine was levied. But Pearsall had then done no act which manifested that he held the possession of the whole adversely ; the levying a fine of the whole was no ouster of his companion. About a month intervened between the death of Mrs. Hornblower and the levying of the fine. What notice was there to the lessor of the plaintiff at that time that Pearsall had acted adversely, so that he should be taken to have acqui- esced in his title ? All the cases mentioned went upon the ground of acquiescence in an adverse holding, in order to pre- sume an ouster. In Fairclaim v. Shackleton (a) there had been a perception of the rent by one tenant in common for twenty-six years ; but the title of the other being admitted, no ouster was presumed. Without an ouster was found by the jury, the pos- session of one tenant in common must be taken to be the posses- sion of all. He admitted that upon the principle of the case of Lade v. Holford, (b) the jury might from circumstances presume an ouster ; and where the fact was so found, the legal conse- quences would ensue ; but no Judge would advise a jury to make the presumption in this case. Then, unless the holding were adverse, there was no occasion for an entry to avoid the fine. Suppose a tenant for years levied a fine, no entry by the land- lord would be necessary in order to enable him to maintain an ejectment at the end of the term. In Taylor v. Horde, (c) Lord Mansfield said, that in order to advance justice he would enable the real owner in such a case to consider himself kept out by wrong or not, at his election. So a tenant in common might rely on the possession of his co-tenant, as his own, unless there were an actual ouster in fact, or the jury found it from circum- stances ; but nothing of that sort was here found ; and therefore the Court might consider the levying of the fine as rightfully and legally done, and intended to operate only on that share of the premises to which the defendants were lawfully entitled. (a) Ante, § 16. (Hart v. Gregg, 10 Watts, 185. Hall v. Matthias, 4 Watts & Serg. 331.) (b) Tit. 12, c. 2. Tit. 35, c. 13. (c) 1 Burr. 111. Title XX. Tenancy in Common, s. 20—22. 879 Mr. Justice Lawrence cited the case of Coppinger v. Keating, on a writ of error from Ireland, Mich. 22 Geo. III., where one of two brothers, professing the Catholic religion, entered, on the * death of his elder brother, on the lands of which * 408 they were tenants in common, in consequence of the gavel act ; which enacted that the lands of persons of that per- suasion should descend to all the males, according to the custom of gavelkind ; and held them for several years until his death ; and the Court determined that the son of the elder brother was not barred by the Statute of Limitations ; as the uncle was ten- ant in common with him under that act, no actual ouster being found. The rule for entering a nonsuit was discharged, (a) 21. Estates held in common are subject to curtesy ; therefore, if a woman, tenant in fee or in tail of a portion of an estate held in common with another, marries, has issue, and dies, her hus- band will be entitled to her portion of the estate as tenant by the curtesy ; and the seisin of one tenant in common will be considered as the seisin of the other, for this purpose. 22. A died, leaving a wife, a son, and a daughter. The widow entered upon the estate, and was seised as tenant in dower of one part, as tenant in common with her son of another part, and of a third as guardian in socage to him. The son went beyond sea, and died there under age, whereby the daughter became entitled to his share. She, during her infancy, married the plain- tiff; and together with him applied to the mother to be let into possession of the son's part, which the mother refused, imagining the son was still alive, and therefore insisted to hold the land for him. Upon this they filed a bill in Chancery for an account, which was accordingly directed. After this the daughter died ; and upon further application to the Court by the husband, one question was whether the seisin of the mother, after the son's death, being tenant in common with the daughter, was the seisin of the daughter sufficient to make the husband tenant by the curtesy of her part. The Court held it was sufficient ; for the entry and possession of one tenant in common was the entry and possession of the other ; accordingly it was decreed for the plaintiff. And it was said that where one entered claiming the whole for himself, in exclusion of his companion, this might not serve as the entry of in) Peaceable v. Read, 1 East, R. 668. Doe v. Elliot, 1 15. & AM. 85. 880 Title XX. Tenancy in Common, s. 22—26. his companion, being made directly against him ; but that was not this case. For it appeared that the mother's keeping pos- session of the whole against her daughter and her hus- 409 * band was * entirely owing to a mistake, in imagining her son was still living, not with an intent to exclude the daughter from her right ; therefore no inference could be drawn from it. (a) 23. Estates held in common are also subject to dower, so that the widow of a tenant in common will be entitled to one third of her husband's portion. 24. Thus where, in a writ of dower by a widow against the heir of her husband, the tenant pleaded that A was seised, and devised the tenements to the husband, and two more equally to be divided ; by which they were tenants in common ; and so demands judgment of the writ, supposing that the widow could not sue dower, before partition, against tenants in common. But, upon demurrer, it was adjudged that the writ will lay. (b) 25. In a case of this kind, dower must be assigned in com- mon ; for the widow cannot have it otherwise than her husband had it. (c) 1 26. [It is sometimes doubtful whether the real estate of part- ners, purchased out of their partnership property, will be subject to the dower of the partners' wives. 2 Where it is conveyed to them as tenants in common, and there is no agreement among them which will impress the real estate with the character of personalty, there seems to be no reason why (a) Sterling v. Penlington, 14 Vin. Ab. 511. {b) Sutton v. Rolfe, 3 Lev. 84. (c) 1 Inst. 34, b. 37, b. 1 But if partition has been made, either by the husband in his lifetime, or by pro- cess of law before or after his decease, the ■widow is bound by it, wherever it would have bound the husband, and must take her dower in the part set [off as his share- Potter v. Wheeler, 13 Mass. 501. 2 On this point, see ante, Vol. I. tit. 6, ch. 2, § 15, 16; where it is shown that the land has, in equity, all the attributes of personal estate, until the debts of the partner- ship are paid, and its purposes are accomplished; subject to which, the wife is entitled to her dower. See also Collyer on Partnership, by Perkins, § 133, 135, 154 — 156, with the notes of the learned editor. Whether the wife may compel the surviving partner first to exhaust the personalty, in payment of the partnership debts, qnare; and see Thornton v. Dixon, 3 Bro. C. C. 199, by Belt, and note ; Ripley v. Waterworth, 7 Ves. 425—452 ; Bell v. Phyn, 9 Ves. 453; Balmain v. Shore, 9 Ves. 500; Stewart v. Bute, 11 Ves. 666 ; Selkrigg v. Davies, 2 Dow, 242 ; Crawshay v. Maule, 1 Swanst. 495, 508, 521 ; Smith v. Smith, 9 Ves. 189; 1 Mont. Partn. App. 97; 1 Roper, Husb. and Wife, 346, note, 2d ed. Title XX. Tenancy in Common, s. 26—29. SSI dower should not attach. So, if the whole of the real estate were conveyed to one or more of them in trust for themselves and the other partners, in the absence of any such agreement, the share of the partners to whom the conveyance was made, would, in like manner, be subject to dower. But where there is such an agreement between the partners, as, for instance, that, on disso- lution of the partnership, the land shall be sold, it has been held that such agreement converts the land into personalty, f 27. In the absence of any agreement having the above effect, it appears doubtful whether the mere circumstance that the land was bought for the purposes of the partnership, will alone con- vert it, as between the representatives of a partner. $ *Lord Erskine, in Stuart v. The Marquis of Bute, (a) *410 said that the difficulty of distinguishing and arranging the partnership property of different natures, partly real and partly personal, had never, except by the effect of the contract or the will, been held sufficient against the heir. But in Selkrigg v. Davies, (b) Lord Eldon, C, is reported to have said : " My own individual opinion is, that all property in- volved in a partnership concern, ought to be considered personal estate ; " and in the case of Townshend v. Devaynes, 30th June, 1812, he decided against the heir. In Crawshay v. Maule, (c) his Lordship appears to consider the subject as doubtful. § 28. It may be deduced from the cases above cited, that the real estate purchased with the joint effects of the partnership, will, as behoeen the partners, be considered personal estate ; and it has been inferred that real estate would, with other joint property, be primarily liable to the payment of the joint partnership debts, as between the representatives ; and that if the heir or widow of a partner be entitled, their right can attach only on the surplus. || 29. Where real estate was purchased out of the partnership effects, and, by the agreement of the partners, was to be the (a) 11 Ves. 666. (6) 2 Dow, 242. (c) 1 Swan. 508, 521. Montagu on Partn. vol. 1, App. p. 07. t [Thornton v. Dixon, 3 Bro. C. C. 199, by Belt, and note; Ripley v. Waterworth. 7 Ves. 425—452.] t [Thornton v. Dixon, ubi sup. ; Bell v. Phyn, 7 Ves. 453 ; Balraain v. Shoro, 9 Ves. 500.] ^ [Roper's Husband and Wife, 2d ed. 34G, and note.] II [Ibid.] 74* 882 Title XX. Tenancy in Common, s. 29 — 30. separate property of one of them, to whom it was conveyed, he being considered the debtor to the partnership for the purchase- money, the wife was held entitled to dower out of the whole.] (a) 30. A tenancy in common may be destroyed by a voluntary partition of the several shares, 1 which might formerly have been done without deed; provided it was executed in severalty by livery of seisin. In consequence of the Statute of Frauds, 29 Cha. II. c. 3, no legal partition can now be made between ten- ants in common ivithout deed. But an agreement in writing to make partition will have the same effect, in equity, as an actual partition at law. (b) (a) Smith v. Smith, 5*Ves. 189. (b) 1 Inst. 169, a. 1 An alienation by one joint tenant or tenant in common, of all his interest in a par- ticular part of the land, by metes and bounds, whether it be by deed or by the levy of an execution against him, is void, as against his .co-tenants ; though it may operate by way of estoppel against the grantor by deed, or the judgment creditor, or party claim- ing under the execution. Bartlett v. Harlow, 12 Mass. 349; Staniford v. Fullerton, 6 Shepl. 229 ; Mitchell v. Hazen, 4 Conn. 509, 510 ; Porter v. Hill, 9 Mass. 34 ; Jeflers v. Radcliff, 10 N. Hamp. 242; Jewett v. Stockton, 3 Yerg. 492 ; Griswold v. Johnson, 5 Conn. 363 : [Great Falls Co. v. Worcester, 15 N. H. 412 ; Soutter v. Porter, 27 Maine, (14 Shep.) 405. But such deed is voidable only by the co-tenants: it is good and effectual against all the world beside. Dall v. Brown, 5 Cush. 289.] But in Ohio, it has been held that one tenant in common might lawfully convey his interest in a part of the land specifically described. White v. Sayre, 2 Ohio R. 110; Prentiss's case, 7 Ohio R. 129. But see Walk. Introd. p. 293, 294 ; 4 Kent, Comm. 368. In Maryland, also, it has been so held ; but only by the operation of the Statute of Descents in that State. Smith v. Reinecker, 2 H. & J. 421. But see Carroll v. Norwood, 1 H. & J. 100. [In a conveyance by one tenant in common of his estate in the land held in common, a reservation of his interest in the mines in and upon the land granted, is void. Adam v. Briggs Iron Co. 7 Cush. 361. A release to a tenant in common from his co-tenants, of their interest in a specific part of the land held in common, confirms a conveyance previously made by him of that part of the land. Johnson v. Stevens, 7 Cush. 431. See also Norris v. Hill, 1 Mann, (Mich.) 202. Persons owning lands as tenants in common, were incorporated for the purpose of selling the lands held in common, and the charter was accepted. The title to the lands was held to be thereby vested in the corporation, and that the corporation alone, and not any of the original co-tenants, could maintain actions for injuries to the lands, or breaches of agreements with the corporation. Colquitt v. Howard, 11 Geo. 556. Two tenants in common made partition of their land. The one granted to the other " free liberty of carrying away gravel and sea-weed, off the beach belonging to his part of said farm, and also stones below high-water mark, and liberty to tip the sea-weed on the bank of his part of said farm." It was held that this grant created a right of com- mon appurtenant to the land of the grantee, but a right in common with the grantor, and one restricted in its extent; and also that a right of way to and from the shore, passed as an incident to the common granted, and that both the right of way and the right of common would pass in a conveyance of the land under the general name of appurtenances. Hall v. Lawrence, 2 R. I. 218. See Bowen v. Conner, 6 Cush. 132.] Title XX. Tenancy in Common, s. 31 — 34. 883 31. Tenants in common were compellable to sever their estates by writ of partition under the statutes 31 & 32 Hen. VIIL, and 8 & 9 Will. III. c. 31, which have been already stated, (a) f * 32. In a writ of partition, a rule to show cause was * 411 granted, and afterwards made absolute, on affidavit of ser- vice, for the Court to proceed to examine the title of the defend- ant ; process having been duly returned, the declaration entered, and no appearance entered by the tenant within ten days. The Court, on making the rule absolute, appointed to proceed on the examination in open court on the next day. Accordingly, Serj. Walker, for the demandant, opened his title, of which abstracts had previously been left with the Judges ; it fortunately proved not to be very intricate. The several seisins, descents, devises, and conveyances, were proved by affidavits. The deeds and wills were produced and read ; and no counsel appearing for the tenant, the Earl of Thanet, judgment on his default was given for the demandant, to hold in severalty the premises demanded in his count ; in some of which he was seised of two undivided third parts, and in others of a moiety only, in common with Lord Thanet. A writ of partition was awarded, (b) 33. In a subsequent term, the sheriff returned that he had exe- cuted the same, in the presence of persons who attended for the plaintiff and defended respectively ; and specified in his return the several parcels, with their metes and boundaries : hereupon Walker, for the plaintiff, moved for final judgment, quod partitio sit stabilis ; the rule for which was made absolute the last day of the term, on affidavit of notice to the defendant and tenants in possession. J 34. Partitions of estates held in common are now usually made by a commission out of Chancery, in the same manner as partitions of joint tenancies: but in such case it is not necessary that every part of the estate should be divided ; for it will be sufficient if each tenant in common have an equal share of the whole, (c) 1 (a) Tit. 18, c. 2, § 30, 41, and note. (b) Halton v. Thanet, 2 Black. R. 1134—1159. (c) Tit. 18, c. 2, § 42. t [But that writ is abolished from the 1st day of June, 1835.] I [It has been lately held, that the statute 8 & 9 Wm. 3, c. 31. applies only to those cases where the tenant does not appear. Dyer v. Bullock, 1 Bos. & Pul. 344.] 1 For the jurisdiction of Partition in Chancery, and the manner of its exercise, sec 1 Story on Eq. Jurisp. ch. 14, $ 64G— 658; Allnatt on Partition, ch. 4. 884 Title XX. Tenancy in Common, s. 35 — 37. 35. A partition was decreed of an estate, which consisted, among other things, of a great house and park. The defendant insisted to have one third of the house, and also a third of the park, assigned to him by the commissioners, who were to make the partition. It was urged for him, that as he was en- 412 * titled * to a third of the whole, so consequently he was to have a third of the house and park ; and in many cases in the law, things entire in their nature, as a house, a mill, or an advowson, might be divided. So a tenant in common should have half the house, every other toll dish, and every other turn of the church, &c. That thus it would be at law in case of a writ of partition, and equity followed the law. Lord Parker said : — Care must be taken that the defendant should have one third part in value of the estate ; but there was no color of reason that any part of the estate should be lessened in value, in order that the defendant should have one third of it. Now if the defendant should have one third of the house and park, this would very much lessen the value of both. If there were three houses of different value to be divided among three, it would not be right to divide every house, for that would be to spoil every house. But some recompense was to be made, either by sum of money or rent for owelty of partition, to those who had the houses of less value. It was true, if there were but one house or mill, or advowson, to be divided, then that entire thing must be divided in manner as the other side contended ; secus, when there were other lands, which might make up the defend- ant's share. Therefore, since the plaintiff and his wife had two thirds, he recommended that the house and park should be allowed to them ; and that a liberal allowance out of the rest of the estate should be made to the defendant in lieu of his share of the house and park, (a) 36. Where an infant is tenant in common with an adult, and a partition of the estate is directed by the Court of Chancery ; the conveyance to be made in pursuance of the commission will be respited, till the infant comes of age. 37. Sir George Strode devised divers manors, &c. to trustees and their heirs, in trust for his two granddaughters, Lady Hert- ford and Lady Brook. On a bill for a partition, Lord King said : " Decree a partition, and for that purpose let a commission issue (a) Clarendon v. Hornby, 1 P. Wins. 446. Title XX. Tenancy in Common, s. 37 — 38. 885 to allot one moiety in severalty to the plaintiff, the Lord Brook, and the other moiety in severalty to Lady Hertford, to hold to them according to their respective estates, which they are entitled to under the will ; and let the plaintiff and the defendant, the Lady Hertford, be respectively quieted * in the pos- * 413 session of the premises severally to be allotted as afore- said ; but forasmuch as the infant plaintiff cannot join in a con- veyance of the moiety to the Lady Hertford, so that there cannot be mutual conveyances, let the conveyances to be made by the trustees of the legal estate be respited, until the infant plaintiff comes to twenty-one, or further order of the Court ; at which time all parties interested may join in mutual convey- ances." (a) 38. On a bill by a tenant in common for a partition against a tenant for life, and an infant tenant in tail in remainder of the other moiety ; the usual decree for partition to hold and enjoy in severalty, and for mutual conveyances, was made. But day was given to the infant, till after he came of age, to show cause against the decree. On a motion made by the plaintiff to respite the execution of the conveyance till the infant came of age ; the question was, whether the plaintiff was obliged to convey till the infant came of age ; because he could not have a conveyance from him till that time. Sir J. Strange, M. R., was of opinion, that the conveyance by the plaintiff ought to be made immediately, according to the de- cree ; and took a distinction between this case and that of Brook v. Hertford. In that case the bill for partition was brought by the infant ; in this, it was by an adult, against an infant : but at the importunity of counsel, leave was given to move it again before Lord Hardwicke, who declared his opinion that the con- veyance ought to be mutual, not only as to the thing, but also in point of time. He said that the case Brook v. Hertford, (b) though different in some circumstances, was a considerable authority ; and ordered the conveyance by the plaintiff to be respited, (c) f (a) Brook v. Hertford, 2 P. Wms. 518. See, also, 1 Mad. 214. (b) Ante, § 37. (c) Tuckfield v. Duller, Amb. 197. Baring v. Nash, 1 Ves. & B. 551. t [By the statute 41 Geo. 3, c. 109, § 16, it is enacted, that it shall be lawful for the commissioners in inclosure acts, upon the request in writing of any joint tenants, co- parceners, or tenants in common, or any or either of them, or of the husbands, guar- 886 Title XX. Tenancy in Common, s. 39. 39. The last manner in which estates in common may be dissolved is, by uniting- all the titles in one te?iant, by purchase or otherwise ; which brings the whole to one estate in severalty-! dians, trustees, committees, or attorneys of such as are under coverture, minors, lunatics, or under any other incapacity, or absent beyond seas, to make partition and division of the estates and allotments, to such of the said owners or proprietors who shall be enti- tled to the same as joint tenants, coparceners, or tenants in common ; and to allot the same accordingly, in severalty.] t [The statute of 1 Will. 4, c. 65, which relates to property belonging to infants and lunatics beneficially, authorizes (§ 27,) the completion of a contract to make partition entered into by a person subsequently becoming lunatic ; but it does not seem to au- thorize guardians on behalf of an infant to make partition.] Note. — In the United States, partition may be made by deed, as at common law. There are also five other, modes in which partition may be effected. The first, is where real estate is owned by several proprietors, who are empowered by statutes, under a warrant from a justice of the peace, to organize themselves as a corporation, for the better management of their property, by votes of the majority. Par- tition made by such votes, in due form, and recorded in their book of records, is held binding and conclusive on all the proprietors, without deed or other act. This method is practised chiefly in the division of townships ; and is used, substantially in the same manner, in the States of Maine, Massachusetts, New Hampshire, and Rhode Island. See Maine, Rev. St. 1840, ch. 85 ; Mass. Eev. St. ch. 43 ; Adams v. Frothingham, 3 Mass. 352; Folger v. Mitchell, 3 Pick. 396; N. Hamp. Eev. St. 1842, ch. 143; Coburn v. Ellenwood, 4 N. Hamp. E. 99 ; E. Island, Eev. St. 1844, p. 474. The second method is by the writ de partitionefacienda, at common law; the proceed- ings under it being modified, in some of the States, by statutes. This process lies in many of the States, concurrently with other methods of partition, and in some of them it is the only mode resorted to. See Maine, Eev. St. 1840, ch. 121 ; Massachu- setts, Eev. St. ch. 103; Rhode Island, Eev. St. 1844, p. 192—196 ; Connecticut, Eev. St. 1838, p. 392 ; LL. New Jersey, Elm. Dig. p. 385; Dunlop, Dig. LL. Pennsylvania, ch. 33, § 22, p. 41 ; Ziegler v. Grim, 6 Watts, 106 ; Delaware, Eev. St. 1829, p. 166 ; Tate's Dig. LL. Virginia, p. 723 ; Maryland, Lloyd v. Gordon, 2 Har. & McHen. 254 ; LL. South Carolina, Vol. VII. p. 294 ; Witherspoon v. Dunlap, 1 McCord, 546 : Indiana, Eev. St. 1843, ch. 45, art. 4. The third method is by petition, preferred in the Courts designated by the stat- utes which provide this mode of proceeding. And it seems to have been provided to obviate the inconveniences of the writ at common law, on the one hand, and of the bill in chancery, on the other. The proceedings are in general brief, direct, and rather summary in their character ; and apply generally to cases where some of the parties are infants, femes covert, absent from the State, or unknown, as well as to cases where the parties are present and capable to act. This method pre- vails in a large majority of the States, and is the one most usually resorted to ; but it is not ordinarily deemed exclusive of other lawful modes of partition, unless when made so by statute. It is provided for by the statutes of Maine, Eev. St. 1840, ch. 121, and ch. 108; Massachusetts, Eev. St. ch. 103; New Hampshire, Eev. St. 1842, ch. 206; [Pickering v. Pickering, 1 Foster, N. H. 537.] Vermont, Eev. St. 1839, ch.40, 53; New York, Eev. St. Vol. II. p. 412, 3d ed. ; lb. p. 318; New Jersey, Elm. Dig. p. 379, 382 ; North Carolina, Eev. St. ch.85, Vol. I. p. 450; Georgia, Eev. St. Note. 887 1845, p. 414, § 48; Michigan, Rev. St. 1837, p. 4S2, 487. 488; Kentucky, Rev. St. 1834, Vol. II. p. 1066—1071 ; Ohio, "Walk. Introd. p. 291, 603, 613 ; Tennessee, Stat. 1787, ch. 17- Stat. 1835, ch. 20, Car. & Nich. Dig. p. 514, 230; Indiana, Rev. St. 1843, ch. 45, art. 4 ; Illinois, Rev. Stat. 1839, p. 254, 255, 514, 515 ; Missouri, Rev. St. 1845, ch. 128 ; Mississippi, Rev. St. 1840, ch. 34, § 48, p. 353 ; Ibid. ch. 36, § 13, 14, p. 471 ; Alabama, Rev. St. 1823, by Toulmin, p. 239, 240, 339; Ibid. p. 333; Arkansas, Rev. St. 1837, ch. 107. The fourth method is by bill in chancery, according to the usual course of proceedings in equity. This mode of remedy is supposed to be open in all the States where a gen- eral chancery jurisdiction exists ; at least in cases not provided for by statutes, or not susceptible of a sufficient and perfect remedy in other tribunals. In some States, the Court of Chancery is named in the statutes, among the other Courts, in which the remedy by petition may be had ; but whether this excludes the general jurisdiction of those Courts over matters of partition, is not known to have been decided. See Dela- ware, Rev. St. 1829, p. 168; North Carolina, Rev. St. 1837, Vol. I., ch. 85. In New York, Rev. St. Vol. II., p. 423, 424, both modes of remedy, by petition and by bill are expressly recognized, as open to parties in Chancery. In Massachusetts and New Hamp- shire, where the Supreme Court has only a limited jurisdiction in equity, but it is ex- pressly given in all cases between joint tenants and tenants in common, probably a bill in chancery for partition might, in proper cases, be sustained. The fifth method of partition is in general restricted to the estates of deceased persons, in the hands of Mrs or devisees, all claiming under the same title, and whose rights as heirs or devisees, are not in controversy. The cognizance of partition among these is, in many of the States, given to the Judge of Probate, Surrogate, Orphans' Court, or other tribunal in which the estate is settled in a course of distribution, as a natural head of the jurisdiction of such Courts. In some instances, the statutes direct that the parties apply by petition ; in which case the course of proceeding is identical with that by petition in other Courts, in the third method above stated. But as the Courts here described, proceed according to the course of Ecclesiastical Courts in England, in the ex- ercise of their jurisdiction in cases not otherwise provided for, nor accustomed, it is conceived that, where the mode of proceeding in partition is not indicated by statute, nor otherwise regulated, it may in some degree be governed by the rules of the Ecclesi- astical Courts, at least so far as concerns the bill or libel and the answer; and therefore it may with propriety be ranked as a distinct mode of partition. This method is used in the States of Maine, Massachusetts, New Hampshire, Vermont, Rhode Island, Connecticut, New York New Jersey, Pennsylvania, Delaivare, Maryland, South Carolina, Michigan, Mis- sissippi and Alabama. Seethe statutes of those States, cited under the third method supra ' See also, Rhode Island, Rev. St. 1844, p. 240; Connecticut, Rev. St. 1838, p. 234 • Pennsylvania, Dunl. Dig. ch. 375, § 36, p. 472 ; Delaware, Rev. St. 1829, p. 318 ; Maryland, Stat. 1820, ch.191 ; LL. South Carolina, Vol. VI., p. 248 ; Vol. VII., p. 246. Generally speaking, no process for partition lies by the common law, except for a party who is in possession of the freehold. It does not lie for a disseisee ; nor for a re- mainder-man or reversioner during a previous life-estate. 1 Inst. 167, a But m Maine, it is expressly given to persons having only a right of entry ; and perhaps the same may be inferred from the statutes of North Carolina and Tennessee, which give the process to every person " claiming " an estate in common. In Missouri, also, it is given to every person interested, whether in possession or expectancy. [This process does not lie where the petitioner is seised of one moiety in his own right, and together with the respondents as joint trustees with himself of the other moiety, m trust for a lurd party. Winthrop t. Minot, 9 Cush. 405. It lies for one having a present right of iTj Barnard, Pope, 14 Mas, 434; Marshall ,. Crehore, 13 Met. 462 ; Wood iv LeBaron, 8 Cush. 471; Tabler v. Wiseman, 2 Ohio, N. S. 207. But not for a tenant in 888 Note. common of a reversion in land expectant on a lease for years. Hunnewell v. Taylor, '6 Cush. 472. A tenant by the curtesy initiate may have a bill for partition. Riker v. Darke, 4 Edw. ch. 668.] The statute of 31 Hen. VIII. ch. 1, which gave the writ of partition to joint tenants and tenants in common, gave it only to those who were seised of estates of inheritance. The statute of 32 Hen. VIII. ch. 32, extended it still further, to tenants for life or years, holding with others having estates of inheritance. To what extent this latter statute has been adopted in the United States, is not certainly known ; but in the absence of any evidence to the contrary, it may be presumed to have been adopted here, as part of our common law. The language of the statutes of most of the States, providing the process in partition, is broad enough to include tenants for years, as well as others, among the persons en- titled to compulsory partition ; but in Georgia, as the statute speaks only of persons "seised" it would seem to be restricted to tenants of the freehold. In Massachusetts, this remedy is given to tenants for a term of years, whereof twenty years at least re- main unexpired, against those holding a greater estate ; and to all other tenants for years, inter sese. And see Wells v. Prince, 9 Mass. 508. Though a partition by parol is void, as to the title, yet a right to a several occu- pancy may be created by parol, so far, at least, as to give the party, or his lessee, a right of action against his co-tenant, for disturbing his several possession. Keay v. Good- win, 16 Mass. 1 ; Clowes v. Hawley, 12 Johus. 484 ; Jackson v. Harder, 4 Johns. 202 ; Jackson v. Vosburg, 9 Johns. 270 ; Jackson r. Livingston, 7 Wend. 141. [No parol partition can avail unless it be sanctioned by a possession, sufficient to give title under the Statute of Limitations, or by such lapse of time as justifies a presump- tion, omnia esse rite acta. Jones v. Eeeves, 6 Rich. 132. A parol partition executed by a corresponding possession is valid, though some of the tenants elect to hold their shares by community of possession. McMahan v. McMahan, 13 Penn. State R. (1 Harris,) 376. And so, though one of the tenants be a feme covert, and another a minor. Darlington's Appropriation, lb. 430. In Massachusetts, the statute of 1850, ch. 278, provides that the respondent in a peti- tion for partition, shall be entitled to compensation for the value of any improvements, put by him or by those under whom he claims, upon the land, to which the title was believed to be good. In Indiana, the defendants in proceedings for partition may, before the partition is awarded, bring to the notice of the Court, any advancements made by the ancestor to any of the heirs, and such advancements, when the amount thereof has been ascertained, will be taken into account by the Court in specifying the shares to be assigned in the petition. Rev. Stat. 1843, p. 841, Kepler v. Kepler, 2 Carter, 363. In New York, a tenant, in common, who makes advances and payments beyond his propor- tion towards the erection of buildings upon the property held in common, will not thereby acquire an equitable lien upon the property unless there is an express agreement to that effect, or there are some special circumstances giving to such party peculiar equities. Taylor v. Baldwin, 10 Barb. Sup. Ct. 582, 626. Green v. Putnam, lib. 500. Thus, where large sums had been expended by the tenants in good faith for valu- able improvements, under the belief that they were the sole owners, they were allowed therefor on partition. Conklin v. Conklin, 3 Sandf. Ch. 64.] END OF VOLUME I. O SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES AA 000 742 899 8 ill