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Full text of "A practical treatise on title to real property, including the compilation and examinations of abstracts, with forms"

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Cornell University Library 
KF 670.T47 

A practical treatise on title to real pr 



3 1924 018 815 708 




The original of tiiis book is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924018815708 



A PRACTICAL TREATISE 



ON 



Title to Real Property 



INCLUDING THE 



COMPILATION AND EXAMINATION 
OF ABSTRACTS 



WITH FORMS 

» f 



By 

GEORGE W. THOMPSON 

Author of 
A TREATISE ON WILLS 



INDIANAPOLIS 

THE BOBBS-MERRILL COMPANY 
PUBLISHERS 



If 



Copyright 1919 
By The Bobbs-Mebwll Company 



I ^' ■•■ 






''>\ 




PREFACE 

The law of real property may be said to be the backbone of 
American law. The estates and interests involved, both present 
and future, exhibit the most intricate of all questions known to 
the legal profession. Modern statutes and the standardization of 
deeds and other instruments relating to real estate have, in some 
degree, reduced the number of such questions; but they often 
arise when least expected and require the most careful and pains- 
taking treatment. 

Every transaction in real estate should be under the supervision 
of a competent legal adviser, and no title can be safely accepted 
without a proper examination. To facilitate such examination, 
counsel should be furnished, in proper form, all the record infor- 
mation which he is required to know concerning the title to the 
particular real estate in question. He should be familiar with the 
method of compiling such information, and insist on its proper 
arid 1 orderly presentation before he undertakes to apply legal 
principles to the various instruments and transactions in the chain 
of title. 

Counsel often encounter trouble and embarrassment in the 
perusal of an abstract, owing to the confused and ambiguous 
manner in which the material parts of instruments are stated, and 
the illogical mode of arrangement sometimes adopted. Many 
advantages will result to the profession from observing a more 
careful and systematic preparation of abstracts of title by persons 
and corporations engaged in compiling them. 

In this treatise the author has prepared for the special use 
of attorneys, as well as conveyancers, a practical guide >to the 
proper preparation and examination of abstracts, together with 
an epitome of the law applicable to questions arising in the pe- 
rusal of such documents. A general outline is given of the most 
approved methods of making indices and abstract books ; a gen- 
eral scheme is given of arrangement or grouping of the various 
instruments and transactions forming the chain of title, and the 

iii 



IV X PREFACE 

essential parts of instruments required to be noted are given, to- 
gether with illustrative forms. 

All instruments and transactions affecting the title to real es- 
tate are treated, not only with respect to their proper exhibition 
in the chain of title, but more particularly with reference to their 
legal effect and operation as muniments of title or incumbrances. 
Special care has been exercised to point out the numerous pitfalls 
in the chain of title, and to indicate a remedy for correcting or 
curing defects therein. 

A digest of the statutes of the various states pertaining to the 
execution and acknowledgment of deeds and mortgages, the exe- 
cution and probate of wills, and the law of descent and distribu- 
tion has been included for the convenience of counsel not having 
access to the statutes of the various states. From the great num- 
ber of decisions only those have been selected that best illustrate 
particular topics and indicate modern tendencies. 

In the preparation of this work the author has combined his 
own experience with the experience of a number of eminent con- 
veyancers and lawyers with whom he has been privileged to con- 
sult, and to whom he acknowledges many obligations for advice 

and suggestions. „ frr rr 

''^ George W. Thompson. 



TABLE OF CONTENTS 

CHAPTER I 

ABSTRACTS IN GENERAL 

SEC. 

1. Abstracts defined. 

2. Origin and history of abstracts. 

3. Tile object of an abstract. 

4. American and English methods distinguished. 

5. General requisites of an abstract. 

6. Sufficiency of abstract between vendor and vendee. 

7. Abstract showing good title. 

8. Period for which title should be shown. 

9. Qualifications of abstracters. 

10. Scope of abstracters' undertaking. 

11. Relation of trust and confidence. 

12. Who may make abstracts. 

13. Compensation of abstracters. , 

14. Bond of abstracters. 

15. Nature of abstracter's liability. 

16. Liability for negligence or mistake. 

17. Liability for failure to show liens or incumbrances. 

18. Measure of damages against abstractee. 

19. Actual damages sustained. 

20. Limiting liability of an abstracter. 

21. Liability of public officers examining title. 

22. To whom an abstracter may be liable. 

23. When right of action accrues. 

24. Pleadings in action against abstracter. 

25. Agreement to furnish abstract. 

26. Duty to furnish abstract irrespective of agreement. 

27. Contract by broker to furnish abstract. 

28. Requiring abstracts of parties to real actions. 

29. Abstract where records destroyed. 

30. Property in the abstract. 

31. Delivery of abstract. 

32. Tender of abstract after expiration of agreed time. 

33. Merger in deed of contract to deliver abstract. 

34. Waiver of objections to title by taking possession. 

35. Time in which to examine abstract. 

36. Taxation of abstract books. 

CHAPTER II 

ESTATES, INTERESTS AND RIGHTS IN REAL PROPERTY 
SEC. 

40. Estates defined and distinguished. 

41. General classification of estates. 

42. Estates in fee simple. 

43. Modified fees. 



vi TABLE OF CONTENTS 



44. Conditional fees at common law. 

45. Creation of. fee simple estate by deed. 

46. Creation of fee simple estate by will. 

47. Limitations and restrictions in transfers of fee simple estates. 

48. Estates in fee tail. 

49. Life estates. 

50. Estates for years. 

51. Estates at will. 

52. Estates at suflrance. 

53. Estates from year to year. 

54. Estates upon condition. 

55. Estates upon limitation. 

56. Estates upon conditional limitation. 

57. Legal and equitable estates. 

58. Uses. 

59. Trusts. 

60. Powers. 

61. Easements. 

62. Licenses. 

63. Profits a prendre. , 

64. Curtesy. 

65. Dower. 

66. Homestead. 

67. Widow's quarantine. 

CHAPTER III 

TITLE TO REAL ESTATE IN GENERAL 
SEC. 

70. Title defined and distinguished. 

71. Various estates to which title relates. 

72. Allodial titles. 

73. Color of title. 

74. Legal and equitable titles. 

75. Complete, perfect, good and clear titles. 

76. Bad, defective, imperfect, and doubtful titles. 

77. Marketable titles. 

78. Evidences of title. 

79. Title insurance. 

CHAPTER IV 

METHODS OF ACQUIRING TITLE 

SEC. 

85. Title by descent and by purchase. 

86. Title by descent based on laws of inheritance. 

87. Common-law canons of descent. 

88. Rules of descent under the civil law. 

89. Consanguinity and affinity. 

90. Fact of death. 

91. Fact of intestacy. 

92. Title by purchase classified. 

93. Title by private deed. 

94. Official grants. 

95. Public grants. 

96. Devise. 

97. Title by estoppel in general. 

98. Estoppel by record. 

99. Estoppel by deed. 



TABLE OF CONTENTS Vll 

100. Estoppel in pais. 

101. Relation. 

102. Prescription and limitation. 

103. Accretion and alluvion. 

104. Title to riparian lands. 

105. Dedication. 

106. Confirmation. 

107. Occupancy. 

108. Abandonment. _ 

109. Eminent domain. 

110. Title and rights acquired by condemnation. 

111. Escheat. 

112. Confiscation. 

113. Forfeiture. 

CHAPTER V 

, THE PUBLIC RECORDS 
SEC. 

lis. Public records generally. 

116. Style of office under which recording is done. 

117. What constitutes recording. 

118. Object of recording acts. 

119. Particular instruments which may be recorded. 

120. Proper execution and acknowledgment as a prerequisite to recording. 

121. Books in which instruments must be recorded. 

122. Time of recording. 

123. Time allowed by statute for recording deeds and other instrument^. 

124. Place of recording. 

125. Effect of a record duly made. 

126. The doctrine of notice. 

127. Actual notice. 

128. Implied notice. 

129. Constructive notice. 

130. Official tract indexes. 

131. General index of records. 

132. Whether the index is a part of the record. 

133. Records of attachment and lis pendens. 

134. Index of judgment records. 

135. Tax records. 

136. Records of vital statistics. 

137. Abstracters' use of public records. 

138. Loss or destruction of records. 



CHAPTER VI 

abstracter's INDEXES AND REFERENCE BOOKS 
SEC. 

145. Importance of indexes and reference books. 

146. The government tract book. 

147. Surveyor's field notes. 

148. Books of original entries. 

149. Instrument number index. 

150. The tract index. 

151. Index of irregulars. 

152. Index of tax sales. 

153. Index of judgments. 

154. Miscellaneous indexes and reference books. 



Viii TABLE OF CONTENTS 

CHAPTER VII 

COMPILATION OF AN ABSTRACT 

SEC. 

160. Introductory remarks. 

151. Scope and extent of the examination. 

162. Preliminary sketch of chain. 

163. Formal parts of the abstract. 

164. The caption. 

165. Arrangement of the abstract. 

-166. Synopsis of instruments and proceedings. 

167. Fullness of synopsis. 

168. Abstracter's notes. 

169. Exhibiting instruments for reference. 

170. Showing irregular instruments. 

171. Showing mistakes made in transcribing instruments. 

172. Abbreviations. 

173. Preserving copy of abstract. 

174. Abstracter's certificate. 

CHAPTER VIII 

BEGINNING OF TITLE 

SEC. 

180. Inceptive stages of title generally. 

181. Source of title shown by complete chain. 

182. Methods of transfer under government land laws. 

183. Who may acquire title to pubUc lands. 

184. Power of congress to dispose of public lands. 

185. Disposal of state lands. 

186. Direct legislative grants. 

187. Form and construction of direct legislative grants. 

188. Abstracting legislative grant. 

189. Confirmation acts and decrees. 

190. "Transfer by public sale. 

191. Appropriation by private entry. 

192. Nature of entryman's title. 

193. Lands subject to entry. 

194. Statement of the entry. 

195. Receipts, certificates, etc., issued by register or receiver, 

196. Pre-emption. 

197. Pre-emptor's right or title. 

198. Contracts and conveyances before entry. 

199. Graduation acts. 

200. Homestead and free grants. 

201. Nature of rights acquired by homesteader. 

202. Donations and bounty lands. 

203. Land warrants and scrip. 

204. Desert land entries. 

205. Timber and stone lands. 

206. Timber culture claims. 

207. Swamp land grants. 

208. School and university land grants. 

209. Statement where title founded on school land grant. 

210. Grants for internal improvement. 



TABLE OF CONTENTS IX 

211. Initial statement of abstract where title based on grant for internal im- 

provements. 

212. Land grants to railroads. 

213. Grant for public highway. 

214. Private land claims. 

215. Town site entry. 

216. Initial statement of abstract where title obtained through town site 

entry. 

CHAPTER IX 

FEDERAL AND STATE PATENTS 
SEC. 

220. Patents in general. 

221. Necessity of patent to pass title. 

222. Form and requisites of patents. 

223. Delivery, acceptance and recording of patents. 

224. Vahdity of patents. 

225. Patents issued after death of claimant. 

226. Operation and effect of patents. 

227. Construction of patents. 

228. Conclusiveness of patents. 

229. Rescission, cancelation and correction of patents. 

230. Abstracting patents. 

CHAPTER X 

SURVEYS, PLATS AND SUBDIVISIONS 
SEC. 

235. Historical view of government land survey. 

236. Laying off the land into townships. 

237. Laying off the townships into sections. 

238. Subdividing the sections. 

239. PJats and subdivisions. 

240. Maps and plats as evidence. 

241. Effect of reference in descriptions to maps or plats. 

242. Abstracting plat and subdivision. 
■243. Vacation of plat. 

244. Dedication by maps or plats. 

CHAPTER XI 

ASCERTAINMENT OF QUANTITY OF LAND 
SEC. 

250. Computation of land areas and distances. 

251. Tables of measure. 

252. To find the area of a tract in shape of a parallelogram. 

253. To find the area of a triangle. 

254. To find the area of a trapezoid. 

255. To find the area of a trapezium, or any other irregular polygon. 

256. To find the area of irregular-shaped tracts. 

257'. Effect of the use of the words "more or less" in a description. 



X TABLE OF CONTENTS 

CHAPTER XII 

THE FORMAL PARTS OF DEEDS 
SEC. 

260. Formal parts of a deed enumerated and described. 

261. Names and descriptions of parties. 

262. Grantors. 

263. Grantees. 

264. Designating nature and kind of conveyance. 

265. Date of the deed. 

266. Consideration. 

267. Operative words. 

268. Words of inheritance. 

269. Description and boundaries. 

270. Sufficiency of description. 

271. Identification of description by act of the parties. 

272. How description construed. 

273. Recitals in deeds. 

274. Habendum, or the estate created. 

275. Exceptions and reservations. 

276. Conditions precedent and subsequent. 

277. Restrictions as to the use of land. 

278. Covenants for title. 

279. Defective covenants. 

280. Signature to the deed., 

281. Sealing. 

282. Attestation. 

283. Acknowledgment. 

284. Examples of defective acknowledgments. 

285. How acknowledgment shown in abstract. 

286. Delivery. 

287. Registration. 

288. Correcting errors in record, and re-recording. 

289. Ancient deeds. 

290. Technical and particular words and phrases. 

291. Repugnant or conflicting parts of a deed. 



CHAPTER XIII 

GENERAL CLASSIFICATION OF PRIVATE CONVEYANCES 

SEC. 

295. Modern kinds of deeds. 

296. Indentures and deeds poll. 

297. Construction of deeds. 

298. Validity of conveyances. 

299. Warranty deeds. 

300. Abstracting warranty deeds. 

301. Quitclaim deeds. 

302. Abstracting quitclaim deeds. 

303. Deeds with special warranties. 

304. Statutory forms of deeds. 

305. Common-law deeds. 

306. Deed of release. 

307. Deeds of confirmation. 

308. Deeds of surrender. 



TABLE OF CONTENTS XI 

309. Deeds of assignment. 

310. Deeds of defeasance. 

311. Conveyances to take effect in the future. 

312. Deeds conveying base, qualified, and conditional estates or interests. 

313. Conveyances vifith restrictive conditions and covenants. 

314. Conveyances of land in the adverse possession of another. 

315. Fraudulent conveyances. ' 

316. Conveyances subject to incumbrance. 

317. Dedicatory deeds. 

318. Deeds creating resulting trusts. 



CHAPTER XIV 

SPECIAL CLASSES OF PRIVATE CONVEYANCES 
SEC. 

320. Conveyances for the sole and separate use of married women. 

321. Deed to husband and wife. 

322. Conveyances for married women. 

323. Conveyance between husband and wife. 

324. Acknowledgment by married woman. 

325. Release of dower. 

326. Conveyances creating estates in common and in joint tenancy. 

327. Voluntary partition deeds. 

3^8. Conveyances to and by partnerships. 

329. Conveyances to private corporations. 

330. Acknowledgment of corporate deeds. 

331. Conveyances by public and quasi corporations. 
-332. Conveyance by private corporations. 

333. Conveyances by charitable or religious corporations. 

334. Conveyance of an expectancy. 

335. Conveyance by attorney in fact. 

336. Power of attorney to convey. 

33i7. Ratification and revocation of powers of attorney. 

338. Conveyances in trust. 

339. Declaration of trust in deeds. 

340. Revocation of trust. 

341. Death, resignation, or removal of trustee. 



CHAPTER XV 

OFFICIAL CONVEYANCES 
SEC. 

345. Official conveyances generally. 

346. Recitals in official deeds. 

347. Sheriff's deed on execution sale. 

348. Description of premises sold on execution. 

349. Acknowledgment of sheriff's deed. 

350. Construction and operation of sheriff's deeds. 

351. Statutory sheriff's deeds. 

352. Sheriff's deed in execution of decree. 

353. Deeds by masters, commissioners and referees. 

354. Powers and duties of trustees to make conveyances. 

355. Trustee's conveyance of legal title. 

356. Testamentary trust distinguished from power, charge, and estates on 

condition subsequent. 



Xii TABLE OF CONTENTS 



357. Trustees' deeds. 

358. Mortgagee's deed under power of sale. 

359. Executor's deed. 

360. Administrator's deed. 

361. Administrator with the will annexed. 

362. Guardian's deed. 

363. Fiduciaries purchasing at their own sales. 

364. Caveat emptor as applied to judicial and ministerial sales. 



CHAPTER XVI 

ASSIGNMENTS AND BANKRUPTCY 

SEC. 

370. Assignments generally. 

371. Voluntary assignments for the benefit of creditors. 

372. Validity of assignments. 

373. Formal requisites of assignments. 

374. Assignee's title. 

375. Construction, operation, and effect of assignments. 

376. What laws govern. 

377. Bankruptcy and insolvent laws. 

378. Jurisdiction and procedure prior to adjudication. 

379. Voluntary and involuntary bankruptcy. 

380. The petition, process, etc. 

381. Effect of adjudication in bankruptcy. 

382. Procedure after adjudication. 

383. Abstracting bankruptcy proceedings. 

384. Deed of trustee in bankruptcy. 

385. Discharge in bankruptcy. 

CHAPTER XVn 

CONTRACTS TO SELL AND CONVEY REAL ESTATE 
SEC. 

390. Land contracts and bonds for deed. 

391. Relation of vendor and vendee under contract or bond for deed. 

392. Title or interest of vendor and vendee. 

393. Formal requisites. 

394. Record of contract of sale. 

395. Construction of the contract. 

396. Abstracting the contract. 

397. Assignment of contract. 

398. Agreement as to title and its performance. 

399. Forfeiture of contract of sale. 

400. Title bond. 

401. Agreement to devise real estate. 

CHAPTER XVni 

LEASES 



SEC. 

405. Leases defined and distinguished. 

406. Formal parts of leases. 

407. Covenants in leases. 

408. Assignments of lease. 



TABLE OF CONTENTS XIU 

CHAPTER XIX 

MORTGAGES 

SEC. 

415. Definition, origin, and nature of mortgages. 

416. Legal and equitable theory of mortgages. 

417. Equitable mortgages. 

418. Mortgages distinguished from other transactions. 

419. Absolute deed as mortgage. 

420. Equity of redemption. 

421. Form of mortgage in general. 

422. Description of the parties. 

423. Description of the premises. 

424. Description of the debt secured or obligation to be performed. 

425. Covenants of a mortgage generally. 

426. Special covenants and conditions. 

427. Estoppel of mortgagor subsequently acquiring title. 

428. Merger as applied to mortgages. 

429. Payment or discharge of mortgage. 

430. Purchase-money mortgages. 

431. Mortgages of the homestead. 

432. Mortgages of after-acquired property. 

433. Record of mortgages. 

434. Possession as notice. 

435. Correction of errors in record and re-recording mortgage. 

436. Assignment of mortgages and deeds of trust. 

437. Form, requisites, and method of assignment. 

438. Record of assignments of mortgages. 

439. Equitable assignments of mortgages. 

440. Abstracting mortgage and assignment of mortgage. 

441. Trust deeds. 

442. Power of sale in a mortgage or deed of trust. 

443. Release or satisfaction of record. 

444. Foreclosure by entry and possession. 

445. Foreclosure by writ of entry. 

446. Foreclosure by exercise of power of sale. 

447. Foreclosure by equitable suit. 



CHAPTER XX 

WILLS 

SEC. 

450. Introductory remarks. 

451. Nature of title acquired by will. 

452. Wills and related words defined. 

453. Distinguishing characteristics of a will. 

454. Kinds of wills. 

455. Codicils. 

456. What laws govern devises. 

457. Capacity to make a will. 

458. Capacity to take under a will. 

459. Construction of wills. 

460; False, erroneous, conflicting, and repugnant descriptions. 

461. Repugnant provisions and conditions. 

462. Void conditions and provisions. 

463. Operative words of a will. 



Xiv TABLE OF CONTENTS 

464. Words of purchase and limitation. 
.465. Rule in Shelley's Case. . 

466. How particular words and phrases are interpreted. 

467. Words passing real estate. 

468. Estates in remainder. 

469. Executory devises. , 

470. Gifts of the use, possession, rents, profits, and income of real property. 

471. Devise to a class. 

472. Devise of life estate with power of disposition. 

473. Devise charged with payment of debts, legacies, and support. 

474. Devise on condition precedent or subsequent. 

475. Conditional Umitations. 

476. Gifts over on death of beneficiary or death without issue or heirs. 

477. Conditions restraining marriage. 

478. Conditions against alienation. 

479. Devise to separate use of married woman. 

480. Devises in trust. 

481. Designation of the devisee. 

482. Perpetuities. 

483. Lapsed devises. 

484. Equitable conversion. 

485. Residuary devises. 

486. Revocation of wills. 

487. Form and language of wills. 

488. Abstracting the will. 

489. Method of abstracting will and proof of probate. 

490. Example of an abstract of a will. 

491. Probate of wills. 

492. Effect of probate. 

493. Probate of foreign wills. 

494. Abstracting probate proceedings. 



CHAPTER XXI 

MISCELLANEOUS INSTRUMENTS AFFECTING TITLE 

SEC. 

500. General considerations. 

501. Municipal ordinances. 

502. Approval and publication of ordinances. 

503. Operation and effect of ordinances. 

504. Resolutions of municipal bodies. 

505. Official certificates. 

506. Easements and servitudes. 

507. Party-wall agreements. 

508. Letters, receipts and memoranda. 

509. Affidavits. 

510. Unrecorded evidence. 



CHAPTER XXn 

LIENS AND INCUMBRANCES 
SEC. 

515. Liens defined and classified. 

516. Equitable liens generally. 

517. Statutory liens. 



TABLE OF CONTENTS XV 



518. Operations and effect of liens. 

519. How liens exhibited in abstract. 

520. Mortgage liens. 

521. Dower rights as liens. 

522. Judgment and execution liens. 

523. Attachment not strictly a lien. 

524. The lien of decedent's debts. 

525. Liens arising under devises. 

526. Liens for taxes. 

527. Lien of municipal or corporation taxes. 

528. Lien of officials' bonds. 

529. Lease not strictly a lien. 

530. Grantors' or vendors' liens. 

531. Vendee's implied lien for purchase-money. 

532. Liens arising under trusts. 

533. Mechanics' liens in general. 

534. Mechanics' liens of subcontractors. 

535. Priority of mechanics' liens. 

536. Estates or property subject to mechanics' liens. 

537. Assignment of a mechanic's lien. 

538. Assertion and enforcement of mechanics' liens. 



CHAPTER XXIII 

LIS PENDENS AND ATTACHMENTS 
SEC. 

545. The doctrine of lis pendens. 

546. Proceedings to which doctrine applies. 

' 547. Commencement and duration of lis pendens. 

548. Elements necessary to constitute a lis pendens. 

549. Statutory provisions for record. 

550. Requisites of a valid notice. 

551. Persons charged with notice. 

552. Attachment. 

553. Proceedings to procure attachment. 



• CHAPTER XXIV , 

JUDGMENTS AND DECREES 
SEC. 

560. Judgments in general. 

561. Effect of judgments and decrees. 

562. Lien of judgments. 

563. Territorial extent of lien. 

564. Duration of judgment lien. 

565. Rank and priority of lien. 

566. Property or interest liable to lien. 

567. Docketing, indexing and recording judgments. 

568. Requisites as to form of judgments. 

569. Points to be noticed in the examina:tion of a judgment record. 

570. Judgment against deceased party. 

571. Judgments against infants and insane persons. 

572. Exemption of real estate from judgments. 

573. Satisfaction and discharge of judgments. 

574. Decrees in general. 



XVI TABLE OF CONTENTS 

575. Operation and effect of decrees. 

576. Effect of decree in the absence of personal service. 

577. Lien of decrees. 

578. Form of decrees. 

579. Abstracting the decree. 

580. Effect of misnomer of parties generally. 

581. Effect of error or omission of middle name or initial. 

582. Doctrine of idem sonans. 

583. Operation and effect of decrees of probate courts. 

584. Foreign judgments and decrees. 



CHAPTER XXV 

JUDICIAL SALES 

SEC. 

590. Judicial sales defined and distinguished. 

591. Validity and effect of judicial sales. 

592. Purchaser's title under judicial sale. 

593. Rights of purchaser at judicial sale. 

594. Rights of grantee of purchaser. 

595. Refusal to complete purchase. 

596. Order confirming the sale. 

597. Effect of confirmation. 

598. Certificate of purchase at judicial sale. 

599. Proof of title under judicial sales. 

600. Presumptions pertaining to judicial sales. 

601. Sales under orders and decrees of probate courts. 

602. Probate procedure to sell real estate. 

603. How probate sales shown in abstract. 



CHAPTER XXVI 

EXECUTION SALES 
SEC. 

610. Execution sales defined and distinguished. 

611. Validity and effect of execution sales. 

612. Title under execution sale. 

613. When title vests in purchaser at execution sale. 

614. The writ of execution. 

615. Levy and return of execution. 

616. Notice of sale. 

617. Proof of publication of notice. 

618. Effect of death of judgment plaintiff on defendant before execution. 

619. Exemption of real estate from execution. 

620. Effect of execution sale on dower rights. 

621. Certificate of purchase at execution sale. 

622. Assignment of officer's certificate. 

623. Proof of title under execution sale. 



TABLE OF CONTENTS XVU 

CHAPTER XXVII 

TAXES AND TAX TITLES 



SEC. 

630. Taxes and taxation in general. 

631. Property subject to taxation. 

632. The tax lien. 

633. Tax titles. 

634. Assessment of taxes. 

635. Description of land in assessment roll. 

636. The tax sale. 

637. Collection by proceedings of forfeiture. 

638. Who may be purchaser at tax sale. 

639. Rights of purchaser at tax sale. 

640. Redemption from tax sale. 

641. Certificate of purchase at tax sale. 

642. The tax deed. 

643. Formal parts of the deed. 

644. Tax deeds as evidence in support of title. 

645. Legislation to strengthen tax titles. 

646. Judgment for taxes. 

647. Local assessments. 



CHAPTER XXVIII 

ACTIONS AND PROCEEDINGS AFFECTING TITLE TO REAL ESTATE 
SEC. 

650. Jurisdiction in general. 

651. Legal or equitable jurisdiction. 

652. Jurisdiction in rem. and jurisdiction in personam. 

653. Probate jurisdiction. 

654. Lands in another county or in several counties. 

655. Lands in another state. 

656. Jurisdiction of particular actions. 

657. Record of equitable proceedings as notice. 

658. Process. 

659. Style and contents of process. 

660. Service of the process. 

661. Service by publication. 

662. Return and proof of service. 

663. Effect of appearance without process. 

664. Reports of referees and masters in chancery. 

665. Verdicts. 

666. Abstracting equitable proceedings. 

667. Injunctions. 

668. Ejectment. 

669. Action to quiet title. 

670. Partition. 

671. Action for specific performance. 

672. Redemption by bill in equity. 

673. Rescission and cancellation. 

674. Foreclosure in equity. 

675. Assignment of dovv^er. 

676. Divorce proceedings. 

677. Condemnation proceedings. 

678. Construction of wills. 



XVlll TABLE OF CONTENTS 

CHAPTER XXIX 

ADVERSE TITLE 

SEC. 

685. General considerations. 

686. Instruments affecting title adversely.' 

687. Adverse possession in general. 

688. Color of title. _ 

689. Actual possession. 

690. Constructive possession. 

691. Tacking possessions. 

692. How far possession is notice. 

693. Estates or property subject to adverse possession. 

694. Who may acquire title by adverse possession. 

695. Adverse title against reversioners and remaindermen. 

696. Title by adverse possession between cotenants and joint owners. 

697. Persons under legal disability. 

698. Adverse title against state or municipality. 

699. Effect of adverse possession. 

700. Evidence in support of title by adverse possession. 



CHAPTER XXX 

TITLE BY DESCENT 
SEC. 

705. General considerations. 

706. Civil death — Casting descent by imprisonment for life. 

707. Ancestors. 

708. Ancestral estates. 

709. When seisin of ancestor essential. 

710. Per stirpes and per capita. 

711. Taking by representation. 
71.2. Issue. 

713. Descendants. 

714. Heirs. 

715. Forced heirs. 

716. Surviving spouse as heir. 

717. Children and children's children. 

718. Adopted children. 

719. Illegitimate children. 

720. Pretermitted children. 

721. Posthumous children. 

722. Property subject to descent. 

723. Devolution of real property to heir. 

724. What laws govern. 

725. Lines of descent. 

726. Computing degrees of kindred. 

727. Descent of estates of minors not having been married. 

728. Brothers and sisters. 

729. Next of kin. 

730. Kindred of the half-blood. 

731. Inheritance by parents of intestate. 

732. Inheritance by and through aliens. 

T33. Right of persons causing death of intestate to inherit his property." 

734. Descent of estate of devisee who dies before testator. 

735. Release of expectant share to ancestor. 



TABLE OF CONTENTS XIX 



736. Inheritance liable for debts of decedent. 
HI. Advancements. 

738. Proof of heirship. 

739. Proof of death of ancestor. 

740. Proof of birth and legitimacy. 

741. Abstract of descents. 



CHAPTER XXXI 

PERUSAL OF ABSTRACT AND OPINION OF TITLE 

SEC. 

745. Precautionary measures against insertion of pages after examination. 

746. Perusing abstract. 

747. Making memoranda. 

748. Examining the muniments of title. 

749. Beginning point of examination. 

750. Printed copies of abstracts. 

751. Government Land Receiver's receipt. 

752. Patent from the federal government. 

753. Patent from state government. 

754. Private deeds. 

755. Acknowledgments. 

756. Official deeds. 

757. Trust deeds and mortgages. 

758. Deed of release. 

759. Deed executed under power of attorney. 

760. Dedications. 

761. Sale under foreclosure. 

762. Judicial sales. 

763. Tax sales. 

764. Sales by executors, administrators, and guardians. 

765. Wills. 

766. Descents. 

767. Contract of sale. 

768. Judgment liens. 

769. Mechanic's liens. 

770. Miscellaneous incumbrances. 

771. Examination of matters in pais. 

772. Examination of abstracter's certificate. 
nz. Opipion of title. 



CHAPTER XXXn 



DIGEST OF STATUTES PERTAINING TO EXECUTION AND ACKNOWL- 
EDGMENT OF DEEDS 

SEC. 

780. Alabama. 

781. Alaska. 

782. Arizona. 

783. Arkansas. 

784. California. 

785. Colorado. 

786. Connecticut. 

787. Delaware. 



TABLE OF CONTENTS 



788. District of Columbia. 

789. Florida. 

790. Georgia. 

791. Hawaii. 

792. Idaho. 

793. Illinois. 

794. Indiana. 

795. Iowa. 

796. Kansas. 

797. Kentucky. 

798. Louisiana. 

799. Maine. 

800. Maryland. 

801. Massachusetts. 

802. Michigan. 

803. Minnesota. 

804. Mississippi. 
80.S. Missouri. 

806. Montana. 

807. Nebraska. 

808. Nevada. 

809. New Hampshire. 

810. New Jersey. 

811. New Mexico. 

812. New York. 

813. North Carolina. 

814. North Dakota. 

815. Ohio. 

816. Oklahoma. 

817. Oregon. 

818. Pennsylvania. 

819. Rhode Island. 

820. South Carolina. 

821. South Dakota. 

822. Tennessee. 

823. Texas. 

824. Utah. 

825. Vermont. 

826. Virginia. 

827. Washington. 

828. West Virginia. 

829. Wisconsin. 

830. Wyoming. 



CHAPTER XXXIII 



DIGEST OF STATUTES OF DESCENT 



SEC. 

835. Alabama. 

836. Alaska. 

837. Arizona. 

838. Arkansas. 

839. California. 

840. Colorado. 

841. Connecticut. 

842. Delaware. 

843. District of Columbia. 

844. Florida. 

845. Georgia. 



TABLE OF CONTENTS 



XXI 



846. 
847. 
848. 
849. 
850. 
851. 
852. 
853. 
854. 
855. 
855. 
857. 
858. 
859. 
860. 
861. 
862. 
863. 
864. 
865. 
866. 
867. 
868. 
869. 
870. 
871. 
872. 
873. 
874. 
875. 
876. 
877. 
878. 
879. 
880. 
881. 
882. 
883. 



Idaho. 

Illinois. 

Indiana. 

Iowa. 

Kansas. 

Kentucky. 

Louisiana. 

Maine. 

Maryland. 

Massachusetts. 

Michigan. 

Minnesota. 

Mississippi. 

Missouri. 

Montana. 

Nebraska. 

Nevada. 

New Hampshire. 

New Jersey. 

New Mexico. 

New York. 

North Carolina. 

North Dakota. 

Ohio. 

Oklahoma. 

Oregon. 

Pennsylvania. 

Rhode Island. 

South Carolina. 

South Dakota. 

Tennessee. 

Texas. 

Utah. 

Vermont. 

Virginia. 

Washington. 

West Virginia. 

Wisconsin. 

Wyoming. 



CHAPTER XXXIV 



DIGEST OF STATUTES OF WILLS 



SEC 

890. Alabama. 

891. Alaska. 

892. Arizona. 

893. Arkansas. 

894. California. 

895. Colorado. 

896. Connecticut. 

897. Delaware. 

898. District of Columbia. 

899. Florida. 

900. Georgia. 

901. Hawaii. 

902. Idaho. 

903. Illinois. 

904. Indiana. 

905. Iowa. 



Xxii TABLE OF CONTENTS 

906. Kansas. 

907. Kentucky. 

908. Louisiana. 

909. Maine. 

910. Maryland. 

911. Massachusetts. 

912. Michigan. 

913. Minnesota. 

914. Mississippi. 

915. Missouri. 

916. Montana. 

917. Nebraska. 

918. Nevada. 

919. New Hampshire. 

920. New Jersey. 

921. New Mexico. 

922. New York. 
92,3. North Carolina. 

924. North Dakota. 

925. Ohio. 

926. Oklahoma. 

927. Oregon. 

928. Pennsylvania. 

929. Philippine Islands. 

930. Porto Rico. 

931. Rhode Island. 

932. South Carolina. 

933. South Dakota. 

934. Tennessee. 

935. Texas. 

936. Utah. 

937. Vermont. 
933. Virginia. 

939. Washington. 

940. West Virginia. 

941. Wisconsin. 

942. Wyoming. 

CHAPTER XXXV 

REGISTRATION OF TITLE UNDER TORRENS SYSTEM 

SEC. 

950. Origin and adoption of Torrens System. 

951. Miscellaneous provisions common to all statutes. 

952. Provisions as to which statutes vary. 

953. Purpose and advantages of title registration. 

954. General principles of registration. 

955. Procedure for registration. 

956. Notice and hearing. 

957. Decree and certificate of title and incumbrances. 

958. Conclusiveness of certificates. 

959. Subsequent dealings with the land appear on the registry. 

960. Acquiring title to registered land by adverse possession. 

961. Transmission of title on death of owner of registered land. 

962. Constitutionality of acts. 



TABLE OF GASES 



[References are to Sections.] 



Abbott V. Frost, 185 Mass. 398 639 

V. Holway, 72 Maine 298 311 

V. Lindenbower, 42 Mo. 162 644 

Abdil V. Abdil, 26 Ind. 287 660 

Abeel v. Hubbell, 52 Mich. 37 52 

Abel V. Abel, 201 Pa. 543 466 
Aberaman Iron Works v. Wickens, L. 

R. 4 ch. 101 531 

Abney v. De Loach, 84 Ala. 393 718 

V. Ohio Lumber &c. Co., 45 W. Va. 

446 330 

Abraham v. Mayer, 7 Misc. (N. Y.) 

250 121 
Abrams v. State, 45 Wash. 327 HI 
Acer V. Westcott, 46 N. Y. 384 118, 129 
Acker v. Trueland, 56 Miss. 30 66 
Acord V. Western Pocahontas Corpora- 
tion, 156 Fed. 989 669 
Acreback v. Myer, 165 Mo. 685 66 
Adair v. Craig, 135 Ala. 332 96, 453 
V. Davis, 71 Ga. 769 123 
V. Lott, 3 Hill (N. Y.) 182 64 
Adam v. McClintock, 21 N. Dak. 483 427 
Adams v. Adams, 154 Mass. 290 466 
V. Akerlund, 168 111. 632 714 
V. Betz, 167 Ind. 161 434 
V. Buchanan, 49 Mo. 64 349 
V. Buhler, 131 Ind. 66 116, 121 
V. Bmke, 3 Sawy. (U. S.) 415 202 
V. Burton, 43 Vt. 36 62 
V. Clark, 48 Fla. 205 66 
V. Edgerton, 48 Ark. 419 120 
V. Frothingham, 3 Miss. 352 227 
V. Hartzell, 18 N. Dak. 221 376 
V. Hayden, 60 Tex. 223 124 
V. Hopkins, 144 Gal. 19 70 
V. Keflogg, 63 Mich. 105 315 
V. Mclntyre, 22 N. Dak. 337 419 
V. Medsker, 25 W. Va. 127 262, 280 
V. Merrill, 45 Ind. App. 315 45 
V. Parker, 12 Gray (Mass.) 53 437 
V. Pratt, 109 Mass. 59 122 
V. Ross, 30 N. J. L. 505 45, 48, 64 
V. Valentine, 33 Fed. 1 277 
Adams Express Co. v. McDonald, 21 

Kans. 680 53 

Addis V. Graham, 88 Mo. 197 138 

Adee v. Campbell, 79 N. Y. 52 711 

Advance Thresher Co. v. Esteb, 41 Ore. 

469 433 

.ffitna Life Ins. Co. v. Corn, 89 III. 

170 428 

v. Eroecker, 166 Ind. 576 416 

V. Hesser, 77 Iowa 381 565, 567, 580 
.Etna Ins. Co. v. Thompson, 68 N.. H. 

20 374 

Ahem v. Freeman, 46 Minn. 156 118 

Aiken v. Bridgeford, 84 Ala. 295 446 

Akers v. Clark, 184 111. 136 462 

Alabama Conference v. Price, 42 Ala. 

39 601 

Alabone's Estate, In re, 75 N. J. Eq. 

527 ' ^ 484 

Albany v. Lynch, 119 Ga. 491 536 

Albee v. Vose, 76 Maine 448 87, 708, 727 

Albin v. Parmele, 70 Nebr. 740 465 

Albefs v. Kozeluh, 68 Nebr. 522 594 



Alcorn v. Morgan, 77 Ind. 184 406 

Alden's Appeal, In re, 93 Pa. St. 182 63 

Alderman v. New Haven, 81 Conn. 137 693 

V. Wells, 85 S. Car. 507 630 

Alderson v. Ames, 6 Md. 52 119 

V. Alderson, 46 W. Va. 242 64 

Aldridge v. Montgomery, 9 Ind. 302 730 

Allemong v. Gray, 92 Va. 216 303 

V. Alexander, 31 Ala. 241 719 

v. Alexander, 156 Mo. 413 474 

V. Howe, 85 Va. 198 590 

V. Jackson, 92 Cal. 514 66 

V. Jones, 64 Iowa 207 337 

V. Mortgage Co. of Scotland, 47 

Fed. 131 417 

V. Owen County, 136 Ky. 420 .575 

Alexander's Estate, In re, 149 Cal. 146 477 
Alexandria &c. F. R. Co. v. Alexandria 

&c. R. Co., 75 Va. 780 677 

Alferitz v. Arrivillaga, 143 Cal. 646 93 

Alford v. McCormac, 90 N. Car. 151 509 
Algonquin Coal Co. v. Northern &c. 

Iron Co., 162 Pa. St. 114 689 

All V. Day, 133 Mo. 337 710 

Allaire v. Allaire, 37 N. J. L. 312 492 

Allen v. Allen, 48 Minn. 462 263 

V. Allen, 121 N. Car. 328 474 

v. Allen, 13 S. Car. 512 737 

V. Atkinson, 21 Mich. 351 35 

V. Austin, 21 R. I. 254 65 

V. Bartlett, 20 W. Va. 46 53 

V. Cadwell, 55 Mich. 8 126 

V. Clark, 7 L. T. N. S. 781 18 

V. Craft, 109 Ind. 476 48, 466 

V. De Groodt, 98 Mo. 159 695 

V. Gates, 73 Vt. 222 434 

V. Hawley, 66 111. 164 66 

V. Hazen, 26 Mich. 142 264, 295, 299 
V. Holton, 20 Pick. (Mass.) 458 301 

V. Hopkins, 62 Kans. 175 12, 14 

V. Hooper, 50 Maine 371 323 

V. Hughes, 106 Ga. 775 338 

V. Lenoir, 53 Miss. 321 324 

V. McCalla, 25 Iowa 464 127 

V. Mandaville, 26 Miss. 397 547 

V. Markle, 36 Pa. St. 117 466 

V. Poole, 54 Miss. 323 128, 545 

Allen's Appeal, 99 Pa. St. 195 86 

Allen-West Commission Co. v. Mill- 
stead, 92 Miss. 837 565 
Allin v. Connecticut River Lumber 

Co., 150 Mass. 560 655 

Ailing V. Nelson, 55 Nebr. 161 578 

Allis V. Field, 89 Wis. 327 691 

Allison V. Allison, 101 Va. 537 714 

V. Kurtz, 2 Watts (Pa.) 185 360 

V. Perry, 130 111. 9 328 

Alma V. Guaranty Sav. Bank, 60 Fed. 

203 504 

Almond v. Bonnell, 76 III. 536 321 

Alsop V. Cowan, 66 Miss. 451 618 

Alston V. Alston, 114 Iowa 29 719 

V. Alston, 4 S. Car. 116 138 

Altgelt V. Mernitz, 37 Tex. Civ. App. 

397 364 

Altringer v. Capeheart, 68 Mo. 441 278 

Altschul V. O'Neill, 35 Ore. 202 75 

Alvis V. Morrison, 63 111. 181 138 



XXlll 



XXIV 



TABLE OF CASES 



[References are to Sections.] 



A. L. & E. F. Goss Co. v. Greenleaf, 



Clemens, 



536 



451 
481 



408 
562 



633 

962 



567 
192 



421 



98 Maine 436 
American Cannel Coal Co, 

132 Ind. 163 
American Dramatic Fund Assn. v. Lett, 

42 N. J. Eq. 43 
American Freehold Land Mortgage Co. 

V. Turner, 95 Ala. 272 
American Ins. Co. v. Gibson, 104 Ind. 

336 
American Inv. Co. v. Beadle, 5 S. Dak. 

410 
American Land Co. v. Zeiss, 219 U. S, 

47 
American Mortgage Co. v. Hill, 92 Ga. 
297 
V. Hopper, 56 Fed. 67 _ 

American Sav. Bank & Trust Co. v. Hel 

gesen, 64 Wash. 54 

American Trust Inv. Co. v. Nashville 

Abstract Co. (Tenn.), 39 S. W. 877 

5, 16 

Ames V. Ames, 46 Ind. App. 597 393 

V. Holmes, 190 111. 561 714 

V. Miller, 65 Nebr. 204 119 

V. Norman, 4 Sneed (Tenn.) 683 321 

Ammidown v. Ball, 8 Allen (Mass.) 

293 290 

Amos v. Amos, 117 Ind. 37 727 

Amsden v. Atwood, 67 Vt. 289 53 

Amy V. Amy, 12 Utah 278 708, 717 

Amy, In re, 12 Utah 278 730 

Anderson v. Baughman, 7 Mich. 69 

120, 297 
V. Burnham, 52 Kans. 454 

688, 689, 698 
V. Gary, 36 Ohio St. 506 47 

V. Casey-Swasey Co. (Tex. Civ. 

App.), 120 S. W. 918 348 

V. Culbert, 55 Iowa 233 431 

V. Culver, 63 Hun (N. Y.) 633 429 

v. Messinger, 146 Fed. 929 

V. Northrop, 30 Fla. 612 

V. Pemberton, 89 Mo. 61 

V. Post (Tenn.), 38 S. W. 283 633, 639 

V. Spriestersbach, 69 Wash. 393 22 

V. Strassburger, 92 Gal. 38 

V. Thompson, 3 Ariz. 62 

V. Tydings, 8 Md. 427 

V. Yoakum, 94 Gal. 227 

Andrews v. Andrews, 8 Conn. 79 

■V. Burdick, 62 Iowa 714 

V. Cone, 124 U. S. 720 

V. Powers, 35 Wis. 644 

V. Spurlin, 35 Ind. 262 

Angus V. Noble, 73 Conn. 56 

Ankeny v. Clark, 148 U. S. 345 

Anson v. Stein, 6 Iowa 150 

Anthony v. Anthony, 55 Conn. 256 

V. Anthony, 161 Mass. 343 
Appeal of Alden, In re, 93 Pa. St. 

182 63 

Baily, In re, 32 Pa. St. 40 583 

Barnett, In re, 46 Pa. St. 392 58 

Bickel, In re, 86 Pa. St. 204 318 

Campbell, 64 Conn. 277 741 

Clark, In re, 70 Conn. 195 58, 456, 584 
Clarke, In re, 79 Pa. St. 376 64 

Churchman, In re, 9 Sad. (Pa.) 423 466 
Deake, In re, 80 Maine 50 456 

De Haven, In re, 38 Pa. St. 373 349 
Dickinson, In re, 42 Conn. 491 719 
Doebler, In re, 64 Pa. St. 9 
Dutch, In re, 57 Pa. St. 461 
Ferguson, In re, 117 Pa. St. 426 
Francis, In re, 96 Pa. St. 200 
Griel, In re, 7 Sad. (Pa.) 137 
Groves, In re, 68 Pa. St. 143 



468 
341 
677 



35 
447 
566 
301 

65 
534 
417 
439 

48 
470 

74 
714 
466 
429 



47 
737 
241 

61 
535 
676 



^■"Gunn,Sn re, 55 Conn. 149 419 

Hacker, In re, 121 Pa.^192 281 

Hayes, In re, 123 Pa. St. 110 654 

Heil, In re, 40 Pa. St 453 582 

Hutchinson, In re, 92 Pa. St. 186 580 

Luch, In re, 44 Pa. St. 519 121 

McCurdy, In re, 65 Pa. St. 290 674 

Neil, In re, 92 Pa. St. 193 719 

Oberholtzer, In re, 124 Pa. St. 583 

Opdyke, In re, 49 Pa. St. 373 719 

Persons, In re, 74 Pa. St. 121 87, 737 

Powers, In re, 63 Pa. St. 443 737 

Rankin, In re, 1 Monag (Pa.) 308 667 

ReifE, In re, 124 Pa. St 145 463 

Ridgway, In re, 15 Pa. St. 177 581 

Russell, In re, 15 Pa. St. 319 119 

Tappan, In re, 52 Conn. 412 474 

Thompson, In re, 101 Pa. St. 225 313 

Varner, In re, 80 Pa. St. 140 59 

Waltemate, In re, 86 Pa. St. 219 719 

Woodcock, In re, 103 Maine 214 466 

Woods, In re, 82 Pa. St. 116 117, 122 

Apel V. Kelsey, 47 Ark. 413 360, 596 

Apperson v. Bolton, 29 Ark. 418 456 

Apple V. Apple, 38 Tenn. 348 86 

Applegarth v. Wagner, 86 Md. 468 374 

Arbour v. Nettles, 12 La. Ann. 217 197 

Armington v. Armington, 28 Ind. 74 730 

Arms V. Burt, 1 Vt. 303 45 

Armstrong v. McCoy, 8 Ohio 128 346 

V. Stovall, 26 Miss. 275 280 

V. McLaughlin, 49 Ind. 370 618 

v. Mudd, 10 B. Mon. (Ky.) 144 297 

V. Vroman, 11 Minn. 220 621 

V. Wilson (Tex. Civ. App.), 109 S. 

W. 955 429 

Armstrong's Estate, In re, 2 Pa. Co. Ct. 

166 487 

Arndt v. Griggs, 134 U. S. 316 652, 962 

Arneson v. Spawn, 2 S. Dak. 269 147 

Arnold v. Alden, 173 111. 229 466 

V. Lincoln, 8 R. I. 384 46 

V. Patrick, 6 Paige ch. (N. Y.) 310 516 

V. Stevenson, 2 Nev. 234 119 

Arrington v. Arrington, 114 N. Car. 

151 128, 545 

Arthur V. Screven, 39 S. Car. 77 120 

V. Weston, 22 Mo. 378 328 

Ashby V. McKinlock, 271 111. 254 

46, 464, 469 
Ashcroft V. Eastern R. Co., 126 Mass. 

196 61, 275, 506 

Ashe V. Yungst, 65 Tex. 631 66 

Asheville Division v. Aston, 92 N. Car. 

578 263, 329 

Ashhurst v. McKinzie, 92 Ala. 484 651 

Aspen v. Rucker, 10 Colo. 184 215 

Astor V. Wells, 4 Wheat. (U. S.) 466 124 
Atcheson v. Broadhead, 56 Ala. 414 420 
Atchinson Sav. Bank v. Wheeler, 20 

Kans. 625 66 

Atchison v. Atchison, 89 Ky. 488 712 

Atherton v. Essex Junction, 83 Vt. 218 631 
V. Fowler, 96 U. S. 513 196 

Atkin V. Merrell, 39 111. 62 65 

Atkins V. Atkins, 18 Nebr. 474 325 

Atkinson v. Miller, 34 W. Va. 115 417 
Atlanta Nat. Bldg. & Loan Assn. v. 

Gilmer, 128 Fed. 293 434 

Atlanta &c. E. Co. v. Atlanta &c. E. 

Co., 125 Ga. 529 240 

V. McHan, 110 Ga. 543 51 

V. McKinney, 124 Ga. 929 93 

Atmore v. Walker, 46 Fed. 429 473 

Atteberry v. Blair, 244 111. 363 5 

Attorney-General v. Delaware &c. E. 

Co., 27 N. J. Eq. 631 214 



TABLE OF CASES 



XXV 



[References are to Sections.l 



Attwater v. Attwater, 18 Beav. 330 47 

Atwood V. Arnold, 23 R. I. 609 620 

V. Beck, 21 Ala. 590 203, 722 

Aucker v. McCoy, 56 Cal. 524 66 

Aukamv. Zantzinger, 94 Md. 421 595 

Auitiillcr V. Dash, 51 Wash. 520 54 

Austin V. Austin, 50 Maine 74 675 

V. Bailey, 37 Vt. 219 723 

V. Barnum, 52 Minn. 136 77 

V. Bristol, 40 Conn., 120 476 

V. Brown, 37 W. Va. 634 695 

V. Chambers. 33 Okla. 40 359 

V. Clifford, 24 Wash. 172 ' 66 

V. Davis, 128 Ind. 472 401 

V. Dolbee, 101 Mich. 292 270 

Avery v. Everett, 110 N. Y. 317 706 

V. Dufrees, 9 Ohio 145 57, 722 

v. Stewart, 136 N. Car. 426 59 

Axman v. Smith, 156 Mo. 286 441 

Ayer v. Philadelphia & Boston B. Co., 

159 Mass. 84 97, 316 

Ayers v. Hays, 60 Ind. 452 439 

V. Eeidel, 84 Wis. 276 687 

V. Roper, 111 Ala. 651 600, 623 

V. Watson, 113 U. S. 594 272 

Ayling v. Kramer, 133 Mass. 12 313 

Ayres v. United States, 42 Ct. CI. (U. 

S.) 385 200 

B 

Baart V. Martin, 99 Minn. 197 

955, 956, 957 
Babbitt V. Day, 41 N. J. Eq. 392 • 65 

Babcock v. Wilson, 17 Maine 372 398 

Bachop V. Critchlow, 142 Pa. St. 518 228 
Bacon v. McBride, 32 Vt. 585 719 

v. Thornton, 16 Utah 138 736 

V. Van Schoonhoven, 19 Hun (N. 

Y.) 158 443 

V. Woodward, 12 Gray (Mass.) 

376 46 

Bacon's Estate, In re, 202 Pa. 535 714 

Bader v. Dyer, 106 Iowa 715 696 

Bagley v. Kennedy, 85 Ga. 703 668 

V. Ward, 37 Cal. 121 615 

Bafinell v. Broderick, 13 Pet. (U. S.) 

436 220 

Bailey v. Bailey, 25 Mich. 185 707 

V. Block (Tex. Civ. App.), 125 S. 

611 
426 
120 
437 
118 
359 
711 
461 
583 
321 
713 
283 
127 



W. 955 
V. Butler, 138 Ala. 153 
V. Galpin, 40 Minn. 319 
V. Gilliland, 2 Kans. App. 558 
171 



V. Myrick, 50 Maine 
V. Rinker, 146 Ind. 129 
V. Ross, 32 N. J. Eq. 544 
V. Sanger, 108 Ind. 264 

Baily's Appeal, In re, 32 Pa. St. 40 

Bains v. Bullock, 129 Mo. 117 

Baker v. Baker, 8 Gray (Mass.) 101 
V. Baker, 239 111. 82 
V. Bliss, 39 N. Y. 70 
V. Bourne, 127 I Ind. 466 87, 710 

V. Central Nat. Bank, 86 Kans. 293 443 
V. Griffin, SO Miss. 158 433 

V. Heiskell, 1 Coldw. (Tenn.) 641 728 
V. Lee, 49 La. Ann. 874 121 

V. Mattocks, Quincy (Mass.) 69 48 

V. Mott, 78 Hun (N. Y.) 141 54 

V. Scott, 62 111. 86 465 

V. Stewart, 40 Kans. 442 321 

V. Woodward, 12 Ore. 3 306 

Baker's Appeal, In re, 107 Pa. St. 
381 487 

Balch V. Arnold, 9 Wyo. 17 99 

V. Johnson, 106 Tenn. 249 718 

V. Stone, 149 Mass. 39 87 



Baldridge v. Cook, 27 Tex. 565 400 

Baldwin v. Bean, 59 Maine 481 46 

V. Hewett, 88 Ky. 673 636 

v. Jenkins, 23 Miss. 206 421 

V. Keith, 13 Okla. 624 201 

V. Ratliff, 125 III. 376 73 

V. Tajlor, 166 Pa. St. 507 62 

Balkema v. .Searle, 116 Iowa 374 27 

Balkum v. Wood, 58 Ala. 642 431 

Ball V. Belden, 59 Tex. Civ. App. 29 399 

V. Chadwick, 46 111. 28 309, 370 

V. First Nat. Bank, 80 Ky. 501 597 

V. Phelan, 94 Miss. 293 459 

V. Tompkins, 41 Fed. 486 480 

Ballard v. Camplin, 161 Ind. 16 709, 734 

V. Carmichael, 83 Tex. 355 262 

V. Child, 46 Maine 152 312 

V. Hunter, 204 U. S. 241 962 

V. Ross, 38 Wash. 209 527 

V. Ward, 89 Pa. St. 358 718 

Ball, In re, 153 Wis. 27 457 

Ballou V. Bergvendsen, 9 N. Dak. 285 27 

Baltimore v. Chester, 53 Vt. 315 706 

V. Fear, 82 Md. 246 244 

V. Williams, 6 Md. 235 127 

Baltimore &c. R. Co. v. Algire, 63 Md. 

319 62 

V. Berkeley &c. R. Co., 168 Fed. 

770 417 

V. Brubaker, 217 111. 462 119 

V. Patterson, 68 Md. 606 44 

V. West, 57 Ohio St. 161 53 

Banbury v. Sherin, 4 S. Dak. 88 53 

Bancroft v. Cambridge, 126 Mass. 438 72 

Banes v. Finney, 209 Pa. 191 730 

Banker v. Caldwell, 3 Minn. 94 

1, 3, 9, 10, 36 
Bank of Ada v. Gullikson, 64 Minn. 

91 287 

Bank of America v. Banks, 101 U. S. 

240 99 

Bank of Dillon v. Murchison, 213 Fed. 

147 378 

Bank of Kentucky v. Haggin, 1 A. K. 

Marsh. (Ky.) 306 122 

Bank of Lemoore v. Fulgham, 151 Cal. 

234 641 

Bank of Mobile v. Dunn, 67 Ala. 381 375 
Bank of Suisun v. Stark, 106 Cal. 202 54 
Bank of U. S. v. Benning, 4 Cr. C. C. 

81 99 

v. Housman, 6 Paige (N. Y.) 526 318 

Banks v. Ammon, 27 Pa. St. 172 120 

V. Lee, 73 Ga. 25 262 

V. Speers, 97 Ala. 560 451, 723 

Bank's Will, In re, 87 Md. 425 469 

Bantley v. Finney, 43 Nebr. 794 509 

Banton v. Shorey, 77 Maine 48 433 

Banzer v. Banzer, 156 N. Y. 429 326 

Barasch v. Kramer, 62 Misc. (N. Y.) 

475 550 

Barbe v. Hyatt, 50 Kans. 86 66 

Barber v. Barber, 17 Hun (N. Y.) 72 359 
V. Brundage, 50 App. Div. (N. Y.) 

123 87 

v. Brundage, 169 N. Y. 368 728 

V. Crowell, 55 Nebr. 571 416 

V. Morris, 37 Minn. 194 662 

V. Pittsburg &c. R. Co., 166 U. S. 

83 ■ 466 

V. Robinson, 78 Minn. 193 688 

V. Rorabeck, 36 Mich. 399 66 

V. Taylor, 9 Dana (Ky.) 84 737 

V. Williams, 74 Ala. 331 67 

Barber Asphalt Pav. Co. v. Hezel, 155 

Mo. 391 647 

Barbieri v. Messner, 106 Minn. 102 100 



XXVI 



TABLE OF CASES 



[References are to Sections}^ 



Barbour v. Nichols, 3 R. I. 187 125 

V. Tompkins, 58 W. Va. 572 575 

Barclay v. Cameron, 25 Tex. 232 714 

V. Piatt, 170 111. 384 468 

Barden v. Grace, 167 Ala. 453 263 

Bardsley v. Hines, 33 Iowa 157 661 

Barke v. Early, 72 Iowa 273 633 

Barkenthein v. People, 77 Misc. (N. 

Y.) 395 956 

Barker v. Flood, 103 Mass. 474 428 

V. Harvey, 181 U. S. 481 189, 214 

V. Muehler, 55 Wash. 411 641 

V. Pearce, 30 Pa. St. 173 721 

Barksdale v. Capital City Realty Co., 

88 Miss. 623 59 

Barlow V. Wainwright, 22 Vt. 88 53 

Barnard v. Bailey, 2 Har. (Del.) 56 47 

V. Barnard, 119 111. 92 718 

V. Brown, 112 Mich. 452 77 

V. Duncan, 38 Mo. 170 355 

V. Gantz, 140 N. Y. 249 281 

Barnard & Leas Mfg. Co. v. Smith, 77 

Ark. 590 516 

Barnes v. Allen, 25 Ind. 222 718, 737 

V. Boardman, 149 Mass. 106 437 

V. Henshaw, 226 111. 605 591 

V. Long Island Real Estate &c. Co., 

88 App. Div. (N. Y.) 83 438 

V. Loyd, 37 Ind. 523 708 

V. Marshall, 102 Mich. 248 480 

V. Morris, 39 N. Car. 22 594 

Barnes' Estate, In re, 47 Okla. 117 724 

Earnett v. Barnett, 104 Cal. 298 48 

V. Barnett, 9 N. Mex. 205 676 

V. Gaines, 8 Ala. 373 34 

V. Wheeler, 7 M. & W. 363 34 

Barnett's Appeal, In re, 46 Pa. St. 392 58 

Barnewall v. Murrell, 108 Ala. 366 487 

Barney v. Dolph, 97 U. S. 652 202 

V. Hays, 11 Mont. 571 455, 487 

V. Keokuk, 94 U. S. 324 104 

V. Lincoln Park, 203 111. 397 62, 317 

V. Little, 15 Iowa 527 120 

V. McCarty, 15 Iowa 510 132 

Barnhizel v. Ferrell, 47 Ind. 335 718 

Barnitz v. Casey, 7 Cranch (U. S.) 

456 725 

Barnum v. Barnum, 42 Md. 241 718, 719 

V. Barnum, 119 Mo. 63 708 

V. Le Master, 110 Tenn. 638 320 

Barr V. Gardner, 259 111. 256 721 

V. Schroeder, 32 Cal. 609 106 

Barre v. Perry, 82 Vt. 301 501 

Barrett v. Cox, 112 Mich. 220 51 

V. Furnish, 21 Ore. 17 618 

V. Hinkley, 124 111. 32 429 

V. Lewis, 106 Ind. 120 530 

V. Prentiss, 57 Vt. 297 132 

Barrett's Will. In re. 111 Iowa 570 46 

Barringer v. Davis (Iowa), 112 N. W. 

208 228 

V. Ryder, 119 Iowa 121 671 

Barron v. Barron, 122 Ala. 194 437, 439 
Barrow v. Baughman, 9 Mich. 213 120 

Barry v. Adams, 3 Allen (Mass.) 493 314 
Barson v. Mulligan, 191 N. Y. 306 91 

Barth v. Backus, 140 N. Y. 230 376 

Barthell v. Syverson, 54 Iowa 160 426 

Bartholomew v. West, 2 Dill (U. S.) 

290 66 

Bartlett v. Bangor, 67 Maine 460 317 

V. Blanton, 4 J. J. Marsh. (Ky.) 

426 287 

Barton v. King, 41 Miss. 288 458 

Bascombe v. Marshall, 129 App. Div. 

(N. Y.) 516 578 

Bass V. Estill, 50 Miss. 300 120, 283 

Bassett v. Bassett, 55 Maine 125 318 



Batchelder v. Dean, 16 N. H. 265 SO 

Batchelor v. Brereton, 112 U. S. 396 262 

Bateman, In re, 11 R. I. 585 324 

Bateman, Petitioner, 11 R. I. 585 284 

Bates V. Brown, 5 Wall. (U. S.) 710 87 

V. Coe, 10 Conn. 280 371 

V. Cotton, 32 Miss. 266 717 

V. Foster, 59 Maine 157 301 

V. Gillett, 132 111. 287 713, 717 

V. Herron, 35 Ala. 117 192, 195 

v. Shrader, 13 Johns. (N. Y.) 260 709 

V. Sparrell, 10 Mass. 323 40 

Bates Mach. Co., In re, 91 Fed. 625 379 

Batjer v. Roberts (Tex. Civ. App.), 

148 S. W. 841 674 

Battery Park Bank v. Loughran, 122 

N. Car. 668 400 

Batty V. Fout, 54 Ind. 482 19, 24 

Bauer v. Glas, 244 111. 627 29 

V. Word, 135 Ala. 430 570 

Baum V. Birchall, 150 Pa. St. 164 395 

Bauman v. Ross, 167 U. S. 548 119 

Baxter v. Bradbury, 20 Maine 260 91 

Bay V. Posner, 78 Md. 42 263, 422 

V. Posner (Md.), 29 Atl. 11 99 

Beach v. Cooke, 28 N. Y. 508 443 

V. Osborne, 74 Conn. 405 433 

V. Shaw, 57 111. 17 446 

Beal V. Blair, 33 Iowa 318 357 

V. Gordon, 55 Maine 482 692 

V. Harrington, 116 111. 113 530 

Beaman v. Whitney, 20 Maine 413 328 

Bean v. Atkins (Vt.), 89 Atl. 643 475 

V. Bean, 163 Mich. 379 61 

V. Kenmuir, 86 Mo. 666 45 

V. People, 7 Colo. 200 137 

Beard v. Allen, 141 Ind. 243 646 

V. Mosely, 30 Ark. 517 708 

Beard's Succession, 14 La. Ann. 121 487 

Beardslee v. Beardslee, 5 Barb. (N. Y.) 

324 65 

Beardsley v. Knight, 10 Vt. 185 327 

Bear Lake County v. Budge, 9 Idaho 

703 " 576 

Bear Lake River Waterv;orks & Irr. Co. 

V. Garland, 164 U. S. 1 432 

Beasley v. Phillips, 20 Ind. App. 185 304 

Seattle v. Crewdson, 124 Cal. 577 434 

V. Dickinson, 39 Ark. 205 392 

V. National Bank, 174 111. 571 581 

V. Whipple, 154 111. 273 138 

Beatty v. O'Harrow, 49 Tex. Civ. App. 

„404 ""^ 645 

Beaver v. Frick Co., 53 Ark. 18 124 

V. Ross, 140 Iowa 154 484 

Bechtel v. Wier, 152 Cal. 443 591 

Becker v. Church, 115 N. Y. 562 314 

Beckett v. Cuenin, 15 Colo. 281 661 

V. Selover, 7 Cal. 215 360, 723 

Beckwith v. Beckwith, 61 Mich. 315 65 

Beebee v. Griffing, 14 N. Y. 235 730 

Beechwood Park Land Co. v. Summit, 

78 N. J. L. 182 677 

Beeman v. Beeman, 88 Hun (N Y.) 

1"* 59 

Beers v. Narramore, 61 Conn. 13 720 

Beidleman v. Koch, 42 Ind. App. 423 418 
Belcher v. Chambers, 53 Cal. 635 652 

Belding v. Texas Produce Co., 61 Ark. 

377 53 

Belford v. Crane, 16 N. J. Eq. 265 623 

Belknap v. Sealey, 14 N. Y. 143 257 

Bell V. Bell 84 Ala. 64 66 

v. Chandler, 23 Ga. 356 611 

V. Dozier, 12 N. Car. 333 708 

V. Duncan, 11 Ohio 192 224, 753 

V. McDuffie, 71 Ga. 264 267. 394 

V. Ohio R. Co., 25 Pa. St. 161 63 



TABLE OF CASES 



XXVU 



[References are to Sections.] 



Bell 

V. Pelt, 51 Ark. 433 417 

V. Redd, 133 Ga. 5 272 

V. Watkins, 104 Ga. 345 473 

V. Woodward, 46 N. H. 315 270 

Bellas V. Lloyds, 2 Watts (Pa.) 401 

125 433 
Bell County v. Felts (Tex. Civ. App.)i 

120 S. W. 1065 611 

Bell County Land & Coal Co. v. Hen- 

drickson, 24 Ky. L. 371 _ 240 

Eellfountain Imp. Co. v. Niedringhaus, 

181 111. 426 272 

Bell, In re, 34 N. Y. S. 191 730 

Bellows V. Cheek, 20 Ark. 424 400 

V. Litchfield, 81 Iowa 36 636 

V. McGinnis, 17 Ind. 64 360 

Belo V. Mayes, 79 Mo. 67 324 

Belton V. Summer, 31 Fla. 139 492 

Bemis v. Plato, 119 Iowa 127 638 

Bender v. Brooks, 61 Tex. Civ. App. 

464 100 

Benedict v. Beurmann, 90 Mich. 396 87 

Benham v. Potter, 52 Conn. 248 503 

Beniost v. Rothschild, 145 Mo. 399 696 

Benjamin v. Cavaroc, 2 Woods (U. S.) 

168 447 

Bennett v. Atlantic Coast Line R. Co., 

126 Ga. 411 108 

V. Davis, 90 Maine 457 279 

V. Harms, 51 Wis. 251 325 

V, Kovarick, 23 Misc. (N. Y.) 73 687 
V. Littlefield, 177 Mass. 294 59 

V. Packer, 70 Conn. 357 477 

V. Robinson, 27 Mich. 26 52 

V. United States Land &c. Co., 16 

Ariz. 138 674 

Benson v. Morrow, 61 Mo. 352 103, 104 

V. Shotwell, 87 Cal. 49 6, 26 

V. Swan, 60 Maine 160 87 

Benson's Estate, In re, 169 Pa. St. 

602 481 

Bent V. Maxwell &c. R. Co., 3 N. Mex. 

(Gild.) 227 654 

V. St. Vrain, 30 Mo. 268 719 

V. Thompson, 5 N. Mex. 408 491 

Bentley v. Cavallier, 121 La. 60 640 

V. Deforest, 2 Ohio 221 309 

V. Napier (Ky. App.), 122 S. W. 

180 272 

Benton v. Sentell, 50 La. Ann. 869 99 

V. Shafer, 47 Ohio St. 117 548 

V. Williams, 202 Mass. 189 52 

Bent's Appeal, 35 Conn. 523 492 

Beranek v. Beranek, 113 Wis. 272 66 

Bercaw v. Cockerill, 20 Ohio St. 163 122 

Bergen v. State, 58 Miss. 623 563 

Beringer v. Lutz, 188 Pa. St. 364 74 

Bernier v. Bernier, 147 U. S. 243 157 

Bernstein v. Humes, 71 Ala. 260 420, 692 

Berry v. Billings, 44 Maine 416 45, 312 

V. Boggess, 62 Tex. 239 392 

V. Potter, 52 N. J. Eq. 664 62 

V. Reed, 73 Ind. 235 563 

V. Seawall, 65 Fed. 742 327 

Eertles v. Nunan, 92 N. Y. 152 321 

Bethany Hospital Co. v. Philippi, 82 

Kans. 64 665 

Bethell v. Bethell, 54 Ind. 428 724 

Betsey v. Torrance, 34 Miss. 132 314 

Bettison v. Budd, 17 Ark. 546 346 

Betts V. Letcher, 1 S. Dak. 182 687 

Betz V. Mullin, 62 Ala. 365 123 

V. Snyder, 48 Ohio St. 492 122 

Beverly v. Waller, 115 Ky. 596 620 

Bickel's Appeal, In re, 86 Pa. St. 204 318 
Bicknell v. Comstock, 113 U. S. 149 226 
Bidleman^v. Brooks, 28 Cal. .72 644 



Biddle v. Ramsey, 52 Mo. 153 667 

Bieber v. Porter, 242 111. 616 669, 678 

Biedler v. Biedler, 87 Va. 300 462 

Bigelow v. Blake, 18 Wis. 520 195 

V. Brewer, 29 Wash. 670 546 

v. Morong, 103 Mass. 287 712 

V. Topliflf, 25 Vt. 273 122 

Bigley v. Jones, 114 Pa. St. 510 128 

Biles V. O. & G. H. R. Co., 5 Wash. 

509 275 

Bill V. Payne, 62 Conn. 140 471, 483 

Billings V. Head, 184 Ind. 361 718 

V. Kothe, 49 Iowa 34 652 

V. Parsons, 17 Utah 22 372 

Billingsley v. Bates, 30 Ala. 376 147 

Bills V. Bills, 80 Iowa 269 472 

Bingham v. Salene, 15 Ore. 208 63 

Bingham's Appeal, 64 Pa. St. 345 456 

Binns v. Dazey, 147 Ind. 536 719 

Bird V. Burgsteiner, 100 Ga. 486 615 

V. Gilliam, 125 N. Car. 76 547 

Birge V. Bock, 44 Mo. App. 69 75 

Birnie v. Main, 29 Ark. 591 430 

Biscoe V. Coulter, 18 Ark. 423 633 

Bishop v. Cook, 13 Barb. (N. Y.) 326 117 

V. Hampton, 11 Ala. 254 721 

v. O'Conner, 69 111. 431 364, 592 

v. Rider, 31 Ohio C. C. 332 729 

v. Schneider, 46 Mo. 472 

120 122 132 
V. Woodward, 103 Ga. 281 ' ' 675 
Bismark Building & Loan Assn. v. Bol- 
ster, 92 Pa. St. 123 566 
Bissell V. Foss, 114 U. S. 252 638 
Bisson V. West Shore R. Co., 143 N. Y. 

125 710 

Bivings v. Gosnell,. 133 N. Car. 574 124 
Bixby v. Smith, 49 How. Pr. (N. Y.) 

50 661 

Bjmerland v. Eley, 15 Wash. 101 583 
Black V. Cartmell, 10 B. Mon. (Ky.) 

188 719 

V. Cartmell, 49 Ky. 188 714 
V. Elkhorn Mining Co., 49 Fed. 

549 63 

V. Hills, 36 III. 376 119 

V. Sharkey, 104 Cal. 279 286 

V. Skinner Mfg. Co., 53 Fla. 1090 124 
V. Tennessee Coal &c. Co., 93 Ala. 

109 73 

Blackborough v. Davis, 1 P. Wms. 41 S6 

Blackburn v. Nelson, 100 Cal. 336 272 

Blacklaws v. Milne, 82 III. 505 717 

Blackman v. Preston, 123 III. 381 311 

v. Wadworth, 65 Iowa 80 734 

V. Wright, 96 Iowa 541 584 
Blacksher Co. v. Northrup, 176 Ala. 

190 456 
Blackstone Bank v. Davis, 21 Pick. 

(Mass.) 42 47 
Blackwell v. Blackwell, 124 N. Car. 

269 291 
Blaine County v. Brewster, 32 Nebr. 

264 109 

Blair v. Blair, 82 Kans. 464 473 

v. Whitaker, 31 Ind. App. 664 125 
Blaisdell v. Portsmouth &c. R. Co., 51 

N. H. 483 62 

Blake v. Blake, 85 Ind. 65 710 

V. Fash, 44 111. 302 265 

V. Jones, 7 Mass. 28 663 

Blake's Estate, In re, 134 Pa. St. 240 473 

Blalock V. Miland, 87 Ga. 573 282 

Blanchard v. Floyd, 93 Ala. 53 263, 328 
Blanton v. Nunley, 55 Tex. Civ. App. 

427 640 

Blatchley v. Osborn, 33 Conn. 226 127 



XXVlll 



TABLE OF CASES 



[References are to Sections.] 



Bledsoe V. Fitts, 47 Tex. Civ. App. 

578 722 

Bleecker v. Hennion, 23 N. J. Eq. 

123 67 

Blinn V. Schwartz, 177 N. Y. 252 307 

Bliss V. Tidrick, 25 S. Dak. 533 120 

Bloch V. Ryan, 4 App. Cas. (D. C.) 

283 ' rr , ^g ^^ 

Blodget V. Brinsmaid, 9 Vt, 27 ' 89 

Blodgett V. Sioux City & St. P. R. 

Co., 63 Iowa 606 27 

Blondeau v. Slieridan, 81 Mo. 545 506 

Blood V. Blood, 23 Pick. (Mass.) 8 120 
V. Light, 38 Cal. 649 615 

Bloom V. Van Rensselaer, 15 111. 503 442 
Blose V. Bear, 87 Va, 177 572 

Blount V. Walker, 31 S. Car. 13 58 

Bludworth V. Lake, 35 Cal. 255 203 

V. Poole, 21 Tex. Civ. App. 551 351 
Blum V. Robertson, 24 Cal. 127 336 

Blume V. White, (Tex. Civ. App.), Ill 

S. W. 1066 283 

Blumenthal v. Brainard, 38 Vt. 402 128 
Blythe v. Ayres, 96 Cal. 532 719 

Boal V. King, 6 Ohio 11 349 

Board of Education v. Berry, 62 W. 

Va. 433 592 

Board of Health v. Van Hoesen, 87 

Mich. 533 109 

Board of Regents v. Linscott, 30 Kans. 

240 642 

Boas V. Farrington, 85 Cal. 535 25 

Boatman v. Lasley, 23 Ohio St. 614 61 

Boaz v. Swinney, 79 Kans. 332 718 

Bobb V. Barnum, 59 Mo. 394 

262, 346, 360 

V. Woodward, 42 Mo. 482 661 

Boden v. Mier, 71 Nebr. 191 737 

Bodine v. Arthur, 91 Ky. 53 45, 274 

V. Brown, 12 App. Div. (N. Y.) 

335 712, 714 

V. Wayne Title &c. Co., 33 Pa. 

Suoer. Ct. 68 23 

Boe v. Filleul, 26 La. Ann. 126 90 

Boehly v. Mansing, 52 Misc. (N. Y.) 

382 393, 671 

Boeing V. Owsley, 122 Minn. 190 724 

Bogan V. Edinburgh American Land 

Mtg. Co., 63 Fed. 192 183, 196 

Bogard v. Barhan, 52 Ore. 121 270 

Bogardus v. Trinity C^hurch, 4 Paige 

(N. Y.) 178 72 

Boggan V. Somers, 152 N. Car. 390 268 
Boggs v. Fowler, 16 Cal. 559 364 

Bohall v. Dilla, 114 U. S. 47 196 

Bohlman v. Green Bay &c. R. Co., 

4() Wis. 157 677 

Boise City v. Wilkinson, 16 Idaho 

150 192 

Bolard v. Mason, 66 Pa. St. 138 662 

Bolin V. Bolin, 245 III. 613 735, 737 

Bolinger v. Beacham, 81 Kans. 746 87 

Bolles V. Smith, 39 Conn. 217 471 

Boiling V. Tones, 67 Ala. 508 364„ 601 
Bolton V. Branch, 22 Ark. 435 26 

V. London School Board, 7 Ch. Div. 

766 8 

v. Roebuck, 77 Miss. 710 434 

Boltz v. Colsch, 134 Iowa 480 687 

Bonati v. Welsch, 24 N. Y. 157 724 

Bonetti v. Treat, 91 Cal. 223 408 

Bonnell v. Holt, 89 111. 71 663 

Bonner v. Ware, 10 Ohio 465 129, 222 
Bonncy v. Morrill, 52 Maine 252 290 

Booker v. Tarwater, 138 Ind. 385 263, 714 
Boone v. Armstrong, 87 Ind. 168 99, 427 
Booraem v. North Hudson County R. 
Co., 40 N. J. Eq. 557 317 



Booth V. Bradford, 114 Iowa 562 6S6 

V. Clark, 17 How. (U. S.) 322 655 

V. Hoskins, 75 Cal. 271 419 

V. Opel, 244 111. 317 630 

V. Phelps, 8 Wash. 549 36 

Bopp V. Fox, 63 111. 540 ,65 

Borden v. Smith, 20 N. Car. 27 616 

Borders v. Vance, 134 Ga. 85 622 

Boreel v. Lawton, 90 N. Y. 293 278 

Boreham v. Byrne, 83 Cal. 23 66 

Borel V. Rollins, 30 Cal. 408 337 

Borgner v. Brown, 133 Ind. 391 463 

Borst V. Simpson, 90 Ala. 373 54, 276 

Bosley v. Wyatt, 14 How. (U. S.) 

390 '•55 

Boss V. Jordan, 118 Iowa 204 546 

Boston Safe Deposit &c. Co. v. Stich, 

61 Kans. 474 46 

Boswell V. Goodwin, 31 Conn. 74 127 

V. Sharp, 15 Ohio 447 576 

Botsford V. O'Connor, 57 III. 72 721 

Bourke v. Boone, 94 Md. 472 460 

Bourn v. Robinson (Tex. Civ. App.), 

107 S. W. 873 562 

Bouton v. Doty, 69 Conn. 531 424 

Bowden v. Bland, 53 Ark. 53 289 

v. Hadley, 138 Iowa 711 620 

Bowen v. Beck, 94 N. Y. 86 - 296 

V. Chase, 94 U. S. 812 58 

v. John, 201 111. 292 42 

V. Julius, 141 Ind. 310 429 

V. Swander, 121 Ind. 164 644 

Bower v. Cooper, 2 Hare (Eng.) 408 395 

Bowers v. Johnson, 49 N. Y. 432 436 

V. Keesecker, 14 Iowa 301 196 

V. Pomeroy, 21 Ohio St. 184 467 

Bowery Nat. Bank v. Duncan, 12 Hun 

(N. Y.) 405 722 

Bowling V. Bowling (Ky. App.), 118 S. - 

W. 923 350, 612 

V. Breathitt Coal &c. Co., 134 Ky. 

249 669 

Bowman v. Officer & Pusey, 53 Iowa 

640 638 

Bowne V. Wolcott, 1 N. Dak. 415, 497 

191, 192, 279 

Bowser v. Westcott, 145 N. Car. 56 193 

Box V. Goodbar, 54 Ark. 6 373 

Box, In re, 11 Wash, St. 90 595 

Boyce v. Danz, 29 Mich. 146 183 

V. Grundy, 3 Pet. (U. S.) 210 673 

Boyd V. Boyd, 176 111. 40 696 

V. Ellis, 11 Iowa 97 423 

V. Ellis, 107 Mo. 394 646 

V. Redd, 118 N. Car. 680 98 

V. Schlesinger, 59 N. Y. 301 639 

Boylan v. Warren, 39 Kans. 301 137 

Boyle V. John Boyle & Co., 136 App. 

Div. (N. Y.) 367 481 

Boynton v. Rees, 8 Pick. (Mass.) 329 434 
Bozeman v. Bishop, 94 Ga. 459 49 

Bozza V. Rowe, 30 111. 198 595 

Brace v. Superior Land Co., 65 Wash. 

681 430 

Bracken v. McAlvey, 83 Iowa 421 658 

Brackenridge v. Dawson, 7 Ind. 383 345 
Brackett v. Ridlon, 54 Maine 426 42 

Bracklee Co. v. O'Connor, 67 Misc (N. 

Y.) 599 382 

Bradfield v. Newby, 130 Ind. S9 564 

Bradford v. Anderson, 60 Nebr. 368 535 
V. Durham, 54 Ore. 1 644 

Bradlee v. Whitney, 108 Pa. St. 362 127 
Bradley v. Chester Valley R. Co., 36 

Pa. St. 141 358 

v. Dells Lumber Co., 105 Wis. 245 229 
v. Dike, 57 N. J. L. 471 526, 632 

V. Merrill, 88 Maine 319 301, 417 



TABLE OF CASES 



XXIX 



[References are to Sections.] 



Bradley 

V. Richmond, 110 Va. 521 630 

V. Slater, 50 Nebr. 682, 53 

V. Whitesides, 55 Minn. 455 336 

Bradshaw v. Bradbury, 64 Mo. 334 290 

V. Edelen, 194 Mo. 640 220 

Bradt v. Hodgdon, 94 Maine 559 60 

Brady v. Johnson, 75 Md. 445 432 

V. Kreuger 8 S. Dak. 464 66 

Brakken v. Minneapolis &c. R. Co., 

29 Minn. 41 105 

Bramell v. Cole, 136 Mo. 201 472, 653 

Bramlett v. Roberts, 68 Miss. 325 99 

Branch v. Doane, 17 Conn. 402 50 

Brandies v. Atkins, 204 Mass. 471 705 

Branham v. San Jose, 24 Cal. 585 

106, 307 
Brannock v. Magoon, 141 Mo. App. 



316 



59 
643 
267 

67 
322 



346 
602 
202 

100 



Brannon v. Pringle, 94 Miss. 215 
Bransoni v. Studabaker, 133 Ind. 147 

V. Yancy, 16 N. Car. 77 
Brasfield v. Brasfleld, 96 Tenn. 580 
Brattle Square Church v. Grant, 3 

Gray (Mass.) 142, 156 56, 475, 482 

Braun v. Mathieson, 139 Iowa 409 

192, 206, 225 
Bray V. Adams, 114 Mo. 486 

V. Neill. 21 N. J. Eq. 343 
Brazee v. Schofield, 124 U. S. 495 
Breaux v. Hanson Lumber Co., 125 La, 

Ann. 421 . 
Breed v. Osborne, 113 Mass. 318 45, 274 
Breeden v. Moore, 82 S. Car. 534 700 

Brega v. Dickey, 16 Grant's Ch. (N. 

Car.) 494 18 

Breg's Estate, In re, 71 Minn. 11 710, 711 
Breit V. Yeaton, 101 111. 242 263 

Brem V. Lockhart, 93 N. Car. 191 118 

Bremerton Development Co. v. Title 

Trust Co., 67 Wash. 268 15, 22 

Brewer v. Atkeison, 121 Ala. 410 439 

V. Blougher, 14 Pet. (U. S.) 178 

87. 719 
V. State, 59 Ala. 101 
V. Watson, 71 Ala. 299 
Brewster v. Games, 103 N. Y. 556 
V. Ludekins, 19 Gal.' 162 
V. McCall, 15 Conn. 274 
Bridge v. Wellington, 1 Mass. 219 
Bridger v. Exchange Bank, 126 Ga. 821 

545, 547 
Bridges v. Arnold, 37 Iowa 221 

V. Linder, 60 Iowa 190 
Brier V. Traders' Nat. Bank, 24 Wash. 

695 
Briggs V. Greene, 10 R. I. 4S5 
V. Murray, 29 Wash. 245 
V. Sneghan, 45 Ind. 14 
V. Walker, 171 U. S. 466 
Brigham City v. Rich, 34 Utah 130 
Brigham Young Trust Co. v. Wagner, 

12 Utah 1 
Bright V. Buckman, 39 Fed. 243 ' 

120, 433, 551, 692 
Brighton v. White, 128 Ind. 320 651 

Brillhart v. Mish, 99 Md. 447 338 

Brinckerhoff v. Lansing, 4 Johns. Ch. 

(N. Y.) 65 125 

Bringhurst v. Orth, 7 Del. Ch. 178 455 

Brinkman v. Jones, 44 Wis. 498 127, 692 

Bristol V. Atwater, 50 Conn. 402 469 

V. Austin, 40 Conn. 438 708 

Broadwell v. Phillips, 30 Ohio St. 255 99 

Brobst V. Brock, 10 Wall. (U. S.) 519 

Brock V. Frank, 51 Ala. 85 

V. Sawyer, 39 N. H. 547 

V. State, 85 Ind. 397 719 



740 
137 
438 
659 
481 
267 



662 

419 

562 
719 
100 
659 
466 
184 

100 



429 

491, 492 

479 



Brockenborough v. Melton, 55 Tex. 

493 117 

Brockway v. McClun, 243 111. 196 429 

Brodhead v. Reinbold, 200 Pa. 618 399 

Brodie V. Watkins, 31 Ark. 319 278 

Broemsen v. Agnic, 70 W. Va. 106 ' 671 

Broliar v. Marquis, 80 Iowa 49 465 
Brombacher v. Berking, 56 N. J. Eq. 

251 470 

Brooke v. Gregg, 89 Md. 234 668 

Brookfield v. Goodrich, 32 111. 363 122 

Brookhaven v. Baggett, 61 Miss. 383 407 

Brooklin St., In re, 118 Pa. St. 640 244 
Brooks V. Burlington & Southwestern 

R. Co., 101 U. S. 443 ' 535 

V. Garner, 20 Okla. 236 638 

V. Kearns, 86 111. 547 323 

V. Rooney, 11 Ga. 423 346 

V. Woods, 40 Ala. 538 675 

Brosnan v. Kramer, 135 Cal. 36 408 
Brower V. Hunt, 18 Ohio St. 311 

87, 708, 722 

V. Witmeyer, 121 Ind. 83 430 
Brown v. Addison Gilbert Hospital, 155 

Mass. 323 48, 464 

V. Baraboo, 90 Wis. 151 89 

V. Belmarde, 3 Kans. 41 719 
V. Boston & M. R. Co., 106 Maine 

248 671 

V. Bragg, 22 Ind. 122 50 

V. Brown, 41 Ala. 215 583 

V. Brown, 101 Ind. 340 718 

V. Brown, 103 Ind. 23 417 

V. Brown, 133 Ind. 476 670 

V. Brown, 86 Tenh. ?77 652 

V. Brown, 1 D. Chip. (Vt.) 360 730 

V. Bryant, 17 Tex. Civ. App. 454 465 

V. Combs, 29 N. J. L. 36 329 

V. Covilland, 6 Cal. 566 398 
V. Cranberry Iron &c. Co., 59 Fed. 

434 275 

V. Critchell, 110 Ind. 31 - 724 

V. Dickey, 106 Maine 97 281 

V. Farran, 3 Ohio 140 283 

V. Finley, 157 Ala. 424 718 

V. Henry, 106 Pa. St. 262 443 

V. Hitchcock, 173 U. S. 473 207 

V. Hooks, 133 Ga. 345 697 

V. Kayser, 60 Wis. 1 51 

V. Knapp, 54 Mich. 132 137 

V. Knapp, 79 N. Y. 136 525 

V. Lunt, 37 Maine 423 120 

V. Manter, 21 N. H. 528 267 

V. Markham, 56 Fla. 202 52 

V. Morrill, 91 Mich. 29 147 

V. Morrisey, 124 N. Car. 292 693 

V. Norman, 65 Miss. 369 673 

V. O'Brien, 168 Mass. 484 425 

V. O'Connor, 1 Cal. 419 214 

V. Oldham, 123 Mo. 621 699 

V. Pforr, 38 Cal. 550 337 

V. Reeder, 108 Md. 653 297, 338 

V. Renshaw, 5' Md. 67 60 

V. Richards, 17 N. J. Eq. 32 65 

V. Rodgers, 125 Mo. 392 48 
V. Sims, 22 Ind. App. 317 9, 16, 22 

V. Smith, 83 111. 291 52 

V. Stark, 47 Mo. App. 370 678 

V. Steele, 23 Kans. 672 724 

V. Taylor, 62 Ind. 295 710, 737 

V. Throckmorton, 11 111. 529 197 

V. Trent, 36 Okla. 239 434 

V. Veazie, 25 Maine 359 636 

V. Webster, 87 Nebr. 788 723 

V. Whaley, 58 Ohio St. 654 708 
V. Widen flowa), 103 N. W. 158 

7, 77 

V. Wood, 17 Mass. 68 696 



XXX 



TABLE OF CASES 



Browne v. Bowdoinham, 71 Maine 

144 317 

V. Davis, 109 N. Car. 23 443 

Brownell, In re, 60 Hun (N. Y.) 586 443 

Browning v. Harriss, 99 111. 456 431 

Brown, In re, 22 Dkla. 216 720 

Brownsville v. Basse, 36 Tex. 461 221 

Bruce v. Bissell, 119 Ind. 525 87 

v. Mcintosh (Okla.), 159 Pac. 261 727 

V. Patton, 54 Ark. 455 207 

Bruch's Estate, In re, 185 Pa. St. 194 477 

Brumfield v. Drook, 101 Ind. 190 359 

Brunson v. Henry, 140 Ind. 455 59 

Brush V. Ware, 16 Pet. (U. S.) 93 95 

Bryan v. Bliss-Cook Oak Co., 178 Fed. 

217 276 

V. Bradley, 16 Conn. 474 58 

V. Bryan, 62 Ark. 79 65 

V. Harvey, 18 Md. 113 129 

V. Ramirez, 8 Cal. 461 330 

V. Spires, 3 Brewst. (Pa.) 580 55 

V. Uland, 101 Ind. 477 306 

Bryant v. Fairfield, 51 Maine 149 611 

v. Main, 25 Ky. L. 1242 434 

V. Richardson, 126 Ind. 145 443 
Bryant Timber Co. v. Wilson, 151 N. 

Car. 154 550 

Brydolf V. Wolf, 32 Iowa 509 660 

Buchanan v. Balkum, 60 N. H. 406 129 

V. Curtis, 25 Wis. 99 105 

V. International Bank, 78 111. 500 

118, 125 

V. Tennant, 55 Ore. 116 640 
Buckingham v. Buckingham, 81 Mich. 

89 66 

V. Hanna, 2 Ohio 551 97, 99 

V. Jaques. 37 Conn. 402 707 

Bucklen V. Hasterlik, 155 111. 423 6 

Buckley v. Buckley, 11 Barb. (N. Y.) 

43 64 

V. Frasier, 153 Mass. 525 712 

V. Gray, 110 Cal. 339 ' 22 

Bucklin V. Crampton, 20 Vt. 261 553 

Buckncr v, Buckner, 120 Ky. 596 717 

V. Street, 15 Fed. 365 303 

Budd V. Gallier, 50 Ore. 42 193 

Buehler v. McCormick, 169 111. 269 438 

Buell V. Cross, 4 Ohio 327 345 

V. Irwin, 24 Mich. 145 284 

Buffalo V. Harling, 50 Minn. 551 215 

Buffalo Sav. Bank v. Hunt, 64 Misc. 

CN. Y.) 643 565 

Bull V, Coe, 77 Cal. ,54 419 

Bullard V. Barksdale, 33 N. Car. 461 698 
Bullitt V. Eastern Ky. Land Co., 99 Ky. 

324 656 

Bullock V. Rouse, 81 Cal. 590 208 

V. Wallingford, 55 N. H. 619 122 

V. Whipp, 15 R. I. 195 126 

Bumstead v. Cook, 169 Mass. 410 506 

Bunch V. Grave, 111 Ind. 351 428 

V. Nicks, 50 Ark. 367 311 

Burbank v. Wiley, 66 N. Car. 58 578 

Burchinell v. Koon, 25 Colo. 59 371 

Burden v. Taylor, 124 Mo. 12 643 

Burdick v. Wentworth, 42 Iowa 440 192 

Burdis v. Burdis, 96 Va. 81 54, 474 

Burgess V. Hargrove, 64 Tex. 110 717 

Burk V. Johnson, 146 Fed. 209 93 

Burke v. Brown, 148 Mo. 309 639 

V. Burke, 142 Iowa 206 560 

V. Burke, 34 Mich. 451 727 

V. Chamberlain, 22 Md. 298 467 

V. McCowen, 115 Cal. 481 239 

V. Snell, 42 Ark. 57 443 

Burkett V. Clark, 46 Nebr. 466 615 

Burkhard v. Mitchell, 16 Colo. 376 53 



[References are to Sections.] 

Burkitt V. Twyman (Tex. Civ. App.), 



35 S. W. 421 99 

Burleigh V. Clough, 52 N. H. 267 469 

Burlington v. Fosby, 6 Vt. 83 719 

Burnaby v. Equitable Reversionary In- 
terest Soc, 28 Ch. Div. 416 3 
V. Equitable Reversionary Interest 

Soc, 54 L. J. Cb. 466 10 

Burnes v. Burnes, 137 Fed. 781 463 

V. Daviess County Bank & Trust 

Co., 135 Ky. 355 375 

Burnett v. Caldwell, 9 Wall. (U. S.) 

290 391 

v. Wright, 135 N, Y. 543 424 

Burnham v. Farmers' Loan &c. Co., 

44 Nebr. 438 117 

Burnley v. Stevenson, 24 Ohio St. 474 655 
Burns v. Burns (Tex. Civ. App.), 126 

S. W. 333 676 

V. Keas, 21 Iowa 257 66 

V. Scoggin, 16 Fed. 734 426 

v. Tiffer, 49 Okla. 262 717 

v. Travis, 117 Ind. 44 486, 492 

Burnside v. Terry, 45 Ga. 621 421 

V. United Sawmill Co., 92 Ark. 

118 667 

Burr V. Stenton, 43 N. Y. 462 407 

Burris v. Kennedy, 108 Cal. 331 600 

Burt V. Merchants' Ins. Co., 106 Mass. 

356 85, 109 

Burton v. Baxter, 7 Blackf. (Ind.) 

297 437 

V. Tuite, 78 Mich. 363 13 

Burton-Whayne Co. v. Farmers* & Dro- 
vers' Bank, 130 Ky. 389 283 
Burwell v. Jackson, 9 N. Y. 535 299 
Bury V. Young, 98 Cal. 446 311 
Bush V. Bush, 5 Del. Ch. 144 42, 65 
V. Golden, 17 Conn. 594 119, 125 
Bussing V. Grain, 8 B. Mon. (Ky.) 

593 117 

Bussman v. Ganster, 72 Pa. St. 285 406 

Butler V. Fitzgerald, 43 Nebr. 192 620 

V. Merchants Ins. Co., 14 Ala. 777 737 

Butler, In re, 66 Misc. (N. Y.) 406 466 

Butlers v. Stevens, 26 Maine 484 127 

Butterfield v. Beall, 3 Ind. 203 336 

V. Hamant, 105 Mass. 338 487 

V. Sawyer, 187 111. 598 714 

Button V. American Tract Soc, 23 /t, 

336 481 

Butts V. Andrews, 136 Mass. 221 7 

V. Cooper, 152 Ala. 375 328 

Buzard v. Houston, 119 U. S. 347 651 

Buzby V. Roberts, 53 N. T. Eq. 566 471 
Buzon V. Licauco, 13 Philippine 354 957 
Bye V. Atlantic City, 73 N. J. L. 402 501 
Byers v. Byers, 183 Pa. 509 327 

Byington v. Stone, 51 Iowa 317 642 

Byrd v. Belding, 18 Ark. 118 736 

Byrne v. Morehouse, 22 111. 611 196 

Byrnes v. Palmer, IS App. Div. (N. Y.) 
1 16, 19 



Cabell V. Grubbs. 48 Mo. 353 234, 283 

Cadell V. Allen, 99 N. Car. 542 335, 336 

Cadwalader v. Bailey, 17 R. I. 495 61, 63 

Cady v. Barnes, 208 Fed. 361 597 

V. Cady, 67 Miss. 425 483 

V. Eaghmey, 54 Iowa 615 198 

V. Purser, 131 Cal. 552 287 

Cagle V. Parker 97 N. Car. 2'/l 61 

Cagliostro v. Galgano, 69 Misc. (N. Y 1 

321 ■' 421 

Cahill V. Cahill, 75 Conn. 522 668 



TABLE OF CASES 



XXXI 



[References are to Sections.] 



Cairo & Vincennes R. Co. v. Fack- 

ney, 78 III. 116 537 

Calame v. Calame, 24 N. J. Eq. 440 65 
Calder v. Chapman, 52 Pa. St. 359 

8, 99, 121, 126 

Caley v. Portland, 12 Colo. App. 397 408 

Caldwell v. Bush, 6 Wyo. 342 195 

V. Matthewson, 57 Kans. 258 59 

V. Miller, 44 Kans. 12 225 

Caldwell Land & Lumber Co. v. Smith, 

146 N. Car. 199 636 
California Canneries Co. v. Scatena, 

117 Cal. 447 280 
California Domestic Water Co. v. Los 

Angeles County, 10 Cal. App. 185 634 

Calkins V. Miller, 55 Nebr. 601 576 
Call V. Los Angeles-Pacific Co., 162 

Fed. 926 193, 200 

V. Shewmaker, 24 Ky. L. 686 478 

Callaghan, In re, 119 Cal. 571 720 

Callahan v. Davis, 90 Mo. 78 197 
Callahan Co. v. Michael, 45 Ind. App. 

215 407 

Callaway v. Harrold, 61 Ga. Ill 660 

Callerand v. Piot, 241 111. 120 286 

Callicott V. Callicott (Miss.), 43 So. 616 737 
Calumet Canal & Dock Co. v. Russell, 

68 111. 426 126 

Calvo V. Davies, 8 Hun (N. Y.) 222 316 

Camp V. Cleary, 76 Va. 140 55 

V. Shaw, 52 111. App. 241 455 

V. Smith, 2 Minn. (Gil. 131) 155 

196, 198 

Campbell v. Baker, 51 N. Car. 255 598 

V. Brackett, 45 Ind. App. 293 501 

V. Keys, 130 Mich. 127 433 

V. Knights, 26 Maine 224 602 

V. McCahan, 41 111. 45 657 
V. McClure, 45 Nebr. 608 526, 632 
V. Porter, 162 U. S. 478 491, 492 

V. Roach, 45 Ala. 667 128 
V. Southwestern Tel. &c. Co., 108 

Ark. 569 434 

V. Swasey, 12 Ind. 70 663 

V. Vedder, 3 Keys (N. Y.) 174 316 
V. Wiggins, 1 Rice's Eq. (S. Car.) 

10 462 
Campbell's Appeal, 64 Conn. 277 87, 711 

Canfield v. Canfield, 62 N. J. Eq. 578 734 

V. JIard, 58 Vt. 217 66 

Canning v. Fibush, 77 Cal. 196 51 

Cannon v. Williams, 14 Colo. 21 538 

Canton Co. v. Baltimore, 106 Md. 69 698 

Capek V. Kropik, 129 111. 509 66 

Carbine v. Pringle, 90 111. 302 126 
Carbrey v. Willis, 7 Allen (Mass.) 

368 102 

Card V. Dean, 84 Nebr. 4 668 
Cardwell v. Crumley (Tenn.), 35 S. W. 

767 633, 639 
Carey-Lombard Lumber Co. v. Bier- 

bauer, 76 Minn. 434 536 
Carino v. Insular Government, 212 U. 

S. 449 214 

Carlin v. Cavender, 56 Mo. 286 646 

Carlisle v. Carlisle, 78 Ala. 542 283 

Carlson v. Curren, 48 Wash. 249 669 

Carlton v. Byers, 70 N. Car. 691 736 

Carman v. Johnson, 29 Mo. 84 192, 195 

v. Newell, 1 Denio (TST. Y.) 25 89 
Carmichael v. Carmichael, 72 Mich. 

76 401 

Carnall v. Duval, 22 Ark. 136 119, 120 

V. Wilson, 21 Ark. 62 325 
Carner v. Chicago &c. R. Co., 43 

Minn. 375 206 

Games v. Bingham, 134 Ky. 96 727 

Carney v. Hadley, 32 Fla. 344 667 



Carolina Sav. Bank v. McMahon, 37 

S. Car. 309 699 

Carpenter v. BuUer, 8 Mees. & W. 209 99 

V. Mitchell, 54 111. 126 530 

V. Perkins, 83 Conn. 11 466 

v. Plagge, 192 111. 82 447 

V. Sherfy, 71 111. 427 347 

Carpenter's Estate, In re, 170 Pa. 203 733 

Carr v. Dooley, 119 Mass. 294 632 

v. Givens, 9 Bush (Ky.) 679 -64 

V. Roach, 2 Duer. (N. Y.) 20 26 

Carrier v. Eastis, 112 Ala. 474 397 

Carrigan v. Drake, 36 S. Car. 354 465 

V. Rowell, 96 Tenn. 185 108 

Carroll V. Tomlinson, 192 III. 398 419 

Carson v. Fuhs, 131 Pa. St. 256 465 

V. Sheldon, 51 Mo. 436 659 

v. Smith, 5 Minn. 78 95 

V. Smith, 12 Minn. 543 215 

Carter v. Carter, 39 Ala. 579 43 

V. Carter, 234 111. 507 87, 730 

V. Chesapeake &c. R. Co., 26 W. Va. 

644 104 
V. Couch, 157 Ala. 470 64 
V. Goodin, 3 Ohio St. 75 325 
V. Hobbs, 92 Fed. 594 381 
V. Randolph, 47 Tex. 376 108 
V. Ruddy, 166 U. S. 493 221 
V. Wingard, 47 III. App. 296 62 
Carthage Tissue Paper Mills v. Carth- 
age, 200 N. Y. 1 434 
Cartwright v. Ruffin, 43 Colo. 377 393 
Gary v. Whitney, 48 Maine 516 185 
Case V.I Edgeworth, 87 Ala. 203 201 
Casey v. Casey, 107 Iowa 192 696 
V. King, 98 Mass. 503 50 
Cashman v. Cashman's Heirs, 123 Mo. 

647 700 

easier v. Gray, 159 Mo. 588 64 

Casper v. Klippen, 61 Minn. 353 581 

Cass County v. Cowgill, 97 Mich. 448 50 
Cass Farm Co. v. Detroit, 139 Mich. 

318 698 

Cassedy v. Jackson, 45 Miss. 397 314 

Cassidy v. Caton, 47 Iowa 22 426 

V. Woodward, 77 Iowa 354 576 

Caswell V. Black River Mfg. Co., 14 

Johns. (N. Y.) 453 34 
Cathey v. Buchanan Lumber Co., 151 

N. Car. 592 ^ 270 
Catholic Mutual Ben. Assn. v. Firnane, 

50 Mich. 82 721 

Catlin Coal Co. v. Lloyd, 180 111. 398 266 

Catron v. Laughlin, 11 N. Mex. 604 214 
Caujolle V. Ferrie, 26 Barb. (N. Y.) 

177 719 

Cauley v. Sutton, 150 N. Car. 327 638 

Cautley v. Morgan, 51 W. Va. 304 100 

Cave v. Crafts, 53 Cal. 135 506 

Cavender v. Smith, 5 Iowa 157 349 

Caverly v. McOwen, 123 Mass. 574 773 

Caw V. Robertson, 5 N. Y. 125 458 
Cazort & McGehee Co. v. Dunbar, 91 

Ark. 400 424 

Cecil v. Beaver, 28 Iowa 241 286 
Centenary M. E. Church v. Parker, 43 

N. J. Eq. 307 263, 329 
Central Pac. R. Co. v. Beal, 47 Cal. 

151 290 

Cerney v. Pawlot, 66 Wis. 262 443 
C. G. Larned Mercantile, Real Estate 
& Live Stock Co. v. Omaha &c. R. 

Co., 56 Kans. 174 677 

Chace v. Lamphere, 148 N. Y. 206 460 

v. Morse, 189 Mass. 559 446 

Chadbourne v. Sumner, 16 N. H. 129 662 
Chadwick v. Chadwick, 37 N. J. Eq. 

71 483 



XXXll 



TABLE OF CASES 



[References are to Sections.] 



Chaffee v. Fourth Nat. Bank, 71 Maine 

514 376 

Challefoux v. Ducharme, 4 Wis. 554 106 
ChalHss V. Atchison &c. R. Co., 16 

Kans. 117 110 

Chamberlain v. Bell, 7 Cal. 292 120, 288 

Chambers v. Chambers, 249 III. 126 711 

V. Chambers, 227 Mo. 262 266 

V. Chambers, 92 Tenn. 707 321 

V. Haney, 45 La. Ann. 447 124 

Chambers, In re, 44 Fed. 786 13 

Champion v. Hinkle, 45 N. J. Eq. 162 674 

Chancellor v. Windham, 1 Rich. (S. 

Car.) 161 311 

Chandler v. Clark. 151 Mich. 159 639 

V. Hart, 161 Cal. 405 405 

V. Morey, 195 III. 596 595 

V. Von Roeder, 24 How. (U. S.) 

224 315 

Chandos V. Mack, 77 Wis. 573 272 
Chapin v. School Dist. No. 2, 35 N. 

H: 445 475 
Chaolin v. Simmons, 7 T. B. Mon. 

(Ky.) 337 67 

Chapman v. Chapman, 92 Va. 537 65 

V. Dougherty, 87 Mo. 617 70 

V. Hamblet, 100 Maine 454 272 
V. Lee, 55 Ala. 616 26, 30 

V. Polack, 70 Cal. 487 147 

V. Price, 83 Va. 392 64 

V. Schroeder, 10 Ga. 321 65 
V. White Sewing Machine Co., 78 

Miss. 438 66 
Chappell V. Chappell (Ky.), 119 S. W. 

218 47 
V. New York &c. E. Co., 62 Conn. 

195 275 
Charland v. Trustees of Home for Aged 

Women, 204 Mass. 563 643 
Charleroi Timber & Cannel Coal Co. 
V. Spaulding (Ky. App.), 117 S. W. 

291 699 

Charles v. Charles. 8 Grat. (Va.) 486 64 
Charles River Bridge v. Warren Bridge, 

11 Pet. (U. S.) 420 297 
V. Warren Bridge, 7 Pick. (Mass.) 

346 227 
Charleston C. & C. R. Co. v. Leech, 



33 S. Car. 175 
Charlotte v. Pembroke Iron Works, 

Maine 391 
Charter v. Graham, 56 111, 19 
Chase v. Heaney, 70 III. 268 

10. IS, 16, 17 
V. Peck, 21 N. Y. 581 
V. Williams, 71- Maine 190 
V. Woodruff, 133 Wis. 555 
Chase's Case, 1 Bland (Md.) 227 
Chatham v. Bradford, 50 Ga. 327 
Chattahoochie & G. R. Co. v. Pilcher, 

163 Ala. 401 
Chauvin v. Louisiana Oyster Commis- 
sion, 121 La. 10 
Cheely v. Clayton, 110 U. S. 701 
Chenault v. Scott, 23 Ky. L. 1974 
Cheney v. Bilby, 74 Fed. 52 
V. Harding, 21 Nebr. 65 
Cherokee Const. Co. v. Harris, 92 Ark. 

260 
Cherry v. Mitchell, 108 Ky. 1 
Chew V. Hyman, 7 Fed. 7 
V. Kellar, 171 Mo. 215 
V. Tome, 93 Md. 244 
Chicago V. Middlebrooke, 143 HI. 265 
V. Pittsburg &c. R. Co., 146 HI. 

App. 403 
V. Witt, 75 III. 211 



266 



82 
693 
123 

18, 20, 174 

531 

615 

91 

65 

132 



270 

228 
676 
43 
671 
662 

66 

719 
356 
291 
493 
73 

503 
127 



Chicago &c. Rolling Mill Co. v. Scully, 

141 HI. 408 672 

Chicago & N. W. R. Co. «. Garrett, 

239 111. 297 547 

V. Morrison, 195 111. 271 325 

Chicago Dock & Canal Co. v. KinEie, 

93 HI. 415 621 

Chicago, P. & St. L. R. Co. v. Vaughn, 

206 HI. 234 125 

Chicago Terminal T. R. Co. v. Wms- 

low, 216 HI. 166 59 

Chicago &c. R. Co. v. Clapp, 201 III. 

418 110 

V. Keegan, 152 HI. 413 99 

V. Pontiac, 169 HI. 155 109 

Chick V. Rollins, 44 Maine 104 429 

V. Willetts, 2 Kans. 384 416 

Chickering v. Failes, 26 HI. 508 73 

Chidsey v. Brookes, 130 Ga. 218 491, 493 

Chilcott V. Hart, 23 Colo. 40 469, 491 

Childers v. Bumgarner, 53 N. Car. 

297 64 

V. Wm. H. Coleman Co., 122 Tenn. 

109 284 

Childress v. Cutler, ,16 Mo. 24 708 

Childs V. Alexander. 22 S. Car. 169 352 
V. Lanterman, 103 Cal. 387 571 

Chiles V. Conley, 2 Dana (Ky.) 21 299 

Chinoweth v. Haskell, 3 Pet. (U. S.) 

92 185 

Chirac v. Reinecker, 2 Pet. (U. S.) 

613 87 

Chisholm V. Caines, 67 Fed. 285 185 

V. Georgia, 2 Dall. (U. S.) 419 72 

Chittenden v. Hobbs, 9 Iowa 417 660 

Chitty V. Gillett, 46 Okla. 724 736 

Chotard V. Pope, 12 Wheat. (U. S.) 

587 191, 193 

Choteau v. Thompson, 2 Ohio St. 114 

535, 536 
Chowning v. Stanfield, 49 Ark. 87 723 

Christain v. Cabell, 22 Grat. (Va.) 

99 34 

Christal v. Kelly, 88 N. Y. 285 663 

Christopher v. Curtis-Attalla Lumber 

Co., 175 Ala. 484 434 

Christy v. Burch, 25 Fla. 942 118 

V. Dana, 34 Cal. 548 99, 427 

Church V. Adams, 37 Ore. 355 206 

V. Venable, 159 HI. 215 722 

Churchill v. Monroe, 1 R. I. 209 283 

V. Reamer, 8 Bush (Ky.) 256 708 

Churchman's Appeal, In re, 9 Sad. 

(Pa.) 423 466 

Chute V. Washburn, 44 Minn. 312, 46 

N. W. 555 276 

Cihak V. Klehr, 117 III. 643 61 

Cincinnati, I., St. L. & C. R. Co. v. 

Smith. 127 Ind. 461 129 

Citizens' Bank of Stanton v. Young, 

78 Nebr. 312 134 

Citizens' Nat. Bank v. Abbott, 72 Wash. 

73 447, 654 

V. Dayton, 116 III. 257 120 

Citizens' Sav. Bank v. Bauer, 49 Hun 

(N. Y.) 238 596 

Citizens' State Bank f, Harris, 149 

Ind. 208 619 

City Loan & Banking Co. v. Poole, 149 

Ala. 164 393 

Clabaugh v. Byerly, 7 Gill (Md.) 354 125 
Claflin V. Dunne, 129 III. 241 570 

Clairborne v. Holmes, 51 Miss. 146 123 

V. Holland, 88 Va. 1046 355 

Glamorgan v. Lane, 9 Mo. 446 119, 122 
Clancey v. Houdlette, 39 Maine 451 104 
Clapp V. Boston, 133 Mass. 367 62 



TABLE OF CASES 



xxxni 



[References are to Sections.] 



Clark V. Baker, 14 Cal. 612 42 

, V. Campau, 92 Mich. S73 690 

V. Clark, 84 Hun (N. Y.) 362 65 

V. Clark, 56 N. H. 105 321 

V. Condit, 18 N. J. Eq. 358 442 

V. Cox, lis N. Car. 93 710 

V. Farrow, 10 B. Mon. (Ky.) 446 546 
V. Fuller, 39 Conn. 238 128 

V. Gilbert, 39 Conn. 94 694 

V. Glidden, 60 Vt. 702 61 

V. Hall, 19 Mich. 356 192 

V. Henne, 127 Fed. 288 380 

V. Hillis, 134 Ind. 421 360, 617 

V. Holland, 72 Iowa 34 129 

V. Kingsley, 37 Hun (N. Y.) 246 737 
V. Kirkland, 64 Misc. (N. Y.) 585 634 
V. Kittenplan, 63 Misc. (N. Y.) 122 466 
V. Landon, 90 Mich. 83 419 

V. Lumbert, 55 W. Va. 512 99 

V. Mack, 161 Mich. 545 466, 729 

V. Marlow, 149 Ind. 41 473 

V. Miller, 65 Kans. 726 458 

V. Muzzey, 43 N. H. 59 675 

V. Neumann, 56 Nebr. 374 399 

V. Northern Coal &c. Co., 33 Ky. 

L. 1047 263 

V. Sawyer, 48 Cal. 133 347 

V. Shailer, 46 Conn. 119 707, 708 

V. Thias, 173 Mo. 628 66 

V. Titus, 2 Ariz. 147 215 

V. Way, 11 Rich. (S. Car.) 621 290 
V. Wilson, 53 Miss. 119 60 

Clark & Leonard Inv. Co. v. Way, 52 
Nebr. 204 592 

Clarke v. Clarke, 178 V. S. 186 456, 584 
V. White, 12 Pet. (U. S.) 178 123 

Clarke's Appeal, In re, 79 Pa. St. 376 64 

Clark's Appeal, In re, 70 Conn. 195 

58, 456, 584 

•Clarkson v. Clarkson. 125 Mo. 381 48 

V. Hatton, 143 Mo. 47 712, 718 

V. Louderback, 36 Fla. 660 537 

Clary v. Watkins, 64 Nebr. 386 711 

Clason V. Shepherd, 6 Wis. 369 119 

Classen v. Chesapeake Guano Co., 81 
Md. 258 62 

Clay V. Ballard, 87 Va. 787 115 

V. Chenault, 108 Ky. 77 46 

V. Cousins, 1 T. B. Mon. (Ky.) 75 730 
V. Field, 115 U. S. 260 602 

V. Hammond, 199 111. 370 307 

V. Kagelmacher, 98 Ga. 149 595 

Claypoole v. Houston, 12 Kans. 324 661 

Clayson v. , Clayson, 24 Ore. 542 584 

Clayton v. Drake, 17 Ohio St. 367 707, 711 

Clearwater v. Rose, 1 Blackf. (Ind.) 
137 45 

Clegg V. Lemessurier, 15 Grat. (Va.) 
108 281 

Clement v. Bank of Rutland, 61 Vt. 
298 272 

Clements v. Hunt, 46 N. Car. 400 740 

V. Pearce, 63 Ala. 284 272 

Clendening v. Wyatt, 54 Kans. 523 334 

Cleveland v. Bergen Bldg. &c. Co. (N. 

J. Eq.), 55 Atl. 117 531 

V. Choate, 77 Cal. 73 241 

Cleveland, C., C. & St. L. E. Co. v. 

Mitchell, 74 111. App. 602 408 

V. Peirce, 34 Ind. App. 188 581 

Clifford V. Hyde County, 24 S. Dak. 
237 641 

Clift V. Clift, 87 Tenn. 17 65 

V. White, 12 N. Y. 519 40 

Clifton Heights Land Co. v. Randell, 
82 Iowa 89 263^ 329 

Oliver v. Sanders, 8 Ohio St. 501 707 

Clizer v. Krauss, 57 Wash. 26 636 



Close V. Close, 28 N. J. Eq. 472 S63 
V. Farmers' Loan &c. Co., 195 N. 

Y. 92 59 

V. Stuyvesant, 132 111. 607 77, 198 

V. Wheaton, 65 Kans. 830 656 

V. Zell, 141 Pa. 390 33 

Clotilde Lutz, In re, 157 Mo. 439 473 

Cloud V. Bruce, 61 Ind. 171 > 87, 726 

V. El Dorado County, 12 Cal. 128 623 

Clough V. Clough, 10 Colo. App. 433 491 

Cloyd V. Trotter, 118 111. 391 576, 661 

Clubb V. Wise, 64 111. 157 66 

Coates V. Cheever, 1 Cow. (N. Y.) 460 65 

Cobb V. Hiries, 44 N. Car. 343 267 

V. Lucas, 15 Pick. (Mass.) 7 263 

Cobbey v. Wright, 29 Nebr. 274 656 

Cobbs V. Coleman, 14 Tex. 594 66 

Cockey V. Milne, 16 Md. 200 120 

Cochran v. Adler, 121 Ala. 442 119 

Cockrill V. Armstrong, 31 Ark. 580 65 

Cocks v. Simmons, 57 Miss. 183 670 

Codman v. Bradley, 201 Mass. 361 722 

Coe V. Harahan, 8 Gray (Mass.) 198 326 

?. Winters, 15 Iowa 481 126 

Coffee V. Gates, 28 Ark. 43 660, 662 

Coffey V. Hendricks, 66 Tex. 676 283 

Coffman v. Bartsch, 25 Ind. 201 717 

V. Coffman, 85 Va. 459 491 

V. Coffman, 41 W. Va. 8 737 

Cofran v. Cockran, 5 N. H. 458 331 

Cogan v. Cook, 22 Minn.' 137 118, 120 

Cogel V. Raph, 24 Minn. 194 298 

Coggins, v. Flythe, 113 N. Car. 102 471 

V. Stephens, 73 Ga. 414 373 

Coggswell V. Griffith, 23 Nebr. 334 128 

Cogswell V. Tibbetts, 3 N. H. 41 65 

Cohee v. Baer, 134 Ind. 375 571 

Colbert's Estate, In re, 44 Mont. 259 86 

Colburn v. Mason, 25 Maine 434 696 

Cole V. Clark, 85 Maine 336 533 

v. Cole, 126 Mich. 569 66 

V. Cunningham, 133 U. S. 107 371 

V. Killam, 187 Mass. 213 395 

V. Lake Co., 54 N. H. 242 45, 268 

V. Taylor, 132 Tenn. 92 86 

Coleman v. Billings, 89 111. 183 324 

V. Commonwealth, 25 Grat. (Va.) 

865 115 

V. Foster, 112 Ala. 506 730 

V. McCormick, 37 Mo. 179 201 

V. O'Leary, 114 Ky. 388 456 

V. Pickett, 82 Hun (N. Y.) 287 687 
V. St. Paul &c. R. Co., 38 Minn. 

260 212 

V. Thomson, 6 Pa. County Ct. 126 6a 

Coles V. Berryhill, 37 Minn. 56 119 
Coler V. Alexander, 60 Tex. Civ. App. 

573 28 

Colescott V. King, 154 Ind. 621 137 

Collamore v. Collamore, 158 Mass. 74 48 
Collier v. Grimesey, 36' Ohio St. 17 

359, 470 

V. Slaughter, 20 Ala. 263 477 

Collins V. Aaron, 162 Pa. St. 539 123 

V. Capps, 235 HI. 560 460 

V. Miller, 64 Tex. 118 611 

V. Moore, 115 Ga. 327 434 
V. Rowe, 1 AbJ). N. Cas. (N. Y.) 

97 316 
V. Sanitary Dist. of Chicago, 270 

111. -108 7r>2 

V. Smith, 75 Wis. 392 522 

Colomer v. Morgan, 13 La. Ann. 202 121 
Colorado Cent. R. Co. v. Allen, 13 

Colo. 229 677 
Colorado Coal & Iron Co. v. United 

States, 123 U. S. 307 229 



XXXIV 



TABLE OF CASES 



Columbia Bank v. Jacobs, 10 Mich. 

349 118 

Columbian Ins. Co. v. Ashby, 4 Pet. 

(U. S.) 139 52 

Colt V. Colt, 32 Conn. 422 455 

V. O'Connor, 59 Misc. (N. Y.) 83 401 

Colton V. Colton, 21 Fed. 594 59 

V. Colton, 127 U. S. 30O 452, 463 

Combs V. Combs, 67 Md. 11 472 

V. Dodd, 4 Rob. (La.) 58 224 

V. Jolly, 28 Cal. 498 192 

Comegys v. Emerick, 134 Ind. 148 363 

Comer v. Baldwin, 16 Minn. 172 286 

Comet Con. Min. Co. v. Frost, 15 

Colo. 310 658 

Comley v. Ford, 65 W. Va. 429 281 

Commercial Bank v. King, 107 Ala. 

484 438 

V. Prichard, 126 Cal. 600 433 

Commonwealth v. Andre, 3 Pick. 

(Mass.) 224 100 

V. Harmer, 6 Phila. (Pa.) 90 21, 22 
V. Nancrede, 32 Pa. St. 389 718 

V. New York &c. E. Co., 132 Pa. 

St. 591 113 

V. Owen, 2 Wkly. N. Cas. (Pa.) 

200 582 

V. Pollitt, 25 Ky. L. 790 43 

V. Reading Sav. Bank, 137 Mass. 

431 332 

Commonwealth Title Ins. & Trust Co. 

V. Ellis, 192 Pa. St. 321 430 

Comparet v. Randall, 4 Ind. 55 602 

Compton V. Bagley, 1 Ch. 313 31 

V. McMahan, 19 Mo. App. 494 452 

Comstock V. Adams, 23 Kans. 513 450 

V. Kerwin, 57 Nebr. 1 668 

V. Son, 154 Mass. 389 266 

Conant v. Kent, 130 Mass. 178 87, 711 

V. Stone, 176 Mich. 654 474 

Conard v. Atlantic Insurance Co., 1 

Pet. (U. S.) 386 562 

Concord Mfg. Co. v. Robertson, 66 N. 

H. 1 272 

Condit V. De Hart, 62 N. J. L. 78 481 

Conduitt V. Ross, 102 Ind. 166 507 

Congdon v. Morgan, 14 S. Car. 587 687 
Conger V. Babcock, 87 Ind. 497 347 

V. Cook, 56 Iowa 117 736 

V. Lowe, 124 Ind. 368 47, 465, 478 

Congregational Church v. Walker, 124 

Mass. 69 423 

Congregational Church Bldg. Soc. v. 

Everett, 85 Md. 79 54 

Congregational Soc. v. Stark, 34 Vt. 

243 45 

Conklin V. Foster, 57 111. 104 66 

Conley v. Murdock, 106 Maine 266 100 

Conn V. Davis, 33 Tex. 203 715 

Connar v. Leach, 84 Md. 571 263 

Connecticut Mut. L. Ins. Co. v. Bulte, 

45 Mich. 113 638 

V. Jones, 8 Fed. 303 441 

V. King, 47 Ind. App. 587 90 

V. Smith, 117 Mo. 261 127 

V. Talbot, 113 Ind. 373 438 

Conner v. Shepherd, 15 Mass. 164 65 

Connor v. Connor, 59 Fla. 467 421 

V. Dillard, 129 N. Car. 50 656 

V. McCormick (Iowa), 117 N. W. 

976 619 

V. McCoy, 83 S. Car. 165 597 

Conover v. Smith, 17 N. J. Eq. 51 407 

Conrad v. Everich, SO Ohio St. 476 676 

V. West End Hotel &c. Land Co., 

126 N. Car. 776 244 

Constantine v. East, 8 Ind. App. 291 1, 6 



[References are to Sections.] 

Consumers' Gas Trust Co. v. Harless, 

131 Ind. 446 ^ ^„, «77 

Contee v. Lyons, 19 D. C. 207 262 

Continental Ins. Co. v. Reeve, 135 App. 



Div. (N. Y.) 737 ,^T ^r^ 

Converse v. Kellogg, 7 Barb. (N. Y.) 
590 
V. Starr, 23 Ohio St. 491 
Conway v. German, 166 Fed. 67 

V. Owensboro Sav. Bank & Trust 



595 

75 
491 
380 

665 



Co., 165 Fed. 822 
Cook V. Chicago &c. R. Co., 40 Iowa 

451 61 

V. Cook, 28 Ala. 660 51 

V. First Universalist Church, 23 R. 

I. 62 714 

V. French, 96 Mich. 525 126 

V. Hall, 6 Gil. (111.) 579 117 

v. Hammond, 4 Mason 467 72 

v. Hart, 135 Ky. 65U 459 

v. Jennings, 40 S. Car. 204 560 

V. Norton, 43 111. 391 73, 688 

V. Patrick, 135 111. 499 318 

V. Rogers, 31 Miclj. 391 377 

V. Stearns, 11 Mass. 533 62 

V. Travis, 20 N. Y. 400 126 

V. Tullis, 18 Wall. (U. S.) 332 532 

v. Walker, 70 Maine 232 65 

v. Webb, 18 Ala. 810 67 

Cooke' V. Avery, 147 U. S. 375 563 

Coolidge.v, Burke, 69 Ark. 237 708, 722 

Coomler v. Hefner, 86 Ind. 108 52 

Coon v. McNelly, 254 111. 39 466 

Cooney v. Coppock, 119 Iowa 486 546 

Cooper v. Adams, 6 Cush. (Mass.) 87 51 

V. Denison, 13 Sim. 290 730 

V. Emery, 1 Phil. 388 S 

V. Flesner, 24 Okla. 47 13'^ 

V. Hargis, 20 Ky. L. 41 593, 595 

V. Hayes, 96 Ind. 386 584 

V. Ives, 62 Kans. 395 724, 736 

V. Jackson, 99 Ind. 566 638 

V. Merritt, 30 Ark. 686 531 

V. Sunderland, 3 Iowa 114 650 

V. Wilder, HI Cal. 191 206, 225 

Copertini v. Oppermann, 76 Cal. 181 76 

Copley v. Ball, 176 Fed. 682 465 

Coray v. Matthewson, 7 Lans. (N. Y.) 

80 6 

Corby v. Corby, 85 Mo. 371 49 

Corbin V. Dale, 57 Mo. 297 317 

V. Healy, 20 Pick. (Mass.) 514 48, 291 
Corbitt V. Clenny, 52 Ala. 480 129, 316 
V. Corbitt, 54 N. Car. 114 714 

Cordova V. Hood, 17 Wall. (U. S.) 1 273 
Core V. Wigner, 32 W. Va. 277 699 

Corey v. Springer, 138 Ind. 506 43 

Corley v. McElmeel, 149 N. Y. 228 

492, 583 
Cormack v. Wolcott, 37 Kans. 391 137 

Cormerais v. Genella, 22 Cal. 116 442 

Cornelius v. Kissel, 128 U. S. 457 195 

Cornell v. Hall, 22 Mich. 377 418 

V. Maltbv, 165 N. Y. 557 434 

Cornett v. Hough, 136 Ind. 387 707, 708 
Corning v. Gould, 16 Wend. (N. Y.) 



531 



108 



Cornwall v. Falls City Bank, 92 Ky 

381 476 

Cornwell V. Orton, 126 Mo. 355 59 

Corwine v. Corwine, 24 N. J. Eq. 579 453 

Cosby V. Buchanan, 81 Ala. 574 419 

Cosner v. McCrum, 40 W. Va. 339 281 
Coster v. Monroe Mfg. Co., 1 Gr Ch 

(N. J.) 467 326 

Cotting v. DeSartiges, 17 R. I. 668 456 

Cotton V. Citizens' Bank, 97 Ark. 568 737 



TABLE OF CASES 



XXXV 



[References are to Sectiotis.] 



Cottrell V. Adams, 2 Biss. (U. S.) 

351 437 

Coudert v. Sayre, 46 N. J. Eq. 386 313 
Coulter V. Crawfordsville Trust Co., 45 

Ind. App. 64 466 

Coulthard v. Stevens, 84 Iowa 241 103 

Council V. Averett, 95 N. Car. 131 359 
Council Imp. Co. v. Draper, 16 Idaho 

541 722 

Courtner v. Etheredge, 149 Ala. 78 417 
Courtright v. Cedar Rapids &c. R. Co., 

35 Iowa 386 212 

Cover V. Manaway, 115 Pa. St. 338 286 
Coverdale v. Wilder, 17 Pick. (Mass.) 

178 375 
Cowan V. Green, 2 Hawks (N. Car) 

384 123 

V. Radford Iron Co., 83 Va. 547 51 

v. Withrow, 111 N. Car. 306 128 
Cowell V. Colorado Springs Co., 100 

U. S. 55 47 

Cowles V. Hardin, 91 N. Car. 231 138 

Cowley V. Knapp, 42 N. J. L. 297 487 

. Cox V. Arnold, 129 Mo. 337 103 

V. Clark, 93 Ala. 400 730 

V. Cox, 18 D. C. 1 591 

V. Cox, 44 Ind. 368 87, 717 

V. Cox, 101 Mo. 168 492 

V. Crockett, 93 Va. 50 98 

V. Easter, 1 Port. (Ala.) 130 195 

V. Garst, 105 111. 342 65 

V. Hart, 145 U. S. 376 297 

V. Ledward, 124 Pa. St. 435 428 

V. Matthews, 17 Ind. 367 721 

V. Rash, 82 Ind. 519 719 

V. Von Ahlefeldt, 105 La. 543 715 

V. Ward, 107 N. Car. 507 734 

V. Wayt, 26 W. Va. 807 120 

Cozzens v. Jamison, 12 Mo. App. 452 486 

V. Joslin, 1 R. I. 122 731 

Crabbe V. Hardy, 77 Misc. (N. Y.) 1 956 

Crabtree v. Bank of Winchester, 108 

Tenn. 483 100 

Cragin v. Powell, 128 U. S. 691 147, 241 

Craig V. Fox, 16 Ohio 563 352 

v. Leslie, 3 Wheat. (U. S.) 563 516 

V. Wells, 11 N. Y. 315 313 

Grain v. Mallone, 130 Ky. 125 737 

V. Wright, 114 N. Y. 307 46 

Cramer v. Mooney, 59 N. J. Eq. 164 395 

Cramond, In re, 145 Fed. 966 517 

Crane v. Aultman-Taylor Co., 61 Wis. 

110 428 

v. Crane, 31 Iowa 296 719 

v. Reeder, 21 Mich. 24 111, 282, 314 

V. Turner, 67 N. Y. 437 99 

V. Turner, 7 Hun (N. Y.) 357 427 

Crasseu v. Swoveland, 22 Ind. 427 127 

Graver v. Spencer, 40 Fla. 135 397 

Crawford v. Engrara, 157 Ala. 314 100 

V. McDonald, 88 Tex. 626 583 

V. Morris, 5 Grat. (Va.) 90 53 

V. Eicheson, 101 111. 351 528 

V. Thomas, 114 Ky. 197 456 

Crawford County Bank v. Bolton, 87 

Ark. 142 363 

Creamer v. Briscoe, 101 Tex. 490 192 

Creech v. Johnson, 116 Ky. 441 187 
Cremer's Estate, In re, 156 Pa. St. 

40 87 

Crews V. Taylor, 56 Tex. 461 122 

Criley v. Cassel, 144 Iowa 685 100 

Crim v. Umbsen, 155 Cal. 697 398 
Crisfiel v. Murdock, 55 Hun (N. Y.) 

143 528 

Crisfield v. Storr, 36 Md. 129 721 

Crislip v. Cain, 19 W. Va. 438 , 290 



Crist V. Cosby, 11 Okla. 635 722 

Croan v. Phelps' Admx., 94 Ky. 213 717 

Crocker v. Balch, 104 Tenn. 6 718 

Crockett v. Maguire, 10 Mo. 34 99 

Croft V. Thornton, 125 Ala. 391 99 

Cromelien v. Brink, 29 Pa. St. 522 640 

Crommelin v. Thiess, 31 Ala. 412 53, 408 

Cromwell v. MacLean, 123 N, Y. 474 634 

Crook V. Chilvers, 99 Nebr. 684 16, 162 

V. Rindskopf, 105 N. Y. 476 375 

Crooks V. Whittord, 47 Mich. 283 270 

Cropsey v. Ogden, 11 N. Y. 228 65 

Crosby V. Covington, 24 Miss. 619 737 

V. Dowd, 61 Cal. 557 723 

V. Parker, 4 Mass. 110 290 

V. Roub, 16 Wis. 616 439 

Cross V. Armstrong, 44 Ohio St. 613 652 

V. Hoch, 149 Mo. 325 465 

V. Noble, 67 Pa. St. 74 529 

Crossett Lumber Co. v. Files, 104 

Ark. 600 456, 724 

Crouch V. Fowie, 9 N. H, 219 407 

Crouse v. Mitchell, 130 Mich. 347 119 

V. Murphy, 140 Pa. St. 335 581 

Crouter v. Crouter, 133 N. Y. 55 398 

Crow v. Beardsley, 68 Mo. 435 371 

V. Kightlinger, 25 Pa. St. 343 64 

v. Powers, 19 Ark. 424 491 

Crowley v. C. N. Nelson Lumber Co., 

66 Minn. 400 521 
Cruger v. Ginnuth, 3 Wills. Civ. Cas. 

Ct. App. (Tex.) 24 _ 278 
Cruikshank v. Home for Friendless, 

113 N. Y.. 337 485 

V. Luttrell, 67 Ala. 318 596 

Crump V. Faucett, 70 N. Car. 345 717 

Culberson v. Culberson, 37 Ga. 296 65 

Culbertson v. Coleman, 47 Wis. 193 191 
Culbertson Irr. & Water-Power Co. v. 

Olander, 51 Nebr. 539 95, 201 

Cullum V. Emanuel, 1 Ala. 23 428 

Culver V. Waters, 248 111. 163 955 

Cumberledge v. Brooks, 235 III. 249 272 

Gumming v. McDade, 118 Ga. 612 672 
Cummings v. Cummings, 123 Mass. 

270 583 

V. Cummings, 76 N. J. Eq. 568 49 

V. Black, 65 Vt. 76 423 

V. Dearborn, 56 Vt. 441 301 

v. Dolan, 52 Wash. 496 77 

V. Lohr, 246 111. 577 43 

V. National Bank, 101 U. S. 153 651 

V. Wilson, 99 Minn. 502 31 
Cummins v. Boyle, 1 J. J. Marsh. 

(Ky.) 480 673 

v. Woodruff, 5 Ark. 116 281 

Cunningham v. Blake, 121 Mass. 333 7 
v. Boston &c. R. Co., 153 Mass. 

506 241 

V. Cunningham, 72 Conn. 157 473 

V. Holton, 55 Maine 33 51 

v.Pattee, 99 Mass. 248 692 

Cunninggim v. Peterson, 109 N. Car. 

33 116 
Cunnins v. Reading .School Dist., 198 

U. S. 458 90 

Currell v. Villars, 72 Fed. 330 119 

Curren v. Taylor, 19 Ohio 36 708 

Currier v. Gale, 9 Allen (Mass.) 522 429 

V. Perley, 24 N. H. 219 53 
Curry v. Lehman, 55 Fla. 847 

562, 563, 584 

Curry's Estate, In re, 39 Cal. 529 717 

Curtis V. Curtis, 40 Maine 24 737 

V. Flinn, 46 Ark. 70 424 

V. Hewens, 11 Mete. (Mass.) 294 719 

V. Lyman, 24 Vt. 338 132 

V. Moore, 152 N. Y. 159 433 



XXXVl 



TABLE OF CASES 



[References are to Sections.^ 



Curtis Land & Loan Co. v. Interior 

Land Co., 137 Wis. 341 393, 398 

Curyea v. Berry, 84 111. 600 138 

Cutlar V. Cutlar, 9 N. Car. 324 728 

Cutler V. Meeker, 71 Nebr. 732 722 

V. Smith, 57 111. 252 62 

Cutter V. Waddington, 22 Mo. 206 

708, 730 
Cutting V. Harrington, 104 Maine 96 611 
Cutright V. Stanford, 81 111. 240 736 

Cyrus V. Holbrook, 32 Ky. L. 466 314 



Daggett V. Bonewitz, 107 Ind. 276 

208, 209 

Dailey v. Kastell, 56 Wis. 444 129 

V. Kennedy, 64 Mich. 208 663 

Dale V. Griffith, 93 Miss. 573 192 

Dalton V. Taliaferro, 101 111. App. S92 278 

Dana v. Wentworth, 111 Mass. 291 277 

Daniel V. Leitch, 13 Grat. (Va.) 195 657 

V. Weaver, 5 Lea (Tenn.) 392 536 

Daniels v. Densmore, 32 Nebr. 40 443 

V. Lansdale, 43 Cal. 41 95 

Daniher v. Daniher, 201 III. 489 65 

Danley v. Rector, 10 Ark. 211 611 

Danner v. Brewer, 69 Ala. 191 375 

V. Shissler, 31 Pa. St. 289 708 

Darby v. Mayer, 10 Wheat. (U. S.) 

465 492, 724 

Dart V. Woodhouse, 40 Mich. 399 36 

Daugherty v. Deardorf, 107 Ind. 527 714 
D'Autremont v. Anderson Iron Co., 

104 Minn. 165 581 
Davenport v. Lamb, 13 Wall. (U. S.) 

418 198, 303 

V. Sargent, 63 N. H. 538 473 

Davenport, In re, 172 N. Y. 454 711 

David V. Rickabaugh, 32 Iowa 540 119 

Davidson v. Coon, 125 Ind. 497 

459, 473, 525 
V. Davidson Real Estate &c. Inv. 

Co., 226 Mo. 1 678 

V. Richmond, 24 Ky. L. 699 722 
Davie V. Davie (Ark.), 18 S. W. 

935 722 

Davies v. Leete, 111 Ky. 659 583 
Davis V. Abstract Construction Co., 121 

111. App. 121 130 
V. Bogle, 11 Heisk. (Tenn.) 315 324 
V. Davis, 61 Maine 395 325 
V. Davis, 81 Vt. 259 578 
V. Davis, 43 W. Va. 300 458 
V. Fogle, 124 Ind. 41 712 
V. Green, 102 Mo. 170 65 
v. Hayden, 9 Mass. 514 735 
v. Headley, 22 N. J. Eq. 115 671 
v. Hollingsworth, 113 Ga. 210 263 
V. Hoover, 112 Ind. 423 361 
V. Lane, 10 N. H. 156 337 
V. Laning, 85 Tex. 39 706 
V. Lutkiewiez, 72 Iowa 254 118 
V. McCullouch, 192 III. 277 66 
V. Pursel, 55 Colo. 287 434 
V. Steeps, 87 Wis. 472 580 
V. Vanderveer, 23 N. J. Eq. 558 711 
V. Van Sands, 45 Conn. 600 451, 524 
v. Ward, 109 Cal. 186 287 
V. Watson, 54 Miss. 679 594 
V. Whitaker, 114 N. Car. 279 122, 132 
V. William Rosenzweig Realty Op- 
erating Co., 192 N. Y. 128 531 
V. Windsor Sav. Bank, 46 Vt. 728 337 
V. Wood, 161 Mo. 17 289 
Davis" Estate, In re, 151 Cal. 318 491 



Davis-Henderson Lumber Co. v. Gott- 

schalk, 81 Cal. 641 533 

Dawley v. Ayers, 23 Cal. 108 66 

V. Brown, 79 N. Y. 390 314, 688 

Dawson v. Lawrence, 13 Ohio 543 327 



107 



225 



._ Mayall, 45 Minn. 408 

V. Western Maryland R. Co, 

Md. 70 275 

Day V. Adams, 42 Vt. 510 66 

V. Clark, 25 Vt. 397 126 

V. Davey, 132 Mich. 173 638 

V. Reynolds, 23 Hun (N. Y.) 131 22 

Deake's Appeal, In re, 80 Maine 50 456 

Dean v. Bittner, 77 Mo. 101 186 

v. Long, 122 111. 447 58, 129, 273 

Deane v. Hutchinson, 40 N. J. Eq. 83 121 

Dearnaley v. Chase, 136 Mass. 288 358 

Deason v. Taylor, 53 Miss. 697 129, 273 

Deavitt v. Washington County, 75 Vt. 

156 110 

De la Croix v. Chamberlain, 12 Wheat. 

(U. S.) 599 189 

De Lancey Stables Co., In re, 170 

Fed. 860 380 

De Land v. Dixon &c. Lighting Co., 225 

111. 212 698 

DeLane v. Moore, 14 How. (U. S.) 

253 123 

Delano v. Bruerton, 148 Mass. 619 89 

Delaplaine v. Jones, 8 N. J. L. 340 730 
Delashmutt v. Parrent, 40 Kans. 641 714 
De Lassus v, Faherty, 164 Mo. 361 103 
Delaunay v. Burnett, 9 111. 454 197 

Delavan v. Wright, 110 Mich. 143 315 

Delaware & H. Canal Co. v. Hughes, 

183 Pa. St. 66 693 

Delaware &c. R. Co*s. Tax Assessment, 

In re, 224 Pa. 240 630 

De Leon v. Higuera, 15 Cal. 483 421 

Delles V. Second Nat. Bank, 7 Wyo. 

66 229 

Del Notaro v. Douglas, 55 Wash. 493 669 

Den V. Drake, 14 N. J. L. 523 51 

V. Durham, 29 N. Car. 151 615 

V. Roberts, 4 N. J. L. 315 123 

V. Smith, 10 N. J. L. 46 48 

V. Urison, 2 N. J. L. 212 730 

Dendy v. Waite, 36 S. Car. 569 357 

De Nefe v. Agency City, 143 Iowa 237 244 

Denison v. Denison, 185 N. Y. 438 59 

Dennis v. Atlanta Nat. Bldg. & Loan 

Assn., 136 Fed. 539 434 

V. Holsapple, 148 Ind. 297 481 

Dennison v. Page, 29 Pa. St. 420 719 

Denny v. Cotton, 3 Tex. Civ. App. 

634 103 

V. Dodson, 32 Fed. 899 191 

Densmore v. Savage, 110 Mich. 27 436 

Denton v. Nashville Title Co., 112 

Tenn. 320 15, 19 

Denver v. Knowles 17 Colo. 204 647 

Denver & E. G. R. Co. v. Doelz, 49 

Colo. 48 694 

Denzler v. O'Keefe, 34 N. J. Eg. 361 428 

DeCamp v. Dobbins, 31 N. J. Eq. 671 458 

De Castro v. Barry, 18 Cal. 96 728 

Decker v. Boice, 83 N. Y. 220 110 

v. Fessler, 146 Ind. 16 593 

v. Freeman, 3 Maine 338 331 

V. Patton, 120 111. 464 672 

Decoster y. Wing, 76 Maine 450 708, 727 



Dee V. King, 77 Vt. 230 
Deem v. Millikin, S3 Ohio St. 668 
Deere v. Chapman, 25 III. 610 
Deering v. Tucker, 55 Maine 284 
De Farges v. Ryland, 87 Va. 404 
De France v. Johnson, 26 Fed. 891 
De Geoffroy v. Riggs, 133 U. S. 258 



61 
733 
66 
40 
99 
65 
458 



TABLE OF CASES 



XXXVU 



[References are to Sections.^ 



De Hatre v. Edmonds, 200 Mo. 246 697 
De Haven's Appeal, In re, 38 'Pa. St. 

373 349 

De Mares v. Gilpin, 15 Colo. 76 106 

Deming v. Miles, 35 Nebr. 739 64 

Demps V. Hogan, 57 Fla. 60 668 

Dempsey v. Poore, 75 \V. Va. 107 736 

Depere v. Reynen, 65 Wis. 271 408 

Depue V. Miller, 65 W. Va. 120 64, 699 
Dequindre v. Williams, 31 Ind. 444 650 
Dersheimer v. Maloney, 143 Pa. St. 

532 534 

Des Moines &c. Real Estate Co. v. 

Beale, 78 111. App. 40 25 

Despatch Line Co. v. Bellamy Manuf. 

Co., 12 N. H. 205 337 

Detrick v. Migatt, 19 111. 146 721 

Detroit v. Jepp, 52 Mich. 458 636 

Detroit & B. Plank Rd. Co. v. Detroit 

Suburban E. Co., 103 Mich. 585 62 

Detroit City R. Co. v. Mills, 85 Mich. 

634 110 

DeVaughn ^. Hutchinson, 165 U. S. 

566 456 

Devereux v. McMahon, 102 N. Car. 

284 282 

V. McMahon, 108 N. Car. 134 280 

Devine v. Lord, 175 Mass. 384 110 

Devine's Estate, In re, 199 Pa. 250 466 

Devinney v. Reynolds, 1 Watts & S. 

(Pa.) 328 335 

Devlin V. Commonwealth, 101 Pa. St. 

2>3 90 

Dew V. Kuehn, 64 Wis. 293 49 

Dewey v. Sugg, 109 N. Car. 328 134, 567 

V. Kimball, 89 Minn. 454 955, 956 

DeWitt V. Elmira Transfer Co., 134 

N. Y. 495 227 

DeWolf V. A. & W. Sprague Mfg. Co., 

49 Conn. 282 441 

V. Lawson, 61 Wis. 469 484 

V. Pratt, 42 111. 198 119 

Dexter v. Arnold, Fed. Cas. No. 3857 672 
V. Evans, 63 Conn. 58 480 

V. Hayes, 88 Iowa 493 451 

V. Nelson, 6 Ala. 68 314 

v. Tree, 117 111. 532 102 

Dey V. Dunham, 2 Johns. Ch. (N. Y.) 

182 673 

Dezendorf v. Humphreys, 95 Va. 473 320 
De Zeng v. Beekman, 2 Hill (N. Y.) 

489 331 

Diament v. Lore, 31 N. J. L. 220 470 

Diamond v. Turner, 11 Wash. 189 

347, 622 
Diana Shooting Club v. Lamoreux, 114 

Wis. 44 207 

Dickens v. Mahana, 21 How. (U. S.) 

276 208 

Dickerson v. Bowers, 42 N. J. Eq. 295 117 

V. Carroll, 76 Ala. 377 530 

V. Colgrove, 100 U. S. 578 97 

V. Talbot, 53 Ky. 60 99 

Dickerson, In re. 111 N. Car. 108 362 

Dickinson v. Chesapeake R. Co., 7 W. 

Va. 390 25 

V. Hayes, 31 Conn. 417 583 

Dickinson's Appeal, In re, 42 Conn. 

491 719 

Dickie V. Abstract Co., 89 Tenn. 431 

9, 15, 22 
V. Nashville Abstract Co., 89 Tenn. 

«1 17 

Dickman v. Birhauser, 16 Nebr. 686 66 
Dieterlen v. Miller, 114 App. Div. (N. 

Y.) 40 277 

Dietrich V. Hutchinson, 73 Vt. 134 322 



Dietz v. Parish, 44 N. Y. Super. Ct. 

190 286 

Digman v. McCollum, 47 Mo. 372 99 

Dikeman v. Struck, 76 Wis. 332 663 

Dikes V. Miller, 24 Tex. 417 108 

Dildine v. Dildine, 32 N. J. Eq. 78 471 

Dill V. Wisner, 88 N. Y. 153 525 

Dillard, In re, 2 Hughes (N. S.) 190 385 

Dillaway v. Butler, 135 Mass. 479 128 

Dille v. Webb, 61 Ind. 85 737 

Dillingham v. Fisher, 5 Wis. 475 196 

Dills V. Jasper, 33 111. 262 595, 597 

Dimon v. Dunn, 15 N. Y. 498 433 

Dingey v. Paxton, 60 Miss. 1038 75 

Dingley v. Bon, 130 N. Y. 607 126 

V. Greene, 54 Cal. 333 534 

Di Nola V. Allison, 143 Cal. 106 546 

Dirks V. Collin, 37 Wash. 620 12 
Dittemore v. Cable Mill Co., 16 Idaho 

298 378 

Dixie Grain Co. v. Quinn, 181 Ala. 208 433 

Dixon V. Cooper, 88 Tenn. 177 483 

V. Hunter, 204 Mo. 382 669 

Doane v. Doane, 46 Vt. 485 66 

V. Willcutt, 5 Gray (Mass.) 328 

279, 303 

Dochterman v. Marshall, 92 Miss. 747 272 
Dodd V. Bartholomew, 44 Ohio St. 

171 262 
V. Williams, 3 Mo. App. 278 

8, 9, 10, 18, 161 

Dodge V. Beeler, 12 Kans. 524 87 

V. Davis, 85 Iowa 77 692 

V. Silverthorn, 12 Wis. 644 119 

Dodson V. Cincinnati, 34 Ohio St. 276 110 

Doe V. Bates, 6 Blackf. (Ind.) 533 

111, 719 

V. Beck, 108 Ala. 71 196, 197 

V. Carrol, 16 Ala. 148 67 

V. Considine, 6 Wall. (U. S.) 458 469 

V. Doe, 52 Hun (N. Y.) 405 676 

V. Dugan, 8 Ohio 87 288 

V. Errington, 6 Bing. N. Cas. 79 99 

V. Henderson, 4 Ga. 148 360 

V. Jackson, 51 Ala. 514 362 

V. tazenby, 1 Ind. 234 732 

V. Reed, 5 111. 117 306 

V. Stephenson, 9 Ind. 144 195 

V. Willetts, 7 Mann. Or. & S. 709 467 

Doebler's Appeal, In re, 64 Pa. St. 9 47 

Dolan V. Scott, 25 Wash. 214 ' 51 

Donahue v. Hubbard, 154 Mass. 537 321 

V. Mills, 41 Ark. 421 . 126 

Donald v. Beals, 57 Cal. 399 122, 128 

V. Hewitt, 33 Ala. 534 417 

Donaldson v. Lamprey, 29 Minn. 18 66 

V. Winningham, 48 Wash. 374 66 

Donegan v. Donegan, 103 Ala. 488 321 

Donlpn v. Evans, 40 Minn. 501 398 

Dontian v. Intelligence Printing &c. , 

Co., 70 Mo. 168 423 

Donnell v. Wright, 147 Mo. 639 98, 575 

Donnelly v. Eastes, 94 Wis. 390 54 

Donnelly, In re, 125 Cal. 417 706 

Donnelly's Estate, In re, 125 Cal. 417 706 

Donogan v. Griffith, 215 Mo. 149 64 

Donohue v. McNichol, 61 Pa. St. 73 54 

Donough V. Garland, 269 111. 565 737 

Donovan v. Griffith, 215 Mo. 149 64 

V. Major, 253 111. 179 90 

V. Pitcher, S3 Ala. 411 75 

Dooley v. Greening, 201 Mo. 343 65 

v. Watson, 1 Gray (Mass.) 414 671 

Doolittle v. Cook, 75 111. 354 692 

Doran v. Beale, 106 Miss. 305 724 

v. Kennedy, 122 Minn. 1 722 

Doren v. Gillum, 136 Ind. 134 274, 312 



XXXVlll 



TABLE OF CASES 



[References are to Sections.'] 



Dork-ray v. Noble, 8 Greenl. (Maine) 

278 437 

Dorr V. Johnson, 170 Mass. 540 476 

Dorrance v. Raynsford, 67 Conn. 1 599 

Dorsey v. Dodson, 203 III. 32 483 
Doswell V, Buchanan, 3 Leigh (Va.) 

365 99 

Doton V. Russell, 17 Conn. 146 429 
Doty V. Deposit Bldg. & L. Assn., 103 

Ky. 710 654 

V. Hubbard, 55 Vt. 278 362 
V. Sandusky Cement Co., 46 Ind. 

App. 440 390 

V. Teller, 54 N. J. L. 163 48 

Douglas V. Cameron, 47 Nebr. 358 710 

V. Lewis, 131 U. S. 75 278, 304 

V. St. Louis Zinc Co., S6 Mo. 388 538 

Douglass V. Dickson, 31 Kans. 310 639 
V. Douglass Bagging Co., 94 Mo. 

226 443 

e. Durin, 51 Maine 121 437 

V. Lowell, 64 Kans. 533 639 

V. McCrackin, 52 Ga. 596 545 

Dousman v. Hooe, 3 Wis. 466 186 

Douthitt V. MacCulsky, 11 Wash. 601 536 

V. Stinson, 63 Mo. 268 329 

Dow V. Dow, 36 Maine 211 463 

Dowdy V. McArthur, 94 Ga. 577 262 

Dowell V. Talbot Pav. Co., 138 Ind. 

675 647 

Downend V. Kansas City, 156 Mo. 60 239 

Downer v. Smith, 38 Vt. 464 638 

Downing v, Nicholson, 115 Iowa 493 471 
Doyle V. Hays Land & Inv. Co., 80 

Kans. 209 669 

V. Mellen, 15 R. I. 523 423 
V. San Diego Land Co., 46 Fed. 

709 329 

V. Stevens, 4 Mich. 87 125 

V. Wade, 23 Fla. 90 563, 723 

Drain v. Violett, 2 Bush (Ky.) 155 712 

Drake v. Drake, 134 N. Y. 220 712 

V. Ellman, 80 Ky. 434 375 

V. Hale, 38 Mo. 346 617 

V. McLean, 47 Mich. 102 621 

V. Moore, 66 Iowa 58 66 

V. Reggel, 10 Utah 376 121 

V. Root, 2 Colo. 685 520 

V. Steele, 242 111. 301 470 

Draper v. Bradley, 126 N. Car. 72 725 

Dresel v. Jordan, 104 Mass. 407 265 

V. King, 198 Mass. 546 483 

Drew V. Wakefield, 54 Maine 291 485 

Drey v. Doyle, 99 Mo. 459 692 

DriscoU V. Green, 59 N. H. 101 291 

V. New Haven, 75 Conn. 92 110 

Driskell v. Hanks, 18 B. Mon. (Ky.) 

855 708 

Driver V. Spence, 1 Ala. 540 348 

Dronillard v. Whistler, 29 Ind. 552 553 

Druecker v. McLaughlin, 235 111. 367 276 

Drury v. Drury, 271 111. 336 722 

V. Mickelberry, 144 M'o. App. 212 25 

Dryer v. Crawford, 90 Ala. 131 471 

Dublin V. Chadbourn, 16 Mass. 433 492 
Dubreuil v. Pennsylvania R. Co., 130 

Ind. 137 655 
Dubuque Nat. Bank v. Weed, 57 Fed. 

513 310 

Dudley v. Dudley, 76 Wis. 567 65 
V. Strain (Tex. Civ. App.), 130 S. 

W. 778 100 

Duiif v. Combs, 132 Ky. 710 568 

Duffy v. Jarvis, 84 Fed. 731 48 
v, Shirden, 139 App. Div. (N. Y.) 

755 955, 956 

Dufphey v. Frenaye, 5 St. & P. (Ala.) 

215 120 



Dugan V. Follett, lOO III. 581 657 

v. Harman, 80 Kans. 302 614 

Duke V. Culpepper, 72 Ga. 842 421 

v. Harper, 6 Yerg. (Tenn.) 280 51 

Dukes V. Faulk, 37 S. Car. 255 714 
Dulin V. Moore (Tex. Civ. App.), 69 S. 

W. 94 46 

Dull's Estate, In re, 222 Pa. 208 484 
Duluth & I. R. Co. V. Roy, 173 U. S. 

587 222 

Dun V. Dietrich, 3 N. Dak. 3 278 

Duncan v. De Yampert, 182 Ala. 528 466 

V. Gainey, 108 Ind. 579 359, 602 

V. Stewart. 25 Ala. 408 90 

V. Terre Haute, 85 Ind. 104 325 

V. Wallace, 114 Ind. 169 473 

Duncklee v. Webber, 151 Mass. 408 50 

Dundee Mtg. Co. v. Hughes, 20 Fed. 

39 15, 22 

Dungan V. American Life Ins. &c. Co., 

52 Pa. St. 253 123 

Dunham v. Averill, 45 Conn. 61 455 

V. Hartman, 153 Mo. 625 595 
v. W. Steele Packing &c. Co., 100 

Mich. 75 439 

Dunkle v. Elston, 71 Ind. 585 660 

Dunklee v. Crane, 103 Mass. 470 535 

Dunlap V. Green, 60 Fed. 242 328 

v. Robinson, 28 Ala. 100 458 

Dunn V. Eaton, 92 Tenn. 743 699 
V. Houghton (N. J. Eq.), 51 Atl. 

71 453 

V. Ketchum, 38 Cal. 93 185 

V. Oettinger, 148 N. Car. 276 446 

V. Rothermel, 112 Pa. St. 272 51 

V. Snell, 74 Maine 22 638 
V. Taylor (Tex. Civ. App.), 107 S. 

W. 952 270 

V. White, 1 Ala. 645 651 

Dunning, In re, 48 Misc. (N. Y.) 482 87 

Dunster v. Kelly, 110 N. Y. 558 70 

Dupee v. Rose, 10 Utah 305 442 

V. Salt Lake &c. Trust Co., 20 

Utah 103 545 

Duperier v. Berard, 107 La. 91 491 

Dupont v. Wortheman, 10 Cal. 354 309 

Durant v. Crowell, 97 N. Car. 367 127 

V. Muller, 88 Ga. 251 48 

v. Ritchie, Fed. Cas. No. 4190 58 

Durfee v. McNeil, 58 Ohio St. 238 476 

V. Pomeroy, 154 N. Y. 583 470 

Durkheimer v. Copperopolis Copper Co., 

55 Ore. 37 533 
Durkin v. Cobleigh, 156 Mass. 108 

105, 244 

Durling V. Stillwell, 74 N. J. Eq. 697 565 

Durr V. Wilson, 116 Ala. 125 60 

Durrett v. Stewart, 88 Ky. 665 636 

Dutch's Appeal, In re, 57 Pa. St. 461 737 

Dutro V. Kennedy, 9 Mont. 101 593 

Dutton V. Ives, 5 Mich. 515 '428 

Duval V. Wilmer, 88 Md. 66 434 

Duvale v. Duvale, 54 N. J. Eq. 581 401 

Duvall V. Parker, 2 Duv. (Ky.) 182 699 

Dwenger v. Geary, 113 Ind. 106 354 

Dwight V. Merritt, 4 Fed. 614 659 

V. Newell, 3 N. Y. 185 565 

Dwinel v. Perley, 32 Maine 197 437 

Dye V. Thompson, 126 Mich. 597 99 

Dyer v. Brannoch, 66 Mo. 391 719 

V. Clark, 5 Mete. (Mass.) 562 65 

V. Eldridge, 136 Ind. 654 699 

Dyson v. Simmons, 48 Md. 207 417 



Earle v. Fiske, 103 Mass. 491 118 

Early Times Distillery Co. v. Zeieer, 
11 N. Mex. 221 119 



TABLE OF CASES 



XXXIX 



[References are to Sections.'\ 



East V. Pugh, 71 Iowa 162 289 

Eastern Oregon Land Co. v. Brosnan, 

147 Fed. 807 210 

Easterling v. Chiles, 93 Ky. 315 562 

Eastes v. Walley, 51 Colo. 166 716 

East Jersey Iron Co. v. Wright, 32 

N. J. Eq. 248 62 

East Lewisburg Lumber & Mfg. Co. v. 

Marsh, 91 Pa. St. 96 334 

Eastman v. Perkins, HI Mass. 30 406 

Easton v. Montgomery, 90 Cal. 307 

25, 26, 27, 395, 398 
East Tennessee Iron &c. Co. v. Wig- 
gin, 68 Fed. 446 108 
East St. Louis v. Davis, 233 111. 553 502 
Eatman v. Eatman, 83 Ala. 478 730 
Eaton V. Cheseborough, 82 Mich. 214 632 
V. Eobbins, 29 Minn. 329 66 
V. Straw, 18 N. H. 320 60 
V. Trowbridge, , 38 Mich. 454 286 
V. Whiting, 3 Pick. (Mass.) 484 441 
Eayrs v. Nason, 54 Nebr. 143 576 
Eble V. State, 77 Kans. 179 698 
Economy Bldg. &c. Assn. v. West Jer- 
sey Title Cfo., 64 N. J. L. 27 16 
Ector V. Grant, 112 Ga. 557 711, 730 
Eddie v. Eddie, 8 N. Dak. 376 718, 719 
Eddy V. Winchester, 60 N. H. 63 376 
Edmundson v. State, 17 Ala. 179 581 
Edwards v. Barksdale, 2 Hill Eq. (S. 

Car.) 416 730 

V. Barwise, 69 Tex. 84 122, 125, 129 
V. Bender, 121 Ala. 77 466 

V. Bibb, 54 Ala. 475 65 

V. Butler, 89 Miss. 179 208 

V. Clark, 83 Mich. 246 529 

V. McKernan, 55 Mich. 520 119 

Edwardsville R. Co. v. Sawyer, 92 

111. 377 4S 

Effinger v. Hall, 81 Vt. 94 434 

Ege V. Hering, 108 Md. 391 474 

Eggers V. Busch, 154 111. 604 77 

Eggleston v. Harrison, 61 Ohio St. 

397 , 119, 124 

V. Watson, 53 Miss. 339 120 

Ehle V. Quackenboss, 6 Hill (N. Y.) 

537 75 

Ehmer v. Title Guarantee & Trust Co., 

156 N. Y. 10 773 

Ehrenstrom v. Phillips, 9 Del. Ch. 74 671 
Ehrman v. Alabama Mineral Land Co., 

109 Ala. 478 428 

Eichengreen v. Appel, 44 111. App. 19 52 
Eikelman v. Perdew, 140 Cal. 687 421 

Eisendrath Co. v. Gebhardt, 222 111. 

113 538 

Eldridge v. Binghamton, 120 N. Y. 309 694 
Elizabethtown Sav. Inst. v. Gerber, 34 

584 

185 

733 

690 

66 

47 

623 

458 

(Md.) 

335 

390 

442 

443 

492, 651 

734 

87 

65 

447 

546 

699 



N. J. Eq. 130 
Ellerd v. Cox, 52 Tex. Civ. App. 60 
Ellerson v. Wescott, 148 N. Yt 149 
Ellicott V. Pearl, 10 Pet. (U. S.) 412 
Ellinger v. Thomas, 64 Kans. 180 
Elliott V. Delaney, 217 Mo. 14 
V. Dycke, 78 Ala. 150 
V. Elliott, 117 Ind. 380 
V. Osborn, 1 Harr. & McH, 

146 
V. Sackett, 108 U. S. 132 
V. Wood, 45 N. Y. 71 
Ellis V. Bashor, 17 Idaho 259 
V. Davis, 109 U. S. 485 
V. Dumond, 259 111. 483 
V. Harrison, 140 N. Car. 444 
V. Kyger, 90 Mo. 600 



V. Leek, 127 111. 60 
V. Sisson, 96 111. 105 
V. Smith, 112 Ga. 480 



Ellis 

V. Young, 31 S. Car. 322 692 

Ellison V. Barnstrator, 153 Ind. 146 240 

V. Jackson Water Co., 12 Cal. 542 533 

Ellsworth V. Hale, 33 Ark. 633 51 

V. Low, 62 Iowa 178 640 

Elmslie's Estate, In re, 10 Pa. Dist. 

397 483 

El Paso Gas, Electric Light & Power 
Co. V. El Paso, 22 Tex. Civ. App. 
309 504 

Elrod V. Owensboro Wagon Co., 128 

Ga. 361 639 

Elterman v. Hyman, 192 N. Y. 113 531 

Eltzroth V. Ryan, 89 Cal. 135 223 

Elwell V. XJniversalist General Conven- 
tion, 76 Tex. 514 481 
Ely V. Ellinton, 7 Mo. 302 183 
V. Ferguson, 91 Cal. 187 109 
V. Mathews, 58 Misc. (N. Y.) 365 664 
V. Wilcox, 20 Wis. 523 132 
Elyton Land Co. v. Denny, 108 Ala. 

553 687 

V. South & N. A. R. Co., 100 Ala. 

396 276 

Emblen, In re, 161 U. S. 52 229 

Emerson v. Burgin, 76 Cal. 197 62 

V. Galloupe, 158 Mass. 146 339 

V. Mooney, 50 N. H. 315 506 

V. White, 29 N. H. 482 738 

Emerson's Homestead, In re, 58 Minn. 

450 66 

Emeric v. Alvarado, 90 Cal. 444 126, 644 
Empire State Surety Co. v. Ballou, 66 

Wash. 76 654 

Emslie v. Young, 24 Kans. 732 196 

Enewold v. Olsen, 39 Nebr. 59 581 

Engel V. Ayer, 85 Maine 448 275, 506 
Engel's Estate, In re, 180 Pa. St. 215 476 
English V. Waples, 13 Iowa 57 126 

Enslen v. Allen, 160 Ala. 529 671 

Ensley v. Coolbaugh, 160 Mich. 299 643 
v. Page, 13 Colo. App. 452 357 

Entwhistle v. Henke, 211 111. 273 62 

Enyard v. Enyard, 190 Pa. St. 114 521 
Enyeart v. Kepler, 118 Ind. 34 321 

Equitable Bldg. &c. Assn. v. Bank of 
Commerce, 118 Tenn. 678 

5, 16, 17, 19, 22 
Equitable Securities Co. v. Green, 113 

Ga. 1013 546 

Equitable Sureties Co. v. Sheppard, 

78 Miss. 217 594 

Erck V. Church, 87 Tenn. 575 691 

Erickson v. Conniff, 19 S. Dak. 41 284 
Erie R. Co. v. Steward, 59 App. Div. 

(N. Y.) 187 677 

Ernst V. Freeman, 129 Mich. 271 87 

Erskine v. Moulton, 66 Maine 276 

104, 241 
Erwin v. Lewis, 32 Wis. 276 126 

Estate of Alabone, In re, 75 N. J. Eq. 

527 484 

Alexander, In re, 149 Cal. 146 477 

Armstrong, In re, 2 Pa. Co. Ct. 

166 487 

Bacon, In re, 262 Pa. 535 714 

Barnes, In re, 47 Okla. 117 724 

Benson, In re, 169 Pa. St. 602 481 

Blake, In re, 134 Pa. St. 240 473 

Breg, In re, 71 Minn. 11 710 

Bruch, In re, 185 Pa. St. 194 477 

Carpenter, In re, 170 Pa. 203 733 

Colbert's, In re, 44 Mont. 259 86 

Cremer's, In re, 156 Pa. St. 40 87 

Curry, In re, 39 Cal. 529 717 

Davis, In re, 151 Cal. 318 491 

Devine, In re, 199 Pa. 250 466 



xl 



TABLE OF CASES 



[References are to Sections 



Estate of 

Donnelly, In re, 125 Cal. 417 706 

Dull, In re, 222 Pa. 208 484 

ElmsHe, 10 Pa. Dist. 397 483 

Engel, In re, 180 Pa. St. 215 476 

Fair, In re, 132 Cal. 523 59 

Gill, In re, 79 Iowa 296 732 

Grandjean, In re, 78 Nebr. 349 722 

Granniss, In re, 142 Cal. 1 485 

Hatch, In re, 62 Vt. 300 66 
Heywood, In re, 148 Cal. 184 59, 480 

Glass, In re, 164 Cal. 765 458 

Jeremy, In re, 178 Pa. St. 477 46 
Kane, In re, 38 Misc. (N. Y.) 276 87 

Kimmel, In re, 226 Pa. 47 100 
Kissel, In re, 65 Misc. (N. Y.) 443 631 

Kuhn, In re, 125 Iowa 449 733 

Kurtz, In re, 145 Pa. St. 637 466 

Lawrence, In re, 136 Pa. St. 354 482 

Learned, In re, 70 Cal. 140 456 

Lewis, In re, 32 La. Ann. 385 456 

McGraw, In re. 111 N. Y. 66 458 

McKenna, In re, 168 Cal. 339 730 

Markle, In re, 187 Pa. St. 639 471 

Marrow, In re, 204 Pa. 479 487 

Nevins, In re, 192 Pa. St. 258 59 

North, In re, 48 Conn. 583 727 

Noyes, In re, 40 Mont. 178 457 

Papplfiton, In re, 34 Utah 285 477 

Peet, In re, 99 Iowa 314 473 

Phillip, In re, 205 Pa. 504 459 

Plumel, In re, 151 Cal. 77 455 
Rash, In re (Pa.), 2 Pars. Eq. Cas. 

160 40 

Reith, In re, 144 Cal. 314 480 

Robert, In re, 84 Wash. 163 717 

Roberts, In re, 163 Pa. St. 408 473 

Robinson, In re, 149 Pa. St. 418 48 

Rogers, In re, 131 Pa. St. 871 87 

Rose, In re, 63 Cal. 346 583 

Russell, In re, 150 Cal. 604 483 
Ryan, In re, 14 Wkly. Notes Cas. 

(Pa.) 79 716 

Schedel, In re, 73 Cal. 594 466 

Shillaher, In re, 74 Cal. 144 487 

Smith, In re, 131 Cal. 433 730 
Smith, In re, 144 Pa. St. 428 

59, 338, 339, 480 
Soulard, In re, 141 Mo. 642 59, 480 

Spring, In re, 216 Pa. 529 59 

Sternberg, In re, 94 Iowa 305 491 

Sullivan, In re, 48 Wash. 631 726 

Swenson, In re, 55 Minn. 300 471 

Thompson, In re, 6 S. Dak. 576 735 

Tobin, In re, 139 Wis. 494 436 

Tomlinson, In re, 133 Pa. St. 166 487 

Walin, In re, 189 Pa. St. 631 483 

Walker, In re, 5 Ariz. 70 719 

Walker, In re, 110 Cal. 387 457 
Walkerly, In re, 108 Cal. 627 

43, 482, 484 

Wells, In re, 69 Vt. 388 583 

Young, In re, 123 Cal. 337 487 

Esterly's Appeal, 109 Pa. St. 222 90 

Estes V. Nicholson, 39 Fla. 759 731 

V. Odom, 91 Ga. 600 257 

Estlow V. Hanna, 75 Mich. 219 553 

Espy V. Anderson, 14 Pa. St. 308 

26, 27, 30 

Esty V. Baker, 48 Maine 495 408 
E. T. Arnold & Co. v. Barner, 91 Kans. 

768 14 

Ettridge v. Bassett, 136 Mass. 314 535 

Eubanks v. Becton, 158 N. Car. 230 442 

Evans v. Anderson, 15 Ohio St. 324 492 

V. Ashe, 50 Tex. Civ. App. 54 394 

V. Fisher, 40 Miss. 643 736 

V. Frisbie, 84 Tex. 341 614 



Evans 

V. Holman, 244 111. 596 42fi 

V. Mengel, 3 Pa. St. 239 120 

V. Taylor, 177 Pa. St. 286 6 
Evansville Ice & Cold Storage Co. v. 

Winsor, 148 Ind. 682 119, 456 

Everitt v. Everitt, 71 Iowa 221 65 

Everson v. State, 66 Nebr. 154 350 

Evitts V. Roth, 61 Tex. 81 119 
Ewing V. Burnet, 11 Pet. (U. S.) 41 689 

V. Nesbitt, 88 Kans. 708 48 
V. Shannahan, 113 Mo. 188 

45, 338, 340 

Exchange Bank Tax Cases. 21 Fed. 99 645 

Ex parte Clark, 87 Cal. 638 718 

Foster, 2 Story (U. S.), 131 523, 552 

Gordan, 92 Cal. 478 650 

Harris, 26 Fla. 77 89 

Howard-Harrison Iron Co., 119 Ala. 

484 580 

Karish, 32 S. Car. 437 66 

Rice, 102 Ala. 671 98 

Watkins, 3 Pet. (U. S.) 193 650 

Yarborough, 110 U. S. 651' _ 650 
Exploration Mercantile Co. v. Pacific 

&c. Steel Co., 177 Fed. 825 380 

Exum V. Brister, 35 Miss. 391 222 



Factors' & Traders' Ins. Co. v. Murphy, 

111 U. S. 738 428 

Fagan V. Hook, 134 Iowa 381 3, 7 

V. Stuttgart Normal Institute, 91 

Ark. 141 100 

Fail V. Goodtitle, 1 111. 201 349 

Fair v. Brown, 40 Iowa 209 638 

Fairbanks v. San Francisco &c. R. Co., 

115 Cal. 579 693 

Fairman v. Bacon, 8 Conn. 418, 98 

Fair's Estate, In re, 132 Cal. 523 59 

Faith V. Bowles, 86 Md, 13 276 

Faivre v. Daley, 93 Cal. 664 291 

Falkner v. Jones, 12 Ala. 165 119 

Fallon V. Chidester, 46 Iowa 588 492 

Falls City Lumber Co. v. Watkins, 

53 Ore. 212 100 

Falls of Neuse Mfg. Co. «. Brooks, 106 

N. Car. 107 73 

Faloon v. Flannery, 74 Minn. 38 60 

Fannin Co. v. Riddle, 51 Tex. 360 100 

Fanning v. Doan, 128 Mo. 323 48 

V. Krapfl, 61 Iowa 417 581 

Faran v. Robinson, 17 Ohio St. 242 736 
Fargo V. Miller, 150 Mass. 225 729 

Parish v. Coon, 40 Cal. 33 100 

Farley v. EUer, 29 Ind. 322 322 

v. McKeegan, 48 Nebr. 237 S3 

Farmer v. Ward, 75 N. J. Eq. 33 638 

Farmers' Bank v. Heighe, 3 Md. 357 566 
Farmers' Loan & Trust Co. v. Carroll, 

5 Barb. (N. Y.) 613 59 

V. Iowa Water Co., 80 Fed. 467 89 

V. Maltby, 8 Paige (N. Y.) 361 8, 99 
Farmers & Merchants' Ins. Co. v. Jen- 
sen, 58 Nebr. 522 58 
Farmers & Merchants' Nat. Bank v. 

Wallace, 45 Ohio St. 152 321 

Farmers' Nat. Bank v. Fletcher, 44 

Iowa, 252 551 

Farnam v. Farnam, 83 Conn. 369 473 

Farnan v. Borders, 119 111. 228 ' 108 

Farnum v. Peterson, 111 Mass. 148 314 

Farr v. Flood, 11 Cush. (Mass.) 24 
Farrar v. Dean. 24 Mo. 16 
Farrell v. Bouck, 60 Nebr. 771 
v. Enright, 12 Cal. 450 



V. Lewis, 56 Conn. 280 



89 

732 

578 

732 

436, 439 



TABLE OF CASES 



xli 



V. Lockhart, 210 U. S. 142 - 108 

Farrell, In re, 176 Fed. 505 375 

Faueht v. Faught, 98 Ind. 470 

^ 492, 651, 678 

Faulkner v. Adams, 126 Ind. 459 265 

Fauntleroy's Heirs v. Dunn, 3 B. Mon. 

(Ky.) 594 106, 307 

Fawcett v. Mitchell, 133 Ky. 361 371 

Faxon v. United States, 171 U. S. 244 214 
Fayette L. Co. v. Louisville &c. R. Co., 

93 Va. 274 ^ 113 

Fechheimer v. Hollander, 21 D. C. 

76 375 

Federal St. & P. V. Pass. R. Co. v. 

Pittsburg, 226 Pa. 419 630 

Feinberg v. Stearns, 56 Fla. 279 565 

Feit V. Richard, 54 N. J. Eq. 16 46 

Feld V. Roanoke Inv. Co., 123 Mo, 

603 
Fellows V. Little, 46 N. H. 27 
Felton V. Brown, 102 Ark. 658 
Fenn v. Holme, 21 How. (U. S.) 481 
Fenno v. Sayre, 3 Ala. 458 
Fenton v. Miller, 94 Mich. 204 

V. Way, 44 Iowa 438 

Fereday v. Mankedick, 172 Pa. St. 535 244 

Ferguson v. Dent, 8 Mo. 667 273 

V. Herr, 64 Nebr. 649 718 

V. Spencer, 127 Ind. 66 62 

V. Thomason, 87 Ky. 519 476 

V. Tweedy, 43 N. Y, 543 64 

Ferguson's Appeal, In re, 117 Pa. St. 

42F 
Ferrell v. Gill, 130 Ga. 534 
Ferris v. Smith, 24 Vt. 27 

V. Van Vechten, 73 N. Y. 113 
. Fetes V. Volnier, 55 Hun (N. Y.) 604 
Field V. Morris, 88 Ark. 148 
Fields V. Burnett, 49 Tex. Civ. App. 

446 722 

Fies V. Rosser, 162 Ala. 504 669 

Fifield V. Sperry, 20 N. H. 338 444 

Fike V. Green, 64 N. Car. 665 723 

Filbert, In re, 195 Pa. St. 295 91 

Filmore v. Reithman. 6 Colo. 120 722 

Finch V. Garrett, 102 Iowa 381 737 

Finlay v. King, 3 Pet. (U. S.) 346 54, 276 
Finley v. Abner, 4 Ind. Terr. 386 87 

V. Hogan, 60 Ark. 499 73, 688 

V. Isett, 154 U. S. 561 339 

V. Prescott, 104 Wis. 614 280 

Finn v. Jones, 80 Kans. 431 643 

Finney v. St. Louis, 39 Mo. 177 53 

Firebaugh v. Ward, 51 Tex. 409 566 

First Nat. Bank v. Bell &c. Mining Co., 

8 Mont. 32 441 

V. Bennett, 40 Iowa 537 566 

V. De Pauw, 86 Fed. 722 476 

V. Edgar, 65 Nebr. 34 119 

V. Farmers & Merchants* Nat. Bank, 

171 Ind. 323 550, 553 

v. Jacobs, 50 Mich. 340 66 

V. Jaggers, 31 Md. 38 580 

V. Kreig, 21 Nev. 404 358 

V. Paul, 75 Va. 594 324 

v. Pearson, 119 N. Car. 494 355 

V. Woburn, 192 Mass. 220 956 

First Universalist Soc. v. Boland, 155 

Mass. 171 43, 482 

Fischer v. Johnson, 106 Iowa 181 62 

Fiscus V. Moore, 121 Ind. 547 

524, 602, 736 

Fish V. Capwell, 18 R. t. 667 62 

v. First Nat. Bank, ISO Fed. 524 438 

Fisher v. Edington, 80 Tenn. 189 308 

V. Fields, 10 Johns. (N. Y.) 495 59 



[References are to Sections.] 
Fisher 



443 
737 
735 
202 
417 
286 
673 



241 
455 
117 
5i2 
661 
722 



Hampton Trans. Co., 136 Mich. 

218 59 

v. Pender, 52 N. Car. 483 93 

V. Wister, 154 Pa. St. 65 469 

Fisk V. Chandler, 30 Maine 79 316 

v. Fisk, 60 N. J. Eq. 195 87 

V. Norvel, 9 Tex. 13 90 

Fitch v. Boyer, 51 Tex. 336 138 

v. Creighton, 24 How. (U. S.) 

159 527 

V. Pinckard, 5 111. 69 621 

V. Seymour, 9 Mete. (Mass.) 462 61 

V. Willard, 73 111. 92 6, 398 

Fitzpatrick v. New Orleans, 27 La. 

Ann. 457 658 

Flagg V. Dow, 99 Mass. 18 308 

V. Mann, 14 Pick. (Mass.) 467 418 

V. Teneick, 29 N. J. L. 25 722 

Flannigan v. Howard, 200 111. 396 

718, 720 
Fleming v. Bumgarner, 29 Ind. 424 535 

V. Burnham, 100 N. Y. 1 77 

V. Charnock, 66 W. Va. 50 634 

V. Greener, 173 Ind. 260 537 

V. Katahdin Pulp &c. Co., 93 Maine 

110 325 

V. Ray, 86 Ga. 533 468 

Flemister v. Flemister, 83 Ga. 79 451 

Fleschner v. Sumpter, 12 Ore. 161 

120, 123 

Fletcher v. Carpenter, 37 Mich. 412 436 

V. Fuller, 120 U. S. 534 699 

V. Holmes, 32 Ind. 497 716 

V. Monroe, 145 Ind. 56 65 

V. Root, 240 111. 429 678 

Flinn v. Barber, 64 Ala. 193 395, 398 

Flint V. Sheldon, 13 Mass. 443 419 

Flomerfelt v. Siglin, 155 Ala. 633 722 

Flood V. Pilgrim, 32 Wis. 376 723 

Flora V. Anderson, 67 Fed. 182 466 

Floto V. Floto, 213 111. 438 491 

Flower V. Elwood, 66 111. 438 429 

V. Myrick, 49 La. Ann. 321 737 

Flowers v. Flowers, 89 Ga. 632 325 

Floyd V. Ricks, 14 Ark. 286 265 

Floyd County V. Wolfe, 138 Iowa 749 66 

Flye V. Berry, 181 Mass. 442 429 

Fogarty v. Sawyer, 17 Cal. 589 442 

Fogg V. Clark, 1 N. H. 163 46, 467 

Fogler V. Titcomb, 92 Maine 184 470 

Folden v. State, 13 Nebr. 328 406 

Foley v. Harrison, 15 How. (U. S.) 

433 187 

V. McDonald, 46 Miss. 238 736 

Folk V. Brooks, 91 S. Car. 7 434 

V. Varn, 9 Rich. Eq. (S. Car.) 303 290 

Folts V. Ferguson (Tex. Civ. App.), 24 

S. W. 657 335 

Fontaine v. Houston, 58 Ind. 316 661 

Foorman v. Wallace, 75 Cal. 552 621 

Foote V. Clark, 102 Mo. 394 304, 345 

Forbes v. Hyde, 31 Cal. 342 661 

v. Scannell, 13 Cal. 242 372 

Ford V. Ford, 80 Mich. 42 456 

V. Ford, 70 Wis. 19 455 

V. Gill, 109 Ga. 691 46 

v. Kennedy, 1 Ore. 166 202 

V. Ticknor, 169 Mass. 276 472 

V. Unity Church Soc, 120 Mo. 498 

99, 125, 125 
V. Walsworth, 15 Wend. (N. Y.) 

449 602 

Fordyce v. Woman's Christian Nat. Li- 
brary Assn., 79 Ark. 550 226 
Fore v. Fore, 2 N. Dak. 260 65 
Forest v. Farley, 62 N. Y. 628 592 



xlii 



TABLE OF CASES 



[References are to Sections!] 



Forrest v. Camp, 16 Ala. 642 611 

V. Porch, 100 Tenn. 391 714 

Forsaith v. Clark, 21 N. H. 409 46 

Forsythe v. Ballance, 6 McLean (N. S.) 

562 227 

Ft. Smith V. McKibbon, 41 Ark. 45 102 

Fortune v. Hunt, 149 N. Car. 358 286 

Fosdick V. Fosdick, 6 Allen (Mass.) 41 482 

V. Hempstead, 55 Hun (N. Y.) 611 

467, 484 

Foss V. Atkins, 204 Mass. 337 954 

Foster v. Birch, 14 Ind. 445 602 

V. Browning, 4 R. I. 47 61 

V. Foster, 62 N. H. 46 277 

V. Joice, 3 Wash. (U. S.) 498 49 

V. Jordan, 130 Ky. 445 493 

V. Marshall, 22 N. H. 491 49 

V. Mitchell, 15 Ala. 571 119 

V. Stallworth, 62 Ala. 547 127 

V. Stewart, 18 Pa. St. 23 46 

V. Wick, 17 Ohio 250 43 

Fowler v. Black, 136 111. 363 465 

V. Chadima, 134 Iowa 210 325 

V. Duhme, 143 Ind. 248 466, 476 

V. Mickley, 39 Minn. 28 618 

V. Poor, 93 N. Car. 466 594 

Fowlkes V. Wagoner (Tenn.), 46 S. W. 

586 47, 56, 475 

Fox V. Frazer, 92 Ind. 265 338, 441 

V. Palmer, 25 N. J. Eq. 416 417 

V. Thibault, 33 La. Ann. 32 18, 21 

V. Western Pac. R. Co., 31 Cal. 538 110 

V. Zimmermann, 77 Wis. 414 616 

Francie's Appeal, In re, 96 Pa. St. 200 61 

Frank v. Hudson, 39 N. J. L. 347 534 

V. Stratford-Handcock, 13 Wyo. 37 54 

Franklin v. Kelley, 2 Nebr. 79 196 

Franklin Savings Bank v. Taylor, 131 

111. 376 138, 355, 547 

Franzen v. Hutchinson, 94 Iowa 95 376 
Frazer v. Frazer, 24 Ky. L. 2517 468 

Frazier v. Boggs, 37 Fla. 307 456 

V. Swain, 36 N. J. Eq. 156 
Frazin, In re, 174 Fed. 713 
Frederick v. Buckminster, 83 Nebr. 135 
V. Emig, 186 111. 319 
V. Wilcox, 119 Ala. 355 
Freedman v. Oppenheim, 187 N. 
101 
V. Safran, 131 App. Div. (N. 
675 



Y. 

Y.) 

Earle, 



664 
381 
568 
430 
422 

398 



549 
Freedman's Sav. & Trust Co, 

110 U. S. 710 . 566 

Freeman v. Atwood, 50 Maine 473 444 

V. Hawkins, 77 Tex. 498 661 

V. Peay, 23 Ark. 439 120 

V. Prendergast, 94 Ga. 369 60 

Freeman, In re, 146 Iowa 38 709 

Frellsen v. Crandell, 217 U. S. 71 224 

Fremont Cultivator Co. v. Fulton, 103 

Ind. 393 553 

French v. Fyan, 93 U. S. 169 207 

V. Mehan, 56 Pa. St. 286 321 

Frey v. Thompson, 66 Ala. 287 43 
Freydendall v. Baldwin, 103 111. 325 375 

Frick Coal Co. v. Laughead, 203 Pa. 

168 85 
Friedman v. Janssen, 23 Ky. L. 2155 S46 

V. Steiner, 107 III. 125 42 

Friedrichs v. New Orleans, E. & T. Co., 

114 La. 95 109 

Frisk V. Eeigelman, 75 Wis. 499 661 

Fritsche v. Fritsche, 77 Wis. 270 668 
Frost V. Beekman, 1 Johns. Ch. (N. Y.) 

288 120 

V. Courtis, 167 Mass. 251 471 

Frow V. Downman, 11 Ala. 880 375 

Fry V. Morrison, 159 111. 244 455 



Fryer v. Rockefeller, 63 N. Y. 268 

Fuhr V. Dean, 26 Mo. 116 61, 62 

Fulghum V. Strickland, 123 Ga. 258 471 

Fulkerson v. Taylor, 100 Va. 426 522, 567 

Fuller V. Arms, 45 Vt. 400 313 

V. Fuller, 84 Maine 475 46 

V. Missroon, 35 S. Car. 314 59 

V. Scribner, 76 N. Y. 190 547 

Fullmer v. Proust, 155 Pa. St. 275 536 

Fulmer v. Williams, 122 Pa. St. 191 272 

Fulton v. Doe, 5 How. (Miss.) 751 192 

Funk V. Eggleston, 92 111. 515 46 

V. Halderman, 53 Pa. St. 229 63 

Funke v. St. Louis, 122 Mo. 132 239 

Furgeson v. Jones, 17 Ore. 204 718 

Furrer v. Ferris, 145 U. S. 132 '' 664 

G 

Gage V. Consumers' Elect. Light Co., 

194 111. 30 955 

V. Gage, 12 N. H. 371 487 

V. Gage, 30 N. H. 420 336 

V. Pirtle, 124 111. 502 633 

V. Porter, 64 N. H. 619 445 

Gaines v. Fuentes, 92 U. S. 10 652 

V. Green Pond Iron Co., 33 N. J, 

Eq. 603 
V. Kennedy, 53 Miss. 103 
V. Saunders, 50 Ark. 322 
V. Strong, 40 Vt. 354 
Galloway v. Darby, 105 Ark. 558 

46, 464, 483, 485 

Galpin v. Abbott, 6 Mich. 17 120 

Calvin V. Britton, 151 Ind. 1 653 

Gamble v. Black Warrior Coal Co., 

172 Ala. 669 

v. Martin (Tex. Civ. App.), 151 S, 

W. 327 
V. Ross, 88 Mich. 315 
Gambril v. Doe, 8 Blackf. (Ind.) 140 
Games v. Stiles, 14 Pet. (U. S.) 322 
Gannon v. AUbright, 183 Mo. 238 

V. Moore, 83 Ark. 196 
Gano V. Aldridge, 27 Ind. 294 
Gans V. Renshaw, 2 Pa. St. 34 
Ganter v. Atkinson, 35 Wis. 48 
Garbutt v. Mayo, 128 Ga. 269 
Garcia v. Callender, 125 N. Y. 307 
Garden City Sand Co. v. Miller, 157 

111. 225 524 

Gardenhire v. King, 97 Tenn. 585 564 

Gardiner v. Miller, 47 Cal. 570 102 

Gardner v. Brown, 21 Wall. (U. S.) 36 447 

V. Cohn, 191 111. 553 424 

V. Collins, 2 Pet. (U. S.). 58 

87, 707, 708, 730 
V. Dakota, 21 Minn. 33 53 

V. Gardner, 13 Ohio St. 426 729 

V. Gardner, 42 Utah 40 87 

V. Moore, 51 Ga. 268 120 

Garland v. Harrison, 8 Leigh (Va.) 368 

86, 705, 719 

V. Smith, 164 Mo. 1 60 

Garner v. Wills, 92 Ky. 386 64 

v. Wood, 71 Md. 37 708 

Garnsey v. Rogers, 47 N. Y. 233 316 

Garrard v. Kendall (Ky. App.), 121 S. 

W. 997 678 

Garrett v. Clark, 5 Ore. 464 49 

V. Cohen, 63 Misc. (N. Y.) 450 568 

V. Fernauld, 63 Fla. 434 438 

V. Puckett, 15 Ind. 485 129, 316 

Garrison v. Haydon, 1 J. J. Marsh. 

(Ky.) 222 124 

Garry v. Newton, 201 111. 170 737 

Garvin v. Garvin, 34 S. Car. 388 563 

Garwood v. Garwood, 244 111. 580 66 



65 
600 
127 
711 



434 

674 

397 

267 

581 

46 

645 

297 

34 

53 

434 

196 



TABLE OF CASES 



xliii 



[References are to Sections.^ 



Gassert v. Bogk, 7 Mont. 585 415 

V. Strong, 38 Mont. 18 561 

Gaston v. Gaston, 114 Cal. 542 676 

V. Weir, 84 Ala. 193 262 

Gate City Abstract Co. v. Post, 55 Nebr. 

742 22, 26 

Gates V. Boston &c. R, Co., 53 Conn. 

333 447 

V. tabeaume, 19 Mo. 17 375 

V. Parmley, 93 Wis. 294 6 

Catling V. Carteret Co., 92 N. Car. 

536 636 

Gauch V. St. Louis Mut. L. Ins. Co., 

88 111. 251 716 

Gault V. Stormont, 51 Mich. 636 51 

Gavin v. Gaines, ? Ky. L. 247 737 

V. Sanders, 5 Ky. L. 321 66 

Gaylord v. Gaylord, 150 N. Car. 222 

286, 318 

V. Goodell, 173 Mass. 140 363 

V. Lafayette, 115 Ind. 423 59 

V. Sanitary Dist., 204 111. 576 109 

Gazlay v. Williams, 210 U. S. 41 408 

Gee V. Moore, 14 Cal. 472 308 

Geer v. Missouri Lumber &c. Co., 134 

Mo. 85 124 

Geithman v. Eichler, 265 111. 579 1 

Gelstrop v. Moore, 26 Miss. 206 360, 583 
Geneva v. Hanson, 195 N. Y. 447 297 

George v. Cole, 109 La. 816 637 

V. George, 47 N. H. 27 491, 492 

Gerard v. Buckley, 137 Mass. 475 59 

Gerhardt v. Ellis, 134 Wis. 191 447 

V. Tucker, 187 Mo. 46 672 

German v. Machin, 6 Paige (N. Y.) 

288 696 

Germania Life Ins. Co. v. Potter, 124 

App. Div, (N. Y.) 814 674 

Gessner v. Palmateer, 89 Cal. 89 407, 417 
Gest V. Packwood, 39 Fed. 525 417 

Getchell v. Benedict, 57 Iowa 121 317 

Ghazal, In re, 163 Fed. 602 382 

Gholson V. Desha, 32 Ky. L. 996 695 

Gibson v. Chouteau, 39 Mo. 536 

182, 184, 224, 226 301 

V. Garst, 81 Kans. 741 643 

V. Holden, 115 111. 199 407 

V. Leonard, 143 111. 182 62 

V. Sexson, 82 Nebr. 475 638 

V. Thomas, 180 N. Y. 483 119 

Giddings v. Giddings, 65 Conn. 149 485 

V. Smith, 15 Vt. 344 48 

Gilbert v. Baxter, 71 Iowa 327 27 

V. Peteler, 38 Barb. (N. Y.) 489 61 

V. Richards, 7 Vt. 203 326 

Gilchrist v. Gough, 63 Ind. 576 123, 132 

Gile V.' Hallock, 33 Wis. 523 572 

Giles V. Anslow, 128 111. 187 43 

V. Little, 104 U. S. 291 477 

V. Miller, 36 Nebr. 346 66 

V. Wilhoit (Tenn.), 48 S. W. 268 713 

Gill V. Grand Tower Min. &c. Co., 92 

111. 249 720 

V. Hardin, 48 Ark. 409 692 

V. Lydick, 40 Nebr. 508 103 

V. Pinney, 12 Ohio St. 38 122 

Gillen v. Hadley (N. J. Err. & App.), 

73 Atl. 849 678 

Gillespie v. Broas, 23 Barb. (N. Y.) 

370 70 

V. Rogers, 146 Mass. 610 122, 263 

Gillett V. Gaflney, 3 Colo. 351 467 

Gillig V. Maass, 28 N. Y. 191 428 

Gill's Estate, In re, 79 Iowa 296 732 

Gilman v. Hovey, 25 Mo. 280 

10, 15, 16, 24 

Gilmore v. Hamilton, 83 Ind. 196 49 

V. Sapp, 100 111. 297 229 



Gilpin V. Hollingsworth, 3 Md. 190 462 
Gilroy v. Richards, 26 Tex. Civ. App. 

355 483 

Gingrich v. Gingrich, 146 Ind. 227 474 
Girardin v. Lampe, 58 Wis. 267 120 

Gittings v. Worthington, 67 Md. 139 327 
Givan v. Doe, 7 Blackf. (Ind.) 210 437 
Given v. Hilton, 95 U. S. 591 460 

Givens v. Ott, 222 Mo. 395 93, 483 

Glading v. Frick, 88 Pa. St. 460 122 

Gladson v. Whitney, 9 Iowa 267 723 

Glascott V. Bragg, 111 Wis. 605 718 

Glass V. Gilbert, 58 Pa. St. 266 635 

Glasscock v. Tate, 107 Tenn. 486 43 

Glass' Estate, In re, 164 Cal. 765 458 

Glawatz v. People's Guaranty Search 

Co., 49 App. Div. (N. Y.) 465 12 

Gleason v. Spray, 81 Cal. 217 431 

Glendinning v. Superior Oil Co., 162 

Ind. 642 99 

Glenn v. Thistle, 23 Miss. 42 197 

Glidden v. Strupler, 52 Pa. St. 400 322 
Globe Mill Co. v. Bellingham Bay Imp. 

Co., 10 Wash. 458 227 

Glore V. Scroggins, 124 Ga. 922 472 

Glos V. Cass, 230 111. 641 643 

V. Cessna, 207 111. 69 955, 957 

V. Grant Bldg. &c. ~Assn., 229 III. 

387 955 

V. Holberg, 220 111. 167 955 

V. Kingman, 207 111. 26 955 

Gloss V. Sankey, 148 111. 536 718 

Glover v. Condell, 163 111. 566 469 

V. Reid, 80 Mich. 228 «78 

V. Shields, 32 Barb. (N. Y.) 374 270 
Glyn V. Title Guarantee &c. Co., 132 

App. Div. (N. Y.) 859 11 

Glynn v. George, 20 N. H. 114 62 

Goad V. Montgomery, 119 Cal. 552 678 

Godding v. Deker, 3 Colo. App. 198 195 

Godfrey v. Humphrey, 18 Pick. (Mass.) 

537 46 

Godwin v. Davis, 74 Miss. 742 210 

Goebel v. Wolf, 113 N. Y. 405 483 

Goettlicher v. Wille, 76 Misc. (N. Y.) 

361 437 

Goetz, In re, 13 Cal. App. 292 708 

Goff v. Anderson, 91 Ky. 303 64 

V. Goff, 60 W. Va. 9 676 

Goldberg V. Kidd, 5 S. Dak. 169 215 

V. Sisseton Loan &c. Co., 24 S. Dak. 

49 14, 22 

Golden v. Hardesty,.93 Iowa 622 286 

V. Murphy, 31 Nev. 395 693 

Goldsborough v. Hewitt, 23 Okla. 66 676 
Goldsmith v. Goldsmith, 46 W. Va. 

426 291 

Gomez v. Higgins, 130 Ala. 493 487 

Good V. Norley, 28 Iowa 188 652 

V. Zercher, 12 Ohio 364 322 

Goodell V. Sanford, 31 Mont. 163 35 

Goodgion v. Gilreath, 32 S. Car. 388 580 
Goodrich v. Adams, 138 Mass. 552 

708, 727 

V. Lambert, 10 Conn. 448 465 

Goodright v. Morningstar, 1 Yeates 

(Pa.) 313 48 

Goodtitle v. Gibbs, 5 B. & C. 709 45 

Goodwin v. Colby, 64 N. H. 401 734 

V. Keerl, 3 Harr. & M. (Md.) 403 728 

V. Owen, 55 Ind. 243 120 

Gordon v. Constantine Hydraulic Co., 

117 Mich. 620 121 

V. Ross-Higgins Co., 162 Fed. 637 200 

V. Ware Savings Bank, 115 Mass. 

588 429 

Gorham v. Daniels, 23 Vt. 600 58, 311 

V. Farson, 119 111. 425 638 



xliv 



TABLE OF CASES 



[References are to Sections.] 



Goring V. McTaggart, 92 Ind. 200 647 

Gormley v. Clark, 134 U. S. 338 I'OS 

Glossard v. Ferguson, 54 Ind. 519 595 

Gossett V. Tolen, 61 Ind. 388 121 

Gotham V. Gotham, 55 N. H. 440 99 

Gotthelf V. Stranahan, 138 N. Y. 345 527 
Goudy V. Shank, 8 Ohio 415 670 

Gough V. Manning, 26 Md. 347 477 

Gould V. Howe, 131 111. 490 275 

V. Tucker^ 20 S. Dak. 226 722 

Gourley v. Countryman, 18 Okla. 220 183 
Gove V. Gather, 23 111. 634 65 

Gowdy V. Sanders, 88 Ky. 346 658 

Grace v. Cox, 16 Ind. App. 150 656 

Grady v. Warrell, 105 Mich. 310 451 

Graeff v. DeTurk, 44 Pa. St. 527 60 

Graham v. DeYampert, 106 Ala. 279 

460, 464 
V. Hawkins, 38 Tex. 628 583 

V. Meek, 1 Ore. 325 322 

Grand Gulf R. &c. Co. v. Bryan, 8 

Smed. & M. (Miss.) 234 197 

Grandin v. Anderson, 15 Ohio St. 286 125 
Grandj can's Estate, In re, 78 Nebr. 

349 722 

Grand Rapids Nat. Bank v. Kritzer, 116 

Mich. 688 611 

Grand Rapids &c. R. Co. v. Alley, 34 

Mich. 18 677 

V. Butler, 159 U. S. 87 103 

Granger v. Granger, 147 Ind. 95 714 

Grannis's Estate, In re, 142 Cal. 1 485 
Grant v. Bustin, 21 N. Car. 77 728 

V. Grant, 63 Conn. 530 401 

V. Mosely (Tenn.) 52 S. W. 508 476 
Grantier v. Rosecrance, 27 Wis. 488 660 
Graton v. Holliday Koltz Land & Lum- 
ber Co., 189 Mo. 322 668 
Grattan v. Grattan, 18 111. 167 737 
Gratz V. Land &c. Co., 82 Fed. 381 119 
Graves v. Deterling, 120 N. Y. 447 

276, 277 

V. Ewart, 99 Mo. 13 570 

v. Ward, 2 Duv. (Ky.) 301 119 

Graves, In re, 242 III. 212 457, 705 

Gray v. Brignardello, 1 Wall. (U. S.) 

627 592 

V. Denson, 129 Ala. 406 592 

V. Holmes, 57 Kans. 217 718, 727 

v. Jones, 14 Fed. 83 203 

V. Pash, 24 Ky. L. 963 471 

V. Smith, 76 Fed. 525 508 

V. Swerer, 47 Ind. App. 384 708, 731 
Graydon v. Graydon, 23 N. J. Eq. 229 477 
Great Falls Nat. Bank v. McClure, 176 

Fed. 208 552 

Greeley State Bank v. Line, 50 Nebr. 

434 439 

Green v. Alden, 92 Maine 177 456 

V. Barker, 47 Nebr. 934 215 

V. Cross, 45 N. H. 574 444 

V. Garrington, 16 Ohio St. 548 132 

V. Gaston, 56 Miss. 748 442, 447 

V. Gordon, 38 App. D. C. 443 43 

V. Grant, 134 Mich. 462 426 

V. Green, 103 Cal. 108 124 

V. Lane, 45 N. Car. 102 455 

V. Liter, 8 Cranch. (U. S.) 229 P5 

V. Pettingill, 47 N. H. 375 444 

V. Rick, 121 Pa. St. 130 133, 551 

V. Tenold, 14 N. Dak. 46 536 

V. Witherspoon, 37 La. Ann. 751 120 

Greene v. Huntington, 73 Conn. 106 466 

Greenlee v. Davis, 19 Ind. 60 707, 708 

Greenstreet v. Thornton, 60 Ark. 369 570 

Greenwood v. Jenswold, 69 Iowa 53 289 

v. La Salle, 137 111. 225 646 

V. Marvin, 111 N. Y. 423 65 



Greenwood 

V. Trigg, Dobbs & Co., 143 Ala. 

617 562, 566 

V. Warren, 120 Ala. 71 546 

Greer v. Higgins, 20 Kans. 420 127 

V. Jackson, 127 Ga. 47 501 

v. Wilson, 108 Ind. 322 43 

Gregley v. Jackson, 38 Ark. 487 86, 719 

Gregory v. Gates, 92 Ky. 532 45$ 

V. Taber, 19 Cal. 397 602 

Greist V. Gowdy, 81 Conn. 351 429 

Grellet v. Heilshorn, 4 Nev. 526 121 

Gresham v. Johnson, 70 Ga. 631 66 

Grevemberg, v. Bradford, 44 La. 400 

98, 561 

Gribben v. Clement, 141 Iowa 144 429 

Oriel's Appeal, In re, 7 Sad. (Pa.) 137 535 

Griffin v. Arlt, 96 N. Y. S. 1033 13 

V. Dutton, 165 Fed. 626 370 

V. Franklin, 224 Mo. 667 669 

V. Nicholas, 224 Mo. 275 472 

Griffith V. Frazier, 8 Cranch (U. S.) 

9 90 

Grigg V. Landis, 21 N. J. Eq. 494 313 
Grim v. Weissenburg School Dist., 57 

Pa. St. 433 645 

Grimm v. Tittman, 113 Mo. 56 458 

Grissom v. Moore, 106 Ind. 296 65 

Gritten v. Dickerson, 202 111. 372 65 

Grogan v. Garrison, 27 Ohio St. 50 65 

Groome, In re, 94 Cal. 69 183 

Gross V. Bennington, 52 Wash. 417 568 

v. Grossdale, 177 111. 248 581 

V. Howard, 52 Maine 192 601 

V. Sheeler, 7 Houst. (Del.) 280 473 

V. Watts, 206 Mo. 373 284 

Grosscup V. German Sav. &c. Soc, 162 

Fed. 947 674 

Grove v. Todd, 41 Md. 633 324 

V. Zumbro, 14 Grat. (Va.) 501 , 283 
Grover v. Wakeman, 11 Wend. (N. 

Y.) 187 375 

Groves' Appeal, In re, 68 Pa. St. 143 676 
Grubb v. Grubb, 74 Pa. St. 25 63 

Grubbs v. Leyendecker, 153 Ind. 348 67 
Grube v. Lilienthal, 51 S. Car. 442 374 

Guerin v. Bagneries, 18 La. 590 740 

Guidry v. Woods, 19 La. 334 198 

Guier v. Bridges, 114 Ky. 148 727 

Guilfoil v. Arthur, 158 111. 600 341 

Guion V. Burton, Meigs (Tenn.) S65 87 
Gunn V. Brown, 63 Md. 96 478 

v. Brown (Md.), 23 Atl. 462 57 

Gunn's Appeal, In re, 55 Conn. 149 419 
Gurney v. Minneapolis Union Elevator 

Co., 63 Minn. 70 110 

Guthrie v. Beamer, 3 Okla. 652 95 

Gwin V. Calegaris, 139 Cal. 384 214 

Gwynne v. Niswanger, 20 Ohio 556 633 



H 

Habig V. Dodge, 127 Ind. 31 
Hacker's Appeal, In re, 121 Pac, 
Hackett v. Moxley, 68 Vt. 210 
Hadden v. Johnson, 7 Ind. 394 
Haden v. Goodwin, 217 Mo. 662 
Haeseig v. Brown, 34 Mich. 503 
Hafner v. Irwin, 20 N. Car. 433 
Hagaman v. Moore, 84 Ind. 496 
Hagan v. Ellis, 39 Fla. 463 95, 
Hager v. Spect, 52 Cal. 579 

"9. 125, 
Hagerty v. Hagerty, 12 Tex. 456 
Haggerty v. Brower 105 Iowa 395 

v. Wagner, 148 Ind. 625 
Hagler v. Simpson, 44 N. Car. 384 
Hague V. Aherns, 53 Fed. 58 



192 



334 
281 
320 
350 
668 
439 
291 
110 
192, 226 

336, 433 
715 
420 
325 
279 
475 



TABLE OF CASES 



xlv 



[References are to Sections.] 



Haight V. Hall, 74 Wis. 152 64 

Haiiek v. Luck, 96 Tex. 517 377 

Hale V. Baker, 60 Tex. 217 530 

V. Cottle, 21 Ore. 580 272 

V. Marquette, 69 Iowa 376 601 

Haley v. Boston, 108 Mass. 576 714 

Hall V. Alford, 114 Mich. 165 272 

V. Ashby, 9 Ohio 96 306 

V. Craig, 125 Ind. 523 663 

V. Dean, 13 Johns. (N. Y.) 105 518 

V. Denison, 17 Vt. 310 372 
V. Farmers' Nat. Bank, 53 Md. 120 375 

V. Fields, 81 Tex. 553 66 

V. Hall, 76 Kans. 806 59 

V. Hall, 98 Wis. 193 451 

V. Jarvis, 65 III. 302 185, 186 

V. Law, 102 U. S. 461 73 

V. Lawrence, 2 R. I. 21& 63 

V. Livingston, 3 Del. Ch. 348 127 

V. Miller, 150 Mich. 300 645 

V. Moore, 32 Ky. L. 56 64 

V. Moore, 70 Miss. 75 616 

V. Priest, 6 Gray (Mass.) 18 468 

V. Russell, 101 U. S. 503 202 
V. St. Louis Mfg. Co., 22 Mo. App. 

33 535 

V. Smith, 61 N. H. 144 483 

V. Tunnell, 1 Houst. (Del.) 320 122 

V. Turner, 110 N. Car. 292 43 

V. Vandegrift, 3 Bin. (Pa.) 374 48 

Halle V. Newbold, 69 Md. 265 277 

Halleck v. Guy, 9 Cal. 181 595 

Hallett V. Hallett, 8 Ind. App. 305 65 

V. Parker, 68 N. H. 598 65 

Hall Safe & Lock Co. v. Scites, 38 W. 

Va. 691 536 

Hallyburton v. Slagle, 130 N. Car. 482 99 

Halsey v. Goddard, 86 Fed. 25 462 

Halstead v. Lake Co., 56 Ind. 363 111 

Ham V. Miller, 20 Iowa 450 527 

Hamberger v. Bastes, 57 Ga. 71 577 

Hamby v. Hamby, 165 Ala. 171 675 

Hamilton v. Browning, 94 Ind. 242 436 

V. Downer, 152 111. 651 59 

V. Hamilton, 149 Iowa 321 354 

V. Hubbard, 134 Cal. 603 320 

V. Nut*, 34 Conn. 501 129 

V. Pitcher, 53 Mo. 334 261 

V. Steele (Ky.), 117 S. W. 378 224 

Hamilton Trust Co. v. Clemes, 163 N. 

Y. 423 417 

Hamlet v. Johnson, 26 Ala. 557 483 

Hamlin v. Osgood, 1 Redf. Surr. (N. 

Y.) 409 713 

Hammann v. Mink, 99 Ind. • 279 362 

Hammon v. Douglas, 50 Mo. 434 53 

Hammond v. Croxton, 162 Ind. 353 60 

V. Gordon, 93 Mo. 223 349 

Hampe v. Higgins, 74 Kans. 296 33 
Hancock v. Beverly, 6 B. Mon. (Ky.) 

531 118 

V. King, 133 Ga. 734 100 

Hand v. Weidner, 151 Pa. St. 362 325 

Handford v. Edwards, 89 Ark. 151 565 

Handley v. Palmer, 91 Fed. 948 458 

V. Palmer, 103 Fed. 39 456 

Handley, In re, 208 Pa. 388 467 

Hanley v. Kraftczyk, 119 Wis. 352 450 
Hanlon v. Union Pac. R. Co., 40 Nebr. 

52 694 
Hanna v. Hanna, 10 Tex. Civ. App. 

97 714 

Hannibal & St. J. R. Co. v. Green, 68 

Mo. 169 297 

Hannon v. Southern Pac. R. Co., 12 Cal. 

App. 350 705 

Hannum v. Day, 105 Mass. 33 602 



Hanover Nat. Bank v. Moyses, 186 U. 

S. 181 377 

Hanrick v. Patrick, 119 U. S. 156 302 

Hanscom v. Hanscom, 6 Colo. App. 97 676 

Hansford v. Tate, 61 W. Va. 207 593 

Hanson v. Franklin, 19 N. Dak. 259 646 

V. Johnson, 62 Md. 25 52 

Hantz V. May, ^37 Iowa 267 509 

Haraden v. Larrabee, 113 Mass. 430 729 

Harbaugh v. Costello, 184 111. 110 377 

Hardage v. Stroope, 58 Ark. 303 465 

Hardie v. Bissell, 80 Ark. 74 700 

Hardin v. Boyd, 113 U. S. 756 391, 392 

V. Crate, 78 111. 533 265 

v. Day, 29 Wash. 664 564 

V. Hardin, 32 S. Car. 599 263 

Harding v. Allen, 70 Md. 395 123 

V. Guaranty &c. Trust Co., 3 Kans. 

App. 519 553 

V. Harding, 16 S. Dak. 406 676 

V. LeMoyne, 114 111. 65 723 

Hardy v. Beaty, 84 Tex. 562 662 

V. Galloway, 111 N. Car. 519 47 

v. Samuels, 92 Ark. 289 699 

Hargis v. Ditmore, 86 Ky. 653 262 

Hargreaves v. Menken, 45 Nebr. 668 612 

Hargroves v. Redd, 43 Ga. 142 456, 458 

Haring v. Murphy, 60 Misc. (N. Y.) 

374 565 

v. Shelton, 103 Tex. 10 43, 477 

V. Van Buskirk, 8 N. J. Eq. 545 708 

Harkey v. Day, 61 Tex. Civ. App. 244 614 

Harkness v. Hyde, 98 U. S. 476 663 

V. Lisle, 132 Ky. 767 47 

Harley v. Harley, 140 Wis. 282 668 

V. State, 40 Ala. 689 732 

Harlow v. Lake Superior Iron Co., 36 

Mich. 105 63 

v. Thomas, 15 Pick. (Mass.) 66 316 
Harlowe v. Hudgins, 84 Tex. 107 309 

Harmon v. Grant's Pass &i5. Trust Co., 

60 Ore. 69 418 

V. Harmon, 61 Maine 222 62 

v. Thompson, 119 Ky. 526 399 

Harper v. Clayton, 84 Md. 346 620 

V. Tapley, 35 Miss. 506 124 

Harral v. Leverty, 50 Conn. 46 434, 692 

Harriman v. Woburn Electric Light Co., 

163 Mass. 85 121 

Harrington v. Allen, 48 Miss. 492 126 

v. Erie County Sav. Bank, 101 N. 

Y. 257 118 

Harris v. Arnold, 1 E. I. 125 434 

V. Chicago, 162 111. 288 110 

V. Elliott, 10 Pet. (U. S.) 25 503 

V. Hiscock, 91 N. Y. 340 308 

V. Ingajls, 74 N. H. 339 359 

V. Jones,, 83 N. Car. 317 421 

V. Lester, 80 111. 307 509 

V. McCrary, 17 Idaho 300 697 

V. Mason, 120 Tenn. 668 613, 668 

V. Oakley, 130 N. Y. 1 271 

Harris, In re, 2 Ann. B. E. 359 385 

Harrison v. Alexander, 135 Ala. 307 668 
V. Boyd, 36 Ala. 203 67 

V. Foote, 9 Tex. Civ. App. 576 54 

V. Harrison, 105 Ga. 517 43, 474 

V. McMurray, 71 Tex. 122 138 

V. Palo Alto Co., 104 Iowa 383 331 
V. Ray, 108 N. Car. 215 321 

V. Shaiifer, 60 Kans. 176 548 

V. Simons, 55 Ala. 510 280 

V. Trustees of Philip's Academy, 12 

Mass. 456 310 

V. Weatherly, 180 111. 418 119 

Harrison's Estate, 18 Pa. Super. Ct. 

588 734 

Harryman v. Starr, 56 Md. 63 353 



xlvi 



TABLE OF CASES 



[References are to Sections.] 



Hart V. Eppstein, 71 Tex. 752 419 
V. Farmers' &c. Bank, 33 Vt. 252 

118, 128 

V. Gibbons, 14 Tex. 213 185 

V. Gregg, 32 Ohio St. 502 714 

V. Henderson, 17 Mich. 218 634 

V. Kendall, 82 Ala. 144 723 

V. Seymour, 147 111. 598 58 

V. Smith, 44 Wis. 213 633 

V. West, 16 Tex. Civ. App. 395 486 

V. White, 26 Vt. 260 467 

Hartfield v. Brown, 8 Ark. 283 578 

Hartigan v. Hartigan, 65 W. Va. 471 64 

Hartley v. Boynton. 17 Fed. 873 661 

V. Keokuk &c. R., 85 Iowa 455 677 

Hartmann, v. Hartmann, 59 111. 103 670 

Harton v. Little, 176 Ala. 267 358 

Hartshorn v. Cleveland, 52 N. J. L. 

473 632 

Hartwell v. Parks. 240 Mo. 537 491 

Harty v. Harris, 120 N. Car. 408 53 

Harvey v. Ball, 32 Ind. 98 719, 724 

V. Gunzberg, 148 Pa. St. 294 53 

V. Holies, 160 Fed. 531 698 

v. Steptoe, 17 Grat. (Va.) 289 722 

Harvill v. Holloway, 24 Ark. 19 65 

Hascall v. Cox, 49 Mich. 435 714 

Haseltine v. Donahue, 42 Wis. 576 331 

Haskell v. Bissell, 11 Conn. 174 122 

Hassaurek v. Hassaurek, 68 Ohio St. 

554 676 

Hassey v. Wilke, 55 Cal. 525 119, 129 
Hastings & D. R. Co. v. Whitney, 132 

U. S. 357 200 

Hatch V. Haskins, 17 Maine 391 122 

Hatch's Estate, In re, 62 Vt. 300 66 

Hatchett v. Hatchett, 103 Ala. 556 60 

Hately v. Myers, 96 111. App. 217 53 

Hatfiel V. Sneden, 54 N. Y. 280 64 

Hathaway v. Howell, 54 N. Y. 97 567 

Hathorn v. Maynard, 65 Ga. 168 118 
Haughwout V. Murphy, 22 N. T. Eq 

531 547 

Hauxhurst V. Lobree, 38 Cal. 563 52 

Haven v. Adams, 4 Allen (Mass.) 80 332 
Havens v. Seashore Land Co., 47 N. J. 

Eq. 365 289, 312 

Havighorst v. Bowen, 214 111. 90 433 
Hawes v. United States Trust Co., 142 

App. Div. (N. Y.) 789 956 

Hawkins v. Chapman, 36 Md. 83 363 

V. Hansen, 92 Kans. 73 474 

V. Hughes, 87 N. Car. 115 650 

V. Jones, 19 Ohio St. 22 719 

V. Pugh, 91 Ky. 522 431 

V. Taylor, 128 Ind. 431 575 

Hawley v. Bullock, 29 Tex. 216 124 

V. Northampton, 8 Mass. 3 48 

Haworth v. Taylor, 108 111. 275 122 

Haxtum, In re, 102 N. Y. 157 602 

Hay V. Hay (Tex. Civ. App.), 120 S. 

W. 1044 678 

V. Hill, 24 Wis. 23S 122 

Hayden v. Barrett, 172 Mass. 472 714, 719 

V. Peirce, 165 Mass. 359 64 

v. St. Louis &c. R. Co., 222 Mo. 

126 297 

Hayes v. Hayes, 242 Mo. 155 480 

V. MartE, 173 Ind. 297 466 
V. Southern Home Bldg. &c. Assn., 

124 Ala. 663 426 

v. Tabor, 41 N. H. 521 59 

Haves Appeal, In re, 123 Pa. St. 110 654 

Hay, In re, 89 Pa. St. 256 711 

Haymond v. Murphy, 65 W. Va. 616 562 

Haynes v. Bourn, 42 Vt. 686 42 

V. Meeks, 20 Cal. 288 653 

V. Walker, 111 Tenn. 106 87 



Hays V. Goldman, 71 Ark. 251 308 

V. Hall, 4 Port. (Ala.) 374 397 

V. Peavey, 54 Wash. 78 622 

V. Wilstach, 82 Ind. 13 621 

Hayward v. Kinney, 84 Mich. 591 49 

Haywood v. Haywood, 80 N. Car. 42 601 

V. Wright, 152 N. Car. 421 59 

Hazelton v. Bogardus, 8 Wash. 102 723 

V. Putnam, 3 Pinney (Wis.) 107 61 

Hazen v. Webb, 68 Kans. 308 616 

H. B. Claflin Co. v. King, 56 Fla. 767 566 

Heacock v. Lubuke, 107 111. 396 138 

Heacock v. Van Dusen, 80 Mich. 359 73 

Headen v. Headen, 42 N. Car. 159 737 

Heald v. Heald, 56 Md. 300 720 

Heard v. Brooklyn, 60 N. Y. 242 503 

V. Heard, 181 Ala. 230 417 

Hearn v. Purnell, 110 Md. 458 286 

Heath v. Nutter, 50 Maine 378 335, 336 

V. White, 5 Conn. 228 64 

v. Williams, 30 Ind. 495 418 

Hebron v. Centre Harbor, 11 N. H. 

571 120 

Heflin v. Phillips, 96 Ala. 561 278 

Heidlebaugh v. Wagner, 72 Iowa 601 461 

Heiland v. Ertel, 4 Kans. App. 514 393 

Heil's Appeal, In re, 40 Pa. St. 453 582 

Heinlen v. Martin, 53 Cal. 321 336 
Heinsen v. Lamb, 117 III. 549 

1, 5, 10, 194 

Heist V. Baker, 49 Pa. 9 516 

Helfenstein v. Garrard, 7 Ohio 275 58 

Heller v. Cohen, 154 N. Y. 299 700 

V. Cohen, 15 Misc. (N. Y.) 378 76 

Helm v. Board, 114 Ky. 289 620 

V. Leggett, 66 Ark. 23 477 

Helms V. Elliott, 89 Tenn. 446 718 

Hemphill V. Flynn, 2 Pa. St. 144 53 

Henderson v. Bonar, 11 Ky. L. 219 90 

V. Carbondale &c. Co., 140 U. S. 

^ 25 663 

V. Ford, 46 Tex. 627 337 

V. Hays, 41 N. J. L. 387 616 

V. Hunter, 59 Pa. St. 335 55 

V. Pilgrim, 22 Tex. 464 119, 437 

V. Sherman, 47 Mich. 267 708 

Henderson, In re, 161 Cal. 353 471 

Hendon v. White, 52 Ala. 597 623 

Hendricks v. Gillespie, 25 Grat. (Va.) 

181 34 

V. Stark, 37 N. Y. 106 507 

Hendnckson v. Woolley, 39 N. J. Eq. 

„307 _ 126 

Hendnx v. Cawthorn, 71 Ga. 742 662 

V. McBeth,. 61 Ind. 473 65 

Henmnger v. McGuire, 146 Iowa 270 419 

Henry v. Atkison, 50 Mo. 266 331 

V. Bradshaw, 20 Iowa 355 286 

V. Brannan, 149 Ala. 323 207 

V. Henderson, 81 Miss. 743 451 

V. McKerlie, 78 Mo. 416 360, 596 

Hensley v. Rose, 76 Ala. 373 662 

Henszey v. Gross, 185 Pa. St. 353 730 

Hentig V. Redden, 46 Kans. 231 575 

Herbert v. Wren, 7 Cranch (U. S.) 

370 675 

Herkimer v. McGregor, 126 Ind. 247 737 
Herman v. Somers, 158 Pa. St. 424 

Hermocilla v. Hubbell, 89 Cal. 5 208 

Herndon v. Kimball, 7 Ga. 432 120 

Herod v. Carter, 81 Kans. 236 643 

Heron v. Weston, 44 Colo. 379 665 

Herr V. Broadwell, 5 Colo. App. 467 615 

Hernck V. Ammerman, 32 Minn. 544 348 

V. Morrill, 37 Minn. 250 659 
Herrmann v. New York, 136 App. Div. 

(N. Y.) 28 '^'^ 552 



TABLE OF CASES 



xlvii 



[References are to Sections.] 



Hersey v. Purington, 96 Maine 166 43 

Hershey v. Dennis, 53 Cal. 77 577 

Hersliiser v. Ward, 29 Nev. 228 

16, 19, 24 
Herzog V. Title Guarantee & Trust Co., 

177 N. Y. 86 455 

Heslop V. Heslop, 82 Pa. St. 537 35 

Hesnard v. Plunkett, 6 S. Dalt. 73 66 

Hess V. Clieney, 83 Ala. 251 104 

Heyer v. Alexander, 108 111. 385 376 

Heywood's Estate, In re, 148 Cal. 184 

59, 480 
Hibbard &c. Co. v. Chicago, 173 111. 91 62 
Hibberd v. Smith, 67 Cal. 547 101, 613 
Hibler v. Hibler, 104 Mich. 274 

45, 459, 483 
Hickie V. Starke, 1 Pet. (U. S.) 94 196 
Hicklin v. Marco, 56 Fed. 549 672 

Hickman v. Green, 123 Mo. 165 128 

Hickox V. Lowe, 10 Cal. 197 424 

Hicks V. Phillips, 148 Ky. 670 722 

V. Texas Loan & Investment Co., 

51 Tex. Civ. App. 298 431 

Hickson v. Lingold, 47 Ala. 449 531' 

Hickson Lumber Co. v. Gay Lumber 

Co., ISO N. Car. 281 432 

Hiestand v. Meyer, 150 Pa. St. 501 461 

Hiestes v. Green, 48 Pa. St. 96 316 

Higgins V. Breen, 9 Mo. 497 65 

V. Dennis, 104 Iowa 605 8, 10 

V. Eaton, 188 Fed. 938 456 

V. Higgins, 57 Ohio St. 239 722 

V. Manson, 126 Cal. 467 417 

V. West, 5 Ohio 554 447 

Highstone v. Burdette, 54 Mich. 329 687 

Higinbotham v. Stoddard, 72 N. Y. 94 272 

Hildreth v. Googins, 91 Maine 227 61 

v. Thompson, 16 Mass. 191 675 

Hill v. Alexander, 2 Kans. App. 251 437 

V. Bacon, 110 Mass. 387 526 

V. Eldred, 49 Cal. 398 417 

V. Gray, 160 Ala. 273 47 

V. Heard, 104 Ark. 23 722 

V. King, 48 Ohio St. 75 569 

V. Lund, 13 Minn. 451 637 

V. McNichol, 76 Maine 314 126 

V. Meeker, 24 Conn. 211 118 

V. Miller, 36 Mo. 182 224 

V. Pike, 174 Mass. 582 65 

V. Pixley, 63 Barb. (N. Y.) 200 428 

V. Reynolds, 93 Maine 25 347 

V. Swihart, 148 Ind. 319 347 

V. Taylor, 77 Tex. 295 120 

V. Williams, 104 Md. 595 633 

Hillen v. Iselin, 144 N. Y. 365 713 

Hillhouse v. Chester, 3 Day (Conn.) 

166 87 

Hillman v. Stephens, 16 N. Y. 278 723 

Hillman Land & Iron Co. v. Marshall 

(Ky. App.), 119 S. W. 180 699 

Hillock V. Idaho Title &c. Co., 22 Idaho 

440 9, 16, 17, 23 

Hills V. Miller, 3 Paige (N. Y.) 254 61 
Hilpire v. Claude, 109 lov/a 159 718 

Hilton V. Woodman's Estate, 124 Mich. 

326 436 

Hinchlifife v. Shea, 103 N. Y. 153 65 

Hingham & Q. Bridge & Tpk. Corp. v. 

Norfolk, 6 Allen (Mass.) 353 677 

Hinton v. Hicks, 156 TST. Car. 24 430 

Hinzie v. Hinzie, 45 Tex. Civ. App. 

297 485 

Hiss V. McCabe, 45 Md. 77 284 

Hitchcock v. MIerrick, 18 Wis. 375 426 
Hitner v. Ege, 23 Pa. St. 305 64 

Hoadly v. Wood; 71 Conn. 452 471, 476 
Hoagland v. Becfcley, 158 Mich. 565 286 
Hobart v. Hobart, 45 Iowa 501 676 



Hobbs V. Batory, 86 Md. 68 53 

Hobson V. Hale. 95 N. Y. 588 456 

Hochlander v. Hochlander, 73 111. 618 659 
Hochstein v. Berghauser, 123 Cal. 681 714 
Hockaday v. Lynn, 200 Mo. 456 718 

Hockett V. Burns, 90 Nebr. 1 426 

Hockman v. McClannahan, 87 Va. 33 324 
Hodgdon v. Shannon, 44 N. H. 572 424 

V. Wight, 36 Maine 326 637 

Hodge V. Donald, 55 Tex. 344 227 

Hodgen v. Guttery, 58 HI. 431 658 

Hodges v.Spicer, 79 N. Car. 223 101 

V. Williams, 95 N. Car. 331 104 

Hodgkins v. Farrington, ISO Mass. 19 507 
Hodgman v. Kittredge, 67 N. H. 254 458 
Hoffman v. Hoffman, 26 Ala. 535 4S6 

v. Stigers, 28 Iowa 302 321 

Hoffman Burneston & Co. v. Mackall, 5 

Ohio St. 124 117, 338, 441 

Hoilsass v. Mann, 74 Md. 400 49 

Hogan v. Hogan, 19 Ky. L. 1960 719 

V. Jaques. 19 N. J. Eq. 123 318 

Hohn V. Bidwell, 27 S. Dak. 249 724 

Hoit V. Hoit, 40 N. J. Eq. 551 574 

Holbrook v. Debo, 99 111. 372 303 

Holcomb V. Lake, 24 N. J. L. 686 48, 724 
Holden v. Alexander, 82 S. Car. 441 272 
V. Butler, 173 Mich. 116 434 

Hole V. Robbins, 53 Wis. 514 718 

Holland v. Rogers, 33 Ark. 251 398 

Hollenback v. Fleming, 6 Hill. (N. 

Y.) 303 282 

Holley V. Horton, 164 Mich. 31 66 

Holliday v. Cromwell, 26 Tex. 188 120 

V. Hively, 198 Pa. St. 335 320, 479 

Holliiield v. Landrum, 31 Tex, Civ. 

Am. 187 1, 25 

Hollingshead v. Nauman, 45 Pa. St. 

140 688 

Hollister v. Butterworth, 71 Conn. 57 476 

Holloway v. Jones, 143 Pa. St. 564 73 

v. McCormick, 41 Okla. 1 733 

Holm V. Wust, 11 Abb. Prac. (N. S.) 

(N. Y.) 113 30 

Holman v. Riddle, 8 Ohio St. 384 487 

Holme V. Strautman, 35 Mo. 293 202 

Holmes v. Adams, 110 Maine 167 724 

V. Cleveland &c. R. Co., 3 Ohio Dec. 

416 108 

V. Jordan, 163 Mass. 147 611 

V. Walter, 118 Wis. 409 59, 480 

v. Woods, 168 Pa. St. 530 77 

Holmes, In re, 131 N. Y. 80 564 

Holt V. Agnew, 67 Ala. 360 86 

V. Classen, 19 Okla. 131 200 

V. Murphy, 15 Okla. 12 201 

V. Pickett. Ill Ala. 362 465 

V. Thacher, 52 Vt. 592 570 

V. Watson, 71 Ark. 87 89 

Home for Incurables v. Noble, 172 U. 

S. 383 452, 455 

Homestead of Emerson, In re, 58 

Minn. 450 66 

Hone V. Fisher, 2 Barb. Ch. (N. Y.) 

559 674 

v.^Woolsey, 2 Edw. Ch. (N. Y.) 

289 298 

Hood V. Hood, 110 Mass. 463 652 

Hooper v. Henry, 31 Minn. 264 428 

v. Scheimer, 23 How. (U. S.) 235 751 

V. Smith, 88 Md. 577 471 

v. Van Husen, 105 Mich. 592 397 

V. Young, 140 Cal. 274 224 

Hoover v. King, 43 Ore. 281 668 

V. Smith, 96 Md. 393 714 

V. Weesner, 147 Ind. 510 28 

Hope V. Blair, 105 Mo. 85 568 

V. Hoover (Miss.), 21 So. 134 719 



xlviii 



TABLE OF CASES 



Hope 

V. Shevill, 137 App. Div. 86 
Hopkins v. Bryant, 85 Tenn. 520 
V. Gluift, 111 Pa. St. 287 
V. Grimshaw, 165 U. S. 342 
V. Ratliff, 115 Ind. 213 
V. Sanders, 172 Mich. 227 
V. Smith, 162 Mass. 444 
Hopper V. Demarest, 21 N. J. L. 
Hoppock V. Tucker, 59 N. Y. 202 
Horbach v. Hill, 112 U. S. 144 
Horn V. Butler, 39 Minn. 515 
Hornblower v. Banton, 103 Maine 375 
Home V. Rogers, 110 Ga. 362 



525 



600, 617 
50 



Horner v. Doe, 1 Ind. 130 

V. Leeds, 25 N. J. L. 112 
Horsley v. Grath, 2 Grat. (Va.) 471 
Horton V. Earle, 162 Mass. 448 

V. Sledge, 29 Ala. 478 
Hosack V. Rogers, 6 Paige (N. Y.) 

415 724 

Hoselton v. Hoselton, 166 Mo. 182 55 
Hosleton v. Dickinson, 51 Iowa 244 257 
Hosmer v. Campbell, 98 111. 572 364 

V. Wallace, 97 U. S. 575 , 196 

Hotchkin v. Bussell, 46 Wash. 7 722 

Hottenstein v. Lerch, 104 Pa. St. 454 687 
Houck V. Yates, 82 111. 179 104 

Hough V. Buchanan, 27 Fed. 328 100 

Houghton V. Dickinson, 196 Mass. 389 719 

V. Kern Val. Bank, 157 Cal. 289 643 

V. Wilhelniy, 157 Mass. 521 689 

Hoult V. Donahue, 21 W. Va. 294 74 

House V. Lockwood, 137 N. Y. 259 

561, 575 
Houseman v. Girard Bldg. &c. Assn., 

81 Pa. St. 256 21, 22 

V. International Nav. Co., 214 Pa. 
552 
Houston V. Blackman, 66 Ala. 559 

V. Davidson, 45 Ga. 574 

V. McKinney, 54 Fla. 600 
Houzik V. Delglise, 65 Wis. 494 
Hovey v. Blanchard, 13 N. H. 145 

V. Edmison, 3 Dak. 449 

V. Hobson, 51 Maine 62 

V. Walbank, 100 Cal. 192 
Howard v. Chase, 104 Mass. 249 

V. Grant, 107 Ark. 594 

V. Harrington, 27 R. I. 586 

V. Iron &c. Co., 62 Minn. 298 

V. Kennedy, 4 Ala. 592 

V. Rumble, 4 Ga. App. 327 

V. Turner, 125 N. Car. 107 
Howard Ins. Co. v. Halsey, 8 N. Y. 

271 
Howard Inv. Co. v. Benton Land Co. 

5 Kans. App. 716 
Howe V. Coates, 97 Minn. 385 

V. Harrington, 18 N. J. Eq. 495 

V. Howe, 152 111. 252 
. V. Hutchinson, 105 111, 



[References are to Sections.^ 

Hubbard v. Hubbard, 12 Barb. (N. Y.) 

447 148 454 

65 V. Jones, 61 Kans. 722 566 

59 V. Kiddo, 87 111. 578 687 

482 V. Norton, 10 Conn. 422 425 

405 V. Whitehead, 221 Mo. 672 272 

638 V. Worcester Art Museum, 179 

474 Fed. 406 458 

64 Huber v. Brown, 57 Wash. 654 643 

471 V. Hess, 191 111. 305 592 

418 Huckabee v. Swoope, 20 Ala. 491 43 

6, 77 Hudnall v. Ham, 172 111. 76 722 

690 V. Ham, 183 111. 486 719 

400 Hudson v. Gray, 58 Miss. 882 720 

V. Hudson, 222 111. 527 735 

V. Hudson's Admr. (Ky. App.), 121 

122 S. W. 973 297, 321 

471 V. Webber, 104 Maine 429 283, 289 

56 V. Wright, 204 Mo. 412 669 

Huene v. Cribb, 9 Cal. App. 141 421 

Huff V. Hastings Express Co., 195 111 



103 
266 
719 
717 
434 
128 
426 
314 
461 
129 
722 
734 
417 
668 
565 
266 

129 

638 

77 

336 

461 

501 

25, 31, 35 

132 

402 66 



V. Thayer, 49 Iowa 154 
Howell V. Jones, 91 Tenn, 

V. Shepard, 48 Mich. 472 658 
Hower v. Weiss Malting &c. Co., 55 

Fed. 356 651 

Howes V. Barmon, 11 Idaho 64 61, 62 

Howland v. Slade, 155 Mass. 415 471 

Hoxie V. Payne, 41 Conn. 539 659 

Hoy V. Varner, 100 Va. 600 325 

Hoyt V. Jones, 31 Wis. 389 118 

V. Ketcham, 54 Conn. 60 306 

V. Tuxbury, 70 III. 331 35 

V. Weyerhauser, 161 Fed. 324 184 

Hronska v. Janke, 66 Wis. 252 262 



257 272 

V. McCauIey, 53 Pa. St. 206 61 

V. Sweetser, 8 Cal. App. 689 565 

V. Webb, 64 Tex. 284 284 

Huffman v. Leslie, 23 Ky. L. 1981 315 

Hugg V. Hintrager, 80 Iowa 359 538 

Huggins V. Huggins, 71 Ga. 66 737 

Hughes V. Decker, 38 Maine 153 719 

V. Edwards, 9 Wheat. (U. S.) 489 429 

V. Farmers' Nat. Bank, 83 Vt. 386 552 

V. Fitzgerald, 78 Conn. 4 59, 480 

V. Hammond, 136 Ky. 694 274 

V. Noyes, 171 111. 575 315 

V. Sellers, 34 Ind. 337 571 

V. State, 41 Tex. 10 111 

V. Wilkinson, 37 Miss. 482 119 



Hughes Bros, 

145 
Hulick V. Scovil, 9 111. 159 
Ruling V. Fenner, 9 R. I. 410 
Hull V. Diehl, 21 Mont. 71 
V. Hull, 35 W. Va. 155 
V. Sullivan, 63 -Ga. 196 



Hoover, 3 Cal. App. 

538 
222 
60 
438 
312 
129, 316 



Hulme V. Montgomery, 31 Miss. 105 87 

Huls V. Buntin, 47 111. 396 73 

Humboldt Bldg. Assn. v. Ducker, 26 

Ky. L. 931 773 

Humphrey v. Wade, 84 Ky. 391 364 

Humphreys v. Newman, 51 Maine 40 125 

Humphries v. Davis, 100 Ind. 274 89 

Hunt v. Boston, 183 Mass. 303 639 

V. Dunn, 74 Ga. 120 127 

V. Evans, 134 111. 496 487 

V. Hayes, 19 Ohio C. C. 151 473 

V. Hynt, 14 Pick. (Mass.) 374 428 

V. Hunt, 4 N. H. 434 487 

V. Johnson, 19 N. Y. 279 119 

V. Rousmanier, 8 Wheat. (U. S.) 

174 337 

V. Tuttle, 133 Iowa 647 27 

Hunter v. Whitworth, 9 Ala. 965 64 

Huntington v. Asher, 96 N. Y. 604 61, 63 

V. Meyer, 92 Wis. 557 567 

Hurd v. Gushing, 7 Pick. (Mass.) 169 49 

v. Shelton, 64 Conn. 496 54 

Hurdle v. Stockley, 6 Houst. (Del.) 

447 90 

Hurley v. O'SuUivan, 137 Mass. 86 720 

Hurst V. Hurst, 7 W. Va. 289 40 

V. Leckie, 97 Va. 550 372 

Hurt V. Nave, 49 Ala. 459 611 

Hussey v. Roquemore, 27 Ala. 281 399 

Hussman v. Durham, 165 U. S. 114 226 

Huston V. Scott, 20 Okla. 142 314 

Hutchings v. Clark, 64 Cal. 228 443 

V. Low, 15 Wall. (U. S.) 77 196 



TABLE OF CASES 



xlix 



[References are to Sections.] 



Hutchins v. Byrnes, 9 Gray (Mass.) 

367 280 

V. Carleton, 19 N. H. 487 290 

V. Heywood, 50 N. H. 500 58 

V. Van Vechten, 140 N. Y. 115 339 

Hutchinson v. Ainsworth, 63 Cal. 286 324 
V. Hutchinson, 16 Colo. 349 126 

Hutchinson Investment Co. v. Caldwell, 

152 U. S. 65 85 

Hutchinson's Appeal, In re, 92 Pa. St. 

186 580 

Huyser v. Chase, 13 Mich. 98 51 

Hyatt V. Cochran, 69 Ind. 436 138 

Hyde v. Warren, 46 Miss. 13 442 

Hyland v. Baxter, 98 N. Y. 610 653 



Iglehart v. Crane, 42 III. 261 129 

Illinois Cent. R. Co. v. Hatter, 207 111. 

88 691 

V. Houghton, 126 III. 233 687 

Illinois Land & Loan Co. v. Bonner, 75 

III. 315 740 

Indiana v. United States, 148 U. S. 

148 210 

Indianapolis v. Kingsbury, 101 Ind. 200 

244, 670 
Indiana School Dist. v. Werner, 43 

Iowa 643 562 

Inge V. Johnston, 110 Ala. 650 491 

V. Murphy, 14 Ala. 289 67 

Ingels V. Ingels, 50 Kans. 755 ' 66 

Inglis V. Webb, 117 Ala. 387 696 

Ingraham v. Ingraham, 169 III. 432 

39, 471 
V. Wilkinson, 14 Pick. (Mass.) 268 103 
Ingrim v. Kirkpatrick, 41 N. Car. 463 375 
Inhabitants of Trenton v. Standard Fire 

Ins. Co., 76 N. J. L. 79 631 

Innes v. Crawford, 2 Bibb (Ky.) 412 185 
In re Alabone's Estate, 75 N. J. Eq. 

527 484 

In re Alden's Appeal, 93 Pa. St. 182 63 
In re. Alexander's Estate, 149 Cal. 146 477 
In re Amy, 12 Utah 278 730 

In re Armstrong's Estate, 2 Pa. Co. 

Ct. 166 487 

In re Bacon's Estate, 202 Pa. 535 714 

In re Baily's Appeal, 32 Pa. St. 40 ' 583 
In re Ball, 153 Wis. 27 457 

In re Bank's Will, 87 Md. 425 469 

In re Barnes' Estate, 47 Okla. 117 724 

In re Barnett's Appeal, 46 Pa. St. 392 58 
In re Barrett's Will, 111 Iowa 570 46 

In re Bateman, 11 R. I. 585 324 

In re Bates Mach. Co., 91 Fed. 625 379 
In re Bell, 34 N. Y. S. 191 730 

In re Benson's Estate, 169 Pa. St. 602 481 
In re Bickel's Appeal, 86 Pa. St. 204 318 
In re Blake's Estate, 134 Pa. St. 240 473 
In re Box, 11 Wash. St. 90 595 

In re Breg's Estate, 71 Minn. 11 710, 711 
In re Brooklyn St., 118 Pa. St. 640 244 
In re Brown, 22 Okla. 216 720 

In re Brownell, 60 Hun (N. Y.) 586 443 
In re Bruch's Estate, 185 Pa. St. 194 477 
In re Butler, 66 Misc. (N. Y.) 406 466 
In re Callaghan, 119 Cal. 571 720 

In re Carpenter's Estate, 170 Pa. 203 733 
In re Chambers, 44 Fed. 786 13 

In re Churchman's Appeal, 9 Sad. 

(Pa.) 423 466 

In re Clark's Appeal, 79 Pa. St. 376 64 
In re Clark's Appeal, 70 Conn. 195 

58, 456, 584 
In re Colbert's Estate, 44 Mont. 259 86 
In re Cox, 93 Ala. 400 730 



In re Cramond, 145 Fed. 966 517 

In re Cremer's Estate, 156 Pa. St. 40 87 
In re Curry's Estate, 39 Cal. 529 717 

In re Davenport, 172 N. Y. 454 711 

In re Davis' Estate, 151 Cal. 318 491 

In re Deake's Appeal, 80 Maine 50 456 
In re DeHaven's Appeal, 38 Pa. St. 

373 349 

In re De Lancey Stables Co., 170 Fed. 

860 380 

In re Delaware &c. R. Co.'s Tax Assess- 
ment, 224 Pa. 240 630 
In re Devine's Estate, 199 Pa. St. 

250 466 

In re Dickerson, 111 N. Car. 108 362 

In re Dickinson's • Appeal, 42 Conn. 

491 719 

In re Dillard, 2 Hughes (U. S.) 190 385 
In re Doebler's Appeal, 64 Pa. St. 9 47 
In re Donnelly's Estate, 125 Cal. 417 706 
In re DuU's Estate, 222 Pa. 208 484 

In re Dunning, 48 Misc. (N. Y.) 482 87 
In re Dutch's Appeal, 57 Pa. St. 461 737 
In re Elmslie's Estate, 10 Pa. Dist. 

397 483 

In re Emblen, 161 U. S. 52 229 

In re Emerson's Homestead, 58 Minn. 

450 66 

In re Engel's Estate, 180 Pa. St. 215 476 
In re Fair's Estate, 132 Cal. 523 59 

In re Farrell, 176 Fed. 505 375 

In re Ferguson's Appeal, 117 Pa. St. 

426 241 

In re Filbert, 195 Pa. St. 295 91 

In re Francies' Appeal, 96 Pa. St. 200 61 
In re Frazin, 174 Fed. 713 381 

In re Freeman, 146 Iowa 38 709 

In re Ghazal, 163 Fed. 602 382 

In re Gill's Estate, 79 Iowa 296 732 

In re Glass' Estate, 164 Cal. 765 458 

In re Goetz, 13 Cal. App. 292 708 

In re Grandjean's Estate, 78 Nebr. 

349 722 

In re Granniss' Estate, 142 Cal. 1 485 

In re Graves, 242 111. 212 457, 705 

In re Grid's Appeal, 7 Sad. (Pa.) 137 535 
In re Groome, 94 Cal. 69 183 

In re Grove's Appeal, 68 Pa. St. 143 676 
In re Gunn's Appeal, 55 Conn. 149 419 
In re Hacker's Appeal, 121 Pac. 192 281 
In re Handley, 208 Pa. 388 467 

In re Harris, 2 Am. B. R. 359 385 

In re Hatch's Estate, 62 Vt. 300 66 

In re Haxtum, 102 N. Y. 157 602 

In re Hayes' Appeal, 89 Pa. St. 256 711 
In re Hayes' Appeal, 123 Pa. St. 110 654 
In re Hell's Appeal, 40 Pa. St. '453 582 
In re Henderson, 161 Cal. 353 471 

In re Heywood's Estate, 148 Cal. 184 

59, 480 
in re Holmes, 131 N. Y. 80 • 564 

In re Hutchinson's Appeal, 92 Pa. St. 

186 580 

In re Irwin, 177 Fed. 284 378 

In re Jeremy's Estate, 178 Pa. St. 477 46 
In re Johnson, 164 Cal. 312 718 

In re Johnson, 30 Ch. Div. 42 8 

In re Kane's Estate, 38 Misc. (N. Y.) 

276 87 

In re Kepecs, 123 N. Y. S. 872 379 

In re Kimmel's Estate, 226 Pa. 47 100 

In re Kissel's Estate, 65 Misc. (N. Y.) 

443 631 

In re Kopmier's Will, 113 Wis. 233 453 
In re Kuhn's Estate, 125 Iowa 449 733 

In re Kurtz's Estate, 145 Pa. St. 637 466 
In re Lawrence's/ Estate, 136 Pa. St. 
354 482 



TABLE OF CASES 



[References are to Sections.] 



In re Learned's Estate, 70 Cal. 140 456 

In re Lee, 163 Ky. 418 724 

in re Lemen, 208 Fed. 80 378 

In re Lewis, 32 La. Ann. 385 456 

In re Lewis, 29 Ont. 609 737 

In re Lewis F. Perry & Whitney Co., 

172 Fed. 745 372, 375, 379 

In re Logan, 131 N. Y. 456 471 

In re Luch's Appeal, 44 Pa. St. 519 121 
In re Clotilde Lutz:, 157 Mo. 439 473 

In re Lynch, 132 Cal. 214 730 

In re McCabe, 15 R. L 330 708 

In re McCrea, 180 Pa. St. 81 714 

In re McCurdy's Appeal, 65 Pa. St. 

290 674 

In re McGraw's Estate, 111 N. Y. 66 458 
In re Machu, 21 Ch. Div. 838 55 

In re McKenna's Estate, 168 Cal. 339 730 
In re Magee, 63 Cal. 414 719 

In re Maher, 169 Fed. 997 515 

In re Majot, 199 N. Y. 29 705, 724 

In re Markle's Estate, 187 Pa. St. 

639 471 

In re Mason-Seaman Transportation Co., 

235 Fed. 974 380 

In re Middleton, 72 Iowa 424 491 

In re Miller, 64 Misc. (N. Y.) 467 550 
In re Moore, 14 R. L 38 718 

In re Moran, 151 Mo. 555 718 

In re Morrow's Estate, 204 Pa. 479 487 
In re Mutual Benefit Co., 174 Pa. St. 

1 
In re Negus, 7 Wend. (N. Y.) 499 
In re Neil's Appeal, 92 Pa. St. 193 
In re Nevin's Estate, 192 Pa. St. 258 
In re Newman, 75 Cal. 213 
In re Nichol, 128 Pa. St. 428 
In re Nicholson, 115 Iowa 493 
In re North's Estate, 48 Conn. 583 
In re Noye's Estate, 40 Mont. 178 
In re Oberholtzer's Appeal, 124 Pa. St. 

583 
In re Olson, 63 Iowa 145 
In re Opdyke's Appeal, 49 Pa. St. 373 
In re Overdieck, 50 Iowa 244 716, 734 
In re Peacock, 178 Fed. 851 381 

In re Pearl Street, 111 Pa. St. 565 317 

In re Pearson, 110 Cal. 524 708 

In re Peet's Estate, 99 Iowa 314 473 

In re Pennsylvania Consol. Coal Co., 

163 Fed. 579 378 

In re Person's Appeal, 74 Pa. St. 121 

87, 737 
In re Phillips' Estate, 205 Pa. 504 459 

In re Pirie, 133 App. Div. (N. Y.) 

431 602 

In re Plumel's Estate, 151 Cal. 77 455 
In re Poppleton's Estate, 34 Utah 285 477 
In re Powers' Appeal, 63 Pa. St. 443 737 
In re Prasser's Will, 140 Wis. 92 459 

In re Proctor, 103 Iowa 232 708 

In re Qualifications of Electors, 19 R. 

I 387 57 

In re Raab, 79 Misc. (N. Y.) 185 471 

In re Rankin's Appeal, 1 Monag. (Pa.) 

308 667 

In re Rash's Estate (Pa.), 2 Pars. Eq. 

Cas. 160 40 

In re Reiff's Appeal, 124 Pa. St. 145 463 
In re Reith's Estate, 144 Cal. 314 480 

In re Renton, 10 Wash. 533 734 

In re Reynolds, 57 Maine 350 711 

In re Ridgway's Appeal, 15 Pa. St. 

177 581 

In re Riesenberg, 116 Mo. App. 308 466 
In re Roberts' Estate, 163 Pa. St. 408 473 
In re Roberts' Estate, 84 Wash. 163 717 
In re Robinson, 6 M!,ich, 137 662 



90 

15 

719 

59 

712, 718 

714 

471 

727 

457 

124 
491 
719 



In re Robinson's Estate, 149 Pa. St. 

418 ^° 

In re Rogers, 131 Pa. St. 382 87, 711 

In re Rose's Estate, 63 Cal. 346 583 

In re Rosher, 26 Ch. Div. 801 
In re Ross, 140 Cal. 282 
In re Rowan, 6 Pa. Co. Ct. 461 
In re Rubel, 166 Fed. 131 
In re Russell, 168 N. Y. 169 
In re Russell's Appeal, 15 Pa. St. 319 
In re Russell's Estate, 150 Cal. 604 
In re Rutaced Co., 137 App. Div. (N. 

Y.) 716 
In re Ryan's Estate, 14 Wkly. Notes 

Cas. (Pa.) 79 
In re Saunders, 129 App. Div. (N. 

Y.) 406 
In re Schedel's Estate, 73 Cal. 594 
In re Schlosser, 116 N. Y. 796 
In re Scholl, 100 Wis. 650 
In re Seager, 92 Mich. 186 
In re Shedaker, 74 N, J. Eg. 802 
In re Shillaber's Estate, 74 (Jal. 144 
In re Simons' Will, 55 Conn. 239 
In re Simpson, 144 N. Y. S. 1099 
In re Smith, 131 Cal. 433 70S, 

In re Smith, 4 Nev. 254 
In re Smith's Estate, 144 Pa. St. 428 
59 339, 
In re Soulard's Estate, 141 Mo. ' 642 

59, 480 
In re Spring's Estate, 216 Pa. 529 59 

In re Standard Fuller's Earth Co., 186 

Fed. 578 
In re Starbuck, 63 Misc. (N. Y.) 156 
In re Steckel, 64 Pa. St. 493 
In re Steel, L. R. (1903) 1 Ch. 135, 
In re Sternberg's Estate, 94 Iowa 305 
In re Stickney's Will, 85 Md. 79 
In re Stoner, 105 Fed. 752 
In re Sullivan's Estate, 48 Wash. 631 
In re Sunderland, 60 Iowa 732 
In re Swenson's Estate, 55 Minn. 300 
In re Swofford Bros. Dry Goods Co., 

180 Fed. 549 
In re Tappan's Appeal, 52 Conn. 412 
In re Taylor, 20 N. Y. S. 960 
In re Thomas, 199 Fed. 214 
In re Thompson, 57 Hun (N. Y.) 419 
' 101 Pa. St. 



47 
734 
712 
382 
471 
119 
483 

372 

716 

100 

466 

87 

719 

65 

87 

487 

473 

708 

730 

349 

, 480 



378 
64 
719 
467 
491 
482 
385 
726 
718 
471 

377 
474 
90 
385 
110 



In re Thompson's Appeal, 

225 313 
In re Thompson's Estate, 26 S. Dak. 

576 735 

In re Thome, 155 N. Y. 140 718 
In re Title Guarantee & Trust Co., 195 

N. Y. 339 459 

In re Tobin's Estate, 139 Wis. 494 436 
In re Tomlinson's Estate, 133 Pa. St. 

245 487 

In re Tupper, 163 Fed. 766 380 

In re Turner, 82 Misc. (N. Y.) 25 456 

In re Tuttle, 77 Conn. 310 .708 
In re Ulfelder Clothing Co., 98 Fed. 

409 381 

In re Underbill, 62 Misc. (N. Y.) 456 711 

In re Union College, 129 N. Y. 308 645 

In re Varner's Appeal, SO Pa. St. 140 59 

In re Verplanck, 91 N. Y. 439 653 

In re Vigilancia, 68 Fed. 781 433 
In re Walkerly's Estate, 108 Cal. 627 

43, 482, 484 

In re Walker's Estate, 5 Ariz. 70 719 

In re Walker's Estate, 110 Cal. 387 457 

In re Wain's Estate, 189 Pa. St. 631 483 

In re Walter's Will. 64 Wis. 487 487 

In re Warden, 57 Cal. 484 720 

In re Weir, 9 Dana (Ky.) 434 714 

In re Wells, 113 N. Y. 396 734 



TABLE OF CASES 



[References are to Sections.] 



In re Well's Estate, 69 Vt. 388 583 

In re West, 128 Fed. 205 385 

In re White, 135 Fed. 199 380 

In re Williams, 62 Mo. App. 339 737 

In re Witter, IS N. Y. S. 133 720 
In re Woltemate's Appeal, 86 Pa. St. 

219 719 
In re Woodcock's Appeal, 103 Maine 

214 466 
In re Wood's Appeal, 82 Pa. St. 116 

117, 122 

In re Woodward, 81 Conn. 152 718 

In re Young's Estate, 123 Gal. 337 487 

In re Zeile, 74 Gal. 125 452 
Interior & W. Va. R. Go. v. Epling, 70 

W. Va. 6 722 
International Harvester Co. v. Myers, 

86 Kans. 497 434 

Iowa V. McFarland, 110 U. S. 471 210 
Iowa Land Go. v. Douglas Co., 8 S. 

Dak. 491 630 

Irvine v. McCreary, 108 Ky. 495 506 

V. Marshall, 20 How. (U. S.) 558 180 

V. Tarbat, 105 Gal. 237 220 

Irving V. Diamond, 23 Okla. 325 724 

V. Ford, 183 Mass. 448 719 

Irwin V. Jeffers, 3 Ohio St. 389 592 

V. Welch, 10 Nebr. 479 120 

Irwin, In re, 177 Fed. 284 378 

Iseman v. McMillan, 36 S. Car. 27 591 

Ison V. Halcomb, 136 Ky. 523 705 

Ives V. McNicoll, 59 Ohio St. 402 719 

V. Sanguinetti, 10 Ariz. 83 370 

Izard V. Bodine, 9 N. J. Eq. 309 664 



Jack V. Weiennett, 155 111. 105 630 

Jackson v. Aldrich, 13 Johns. (N. Y.) 

106 51 

V. Alexander, 3 Johns. (N. Y.) 

484 299 

V. AIsop, 67 Conn. 249 85 

V. Bank of United States, 5 Cranch 

G. G. 1 566 

V. Bard, 4 Johns. (N. Y.) 230 101 

V. Bull, 10 Johns. (N. Y.) 148 46 

V. Conlin, 50 111. App. 538 30, 31 

V. Dines, 13 Colo. 90 212 

V. Embler, 14 Johns. (N. Y.) 198 49 
V. Fish, 10 Johns. (N. Y.) 456 299 

V. Fitzsimmons, 10 Wend. (N. Y.) 

9 732 

V. Green, 112 Ind. 341 278 

V. Hendricks, 3 Johns. Gas. 214 709 
v. Hocke, 171 Ind. 371 717 

v. Jackson, 78 Ky. 390 719 

V. Jackson, 6 Dana (Ky.) 257 487 

V. Jackson, 56 S. Car. 346 470 

V. Johnson, 5 Cow. (N. Y.) 75 64 

V. Littell, 213 Mo. 589 46 

V. Lynch, 129 111. 72 419 

V. McCarron, 77 Kans. 776 643 

V. Merrill, 6 Johns. (N. Y.) 185 46 
V. Moore, 8 Dana (Ky.) 170 719 

V. Newton, 18 Johns. (N. Y.) 355 73 
V. Parker, 9 Cow. (N. Y.) 72 40 

V. Rogers, 1 Johns. Gas. (N. Y.) 

33 51 

V. Root, 18 Johns. (N. Y.) 60 

106, 299, 306 
V. Rowell, 87 Ala. 685 487 

V. Scott, 67 Ala. 99 595 

V. Stackhouse, 1 Cow. (N. Y.) 122 306 
V. State, 104 Ind. 516 650 

V. Tribble, 156 Ala. 480 28, 442 

V. Van Zandt, 12 Johns. (N. Y.) 

169 48 



Jackson 

v. Weaver, 138 Ind. 539 674 

v. Wells, 9 Johns. (N. Y.) 222 46 

V. Winslow, 9 Cow. (N. Y.) 13 99 

v. Wood, 12 'Johns. (N. Y.) 73 93 

Jacobs V. All Persons, 12 Cal. App. 163 274 

V. Knapp, 50 N. H. 71 518 

V. Miller, 50 Mich. 119 321 

V. Roach, 161 Ala. 201 275 
Jacob Tome Institute v. Davis, 87 Md. 

591 70 
Jacobus V. Mut. Benefit Life Ins. Co., 

27 N. J. Eq. 604 533 

Jacoway v. Gault, 20 Ark. 190 120, 330 

Jaeger v. Hardy, 48 Ohio St. 335 127, 692 

Jaffray v. McGehee, 107 U. S. 361 373 
James v. Germania Iron Co., 107 Fed. 

597 228 

V. James, 51 Wash. 60 676 

V. Morey, 6 Johns. Ch. (N. Y.) 417 121 

Jameson v. James, 155 Cal. 275 229 

Jamieson v. Knights Templar &c. Assn., 

9 Ohio Dec. (Reprint) 388 714 

Jamison v. Fopiana, 43 Mo. 565 503, 504 

V. Hay, 46 Mo. 546 734 

Janes V. Wilkinson, 2 Kans. App. 361 229 

V. Williams, 31 Ark. 175 492 

Janney v. Sprigg, 7 Gill (Md.) 179 64 

Jarboe v. Hey, 122 Mo. 341 714 

Jarrell v. Grow, 30 Tex. Civ. App. 629 263 

v. French, 43 W. Va. 456 325 

Jarrett v. Stevens, 36 W. Va. 445 222 

Jarvais v. Moe, 38 Wis. 440 66 

Jarvis v. Aikens, 25 Vt. 635 99 

V. Armstrong, 94 Miss. 145 431 

V. Lynch, 157 N. Y. 445 668 

Jasper v. Wilson, 14 N. Mex. 482 27 

Jecko V. Taussig, 45 Mo. 167 42 

Jefferson v. Burhans, 85 Fed. 924 443 

V. Coleman, 110 Ind. 515 674 

V. Curry, 71 Mo. 85 611 

V. Whipple, 71 Mo. 519 527 

Jencks V. Smith, 1 N. Y. 90 124 

Jenkins v. Dewey, 49 Kans. 49 699 

V. Harrison, 66 Ala. 343 508 

V. Trager, 40 Fed. 726 224 

Jenkins Land & Live Stock Co. v. Att- 

wood, 80 Nebr. 806 597 

Jennings v. Dixey, 36 N. J. Eq. 490 129 

v. Dockham, 99 Mich. 253 288 

V. Jenkins, 9 Ala. 285 592, 597 

V. Jennings, 21 Ohio St. 56 456 

Jennisons v. Leonard, 21 Wall. (U. S.) 

302 74 

Jensen v. Woodbury, 16 Iowa 515 616 

Jeremy's Estate, In re, 178 Pa. St. 477 46 

Jerome v. Ortman, 66 Mich. 668 280 
Jersey City V. Bayonne (JSl. J. L.), 76 

Atl. 1010, 677 
Jessop V. Kittanning Borough, 225 Pa. 

583 578 

Jewell V. Jewell, 28 Cal. 232 87, 713 

V. Knight, 123 U. S. 426 371 

V. Porter, 11 Fost. (N. H.) 34 99 

Jobson, In re, 164 Gal. 312 718 

Jochumsen v. Suffolk Sav. Bank, 3 Al- 

len (Mass.) 87 90 
Jockheck v. Board of Comrs., 53 Kans. 

780 109 
Johanson v. Washington, 190 U. S. 

179 208 

Johnes v. Jackson, 67 Conn. 81 491 

Johnson v. Adams, 92 Ga. 551 371 

V. Antrikin, 205 Mo. 244 737 

V. Bantock, 38 111. Ill 347 

V. Beard, 93 Ala. 96 436 

V. Bodine, 108 Iowa 594 719 

V. Brasington, 156 N. Y. 181 464 



lii 



TABLE OF CASES 



[References are to Sections.] 



Johnson 

V. Brauch, 9 S. Dak. 116 99 

V. Brewer, 134 Ga. 828 370, 371 
V. Bush, 3 Barb. Ch. (N. Y.) 207 330 

V. Carter, 16 Mass. 443 52 

V. Collins, 116 Mass. 392 523 

V. Cooper, 56 Miss. 608 106 

V. Delome L. &c. Co., 77 Miss. 15 46 

V. Elwood, 53 N. Y. 431 644 

V. Gilfillan, 8 Minn. 395 203 

V. Harrison, 41 Wis. 381 66 
V. Hart, 6 Watts & S. (Pa.) 319 321 

V. Hess, 126 Ind. 298 580 

V. Hines, 61 Md. 122 353 

V. Hollensworth, 48 Mich. 140 278 

V. Jacob, 11 Bush (Ky.) 646 65 

V. Johnson, 14 Idaho 561 227 

V. Johnson. 170 Mo. 34 334 

V. Johnson, 13 R. I. 467 53 

V. Jouchert, 124 Ind. 105 263 
V. Knights of Honor, 53 Ark. 255 714 

V. Lewis, 47 Ark. 66 61 

V. Longmire, 39 Ala. 143 678 

V. Lybrook, 16 Ind. 473 708 

V. McKay, 119 Ga. 196 423 

V. Merithew, 80 Maine 111 90 
V. Pacific Coast Steamship Co., 2 

Alaska 224 226 

V. Perley, 2 N. H. 56 65 

V. Phillips, 85 Ark. 86 730 

V. Poulson, 32 N. J. Eq. 390 451 

V. Robinson, 68 Tex. 399 372 

V. Thweatt, 18 Ala. 741 262, 315 

V. United R. Co., 227 Mo. 423 673 

V. United States, 163 Fed. 30 378 

V. Van Velsor, 43 Mich. 208 120 
V. Washington Loan &c. Co., 224 U. 

S 224 459 

V. Webber, 65 Conn. 5,01 466 

V. White, 76 Kans. 159 460 

V. Williams, 37 Kans. 179 278 

Johnson, In re, 30 Ch. Div. 42 8 

Johnston v. Camby, 29 Md. 211 126 

V. Chesson, 59 N. Car. 146 711 

V. Mcintosh, 8 Wheat. (U. S.) 543 107 

V. Mendenhall, 9 W. Va. 112 398 

V. Sutton, 45 Fed. 296 64S 

Joliet Stove Works v. Kiep, 230 III. 

550 633 

Jones V. Allen, 88 Ky. 381 615 

V. Billstein, 28 Wis. 221 723 

V. Bragg, 33 Mo. 337 65 

V. Byrne, 149 Fed. 457 59 

V. Cable, 114 Pa. St. 586 326 

V. Chandler, 40 Ind. 588 321 

V. Clifton, 101 U. S. 225 320, 323 

V. Davis, 121 Ala. 348 430 

V. Devore, 8 Ohio St. 430 633 

V. Fisher, 88 Nebr. 627 438 

V. French, 92 Ind. 138 593 

V. Gardner, 10 Johns. (N. Y.) 269 75 

V. Habersham, 107 U. S. 174 456, 458 

V. Hartford Ins. Co., 88 N. Car. 

499 660 

V. Tones, 37 Ala. 646 734 

V. Jones, 28 Ark. 19 65 

V. Jones, 46 Iowa 466 737 

V. Jones. 223 Mo. 424 59 

V. Jones, 108 N. Y. 415 663 

V. Leeds, 41 Ind. App. 164 718 

V. Manly, 58 Mo. 559 67 

T. Minogue, 29 Ark. 637 578 

V. Parker, 163 Mass. 564 408 

V. Petaluma, 3S Cal. 397 215 

V. Porter, 59 Miss. 628 673 

V. Powers. 65 Tex. 207 124 

V. Rees, 6 Pennew. (Del.) 504 465 

V. Smith, 55 Tex. 383 348 



49 

74, 360 

364, 601 

622 



Mo. 



487 



595 

73 

45 
126 

48 
638 

87 

49 
716 

51 
737 

53 
618 
240 
431 



Jones __ ^„^ 

V. Stites, 19 N. J. Eq. 324 
V. Taylor, 7 Tex. 240 
V. Warnock, 67 Ga. 484 
V. Webb, 22 Ky. L. 1100 
V. Williams, 155 N. Car. 179 
Joplin Brewing Co. v. Payne, 197 

422 
Jordan v. McClure, 85 Pa. St. 495 
v. Mead, 12 Ala. 247 
v. Roach, 32 Miss. 481 
V. Sayre, 29 Fla. 100 
Joslin V. Joslin (Iowa), 75 N. W. 
Jossey V. White, 28 Ga. 265 
Journell v. Leighton. 49 Iowa 601 
Joy v. McKay, 70 Cal. 445 
Joyce V. Hamilton, 111 Ind. 163 
Judd V. Fairs, 53 Mich. 518 
Juhan V. Juhan, 104 Ga. 253 
Justen V. Schaaf, 175 111. 45 
Justice V. Souder, 19 N. Dak. 613 

K 



Kahn v. Euhn, 44 Ark. 404 659 

Kaiser v. Earhart, 64 Miss. 492 99 

Kane v. Rippey, 22 Ore. 296 

3, 6, 10. 35, 75, 77 
Kane's Estate, In re, 38 Misc. (N. Y.) 

276 87 

Kanne v. Otty, 25 Ore. 531 227 

Kansas City v. Marsh Oil Co., 140 Mo. 

458 109 

Kansas City Land Co. v. Hill, 87 Tenn. 

589 129 

Kansas City L. & S. K. R. Co. v. Attor- 
ney-General, 118 U. S. 682 212 
Kaphan v. Toney (Tenn. Ch. App.) 58 

S. W. 909 59 

Karchner v. Hoy, 151 Pa. St. 383 45, 274 
Karr v. Burns, 1 Kans. App. 232 547 

Kaser v. Haas, 27 Minn. 406 572 

Kaufman v. Anderson, 31 Ky. L. 888 466 
v. Cook, 114 111. 11 51 

Kawananakoa v. Polyblank, 205 U. S. 

349 674 

Kay v. Pennsylvania R. Co., 65 Pa. St. 



273 
V. Scates, 37 Pa. St. 31 



Kazebeer v. Nunemaker, 82 Nebr. 732 363 

Keagy v. Trout, 85 Va. 390 424 

Kearnes v. Hill, 21 Fla. 185 118 

Kearney v. Kearney, 17 N. J. Eq. 59 49 

V. Taylor, 15 How. (U. S.) 494 645 

Keaton v. Snider, 14 Ind. App. 66 656 

Keech v. Enriquez, 28 Fla. 597 120 

Keegan v. Geraghty, 101 111. 26 718 

V. Kinnare, 123 111. 280 53 

Keen v. Board, 8 S. Dak. 558 213 

Keepfer v. Force, 86 Ind. 81 643 

Keever v. Hunter, 62 Ohio St. 616 736 

Keith V. Ault, 144 Ind. 626 718 

V. Eaton, 58 Kans. 732 456 

V. Keith, 97 Mo. 223 119 
Keith & Perry Coal Co. v. Bingham, 96 

Mo. 96 126 

Keller v. Auble, 58 Pa. St. 410 722 

V. Harper, 64 Md. 74 87 

Kelleran v. Brown, 4 Mass. 443 419 

Kellett V. Shepard, 139 111. 433 464 

Kelley v. Dearman, 65 W. Va. 49 323 

V. Kelley, 80 Wis. 486 651 

V. Meins, 135 Mass. 231 472 

Kelly V. Calhoun, 95 U. S. 710 283, 330 

V. Cotton Belt Lumber Co., 74 Ark. 

400 207 

V. Donahoe, 2 Mete. (Ky.) 482 110 

V. Kelly, 126 111. 550 575 



TABLE OF CASES 



liii 



[References are to Sections.^ 



Kelly 

V. McGuire, IS Ark. 555 87, 730 

V. Neely, 12 Ark. 657 726 

V. Nichols, 18 R. I. 62 720 

V. Richardson, 100 Ala. 584 , 455 

Kelsey v. Crouther, 7 Utah 519 35 

V. Dunlap, 7 Cal. 160 120 

V. Remer, 43 Conn. 129 523 

Kenaston v. Riker, 146 Mich. 163 501 

Kendall v. Clapp, 163 Mass. 69 46, 464 

Kendrick v. Latham, 25 Fla. 819 73, 691 

Kennard v. Louisiana, 92 U. S. 480 65 

V. Mabry, 78 Tex. 151 121 

Kennedy v. Alexander, 21 App. D. C. 

424 477 

V. Duncan, 157 Mo. App. 212 66 

V. Harden, 92 Ga. 230 124 

V. Haskell, 67 Kans. 612 325 

V. Kennedy, 29 N. J. L. 185 65 

V. Northup, 15 III. 148 118 

Kennedy Stave & Cooperage Co. v. 

Sloss-Sheffield Steel &c. Co., 137 Ala. 

401 61 

Kennett v. Ktdd, 87 Kans. 652 458 

Kenney v. Parks, 125 Cal. 145 453 

Kenny v. McKenzie, 25 S. Dak. 485 100 

Kent V. Barker, 68 Mass. 535 717 

V. McCann, 52 111. App. 305 65 

V. Owensboro Deposit Bank, 91 Ky. 

70 714 

V. Williams, 146 Cal. 3 

119, 121, 394, 433 
Kentucky Distilleries Co. v. Blanton, 

149 Fed. 31 32 

Kentucky Lumber Co. ^, Green, 87 Ky. 

257 272 

Kenyon v. Charlevoix Imp. Co., 135 

Mich. 103 13, 750 

Kepecs, In re, 123 N. Y. S. 872 379 

Kerfoot v. Cronin, 105 III. 609 433 

Kernan v. Griffith, 27 Cal. 87 207 

Kerner v. McDonald, 60 Nebr. 663 321 

Kerr v. Freeman, 33 Miss. 292 301, 306 

V. Hoskinson, 5 Kans. App. 193 528 

V. Kingsbury, 39 Mich. 150 434 

V. Moon, 9 Wheat. (U. S.) 565 724 

V. Moore, 54 Miss. 286 537 

V. RusselL 69 111. 666 324 

V. West Shore R. Co., 127 N. Y. 

269 109 

Kessler v. State, 24 Ind. 313 122 

Ketchin v. McCarley, 26 S. Car. 1 572 

Keuthan v. St. Louis Trust Co., 101- 

Mo. App. 1 773 

Kew v. Trainer, 150 III. 150 408 

Kidd v. Central Trust &c. Co., 23 Ky. 

L. 1402 187, 224 

Kidder's Exrs. v. Kidder (N. J. Eq.), 

56 Atl. 154 720 

Kidwell V. Kidwell, 84 Ind. 224 723 

Kieser v. Baldwin, 62 Ala. 526 429 

Kiger v. Terry, 119 N. Car. 456 737 

Kihlken v. Kihlken, 59 Ohio St. 106 708 
Kilbourn v. Sunderland, 130 U. S. 505 651 
Kilburn v. Adams, 7 Mete. (Mass.) 33 102 
Kilgore v. Kilgore, 127 Ind. 276 87, 710 
Kilpatrick v. Baltimore, 81 Md. 179 54 

Kilroy v. Mitchell, 2 Wash. 407 578 

Kimball v. Blaisdell, 5 N. H. 533 303 

V. Connolly, 3 Keyes (N. Y.) 57 

12, 16, 18, 19, 21 
V. Semple, 25 Cal. 440 

284, 297, 301 
Kimm v. Griifin, 67 Minn. 25 507 

Kimmell v. Meier, 106 111. App. 251 350 
Kimmel's Estate, In re, 226 Pa. 47 100 
Kimmerly v. McMichael, 83 Nebr. 789 568 
Kincaid v. Howe, 10 Mass. 203 422 



Kinder v. Scharff, 125 La. 594 575 

King v. Booth, 94 Ark. 306 634 

v. Boyd, 4 Ore. 326 723 

v. Clark, 7 Mo. 269 581 

V. Cole, 6 R. I. 584 46 

V. Gunnison, 4 Pa. St. 171 345 

V. Kilbride, 58 Conn. 109 316 

V. Middleborough Town &c. Co., 

106 Ky. 73 87, 730 

V. Mullins, 171 U. S. 404 113 

V. Pillow, 90 Tenn. 287 655 

V. Portis, 77 N. Car. 25 124 

V. Rea, 56 Ind. 1 322 

V. Rhew, 108 N. Car. 696 262 

V. Samuel, 7 Cal. App. 55 642 

V. Savage, 121 Mass. 303 712 

_ V. Sears, 91 Ga. 577 314 

Kingsbury v. Cornelson, 122 111. App. 

495 393 

Kingsley v. Kingsley, 39 Cal. 665 66 

Kingston v. Guck, 155 Mich. 264 687 

Kinna v. Smith, 3 N. J. Eq. 14 437 

Kinney v. Keplinger, 172 111. 449 476 

V. Lee, 10 Tex. 155 658 

v. Vinson, 32 Tex. 125 960 

Kinports v. Boynton, 120 Pa. St. 306 566 

Kintner v. Tones, 122 Ind. 148 339 

Kipp V. Cook, 46 Minn. 535 654 

Kirby v. Harrison, 2 Ohio St. 326 673 

V. Kirby, 236 HI. 255 688 

V. Runals, 140 111. 289 577 

V. Tallmadge, 160 U. S. 379 434 

Kirkland v. Cox, 94 111. 400 58 

V. Trott, 75 Ala. 321 546 

Kirkpatrick v. Kirkpatrick, 197 111. 144 65 

Kirskey v. Cole, 47 Ark. 504 66 

Kirsch v. Tozier, 143 N. Y. 390 129, 338 

Kiser v. Heuston, 38 III. 252 122 

Kissel's Estate, In re, 65 Misc. (N. Y.) 

443 631 

Kissinger v. Zieger, 138 Wis. 368 

611, 613, 616 
Kister v. Reeser, 98 Pa. St. 1 275, 506 
Kisterson v. Tate, 94 Iowa 665 565 

Kitchell v. Young, 46 N. J. Eq. 506 473 
Kitsmiller v. Kitchen, 24 Iowa 163 659 

Kittell V. Steger, 121 Tenn. 400 690 

Kittredge v. Bellows, 7 N. H. 399 522 

Klabunde v. Casper, 139 Wis. 491 286 

Klauber v. Higgins, 117 Cal. 451 224, 226 
Kleespies v. McKenzie, 12 Ind. App. 

404 53 

Kleimann v. Gieselman, 114 Mo. 437 66 
Kling V. Schnellbecker, 107 Iowa 636 459 
Klondyke Lumber Co. v. Williams, 71 

Ark. 334 533 

Klumpke v. Baker, 68 Cal. 559 99 

Klussman v. Wessling, 238 111. 568 401 

Knabe v. Burden, 88 Ala. 436 192, 228 
Knapp V. Alexander-Edgar Lumber Co., 

145 Wis. 528 192 

v. Bailey, 79 Maine 195 127 

V. Lee, 3 Pick. (Mass.) 452 398 

V. Smith, 27 N. Y. 277 336 

V. Windsor, 6 Cush. (Mass.) 156 711 
Knight V. Coleman, 117 Ala. 266 424 

V. Hollings, 73 N. H. 495 491 

V, Indiana Coal &c. Co., 47 Ind. 

^ 105 ' 51 

V. Rothschild, 132 App. J3iv. (N. 

Y.) 274 561 

V. Thayer, 125 Mass. 25 99, 322 

V. Thomas, 35 Utah 470 503 

Knighton v. Smith, 1 Ore. 276 283 

Knost V. Knost, 229 Mo. 170 ' 477 

Knoth V. Manhattan R. Co., 187 N. Y. 

243 109 



liv 



TABLE OF CASES 



[References are to Seciions!\ 



Knott V. Shepherdstown Mfg. Co., 30 

W. Va. 790 516 

Knowles v. Knowles, 132 Ga. 806 481 

Knowlson V. Fleming, 165 Pa. St. 10 311 

Knowlton V. Walker, 13 Wis. 264 121 

Knox V. Knox, 59 Wis. 172 59 

V. Paull, 95 Ala. 505 ' 491 

Knox Co. V. Brown, 103 Mo. 223 120 

Knudsen v. Hannberg, 8 Utah 203 66 

Koch V. Briggs, 14 Cal. 256 357 

V. Streuter, 232 111. 594 210, 289 

Kochersperger v. Drake, 167 111. 122 724 

Koelle V. Knecht, 99 111. 396 506 
Koerper v. St. Paul &c. R. Co., 40 Minn. 

132 124 

Kohl V. Kohl, 143 Wis. 214 676 

V. United States, 91 U. S. 367 55, 109 

Kohn V. Lapham, 13 S. Dak. 78 545 

Kommer v. Harrington, 83 Minn. 114 656 
Kondolf V. Britton, 160 App. Div. (N. 

Y.) 381 466 

Kopmier's Will, In re, 113 Wis. 233 453 

Kopp V. Herrman, 82 Md. 339 73 

Korn V. Cutler, 26 Conn. 4 467 

Kortright V. Cady, 21 N. Y. 343 429 

Kountz V. Davis, 34 Ark. 590 87 

Kraft V. Holzman, 206 111. 548 119 

V. Welch, 112 Iowa 695 407 

Krechter v. Grofe, 166 Mo. 385 467 

Krueger v. Knab, 22 Wis. 429 643 

Krug V. Davis, 87 Ind. 590 719 

Kruse v. Wilson, 79 111. 233 297 

Kuby V. Ryder, 114 Minn. 217 955 

Kuecken v. Voltz, 110 III. 264 61 

Kuhn V. Smith, 125 Cal. 615 51 

Kuhn's Estate, In re, 125 Iowa 449 733 

Kunes v. McCloskey, 115 Pa. St. 461 633 
Kurtz V. Hdllingshead, 4 Cranch C. C. 

(U. S.) 180 265 

Kurtz's Estate, In re, 14S Pa. St. 637 466 
Kuteman v. Carroll (Tex.), 80 S. W. 

842 434 

Kutz V. McCune, 22 Wis. 628 506 

Kyle V. Kavanagh, 103 Mass. 356 301 

V. Kyle, 50 Ind. 387 660 

V. Thompson, 11 Ohio St. 616 433 



La Barre v. Bent, 154 Mich. 520 698 
Lacassagne v. Chapuis, 144 U. S. 119 133 
Lacey v. Floyd, 99 Tex. 112 483 

Lachman v. People, 127 N. Y. S. 912 

955, 956 
Ladd V. Dickey, 84 Maine 190 636 

Ladies Seamen's Friends' Soc. v. Hal- 
stead, 58 Conn. 144 104 
Lafferty v. Milligan, 165 Pa. St. 534 

527, 632 
Lagrave v. Hellinger, 144 App. Div. 

(N. Y.) 39 578 

Lahr V. Ulmer, 27 Ind. App. 107 623 

Laidley v. Kline, 8 W. Va. 218 723 

Lain v. Cook, 15 Wis. 446 643 

Lake v. Doud, 10 Ohio 415 287 

V. Gray, 35 Iowa 44 640 

V. Hood, 35 Tex. Civ. App. 32 491 

V. Jarrett, 12 Ind. 395 670 

Lake Erie & W. R. Co. v. Michener, 

117 Ind. 465 ' 62 

V. Priest, 131 Ind. 413 313 

V. Whitham, 155 111. 514 105, 265 

Lake Shore &c. R. Co. v. Piatt, 53 

Ohio St. 254 272 

Lakin v. Ames, 10 Cush. (Mass.) 198 62 
Lally V. New York Cent, &c. R. Co., 
123 App. Div. (N. Y.) 35 669 



Lamar ,. Scott, 3 Strob. (S. Car.) 

562 675 

Lamar Water Co. v. Lamar, 128 Mo. 

188 647 

Lamb v. Danforth, 59 Maine 322 506 

v. Pierce, 113 Mass. 72 127, 692 

Lambe v. Drayton, 182 111. 110 468 

Lambert v. Newman, 56 Ala. 623 127 

V. Paine, 3 Cranch (U. S.) 97 46 

Lamont V. Cheshire, 65 N. Y. 30 546 

Lampert v. Haydel, 96 Mo. 439 478 

Lampman v. Milks, 21 N. Y. 505 61 

Lamprey v. State, 52 Minn. 181 103, 104 
Lamson v. Hutchings, 118 Fed. 321 560 

Lancaster v. Lancaster, 187 111. 540 471 
Land v. Jeffries, 5 Rand. (Va.) 211, 

599 315 

Landes v. Brant, 10 How. (U. S.) 

348 360 

V. Perkins, 12 Mo. 238 618 

Landreaux v, Foley, 13 La. Ann. 114 347 
Lane v. McKinstry, 31 Ohio St. 640 716 

V. Utz, 130 Ind. 235 465 

Lane's Appeal, 57 Conn. 182 456 

Lang v. Everling, 3 Misc. (N. V.) 

530 356 

V. Stansel, 106 Ala. 389 442 

Langdean v. Hanes, 88 Wall (U. S.) 

21 95, 221 

Langdon v. Ingram, 28 Ind. 360 47 

V. New York, 93 N. Y. 129 227 

V. Sherwood, 124 U. S. 74 , 221 

Lange v. Waters, 156 Cal. 142 393 

Langley v. Chapin, 134 Mass. 82 633, 642 
Langslow v. Cox, 1 Chit. 98 30 

Lanham v. Wilson, 15 Ky. L. 109 48 

Lanier v. Booth, 50 Miss. 410 61 

Lanigan v. Sweany, 53 Ark. 185 437 

Lanman v. Crocker, 97 Ind. 163 272 

La Plante v. Lee, 83 Ind. 155 601 

Lara v. Peterson, 56 Wash. 70 643 

Large v. Fisher, 49 Mo. 307 636 

Lanverre v. Rains, 112 Mich. 276 442 

Larkin v. Avery, 23 Conn. 304 53 

Larkins v. Bullard, 88 N. Car. 3S 660 

Larned v. Hudson, 60 N. Y. 102 51 

Larrabee v. Hascall, 88 Maine 511 339 

V. Tucker, 116 Mass. 562 87 

Larwill v. Ewing, 73 Ohio St. 177 734 

Lash V. Lash, 57 Iowa 88 731 

Lathers v. Keogh, 109 N. Y. 583 632 

Lathrop v. Young, 25 Ohio St. 451 718 
Latta v. Clifford, 47 Fed. 614 687 

V. Wiley (Tex. Civ. App.), 92 S. 
. W. 433 545, 549 

Lattin V. Gillette, 95 Cal. 317 

10, 15, 16, 23 
Lauer v. Lee, 42 Pa. St. 165 399 

Laughlin v. Reed, 89 Maine 226 374 

Laughlin Bros. & Co. v. Fream, 14 W. 

Va. 322 324 

Laughran v. Smith, 75 N. Y. 205 53 

Laumier v. Francis, 23 Mo. 181 61 

Lavery V. Egan, 143 Mass. 389 707 

Lavin V. Dodge, 30 R. I. 8 668 

Law V. Douglass, 107 Iowa 606 461 

V. Smith, 2 R. I. 2*4 737 

La Wall V. Groman, 180 Pa. St. 532 
T ^ 18, 23 

Law Guarantee & Trust Co. v. Jones, 

103 Tenn, 245 60 

Lawless v. Stamp, 108 Iowa 601 346 

Lawley v. Keyes, 172 Iowa 320 731 

Lawrence v. Lawrence, 181 III. 248 

341, 354 

V. Lawrence, 145 Ky. 61 638 

V. Lawrence, 82 S. Car. 150 665 

V. Springer, 49 N. J. Eq. 289 506 



TABLE OF CASES 



Iv 



[References are to Sections.] 



483 
590 
122, 127 
719 
334 
125 
491 
535 
456 
454 
548 

106 
106 
61 
470 
420 
354 



420 
434 
719 

65 
286 

49 
221 



Lawrence's Estate, In re, 136 Pa. St, 

354 
Lawson v. De Bolt, 78 Ind. 563 
Lawton v. Gordon, 37 Cal. 202 
Lay V. Fuller (Ala.), 59 So. 609 
Layton v. Herr, 45 Ind. App. 203 
Leach v. Beattie, 33 Vt. 195 

V. Burr, 188 U. S. 510 

V. Miuick, 106 Iowa 437 , 
Learned's Estate, In re, 70 Cal. 140 
Leathers v. Greenacre, 53 Maine 561 
Leavell v. Poore, 91 Ky. 321 
Leavitt v. Thornton, 123 App. Div. (N, 

Y.) 683 
Le Beau v. Armitage, 47 Mo. 138 
Le Blond v. Peshtigo, 140 Wis. 604 
LeBreton v. Cook, 107 Cal. 410 
Lecomte v. Pennock, 61 Kans. 330 
Lecroix v. Malone, 157 Ala. 434 
Ledbetter v. Borland, 128 Ala. 418 

224, 228 
Leddy v. Enos, 6 Wash. 247 304 

Ledoux V. Lavedan, 52 La. Ann. 311 112 
Lee V. Belknap, 163 Ky. 418 724 

V. Bermingham, 30 Kans. 312 117, 122 

V. Evans, 8 Cal. 424 

V. Giles, 161 N. Car. 541 

V. Lee, 161 Mo. 52 

V. Lindell, 22 Mo. 202 

V. Richmond, 90 Iowa 695 
Leeper v. Neagle, 94 N. Car. 338 
Leese v. Clark, 20 Cal. 387 
Leger v. Doyle, 11 Rich. (S. Car.) 

109 123 

Lego V. Medley, 79 Wis. 211 674 

Lehigh Valley R. Co. v. McFarlan, 31 

N. J. Eq. 706 102 

Lehigh & N. E. R. Co. v. Hanhauser, 

222 Pa. 248 566 

Lehman v. Chambershurg &c. R. Co., 
224 Pa. 276 

V. Collins, 69 Ala. 127 
Lehman-Durr Co. v. Griel Bros. Co, 

119 Ala. 262 
Lehndorf v. Cope, 122 111. 317 
Leigh V. Leigh, 15 Ves. 92 
Leland v. Adams, 9 Gray (Mass.) 171 
Le Marehel v. Teagarden, 152 Fed, 

662 
Lembeck & Bretz /'Eagle Brewing Co. 

V. Kelly, 63 N. J. Eq. 401 
Lemen, In re, 208 Fed. 80 
Lemon v. Graham, 131 Pa. St. 447 

45, 268, 309 

V. Staats, 1 Cow. (N. Y.) 592 122 

Lenders v. Thomas, 35 Fla. 518 546 

Lenfers v. Henke, 73 111. 405 675 

Lenning v. White (Va.), 20 S. E. 831 637 
Lenox v. Reed, 12 Kans. 223 358 

Leonard v. Adams, 119 Mass. 366 61 

V. Leonia Hights Land Co., 81 N. 

J. Eq. 489 438 

V. Lining, 57 Iowa 648 87 

Leon Loan &c. Co. v. Equalization 

Board, 86 Iowa 127 36 

Leprell v. Kleinschmidt, 49 Hun. (N. 

Y.) 605 668 

Le Roy v. Beard, 8 How. (U. S.) 451 336 

V. Jamison, 3 Sawy. (U. S.) 369 223 
Les Bois v. Bramell, 4 How. (U. S.) 

449 214 

Lese V. Lamprecht, 196 N. Y. 32 399 

Leslie v. Hinson, 83 Ala. 266 122 

Lessell v. Goodman, 97 Iowa 681 66 

Lessenich v. Sellers, 119 Iowa 314 735 

Lester v. Brown, 57 Ga. 79 568 



677 
417 



371 



48, 304 
89 
46 



228 



119 
378 



Levengood's Estate, 38 Pa. Super. Ct. 

491 612 

Levi V. Thompson, 4 How. (U. S.) 17 197 

Leviston v. Swan, 33 Cal. 480 578 

Levy V. McCartee, 6 Pet. (U. S.) 102 732 

V. McDonnell, 92 Ark. 324 297 

Lewis V. Baird, 3 McLean (U. S.) 56 124 

V. Boskins, 27 Ark. 61 417 

V. Chamberlain, 61 Ore. 150 957 

V. Gorman, 5 Pa. St. 164 708 

V. narrower, 197 111. 315 470 

V. Hawkins, 23 Wall. (U. S.) 119 392 

V. Hinman, 56 Conn. 55 122 

V. Shaw, 70 Fed. 289 205 

V. Shearer, 189 III. 184 306 

V. Ward, 99 111. 525 638 

Lewis' Estate, In re, 32 La. Am. 385 456 

Lewis F. Perry &c. Co., In re, 172 

Fed. 745 372, 375, 379 

Lewis, In re, 29 Ont. 609 737 

Liberty v. Burns, 114 Mo. 426 147 

Lich V. Lich, 158 Mo. App. 400 466, 713 

Lichter v. Thiers, 139 Wis. 481 466 

Lickbarrow v. Mason, 6 East. 20, 24 518 

Lidgerding v. Zignego, 77 Minn. 421 61 

Ligare v. Semple, 32 Mich. 438 325 
Lightcap V. Bradley, 186 111. 510 

416, 520, 598 
Lightfoot V. Horst (Tex. Civ. App.), 

122 S. W. 606 622 

Liginger v. Field, 78 Wis. 367 737 

Lignoski v. Crocker, 86 Tex. 324 122 

Likens v. McCormicfc, 39 Wis. 313 661 

Lilly v. Boyd, 72 Ga. 83 18 

V. Wooley, 94 N. Car. 412 736 
Lime Rock Nat. Bank v. Mowry, 66 

N. H. 598 428 

Lincoln v. Lincoln, 107 Mass. 590 46 

V. Perry, 149 Mass. 368 456, 464, 466 

V. Thompson, 75 Mo. 613 101 

Lincoln Bldg. & Sav. Assn. v. Hass, 

10 Nebr. 581 132 

Lind V. Burke, 56 Nebr. 785 719 

Lindenmayer v. Gunst, 70 Miss. 693 694 

Lindley v. O'Reilly, 50 N. J. L. 636 584 

V. Smith. 46 111. 523 , 324 

Lindsay v. Eastwood, 72 Mich. 336 526 

v. Wilson, 103 Md. 252 460, 734 

Lindsey v. Booge, 144 Iowa 168 642 

Lindt V. Uihlein, 116 Iowa 48 687 

Linebeck v. Vos, 160 Fed. 540 ,193 

Lineberger v. Tidwell, 104 N. Car. 506 324 

Lines v. Darden, 5 Fla. 51 59, 480 

Lingen v. Lingen, 45 Ala. 410 718, 719 

Link v. MacNabb, 111 Md. 641 274 

Linton V. Wanke, 118 N. Y. S. 965 634 
Lippincott v. Lippincott, 19 N. J. Eq. 

121 359 

V. Mitchell, 94 U. S. 767 320 

v. Ridgway, 10 N. J. Eq. 164 60 

V. Tilton. 14 N. J. L. 364 310 

Lippitt V. Thames Loan &c. Co., 88 

Conn. 185 316 

Lisenby v. Newton, 120 Cal. 571 397 

Litsey v. Phelps, 5 Ky. L. 513 722 

Little v. Bennett, 58 N. Car. 156 479 

V. Downing, 37 N. H. 355 690 

V. Paddleford, 13 N. H. 167 299 

Littlefield v. Tinsley, 26 Tex. 353 74 

Liverraore v. Maxwell, 87 Iowa 705 439 

Livingston v. Murphy, 187 Mass. 315 301 

v. Ruff, 65 S. Car. 284 70 

v. Tanner, 14 N. Y. 64 52 

Lloyd v. Tench, 2 Vesey 215 86 

Lockerby v. Amon, 64 Wash. 24 397 

Lockie V. Mutual Union Tel. Co., 103 

111. 401 110 

Lockridge v. McCommon, 90 Tex. 234 475 



Ivi 



TABLE OF CASES 



[References are to Sections.'\ 



Lockwood V. Lockwood, 22 Conn. 425 

51, 53 

V. Noble, 113 Mich. 418 374 

V. Title Ins. Co., 73 Misc. (N. Y.) 

296 

Lodge V. Fitch, 72 Nebr. 652 

V. Swampscott, 216 Mass. 260 
Loeser v. Savings Deposit Bank & 

Trust Co., 163 Fed. 212 
Loftis V. Glass, 15 Ark. 680 
Logan V. Davis, 147 Iowa 441 

V. Pannill, 90 Va. 11 
Logan, In re, 131 N. Y.456 
Logansport v. Case, 124 Ind. 254 
Logue V. Hutson, 24 Ore. 528 
Lomax V. Pickering, 173 U. S. 26 

V. Pickering. 165 111. 431 
Lombard v. Chicago Sinai Cong., 64 
111. 477 
V. Culbertson, 59 Wis. 433 
Lone Tree Ditch Co. v. Rapid City 

Electric &c. Co., 16 S. Dak. 451 
Long v. Abeles, 77 Ark. 156 
V. Barnes, 87 N. Car. 329 
v. Barton, 236 III. 551 
V. Boast, 153 Ala. 428 
' V. Brown, 4 Ala. 622 
V. Buchanan, 27 Md. 502 
V. Langsdale, 56 Ark. 239 
V. Long, 142 N. Y. 545 
V. Mostyn, 65 Ala. , 543 
Long Beach Land Co. v. 

70 Cal. 206 
Long-Bell Lumber Co. v. 

Okla. 192 
Longshore v. Longshore, 200 111. 470 
Looker v. Peckwell, 38 N. J. L. 253 
Loomis V. Jackson, 130 Mich. 594 
Loosing V. Loosing, 85 Nebr. 66 
Lord V. Comstock, 240 111. 492 
Lorenz v. Orlady, 87 Pa. St. 226 
Loriraer v. Wayne Circuit Judge, 116 

Mich. 682 
Loring V. Groomer, 110 Mo. 632 
V. Oxford, 18 Tex. Civ. App. 415 
V. Taylor, 50 Mo. App. 80 
Loser v. Plainfield Sav. Bank, 149 

Iowa 672 
Losey v. Simpson, 11 N. J. Eq. 246 

126 
Lothrop V. Foster, 51 Maine Z67 
Lott V. Wykoff, 2 N. Y. 355 
Lougheed v. Dykeman's Baptist 

Church, 129 N. Y. 211 
Loughridge v, Bowland, 52 Miss. 546 

687, 
Louisiana Ry. & Nav. Co. v. Madere, 

124 La. 635 
Louisiana Western R. Co. v. Cross- 
man, 111 La. 611 
Louisville & N. R. Co. v. Cullen, 32 
Ky. L. 1110 
V. Philyaw, 88 Ala. 264 
v. Smith, 128 Fed. 1 
V. Smith, 31 Ky. Law 1 
Love V. Love, 8 Ore. 23 
Lovejoy v. Albee, 33 Maine 414 
v. Lunt, 48 Maine 377 
V. Raymond, 58 Vt. 509 
Loveland v. Loveland, 136 111. 75 
Lovell V. Wall, 31 Fla. 73 
Loveren v. Donaldson, 69 N. H. 639 
Lovett V. Steam Saw Mill Assn., 6 

Paige (N. Y.) 54 330 

Lovin v. Carver, 150 N. Car. 710 185 

Lovingston v. St. Clair Co., 64 111. 56 103 
Low V. Fox, 56 Iowa 221 443 



22 
737 
277 

568 
731 
100 
563 
471 
633 
699 
223 
119 

333 
135 

665 

535 

321 

676 

645 

208, 209 

62 

692 

601 

431 

Richardson, 

104, 272 
Martin, 11 

215 
735 
432 
36 
47 
338 
375 

738 

129 
25 
SO 

433 

128 

325 

42 

458 

692 

630 

677 

270 
691 
694 
693 
202 
655 
661 
119 
311 
201 
734 



Lowe v. Maccubbin, 1 Harr. & 
(Md.) 550 
V. Wiseman, 46 Ind. App. 405 
Lowenstun v. Page, 16 Philippine 84 
Lowery v. Baker, 141 Ala. 600 
v. Harlow, 22 Colo. App. 73 
V. Hawker, 22 N. Dak. 318 
v. Peterson, 75 Ala. 109 
Lowrie v. Ryland, 65 Iowa 584 
Lowry V. Harris, 12 Minn. (Gil. 

255 
Lucas V. Clafflin, 76 Va. 269 

V. Tucker, 17 Ind. 41 
Luce V. Harris, 79 Pa. St. 432 

V. Parsons, 192 Mass. 8 
Luch's Appeal, In re, 44 Pa. St. 
Lucier v. Marsales, 133 Mass. 454 
Ludlow V. Park, 4 Ohio 5 
Luetchford v. Lord, 132 N. Y. 465 
Luhrs V. Hancock, 181 U. S. 567 
Lum V. Mc&rty, 39 N. J. L. 287 
Lumbard v. Aldrich, 8 N. H. 31 
Lumpkin v. Muncey, 66 Tex. 311 
Lundy V. Lundy, 24 Can. Sup. 

650 
Lunt V. Lunt, 71 Maine 377 
Lurman v. Hubner, 75 Md. 268 
Lusk V. Carlin, 4 Scam. (111.) 395 
Lyell V. Kennedy, 14 App. Cas. 437 
Lyford V. Laconia, 75 N. H. 



166) 



519 



Ct. 



730 
737 
955 
201 
720 
720 
392 
49 

119 
117 
456 
730 
957 
131 
444 
583 
436 
307 
137 
336 
124 



220 



733 
436 
699 
12, 21 
709 
43 
437 



V. Ross, 33 Maine 197 

Lyman v. Suburban R. Co., 190 111. 

320 668 

Lynch v. Livingston, 8 Barb. (N. Y.) 

463 299 

V. Lynch, 132 Cal. 214 730 

V. Melton, 150 N. Car. 595 54 

V. Pfeiffer, 110 N. Y. 33 428 

V. United States, 13 Okla. 142 229 

Lynch, In re, 132 Cal. 214 730 

Lynde v. Williams, 68 Mo. 360 689 

Lyon V. Clark, 132 Mich'. 521 530 

V. Harden, 129 Ala. 643 66 

V. Kain, 36 111. 362 91, 262 

V. Lyon, 88 Maine 395 714 

Lytic V. Arkansas, 9 How. (U. S.) 

314 117 

V. Lytle, 48 Ind. 200 676 

V. Lytle, 10 Watts (Pa.) 259 45 

M 

Mastta V. Kippola, 102 Mich. 116 66 

Mabbett v. Vick, 53 Wis. 158 659 

McAfee v. Reynolds, 130 Ind. 33 564 
McAlister v. Burgess, 161 Mass. 269 466 
McAllister v. Okanogan County, 51 

Wash. 647 213 

Tate, 11 Rich. L. (S. Car.) 509 46 



McAlpine v. Reicheneker, 56 Kans. 



100 
31, 32 
659 
No. 

48 



V. Smith, 68 Maine 423 

McArthur V. Allen, Fed. Cas. 

8659 

V. Gallaher, 8 Ohio 512 203 

V. Scott, 113 U. S. 340 49 

Macauley v. Smith, 132 N. Y. 524 566 

McBreen v. McBreen. 154 Mo. 323 64 

McCabe v. Grey, 20 Cal. 509 125 

McCabe, In re, 15 R. I. 330 708 

McCalla v. Bane, 45 Fed. 828 311 

McCallister v. Ross, 155 Mo; 87 357 

McCall's Admr. v. Hampton, 98 Ky. 

166 H . J' ^^^ 

McCampbell v. Mason, 151 111. 500 

„ ^ o 138. 548 

McCan, Succession of, 48 La. Ann. 145 480 

McCann v. Rathbone, 8 R. I. 403 51 



TABLE OF CASES 



Ivii 



[References are to Sections.] 



McCaraher v. Commonwealth, 5 Watts 

& S. (Pa.) 21 21 

McCartney v. Osburn, 118 III. 403 

456, 466, 584 

McCauley v. Fulton, 44 Cal. 355 328 

V. Mahon, 174 111. 384 668 

McCaw V. Burk, 31 Ind. 56 737 

McClain v. Capper, 98 Iowa 145 483 

McClanahan v. Williams, 136 Ind. 30 91 

McClaskey v. Barr, 54 Fed. 781 491 

McClave v. McClave. 60 Nebr. 464 737 

McCleery v. Lewis, 104 Maine 33 289 

McClellan v. Mackenzie, 126 Fed. 701 476 

V. Taylor, 54 S. Car. 430 667 

McClelland v. Gasquet, 122 La. 241 676 

McClenahan v. Stevenson, 118 Iowa 106 318 

McClintock v. Joyner, 77 Miss. 678 408 

McClung V. Steen, 32 Fed. 373 192 

McClure v. Fairfield, 153 Pa. St. 411 65 

V. Raben, 125 Ind. 139 334, 714 

V. Smith, 14 Colo. 297 419 

V. Spivey, 123 N. Car. 678 491 

McComas v. Amos, 29 Md. 132 711 

McConihe v. Pales, 107 N. Y. 404 316 

McConnel v. Smith, 23 111. 611 46 

McCord V. Eastern E. Co., 136 Wis. 

254 109 

V. Hames, 38 Tex. Civ. App. 239 722 
V. Massey, 155 111. 123 521 

McCormack v. First Nat. Bank, 53 

Ind. 466 662 

McCormick v. Parsons, 195 Mo. 91 426 

V. Stephany, 57 N. J. Eq. 257 722 

V. Wheeler, 36 111. 114 128 

McCorry v. King, 3 Humph. (Tenn.) 

267 54 

McCoy V. Barns, 136 Ind. 378 

273 321 470 
McCracken v. Flanagan, 127 N. Y.' 493* 661 
V. Rogers, 6 Wis. 278 87, 730 

McCrae v. McCrae, 103 Tenn. 719 66 

McCraney v. McCraney, 5 Iowa 232 65 
McCrea v. Newman, 46 N. J. Eq. 473 316 
McCrea, In re, 180 Pa. St. 81 714 

McCready v. Sexton, 29 Iowa 356 

643, 644 
McCullough V. Lee, 7 Ohio 15 731 

McCune v. Essig, 118 Fed. 273 200 

V. Goodwillie, 204 Mo. 306 638 

McCurdy v. Neall, 42 N. J. Eq. 333 455 
V. Otto, 140 Cal. 48 58 

McCurdy's Appeal, In re, 65 Pa. St. 

290 674 

McCusker v. McEvey, 9 R. I. 528 8, 99 

McDaniel v. Texarkana Cooperage & 

Mfg. Co., 94 Ark. 235 631 

McDill v. Meyer, 94 Ark. 615 268, 274 

McDonald v. Cooper, 32 Fed. 745 661 

v. Dexter, 234 III. 517 655 

V. Dodge, 97 Cal. 112 502 

V. Eggleston, 26 Vt. 154 337 

V. Hannah, 51 Fed. 73 633 

V. Rankin, 92 Ark. 173 551 

V. Shaw, 81 Ark. 235 481 

McDonough v. Martin, 88 Ga. 675 278, 301 

McDougal v. Musgrave, 46 W. Va. 509 291 

McDowell V. Addams, 45 Pa. St. 430 

87, 89 

V. People, 204 111. 499 504 

McDuffie v. Montgomery, 128 Fed. 105 480 

McEndree v. McEndree, 12 Ind. 97 571 

McFarland v. McFarland, 177 111. 208 

43, 46 
McFarlane v. Kerr, 10 Bosw. (N. Y.) 

249 689 

McFarran v. Knox, 5 Colo. 217 119 

McGahan v. Bank, 156 U. S. 218 

262, 328 



McGarrahan v. New Idria Min. Co., 

49 Cal. 331 -222 

McGary v. McGary (Ky. App.), 105 S. 

W. 891 363 

McGaw v. Gortner, 96 Md. 489 576 

McGonigal v. Colter, 32 Wis. 614 714 

McGovern v. Knox, 21 Ohio St. 551 318 

v. McGovern, 75 Minn. 314 460 

McGraw's Estate, In re. 111 N. Y. 66 458 

McGreal v. Taylor, 167 U. S. 688 307 

McGregor v. Comstock, 3 N. Y. 408 732 

McGrifl V. Porter, 5 Fla. 373 60 
McGugin V. Ohio River R. Co., 33 W. 

Va. 63 534 

McGuire v. Brown, 41 Iowa 650 719 

V. Bryant Lumber &c. Co., 53 Wash. 

425 560 

V. Westmoreland, 36 Ala. 594 717 

McGunnigle v. McKee, 77 Pa. St. 81 719 

Machold v. Farnan, 20 Idaho 80 672 

Machu, In re, 21 Ch. Div. 838 55 

Mcllhinny v. Mcllhinny, 137 Ind. 411 48 

Mcllvaine v. Smith, 42 Mo. 45 57 

Mcllwrath v. Hollander, 73 Mo. 105 546 

Mclnery v. Reed, 23 Iowa 410 636 

Mcintosh v. Bowers, 143 Wis. 74 434 

V. Thurston, 25 N. J. Eq. 242 535 

Mclntyre v. Gelvin, 77 Kans. 779 730 

V. Mclntyre, 147 Mich. 365 101 

v. Park, 11 Gray (Mass.) 102 337 

V. Thompson, 4 Hughes (U. S.) 

562 73 
Mack V. Hill, 28 Mont. 99 672 
McKean & Elk Land Imp Co. v. Mitch- 
ell, 35 Pa. St. 269 120 
McKee v. Jones, 6 Pa. St. 425 64 

V. Perchment, 69 Pa. St. 349 108 

v. Wilcox, 11 Mich. 358 66 

McKeithen v. Blue, 149 N. Car. 95 350 

Mackellar v. Pillsbury, 48 Minn. 396 375 
McKelvey v. McKelvey, 75 Kans. 325 

65, 620 

McKenna's Estate, In re, 168 Cal. 339 730 

McKenzie v. Budd,, 125 Cal. 600 583 

Mackey v. Mackey, 71 N. J. Eq. 686 491 
McKinney v. Mellon, 3 Houst. (Del.) 

277 730 

V. Miller, 19 Mich. 142 129 

V. Rodgers (Tex. Civ. App.), 29 S. 

W. 407 335 

V. Settles, 31 Mo. 541 290 

McKinny v. Abbott,' 49 Tex. 371 731 

McKinzie v. Perrill, 15 Ohio St. 162 127 

V. StafiEord, 8 Tex. Civ. App. 121 284 
McLanahan v. Reeside, 9 Watts (Pa.) 

508 99 

McLane v. Paschal, 47 Tex. 365 358 

McLaren v. Clark, 80 Ga. 423 417 

V. Jones, 89 Tex. 131 100 
McLaughlin v. McLaughlin, 22 N. J. 

Eq. 505 67 

McLean v. McLean, 92 Kans. 326 724 

McLeod V. Lloyd, 43 Ore. 260 93 

McLeran v. Benton, 73 Cal. 329 51 

McLouth v. Hurt, 51 Tex. 115 120 

V. Rathbone, 19 Ohio 21 345 

McMahan v. Bowe, 114 Mass. 140 314 

V. Jacoway, 105 Ala. 585 408 

V. Kimball, 3 Blackf. (Ind.) 1 65 

McMahon v. McGraw, 26 Wis. 614 638 

V. Rowley, 238 111. 31 957 

V. Russell, 17 Fla. 698 520 

McMaken v. Niles, 91 Iowa 628 128 

McMamee v. Huckabee, 20 S. Car. 190 123 

McManus v. Carmichael, 3 Iowa 1 272 

McMasters v. Negley, 152 Pa. St. 303 64 
MoMichael v. McMichael, 51 S. Car. 

555 49 



Iviii 



TABLE OF CASES 



[References are to Sections.^ 



McMichael 

V. Murphy, 12 Okla. 15S 200 
McMicken v. United States, 97 U. S. 

204 180 

McMillan v. Cox, 109 Ga. 42 472 

V. Edwards, 75 N. Car. 81 348 

V. First Nat. Bank, 56 Tex. Civ. App. 

45 1 

V. Peacock, 57 Ala. 127 320 

V. Richards, 9 Cal. 365 520 

V. State, 160 Ala. 115 723 

McMillen v. Anderson, 95 U. S. 37 42 

McMinn v. O'Connor, 27 Cal. 238 120 

McMuIIen v. Eagan, 21 W. Va. 233 284 

McMurphy v. Adams, 67 N. H. 440 316 

McNally v. McNally^ 23 R. I. 180 467 

McNamara v. Culver, 22 Kans. 661 418 

V. Fink, 71 Minn. 66 €46 

V. Seaton, 82 III. 498 271 

McNaught V. McAllister, 93 Ind. 114 664 

McNeal v. Sherwood, 24 R. I. 314 730 

McNeely v. Langan, 22 Ohio St. 32 691 

Macomb v. Miller, 9 Paige (N. Y.) 265 731 

Macon &c. R. Co. v. Riggs, 87 Ga. 158 109 

McParland v. Peters, 87 Nebr. 829 434 

McPheeters v. Ronning, 95 Minn. 164 119 

McPherson v. Hayward, 81 Maine 329 420 

V. Rollins, 107 N. Y. 316 125 

McPike V. Pen, 51 Mo. 63 636 

McQuerry v. GilHland, 89 Ky. 434 671 
McQuesten v. Commonwealth, 198 Mass. 

172 954, 955 

McQuinn v. McQuinn, 110 Ky. 321 65 

Macrae v. Goodbar, 80 Miss. 315 119 

McRee v. Means, 34 Ala. 349 59 

McSurley v. Venters, 31 Ky. L. 963 719 

McVay v. Tousley, 20 S. Dak. 258 549 
McVeigh v. Chicago Mill &c. Co., 96 

Ark. 480 13 

McWhirter v. Roberts, 40 Ark. 283 633 

Maday v. Roth, 160 Mich. 289 399 

Madison v. Larmon, 170 III. 65 712 

Maeck v. Sinclair, 10 Vt. 103 602 
Magaw V. Lothrop, 4 Watts & S. (Pa.) 

316 34 
Magee v. Doe, 9 Fla. 382 87, 214 

Magee, In re, 63 Cal. 414 719 

Magness v. Arnold, 31 Ark. 103 87 
Magruder v. Esmay, 35 Ohio St. 221 

192, 644 
Magsocay v. Fernando, 17 Philippine 

120 957 

Maguire v. Bissell, 119 Ind. 345 423 

v. Moore, 108 Mo. 267 710 

Mahan v. Smith, 151 Ala. 482 314 
Maher v. James Hanley &c. Co., 23 

R. I. 323 51 

Maher, In re, 169 Fed. 997 515 

Mahoney v. Middleton, 41 Cal. 41 126 

V. Neff, 124 Ind. 380 564 

Maitlen v. Maitlen, 44 Ind. App. 559 705 
Major V. Bukley, 51 Mo. 227 45, 274 
Majot, In re, 199 N. Y. 29 705, 724 

Mallett V. Page, 8 Ind. 364 443 
Mallory v. Ferguson, 50 Kans. 685 21, 22 

Malone v. Marriott, 64 Ala. 486 546 

Malsby v. Gamle, 61 Fla. 310 93' 

Manaudas v. Mann, 25 Ore. 597 126 
Mandlebaum v. McDonell, 29 Mich. 78 

47, 478 
Mangold v. Barlow, 61 Miss. 593 117, 122 

Manifold v. Jones, 117 Ind. 212 525 

Manly v. Slason,. 21 Vt. 271 530 

Mann v. Hyde, 71 Mich. 278 709 

V. Jackson, 84 Maine 400 477 

Manners v. Manners, 20 N. J. L. 142 722 

Manning v. Pippen, 86 Ala. 357 671 

V. Perkins, 86 Maine 419 281 



Mansfield v. Neff, 43 Utah 258 720 

V. Shelton, 67 Conn. 390 461 

V. Turpin, 32 Ga. 260 493 

Manson v. Duncanson, 166 U. S. 533 600 
Manternach v. Studt, 240 111. 464 364 

Marbury v. Ehlen, 72 Md. 206 129 

v. Madison, 1 Cranch (U. S.) 137 223 
Mardt V. Scharmach, 65 Misc. (N. Y.) 

124 676 

Marionneaux v. Dupuy, 48 La. 496 719 

Markey v. Markey, 108 Iowa 373 719 

Markle v. Akron, 14 Ohio 586 652 

Markle's Estate, In re, 187 Pa. St. 639 471 
Markoe v. Andras, 67 111. 34 516, 530 

Marks v. Dickson, 20 How. (U. S.) 

501 198 

Marlow V. King, 17 Tex. 177 87, 730 

Marr v. Given, 23 Maine 55 336 

Marsellis v. Thalhimer, 2 Paige (N. 

Y.) 35 721 

Marsh v. Nelson, 101 Pa. St. 51 635, 692 

V. Waupaca County, 38 Wis. 250 723 
Marshall v. Rench, 3 Del. Ch. 239 

V. Rose, 86 111. 374 

V. Trumbull, 28 Conn. 183 
Marston v. Catterlin, 239 Mo. 390 
Mattel V. Somers, 26 Tex. 551 
Martin v. Baird, 175 Pa. St. 540 

V. Bates, 20 Ky. L. 1793 

V. Berry, 37 Cal. 222 

V. Bonsack, 61 Mo. 556 

V. Caldwell, 49 Ind. App. 1 

V. Castle, 193 Mo. 183 

V. Cauble, 72 Ind. 67 

V. Evansville, 32 Ind. 85 

V. Gray, 142 U. S. 236 

V. Harris (Tex. Civ. App.), 26 S. 
W. 91 

V. Hoff, 7 Ariz. 247 

V. Hunter's Lessee, 1 Wheat. (U. 

S.) 304 650 

V. Kelly, 59 Misc. 652 595, 597 

V. Marks, 97 U. S. 345 207 

V. Mercer University, 98 Ga. 320 471 

V. O'Brien, 34 Miss. 21 104 

V. Perkins, 56 Miss. 204 

V. Poague, 4 B. Mon. (Ky.) 524 

V. Pond, 30 Fed. 15 

V. Renaker, 10 Ky. L. 469 

V. Roberts, 127 Iowa 218 

V. Roberts, 57 Tex. 564 

V. Royse, 21 Ky. L. 775 

V. Splivalo, 69 Cal. 611 

V. Stovall, 103 Tenn. 1 

V. Thomas, 56 W. Va. 220 

V. Turner (Ky. App.), 115 S. W. 

833 314 

V. Walker, 102 Ga. 72 429 

v. Ward, 60 Ark. 510 442, 447 

V. Wilbourne, 2 Hill (S. Car.) 395 346 
Martindale v. Palmer, 52 Ind. 411 502 

V. Price, 14 Ind. 115 408 

V. Waas, 8 Fed. 854 395 

Martinet v. Duff, 178 111. App. 199 672 

Marvin v. Brewster Iron Min. Co., 55 

N. Y. 538 63 

Maryland v. West Virginia, 217 U. S. 

577 694 

Mashburn v. Dannenberg Co., 117 Ga. 



737 
705 
275 
11 
127 
339 
117 
377 
346 
266 
446 
129 
104 
662 

336 
215 



491 

354 

674 

64 

31 

533 

90 

316 

493 

399 



567 



Mason v. Baily, 6 Del. Ch. 129 

v. Black, 87 Mo. 329 

V. Brock, 12 111. 273 

v. Daly, 117 Mass. 403 

V. Mullahy, 145 111. 383 

V. Ross, 75 N. J. Eq. 136 
Mason-Seaman Transportation Co.. In 
re, 235 Fed. 974 330 



364 
714 
129 
283 
578 
127, 692 
100 



TABLE OF CASES 



lix 



[References are to Sections.'\ 



Masterson v. Munroe, 105 Cal. 431 241 

V. Townshend, 123 N. Y. 458 463 

Massey v. Huntington, 118 111. 80 59 

Massie v. Hiatt, 82 Ky. 314 721 

Mather v. McMilHan, 60 Wis. 546 373 

V. Mather, 103 III. 607 470 

Mathews v. Blake, 16 Wyo. 116 643 

Matlock V, Lock, 38 Ind. App. 281 43 

Matson v. Johnson, 48 Wash. 256 364 

Matt V. Matt, 156 Iowa 503 433 
Matter of Kiernan, 38 Misc. (N. Y.) 

394 724 

McGraw, 111 N. Y. 66 113 

McMillan, 126 App. Div. (N. Y.) 

155 708 

Nichols' Estate, 60 Misc. (N. Y.) 

299 711 

Underliill, 62 Misc. (N. Y.) 456 711 

Matthews v. Goodrich, 102 Ind. 557 192 

V. Ward, 10 Gill & J. (Md.) 443 72 

Matthewson v. Hevel, 82 Kans. 134 638 

Mattlage v. Mulherin, 106 Ga. 834 433 

Mattocks V. Brown, 103 Pa. St. 16 49 

V. Stearns, 9 Vt. 326 49 

Mattox V. Hightshue, 39 Ind. 95 100 

Maul V. Hellman, 39 Nebr. 322 601 

Mauzy v. Hinrichs, 89 Nebr. 280 722 

V. Hinrichs, 90 Nebr. 735 722 

Maxwell v. Campbell, 45 Ind. 360 362 

V. Harper, 51 Wash. 351 

286, 297, 311 
Maxwell Land-Grant Case, 121 U. S. 

325 229 

May V. Dobbins, 166 Ind. 331 687 

V. Lewis, 132 N. Car. 115 714 

V. May, 28 Ala. 141 678 

V. Parhartij^ 68 Ala. 253 736 

Mayburry v. Brien, 15 Pet. (U. S.) 21 65 

Mayer v. Wilkins, 37 Fla. 244 375 

Mayham v. Coombs, 14 Ohio 428 126 

Maynard v. Davis, 127 Mich. 571 325 

V. Maynard, 10 Mass. 452 120 

Mayo V. Wood, 50 Cal. 171 317 
Maywood &c. Co. v. Maywood, 118 III. 

61 105 

Meacham v. Bunting, 156 III. 586 64 

Mead v. Fox, 6 Cush. (Mass.) 199 35 

Meader v. Archer, 65 N. H. 214 718 

V. Norton, 11 Wall. (U. SO 442 106 
Meadowcroft v. Winnebago Co., 181 

111. 504 111, 714, 719 

Meagher v. Drury, 89 Iowa 366 124 
Mechanics* Bldg. Assn. v. Whitacre, 92 

Ind. 547 , 21, 22 

M. E. Church v. Hoboken, 33 N. J. L. 

13 105 

V. Mayor &c. of Hoboken, 33 N. J. 

L. 13 105 

Meddock v. Williams, 12 Ohio 377 284 

Mee V. Benedict, 98 Mich. 260 121 

Meech v. Fowler, 14 Ark. 29 265 

Meeker v. Draffen, 137 App. Div. 537 466 

V. Wright, 76 N. Y. 262 321 

Megerle v. Ashe, 33 Cal. 74 196 

Meier V. Lee, 106 Iowa' 303 458, 731 

V. Meier, 105 Mo. 411 446 

Meigs V. Roberts, 162 N. Y. 371 289 
Mellen v. Moline Iron Worlcs, 131 U. 

S. 352 651 

Mellon V. Reed, 114 Pa. St. 647 327 

Mekoss v. Scott, 18 Ind. 250 119 

Melton V. Davidson, 86 Tenn. 129 721, 728 

V. St. Louis, I. M. & S. R. Co., 

99 Ark. 433 568 

V. Turner, 38 Tex. 81 124 

Melvin v. Martin, 18 E. I. 650 718 

V. Melvin, 8 Cal. App. 684 286 

Memmert v. McKeen, 112 Pa. St. 315 278 



Memphis Land & Timber Co. v. Ford, 

58 Fed. 452 394 

Menage v. Jones, 40 Minn. 254 362 

Menard v. Campbell, 180 Mich. 583 322 

Menger v. Carruthers, 3 Kans. App. 75 112 
Mercantile Nat. Bank v. Parson, 54 

Minn. 56 129 
Mercantile Safe Deposit Co. v. Hunt- 
ington, 89 Hun (N. Y.) 465 286 
Merchants' Loan & Trust Co. v. North- 
ern Trust Co., 250 111. 86 354 
Merchants' Nat. Bank v. Greene, 150 

Mass. 317 674 
Merchants' & Farmers* State Bank of 

Sullivan v. Dawdy, 230 111. 199 434 
Mercier v. Missouri &c. R. Co., 54 

Mo. 506 45 

Meredith v. Jopns, 3 Cro. Cas. 244 58 

Meriden v. Maloney, 74 Conn. 90 632 
Merillat v. Hensey, 34 App. (D. C.) 

398 575 

Merriam v. Bachioni, 112 Cal. 191 133 

Merrick v. Merrick, 37 Ohio St. 126 272 

v. Wallace, 19 III. 486 117 

Merrifield v. Western Cottage Piano 

&c. Co., 238 111. 526 614 

Merrill v. Dearing, 32 Minn. 479 640 

v. Hartwell, 11 Mich. 200 203 

V. Houghton, 51 N. H. 61 671 

v. Luce, 6 S. Dak. 354 119, 438 

Merriman v. Hyde, 9 Nebr, 113 118 

Merritt v. Brovm, 19 N. J. Eq. 286 418 

V. Bunting, 107 Va. 174 187 

V. Harris, 102 Mass. 328 301 

V. Merritt, 62 Mo. 150 735 

V. Westerman, 165 Mich. 535 691 

Meserve v. Haak, 191 Mass. 220 483 

Mesick v. Sunderland, 6 Cal. 297 394 

Meskimen v. Day, 35 Kans. 46 120 

Messer v. Jones, 88 Maine, 349 719, 724 

V. Oestreich, 52 Wis. 684 278 

Messmore v. Williamson, 189 Pa. St. 

73 40 
Metcalf V. First Parish in Framingham, 

128 Mass. 370 487 
Methodist Church v. Hoboken, 33 N. J. 

L. 13 105 

Mette V. Feltgen (III.), 27 N. E. 911 326 

Meyer v. Kinzer, 12 Cal. 247 320 
Meyers v. Croft, 13 Wall. (U. S.) 291 

193, 196, 198 
Michigan Mutual Life Ins. Co. V. Con- 
ant, 40 Mich. 530 127 
Michigan Trust Co. v. Ferry, 175 Fed. 

667 576 

Michoud V. Girod, 45 U. S. 5C2 363 

Middlecoff v. Cronise, 155 Cal. 185 654 

Middleton v. Findla, 25 Cal. 76 262 

Middleton, In re, 72 Iowa 424 491 
Middletown Savings Bank v. Bach- 

arach, 46 Conn. 513 638 

V. Fellowes, 42 Conn. 36 535 

Middleworth v. Ordway, 191 N. Y. 404 718 

Midlknd R. Co. v. Wilcox, 122 Ind. 84 537 

Midyette v. Grubbs, 145 N. Car. 85 722 

Milburn v. Beaty, 81 Kans. 696 643 

Miles V. Stehle, 22 Nebr. 740 447 

Milheim v. Baxter, 46 Colo. 155 407 

Miller v. Anderson, 1 S. Dak. 539 632 

V. Bayless, 194 Mo. 630 303 

V. Carlisle, 90 Ky. 205 466 

V. Cooch, 5 Del. Ch. 161 473 

V. Davis, 106 Mich. 300 73 

V. Emans, 19 N. Y. 384 306 

V. Goodin (Ky. App.), 124 S. W. 

818 ' 350 

V. Grunsky, 141 Cal. 441 228 

V. Hanna, 89 Nebr. 224 736 



Ix 



TABLE OF CASES 



[References are to Sections.l 



Miller 

V. Holt, 68 Mo. 584 487 

V. Indianapolis, 123 Ind. 196 105, 244 
V. Levi, 44 N. Y. 489 56 

V. Louisville &c. R. Co., 83 Ala. 

274 673 

V. McEIwee, 12 La. Ann. 476 90 

V. Marx, 55 Ala. 322 66 

V. Metcalf, 77 Conn. 176 466 

V. Miller, 234 111. 16 676 

V. Miller, 63 Iowa 387 346 

V. Miller, 151 Ky. 563 466 

V. Miller, 105 La. 257 715 

V. Miller, 91 N. Y. 315 719 

V. Miller, 89 N. Car. 402 346 

V. Moss, 65 Tex. 179 185 

V. Quick, 158 Mo. 495 310 

V. Sherry, 2 Wall. (U. S.) 237 353 
V. Speer, 38 N. J. Eq. 567 87 

V. Stoddard, 50 Minn. 272 535 

V. Talley, 48 Mo. 503 67 

V. Texas &c. R. Co., 132 U. S. 662 203 
-V. Tobin, 16 Ore. 540 221 

V. Tunica County, 67 Miss. 651 273 

V. Warren, 94 App. Div. (N. Y.) 

192 687 

V. Williams, 66 III. 91 719 

Miller, In re, 64 Misc. (N. Y.) 467 550 

Millett V. Lagomarsino, 107 Cal. 102 73 

Milligan v. O'Conor, 19 111. App. 487 372 

Millilcan v. Patterson, 91 Ind. 515 636 

Mills V. Catlin, 22 Vt. 98 291 

v. Davison, 54 N. J. Eq. 659 55, 482 

v. Dow's Admr., 133 U. S. 423 266 

v. Seattle &c. R. Co., 10 Wash. 

520 54 

v. Van Voorhies, 20 N. Y. 412 65 

v. Zion Chapel, 119 Md. 510 694 

Milne v. Milne, 17 La. 46 458 

Mims v. Machlin, 53 S. Car. 6 59 

Minneapolis Mill Co. v. Tiffany, 22 

Minn. 463 72 

Mires V. Laubenheimer, 271 111. 296 735 
Missouri-American Elec. Co. v. Ham- 
ilton-Brown Shoe Co., 165 Fed. 283 

370, 
Missouri River Tel. Co. v. First Nat. 

Bank, 74 111. 217 
Mitchell v. Bartlett, 51 N. Y. 447 

v. Hagge (Iowa), 160 N. W. 287 

V. Jones, 50 Mo. 438 

v. Kimbrough, 98 Tenn. 535 

V. Minnequa Town Co., 41 Colo. 

367 
V. Pinckney, 13 S. Car. 203 
V. State, 63 Ind. 574 
V. Thorne, 134 N. Y. 536 
V. Warner, 5 Conn. 497 
V. Winslow, 2 Story (U. S.) 630 
Mittel V. Karl, 133 111. 25 
Mix V. Hotchkiss, 14 Conn. 32 
Mizell V. Burnett, 49 N. Car. 249 
Moale V. Baltimore, 5 Md. 314 
Mobile Transportation Co. v. Mobile, 

187 U. S. 479 
Mobley v. Mobley, 85 S. Car. 319 
Moen V. Moen, 16 S. Dak. 210 
Mofat V. Henderson, 18 J. & S. (N. 

Y.) 211 
Mohr V. Tulip, 40 Wis. 66 
Molineaux v. Raynolds, 55 N. J. Ea. 

187 
Mollyneaux v. Wittenberg, 39 Nebr. 

547 
Monmouth County Electric Co. v. Mc- 

Kenna, 68 N. J. Eq. 160 
Monnett v. Turpie, 132 Ind. 482 652, 



378 

650 

265 

27 

670 

457 

633 

34 

723 

713 

61 

432 

321 

426 

54 

105 

214 
471 
719 

527 
583 

485 

313 

432 
671 



Monroe v. Jones, 8 R. I. 526 467 

V. West, 12 Iowa 119 536 

Monson v. Hutchin, 194 111. 431 318 
Montague v. Marunda, 71 Nebr. 805 691 

V. Priester, 82 S. Car. 492- 429 

Montana v. Rice, 204 U. S. 291 193 
Montana Nat. Bank v. Schmidt, 6 Mont. 

609 431 

Montandon v. Deas, 14 Ala. 33 536 

Montgomery \. Dorion, 7 N. H. 475 111 

V. Johnson, 31 Ark. 74 600 

V. Keppel, 75 Cal. 128 126, 127 

V. McCumber, 128 Ind. 374 301 

V. Robinson, 49 Cal. 258 350 

V. Sturdivant, 41 Cal. 290 45, 274 

V. United States, 36 Fed. 4 205 

Montignani v. Blade, 145 N. Y. HI 714 

Moody V. Farr, 33 Miss. 195 40 

v. Macomber, 158 Mich. 209 669 

V. Moody, 11 Maine 247 602 

V. Walker, 3 Ark. 147 469 

V. Wright, 13 Mete. (Mass.) 17 432 

Mooers v. White, 6 Johns. Ch. (N. 

Y.) 360 111, 732 

Mooney v. Olsen, 21 Kans. 691 722 

Moore v. Carey, 116 Ga. 2S 363 

v. Childress, 58 Ark. 510 695 

v. Cottingham, 113 Ala. 148 600 

v. Coulter, 31 Ga. 278 192, 195 

v. Crandall, 146 Iowa 25 447 

V. Crose, 43 Ind. 30 61 

V. Empire Land Co., 181 Ala. 344 11 

V. Flack, 77 Nebr. 52 719 

V. Jourdan, 14 La. Ann. 414 692 

V. Kerr, 46 Ind. 468 327 

v. Moore, 99 Cal. 18 668 

v. Moore, 155 Ind. 261 360, 524 

V. Moore, 30 Ky. L. 383 719 

V. Moore, 169 Mo. 432 719 

V. Moore, 35 Vt. 98 • 718 

V. Morrow, 28 Cal. 551 52 

V. Neil, 39 111. 256 350 

V. Page, 111 U. S. 117 323 

V. Perry, 42 S. Car. 369 54 

V. Rake, 26 N. J. L. 584 99 

V. Ransdel, 156 Ind. 658 59 

V. Sharpe, 91 Ark. 407 314 

V. Trott, 156 Cal. 353 286 

V. Williams, 115 N. Y. 586 75 

Moore, In re, 14 R, I. 38 718 
Moot V. Business Men's Assn., 157 N. 

Y. 201 6, 35 

Mooy V. Gallagher, 36 R. I. 405 472 
Moran v. Chicago &c. R. Co., S3 Nebr. 

680 693 

V. Stewart, 132 Mo. 73 718 

Moran, In re, 151 Mo. 555 718 

Morange v. Mix, 44 N. Y. 315 17, 18 

Morano v. Shaw, 23 La. Ann. 379 22 

More V. Smedburgh, 8 Paige (N. Y.) 

600 26 

Moreland v. Houghton, 94 Mich. 548 436 

Morgan v. Dalrymple, 59 N. J. Eq. 22 530 

V. Eaton, 59 Fla. 562 671 

V. Mason, 20 Ohio 402 61 

V. Meuth, 60 Mich. 238 61 

V. Mitchell, 104 Ga. 598 696 

V. Robbins, 152 Ind. 362 471 

V. Rogers, 79 Fed. 577 58 

v. Spangler, 14 Ohio St. 102 100 

V. Wattles, 69 Ind. 260 363 

V. Wickliffe, 115 Ky. 22fi 620 

Morgan County School v. Schroll, 120 

III. 509 208 
Morganton Hardware Co. v. Morganton 

Graded School, 150 N. Car. 680 536 

Morin v. Holliday, 39 Ind. App. 201 714 

Morrill v. Hopkins, 36 Tex. 686 66 



TABLE OF CASES 



Ixi 



[References are to Sections.] 



Morrill 

V. Mackman, 24 Mich. 279 61 

V. Morrill, 53 Vt. 74 126 

V. Phillms, 142 Mass. 240 710 

Mol-ris V. Goodwin, 1 Ind. App. 481 362 
V. Gregory, 80 Kans. 626 638 

V. Linton, 61 Nebr. 537 395 

V. Linton, 74 Nebr. 411 59 

V. Mowatt, 2 Paige (N. Y.) 586 74 

V. Peck, 73 Wis. 482 436 

V. Potter, 10 R. I. 58 708 

V. SchoUsville &c. Tpk. Rd., 6 Bush 

(Ky.) 671 110 

V. Wadsworth, 17 Wend. (N. Y.) 

103 125, 433 

V. Williams, J39 Ohio St. 554 719 

Morrison v. Bank of Commerce, 81 Ind. 

335 638 

V. Bartlett, 148 Ky. 833 487 

V. Chambers, 122 N. Car. 689 400 

V. Clarksburg C. &c. Co., 52 W. 

Va. 331 46 

V. Kinstra, 55 Miss. 71 362 

V. Morrison, 38 Iowa 73 316 

V. Roehl, 215 Mo. 545 436 

V. Schorr, 197 111. 554 470 

V. Session's Estate, 70 Mich. 297 718 
V. Waggy, 43 W. Va. 405 77 

Morrow v. Dows, 28 N. J. Eq. 459 632 
V. Scott, 7 Ga. 535 721 

V. Whitney, 95 U. S. 551 

186, 221, 272 
Morrow's Estate, In re, 204 Pa. 479 487 
Morse v. Blood, 68 Minn. 442 47 

V. Carpenter, 19 Vt. 613 

261, 263, 328 
V. Curtis, 140 Mass. 112 8, 126 

V. Hayden, 82 Maine 227 474, 734 

V. Hill, 136 Mass. 60 363 

V. Lam.be, 23 Ont. 608 13 

V. Lowe (White), 182 Mich. 607 

91, 466 
V. Osborne, 75 N. H. 487 712 

Morsell V. First Nat. Bank, 91 U. S. 

357 566 

Morton v. Barrett, 22 Maine 257 58, 714 

V. Morton, 120 Ky. 251 467 

V. Morton, 62 Nebr. 420 718 

V. Woodbury, 153 N. Y. 243 485 

Moseley v. Rambo, 106 Ga. 597 357, 442 

Moser v. Cochrane, 107 N. Y. 35 524 

Moses V. Johnson, 88 Ala. 517 391 

Moss V. Helsley, 60 Tex. 426 485 

V. Jenkins, 146 Ind. 589 619 

Mossestad v. Gunderson, 140 Iowa 290 737 

Mott V. Ackerman, 92 N. Y. 539 359 

Moulton V. Cornish, 138 N. Y. 133 

447, 674 
Mt. Pleasant v. Eversole, 29 Ky. L. 

830 501 

Mudge V. Livermore (Iowa), 123 N. W. 

199 613 

Muhle V. New York &c. R. Co., 86 

Tex. 459 110, 677 

Muir V. Galloway, 61 Cal. 498 324 

Muldrow V. Robinson, 58 Mo. 331 124 

Mulford V. Le Franc, 26 Cal. 88 227 

V. Rowland, 45 Colo. 172 335 

Mullan V. United States, 118 U. S. 

271 208 

Muller V. Dows, 94 U. S. 444 655 

Mulliken v. Graham, 72 Pa. St. 484 127 
Mullin V. Atherton, 61 N. H. 20 611 

Mulvane v. Rude, 146 Ind. 476 472 

Munger v. Curtis, 42 Hun (N. Y.) 465 535 
Munson v. Cole, 98 Ind. 502 359 

■ V. Munson, 30 Conn. 425 429 

V. Wray, 7 Blackf. (Ind.) 403 406 



Murdock v. Murdock, 74 N. H. 77 712 

Murphey v. Harker, 115 Ga. 77 667 

Murphy v. Adams, 71 Maine 113 537 

V. Crowley, 140 Cal. 141 91 

V. Delano, 95 Maine 229 354, 359 

V. Doyle, 37 Minn. 113 687 

V. Hendricks, 57 Ind. 593 120, 423 

V. Henry, 35 Ind. 442 87, 707, 708 
V. McKeon, 53 N. J. Eq. 406 483 , 

V. Myar, 95 Ark. 32 405 

Murray v. Beal, 23 Utah 548 330 

V. Brokaw, 67 III. App. 402 443 

V. Cazier, 23 Ind. App. 600 722 

V. Cherrington, 99 Mass. 229 50 

V. Green, 64 Cal. 363 313 

V. Hill, 60 111. App. 80 531 

V. Montana &c. Mfg. Co., 25 Mont. 

14 228 

Murray Ferris & Co. v. Blackledge, 71 

N. Car. 492 328 

Murto V. Lemon, 19 Colo. App. 314 443 
Musconetcong Iron Works v. Delaware 

&c. R. Co., 76 N. J. L. 717 100 

Musgrove V. Bonser, 5 Ore. 313 127, 132 
Mushback v. Ryerson, 11 N. J. L. 346 616 
Mutual Benefit Co., In re, 174 Pa. St. 

1 90 

Mutual Benefit Life Ins. Co. v. Grace 

Church, 53 N. J. Eq. 413 47 

V. Huntington, 57 Kans. 744 439 

Mutual Life Ins. Co. v. Corey, 54 Hun 

(N. Y.) 493 97, 282 

V. Bake, 87 N. Y. 257 122, 132 

V. Nicholas, 144 App. Div. (N. Y.) 

95 419 

Myers v. Croft, 13 Wall. (U. S.) 291 

197, 193 

V. Myers, 167 111. 52 58 

V. Norman, 20 Ky. L. 343 467 

V. Pierce, 86 Ga. 786 451, 524 

Mynes V. Mynes, 47 W. Va. 681 429 

Myrick v. Bill, 5 Dak. 167 66 

N 

Nagle V. Hirsch, 59 Ind. App. 282 477 

Nail V. Conover, 223 Mo. 477 698 
Narron v. Wilmington &c. R. Co., 122 

N. Car. 856 694 

Nash V. Cutler, 16 Pick. (MassJ 491 727 
Nason v. First Bangor CJhristian 

Church, 66 Maine 100 481 
National Bank v. Matthews, 98 U. S. 

621 113 

V. Scriven, 63 Hun (N. Y.) 375 328 
V. Tenn. Coal &c. R. Co., 62 Ohio 

St. 564 421 
National Broadway Bank v. Denny, 

133 Ga. 227 350, 612 
National Ins. Co. v. Butler, 61 Nebr. 

449 426 
National Life Ins. Co. v. Minch, 53 N. 

Y. 144 128 
National Safe Deposit Co. v. Stead, 

250 III. 584 86 
National Sav. Bank v. Ward, 100 U. 

S. 195 16, 17 

National Shoe & Leather Bank v. 

Small, 7 Fed. 837 432 
National Surety Co. v. Walker, 127 

Iowa 518 638 

Naylor v. Godman, 109 Mo. 543 476 

Neal V. Davis, 53 Ore. 423 699, 720 

V. Kayser, 12 Ariz. 118 200 

V. Wideman, 59 Ark. 5 643 

Neeley v. Wise, 44 Iowa 544 730 

Neff V. Elder, 84 Ark. 277 428 

Negus, In re, 7 Wend. (N. Y.) 499 15 



Ixii 



TABLE OF CASES 



[References are to Sections.] 



Neill V. Cody, 26 Tex. 286 600 

Neil's Appeal, In re, 92 Pa. St. 193 719 

Neilson v. Brett, 99 Va. 673 717 

V. Lagow, 12 How. (U. S.) 98 338 

Nellis V. Nellis, 99 N. Y. 505 48 

Nelson v. Bush, 9 Dana (Ky.) 104 710 

V. Davidson, 160 111. 254 695 

V. Hayner, 66 111. 487 363 

V. Murfee, 69 Ala. 598 524, 602, 736 

V. Nelson, 36 Ind. App. 331 484 

Nesbit V. Stevens, 161 Ind. 519 508 

Nesbitt V. Delamar's Nevada Gold Min. 

Co., 24 Nev. 273 613 

Neslin v. Wells, 104 U. S. 428 121, 125 

Nesmith v. Dinsmore, 17 N. H. 515 737 

Nevada Nickle Syndicate v. National 

Nickle Co., 103 Fed. 391 591 

Nevin's Estate, In re, 192 Pa. St. 258 59 
Newark Sav. Inst. v. Jones, 37 N. J. 

Eq. 449 398 

Newberry v. French, 98 Va. 479 74, 531 
New Britain v. Marines' Sav. Bank, 

67 Conn. 528 526 

Newbury v. Rutter, 38 Iowa 179 426 

Newcomb v. Bonham, 1 Vern. 7 420 

v. Newcomb, 108 Ky. 582 493 

Newell v. Burnside Banking Co., (Ky. 

App.), 118 S. W. 267 427 

New England Hospital v. Boston, 113 

Mass. 518 107 

New Eng. Mfg. Co. v. Starin, 60 Conn. 

369 659, 663 

New England Mtg. Sec. Co. v. Clay- 
ton, 119 Ala. 361 437, 439 
New Haven County v. New Haven ' 

Trinity Church, 82 Conn. 378 73, 462 

Newhouse v. Simino, 3 Wash. 648 215 

Newkirk v. Marshall, 35 Kans. 77 201 

Newlin v. McAfee, 64 Ala. 357 417 

Newman v. Fidelity Savings &c. Assn., 

14 Ariz. 354 438 

v. Samuels, 17 Iowa 528 358, 441 

Newman, In re, 75 Cal. 213 712, 718 

Newman's Estate, 75 Cal. 213 676 

Newnam v. Cincinnati, 18 Ohio 323 661 

New Orleans v. Baltimore, 13 La. Ann. 

162 462 

V. Hardie, 43 La. Ann. 251 483 

v. United States, 10 Pet. (U. S.) 

662 72 

New Orleans Nat. Bank Assn. v. Ad- 
ams, 109 U. S. 211 424 
Newport V. Cooper, 10 La. 155 195 
Newton v. Emerson, 66 Tex. 142 280 
V. Fisher, 98 N. Car. 20 137 
V. McKay, 29 Mich. 1 263 
V. Newton, 11 R. L 390 418 
New Vienna Bank v. Johnson, 47 Ohio 

St. 306 417 

New York v. Carleton, 113 N. Y. 284 694 
V. Goss, 124 App. Div. (N. Y.) 

680 631 

V. Hart, 95 N. Y. 443 104 

V. Stone, 20 Wend. (N. Y.) 139 40 

New York &c. Gas Coal Co. v. Plu- 

mer, 96 Pa. St. 99 392 

New York &c. R. Co. v. Aldridge, 135 

N. Y. 83 224 

V. Long, 69 Conn. 424 , 109 

V. Untermyer, 133 App. Div. (N. 

Y.) 146 677 

New York Mutual Life Ins. Co. v. 

Armstrong, 117 U. S. 591 733 

Niblack v. Goodman, 67 Ind. 174 658 

Nicholls V. Wentworth, 100 N. Y. 455 102 

Nichols V. Hampton, 46 Ga. 253 123 

V. New England Furniture Co., 100 

Mich. 230 241 



Nichols 

V. Nichols, 28 Vt. 228 670 

V. Patten, 18 Maine 231 662 

V. Reynolds, 1 R. I. 30 117, 122 

Nichols, In re, 128 Pa. St. 428 714 

Nicholson v. Bettle, 59 Pa. St. 384 48 

V. Caress, 59 Ind. 39 737 

V. Congdon, 95 Minn. 188 192 

V. Lieber (Tex. Civ. App.), 153 S. 

W. 641 1 

Nicholson, In re, 115 Iowa 493 471 

Nicodemus v. Young, 90 Iowa 423 262 

Nicoll v. New York &c. E. Co., 12 N. 

Y. 121 54 

Nicrosi v. Phillipi, 91 Ala. 291 64, 458 

Nidever v. Ayers, 83 Cal. 39 301 

Nightingale v. Burreil, 15 Pick. 

(Mass.) 104, 111 469 

v. Hidden, 7 R. I. 115 274 

Niles V. Cedar Point Club, 175 U. S. 

300 192, 195, 226 

V. Cooper, 98 Minn. 39 434 

Nixon V. Hyserott, 5 Johns. (N. Y.) 

58 336 

Noble V. Grandin, 125 Mich. 383 655 

V. McGinnis, 55 Ind. 528 653 

Noland v. Barrett, 122 Mo. 181 590, 601 

V. Chambers, 84 Ky. 516 479 

Norman v. Beekman, 58 Fla. 325 643 

V. Eastburn, 230 Mo. 168 611 

V. Heist, 5 Watts & S. (Pa.) 171 724 

Non-She-Po v. Wa-Win-Ta,, 37 Ore. 

213 718 

Noon V. Finnegan, 29 Minn. 418 723 

Nordyke & Marmon Co. v. Hawkeye 

Woolen Mills Co., S3 Iowa 521 536 

Norris v. Dains, 52 Ohio St. 215 280 

V. Hensley, 27 Cal. 439 465, 472 

V. Kidd, 28 Ark. 485 66 

V. Letchworth, 140 Mo. App. 19 100 

V. Moulton, 34 N. H. 392 66 

North V. Graham, 235 111. 178 722 

V. Knowlton, 23 Fed. 163 433 

North Birmingham St. R. Co. v. Cal- 

derwood, 89 Ala. 247 503 

Northcraft v. Oliver, 74 Tex. 162 723 

Northcut V. Whipp, 12 B. Mon. (Ky.) 

65 64, 65 

North Dakota Horse & Cattle Co. v. 

Serumgard, 17 N. Dak. 466 446 

Northern Bank v. Roosa, 13 Ohio 334 566 
Northern Lumber Co. v. O'Brien, 124 

Fed. 819 182 

Northern Pac. R. Co. v. Majors, 5 

Mont. Ill 106 

V. Musser &c. Co., 68 Fed. 993 212 

Northern Trust Co. v. Buck, 263 HI. 

222 86 

North's Estate, In re, 48 Conn. 583 727 

Northwestern Nat. Bank v. Stone, 97 

Iowa 183 429 

Nortnass v. Pioneer Townsite Co., 82 

Nebr. 382 65 

Norton v. Birge, 35 Conn. 250 

133, 546, 551 

V. McDevit, 122 N. Car. 755 64 

v. Reardon, 67 Kans. 302 345, 590 

Norwood V. Cobb, 37 Tex. 141 737 

v. Leeves (Tex. Civ. App.), 115 S. 

, W.'53 '^'^" 667 

V. Mills, 3 Ohio S. & C. P. Dec. 

356 734 

Nothe V. Nomer, 54 Conn. 326 33 

Nottingham v. McKendrick, 38 Ore 

495 537 

Nowlin Lumber Co. v. Wilson, 119 

Mich. . 406 62 

Noyes v. Hall, 97 U. S. 34 447, 692 



TABLE OF CASES 



Ixiii 



[References are to Sections.} 



Noyes 

V. Johnson, 139 Mass. 436 7, 395 

V. Sturdivant, 18 Maine 104 119 

Noyes' Estate, In re, 40 Mont. 178 457 

Nugent V. Cloon, 117 Mass. 219 60 

V. Powell, 4 Wyo. 173 718 

V. Riley, 1 Mete. (Mass.) 117 419 

Nye V. Moody, 70 Tex. 434 120, 567 



Oak Creek Valley Bank v. Helmer, 59 

Nebr. 176 428 

Oakes v. DeLancey, 71 Hun (N. Y.) 

49 104, 257 

V. Yonah Land & Min. Co., 89 Fed. 

243 673 

Oakey v. Cook, 41 N. J. Eq. 350 75 

Oakland V. Oakland Water Front Co., 

118 Cal. 160 187, 227 

Oakley v. Shaw (N. J. Eq.), 69 Atl. 

462 591 

Oakman v. Walker, 69 Vt. 344 54 

Oaksmith's Lessee v. Johnston, 92 U. 

S. 343 693 

Oats V. Walls, 28 Ark. 244 117, 122 

Ober V. Gallagher, 93 U. S. 199 530 

Oberholtzer's Appeal, In re, 124 Pa. 

St. 583 124 

Oblehis v. Creeth, 67 Fed. 303 272 

O'Brian v. Fry, 82 111. 87 598 

O'Brien v. Bugbee, 46 Kans. 1 714 

V. Moffitt, 133 Ind. 660 674 

O'Connell v. Pinnacle Gold Min. Co., 

140 Fed. 854 722 

O'Connor v. Current River R. Co., Ill 

Mo. 185 537 

V. Nadel, 117 Ala. 595 424 

Oconto Co. V. Jerrard, 46 Wis. 317 132 

Ogden V. Ogden, 60 Ark. 70 64 

V. Walters, 12 Kans. 282 

125, 349, 592 
Ogden City St. R. Co. v. Wright, 31 

Ore. 150 - 354 

Ogilvie V. Copeland,^ 145 111. 98 147 

Ogle V. Tayloe, 49 Md. 158 463 

Oglesby Coal Co. v. Pasco, 79 111. 164 730 
Ohio River R. Co. v. Johnson, 50 W. 

Va. 499 694 

V. Pennsylvania Co., 222 Pa. 573 668 
Okanogan County v. Cheetham, 37 

Wash. 682 ' 213 

Olcott V. Gabert, 86 Tex. 121 45, 268 

V. Tope, 115 111. App. 121 338 

Old Town Bank v. McCormick, 96 

Md. 341 377 

Olin V. Denver &c. R. Co., 25 Colo. 177 272 

347 
61 
61 
636 
708 
547 
205 
491 

28 
578 
345 

426 
719 
477 
362 

431 



Oliver v. Dougherty, 8 Ariz. 65 

V. Hook, 47 Md. 301 

V. Pitman, 98 Mass. 46 

V. Robinson, 58 Ala. 46 

V. Vance, 34 Ark. 564 
Olson V. Leibpke, 110 Iowa 594 

V. United States, 133 Fed. 849 
Olson, In re, 63 Iowa 145 
O'Mara v. McCarthy, 45 Ind. App. 

147 
Ommen v. Talcott, 180 Fed. 925 
O'Neal v. Wilson, 21 Ala. 288 
Ontario Land & Imp. Co. v. Bedford. 

90 Cal. 181 
Opdyke's Appeal, In re, 49 Pa. St. 373 
Opel V. Shoup, 100 Iowa 407 
Ordway v. Smith, 53 Iowa 589 
Oregon Mtg. Co. v. Hersner, 14 Wash, 

515 
Oregon & W. Trust Inv. Co. v. Shaw, 

S Sawy. (U. S.) 336 " 438 I 



732 
492 
117 
729 
642 
719 

60 
276 
693 
638 
661 
308 
290 
434 
671 
371 
723 

56 
127 
716, 734 
Y.) 

687 



272 

45 
419 
478 



Orford v. Benton, 36 N. H. 395 64 

Orgain v. Irvine, 100 Tenn. 193 487 

Orrasby v. Graham, 123 Iowa 202 77 

Orr V. Hodgson, 4 Wheat. (U. S.) 
453 

V. O'Brien, 55 Tex. 149 

V. Sutton, 119 Minn. 193 

V. White, 106 Ind. 341 

V. Wiley, 19 W. Va. 150 
Ortbwein v. Thomas, 127 111. 554 
Osborne v. Gordon, 86 Wis. 92 
Osgood V. Abbott, 58 Maine 73 
Ostrom V. San Antonio, 77 Tex. 345 
Oswald V. Wolf, 129 111. 200 
Otis V. Epperson, 88 M.o. 131 

V. McMillan, 70 Ala. 46 

V. Smith, 9 Pick. (Mass.) 293 
O'Toole V. Omlie, 8 N. Dak. 444 
Otto V. Young, 227 Mo. 193 
Ouerbacker v. Claflin, 96 Ky. 235 
Oury V. Duffield, 1 Ariz. 509 
Outland v. Bowen, 115 Ind. 150 
Overall v. Taylor, 99 Ala. 12 
Overdieck, In re, 50 Iowa 244 
Overing v. Russell, 32 Barb. (N, 

263 
Overland Machinery Co. v. Alpenfels, 

30 Colo. 163 
Overseers of Poor v. Sears, 22 Pick. 

(Mass.) 126 
Overstreet v. Baxter, 30 Kans. 55 
Overton v. Lea, 108 Tenn. 505 
Overturf v. Dugan, 29 Ohio St. 230 

86, 360, 723 
Owen V. Baker, 101 Mo. 407 349, 350 

V. Brodkfort, 208 111. 35 99 

V. Field, 102 Mass. 90 43, 55 

V. Western Sav. Fund, 97 Pa. 47 23 
Owens V. Claytor, 56 Md. 129 525 

v. Jabine, 88 Ark. 468 

V. McNally, 113 Cal. 444 

v. Owens, 100 N. Car. 240 
Owensboro & N. R. R. Co. v. Griffith 

92 Ky. 137 ' 291 

Owings v. Hunt, 53 S. Car. 187 722 

Ownes V. Ownes, 23 "N. J. Eq. 60 59 

Owsley v. Matson, 156 Cal. 401 73, 699 

Oxley V. Tryon, 25 Iowa 95 298 

Ozark Land &c. Co. v. Franks, 156 
Mo. 673 101 



Pace V. Klink, 51 Ga. 220 718 

Pacific Live Stock Co. v. Gentry, 38 

Ore. 275 183 

Pack v. Whitaker, 110 Va. 122 297 

Packard v. Cleveland &c. R. Co., 46 

111. App. 244 53 

v. Old Colony R. Co., 168 Mass. 92 338 

V. Tisdale, 50 Maine 376 636 

v. Usher, 7 Gray (Mass.) 529 35 

Packer v. Bird, 137 U. S. 661 104 

Paddock v. Wallace, 117 Mass. 99 363 

V. Wells, 2 Barb. Ch. (N. Y.) 331 89 

Page V. Ellsworth, 44 Barb. (IST. Y.) 

636 408 

V. Foust, 89 N. Car. 447 467 

V. Greely, 75 111. 400 6, 395, 398 

V. Hobbs, 27 Cal. 483 183 

V. Parker, 61 N. H. 65 711 

V. Rogers, 31 Cal. 294 78 

V. Trutch, Fed. Cas. No. 10668 22 

V. Waring, 76 N. Y. 463 547 

Pahlman v. Shumway, 24 111. 127 566 

Paige V. Akins, 112 Cal. 401 405 

Paine v. Consumers' Storage Co., 71 

Fed. 626 272 



64 
671 
733 



Ixiv 



TABLE OF CASES 



[References are to Sections.] 



Paine 

V. Meller, 6 Ves. 347 8 

V. Root, 121 111. 77 546 

V. Woods, 108 Mass. 160 104 

Paldi V. Paldi, 84 Mich. 346 634 

Palin V. Coolie, 125 Ga. 442 517 

Palmer v. Ekins, 2 Ld. Raym. 1550 99 

V. Mead, 7 Conn. 149 654 

Pancake v. Couffman, 114 Pa. St. 113 118 

Panton v. Tefit, 22 111. 366 290 

Papin V. Goodrich, 103 111. 86 25 

Park V. Park, 71 Ark. 283 431 

Parke V. Neeley, 90 Pa. St. 52 129 

Parker v. Allen, 4 Atl. (N. J.) 300 583 

V. Betts, 47 Colo. 428 - 723 

V. Churchill, 104 Ga. 122 471 

V. Jones, 57 Ga. 204 99 

V. Meredith (Tenn.) 59 S. W. 167 119 

V. Nickerson, 137 Mass. 487 664 

V. Page, 41 Ore. 579 53 

V. Parker, 5 Mete. (Mass.) 134 46 

V. Parker, 10 Tex. 83 715 

V. Porter, 11 111. App. 602 6 

Parkey v. Ramsey, 111 Tenn. 302 100 

Parkhurst v. Harrower, 142 Pa. 432 712 

Parks V. Kimes, 100 Ind. 148 719 

Parlin v. Ware, 39 Maine 363 623 

Parmenter v. Lomax, 68 Kans. 61 315 

V. Oakley, 69 Iowa 388 438 

Parmenter Mfg. Co. v. Hamilton, 172 

Mass. 178 377 

Parnell v. Thompson, 81 Kans. 119 493 

Parret v. Shaubhut, 5 Minn. 323 120 
Parsons V. Baltimore Bldg. &c. Assn., 

44 W. Va. 335 119 

V. Boyd, 20 Ala. 112 326 

V. Lent, 34 N. J. Eq. 67 121 

V. Noggle, 23 Minn. 328 420 

V. Parsons, 52 Ohio St. 470 737 

V. Parsons, 101 Wis. 76 718 
V. Prudential Real Estate Co., 86 

Nebr. 271 640 

Paschal v. Perez, 7 Tex. 348 76 

Pascoe V. Green, 18 Colo. 326 215 

Pasquay v. Pasquay, 23? 111. 48 484 
Paterson v. Ellis, 11 Wend. (N. Y.) 

259 44 

V. Ogden 141 Cal. 43 228 

Paton V. Robinson, 81 Conn. 547 314 

Patrick v. Patrick, 135 Ky. 307 59, 480 

Patterson v. Carneal, 3 Marsh A. K. 

(Ky.) 618 290 
V. De La Ronde, 8 Wall. (U. S.) 

292 118 
V. Earhart, 6 Ohio S. & C. P. Dec. 

16 476 

V. Harlan, 124 Pa. St. 67 423 

V. Langston, 69 Miss. 400 223 

V. Patterson, 135 Ky. 339 54 

V. Tatum, 3 Sawy. (U. S.) 164 210 
V. Trabue, 3 J. J. Marsh. (Ky.) 

598 185 

Pattison v. Dryer, 98 Mich. 564 52 

Fatten V. Ludington, 103 Wis. 629 459 

Patton's Exr. v. Smith, 130 Ky. 819 614 

Patty V. Middleton, 82 Tex. 586 70 

Paul V. Cragnaz, 25 Nev. 293 405 

V. Davis, 100 Ind. 422 718 

V. Philbrick, 73 N. H. 237 476 

Paulding v. Grimsley, 10 Mo. 210 197 

Paxson V. Brown, 61 Fed. 874 125, 138 

V. Heron, 41 Colo. 147 347 

Payne v. Parker, 10 Maine 178 280 

V. Sheets, 75 Vt. 335 63 

V. Wilson, 74 N. Y. -348 417 

Peabody v. Brown, 10 Gray (Mass.) 

45 422 



Peabody Bldg. &c. Assn. v. Houseman, 

89 Pa. St. 261 21 
Peabody Heights Co. v. Wilson, 82 

Md. 186 313 

Peacock v. Eastland, L. R. 10 Eq. 17 58 

V. Smart, 17 Mo. 402 708 

Peacock, In re, 178 Fed. 851 381 

Peadro v, Carriker, 168 III. 570 73 

Peagler v. Stabler, 91 Ala. 308 420 

Peake v. Jenkins, 80 Va. 293 453 

V. Young, 40 S. Car. 41 353 

Pearce v. Moore, 114 N. Y. 256 314 

Pearl Street, In re. 111 Pa. St. 565 317 

Pearsol v. Maxwell, 68 Fed. 513 714 

Pearson v. Carlton, 18 S. Car. 47 721 

T. Gooch. 69 N. H. 208 442 

V. Hartman, 100 Pa. St. 84 62 

V. Howey, 11 N. J. L. 12 65 

V. Seay, 38 Ala. 643 418 

Pearson, In re, 110 Cal. 524 708 

Pease v. Christ, 31 N. Y. 141 529 

Peasley v. McFadden, 68 Cal. 611 692 

Peck V. Clapp, 98 Pa. St. 581 687 

V. Jenness, 7 How. (U. S.) 612 522 

V. Peck. 66 Mich. 586 676 

V. Smith, 1 Conn. 103 61 

Peckham v. Lego, 57 Conn. 553 472 

V. Stewart, 97 Cal. 147 262 

Peden v. Chicago &c. R. Co., 73 Iowa 

328 " 113 
Peers v. McLaughlin, 88 Cal. 294 417 
Feet V. Spencer, 90 Mo. 384 375 
Peet's Estate, In re, 99 Iowa 314 473 
Peevy v. Hurt, 32 Tex. 146 203 
Pegram v. Owens, 64 Tex. 475 119 
Peirce V. Grice, 92 Va. 763 53 
Pekin Mining & Milling Co. v. Ken- 
nedy, 81 Cal. 356 623 
Pelham V. Murray, 64 Tex. 477 653 
Pemberton v. Klein, 43 N. J. Eq. 98 376 
Pembroke Academy v. Epsom School 

Dist., 75 ti. H. 408 59, 480 

Pendergrass v. Burris, 77 Cal. 19 418 

Pendleton v. Kinney, 65 Conn. 222 471 

Pengra v. Munz, 29 Fed. 830 212 
Peninsular Naval Stores Co. v. Cox, 

57 Fla. 505 549 

Penn V. Rhoades, 124 Ky. 798 363 
Pennington v. Martin, 146 Ind, 635 

546, 549 
Pennisson v. Pennisson, 22 La. Ann. 

131 653 

Pennoyer v. Neff, 95 U. S. 714 658, 661 
Pennsylvania Co. v. Pittsburgh, 226 

Pa. 322 630 
Pennsylvania Consol. Coal Co., In re, 

163 Fed. 579 378 
Pennsylvania Ins. Co. v. Bauerle, 143 

111. 459 357 
Pennsylvania Min. Co. v. Thomas, 204 

Pa. 325 35 
Pennsylvania Mtg. Inv. Co. v. Gilbert, 

13 Wash. St. 684 613 
Pennsylvania R. (io. v. St. Louis &c. R. 

Co., 118 U. S. 290 331 

Penrose v. Cooper, 86 Kans. 597 434 

Penzel Co. v. Jett, 54 Ark. 428 371 

People V. Bristol, 35 Mich. 28 117 

V. Conklin, 2 Hill (N. Y.) 67 111 

V. Creiger, 138 III. 401 503 

V. Crissman, 41 Colo. 450 955, 956 

V. Du£fy-Mclnnery CIo., 122 App. 

Div. 336 631 

V. Edwards, 56 Hun (N. Y.) 377 640 

V. Folsom, 5 Cal. 373 180 

V. Huber, 20 Cal. 81 661 

V. Ingham Co., 20 Mich. 95 645 

V. Irwin, 14 Cal. 428 418 



TABLE OF GASES 



Ixv 



[References are to Sections.] 



People 

V. Liscomb, 3 Hun (N. Y.) 760 650 

V. Livingston, 8 Barb. (N. Y.) 253 180 

V. McCIay, 2 Nebr. 7 66 

V. Madison Co., 125 111. 9 104 

V. Miller, 79 Mich. 93 301 

V. O'Brien, 111 N. Y. 1 677 

V. O'Loughlin, 136 N. Y. S. 339 957 
V. O'Loughlin, 79 Misc. (N. Y.) 

650 443 

V. Pearis, 37 Cal. 259 634 

V. Rardin, 171 111. App. 226 736 

V. Richards, 99 N. Y. 620 137 
V. Simon, 176 111. 165 955, 956, 957 

V. Snyder, 41 N. Y. 397 120 

V. Sperry, 116 Cal. 593 244 

V. Storms, 97 N. Y. 364 120 

V. Swift. 96 Cal. 165 229 

V. Warner, 116 Mich. 228 207 

V. Watltins, 105 Mich. 437 93 
People ex rel. Underbill v. Saxton, 15 

App. Div. (N. Y.) 263 227 

Peoples V. Evens, 8 N. Dak. 121 53 
People's Bldg. & Loan Assn. v. Billing, 

104 Mich. 186 321 
People's Trust Co. v. Tonkonogy, 144 

App. Div. (N. Y.) 333 438 

Perciful v. Piatt, 36 Ark. 456 328 

Perdue v. Perdue, 124 N. Car. 161 473 

Perine v. Teague, 66 Cal. 446 51 

Perkins v. Dibble, 10 Ohio 433 346 

V. George, 45 N. H. 453 456 

V. Simonds, 28 Wis. 90 727, 730 

. v. Strong, 22 Nebr. 725 122, 132 

. Perre v. Castro, 14 Cal. 519 429 

Perrin v. Reed, 35 Vt. 2 124 

Perry v. Baker, 61 Nebr. 841 439 

V. Big Rapids, 67 Mich. 146 36 

V. Clark, 157 Mass. 330 270 

V. Fisher, 30 Ind. App. 261 438 

V. Morris, 65 N. Car. 221 563 

V. Paschal, 103 Ga. 134 393, 397 

V. Selma &c. R. Co., 58 Ala. 546 636 

V. Strawbridge, 209 Mo. 621 733 

Person's Appeal, In re, 74 Pa. St. 121 

87, 737 

Peter v. Byrne, 175 Mo. 233 325 

Peters V. Cartier, 80 Mich. 124 278, 301 

V. Duluth, 119 Minn. 96 952, 957 

V. Farnsworth, 15 Vt. 155 336 

V. Ham, 62 Iowa 656 120, 126 

V. Lohr, 24 S. Dak. 605 643 

Peterson v. Bean, 22 Utah 43 109 

V. Jackson, 196 111. 40 48 

Petray v. Howell, 20 Ark. 615 S62 

Pettibone v. Griswold, 4 Conn. 158 424 

Pettit V. Black, 13 Nebr. 142 491 

Petty V. Ducker, 51 Ark. 281 491 

V. Malier, 15 B. Mon. (Ky.) 591 87 

Peugh V. Davis, 96 U. S. 322 420 

Peyton v. Desmond, 129 Fed. 1 182 

Pfeiffer v. Lindsay, 66 Tex. 123 347 

Pharis v. Leachman, 20 Ala. 662 67 

Phelan v. Anderson, 118 Cal. 504 51 

V. Boylan, 25 Wis. 679 638 

V. Fitzpatrick, 84 Wis. 240 419 

Phelps V. Funkhouser, -39 111. 401 723 

V. Grady, 168 Cal. 73 723, 736 

V. Phelps, 17 Md. 120 270 

V. Phelps, 143 N. Y. 197 65 

V. Robbins, 40 Conn. 250 455 

V. Townsley, 10 Allen (Mass.) 554 437 

Philadelphia v. Anderson, 142 Pa. St. 

357 12, 20, 174 
Philadelphia Co. v. Dickinson, 33 App. 

D. C. 338 669 

Philbrick v. Ewing, 97 Mass. 133 61 

V. Spangler, 15 La. Ann. 46 487 



Phillips V. Brown, 16 R. L 279 459 

V. Carpenter, 79 Iowa 600 714 

V. Carter, 135 Cal. 604 204 

V. Ferguson, 85 Va. 509 477 

V. Gannon, 246 111. 98 276 

V. Grayson, 23 Ark. 769 478 

V. McConica, 59 Ohio St. 1 712, 718 

V. People, 11 111. App. 340 283 

V. Phillips, 30 Colo. 516 325 

V. Schall, 21 Mo. App. 38 530 

V. Warner, 4 Tex. Civ. App. 147 66 

Phillips' Estate, In re, 205 Pa. 504 459 

Phillis V. Gross, 32 S. Dak. 438 434 

Philly V. Sanders, 11 Ohio St. 490 99 

Phinizy v. Foster, 90 Ala. 262 466 

Phinney v. Donahue, 67 Iowa 192 659 

Phoenix Ins. Co. v. Rowe, 117 Ind. 

202 28 

Pickett V. Gleed, 39 Tex. Civ. App. 71 66 

Pierce v. Jackson, 56 Ala. 599 119 

V. Keator, 70 N. Y. 419 61, 63 

v. Knight, 182 Mass. 72 471 

V. Low, 51 Cal. 580 644 

V. Parrisb, 111 Ga. 725 417 

Pierson v. Armstrong, 1 Iowa 282 290 

Pike V. Collins, 33 Maine 38 129 

V. Galvin, 29 Maine 183 99 

Pillow v. King, 55 Ark. 633 655 

Pimel v. Betjemann, 99 App. Div. (N. 

Y.) 559 734 

Pina V. Peck, 31 Cal. 359 719 

Pinckney v. Pinckney, 114 Iowa 441 119 
Pinkham v. Pinkham, 55 Nebr. 729 65 

Pinney v. Fellows, 15 Vt. 525 339 

Pique V. Arendale, 71 Ala. 91 692 

Pirie, In. re, 133 App. Div. (N. Y.) 

431 602 

Pitkin V. Reibel, 104 Mo. 505 643 

Pitman v. Thornton, 66 Maine 469 445 

Pitts V. Melser, 72 Ind. 469 492 

V. Sheriff, 108 Mo. 110 323 

Pittsburgh Junction R. Co. v. Alle- 
gheny R. Co., 146 Pa. St. 297 109 
Pittsburg &c. Co, V. Reed, 44 Ind. App. 

635 87 

Pittsfield Sav. Bank v. Berry, 63 N. 

H. 109 58 

Pitzman v. Boyce, 111 Mo. 387 62 

Pizzala v. Campbell, 46 Ala. 35 67 

Place V. People, 192 111. 160 76 

Planters* Bank of Tennessee v. Davis, 

31 Ala. 626 64 

Planters' Loan & Sav. Bank v. Dick- 
inson, S3 Ga. 711 431 
Platner v. Sherwood, 6 Johns. Ch. (N. 

Y.) 118 706 

Piatt V. Brickley, 119 Ind. 333 602 

v. Eggleston, 20 Ohio St. 414 507 

v. Piatt, 42 Conn. 330 276 

Plumb V. Robinson, 13 Ohio St.' 298 640 
Plume V. Bone, 13 N. J. L. 63 123 

Plumel's Estate, In re, 151 Cal. 77 455 
Plummer v. Russell, 2 Ribb. (Ky.) 

174 262 

V. Shepherd, 94 Md. 466 464 

Plunkett v. Meredith, 72 Ark. 3 506 

Policemen's Benevolent Assn. v. Ryce, 

213 111. 9 90 

Pollak v. Davidson, 87 Ala. 551 127 

Pollak Co. v. Muscogee Mfg. Co., 108 

Ala. 467 375 

Pollard V. Barnes, 2 Cush. (Mass.) 191 102 

V. Hagan, 3 How. (U. S.) 212 180 

V. Merrill, 15 Ala. 169 479 

V. Slaughter, 92 N. Car. 72 65 

Pollock V. Speidel, 17 Ohio St. 439 48, 464 

Pomeroy v. Mills, 3 Vt. 279 61 

V. Pomeroy, 93 Wis. 262 737 



Ixvi 



TABLE OF CASES 



{References are to Sections.^ 



Pond V. Bergh, 10 Paige (N. Y.) 140 87 

V. Irwin, 113 Ind. 243 87 

V. Sheean, 132 111. 312 401 

Pool V. Blakie, 53 111. 495 479 

V. Ellis, 64 Miss. 555 596 

V. Simmons, 134 Cal. 621 109 

Poole V. Engelke, 61 N. J. L. 124 52 

V. Koons, 252 111. 49 671 

Pope V. Henry, 24 Vt. 560 120 

Poplin V. Hawke, 8 N. H. 124 492 

Poppers V. Meagher, 148 111. 192 50 

Poppleton's Estate, In re, 34 Utah 285 477 

Porch V. Fries, IS N. J. Eq. 204 64 

Porcher v. Daniel, 12 Rich. Eq. (S. 

Car.) 349 322 

Porter v. Armour, 241 III. 145 667 

V. Askew, 11 Gill & J. (Md.) 346 711 
V. Frenchman's Bay &c. Co., 84 

Maine 195 651 

V. Ourada, 51 Nebr. 510 439 

V. Perkins, S Mass. 233 301 

V. Porter, 51 Maine 376 737 

V. Read, 19 Maine 363 309 

V. Rice (Ky.), 128 S. W. 70 552 

Portington's Case, 5 Coke 41 55 

Portis V. Cummings, 14 Tex. 171 715 

Portsmouth V. Shackford, 46 N. H. 

423 60 

Posner v. Bayless, 59 Md. 56 335 

Post V. Weil, 115 N. Y. 361 290 

Postal Telegraph-Cable Co. v. Chicago 

&c. R. Co., 30 Ind. App. 654 109 

Potlatch Lumber Co. v. Runkel, 16 

Idaho 192 552 

Potomac Power Co. v. Burchell, 109 

Va. 676 54 

Potreco Neuvo Land Co. v. All Per- 
sons Claiming, 155 Cal. 371 669 
Potter V. Couch, 141 U. S. 296 47 
V. Dooley, 55 Vt. 512 122 
V. Rowland, 8 N. Y. 448 550 
V. Small, 47 Maine 293 444 
V. Stransky, 48 Wis. 235 120 
V. Worley, 57 Iowa 66 722 
Potts V. Reynolds, 131 La. 421 672 
Powe V. McLeod, 76 Ala. 418 66 
Powell V. Campbell, 20 Nev. 232 676 
V. Cosby, 28 Ky. L. 619 476 
V. Huey, 241 111. 132 398 
V. Powell, 30 Ala. 697 456 
V. Woodcock, 149 N. Car, 235 467 
Power V. Dougherty, 83 Ky. 187 708 
V. Hafley, 85 Ky. 671 89, 718 
V. Lester, 23 N. Y. 527 428 
Powers V. Harlow, 53 Mich. 507 62 
V. Kite, 83 N. Car. 156 719 
V. Sharling, 64 Kans. 339 487 
Powers' Appeal, In re, 63 Pa. St. 443 737 
Prairie Development Co. v. Leiberg, IS 

Idaho 379 399 

Prasser's Will, In re, 140 ^^'is, 92 459 

Prather v. Hairgrove, 214 Mo. 142 565 

V. Prather, 58 Ind. 141 713, 716, 729 
Pratt V. Atwood, 108 Mass. 40 707, 719 
V. Douglas, 38 N. J. Eq. 516 456, 724 
V. McGhee, 17 S. Car. 428 734 

V. Pratt, 96 III. 184 302 

V. Skolfield, 45 Maine 386 65, 436 

Prentice v. Duluth Storage & For- 
warding Co., 58 Fed. 437 290 
Presby v. Benjamin, 169 N. Y. 377 408 
Presbyterian Church v. Allison, 10 Pa. 

St. 413 536 

Prescott V. Beyer, 34 Minn. 493 118, 119 

V. Carr, 29 N. H. 453 708, 730 

Preston v. Bosworth, 153 Ind. 458 276 

V. Hirsch, 5 Cal. App. 485 641 



Preston 

V. Preston, 202 Pa. St. 515 339 

V. Smith, 26 Fed. 884 48, 667 

Prestwood v. Carlton, 162 Ala. 327 407 

Price V. Bell, 91 Ala. 180 692 

V. Dennis, 159 Ala. 625 203 

V. Griffin, 150 N. Car. 523 714 

V. Price, 52 N. J. Eq. 326 473 

V. Price, 124 N. Y. 589 65 

Prichard v. James, 93 Ky. 306 48 

V. Mulhall, 140 Iowa 1 671 

Prickett v. Parker, 3 Ohio St. 394 

707, 708 
Prichitt V. Kirkman, 2 Tenn. Ch. 390 730 
Priddy V. Smith, 106 Ark. 79 415 

Primm v. Stewart, 7 Tex. 178 739 

Prince v. Antle, 90 Ky. 138 98, 561 

V. Barrow, 120 Ga. 810 59, 480 

V. Case, 10 Conn. 381 62, 99 

Princeton Loan & Trust Co. v. Munson, 

60 111. 371 446 

Prindle V. Beveridge, 7 Lans. (N. Y.) 

225 48 

Pringle v. Dunn, 37 Wis. 449 120, 132 

Pritchard v. Elton, 38 Conn. 434 420 

V. Pritchard, 76 W. Va. 91 735 

Pritchett V. Jackson, 103 Md. 696 291 

Proctor V. Dicklow, 57 Kans. 119 480 

V. Nance, 220 Mo. 104 643 

V. Proctor, 215 III. 275 671 

V. Walker, 12 Ind. 660 660 

Proctor, In re, 103 Iowa 232 708 

Prosser v. Warner, 47 Vt. 667 676 

Protestant Episcopal Church v. E. E. ' 

Lowe Co., 131 Ga. 666 430 

Prout V. Burke, 51 Nebr. 24 431 

Providence County Sav. &c. Bank v. 

Hall, 16 R. I. 154 53 

Provident Inst, for Savings v. Jersey 

City, 113 U. S. 506 527 

Provident Loan Trust Co. v. Wolcott, 

5 Kans. App. 473 23 

Pruitt v. Holland, 92 Ky. 641 48 

Prutsman v. Baker, 30 Wis. 644 101 

Puckett V. Waco Abstract &c. Co., 16 

Tex. Civ. App. 329 16, 19, 24 

Puget Sound Nat. Bank v. Fisher, 52 

Wash. 246 329, 654 

Pugh v. Pugh, 105 Ind. 552 466 

Pulitzer V. Livingston, 89 Maine 359 482 

Pulliam v. Pulliam, 10 Fed. 25 40 

Purdy V. Evans, 156 Ky. 342 457 

Purser v. Cady, 120 Cal. 214 592 

Putbrees v. James, 162 Iowa 618 724 

Putnam v. Story, 132 Mass. 205 359 

V. Tyler, 117 Pa. St. 570 635 

V. White, 76 Maine 551 , 119 

Putzel V. Van Brunt, 40 N. Y. Super. 

Ct. SOI 297 



Qualifications of Electors, In re, 19 R. 

L 387 57 

Quarles v. Quarles, 4 Mass. 680 735, 737 

Quartermous v, Kennedy, 29 Ark. 544 420 

Quick V. Milligan, 108 Ind. 419 118, 692 

V. Rufe, 164 Mo. 408 697 

Quimby v. Dill, 40 Maine 528 54 

V. Wood, 19 R. L 571 52^ 

Quinby v. Conlan, 104 U. S. 420 198 

V. Higgins, 14 Maine, 309 711 
Qumcy v. Attorney-General, 160 Mass. 

431 458 

Quinn v. Quinn, S S. Dak. 328 718 

V. Shields, 62 Iowa 129 59, 480 

V. Valiquette, 80 Vt. 434 407 



TABLE OF CASES 



Ixvii 



[References are to Sections.'] 



R 



Eaab, In re, 79 Misc. (N. Y.) 185 471 
Rabb V. Griffin, 26 Miss. 579 64 

Racine v. Case Plow Co., 56 Wis. 539 241 
Rackemann v. Taylor, 204 Mass. 394 

456, 724 
Eackley v. Roberts, 147 N. Car. 201 592 
Racouillat v. Sansevain, 32 Cal. 376 120 
Raggio V. Palmtag, 155 Cal. 797 66 

Ragland v. Conqueror Zinc Cas., 136 

Mo. App. 631 407 

Ragle V. Dedinan, 50 Ind. App. 359 278 
Ragley-McWilliams Lumber Co. v. Hare, 

61 Tex. Civ. App. 509 100 

Railsback v. Walke, 81 Ind. 409 53 

Raines v. Walker, 77 Va. 92 

99, 120, 265 

Raleigh v. Peace, 110 N, Car. 32 630 

Rambo v. Bell, 3 Ga. 207 67 

Ramsey v. Jones, 41 Ohio St. 685 118 

V. Ramsey, 7 Ind. 607 85 

Ranck's Appeal, In re, 113 Pa. St. 98 87 

Rand v. Davis (Tex.), 27 S. W. 939 128 

Randal v. Gould, 225 Pa. 42 616 

Randall v. Bradley, 65 Maine 43 444 

V. Ghent, 19 Ind. 271 266 

V. Lirigwall, 43 Ore. 383 434 

V. Sanders, 87 N. Y. 578 313 

Randall Co. v. Glendenning, 19 Okla. 

47^ 438 

Randel v. Chesapeake &c. Canal Co., 

1 Har. (Del.) 151 278 

Randell v. Chubb, 46 Mich. 311 408 

Randolph v. State, 82 Ala. 527 137 

V. Vails, 180 Ala. 82 723 

Rankin v. Schaeffer, 4 Mo. App. 108 

15, 23 
Rankin's Appeal, In re, 1 Monag. (Pa.) 

308 667 

Ransdell v. Boston, 172 111. 439 474 

Ransom v. Ransom, 30 Mich. 328 323 

Rapp V. Matthias, 35 Ind. 332 602 

Rash's Estate, In re (Pa.), 2 Pars. Eq. 

Cas. 160 40 

Ratdiff V. Marrs, 87 Ky. 26 312 

Ratcliffe v. Ratcliffe, 7 Mart. (N. S.) 

335 711 

Ratteree v. Conley,*74 Ga. 153 127 

Rauer v. Fay, 110 Cal. 361 537 

Raulet V. Northwestern Nat. Ins. Co., 

157 Cal. 213 723 

Rawlings v. Bailey, 15 111. 178 353 

Ray V. Alexander, 146 Pa. St. 242 48 

V. Murdock, 36 Miss. 693 644 

V. Pease, 95 Ga. 153 271 

Raymond v. Pauli, 21 Wis. 531 119 

Read v. French, 28 N. Y. 285 660 

V. Loftus, 82 Kans. 485 33, 34 

Reading v. Waterman, 46 Mich. 107 446 
Ready v. Schmith, 52 Ore. 196 671 

Reasoner v. Edmundson, 5 Ind. 393 123 
Reaume v. Chambers, 22 Mo. 36 45, 309 
Reclamation District No. 70 v. Sher- 
man, 11 Cal. App. 399 207 
Rector v. Gaines, 19 Ark. 70 95 
V. Waugh, 17 Mo. 13 45, 268 
Rector & Wilhelmy Co. v. Maloney, 

15 S. Dak. 271 643 

Reddick v. Lord, 131 Ind. 336 46, 464 

Redmond v. Burroughs, 63 N. Car. 242 729 

Reed v. Acton, 120 Mass. 130 117 

V. Crocker, 12 La. Ann. 436 715 

V. Gannon, 50 N. Y. 345 127 

V. Lewis, 74 Indi 433 50 

V. .Merriam, 15 Nebr. 323 642 

V. Siddall, 89 Minn. 417 956, 957 

V. Woodward, H Phil. (Pa.) 541 487 



Reel V. Elder, 62 Pa. St. 308 65 

Reeves v. Brayton, 36 S. Car. 384 58 

V. Brooks, 80 Ala. 26 67 

V. Estes, 124 Ala. 303 119 

V. Hayes, 95 Ind. 521 438, 439 

V. Reeves, 117 Mich. 526 ' 676 

V. School Dist. 59, 24 Wash. 282 46 

Reichert v. Missouri &c. Coal Co., 231 

III. 238 341, 354 

Reichle v. Steitz, 64 N. J. Eq. 789 734 

Reid V. Abernethy, 77 Iowa 438 429 

V. (iorrigan, 143 111. 402 451, 473 

V. Gordon, 35 Md. 174 58, 60 

V. Hart, 45 Ark. 41 289 

v. Holmes, 127 Mass. 326 570 

Reiff's Appeal, In re, 124 Pa. St. 145 463 

Reilly v. Union Protestant Infirmary, 

87 Md. 664 481 

Reilley v. Wright, 117 Cal. 77 613 

Reinders v. Koppelman, 68 Mo. 482 718 
Reindollar v. Flickinger, 59 Md. 469 538 
Reinhart v. Lugo, 86 Cal. 395 662 

Reis V. Graff, 51 Cal. 86 634 

Reitenbaugh v. Chester Valley R. Co., 

21 Pa. St. 100 677 

Reith's Estate, In re, 144 Cal. 314 480 

Remey v. Iowa Cent. R. Co., 116 Iowa 

133 110 

Remington v. Metropolitan Sav. Bank, 

76 Md. 546 456 

Remmington v. Lewis, 8 E. Mon. (Ky.) 

606 719 

Renfro v. Adams, 62 Ala. 302 443 

Renick v. Dawson,' 55 Tex. 102 129 

Renkert v. Title Guaranty Trust Co., 

102 Mo. App. 267 16, 17 

Renton, In re, 10 Wash. 533 734 

Republican River Bridge Co. v. Kan- 
sas Pac. R. Co., 12 Kans. 409 186, 187 
Rerick v, Kern, 14 Serg. & R. (Pa.) 

267 ' 62 

Reuter v. Stuckart, 181 111. 529 289 

Reydell v. Reydell, 10 Misc. (N. Y.) 

273 685 

Reynolds v. Atlanta Nat. Bldg. &c. 

Assn., 104 Ga. 703 674 

V. Borel, 86 Cal. 538 75 

V. Kirk, 105 Ala. 446 434 

v. Shaver, 59 Ark. 299 301 

V. Strong, 82 Hun (N. Y.) 202 77 

Reynolds, In re, 57 Maine 350 711 

Rhea v. Bagley, 63 Ark. 374 737 

v. Planters' Mut. Ins. Assn., 77 

Ark. 57 286 

R. H. Herron Co. v. Superior Court, 

136 Cal. 279 377 

Rhinehart v. Schuyler, 7 111. 473 119 

Rhoades v. Barnes, 54 Wash. 145 693 

Rhoads v. Rhoads, 43 111. 239 457 

Rhode Island v. Massachusetts, 4 How. 

(U. S.) 591 694 

Rhode Island Hospital Trust Co. ^. Har- 
ris, 20 R. I. 408 61, 65 
Rhodes v. Bouldrey, 138 Mich. 144 ,48 
V. Dutcher, 6 Hun (N. Y.) 453 593 
v. Gunn, 35 Ohio St. 387 644 
Rice V. Boston &c. R. Corp., 12 Allen 

(Mass.) 141 54 

V. Minnesota &c. R. Co., 1 Black 

(U. S.) 358 212 

V. Rice, 36 Fed. 858 530 

V. Rice, 68 Ala. 216 452 

V. Rice, 108 111. 199 66 

V. Sioux City &c. R. Co., 110 U. S. 

695' 207 

V. White, 8 Ohio 216 641 

Richard v. Boyd, 124 Mich. 396 655 



Ixviii 



TABLE OF CASES 



[References are to Sections.^ 



Richards v. McClelland, 29 Pa. St. 385 322 

V, Richards, 90 Iowa 606 54 
Richardson v. Clements, 89 Pa. St. 

503 61 

T. De Giverville, 107 Mo. 422 320 

V. Martin, 55 N. H. 45 716 

V. Stodder, 100 Mass. 528 58 

V. Tobey, 121 Mass. 457 507 

V. Wren, 11 Ariz. 395 417 

Richey v. Sinclair, 167 111. 184 422 

Richmond v. Brookings, 48 Fed. 241 662 

V. State, 5 Ind. 334 467 

Rico V. Brandenstein, 98 Cal. 465 323 

Ridgely v. Iglehart, 3 Bland (Md.) 540 515 

' V. Stillwell, 25 Mo. 570 51 

Ridgway's Appeal, In re, 15 Pa. St. 

177 S81 

Riegel v. Riegel, 243 III. 626 286 

Riehl V. Bingenheimer, 28 Wis. 88 66 

Riesenberg, In re, 116 Mo. App. 308 466 

Riggin V. Love, 72 III. 553 45, 274, 312 

Riggs V. Cragg, 89 N. Y. 479 653 

V. Palmer, 115 N. Y. 506 458, 733 

V. Sally, 15 Maine 408 48 

Rigney v. Chicago, 102 111. 64 109 

Riley v. Kepler, 94 Ind. 308 364, 601 
Rines v. Mansfield, 96 Mo. 394 

45, 274, 312 

Ringgold V. Bryan, 3 Md. Ch. 488 127 

Ringrose v. Gleadall, 17 Cal. App. 664 59 

Ringo V. Rotan, 29 Ark. 56 207 

Rioux vl Cormier, 75 Wis. 566 272 

Ripley v. Seligman, 88 Mich. 177 318 

Ritch V. Talbot, 74 Conn. 137 734 

Ritchie v. Griffiths, 1 Wash. 429 122, 132 

V. Kansas &c. R. Co., 55 Kans. 36 54 

Ritter v. Phillips, 53 N. Y. 586 316 

V. Worth, 58 N. Y. 627 120 
Riverbank Imp. Co. v. Bancroft, 209 

Mass. 217 667 

Rivers v. Rivers, 36 S. Car. 302 709 

Rixey v. Stuckey, 129 Mo. 377 471 

Roach V. Roach, 25 R. I. 454 720 

V. Sanborn Land Co., 135 Wis. 354 436 

Roads V. Symmes, 1 Ohio 281 221 

Roan V. Holmes, 32 Fla. 295 620 

Roane v. Baker, 120 111. 308 118 

Robards v. Brown, 167 Mo. 447 476 

Robbins v. Barron, 32 Mich. 36 633 
v. Boulder 'County Comrs., 50 Colo. 

610 462 

v. Bunn, 54 III. 48 198 

Rober v. Michelsen, 82 Nebr. 48 655 

Roberson'v. Downing Co., 120 Ga. 833 287 

V. Simons, 109 Ga. 360 53 

Robert v. Corning, 89 N. Y. 225 43 

V. West, 15 Ga. 122 465 

Roberts V. Bassett, 105 Mass. 409 75 

V. Bauer, 35 La. Ann. 453 120 

V. Flanagan, 21 Nebr. 503 491 

V. Lion Loan &c. Co., 63 Iowa 76 

16, 18 

V. McFadden, 32 Tex. Civ. App. 47 77 

V. Press, 97 Iowa 475 371 

V. Robinson, 49 Nebr. 717 596 

V. Sterling, 4 Mo. App. 593 17 

V. Stevens, 84 Maine 325 478 

V. Vornholt, 126 Ind. 511 28 

V. Wyatt, 2 Taunt. 268 30 

Roberts' Appeal, 92 Pa. St. 407 339 

Roberts' Estate, In re, 163 Pa. St. 408 473 

Roberts' Estate, In re, 84 Wash. 163 717 

Robertson v. Burrell, 40 Ind. 328 730 

v. Fleming, 57 N. Car. 387 722 

V. Hefley, 55 Tex. Civ. App. 368 266 

V. Howard, 82 Kans. 588 385 

v. Moore, 10 Idaho 115 538 

V. Robertson, 25 Iowa 350 323 



Robertson 

V. Vancleave, 129 Ind. 217 40, 70 

Robins v. Bunn, 34 N. J. L. 322 533 

v. Quinliven, 79 Pa. St. 333 714 

Robinson v. Brennan, 115 Mass. 582 423 

v. Cogswell, 192 Mass. 79 59, 480 

V. Gantt, 1 Neb. (Unoff.) 51 668 

V. Covers, 138 N. Y. 425 561 

V. Jones, 31 Nebr. 20 183 

V. Kerrigan, 151 Cal. 40 955, 956, 957 

V. Le Grand, 65 Ala. Ill 462 

V. Perry, 21 Ga. 183 408 

V. Randolph, 21 Fla. 629 46, 478 

V. Rippey, lH Ind. 112 647 

V. Robinson, 89 Va. 916 49 

V. Salt Lake City, 37 Utah 520 568 

Robinson, In re, 6 Mich. 137 662 

Robinson's Estate, In re, 149 Pa. St. 

418 48 

Robison V. Miller, 158 Pa. St. 177 349 

Robley V. Withers, 95 Miss. 318 433 

Robson V. Thomas, 55 Mo. 581 582 

Rochester v. Rochester R. Co., 182 N. 

Y. 99 647 

Rocker v. Metzger, 171 Ind. 364 705 

Rock Island & Pac. R. Co. v. Dimick, 

144 III. 628 127 

Rock Island Nat. Bank v. Thompson, 

173 111. 593 563 

Rockwell V. Rockwell, 81 Mich. 493 _ 65 

Rocky Mountain Fuel Co. v. Kovaics, 

26 Colo. App. 554 714 

Rodefer v. Pittsburgh &c. R. Co., 72 

Ohio St. 272 62 

Rodgers v. Bonner, 45 N. Y. 379 562 

v. Cavanaugh, 24 111. 583 120 

v. Palmer, 33 Conn. 155 70 

Rodman v. Robinson, 134 N. Car. 503 ; 

65, 325 

Roe v. Roe, 52 Kans. 724 676 

v. Vingut, 117 N. Y. 204 470 

Roger, In re, 131 Pa. St. 382 711 

Rogers v. Clark Iron Co., 104 Minn. 

198 192, 223, 224 

V. Cox, 96 Ind. 157 62 

V. Coy, 164 Mass. 391 405 

V. Hillhouse, 3 Conn. 398 306 

V. Jones, 8 N. H. 264 127 

V. Palmer, 102 U. S. 263 128 

V. Pell, 154 N. Y.- 518 283 

Rogers' Estate, In re, 131 Pa. St. 382 87 

Rohrbach v. Sanders, 212 Pa. 636 43 

Roll V. Rea, 50 N. J. L. 266 118, 577 

Rollins V. Henry, 78 N. Car. 342 546 

Rolph V. Fargo, 7 N. Dak. 640 647 

Roney v. Moss, 76 Ala. 491 324 

Ronk V. Higginbotham, 54 W. Va. 137 353 

Root V. Monroe, 5 Blackf. (Ind.) 594 553 

Ropes V. Upton, 125 Mass. 258 57 

Rose V. Hale, 185 111. 378 477 

V. Munie, 4 Cal. 173 535 

V. Rose, 104 Ky. 48 49 

V. Watson, 10 H. L. Cas. 672 531 

Rose's Estate, In re, 63 Cal. 346 583 

Roseboom v. Van Vechten, 5 Denio 

(N. Y.) 414 49 

Rosenthal v. Mounts (Tex. Civ. App.), 

130 S. W. 192 * 612! 613 

Rosher, In re, 26 Ch. Div. 801 47 

Ross V. Ross, 129 Mass. 243 718, 719 

V. Wilson, 58 Ga. 249 , 65 

V. Worthington, 11 Gil. (Mfan.) 

^ 438 129, 316 

Ross, In re, 140 Cal. 282 734 

Rossbach v. Micks, 89 Nebr. 821 435 

Rosser v. Cheney, 61 Ga. 468 129 

Roth V. Michalis, 125 Md. 325 338 

Rothe V. Bellingrath, 71 Ala. 55 536 



TABLE OF CASES 



Ixix 



[References are to Sections.] 



Eoth Grocery Co. v. Hotel Monticello 

Co., 148 Mo. App. 513 372 

Rothschild v. Title Guarantee &c. Co., 

139 App. Dfv. (N. Y.) 672 100 

Rotmanskey v. Heiss, 86 Md. 633 710 

Roulston V. Hall, 66 Ark. 305 65 

Boundtree v. Denson, 59 Wis. 522 327 

Rountree v. Pursell, 11 Ind. App. 522 

86, 87, 714 

Rourke v. McNally, 98 Cal. 291 201 

Roush \. Wensel, 15 Ohio C. C. 133 487 

Rowan, In re, 6 Pa. Co. Ct. 461 712 

Rowe V. Allison, 87 Ark. 206 720 

V. Ware, 30 Ga. 278 ' 335 

Rowell V. Jewett, 69 Maine 293 672 

V. Williams, 54 Wis. 636 126 

Rowland v. Miller, 139 N. Y. 93 313 

V. Rowland, 93 N. Car. 214 312, 326 

Rowley v. Stray, 32 Mich. 70 730 

Rowsey v. Lynch, 61 Mo. 560 15 

Roy V. Moore, 85 Conn. 159 667 

V. Segrist, 19 Ala. 810 491 

Royce v. Adams, 123 N. Y. 402 354 

Rozier v. Graham, 146 Mo. 352 714 

Rubeck v. Gardner, 7 Watts (Pa.) 455 111 

Rubel V. Title &c. Co., 101 111. App. 

439 546 

Rubel, In re, 166 Fed. 131 382 

Ruch V. Biery, 110 Ind. 444 737 

Rucker V. Jackson, 180 Ala. 109 729 

V. Tennessee Coal &c. R. Co., 176 

Ala. 456 723 

Rudd V. Thompson, 22 Ark. 363 660 

Rudolph V. Rudolph, 207 111. 266 483, 734 
V. Saunders, ,111 Cal. 233 553 

Rufner v. McConnel, 14 111. 168 279 

Rugg V. Lemley, 78 Ark. 65 516 

Ruggles V. Lesure, 24 Pick. (Mass.) 

187 62 

Ruleman v. Pritchett, 56 Tex. 482 284 

Runey v. Edmands, 15 Mass. 291 708 

Runlet V. Otis, 2 N. H. 167 419 

Runyan v. Snyder, 45 Colo. 156 261 

Russ V. Steel, 40 Vt. 310 61 

Russell V. Bates, 181 Mass. 12 59 

V. Bell, 160 Ala. 480 640 

V. Bruer, 64 Ohio St. 1 708 

V. Cole, 167 Mass. 6 315 

V. Doyle, 84 Ky. 386 314 

V. Hudson, 28 Kans. 99 633 

V. Mandell, 73 111. 136 29 

V. Nail, 2 Tex. Civ. App. 60 118 

V. Polk County Abstract Co., 87 

Iowa 233 15, 23 

V. Roberts, 121 N. Car. 322 722 

V. Russell, 84 Ala. 48 466 

V. Tucker, 136 Ga. 136 672 

Russell, In re, 168 N. Y. 169 471 

Russell's Appeal, In re, 15 Pa. St. 319 119 

Russell's Estate, In re, 150 Cal. 604 483 

Rust V. Electric Lighting Co., 124 

Ala. 202 432 

Rutaced Co., In re, 137 App. Div. (N. 

Y.) 716 372 

Eutter V. Carothers, 223 Mo. 631 560 

Ryan v. Andrews, 21 Mich. 229 708, 730 

V. Carter, 93 U. S. 78 189 

V. Egan, 156 III. 224 458 

V. Freeman, 36 Miss. 175 64 

V. Martin, 91 N. Car. 464 263 

Ryan's Estate, In re, 14 Wkly. Notes 

Cas. (Pa.) 79 716 

Rydalch v. Anderson, 37 Utah 99 669 

Ryder v. Lyon, 85 Conn. 245 480 

Ryker v. Vawter, 117 Ind. 425 593 

Ryland v. Banks, 151 Mo. 1 322 



Sabichi v. Chase, 108 Cal. 81 371 

Sackett v. Rose (Okla.), 154 Pac. 1177 22 

Saeger v. Bode, 181 111. 514 46 
Safe Deposit & Trust Co. v. Marburg, 

110 Md. 410 699 

Safford V. Stubbs, 117 111. 389 73 

Sage V. Central R. Co., 99 U. S. 334 578 

V. Rudnick, 67 Minn. 362 108 

Sahler v. Signer, 44 Barb. (N. Y.) 606 428 

St. Clair V. Cox, 106 U. S. 350 652 

V. Craig, 77 Kans. 394 638 
St. Croix Land & L. Co. v. Ritchie, 73 

Wis. 409 122 
St. John V. Andrews Institute, 191 N. 

Y. 254 481 

V. Conger, 40 111. 535 124 

V. Dann, 66 Conn. 401 469 

V. East St. Louis, 50 111. 92 647 

St. John's Parish v. Bostwick, 8 App. 

D. C. 452 487 

St. Joseph V. Seel, 122 Mich. 70 6E7 

St. Louis V. Gorman, 29 Mo. 593 73 
St. Louis Smelting & Refining Co. v. 

Kemp, 104 U. S. 636 224 
St. Louis &c. R. Co. V. Nugent, 152 111. 

119 690 

V. Ramsey, 53 Ark. 314 103, 272 
St. Paul V. Chicago &c. R. Co., 45 

Minn. 387 694 
St. Paul &c. R. Co. V. Brown, 24 Minn. 

517 227 

V. Greenhalgh, 26 Fed. 563 212 

V. Hinckley, 53 Minn. 398 698 
V. Northern Pac. R. Co., 139 U. S. 

1 212 
St. Peter's Roman Catholic Congrega- 
tion V. Germain, 104 111. 440 329 
St. Stephen's Evangelical Lutheran 

Church V. Pierce (Del.), 68 Atl. 194 270 
Salina Stock Co. v. United States, 85 

Fed. 339 183 
Salisbury Sav. Soc. v. Cutting, 50 Conn. 

113 97, 99, 125, 427 

Sallee v. Corder, 67 Cal. 174 204 

Saltonstall v. Riley, 28 Ala. 164 617 

Salvage v. Haydock, 68 N. H. 484 428 
Samisli River Boom Co. v. Union 

Boom Co., 32 Wash. 586 109 

Sampson v. Randall, 72 Maine 109 470 

San Antonio v. Gould, 34 Tex. 49 503 

Sanborn v. Rice, 129 Mass. 387 313 

Sanders v. Belts, 7 Wend. (N. Y.) 287 303 

v. Cassady, 86 Ala. 246 437 
v. Richardson, 14 Pick. (Mass.) 

522 52 

V. Sutlive, 163 Iowa 172 . 434 
San Domingo Gold Min. Co. v. Grand 

Pac. Gold Min. Co., 10 Cal. Aop. 415 350 

Sandon v. Sandon, 123 Wis. 603 720 

Sands v. Davis, 40 Mich. 14 119 

v. Lynham, 27 Grat. (Va.) 291 111 

Sanford v. Dick, 17 Conn. 213 658 

V. Johnson, 24 Minn. 172 51 

v. People, 102 111. 374 634 

V. Sanford, 139 U. S. 642 224 

San Francisco v. Buckman, 111 Cal. 25 502 

V. Lawton, 18 Cal. 465 301 

San Francisco Mut. Loan Assn. v. 

Bowden, 137 Cal. 236 443 
San Francisco Protestant Orphan 

Asylum v. Superior Ct., 116 Cal. 443 491 
Sansberry v. McElroy, 6 Bush (Ky.) 

440 721 

Santa Cruz v. Enright, 95 Cal. 105 109 



Ixx 



TABLE OF CASES' 



[References are to Sections.] 



Saranac Land & Timber Co. v. Roberts, 

195 N. y. 303 634 

Sargent v. Hubbard, 102 Mass. 380 129 

V. Tuttle, 67 Conn. 162 647 

Sartwell V. Bowles, 72 Vt. 270 51 

Satcher v. Grice, 53 S. Car. 126 451 . 

Satterfield v. Malone, 35 Fed. 445 127, 128 

V. Tate, 132 Ga. 256 469 

Saunders v. Blythe, 112 Mo. 1 266 

V. Hart, 57 Tex. 8 100 

V. Niswanger, 11 Ohio St. 298 203 

V. Saunders, 109 Va. 191 471 
Saunders, In re, 129 App. Div. (N. 

Y.) 406 100 

Sauter v. Dollman, 46 Minn. 504 286 

Savage v. Savage, 19 Ore. 112 ^ 670 
Savings & Loan Soc. v. Deeringy 66 

Cal. 281 357 

Savings Bank v. Ward, 100 U. S. 195 22 

Sawyer v. Adams, 8 Vt. 172 121 

V. Freeman, 161 Mass. 543 483 

V. Hanson, 24 Maine 542 50 

Saxton V. St. Joseph, 60 Mo. 153 502 

Sayers v. Hoskinson, 110 Pa. St. 473 65 

Saylor v. Frantz, 17 Okla. 37 193 

Sayre v. Mohney, 30 Ore. 238 57 

V. Sage, 47 Colo. 559 643 
Say ward v. Thompson, 11 Wash. 706 

119, 223 
Scadden Flat Gold Min. Co. v. Scad- 
den, 121 Cal. 33 59 
Scanlan v. Grimmer, 71 Minn. 352 422 

V. Wright, 13 Pick. (Mass.) 523 111 

Scarboroug v. Holder, 127 Ga. 256 593 

Scarborough v. Arrant, 25 Tex. 129 119 

Schaale v. Wasey, 70 Mich. 414 617 
Schade v. Gehner, 133 Mo. 252 ^22, 23 

Schaefer v. Bernhardt, 76 Ohio St. 443 734 

V. Schaefer, 141 111. 337 49 

V. Eneu, 54 Pa. St. 304 718 

Schaeffer v. Bond, 70 Md. 80 355 

V. Messersmith, 10 Pa. Co. Ct. 366 475 

Schaub V. Griffin, 84 Md. 557 90 
Schedda v. Sawyer, 4 McLean (U. S.) 

181 ^25 

Schedel's Estate, In re, 73 Cal. 594 466 

Scheerer v. Cuddy, 85 Cal. 270 692 

Scheid V. Rapp, 121 Pa. St. 593 534 

Schell V. Leland, 45 Mo. 289 661 

Schenck v. Wicks, 23 Utah 576 77 
Schermerhom v. Negus, 1 Denio (N. 

Y.) 448 47 

Schierl v. Newberg, 102 Wis. 552 424 

Schissel V. Dickson, 129 Ind. 139 670 
Schley v. Pullman Car Co., 25 Fed. 

890 322 

V. Pullman Palace Car Co., 120 U. 

S. 575 284 

Schlosser v. Hemphill. 118 Iowa 452 207 

Schlosser, In re, 116 N. Y. S. 796 87 

Schmaunz ■?. Goss, 132 Mass. 141 713 
Schmelzer v. Chicago Ave. Sash & 

Door Mfg. Co., 85 111. App. 596 534 

Schmidt v. Zahrndt, 148 Ind. 447 433 

Schmidtke v. Miller, 71 Tex. 103 736 

Schmitt v. Weber, 239 111. 377 350 
Schmucker v. Adams, 45 Pa. Super. 

Ct. 58 708 

Schnebly v. Schnebly, 26 III. 116 65 
Schneer v. Greenbaum, 27 Del. 97 

46, 464 

Schneider v. Botsch, 90 111. 577 691 

V. Detroit, 135 Mich. 570 698 

v. Holtzhauer, 134 Ky. 33 43 

V. Hutchinson, 35 Ore. 253 208 

Schofield V. Jennings, 68 Ind. 232 581 

Scholl, In re, 100 Wis. 650 719 



School District No. 11 v. Batsche, 106 

Mich. 330 52 
Schoonmaker v. Sheely, 3 Denio (N. 

Y.) 485 714 

Schott V. Linscott, 80 Kans. 536 100, 611 
Schreyer v. Schreyer, 91 N. Y. S. 

1065 340 
Schroeder v. Merchants &c. Ins. Co., 

104 111. 71 658 
Schultz V. Hastings Lodge No. 50, I. 

O. O. F., 90 Nebr. 454 405 

Schurtz V. Colvin, 55 Ohio St. 274 286 

Schuylkill v. Boyer, 125 Pa. St. 226 663 

Scott V. Austin, 36 Minn. 460 364 

V. Fowler, 227 III. 104 393 

V. Jordan (Okla.), 155 Pac. 498 22 

V. Key, 11 La. Ann. 232 718, 719 

V. Michael, 129 Ind. 250 291 

V. Scott, 80 Kans. 489 676 

V. Trustees First M. E. Ch., 50 

Mich. 528 333 
V. West, 63 Wis. 529 359 
Scottish American Mortg. Co. v. But- 
ler, 99 Miss. 56 694 
Scoville V. Mason, 76 Conn. 459 467 
Scriver v. Smith, 100 N. Y. 471 506 
Scrivner v. Dietz, 84 Cal. 295 428 
Scroggs v. Stevenson, 100 N. Car. 354 737 
Scruggs V. Driver's Exrs., 31 Ala. 274 673 
Seaboard Air Line R. Co. v. Anniston 

Mfg. Co., 186 Ala. 264 277 
V. Harby, 55 Fla. 555 568 
Seager, In re, 92 Mich. 186 65 
Seals V. Perkins, 96 Miss. 704 643 
Seaman v. Harmon, 192 Mass. 5 340 
V. Hax, 14 Colo. 536 , 420 
Seattle & L. W. Waterway Co. v. Se- 
attle Dock Co., 35 Wash. 503 182 
Seaverns v. Costello, 8 Ariz. 308 643 
Seay v. Cockrell, 102 Tex. 280 465 
Sebald v. Mulholland, 155 N. Y. 455 507 
Seberg V. Iowa Trust &c. Bank, 141 

Iowa' 99 ' 100 
Sebring v. Mersereau, 9 Cow. (N. Y.) 

344 670 
Security Abstract &c. Co. v. Longacre, 

56 Nebr. 469 16, 17, 18 

Security Trust Co. v. Dodd, 173 U. S. 

624 376, 377 
Sedgwick v. Laflin, 10 Allen (Mass.) 

430 45 

Seeger v. Mueller, 133 111. 86 100 

Seibel v. Bath, 5 Wyo. 409 546 
Selden v. Illinois Trust & Savings 

Bank, 239 111. 67 722 

Sellers V. Corwin, 5 Ohio 398 TeS 

V. Sellers, 35 Ala. 235 40 

V. Sellers, 98 N. Car. 13 280, 288 

Selman v. Robertson, 46 S. Car. 262 476 

Semon v. Terhune, 40 N. J. Eq. 364 

99, 132 

Semper v. Coates, 93 Minn. 76 321 
Semple v. Scarborough, 44 La. Ann. 

257 _ 432 
Sena v. American Turquoise Co., 14 N. 

Mex. 511 214 

Sengfelder v. Hill, 21 Wash. 371 297 

Senter v. Lambeth, 59 Tex. 259 530 

Sergeant v. Steinberger. 2 Ohio 305 326 

Service v. McMahon, 42 Wash. 452 538 

Sessions v. Peay, 23 Ark. 39 590 
Seton v. New York, 130 App. Div. 

(N. Y.) 148 677 
Sewall V. Wilmer, 132 Mass. 131 60, 456 

Sewell V. Drake, 27 Ky. L. 571 566 

Sexton V. Rhames, 13 Wis. 99 661 

Seymour v. Darrow, 31 Vt. 122 129 

V. Laycock, 47 Wis. 272 443 



TABLE OF CASES 



Ixxi 



[References are to Sections.] 



Seymour 

V. McKinstry, 106 N. Y. 230 692 

V. Seymour, 22 Conn. 272 600, 653 

V. Slide & Spur Gold Mines, 42 ' 

Fed. 633 530 

Shackelford v. Hall, 19 111. 212 477 

V. Planters' &c. Bank, 22 Ala. 238 372 

Shackelton v. Sebree, 86 111. 616 311 

Shackleford v. Beck, 80 Va. 573 538 

Shafer v. Shafer, 85 Md. 554 653 

Shaffer v. Sutton, 5 Binn. (Pa.) 228 50 

Shaifner v. Briggs, 36 Ind. 55 571 

Shaft V. Carey, 107 Wis. 273 278 

Shamp V. White, 106 Cal. 220 407 

Shanks v. Mills, 25 S. Car. 358 717 

Sharp V. Barker, 11 Kans. 381 426 

V. Humphreys, 16 N. J. L. 23 46 

SharpeTy v. Plant, 79 Miss. 175 341 

Shaw V. Canfield, 86 Mich. 1 357 
V. Hoadley, 8 Blackf. (Ind.) 165 

360, 723 

V. Kellogg, 170 U. S. 312 186 

V. Lindsey, 60 Ala. 344 420 

V. Proffitt, 57 Ore. 192 61 

V. Wilshire, 65 Maine 485 119 

Shays v. Norton, 48 111. 100 418 

Sheafe v. Gushing, 17 N. H. 508 49 

Sheaffe v. O'Neil, 1 Mass. 256 111 

Shearer v. Clay, 1 Litt. (Ky.) 260 185 

Shedaker, In re, 74 N. J. Eq. 802 87 

Sheehan v. Davis, 17 Ohio St. 571 119 

Sheehy v. Miles, 93 Cal. 288 6, 7 

V. Scott, 128 Iowa 551 66 

Shefley v. Bank, 33 Fed. 315 126 

Sheffield v. Franklin, 151 Ala. 492 718 

V. Lovering, 12 Mass. 490 730 

Sheldon v. Carter, 30 Ala. 380 262 

Shellenberger v. Ransom, 41 Nebr. 631 733 

Shelton v. Franklin, 224 Mo. 343 643 

V. Price, 174 Fed. 891 385 

V. Wright, 25 Ga. 636 718 

Shepard v. Shepard, 36 Mich. 173 127 

Shepard Drainage District v. Eimerman, 

140 Wis. 327 677 

Shepherd v. Burkhalter, 13 Ga. 443 120 

V. Kahle, 120 Wis. 57 99 

Sheridan v. Schimpf, 120 Ala. 475 364 

Sherin v. Brackett, 36 Minn. 1S2 691 
Sherman v. American Cong. Assn., 98 

Fed. 495 474 

V. Buick, 45 Cal. 656 208 

V. Sherman, 23 S. Dak. 486 301 
Sherrer v. Harris (Ark.), 13 S. W. 

730 419 

Sherry v. Sampson, 11 Kans. 611 215 

Sherwood v. Dunbar, 6 Cal. 53 443 

V. Sherwood, 45 Wis. 357 678 

V. Waller. 20 Conn. 262 314 

Shields v. Norfolk &c. R. Co., 129 N. 

Car. 1 110 

V. Shiif, 124 U. S. 351 113 

V. Walker, 2 Overt. (Tenn.) 118n 196 

Shillaber's Estate, In re, 74 Cal. 144 487 

Shindler v. Robinson, 15 App. Div. (N. 

Y.) 875 470 

Shine v. Olson, 110 Minn. 44 642 

Shipley v. Fox, 69 Md. 572 429 

Shipman v. Mitchell, 64 Tex. 174 53 

V. Rollins, 98 N. Y. 311 484 

Shirey v. Postlethwaite, 72 Pa. St. 39 46 

Shirk V. Thomas, 121 Ind. 147 118 

V. Whitten, 131 Ind. 455 546 

Shiveley v. Gilpin, 23 Ky. L. 2090 124 

Shively v. Bowlby, 152 U. S. 1 104, 272 
Shockley v. Parvis, 4 Houst. (Del.) 

568 43 

Shoemaker v. McMonigle, 86 Ind. 421 270 

Shortall v. Hinckley, 31 111. 219 64, 314 



Short v. Caldwell, 155 Mass. 57 419 

v. Conlee, 28 111. 219 284 

v. Fogle, 42 Kans. 349 126 

V. Galway, 83 Ky. 501 584 

Shouse V. Taylor, 115 Ky. 22 656 

Shreveport Creosoting Co. v. Shreveport, 

119 La. 637 631 

Shrigley v. Black, 66 Kans. 213 638 

Shriver v. Shriver, 86 N. Y. 575 77 

V. State, 65 Md. 278 721 

Shryock v. Cannon, 39 Ark. 434 324 

Shull V. Johnson, 55 N. Car. 202 466, 730 

Shultz V. Houck, 29 Md. 24 491' 

v. Sanders, 38 N. J. Eq. 154 611 

Shuman V. Shuman, 80 Wis. 479 730 

Shute V. Patterson, 147 Fed. 509 380 

V. Shute, 82 S. Car. 264 286 

Sibly V. England, 90 Ark. 420 287 

Sicard's Lessee v. Davis, 6 Pet. (U. S.) 

124 283 

Siders V. Siders, 169 Mass. 523 711 

Siedschlag v. Griffin, 132 Wis. 106 669 

Sielbeck v. Grothman, 248 III. 435 91 

Siewers v. (Commonwealth, 87 Pa. St. 

15 , 21, 22 

Sikes V. Work, 6 Gray (Mass.) 433 328 
Silcox V. Jones, 80 S. Car. 484 654, 674 
Sillyman v. King, 36 Iowa 207 192 

Silsby V. Allen, 43 Vt. 172 53 

Silverman v. Kristufek, 162 111. 222 263 
Simis V. McElroy, 160 N. Y. 156 699 

Simmons v. Augustin, 3 Port. (Ala.) 

69 44 

v. Cabanne, 177 Mo. 336 468 

V. Jacobs, 52 Maine 147 664 

v. McCarthy, 118 Cal. 622 643 

V. Richardson, 107 Ala. 697 668 

V. Spratt, 26 Fla. 449 451, 480 

V. Wagner, 101 U. S. 260 193 

Simmons Creek Coal Co. v. Doran, 142 

U. S. 417 128, 129, 692 

Simon v. Richard, 42 La. 842 . 696 

V. Sewell, 64 Ala. 241 . 117 

V. Simon's Estate, 158 Mich. 256 737 

Simonds v. Simonds, 168 Mass. 144 46 

Simons v. McLain, 51 Kans. 153 326 

Simon's Will, In re, 55 Conn. 239 473 

Simonton v. White, 93 Tex. 50 478 

Simpson v. Blaisdell, 85 Maine 199 271 

v. Erisner, 155 Mo. 157 341 

v. Pearson, 31 Ind. 1 97 

V. Simpson, 114 111. 603 737 

V. Stoddard Co., 173 Mo. 421 207 

Simpson, In re, 144 N. Y. 1099 708 

Sims V. Boynton, 32 'Ma. 353 ' 91 

V. Morrison, 92 Minn. 341 182 

Simson v. Eckstein, 22 Cal. 580 358 

Sinclair v. Sinclair, 79 Va. 40 532 

V. Slawson, 44 Mich. 123 122 

Singletary v. Hill, 43 Tex. 588 48 

Singleton v. Close, 130 Ga. 716 676 

Singly V. Warren, 18" Wash. 434 594 

Sioux City. & I. F. Town Lot & Land Co. 

V. Griffey, 72 Iowa 505 212 

Sisk V. Smith, 1 Gil. (111.) 503 65 

Sistrunk v. Ware, 69 Ala. 273 473 

Sitler V. McComas, 66 Md. 135 120 

Sixth Ward Bldg. Assn. v. Wilson, 41 

Md. 506 123 

Sjoli V. Dreschel, 199 U. S. 564 212 

Skelton v. Sacket, 91 Mo. 377 581 

Skinner v. Conant, 2 Vt. 453 664 

V. Crawford, 54 Iowa 119 689 

V. Dayton, 19 Johns. (N. Y.) 513 328 

V. Fulton, 39 111. 484 714 

V. Skinner, 38 Nebr. 756 50 

Skyrme v. Occidental Mill & Mining 

Co., 8 Nev. 219 ' 537 



Ixxii 



TABLE OF CASES 



[References are to Sections.] 



Slack V. Ray, 26 La. Ann. 674 636 

Slater v. Breese, 36 Mich. 77 423 
Slatterly v. Schwannecke, 118 N. Y. 

543 128 

Slaughter v. Cunningham, 24 Ala. 260 298 

Slayton v. Blount, 93 Ala. 575 714 

Slegel V. Laucr, 148 Pa. St. 236 43 

Slemmer v. Crampton, 50 Iowa 302 465 

Sloan V. Owens & Co., 70 Mo. 206 328 

Sloane v. Stevens, 107 N. Y. 122 455 

Slocum V. Bracy, 55 Minn. 249 390 

V. McLaren, 109 Minn. 49 643 

Small V. Field, 102 Mo. 104 323 

V. Small, 16 S. Car. 64 531 

V. Sproat, 3 Mete. (Mass.) 303 375 

V. Thompson, 92 Maine 539 472 

Smalley v. Eenken, 85 Iowa 612 426 

Smallridge v. Hazlett, 112 Ky. 841 65 

Smallwood V. Lewin, 15 N. J. Eq. 60 126 

Smith V. Adams, 130 U. S. 167 650 

V. Allen, 101 Iowa 608 27 

V. Ayer, 101 U. S. 320 128 

V. Barr, 76 Minn. 513 656 

V. Bateman, 25 Colo. 241 393 

V. Becker, 62 Kans. 541 706 

V. Bradley, 154 Mass. 227 313 

V. Branch Bank, 21 Ala. 125 118 

V. Brown, 99 N. Car. 377 736 

V. Cannell, 32 Maine 123 425 

V. Chadwick, 111 Ala. 542 468 

V. Clark, 100 Iowa 605 330 

V. Crandall, 118 La. 1052 226 

V. Cremer, 71 III. 185 397 

V. Crosby, 86 Tex. 15 348 

V. Curtis, 29 N. J. L. 345 459 

V. Ball, 13 Cal. 510 120 

V. Davis, 90 Cal. 25 655 

V. Day, 2 Pennew. (Del.) 245 457 

V. Dennis, 163 111. 631 467 

V. Derr, 34 Pa. St. 126 719 

V. Du Bose, 78 Ga. 413 458 

V. Farr, 46 Colo. 364 630 

V. Gaines, 35 N. J. Eq. 65 87 

V. Gale, 144 U. S. 509 549 

V. Glover, 50 Minn. 58 354 

V. Godwin, 145 N. Car. 242 381 

v. Green, 41 Fed. 455 423 

v. Greenop, 60 Mich. 61 692 

v. Hamilton County Comrs., 173 

Ind. 364 630 

V. Holden, 58 Kans. 535 487 
V. Holmes, 54 Mich. 104 

15, 16, 17, 21 

V. Howard, 86 Maine 203 653 
V. Hunter, 241 III. 514 359, 480 

V. Hutchinson, 61 Mo. 83 ' 467 

V. Tones, 97 Ky. 670 278 

V. Kelley, 27 Maine 237 437 

V. Kelly, 23 Miss. 167 718 

V. Kennedy, 89 111. 485 533 

V. Lindsey, 89 Mo. 76 138 

V. Littlefield, 51 N. Y. 539 52 

V. Lowry, 113 Ind. 37 433 

V. McClain, 146 Ind. 77 301 

V. May, 3 Pennew. (Del.) 233 49 

V. Mitchell, 21 Wash. 536 213 

V. Moore, 102 Va. 260 516 

V. Mundy, 18 Ala. 182 611 
V. Myers, 109 Ind. 1 650, 663 

V. Neilson, 13 Lea (Tenn.) 461 119 
V. North Canyon Water Co., 16 

Utah 194 696 

V. Osage, 80 Iowa 84 100 

V. Perry, 80 Va. 563 719 

V. Phillips, 131 Ala. 629 46 

V. Pipe, 3 Colo. 187 224 
V. Pitts (Tex. Civ. App.), 122 S. 

W. 46 568 



Smith 

V. Pollard, 19 Vt. 272 99, 427 

■v. Porter, 10 Gray (Mass.) 66 265 

V. Prall, 113 111. 308 642 

V. Eainey, 9 Ariz. 362 417 

V. Rudd, 48 Kans. 296 301 

V. Runnels, 97 Iowa 55 467 

V. Russell, 20 Colo. 554 433 

V. Schwartz, 21 Utah 126 564 

V. Schweigerer, 129 Ind. 363 127 

V. Seiberling, 35 Fed. 677 323 

V. Sherwood, 4 Conn. 276 98 , 

V. Smith, 157 Ala. 79 476 

V. Smith, 80 Cal. 323 419 

V. Smith, 71 Mich. 633 312 

V. Smith, 64 Nebr. 563 474 

V. Smith, 25 Wend. (N. Y.) 405 429 

V. Smith, 13 Ohio St. 532 121 
V. Taylor, 82 Cal. 533 

1, 5, 6, 10, 25, 35 

V. Trimble, 27 III. 152 578 

V. Wert, 64 Ala. 34 360, 596, 600 

V. Winn, 38 S. Car. 188 597, 657 

V. Winsor, 239 111. 567 716 

V. Yule, 31 Cal. 180 692 

Smith, In re, 131 CaH 433 708, 730 

Smith, In re, 4 Nev. 254 349 

Smith's Estate, In re, 144 Pa. St. 428 

59, 339, 480 

Smith's Lessee v. Hunt, 13 Ohio 260 284 

Smithwick v. Tordan, 15 Mass. 113 480 

Smullin V. Wharton, 73 Nebr. 667 59 
Sneed v. Ewing, 5 J. J. Marsh (Ky.) 

460 719 

Snelling v. Bryce, 41 Ga. 513 553 

Snider v. Snider, 160 N. Y. 151 464 

Snow V. Lake, 20 Fla. 656 427 

V. Snow, 111 Mass. 389 87 

V. Stevens, 15 Mass. 278 65 

Snowden v. Wilas, 19 Ind. 10 506 

Snyder v. Nesbitt, 77 Md. 576 46 

V. Pike, 30 Utah 102 654, 674 

V. Snover, 56 N. J. L. 20 693 

V. Thieme & Wagner Brew. Co., 173 

Ind. 569 517 

Solis v. Williams, 205 Mass. 350 640, 669 

Solt V. Anderson, 71 Nebr. 826 93 

Souder v. Morrow, 33 Pa. St. 83 125 
Soulard's Estate, In re, 141 Mo. 642 

59, 480 

Soule V. Borelli, 80 Conn. 392 537 

V. Corbley, 65 Mich. 109 438 
South Baltimore Harbor & Imp. Co. 

V. Smith, 85 Md. 537 394 
Southern Cotton Oil Co. v. Henshaw, 

89 Ala. 448 328 
Southern Pac. R. Co. v. Lipman, 148 

Cal. 480 212 
V. Southern Cal. E. Co., Ill Cal. 

221 109 

Southern R. Co. v. Hayes, 150 Ala. 212 109 

Southgate v. Annon, 31 Md. 113 719 
South Mahoning Tp. v. Marshall, 138 

Pa. St. 570 473 
Southwestern Bldg. & Loan Assn. v. 

Acker, 138 Ala. 523 443 
Southwestern Mfg. Co. v. Swan (Tex. 

Civ. App.), 43 S. W. 813 676 

Southworth v. Scofield, 51 N. Y. 513 428 

Sowden v. Craig, 26 Iowa 156 125 

Sowles V. Butler, 71 Vt. 271 434 

Spalding v. Hall, 6 D. C. 123 52 

v. Kelly, 66 Mich. 693 654 
Sparkman v. Davenport (Tex. Civ. 

App.), 160 S. W. 410 1 

Sparks v. Pierce, 115 U. S. 408 224 

Spaulding v. Elsworth 39 Fla. 76 639 

V. Scanland, 6 B. Mon. (Ky.) 353 122 



TABLE OF CASES 



Ixxiii 



[References are to Sectio^is.l 



Spawr V. Johnson, 49 Kans. 788 147 
Speakman v. Forepaugh, 44 Pa. St. 

363 77 

Spear v. Orendorf, 26 Md. 37 407 

V. Robinson, 29 Maine 531 89 

Spect V. Gregg, 51 Cal. 198 276 

Speer v. Phillips, 24 S. Dak. 257 399 

Speidel v. Schlosser, 13 W. Va. 686 66 
Spence v. Widney (Cal.), 46 Pac. 463 

340, 341 

Spencer v. O'Niell, 100 Mo. 49 64 

V. Winselman, 42 Cal. 479 74 

Speyrer v. Miller. 108 La. 204 66 

Spiers v. Halstead, 71 N. Car. 209 661 

Spivey v. Rose, 120 N. Car. 163 122 

Splahn V. Gillespie, 48 Ind. 397 592 

SpofEord V. Hobbs, 29 Maine 148 337 

V. True, 33 Maine 283 276 

Sprague v. Birchard, 1 Wis. 457 658 

V. Cochran, 144 N. Y. 104 417, 444 

V. Lovett, 20 S. Dak. 328 439 

V. Sprague, 13 R. I. 701 58 

Sprayberry v. State, 62 Ala. 459 208 

Springer v. Fortune, 2 Handy (Ohio) 

52 728 

Spring's Estate, In re, 216 Pa. 529 59 

Sproul V. McCoy, 26 Ohio St. 577 66 
Sproule V. Davies, 69 App. Div. (N. 

Y.) 502 77 

Sproull T. Miles, 82 Ark. 455 397 

Spurr V. Andrew, 6 Allen (Mass.) 420 316 
Squint Eye v. Crooked Arm (Okla.), 

155 Pac. 1147 731 

Squires V. Kimball, 208 Mo. 110 434 

V. Squires, 65 W. Va. 611 334, 735 

Staacke v. Bell, 125 Cal. 309 656 

Stafford v. Woods, 144 111. 203 66 

Stahl V. Mitchell, 41 Minn. 325 341 

Stall V, Macalester, 9 Ohio 19 616 

Stalworth v. Blum, 41 Ala. 319 426 

Stamm v. Bostwick, 122 N. Y. 48 458 

Stanclift v. Norton, 11 Kans. 218 426 
Standard Fuller's Earth Co., In re, 

186 Fed. 578 378 

Stang V. Redden, 28 Fed. 11 597 
Stanley v. Chamberlin, 39 N. J. L. 

565 128 

V. Colt, 5 Wall. (U. S.) 119 356 

Stannard v. Case, 40 Ohio St. 211 708 

Stanwood v. Stanwood, 179 Mass. 223 483 

Staples V. Fenton, 5 Hun (N. Y.) 172 434 

V. Mead, 152 App. Div. (N. Y.) 

745 471 

V. White, 88 Tenn. 30 547 

Starbuck v. Avery, 132 Mo. App. 542 408 

Starbuck, In re, 63 Misc. (N. Y.) 156 64 

StarTc V. Conde, 100 Wis. 633 462, 474 

V. Stark, 55 Pa. St. 62 87 

V. Starrs, 6 Wall. (U. S.) 402 95, 202 

Starnes v. Hill, 112 N. Car. 1 55, 465 

Starrett v. McKim, 90 Ark. 520 717 

State V. Beackmo, 6 Blackf. (Ind.) 488 732 

V. Blasdell, 4 Nev. 241 208 

V. Bradish, 14 Mass. 296 8 

V. Chrisman, 2 Ind. 126 653 

V. (iross Lake &c. Fishing Club, 123 

La. 208 185 

V. Cunningham, 88 Wis. 81 208 

V. De Hart, 109 La. 570 89 

V. Delesdenier, 7 Tex. 76 504 

V. District Court, 85 Minn. 283 656 

V. District Court, 34 Mont. 96 584 

V. Engle, 21 N. J. L. 347 ' 714 
V. Fidelity &c. Co., 35 Tex. Civ. 

App. 214 40 

V. Flint &c. R. Co., 89 Mich. 481 100 

V. Fort, 24 S. Car. 510 53 

V. Grimes, 29 Nev. 50 137 



State 

v. Higgins 60 Minn. 1 262, 581 

V. Holcomb, 81 Kans. 879 631 

V. Jennings, 47 Fla. 307 208 

V. Kansas City &c. R. Co., 45 Iowa 

139 102 

V. Kennard, 57 Nebr. 711 180 

V. Lanier, 47 La. Ann. 568 185 

V. Little, 94 Ark. 217 630 

V. McDonald, 59 Ore. 520 724 

V. McDowell, 101 N. Car. 734 719 

V. McMillan, 49 Fla. 243 13 

V. Meyer, 63 Ind. 33 111 

V. Milk, 11 Fed. 389 100 

V. Morgan, 52 Ark. 150 222 

V. Myers, 52 Wis. 628 645 

V, Nashville University, 4 Humph. 

(Tenn.) 157 185 

v. Newton, 5 Blackf. (Ind.) 455 208 
v. Oritz, 99 Tex. 475 214 

v. Portsmouth Sav. Bank, 106 Ind. 

435 207 

V. Record, 80 Ind. 348 563 

V. Reeder, 5 Nebr. 203 111 

V. Reeves, 97 Mo. 668 706 

V. Riley, 219 Mo. 667 574 

v. Rusk, 55 Wis. 465 212 

v. Salyers, 19 Ind. 432 611 

v. Sargent, 12 Mo. App. 228 112 

V. Sponaugle. 45 W. Va. 415 637 

V. Springfield Tp., 6 Ind. 83 208 

V. Stark, 111 La. 594 208, 209 

V. Stringfellow, 2 Kans. 263 208 

V. Superior Court, 13 Wash. St. 

187 656 

V. Superior Court of King County, 

63 Wash. 312 674 

V. Tanner, 73 Nebr. 104 208 

V. Twelfth Judicial Dist. Ct., 34 

Mont. 96 491 

V. Unknown Heirs of Goldberg, 113 

Tenn. 298 638 

V. Wells, 142 N. Car. 590 109 

V. Westfall, 85 Minn. 437 

954, 955, 956, 957 

V. Wyman, 59 Vt. 527 730 

State Bank v. Chapelle, 40 Mich. 447 441 

V. Frame, 112 Mo. 502 127, 439 

State Land Co. v. Mitchell, 162 Ala. 

469 634 

State Savings Bank v. Stewart, 93 Va. 

447 241 

Staubitz V. Lambert, 71 Minn. 11 87 

Staunton V. Wooden, 179 Fed. 61 378 

Steacy v. Rice, 27 Pa. St. 75 58 

Stearns v. Edson, 63 Vt. 259 621 

V. Godfrey, 16 Maine 158 55, 475 

V. United States, 152 Fed. 900 201 

Stearns Ranches Co. v. McDowell, 134 

Cal. 562 561 

Stebbins v. Duncan, 108 U. S. 32 138 

Steckel, In re, 64 Pa. St. 493 719 

Steele v. Boone, 75 111. 457 138 

V. Bryant, 132 Ky. 569 185, 272, 654 

V. Friarson, 85 Tenn. 430 334 

V. Williams, 12 Ky. L. 770 423 

Steel, In re, L. R. (1903) 1 Ch. 135 467 

Steeple v. Downing. 60 Ind. 478 224 

Steifel V. Barton, 73 Md. 408 119 

Stein V. Ashby, 24 Ala. 521 ' 227 

Steinberg v. Salzman, 139 Wis. 118 697 

Steiner v. Coxe, 4 Pa. St. 13 224 

Stein's Admr. v. Stein, 32 Ky. L. 664 719 

Stell V. Barham, 87 N. Car. 62 45 

Stengel v. Sergeant, 74 N. J. Eq. 20 393 

Stephens v. Mansfield, 11 Cal. 363 108 

V. Motl, 82 Tex. 81 98 



Ixxiv 



TABLE OF CASES 



[References are to Sections.] 



Stephenson v. Cove, 24 S. Dak. 460 

5, 10, IS, 16 

V. Davis, 56 Maine 73 576 

V. Thompson, 13 111. 186 349 

Sterling V. Park, 129 Ga. 309 262 

V. Warden, 51 N. H. 217 62 

Stern v. Fountain, 112 Iowa 96 103 

Sternberg's Estate, In re, 94 Iowa 305 491 

Stetson V. Eastman, 84 Maine 366 326 

Stevens v. Dennett, 51 N. H. 324 61 

V. Ferry, 48 Fed. 7 654 

v. Flower, 46 N. J. Eq. 340 473 

V. Geiser, 71 Tex. 140 119 

V. Gladding, 17 How. (U, S.) 447 36 

V. Hampton. 46 Mo. 404 118 

V. Morse, 47 N. H. 532 118 

V. Owen, 25 Maine 94 65 

V. Shannahan, 160 111. 330 358 

V. Watson, 4 Abb. Dec. (N. Y.) 

302 565 

Stevenson v. Abington, 31 Beav.' 305 466 
V. Gray, 46 Ind. App. 412 87, 708, 730 
V. McEeary, 12 Sm. & M. (Miss.) 

9 360 

V. Montgomery, 104 N. E. 1075 90 

V. Polk, 71 Iowa 278 

1, 3, 6, 25, 35, 429 
Steward v. Knight, 62 N. J. Eq. 232 46 
Stewart v. Beard, 69 Ala. 470 282 

V. Blalock, 45 S. Car. 61 66 

V. Clark, 13 Mete. (Mass.) 79 49 

V. Devries, 81 Md. 525 595 

V. Hurd, 107 Maine 457 ' 429 

v. McLaughlin, 11 Colo. 458 417 

V. McSweeney, 14 Wis. 468 124 

V. Matheny, 66 Miss. 21 638 

V. May, 111 Md. 162 669 

V. Perkins, 110 Mo. 660 348 

V. Ross, 50 Miss. 776 64 

V. Smiley, 46 Ark. 373 723 

V. Stewart, 5 Conn. 317 65 

V. Stewart, 177 Mass. 493 455 

V. United States, 206 U. S. 185 184 

V. Wells, 47 Ind. App. 228 724 

V. Wood, 63 Mo. 252 531 

Stewart Contracting Co. v. Trenton &c. 

R. Co., 71 N. J. L. 568 536 

Stickney's Will, In re, 85 Md. 79 482 

Stidham v. Matthews, 29 Ark. 650 316 

Still V. Lansingburgh, 16 Barb. (N. Y.) 

107 331 

Stillings V. Stillings, 67 N. H. 584 434 

Stilphen v. Stilphen, 65 N. H. 126 321 

Stimson Land Co. v. Rawson, 62 Fed. 

426 220 

Stinebaugh v. Wisdom, 13 B. Mon. 

(Ky.) 467 64 

Stinnett V. House, 1 Posey Unrep. Cas. 

(Tex.) 484 124 

Stinson v. Call, 163 Mo. 323 220 

V. Connecticut Mut. L. Ins. Co., 

174 III. 125 638 

V. Doolittle, 50 Fed. 12 435 

V. Ross, 51 Maine 556 347 

Stitt V. Rat Portage Lumber Co., 96 

Minn. 27 672 

Stobaugh V. Irons, 243 111. 55 - 363 

Stockbridge Iron Co. v. Hudson Iron 

Co., 107 Mass. 290 63 

Stockton V. Frazier, 81 Ohio St. 227 

87, 730 
V. Weber, 98 Cal. 433 54 

Stockwell V. Bowman, 23 Ky. L. 2304 485 
V. McHenry, 107 Pa. St. 237 132 

V. Shalit, 204 Mass. 270 286 

Vi State, 101 Ind. 1 126 

Stogdon V. Lee, 60 L. J. Q. B. 669 479 



Stokes V. Stokes, 240 111. 330 670 

V. Weston, 142 N. Y. 433 476 

Stoltz V. Doering, 112 111. 234 687, 719 

Stone V. Ashley, 13 N. H. 38 336 

V. Griffin, 3 Vt. 400 458 

V. Houghton, 139 Mass. 175 277 

V. Perkins, 217 Mo. 586 224, 568 

Stonehill v. Hastings, 135 App. Div. 

(N. Y.) 48 286 

Stoner v. Royar, 200 Mo. 444 180 

Stoner, In re, 105 Fed. 752 385 

Stonestreet v. Doyle, 75 Va. 356 720 

Stonewall Phosphate Co. v. Peyton, 39 

Fla. 726 228 

Storch V. McCain, 85 Cal. 304 443 

Storer v. Freeman, 6 Mass. 435 104 

Story V. Palmer, 46 N. J. Eq. 1 59 

Stoughton V. Leigh, 1 Taunt. 402 65 

Stout V. Young, 217 Pa. 427 491 

Stow V. Wyse, 7 Conn. 214 99 

Stowe V. Stowe, 140 Mo. 594 491 

Strain v. Murphy, 49 Mo. 337 , 621 

Stramann v. Seheeren, 7 Colo. App. 1 516 
Strand v. Stewart, 51 Wash. 685 457 

Strasburger v. Hoffman, 175 111. App. 

120 737 

Strause v. Josephthal, 77 N. Y. 622 439 
Streeter v. Paton, 7 Mich. 341 723 

Stribling V. Ross, 16 111. 122 65 

Stringfellow v. Cain, 99 U. S. 610 215 

Strode v. Magowan, 2 Bush (Ky.) 64 

719, 740 
Strong v. Smith, 84 Mich. 567 734 

Strother v. Lucas, 12 Pet. (U. S.) 454 186 
Stroup v. Stroup, 140 Ind. 179 65 

Strunk v. Pritchett, 27 Ind. App. 582 244 
Stuart V. Allen, 16 Cal. 473 360 

Stubblefield v. Boggs, 2 Ohio St. 216 225 
Studdard v. Wells, 120 Mo. 25 54 

Studebaker v. Johnson, 41 Kans. 326 662 
Studer v. Seyer, 69 Ga. 125 401 

Studstill V. Willcox, 94 Ga. 690 73 

Stumpf V. Osterhage, 94 111. 115 689 

Sturgis V. Work, 122 Ind. 134 460, 471 
Stutt V. Building Assn., 12 Pa. Co. Ct. 

344 632 

Stuyvesant v. Western Mtg. &c. Co., 22 

Colo. 28 424 

V. Woodruff, 21 N. J. L. 133 61 

Succession of Caldwell, 114 La. 195 718 
Succession of Davis, 126 La. 178 724 

.Succession of Earhart, 50 La. Ann. 524 491 
Succession of Herber, 128 La. Ill 456 

Succession of Hoggatt, 36 La. Ann. 

337 570 

Succession of McCan, 48 La. Ann. 145 480 

Succession of Meyer, 44 La. Ann. 871 737 

Succession of Nash, 48 La. 1573 595 

Sudbury v. Stow, 13 Mass. 462 40 

Sugg V. Thornton, 132 U. S. 524 660 

Sullivan v. Chambers, 18 R. I. 799 58 

-V. Garesche, 229 Mo. 496 468, 469 

V. Solis, 52 Tex. Civ. App. 464 193 

V. Sullivan, 66 N. Y. 37 670 

Sullivan-Sanders Lumber Co. v. Reeves, 

58 Tex. Civ. App. 488 276 

Sullivan's Estate, In re, 48 Wash. 631 726 
Sulphur Mines Co. v. Thompson, 93 

Va. 293 358 

Sulzberger v. Sulzberger, 50 Cal. 385 66 

Summer v. Mitchell, 29 Fla. 179 120 

Summer^eld v. White, 54 W. Va. 311 322 
Summers v. Kilgus, 14 Bush (Ky.) 

449 443 

V. Smith, 127 111. 645 476 

Summit v. Yount, 109 Ind. 506 475 

Sumner v. Rhodes, 14 Conn. 135 120 

Sumpter v. Carter, 115 Ga. 893 459 



TABLE OF CASES 



Ixxv 



[References ere to Sections.] 



Sunderland, In re, 60 Iowa 732 718 
Sundermann v. People, 148 App. Dlv. 

(N. Y.) 124 956 

Sutherland v. Goodnow, 108 111. 528 408 

V. Rose, 47 Barb. (N. Y.) 144 672 

Sutphen v. Ellis, 35 Mich; 446 492 

Sutton V. Calhoun, 14 La. Ann. 209 635 

Swain v. Duane, 48 Cal. 358 479 

V. Mitchell, 27 Tex. Civ. Aop. 62 357 

Swallow V. Swallow, 27 N. J. Eq. 27S 466 

Swan V. Walden, 156 Cal. 195 66 

Swann v. Jenkins, 82 Ala. 478 227 

V. Lindsey, 70 Ala. 507 186 

Swasey v. Antram, 24 Ohio St. 87 570 

V. Jaques, 144 Mass. 135 729 
Sweezey v. Willis, 1 Bradf. (N. Y.) 

495 89 

Swenson's Estate, In re, 55 Minn. 300 471 

Sweringen v. St. Louis, 151 Mo. 348 103 

Swift V. Boyd, 202 Mass. 26 52 

V. Lee, 65 111. 336 348 

V. Mulkey, 14 Ore. 59 73 

V. Smith, 102 U. S. 442 439 

Swinney v. Klippert, 20 Ky. L. 2014 719 

Swisher v. Sensenderfer, 84 Mo. 104 203 
SwoiTord Bros. Dry Goods Co., In re, 

180 Fed. 549 377 

Symns v. Cutter, 9 Kans. App. 210 26 



Tabler v. Tabler, 62 Md. 601 487 

Taft V. Taft, 130 Mass. 461 339 

Taggart v. Risley, 3 Ore. 306 99 

Talbott V. 'English, 156 Ind. 299 407 

V. Woodford, 48 W. Va. 449 696 

Tallmadge v. East River Bank, 26 N. 

Y. 105 , 277 

Talpey v. Wright, 61 Ark. 275 22 

Tankard v. Tankard, 79 N. Car. 54 692 
Tanton v. Van Alstine, 24 111. App. 405 53 
Tapley v. Tapley, 115 Ga. 109 355 

Tapp v. Nock, 89 Ky. 414 25 

Tappan's Appeal, In re, 52 Conn. 412 474 
Tarbell v. West, 86 N. Y. 280 125, 126 
Tarpey v. Desert Salt Co., 5 Utah 205 282 
V. Madsen, 178 U. S. 215 196 

Tartt V. Clayton, 109 III. 579 357, 358 
v. Negus, 127 Ala. 301 66 

Tarver v. Depper, 132 Ga. 798 699 

Tasker v. Garrett County, 82 Md. 150 25 
Tate V. Jay, 31 Ark. 576 521 

V. Pensacola Land &c. Co., 37 Fla. 

439 434 

Tatro V. French, 33 Kans. 49 183 

Tatum V. Tatum, 81 Ala. 388 93 

Tavshanjian v. Abbott, 59 Misc. (N. 

Y.) 642 720 

Tax Assessment of Delaware &c. R. 

Co., In re, 224 Pa. 240 630 

Taylor v. Albemarle Steam Nav. Co., 

105 N. Car. 484 119 

V. Benham, 5 How. (U. S.) 233 356 
V. Birmingham, 29 Pa. St. 306 321 

V. Cleary, 29 Grat. (Va.) 448 45 

V. Collins, 51 Wis. 123 • 674 

r. Coots, 32 Nebr. 30 661 

V. Cribbs, 174 Ala. 217 87 

V. Hargous, 4 Cal. 268 66 

V. Harrison, 47 Tex. 454 264, 301 

V. Heitz, 87 Mo. 660 529 

V. Lane, 18 Tex. Civ. App. 545 355 

V. McGrew, 29 Ind. App. 324 564 

V. Mitchell, 58 Kans. 94 433 

V. Russell, 65 W. Va. 632 668 

V. Stephens, 165 Ind. 200 466 

V. Taylor, 223 HI. 423 66 

▼. Taylor, 54 Ore. 560 676 



Taylor 

V. Waters, 7 Taunt. 374 61 

v. Weston, 77 Cal. 534 198 

V. Williams, 2 Colo. App. 559 

1, 3, 5, 6, 10 

V. Williams, 45 Mo. 80 25 

V. Winona R. Co., 45 Minn. 66 215 

Taylor, In re, 20 N. Y. S. 960 90 

Tays V. Robinson, 68 Kans. S3 87, 730 

Teague v. Sowder, 121 Tenn. 132 297 

V. Whaley, 20 Ind. App. 26 506 

Teal V. Walker, 111 U. S. 242 419 

Tecumseh Iron Co. v. Camp, 93 Ala. 

572 651 

Tegarden v. Phillips (Ind.), 39 N. E. 

212 89 

Temple v. Ferguson, 110 Tenn. 84 338 

Templeton v. Falls Land &c. Co., 77 

Tex. 55 597 

v. Twitty, 88 Tenn. 595 64 

Tenbrook v. Jessup, 60 N. J. Eq. 234 620 
Tendick v. Evetts, ^38 Tex. 275 465 

Tennant v. Tennant, 43 W. Va. 547 59 
Tennessee Coal, I. & R. Co. v. Tut- 

wiler, 108 Ala. 483 225 

Tepper v. Supreme Council of Royal 

Arcanum, 59 N. J. Eq. 321 717 

Terrell v. Martin, 64 Tex. 121 349 

Territory v. Lee, 2 Mont. 124 180 

Terry v. Cole, 80 Va. 695 590 

Testart V. Belot, 31 La. Ann. 795 118 

Teverbaugh v. Hawkins, 82 Mo. 180 583 
Tewksbury v. Howard, 138 Ind. 103 398 
Tewksbury Tp. v. Readington Tp., 8 

N. J. L. 319 40 

Texas Land & Loan Co. v. Blalock, 76 

Tex. 85 431, 692 

Texas & P. R. Co. v. Smith, 159 U. S. 



66 
Thalls v. Smith, 139 Ind. 496 
Tharpe v. Holcomb, 126 N. Car. 365 
Thatcher v. Thatcher, 17 Colo. 404 
Thaxton v. Roberts, 66 Ga. 704 
Thayer v. Finnegan, 134 Mass. 62 
V. Roberts, 44 Maine 247 
v. Spratt, 189 U. S. 346 
V. Thayer, 14 Vt. 107 



220 
97 
696 
729 
419 
525 
616 
193 
325 
V. Wel'lineton, 9 Allen (Mass.) 283 485 



Thebaut v. Canova, 11 Fla. 143 671 

Thieband v. Sebastian, 10 Ind. 454 493 
Thiele v. Thiele, 57 N. J. Eq. 98 516 

Thielman v. Carr, 75 111. 385 535 

Thissell v. Schillinger, 186 Mass. 180 473 
Thomas V. Bland, 91 Ky. 1 593 

V. Caldwell, 50 111. 138 280 

V. Carson, 46 Nebr. 765 

5, 10, 14, 15, 17, 20, 22, 174 
V. Feese, 21 Ky. U 206 516 

V. Fulford, 117 N. Car. 667 66 

V. Glazener, 90 Ala. 537 611 

V. Hanson, 59 Minn. 274 124 

V. Higgins, 47 Md; 439 465 

V. Ireland, 88 Ky. 581 662 

V. Johnson, 137 Ind. 244 553 

V. Livingston, 155 Ala. 546 419 

V. Miller, 161 111. 60 85, 710 

V. Schee, 80 Iowa 237 

10, 11, 15, 16, 22, 174 
V. Stuart's Exr., 91 Va. 694 287 

V. Thomas, 97 Miss. 697 466 

V. Thomas' Estate, 64 Nebr. 581 719 
V. Title &c. Co., 81 Ohio St. 432 

15, 22 

V. Woods, 173 Fed. 585 378, 381 

V. Wyatt, 31 Mo. 188 224 

Thomas, In re, 199 Fed. 214 385 

Thomassen v. De Goey, 133 Iowa 278 397 



Ixxvi 



TABLE OF CASES 



[References are to Sections.] 

Thompson v. Easier, 148 Cal. 646 

192, 201 
V. Browne, 10 S. Dak. 344 374 

V. Burhans, 79 N. Y. 93 73, 688 

V. Burns, 15 Idaho 572 671 

V. Carl, 51 Vt. 408 45, 312 

V. Carr, 5 N. H. 510 331 

V. Churchill, 60 Vt. 371 455 

V. Dulles, 5 Rich. Eq. (S. Car.) 

370 
V. Ellenz, 58 Minn. 301 
V, Garwood, 3 Whart. (Pa.) 287 
V. Kauffelt, 110 Pa. St. 209 
V. Kenyon, 100 Mass. 108 
V. Maxwell, 16 Fla. 773 
V. Miner, 30 Iowa 386, 571 
V. Morgan, 6 Minn. (Gil. 199) 292 
V. Penn, 149 Ky. 158 
V. Pioche, 44 Cal. 508 
V. Sanford, 13 Ga. 238 
V. Shaw, 104 Maine 85 
V. Simpson (Mo. App.), 127 S. W. 

620 
V. Southern California Motor Road 

Co., 82 Cal. 497 

V. Thompson, 132 Ind. 288 

V. Thompson, 27 Ky. L. 949 

V. Thornton, 197 Mass. 273 

Thompson, In re, 57 Hun (N. Y.) 419 



34 
376 

60 
691 
444 
126 

61 
120 
456 
127 

87 
372 

552 

270 
676 
467 
483 

,___., _ _ _, _ , , 110 

Thompson's Appeal, In re, 101 Pa. St. 

225, 313 

Thompson's Estate, In re, 6 S. Dak. 

576 735 

Thomson v. Locke, 66 Tex. 383 654 

Thorn v. Maurer, 85 Mich. 569 654 

V. Mayer, 12 Misc. (N. Y.) 487 122 

Thornburg v. Doolittle, 148 Iowa 530 34 

V. Wiggin, 135 Ind. 178 321 

Thorndike v. Norris, 24 N. H. 4S4 436 

Thorne, In re, 155 N. Y. 140 718 

Thornton v. Ferguson, 133 Ga. 825 614 

V. Krepps, 37 Pa. St. 391 64 

V. Miskimmon, 48 Mo. 219 348 

V. Thornton, 3 Rand. (Va.) 179 321 

Thorp V. Hanes, 107 Ind. 324 715 

Thorpe v. Durbon, 45 Iowa 192 392 

Thrasher v. Ballard, 33 W. Va, 



Threat v. Moody, 87 Tenn. 143 
Thrift V. Delaney, 69 Cal. 188 
Throckmorton v. Price, 28 Tex, 



285 
60, 493 
66 
201 



605 
117, 



132 

239 

53 

74 

713 

192 

64 

201 

503 
645 



Thrush V. Graybill, 110 Iowa 585 
Thurber v. Dwyer, 10 R. I. 355 
Thygerson v. Whitbeck, 5 Utah 406 
Tichenor v. Brewer's Exr., 98 Ky. 

349 
Tidd V. Rines, 26 Minn. 201 
Tiddy v. Graves, 126 N. Car. 620 
Tiernan v. Miller, 69 Nebr. 764 
Tiffin V. Shawhan, 43 Ohio St. 178 

324 
Tifft V. Buffalo, 82 N. Y. 204 
Tilley v. Bridges. 105 III. 336 364, 601 

V. King, 109 iST. Car. 461 54, 474 

TiUinghast v. Champlin, 4 R. I. 173 128 
V. Coggeshall, 7 R. I. 383 708 

Tillis V. Treadwell, 117 Ala. 445 506 

Tilton V. Tilton, 196 Mass. 562 734 

Timpson v. New York, 5 App. Div. 

(N. Y.) 424 698 

Tindal v. Drake, 51 Ala. 574 58 

Tinder v. Tinder, 131 Ind. 381 262, 263 
Tinicum Fishing Co. v. Carter, 61 Pa. 

St. 21 63 

Tinker v. Forbes. 136 111. 221 277 

Tinsley v. Atlantic Mines Co., 20 Colo. 

App. 61 639 



Tippecanoe Loan & Trust Co. v. Carr, 

40 Ind. App. 125 ^, ^^„ 360, 723 

Tischler v. Robinson, 56 Fla. 699 611 

Title Guarantee & Trust Co. v. Wrenn, 

35 Ore. 62 „ ^ t 

Title Guarantee & Trust Co., In re, 

195 N Y. 339 '•59 

Title &c. Co. V. Kerrigan, 150 Cal. 289 963 
Toan V. Pline, 60 Mich. 385 51 

Tobin's Estate, In re, 139 Wis. 494 
Todd V. Johnson, 51 Iowa 192 
V. Johnson, 99 Ky. 548 
V. Nelson, 109 N. Y. 316 ,.,„,,„ 

V. Outlaw, 79 N. Car. 235 120, 549 

V. Pittsburgh &c. R. Co., 19 Ohio 

St 514 ^^^ 

v. Sawyer, 147 Mass. 570 47 

V. Union Dime Sav. Inst 



436 
425 
375 
315 



118 N. 



281 
570 
147 



Hamilton, 



18 



432 
S3 
207 
637 
577 

215 

127 

34 

632 



Y. 337 
Todhunter v. Klemmer, 134 Cal. 60 
Tognazzini v. Morganti, 84 Cal. 159 
Toledo D. & B. R. Co. v. Hamilt 

134 U. S. 296 
Tolle V. Orth, 75 Ind. 298 ^ , ,^, 
Tolleston Club v. State, 141 Ind. 197 
Tolman v. Hobbs, 68 Maine 316 

V. Smith, 85 Cal. 280 . 

Tombstone Town Site Cases, 2 Ariz, 

272 
Tomkins v. Henderson, 83 Ala. 391 
V. Hyatt, 28 N. Y. 347 
V. Little Rock & F. S. R. Co, 

Fed. 344 _. ^^, ,, ^ 

V. Verplanck, 10 App. Div. (N. Y.) 

572 466, 713 

Tomlinson's Estate, In re, 133 Pa. St. 

245 ^°' 

Tompson V. Tappan, 139 Mass. 506 444 

Toms V. Williams, 41 Mich. 552 339 

Toney v. Knapp, 142 Mich. 652 687 

Tonopah Banking Corp. V. McKane 

Min. Co., 31 Nev. 295 364, 611 

Toomey v. McLean, 105 Mass. 122 65 

Torrans v. Hicks, 32 Mich. 307 596 

Torrence v. Shedd, 112 111. 466 
Torrey v. Deavitt, 53 Vt. 331 
Totten V. Pocahontas Coal & Coke Co, 

67 W. Va. 639 
Toupin V. Peabody, 162 Mass. 473 
Tousley v. Tousley, 5 Ohio St. 78 
Tower v. Tower, 141 Ind. 223 
Town V. Greer, 53 Wash. 350 
Townsend v. Coxe, 151 111. 62 
V. Driver, 5 Cal. App. 581 
V. Little, 109 U. S. 504 
V. Meneley, 37 Ind. App. 127 
V. Tallant, 33 Cal. 45 



314 
437 



274 
434 
120 
670 
272 
371, 376 
669 
692 
719 
661 
Townsend Sav. Bank v. Todd, 47 Conn. 

190 100 

Townshend v. Frommer, 125 N. Y. 

446 479 

V. Goodfellow, 40 Minn. 312 328 

Township of Walcott v. Skauge, 6 N. 

Dak. 382 213 

Toy V. McHugh, 62 Nebr. 820 632 

Trafton v. Hawes, 102 Mass. 533 266 

Trail v. Turner, 22 Ky. L. 100 693 

Train v. Boston Disinfecting Co., 144 

Mass. 523 527 

Trammell v. Hudmon, 78 Ala. 222 534 

Tranum v. Wilkinson, 81 Ala. 408 120 

Trapnall v. Brown, 19 Ark. 39 59 

Travis v. Supply Co., 42 Kans. 625 553 

Trayer v. Setzer, 72 Nebr. 845 719 

Traynor v. Palmer, 86 111. 477 279 

Treadwell v. Reynolds, 47 Cal. 171 265 

V. Salisbury Mfg. Co., 7 Gray 

(Mass.) 393 ' 332 



TABLE OF CASES 



Ixxvii 



[References are to Sections.] 



Tremmel v. Kleiboldt, 75 Mo. 255 479 

V. Kleibolt, 6 Mo. App. 549 64 

Trenouth v. San Francisco, 100 U. S. 

251 196 

Trenton v. Toman, 74 N. J. Eq. 702 61 

Trimble v. Hunter, 104 N. Car. 129 566 

V. King, 131 Ky. 1 100 

V. Puckctt, 93 Ky. 218 516 

V. Stewart, 35 Mo. App. 537 16 

Trine v. Pueblo, 21 Colo. 102 105 

Tripe v. Marcy, 39 N. H. 439 125 

Triplett v. Williams, 149 N. Car. 394 

297, 671 
Tripp V. Hopkins, 13 R. I. 99 20, 21 

Trodick V. Northern Pac. R. Co., 164 

Fed. 913 200 

Trout V. Drawhorn, 57 Ind. 570 89 

Trowbridge v. Cunningham, 63 Kans. 

847 611 

Troy &c. R. Co. v. Potter, 42 Vt. 265 110 
Troyer v. Wood, 96 Mo. 478 661 

Trucks V. Lindsey, 18 Iowa 504 418 

Truelove v. Truelove, 172 Ind. 441 

86, 719, 728 
Truman v. Truman, 79 Iowa 506 428 

Trusdell v. Lehman, 47 N. J. Eq. 218 49 
Trustees of Presbytery of _ New York 
V. Westminster Presbyterian Church, 

67 Misc. (N. Y.) 317 333 

T. S. Faulk & Co. v. Steiner, 165 Fed. 

861 382 

Tualatin Academy v. Keene, 59 Ore. 

496 481 

Tubbs V. Wilhoit, 73 Cal. 61 207 

Tuck V. Calvert, 33 Md. 209 392 

Tucker v. Adams, 52 Ala. 254 405 

V. Clarke, 2 Sandf. Ch. (N. Y.) 96 97 

V. Harris, 13 Ga. 1 653 

V. Jones, 8 Mont. 225 506 

V. Moreland, 10 Pet. (U. S.) 58 298 

V. Sellers, 130 Ind. 514 650 

V. Whitehead, 58 Miss. 762 492 

Tug River Coal and Salt Co. v. Brigel, 

86 Fed. 818 674 

Tulare Irrigation Dist. v. Shepard, 185 

U. S. 1 647 

TuU V. Royston, 30 Kans. 617 632 

Tuller V. Leaverton, 143 Iowa 162 417 

Tupper, In re, 163 Fed. 766 380 

Turk V. Funk, 68 Mo. 18 8 

v. Skiles, 45 ~W. Va. 82 106, 307 

Turley v. Massengil, 7 Lea (Tenn.) 

353 47 

V. Turley, 11 Ohio St. 173 713 

Turner v. Dupree, 19 Ala. 198 578 

V. First Nat. Bank, 78 Ind. 19 622 

V. Houpt, 53 N. J. Eq. 526 545, 547 

V. McDonald, 76 Cal. 177 7, 491 

V. St. John, 8 N. Dak. 245 509 

V. Strinzel, 70 Cal. 28 534 

V. Watkins, 31 Ark. 429 420 

Turner. In re, 82 Misc. (N. Y.) 25 456 

Turner's Appeal, 48 Mich. 369 737 

Turpie v. Lowe, 114 Ind. 37 420 

V. Lowe, 158 Ind. 314 622 

Turpin v. Derickson, 105 Md. 620 438 

Tusch V. German Sav. Bank, 20 Misc. 

(N. Y.) 571 339 

Tustin V. Faught, 23 Cal. 237 262 

Tuttle, In re, 77 Conn. 310 " 708 

Twining v. New Jersey, 211 U. S. -78 962 
Tydings v. Pitcher, 82 Mo. 379 129 

Tyler v. Jewett, 82 Ala. 93 66 

V. Judges, 175 Mass. 71 

952, 954, 955, 956, 957 

V. Moore, 42 Pa. St. 374 45, 312 

V. Reynolds,, 53 Iowa 146 718 

Tyrrel v. Wheeler, 123 N. Y. 76 633 



U 



Uedelhofen v. Mason, 201 111. 465 426 
Uhl V. Uhl, 52 Cal. 250 676 

Ulfelder Clothing Co., In re, 98 Fed. 

409 381 

Underbill, In re, 62 Misc. (N. Y.) 

456 711 

Underwood v. Curtis, 127 N. Y. 533 484 
Untried v. Heberer, 63 Ind. 67 716 

Union Co. v. Sprague, 14 R. I. 452 441 

Union College v. Wheeler, 59 Barb. 

(N. Y.) 585 318 

Union College, In re, 129 N. Y. 308 645 
Union Mill & Mining Co. v. Ferris, 

24 Fed. Cas. 6 182 

Union Nat. Bank v. Bank of Kansas 

City, 136 U. S. 223 421 

Union Nat. Sav. Assn. v. Helberg, 152 

Ind. 139 538 

Union Pac. R. Co. v. Colorado Postal 

Tel. &c. Co., 30 Colo. 133 110 
v. DeBusk, 12 Colo. 294 663 

V. Karges, 169 Fed. 459 • 184 

Union Safe Deposit Co. v. Chisholm, 

33 111. App. 647 1, S, 6, 25, 194 

Union Safe Deposit & Trust Co. v. 

Dudley, 204 Maine 297 466 

Union Stock Yards Co. v. Nashville 

Packing Co., 140 Fed. 701 277 

Union Trust Co. v. Electric Park 
Amusement Co., 168 Mich. 
574 591 

V. Weber, 96 111. 346 632 

United States v. Arredondo, 6 Pet. (U. 

S.) 691 227 

V. Ashton, 170 Fed. 509 184 

V. Berrigan, 2 Alaska 442 180 

V. Braddock, 50 Fed. 669 205 

V. Budd, 43 Fed. 630 205 

V. Budd, 144 U. S. 154 205, 229 

V. Burlington &c. R. Co., 98 U. S. 

334 229 

V. California &c. Land Co., 148 U. 

S. 31 306 

V. Chamberlin, 156 Fed. 881 630, 646 
V. Crosby, 7 Cranch (U. S.) 115 724 
V. Dastervignes, 118 Fed. 199 698 

V. Ducros, 15 How. (U. S.) 38 214 
v. Dunnington. 146 U. S. 338 112 

V. Elliott, 12 Utah 119 208 

V. Healy, 160 U. S. 136 204 

V. Hyde, 132 Fed. 545 42 

V. Illinois Cent. R. Co., 154 U. S. 

225 244 

V. King, 3 How. (U. S.) 773 180 

V. Lair, 118 Fed. 98 202 

V. Mackintosh, 85 Fed. 333 204 

V. McLaughlin, 30 Fed. 147 100 

V. Morant, 123 U. S. 335 214 

V. Mullan, 10 Fed. 785 220 

V. Northern Pac. R. Co., 41 Fed. 

842 212 

V. Pena, 175 U. S. 500 214 

V. Perkins, 163 U. S. 625 457 

V. Railroad Bridge Co., 6 McLean 

(U. S.) 517 193 

V. Schurz, 102 U. S. 378 223, 752 

V. Shannon, 151 Fed. 863 184 

V. Southern Pac. R. Co., 39 Fed. 

132 212 

United States Fidelity &c. Co. v. Len- 

tilhon, 64 Misc. (N, Y.) 299 615 

United States Pipe Line Co. v. Dela- 
ware &c. R. Co., 62 N. J. L. 254 

110, 668 
United States Trust Co; v. Maresi, 33 
Misc. (N. Y.) 539 480 



Ixxviii 



TABLE OF CASES 



[References are to Sections.] 



United States Wind Engine &c. Co. v. 

LinviUe, 43 Kans. 455 17, 19, 24 

University of Lewisburg v. Reber, 43 

Pa. St. 305 536 
'Upington V. Corrigan, 69 Hun (N. Y.) 

320 . 54 
Upper Appomattox Co. v. Hamilton, 

83 Va. 319 406 

Upson V. Noble, 35 Ohio St. 655 718 

Urmston v. Evans, 138 Ind. 285 656 

Urton V. Woolsey, 87 Cal. 38 656 

Utassy V. Geidinghagen, 132 Mo. 53 458 

Utterback v. Terlaune, 75 Ind. 363 715 

V 

Valentine v. Piper, 22 Pick. (Mass.) 

85 119 

V. Witherill, 31 Barb. (N. Y.) 655 

707, 730 
Valle V. Fleming, 19 Mo. 454 353 

Vallette V. Tedens, 122 111. 607 11 

Valley Falls Co. v. Dolan, 9 E. I. 

489 61 

Vamplew v. Chambers, 29 Nebr. 83 60 

Van Aken v. Gleason, 34 Mich. 477 126 
Vanatta v. Brewer, 32' N. JT. Eq. 268 55 
Van Bibber v. Julian, 81 Mo. 618 736 

Van Brocklin v. Wood, 38 Wash. 384 720 
Vance v. Maroney, 4 Colo. 47 600, 653 

Vandercook v. Baker, 48 Iowa 199 

99, 427, 439 
Van Derlyn v. Mack, 137 Mich. 146 718 
Van Deusen v. Frink, 15' Pick. (Mass.) 

449 443 

Vandiveer v. Stickney, 75 Ala. 225 687 

Van Dyck v. Bloede, 128 Md. 330 722 

Van Horn v. Van Horn, 107 Iowa 247 719 
Van Home v. Campbell, 100 N. Y. 

287 43, 47 

Van Husan v. Heames, 96 Mich. 504 118 
Van Kleek v. O'hanlon, 21 N. J. L. 

582 111 

Van Matre v. Sankey, 148 111. 536 718 

Van Meter v. Knight, 32 Minn. 205 124 
Van Klensselaer v. Hays, 19 N. Y. 68 72 
V. Kearney, 11 How. (U. S.) 297 97 
V. Radcliff, 10 Wend. (N. Y. 639 63 
Van Reynegan v. Bolton, 5 Otto (U. 

S ) 33 214 

Van Schaick v. Sigel, 58 How. Pr. 

(N. Y.) 211 12 

V. Sigel, 60 How. Pr. (N. Y.) 122 18 
Van Sickle v. Gibson, 40 Mich. 170 730 

Van Slooten v. Wheeler, 140 N. Y. 

624 443 

Van Syckel v. Van Syckel, 51 N. J. 

Eq. 194 466 

Van Thorniley v. Peters, 26 Ohio St. 

471 120, 121 

Van Valkenburg v. McCloud, 21 Cal. 

330 210 

VanVIeet v. DeWitt, 200 111. 153 676 

Van Wagner v. Van Nostrand, 19 Iowa 

422 278, 304 

Van Wickle v. Landry, 29 La. Ann. 

330 431 

Vardeman v. Lawson, 17 Tex. 10 

393, 398, 400 
Varn v. Varn, 32 S. Car. 77 326 

Varner's Appeal, In re, 80 Pa. St. 140 59 
Varnon v. Varnon, 67 Mo. App. 534 487 
Vary v. Sensabaugh, 156 Ala. 459 314 

Vattier v. Hinde, 7 Pet. (U. S.) 252 298 
Vaughan v. Marable, 64 Ala. 60 442 

Vaughn v. Lovejoy, 34 Ala. 437 477 

V. Moore, 89 Va. 925 122 

V. Vaughn, 100 Tenn. 282 531 



Vaughn 

V. Yawn, 103 Ga. 557 667 
Veeder v. McKinley &c. Trust Co., 61 

Nebr. 892 727 
Vejar v. Mound City Assn., 97 Cal. 

659 271 

Verden v. Coleman, 4 Ind. 457 226 

Verdin v. Slocum, 71 N. Y. 345 566 

Verges v. Giboney, 47 Mo. 171 443 

Verplanck, In re, 91 N. Y. 439 653 

Very v. Russell, 65 N. H. 646 442 

Verzier v. Convard, 75 Conn. 1 318 

Vestal V. Garrett, 197 III. 398 272 

Vickers v. Henry, 110 N. Car. 371 65 

v. Leigh, 104 N. Car. 248 45 

Videan v. GrifEn, 21 Cal. 389 335 

Viele V. Judson, 82 N. Y. 32 438 

Vigilancia, In re, 68 Fed. 781 433 
Virginia Fire & Marine Ins. Co. v. 

Cottrell, 85 Va. 857 591 

Vizard V. Moody, 119 Ga. 918 446 

Vogler V. Anderson, 46 Wash. 202 213 

Von Arb V. Thomas, 163 Mo. 33 65 

Von Arx v. Boone, 193 Fed. 612 598 

Von Hesse v. MacKaye, 136 N. Y. 114 340 

Von Tobel V. Ostrander, 158 111. 499 538 

Vose V. Bradstreet, 27 Maine 156 270 

V. Handy, 2 Greenl. (Maine) 322 437 

Voss V. Eller, 109 Ind. 260 419 

V. King, 38 W. Va. 607 53 
Vought V. Williams, 120 N. Y. 253 6, 77 

Vowles V. Craig, 8 Cranch (U. S.) 371 203 

W 

Wacek v. Frink, 51 Minn. 282 5, 10, 15, 16 

Wade V. Deray, 50 Cal. 376 291 

V. Killough, 5 Stew. & P. (Ala.) 

450 26 

V. Miller, 32 N. J. L. 296 65 

Wadleigh v. Glines, 6 N. H. 17 322 

Wadsworth v. Wadsworth, 81 Cal. 187 676 

Waggener v. Waggener, 3 T. B. Mon. 

(Ky.) 542 74, 280, 335 

Wagner v. Varner, 50 Iowa 532 718 

Wailes V. Cooper, 24 Miss. 208 127 

Wait v. Baldwin, 60 Mich. 622 129 

v. Kern River Min. &c. Co., 157 

Cal. 16 671 

V. Wait, 4 N. Y. 95 65 

Waits V. Moore, 89 Ark. 19 100 

Wakefield v. Chowen, 26 Minn. 379 

5, 8, 10, 20, 161 
Waldron v. Taylor, 52 W. Va. 284 87, 717 
Walker v. Arnold, 71 Vt. 263 99 

V. Atmore, 50 Fed. 644 451 

V. Bowman, 27 Okla. 172 14, 23, 24 
V. Bradbury, 15 Maine 207 91 

V. Bruce, 44 Colo. 109 59 

V. Converse, 148 111. 622 699 

V. Deaver, 79 Mo. 664 736 

V. Denison, 86 111. 142 337 

V. Dunshee, 38 Pa. St. 430 708, 7281 
V. Files, 94 Ark. 453 616 

v. Hill, 73 N. H. 254 467 

V. Maddox, 105 Ga. 253 400 

V. Schreiber, 47 Iowa 529 128 

Walkerly's Estate, In re, 108 Cal. 627 

43, 482, 484 

Walker's Estate, In re, 5 Ariz. 70 719 

Walker's Estate, In re, 110 Cal. 387 457 

Wall V. Fairley, 77 N. Car. 105 623 

V. Pfanschmidt, 265 111. 180 733 

V. Wall, 30 Miss. 91 96 

Wallace v. Furber, 62 Ind. 103 423 

V. Hudson, 170 Cal. 596 722 

V. Industrial Trust Co., 29 R. I. 

550 340 



TABLE OF CASES 



Ixxix 



[References are to Sections.'] 



Wallace 

V. Smith, 113 Ky. 263 478 

V. Swepston, 74 Ark. 520 736 

V. Weld, 145 Iowa 478 642 

V. Wilson, 30 Mo. 335 192 

Wallahan v. Ingersoll, 117 111. 123 111, 659 
Wall Lumber Co. v. Lott-Lewis Co., 

5 Ga. App. 604 612 

Wain's Estate, In re, 189 Pa. St. 631 483 
Walsh V. Anderson, 135 Mass. 65 445 

Waltemate's Appeal, In re, 86 Pa. St. 

219 719 

Walters v. Defenba'ugh, 90 111. 241 420 

V. Jordan, 35 N. Car. 361 65 

V. Walters, 73 Ind. 425 430 

Walters' Will, In re, 64 Wis. 487 487 

Walthall V. Rives, 34 Ala. 91 442 

Walton V. Drumtra, 153 Mo. 489 58 

V. Meeks, 120 N. Y. 79 738 

Wambole v. Foote, 2 Dak. 1 324 

Warburton v. Mattox, Morris (Iowa) 

367 99 

Ward V. Dougherty, 75 Cal. 240 265 

V. Mathews, 122 Ala. 188 719 

V. Mulford, 32 Cal. 365 180, 214 

V. Necedah Lumber Co., 70 Wis. 

445 331 

V. Dates, 43 Ala. 515 493 

V. Rapp, 79 Mich. 469 62 

V. Small, 90 Ky. 198 120 

V. Stow, 17 N. Car. 509 714 

V. Ward, 120 111. Ill 720 

Warden v. Watson, 93 Mo. 107 63 

Warden, In re, 57 Cal. 484 720 

Warden v. Adams, 15 Mass. 233 436, 437 

V. Lyons, 118 Pa. St. 396 42 

V. Sabins, Z6 Kans. 165 535 

Ware v. Hager, 31 Ky. L. 728 193 

V. Minot, 202 Mass. 512 459 

V. Richardson, 3 Md. 505 58, 59 

V. Bchintz, 190 111. 189 441 

V. Wisner, 50 Fed. 310 456 

Warehime v. Graf, 83 Md. 98 595 

Warfield v. Dorsey, 39 Md. 299 595 

Warn v. Brown, 102 Pa. St. 347 45 

Warner v. Bates, 98 Mass. 274 59 

V. Bennett, 31 Cbnn. 468 54, 276 

V. Frend, 138 Cal. 651 674 

V. Gunnison, 2 Colo. App. 430 109 

V. Norwegian Cemetery Assn., 139 

Iowa lis 65 

V. Rogers, 23 Minn. 34 61 

V. Tanner, 38 Ohio St. 118 49 

V. Winiard, 54 Conn. 470 467 

V. Winslow, 1 Sandf. Ch. (N. Y.) 

430 121, 438 

Warner Valley Stock Co. v. Calder- 

wood, 36 Ore. 228 207 

Warnock v. Harlow, 96 Cal. 298 118, 551 
Warren v. Homestead, 33 Maine 256 437 
V. Lovis, 53 Maine 463 419 

V. Lyons, 152 Mass. 310 52 

V. Prescott, 84 Maine 483 712, 718, 734 
V. St. Paul &c. R. Co., 18 Minn. 

384 677 

V. Syme, 7 W. Va. 474 120 

V/ashburn v. Van Steenwyk, 32 Minn. 

336 456 

Washington County Abstract Co. v. 

Harris, 48 Okla. 577 16, 17, 18 

Wass V. Bucknam, 38 Maine 356 64 

■ Waterbury v. Piatt, 76 Conn. 435 110 

Waterhouse v. Martin, Peck. ('Tenn.) 

392 89 

Security State Bank v. Waterloo Lodge, 

85 Nebr. 255 429 

Waterman v. Carlton, 102 Tex. 510 724 

V. Greene, 12 R. I. 483 46 



Waters v. Bush, 42 Iowa 255 226 

V. Spofford. 58 Tex. 115 120 

Watkins v. Blount, 43 Tex. Civ. App. 

460 734 

V. Eaton, 30 Maine 529 640 

V. Holman, 16 Pet. (U. S.) 25 652 

V. Thornton, 11 Ohio St. 367 64 

V. Wassell, 15 Ark. 73 99 
V. Watkins (Ky. App.), 120 S. W. 

341 468 

V. Wilhoit, 104 Cal. 395 121, 122 

Watkins Land Co. v. Creps, 72 Kans. 

333 206 

Watson V. Adams, 103 Ga. 733 570 

V. Boyle, 55 Wash. 141 398 
V. Grand Rapids &c. Co., 91 Mich. 

198 447 

V. Hutto, 27 Ala. 513 583 

V. Mercer, 8 Pet. (U. S.) 88 106 

V. Muirhead, 57 Pa. St. 161 16 

V. O'Hern, 6 Watts (Pa.) 362 50 

V. Richardson, 110 Iowa 673 719 

V. Sherman, 84 111. 263 358 

V. Sutro, 86 Cal. 500 616, 651 

V. Turner, 89 Ala. 220 452 

V. Violett, 63 Ky. 332 595 

V. Watson, 225 111. 412 393 

Watters v. Rome &c. R. Co., 133 Ga. 

641 270 

Watts V. Dull, 184, HI. 85 718 

V. Watts, 38 Ohio St. 480 473 

Way V. Arnold, 18 (Ja. 181 99 

Weare v. Williams, 85 Iowa 253 127 

Weart v. Cruser, 49 N. J. L. 475 48 

Weatherford v. Weatherford, 20 Ala. 

548 719 

Weaver v. Carpenter, 42 Iowa 343 119 

V. First Nat. Bank, 76 Kans. 540 66 

Webb V. Bidwell, 15 Minn. (Gil. 394) 

479 632 

V. Haeffer, 53 Md. 187 442 

V. Hayden, 166 Mo. 39 59 

v. Hoselton, 4 Nebr. 308 358 

V. Huff, 61 Tex. 677 283 

v. Jackson, 6 Colo. App. 211 718 

v. Janney, 9 App. D. Cf. 41 673 

V. Robbins, 77 Ala. 176 129, 313 

v. Seekins, 62 Wis. 26 51 

V. Stone, 24 N. H. 282 424 

V. Thompson, 23 Ind. 428 314 

Webber v. Kastner, 5 Ariz. 3^4 119, 621 
V. Pere Marquette Boom Co., 62 

Mich. 626 224 

Weber v. Christen, 121 III. 91 286 

V. McCleverty, 149 Cal. 316 441 

Webster v. Chicago, 62 111. 302 646 

V. Cooper, 14 How. (U. S.) 488 58 

V. Daniel, 47 Ark. 131 350 
v. Vandeventer, 6 Gray (Mass.) 

428 326 

Webster City Steel Radiator Co. v. 

Chamberlin, 137 Iowa 717 536 

Weed V. Woods, 71 N. H. 581 43 

Weeden v. Hawes, 10 Conn. 50 578 

V. Richmond, 9 R. I. 128 650 

Weeks v. Brooks, 205 Mass. 458 957 

V. Grace, 194 Mass. 296 110 

V. Waldron, 64 N. H. 149 635 

Weider v. Maddox, 66 Tex. 372 376 

WeHe V. United States, 7 Ct. of CI. 

(U. S.) 535 337 

WeUer v. Monroe County, 76 Miss. 492 185 

Weir, In re, 9 Dana (Ky.) 434 714 

Welborn v. Anderson, 37 Miss. 155 73 

v. Kimmerling, 46 Ind. App. 98 668 

Welch v. Ketcham, 48 Minn. 241 118 

V. Spragins, 98 Ky. 279 66 



Ixxx 



TABLE OF CASES 



[References are to Sections.'l 



108 

311 
103 
275 
323 
392 
715 
468 
595 



583 
734 
634 
533 
'483 
65 
676 

434 
640 
570 

99 
466 
207 
708 

96 
385 
676 

61 
126 

62 



Weldon v. Rogers, 1S7 Cal. 410 3M 

V. Tollman, 67 Fed. 986 , 433 

Welland Canal v. Hathaway, 8 Wend. 

(N. Y.) 840 
Wellborn v. Weave'-, 17 Ga. 267 
Welles V. Bailey, 55 Conn. 292 
Wellman v. Churchill, 92 Maine 193 
Wells V. Caywood, 3 Colo. 487 
V. Francis, 7 Colo. 396 
V. Goss, 110 La. 347 
V. Houston, 23 Tex, Civ. App. 629 
V. Rice, 34 Ark. 346 
V. Seeley, 47 Hun (N. Y.) 109 

708, 728 

V. Smith, 2 Utah 39 125 

V. Thompson, 13 Ala. 793 64 

V. Wells, 47 Barb. (N. Y.) 416 124 

Wells' Estate, Tn re, 69 Vt. 388 

Wells, In re, 113 N. Y. 396 

Welsh V. Briggs, 204 Mass. 540 

Wendt V. Martin, 89 111. 139 

Wentworth v. Read. 166 111. 139 

V. Wentworth, 69 Maine 247 

Werner v. Werner, 59 Kans. 399 

Wertheimer v. Thomas, 168 Pa. St. 

168 
West V. Duncan, 42 Fed. 430 
V. Tordan, 62 Maine 484 
V. Pine, 4 Wash. (U. S.) 691 
V. Rassman, 135 Ind. 278 
V. Roberts, 135 Fed. 350 
V. Williams, 15 Ark. 682 
V. Wright, 115 Ga. 277 
West, In re, 128 Fed. 205 
Wesner v. O'Brien, 56 Kans. 724 
Wessels v. Colebank, 174 111. 618 
Westbrook v. Gleason, 79 N. Y. 23 
West Chicago St. R. Co. v. People, 

214 111. 9 
Western Loan &c. Co. v. Silver Bow 

Abstract Co., 31 Mont. 448 16, 17 

Western Min. & Mfg. Co. v. Peytona 

Cannel Coal Co., 8 W. Va. 406 303 

Western Transp. Co. \^. Lansing, 49 N. 

Y. 499 50 

Westervelt v. Wyckoff, 32 N. J. Eq. 

188 129, 316 

Westfaling v. Westfaling, 3 Atk. 460 467 
Westhafer v. Patterson, 120 Ind. 459 673 
West Jersey Title &c. Co. v. Barber, 49 

N. J. Eq. 474 9 

West Lumber Co. v. Lyon, 53 Tex. 

Civ. App. 648 382, 545 

Weston V. Livezey, 45 Colo. 142 428 

V. Weston, 38 Ohio St. 473 714, 716 
West Virginia Pulp & Paper Co. v. 

Miller, 176 Fed. 284 458 

Wetmore v. Wetmore, 149 N. Y. 520 676 
v. Wetmore, 40 Ore. 332 676 

Wetter v. Walker, 62 Ga. 142 89 

Wever v. Parker, 131 Ga. 510 611 

Weyer v. Beach, 79 N. Y. 409 538 

Whaley v. Northern Pacific R. Co., 

167 Fed. 664 200 

Whalley v: Small, 25 Iowa 184 132 

Wharton v. Hannon, 115 Ala. 518 667 

Wheaton v. Andress, 23 Wend. (N. Y.) 

452 464 

Wheeler v. Aycock, 109 Ala. 146 432 

V. Chicago, 68 Fed. 526 210 

V. Clutterbuck, 52 N. Y, 67 707, 708 
V. Duke, 1 Cr. & M. 210 48 

V. Hotchkiss, 10 Conn. 225 64 

V. Long, 128 Iowa 643 43 

V. Smith, 50 Mich. 93 65 

V. Walker, 2 Conn. 196 55 

V. Wayne, 132 HI. 599 304 

Whipple V. Latrobe, 20 R. I. 508 708 



Whilaker v. Erie Shootitng Club, 102 

Mich. 454 „„ 689 

Whitaker's Estate, 175 Pa. St. 139 711 

Whitcher v. Webb, 44 Cal. 127 426 

Whitcomb v. Rodman, 156 111. 116 460 

White v. Brocaw, 14 Ohio St. 339 312 

V. Clarke, 7 T. B. Mon. (Ky.) 640 67 

V. Denman, 1 Ohio St. 110 120 

V. Flynn, 23 Ind. 46 644 

V. Gibson, 61 Misc. (N. Y.) 436 574 

V. Hermann, 51 111. 243 423 

V. Howard, 46 N. Y. 144 456 

V. Keller, 68 Fed. 796 456 

V. Luning, 93 U. S. 514 272 

V. McGarahan, 87 Ga. 217 123 

V. Massachusetts Inst, of Tech., 

171 Mass, 84 ' 466 

V. Morris, 107 N. Car. 92 663 

V. O'Bannon, 86 Ky. 93 553 

V. Old, 113 Va. 709 466 

V. Strahl, 17 Wis. 146 642 

V. University Land Co., 49 Mo. 

App. 450 417 

V. Walsh, 62 Misc. (N. Y.) 423 419 

V. White, 19 Ohio St. 531 730 

V. White, 64 W. Va. 30 737 

V. White, 72 W. Va. 144 737 

White, In re, 135 Fed. 199 380 

Whitehead v. Park, 53 Ga. 575 473 

V. Plummer, 76 Iowa 181 212 

Whitenack v. Agartt, 56 111. App. 72 621 

Whitfield V. Garriss, 131 N. Car. 148 46 

Whitham v. Ellsworth, 259 111. 243 91 

Whitley v. Barnett, 151 Iowa 487 416 

Whitlock V. Johnson, 87 Va. 323 129 

Whitman v. Huefner, 221 Mass. 265 724 

V. Perkins, 56 Nebr. 181 399 

Whitmer v. Schenk, 11 Idaho 702 101 

Whitney v. Fitchburg R. Co., 178 

Mass. 559 275, 506 

V. Lowe, 59 Nebr. 87 ■ 433 

V. Swett, 22 N. H. 10 51 

V. Taylor, 158 U. S. 85 196 

V. Union R. Co., 11 Gray (Mass.) 

359 273, 277 

V. Whitney, 45 N. H. 311 65 

Whittaker v. Pendola, 78 Cal. 296 195 

V. Thayer, 58 Tex. Civ. App. 282 697 

Whittemore v. Gibbs, 24 N. H. 484 51 

V. New York &c. R. Co., 174 Mass. 

363 62 

Whitten V. Whitten, 36 N. H. 332 670 

Whittlesey v. Fuller, 11 Conn. 337 

321, 326 
Whitworth V. Pool, 29 Ky. L. 1104 393 
Wickman v. Robinson, 14 Wis. 493 531 
Widdicombe v. Childers, 124 U. S. 



224 
203, 209 
316 
728 
226 



Widner v. State, 49 Ark. 172 
Wier v. Simmons, 55 Wis. 637 
Wiesner v. Zaun, 39 Wis. 188 
Wiggins V. Lusk, 12 111. 132 
Wiggins Ferry Co. v. Ohio &c. R. 

Co., 94 HI. 83 43 

Wilburn v. Land, 138 Wis. 36 668 

Wilcox V. First Nat. Bank, 93 Tex. 322 530- 
V. Jackson, 13 Pet. (U. S.) 498 

184, 193, 221 

V. Jackson, 109 III. 261 203 

V. Raben, 24 Nebr. 368 592 

V. Wheeler, 47 N. H. 488 45, 268 

Wilcoxon V. McGhee, 12 111. 381 227 

Wildberger v. Cheek, 94 Va. 517 471, 734 

Wilder v. Aurora &c. R. &c. Co., 216 

111. 493 105 

Wiley V. Gregory, 135 Ind. 647 472 

Wilhelmi v. Leonard; 13 Iowa 330 428 

Wilhite V. .Hamrick, 92 Ind. 594 623 



TABLE OF CASES 



Ixxxi 



[References are to Sections.^ 



Wilkerson v. Bracken, 24 N. Car. 315 708 

V. Clark, 80 Ga. 367 465 

Wilkins v. Huse, 9 Ohio 154 351 

Wilkinson v. Scott, 17 Mass. 249 318 
Willamette Real Estate Co. v. Hendrix, 

28 Ore. 485 614 

Willard v. Cramer, 36 Iowa 22 ' 120 

V. Darrah, 168 Mo. 660 466 

Willemin v. Dunn, 93 111. 511 429 

Willet V. Brown, 65 Mo. 138 65 

Willets V. Langhaar, 212 Mass. 573 61 

Williams v. Childress, 25 Miss. 78 583 

V. Cowden, 13 Mo. 211 477 

V. Crocker, 36 Fla. 61 373 

■V. Cunningham, 52 Ark. 439 392 

V. Daly, 33 111. App. '454 31 

V. Davis, 154 Ala. 422 415, 421 

V. Derair, 31 Mo. 13 53 

V. Cause, 83 S. Car. 265 45 

V. Gibson, 84 Ala. 228 63 

V. Glenn, 87 Ky. 87 592 

V. Glover, 66 Ala. 189 272 

V. Hacker, 16 Colo. 113 98 

V. Hanley, 16 Ind. App. 464 17, 19 

V. Hutchinson & S. E. Co., 62 Kans. 

412 562 

V. Jackson, 107 U. S. 478 118 

V. Jones, 166 N. Y. 522 475 

V. Jones, 2 Swan (Tenn.) 620 47 

V. Kemper, 4 Okla. 145 376 

V. Keyes, 90 Mich. 290 438 

V. Kimball, 35 Fla. 49 719, 724 

V. Knight, 18 R. I. 333 718 

V. Monroe, 125 Mo. 574 576, 658 

V. Peters, 72 Md. 584 99 
V. Peyton's Lessee, 4 Wheat, (U. 

S.) 77 599 
V. Porter (Ky. App.). 21 S. W. 

643 699 

V. Rice, 60 Mich. 102 532 

V. Teachey, 85 N. Car. 402 436, 437 

V. Thurlow, 31 Maine 392 99 

V. Weinbaum, 178 Mass. 238 537 

V. Williams, 189 111. 500 460 

V. Williams, 108 Iowa 91 59 

Williams, In re, 62 Mo. App. 339 737 

Williamson v. Berry, 49 U. S. 495 590 

V. Brown, 15 N. Y. 354 127 

V. Hall, 62 Mo. 405 257 

V. Mayer, 117 Ala. 253 346 

V. Roberts (Mo.), 187 S. W. 19 720 

Willingham v. King, 23 Fla. 478 706 

Willink V. Morris &c. Co., 4 N. J. Eq. 

377 129 

Willis V. Adams, 66 Vt. 223 129 

V. Jenkins, 30 Ga. 167 717 

V. Vallette, 4 Mete. (Ky.) 186 128 

Will of Bank, In re, 87 Md. 425 469 

Will of Barrett; In re, 111 Iowa S70 46 

Will of Kopmier, In re, 113 Wis. 233 453 

Will of Prasser, In re, 140 Wis. 92 459 

Will of Simons, In re, 55 Conn. 239 473 

Will of Stickney, In re, 85 Md. 79 482 

Will of Walter, In re, 64 Wis. 487 487 

Wills V. Wills, 85 Ky. 486 43 

WiUwhite V. Berry, 232 111. 331 €95 

Wilmarth v. Reed, 83 Mich. 44 480 

Wilson V. Braden, 48 W. Va. 196 655 

V. Byers, 77 111. 76 194 

V. Campbell, 33 Ala. 249 347 

V. Cochran, 48 Pa. St. 107 61 

V. Fisher, 148 N. Car. 535 420 

V. Fridenburg, 19 Fla. 461 66 

V. Godfrey, 145 Iowa 696 433 

V. Gness, 64 Nebr. 792 330 

V. Hoffman (N. J. Ch.), 50 Atl. 

592 594 

V. Holt, 91 Ala. 204 97 



Wilson 

V. Kirkland, 172 Ala. 72 723 

V. Logue, 131 Ind. 191 121 

V. Miller. 16 Iowa 111 127 

V. Otis, 71 N. H. 483 718 

V. Piper, 77 Ind. 437 525 

V. Plutus Min. Co., 174 Fed. 317 530 

V. Rehm, 117 111. App. 473 419 
V. St. Louis &c. R. Co., 108 Mo. 

588 658 

V. Simon, 91 Md. 1 533 
V. Storthz, 117 Ark. 418 86, 724 

V. Trenton, 53 N. J. L. 178 660 

V. Vanstone, 112 Mo. 315 '428 

V. White, 109 N. Y. 59 591 

V. Wilson, 85 Nebr. 167 283 

Wilt V. Cutler, 38 Mich. 189 117 
Wimpfheimer v. Prudential Ins. Co., 

56 N. J. Eq. 585 672 
Winans v. Peebles, 32 N. Y. 423 323 
Winch V. Bolton, 94 Iowa 573 65 
Winchester v. Hinsdale, 12 Conn. 88 677 
V. United States, 14 Ct. CI. 13 112 
Windley v. Swain, 150 N. Car. 356 612 
Wing V. Cooper, 37 Vt. 169 419 
Wingo V. Parker, 19 S. Car. 9 99 
Winn V. Strickland, 34 Fla. 610 98, 655 
V. Tabernacle Inf., 135 Ga. 380 474 
Winnipisiogee Paper Co. v. New Hamp- 
shire Land Co., 59 Fed. 542 270 
Winona & St. P. R. Co. v. Barney, 113 

U. S. 618 212 
Winsor v. Mills, 157 Mass. 362 47 
Winsted Sav. Bank &c. Assn. v. Spen- 
cer, 26 Conn. 195 282 
Winston v. Browning, 61 Ala. 80 577 
v. Hodges, 102 Ala. 304 280 
Winter v. Gorsuch, 51 Md. 180 312 
Wisby V. Bonte, 19 Ohio St. 238 105 
Wisconsin Cent. R. Co. v. Forsythe, 

159 U. S. 46 193, 212, 220 

V. Price County, 133 U. S. 496 212 

Witbeck v. Waine, 16 N. Y. 532 33 

Witcher v. Conklin, 84 Cal. 499 195 

Withers v. Jenkins, 14 S. Car. 597 64 
Wittenbrock v. Wheadon, 128 Cal. 150 

197 225 

Witter, In re, 15 N. Y. S. 133 ' 720 

Wixon v. Devine, 91 Cal. 477 98 

Wolbert v. Beard, 128 Wis. 391 59 

Wolf V. Batchelder, 56 Pa. St. 87 534 

V. Frost, 4 Sandf. Ch. (N. Y.) 72 61 

Wolfe V. Dyer, 95 Mo. 545 120 

V. Hatheway, 81 Conn. 181 483 

V. Hines, 93 Ga. 329 359 

V. Mueller, 46 Colo. 335 457 

Woman's Union Missionary Soc. of 

America v. Mead, 131 111. 33 481 

Wommack v. Whitmore, 58 Mo. 448 274 

Wood V. Augustine. 61 Mo. 46 355 

V. Boyd, 145 Mass. 176 275 

V. Bullard, 151 Mass. 324 464 

V. Cochrane, 39 Vt. 544 120 

V. Colvin, 5 Hill (N. Y.) 228 615 

V. Fowler, 26 Kans. 682 104 

V. Goodridge, 6 Cush. (Mass.) 117 280 

V. Hammond, 16 R. I. 98 458 

V. Holly Mfg. Co., 100 Ala. 326 417 

V. Kerkeslager", 227 Pa. 536 371 

V. Little, 35 Maine 107 670 

V. Lordier, 115 Ind. 519 123 

V. Mann, 3 Sumn. (U. S.) 318 592 

V. Matthews, 53 Ala. 1 492 
V. Mitchell, 61 How. Pr. (N. Y.) 

48 730 

V. Pittman, 113 Ala. 207 223, 229 

V. Price, 79 N. J. Eq. 620 434 

V. Ruland, 10 Mo. 143- 21 



Ixxxii 



TABLE OF CASES 



[References are to Sections.] 



Wood 

V. Rusher, 42 Minn. 389 301 

V. Watson, 107 N. Car. 52 570 

V. Wood, 150 Ind. 600 602 

V. Wood, 83 N. Y. 575 320, 479 

Woodbury v. Fisher, 20 Ind. 387 120 

V. Manlove, 14 Ilh 213 124 

Woodcock's Appeal, In re, 103 Maine 

214 466 

Woodgate v. Fleet, 44 N. Y. 1 98 

Woodhull V. Longstreet, 18 N. J. L. 

405 327 

Woodman v. Madigan, 58 N. H. 6 43 

Woodmere Cemetery v. Roulo, 104 Mich. 

595 109 

Woodruff V. Adair, 131 Ala. 530 358, 417 

V. Pleasants, 81 Va. 37 59 

V. Eoysden, 105 Tenn. 491 694 

V. Trenton Water Power Co., 10 

N. J. Eq. 489 113 

V. Woodruff, 44 N. J. Eq. 349 296 

Woods V. Farmere, 7 Watts (Pa.) 

382 99 

V. Garnett, 72 Miss. 78 126 

V. Wallace, 22 Pa. St. 171 419 

V. West, 40 Nebr. 307 147, 241 

V. Woods, 66 Maine 206 672 

Wood's Appeal, In re, 18 Pa. St. 478 724 
Wood's Appeal, In re, 82 Pa. St. 116 

117, 122 
Wood's Estate, In re, 36 Cal. 75 452 

Woodward v. Boro, 16 Lea (Tenn.) 

678 122 

V. James, 115 N, Y. 346 59 

V. Jewell, 140 U. S. 247 419 

V. Sloan, 27 Ohio St. 592 644 

Woodward, In re, 81 Conn. 152 718 

Woodworth v. Fulton, 1 Cal. 295 214 

Woolery v. Woolery, 29 Ind. 249 737 

Woolfolk V. Graniteville Mfg. Co., 22 

S. Car. 332 120 

Woollacott V. Chicago, 187 III. 504 239 

Woolverton v. Johnson, 69 Kans. 708 476 
Wooster v. Handy, 23 Fed. 49 560 

Wooten V. Steele, 109 Ala. 563 315 

Worcester Nat. Bank v. Cheeney, 87 

111. 602 117, 122 

Work V. United Globe Mines, 12 Ariz. 

339 699 

Worsham v. Freeman, 34 Ark. 55 120 

Worth V. Simmons, 121 N. Car. 357 668 
Worthen v. Garno, 182 Mass. 243 62 

Worthen & AldricH v. White Spring 

Paper Co., 74 N. J. Eq. 647 61 

Worthing v. Webster, 45 Maine 270 644 
Worthington v. Lee, 61 Md. 530 671 

W. P. Noble Mercantile Co. v. Mt. 

Pleasant Co-Op. Inst., 12 Utah 213 372 
Wright V. Denn, 10 Wheat. (U. S.) 

204 46 

V. Edwards, 10 Dree. 298 600 

V. Hutchinson, 156 III. 575 371 

V. Lassiter, 71 Tex. 604 118 

V. Lee, 2 S. Dak. 596 330 

V. Lore, 12 Ohio St. 619 719 

V. Mattison, 18 How. (U. S.) 50 

73, 688 

V. Roseberry, 121 U. S. 488 221 

V. Shimek, 8 Kans. App. 353 438 

V. Tichenor, 104 Ind. 185 73 

V. Waheford, 17 Ves. (Jr.) 454a 280 

V. Wright, 77 Fed. 795 286 

V. Wright, 100 Tenn. 313 87 

V. Young, 75 Kans. 287 491 

V. Young, 6 Ore. 87 351 

Wright Dalton-Bell-Anchor Store Co. 

V. St. Louis &c. R. Co., 142 Mo. 

App. 50 381 



Gaghan, 208 Pa. 



W. T. Bradley Co. 

511 ' 536 

Wunderle v. Wunderle, 144 III. 40 732 

Wyeth V. Stone, 144 Mass. 441 718 

Wyllie V. Pollen, 32 L. J. (N. S.) Ch. 

782 128 

Wylly-Gabbett Co. v. Williams, 53 Fla. 

872 419 

Wyman v. Taylor, 124 N. Car. 426 185 

Wynne v. Wynne, 23 Miss. 251 456 

Wythe V. Smith, 4 Sawy. (U. S.) 17 202 



Yackle v. Wightman, 103 111. 169 

563, 566, 577 
Yancey v. Radford, 86 Va. 638 321 

Yanish v. Tarbox, 49 Minn. 268 272 

Yarboroug v. Moore, 151 N. Car. 116 602 
Yard v. Murray, 86 Pa. St. 113 720 

V. Ocean Beach Assn., 49 N. J. 

Eq. 306 104 

Yeager v. Groves, 78 Ky. 278 659 

V, Tuning, 79 Ohio St. 121 61 

Yellow Jacket &c. Co. v. Stevenson, 5 

Nev. 224 51 

Yerkes v. Hadley, 5 Dak. 324 427 

V. Yerkes, 200 Pa. 419 484 

Yetter v. King &c. Co., 66 N. J. L. 

491 53 

Yocum V. Siler, 160 Mo. 281 46 

York V. Goodwin, 67 Maine 260 646 

Youghrogheny River Coal Co. v. Pierce, 

153 Pa. St. 74 63 

Youmans v. Youmans, 26 N. J. Eq. 

149 678 

Young V. Bradley, 101 U. S. 782 338 

V. Brand, 15 Nebr. 601 352 

V. Lohr, 118 Iowa 624 16, 19, 22 

V. Mahoning Co., 53 Fed. 895 268 

V. Morehead, 94 Ky. 608 65 

V. Pickens, 45 Miss. 553 570 

V. Rathbone, 1 C. E. Green (N. 

J.) 224 595 

V. Schoiield, 132 Mo. 650 616 

V. Sheldon, 139 Ala. 444 60, 335 

Youngblood V. Vastine, 46 Mo. 239 118 

Youngerman v. Polk County, 110 Iowa 

731 275 

Young's Estate, In re, 123 Cal. 337 487 

Young Women's Christian Assn. v. 

Spencer, 9 Ohio C. C. (N. S.) 351 631 
Younker v. Martin, 18 Iowa 143 439 

Youtz V. JuUiard, 10 Ohio Dec. 298 435 



Zacharia v. Cohen Co., 140 Iowa 682 283 
Zann V. Haller, 71 Ind. 136 262 

Zeigler v. Commonwealth, 12 Pa. St. 

227 21 

Zeile, In re, 74 Cal. 125 452 

Zeischang v. Helmke (Tex. Civ. Add.). 

84 S. W. 436 ^'^'' 392 

Zeisweiss v. James, 63 Pa. St. 465 458 

Zeust V. Staffan, 16 App. Cas. (D. 

C.) 141 64 

Ziegler v. Commonwealth, 12 Pa. St. 
.,.227 12, 13, 20, 21 

Zimmerer v. Stuart, 88 Nebr. 530 722 

Zmgsem v. Kidd, 29 N. J. Eq. 516 348 

^mkeisen v. Lewis, 71 Kans. 837 447 

Zoeller v. Riley, 100 N. Y. 102 546 

Zweigardt v. Birdseye, 57 Mo. App. 462 22 



TITLES AND ABSTRACTS 



CHAPTER I 



ABSTRACTS IN GENERAL 



SEC, 
1. 

2. 

3. 
4. 

5. 
6. 



9. 
10. 
11. 
12. 
13. 
14. 
15. 
16. 

17. 

18. 

19. 
20. 



Abstracts defined. 
Origin and history of abstracts. 
The object of an abstract. 
American and English methods 
distinguished. 

General requisites of an abstract. 
Sufficiency of abstract between 
vendor and vendee. 
Abstract showing good title. 
Period for which title should be 
shown. 

Qualifications of abstracters. 
Scope of abstracters' undertaking. 
Relation of trust and confidence. 
Who may make abstracts. 
Compensation of abstracters. 
Bond of abstracters. 
Nature of abstracter's liability. 
Liability for negligence or mis- 
take. 

Liability for failure to show 
liens or incumbrances. 
Measure of damages against ab- 
stractee. 

Actual damages sustained. 
Limiting liability of an abstracter. 



21. Liability of public officers exam- 
ining title. 

22. To whom an abstracter may be 
liable. 

23. When right of action accrues. 

24. Pleadings in action against ab- 
stracter. 

25. Agreement to furnish abstract. 

26. Duty to furnish abstract irrespec- 
tive of agreement. 

27. Contract by broker to furnish ab- 
stract. 

28. Requiring abstracts of parties to 
real actions. 

29. Abstract where records destroyed. 

30. Property in the abstract. 

31. Delivery of abstract. 

32. Tender of abstract after expira- 
tion of agreed time. 

33. Merger in deed of contract to de- 
liver abstract. 

34. Waiver of objections to title by 
taking possession. 

35. Time in which to examine ab- 
stract. 

36. Taxation of abstract books. 



§,1. Abstracts defined. — An abstract of title is a short 
methodically written or printed history of the title to a designated 
tract of land. It consists of a summary or an epitome of the 
material parts of every recorded instrument of conveyance which 
in any particular affects the land, or the title thereto, or any 
estate or interest therein, together with a brief statement of all 
liens and incumbrances to which the same may be subjected.^ In 
short, it is a summary or an epitome of facts relied on as evidence 
of the title to real estate;^ and may consist of a note of a single 



1 Smith v. Taylor, 82 Cal. 533, 23 
Pac. 217; Heinsen v. Lamb, 117 111. 
549, 7 N. E. 75. 



2 Taylor v. Williams, 2 Colo. App. 
559, 31 Pac. 504 ; Geithman v. Eichler, 
265 III. 579, 107 N. E. 180; McMillan 



§ Z TITLES AND ABSTRACTS ^ 

conveyance, as it always does where the grantee from the govern- 
ment furnishes an abstract of title.^ Some authorities hold that 
an abstract is not only a statement, in substance of what appears 
on the public records affecting title, but also a statement, in sub- 
stance, of such facts as do not appear upon the public records 
which are necessary to perfect the title/ But, as the term is gen- 
erally used in this country, it may be defined as a synopsis of 
what appears on the public records affecting the title to a tract of 
realty.^ In a legal sense, an abstract is a summary of facts relied 
on as evidence of title." Such facts are usually arranged in chro- 
nological order, and are intended to show the origin, cause, and 
incidents of the title without the necessity of referring to the 
original instruments or the records wherein they are recorded/ 

§ 2. Origin and history of abstracts. — While abstracts of 
title to real estate are now in general use throughout the civilized 
world, little can be said concerning their origin and history. Men- 
tion is made by English writers of their having been in use 
during the first half of the nineteenth century, but no attempt is 
made to fix a definite date when their use began. While titles 
were yet young and transfers comparatively few, there was little 
need for an abstract. Also when the value of landed property 
was comparatively insignificant, an abstract of the title was evi- 
dently regarded of little moment. But in the course of time 
transfers multiplied and values increased to such an extent that 
men became more concerned about their titles, and were loth to 
part with their money without assurance that the title proffered 
was free from defects. Before the adoption of a system of regis- 
tration the examination of a title had to be made from the in- 
struments themselves or from an abstract of such instruments. 
As these instruments or muniments of title were handed down 
from one owner to another there was great danger of some of 
them being lost or destroyed. The abstract not only obviated this 

V. First Nat. Bank, 56 Tex. Civ. App. s Smith v. Taylor, 82 Cal. 533, 23 

45, 119 S. W. 709; Nicholson v. Pac. 217; Union Safe Deposit Co. v. 

Lieber (Tex. Civ. App.), 153 S. W. Chisholm, 33 111. App. 647; Constan- 

641. tine v. East, 8 Ind. App. 291, 35 N. 

sHeinsen v. Lamb, 117 111. 549, 7 E. 844; Stevenson v. Polk, 71 Iowa 

N. E. 75. 278, 32 N. W. 340. 

*Hollifield V. Landrum, 31 Tex. « Geithman v. Eichler, 265 111. 579, 

Civ. App. 187, 71 S. W. 979; Spark- 107 N. E. 180. 

man v. Davenport (Tex. Civ. App.), 'Banker v. Caldwell, 3 Minn. 94. 
160 S. W. 410. 



3 ABSTRACTS IN GENERAL § 3 

danger, but greatly lessened the labor of counsel in passing upon 
the title. 

Systems of registration of land titles, more or less complete, 
have for a long time prevailed in Germany and France, and per- 
haps in other European countries; but prior to the adoption of 
the Torrens system of registration of titles in England in 1875, 
no general system of registration was employed in that country. 
This probably accounts for the general use of abstracts in Eng- 
land prior to the above mentioned date, and such use probably 
originated from the grantor's unwillingness to allow his title 
papers to go out of his possession before he parted with the title. 

There is no data giving the exact origin of abstracts in this 
country. In the earlier years of the republic little attention was 
given to titles to real estate. Purchasers usually relied upon an 
express warranty in the grantor's deed, and present possession 
was taken as a sufficient guarantee of ownership ; but as land val- 
ues increased, and the evidence of title began to multiply, pur- 
chasers began to part more cautiously with their money in ex- 
change for titles. It became no longer possible to examine a 
title by an inspection of the original instruments, most of which 
were lost; nor was it practical to laboriously , follow a chain of 
title through the records. It was this impossibility of preserving 
instruments affecting the title, as well as the impracticability of 
examining them in their entirety, that gave rise to the practice of 
assembling the essential parts of the recorded instruments in 
chronological order. 

§ 3. The object of an abstract. — The object of an abstract 
is to afford a prospective purchaser or mortgagee of real estate a 
speedy and convenient means for ascertaining the condition of 
the title. By its use the purchaser, or his attorney, may readily 
pass upon the validity of the title in question* without having to 
make a specific inspection of all the original instruments affecting 
the title, or without resorting to a laborious, search of the rec- 
ords." "It is a well-known fact that few persons purchase real 
estate at the present time without first obtaining from the vendor 

^ Taylor ,v. Williams, 2 Colo. App. Equitable Reversionary Interest Soc, 

SS9, 31 Pac. 504 ; Stevenson v. Polk, 28 Ch. Div. 416. 

71 Iowa 278, 32 N. W. 340 ; Pagan v. " Banker v. Caldwell, 3 Minn. 94 ; 

Hook, 134 Iowa 381, 105 N. W. 155, Stevenson v. Polk, 71 Iowa 278, 32 N. 

Ill N. W. 981; Kane v. Rippey, 22 W. 340. 
Ore. 296, 23 Pac. 180; Burnaby v. 



8 4 TITLES AND ABSTRACTS 4 

an abstract of the vendor's title, and with the view of having such 
title passed upon by some one learned in the law."^" 

The value of an abstract of title consists not only in the infor- 
mation it contains, but also in the form and arrangement of such 
information so that it may be used with ease and safety. It 
should set forth the contents of every instrument of record 
affecting the title, so full that no reasonable inquiry shall remain 
unanswered, so brief that the mind of the examiner shall not be 
distracted by irrelevant details, so methodical that counsel may 
form an opinion on each conveyance as he proceeds in his perusal, 
and so clear that no new arrangement or dissection of the evi- 
dence shall be required. When thus prepared, abstracts will 
serve as a safe and convenient guide to purchasers or to investors 
in real estate securities. 

§ 4. American and English methods distinguished. — 

While the terms "abstract" and "examination" are practically 
synonymous, and are used interchangeably by the profession, the 
latter term is given the preference by our abstracters in order to 
define the scope of their inquiry, as compared with the narrow 
and confined method employed by English abstracters. English 
abstracts show only the interest of some one individual in the 
property, rather than the general condition of the title. The 
origin and course of title to real property in England can not be 
shown for any considerable period of time owing to the nature 
of land tenures and the peculiar conditions attending the owner- 
ship of real estate in that country. The period covered by the 
abstract must be at least sixty years, and usually commences with 
a deed or will, and sometimes with a descent. Such an abstract 
would serve no useful purpose in this country, where title is fre- 
quently claimed through different channels from the same source, 
and where adverse titles often have an independent origin. While 
our abstracts are confined, as a rule, to matters of record, they 
present a far wider range by inquiring into every matter in any 
way affecting the title, in whomsoever it may rest, and regardless 
of how it may have been acquired. Hence the American abstract 
of title possesses none of the personal features that are character- 
istic of the English abstract, but is more in the nature of an ex- 
amination in rem. English abstracts of title are prepared from 

10 Taylor v. Williams, 2 Colo. App. 559, 31 Pac. 504. 



5 ABSTRACTS IN GENERAL § 5 

the original unrecorded instruments of conveyance and transfer, 
and from family histories or pedigrees. It is customary for the 
attorney for the vendor to prepare the abstract and deliver it, 
together with the original documents, to the vendee's attorney, 
who thereupon proceeds to compare the abstract with such orig- 
inal documents to ascertain if it contains a correct statement of 
all the circumstances disclosed by them relative to the title. Until 
such abstract and title-papers are furnished the vendee, he is not 
bound to accept a deed or pay the purchase-money. Upon the 
vendee, however, devolves the labor or expense of verifying the 
abstract and of ascertaining if it correctly sets forth the original 
instruments. He must determine if the title proffered is one 
which he is satisfied to accept. If he finds objections to the title 
he must -certify his objections within a limited time, or be deemed 
to have waived them. But when these objections are signed by 
the attorney for the vendee and seasonably sent to the vendor or 
his attorney they become a part of the obstract.^^ In the eastern 
states of this country the English method of making abstracts is 
followed somewhat closely, but in the middle and western states 
abstracters have departed from the conventional system used in 
England and in the colonial states of this country. The laws of 
the various states require that deeds, mortgages, and other evi- 
dences of title be filed for record in the office of an official elected 
for the purpose of copying them in permanent books prepared 
and kept for this purpose. These books are public records and 
may be examined by any one. It is from these public records, 
and not from the original documents, that our abstracts are pre- 
pared. The abstracter collects and condenses the information 
found in the records and arranges it in chronological order for 
the convenience of the attorney who is to pass upon the title. 
Where land values are relatively important, or where titles have 
become complicated, abstracts are used; but it would seem that 
their use, in jurisdictions where instruments are required to be 
recorded, is regulated rather by convenience and courtesy of the 
parties than by and distinct recognition of the English custom 
as a part of our law of conveyancing. 

§ 5. General requisites of an abstract. — Generally speak- 
ing, an abstract, as a summary or epitome of title to real estate, 

^1 Lee on Abstracts, p. *3. 



§ 5 TITLES AND ABSTRACTS O 

should contain the material or operative parts of all conveyances, 
transfers, and all other facts relied on as evidence of title, to- 
gether with all such facts appearing of record as may impair the 
title. It should contain a full summary of all grants, convey- 
ances, virills, and all records and judicial proceedings whereby 
the title is in any way affected, and all encumbrances and liens of 
record, and show whether they have been released or not." It 
should include a concise statement of what appears on the public 
records affecting the title to the property in question, whether it 
shows an equitable title, a legal title, or no title at all.^^ It should 
contain whatever concerns the source of title and its condition. 
Not only should the descent and line of the title be clearly traced 
out, and all encumbrances, all chances of eviction, or adverse 
claims, be shown, but material parts of all patents, deeds, wills, 
judicial proceedings, and other records or documents which in 
any way affect the title to the property in question.^* Just how 
full or minute a description of any of the instruments noted 
should be given is, perhaps, to a certain extent, a matter for the 
abstracter to decide,^^ although in so far as he undertakes to de- 
scribe them he must see that the description is accurate.^" It has 
been said that an abstract of title should be "so full that no rea- 
sonable inquiry shall remain unanswered, so brief that the mind 
of the reader shall not be distracted by irrelevant details, so 
methodical that counsel may form an opinion on each conveyance 
as he proceeds in his reading, and so clear that no new arrange- 
ment or dissection of the evidence may be required."^' But unless 
there is a contract expressly; requiring it, the abstract need not 
generally show matters not of record, or all the facts and circum- 
stances connected with the conveyances which might affect the 
title, such as possession, or, who were the legal heirs of the de- 
ceased owner where administration was not had within the juris- 
diction. Nor is it necessary to state that descriptions of the 
premises in the various instruments are inconsistent f-^ nor is it 

i^Heinsen v. Lamb, 117 III. 549, 7 "Equitable Bldg. &c. Assn. v. 

N. E. 75 ; Attebery v. Blair, 244 111. Bank of Commerce &c. Co., 118 Tenn. 

363, 91 N. E. 475, 135 Am. St. 342. 678, 102 S. W. 901, 12 L. R. A. (N. 

" Smith V. Taylor, 82 Cal. 533, 23 S.) 449n, 12 Ann. Cas. 407. 

Pac. 217; Union Safe Deposit Co. v. " Curwen Abstr. Tit., § 36. 

Chisholm, 33 111. App. 647. is American Trust Invest. Co. v. 

"Taylor v. Williams, 2 Colo. App. Nashville Abstract Co. {Tenn. Ch.), 

559, 31 Pac. 504. 39 S W 877 

15 Wacek v. Frink, 51 Minn. 282, 53 
N. W. 633, 38 Am. St. 502. 



7 ABSTRACTS IN GENERAL § 6 

required that the abstract contain an opinion as to the legal eftect 
of any of the instruments noted.^" While it is not generally a part 
of the duty of an abstracter to go outside the record to search 
for facts affecting the title to real estate, still he must furnish to 
an intended purchaser, by means of the abstract, everything per- 
taining to the names and to the property in question, so far as 
appears from the record, that reasonably might affect such title, 
and thus put the purchaser on inquiry, in order that such pur- 
chaser may himself make the proper investigation as to the out- 
side facts/" When the abstract is prepared to cover a limited 
period only, it need not include anything of record outside such 
period.^^ Likewise, if it is prepared to cover certain records, it 
need not include anything outside such records. ^^ 

§ 6. Sufficiency of abstract between vendor and vendee. — 

When a contract for the sale and purchase of land provides that 
the vendor shall furnish the vendee with an abstract of the title, 
the only fair interpretation of such contract is that a full abstract 
of the title is to be furnished, which must show on its face a good 
title in the vendor/^ Where the contract provides that the ab- 
stract shall show a marketable title, the vendor will not be per- 
mitted to show by evidence outside the abstract that the title is 
good,^* nor will the purchaser be required to go outside the ab- 
stract in examining the title.^^ The vendor can not resort to parol 
evidence to remove doubts from the title, if, by the terms of the 
contract, he is to furnish a "good title of record,"^^ or if he con- 
tract in express terms that the title shall be free from encum- 
brances.^^ 

Under a contract providing that an abstract showing a good 
title shall be furnished, a vendee is entitled to demand that the 

i^Wacek v. Frink, 51 Minn. 282, 53 N. W. 340; Kane v. Rippey, 22 Ore. 

N. W. 633, 38 Am. St. 502. 296, 23 Pac. 180. 

20 Stephenson v. Cone, 24 S. Dak. 24 Parker v. Porter, 11 111. App. 
460, 124 N. W. 439, 26 L. R. A. (N. 602. 

S.) 1207n. 25 Horn v. Butler, 39 Minn. 515, 40 

21 Wakefield v. Chowan, 26 Minn. N. W. 833. 

379, 4 N. W. 618. 28 Benson v. Shotwell, 87 Cal. 49, 

22 Thomas v. Carson, 46 Nebr. 765, 25 Pac. 249 ; Sheehy v. Miles, 93 Cal. 
65 N. W. 899. 288, 28 Pac. 1046; Page v. Greeley, 

23 Smith V. Taylor, 82 Cal. 533, 23 75 111. 400 ; Coray v. Matthewson, 7 
Pac. 217; Taylor v. Williams, 2 Colo. Lans. (N. Y.) 80, 44 How. 80. 

App. 559, 31 Pac. 504 ; Constantine v. 27 Evans v. Taylor, 177 Pa. St. 286, 
East, 8 Ind. App. 291, 35 N. E. 844 ; 35 Atl. 635, 69 L. R. A. 790. 
Stevenson v. Polk, 71 Iowa 278, 32 



§ 7 TITLES AND ABSTRACTS O 

abstract disclose a marketable title free from encumbrances and 
defects, and as to which there is no reasonable doubt.^* In such 
a case an abstract which fails to show whether there were judg- 
ments against or convenances by the vendor, is insufficient,^" but 
an abstract furnished by a vendor is not insufficient because it 
fails to show that an acknowledgment taken in another state bore 
a notarial seal, when the law of such state provides that an offi- 
cial seal shall not be necessary to the validity of a certificate of 
acknowledgment. But even though a seal is required, the letters 
"L. S." in an abstract of title, following the name of a notary in 
a certificate of acknowledgment, sufficiently indicates that an offi- 
cial seal was attached to such certificate.^" Where the agreement 
was to purchase certain real estate "on delivery of a warranty 
deed, conveying clear title, with abstract," it was held that the 
purchaser could insist upon the delivery of an abstract showing 
clear title as a condition precedent, and that upon default in fur- 
nishing such an abstract he could maintain an action for pur- 
chase-money paid.*^ The fact that the vendor can show title by 
adverse possession does not change the above rule.^^ 

Where the contract of sale required the vendor to furnish a 
satisfactory abstract of title and give a quitclaim or special war- 
ranty deed, it was held that no undertaking as to the character 
of the title to be conveyed was implied, but, on the contrary, it 
shows that the vendor assumes no responsibility as to the title 
any further than it may have been affected by his own acts.^^ 

§ 7. Abstract showing good title. — Where the vendor 
agrees to convey to the vendee "by warranty deed with abstract 
showing good title," this has reference to the record title, which 
may be epitomized in the abstract, and is a condition precedent to 
the vendor's right to demand the deferred payments.^* Where 
the contract calls for an abstract showing a good title, nothing 
less than this will satisfy the condition, no matter what the ven- 

28 Vought V. Williams, 120 N. Y. 3i Smith v. Taylor, 82 Cal. 533, 23 

l^^' l^ ^.%F-}?^' ^ L- ^- ^- 591. 17 Pac. 217; Taylor v. Williams, 2 Colo. 

Am. St. 634 ; Moot v. Business Men's App. 559, 31 Pac. 504 

Assn., 157 N. Y. 201, 52 N. E. 1, 45 32 Constantine v. East, 8 Ind. App. 

L. R. A. 666; Gates v. Parmley, 93 291, 35 N. E 844 

Wis. 294, 66 N. W. 253, 67 N. W. 739. sa pitch v. Wiliard, 73 111 92 

2» Union Safe Deposit Co. v. Chis- s* Lessenich v. Sellers, il9 Iowa 

holm, 33 111. App. 647. 314, 93 N. W. 348; Pagan v. Hook, 

30 Bucklen v. Hasterlik, 155 111. 423, 134 Iowa 381, 105 N. W 155 
40 N. E. 561. 



y ABSTRACTS IN GENERAL g « 

dor's real title may be, and in an action for specific perform- 
ance brought by him he has the burden of proving that he, in 
fact, complied with the condition/^ Where a contract of sale 
provided: "Ten days given to examine title; and if, upon exam- 
ination of the records, it shall appear that any material act or 
thing is necessary to be done or performed in order to perfect 
the title to said premises, which the seller is unable to do or per- 
form within a reasonable time, not exceeding sixty days from 
date hereof, then the sale to be void at the option of either 
party," it was held that the purchaser was not required to accept 
the title where it depended solely on adverse possession.^" A 
purchaser will not be compelled to accept a title that is not clear, 
or to assume the risk of subsequent litigation.'^ 

An agreement to convey a perfect title contemplates that such 
a title shall be fairly deducible of record. No reasonable doubt 
should exist respecting the validity of the title, and it should be 
free from litigation, palpable defects and grave doubts, and it, 
should consist of both legal and equitable titles.^* 

§ 8. Period for which title should be shown. — According 
to the Old English rule an abstract was required to show title for 
sixty years or more prior to the date of making, but .the period 
has been greatly lessened as a result of the shortening of the 
time necessary to bar an action for real property. By the Vendor 
and Purchaser Act of 1874, an abstract that shows title for forty 
years in sufiicient. '* But by the same act, recitals in deeds over 
twenty years old are prima facie evidence of facts recited, and 
when the title begins from a deed over twenty years old, reciting 
seisin in fee, the vendee can not demand that the abstract run 
back further, except so far as he may prove the recitals inac- 
curate.^" 

There is no rule in this country requiring that the abstract shall 
cover a certain period, but the universal custom is to carry the 
title back, where possible, to the original patent from the govern- 
ment. In the older states this is impossible because of the condi- 

SB Sheehy v. Miles, 93 Cal. 288, 28 ^s Turner v. McDonald, 16 Cal. 

Pac. 1046; Brown v. Widen (Iowa), 177, 18 Pac. 262, 9 am. St. 189; 

103 N. W. 1S8. Sheehy v. Miles, 93 Cal. 288, 28 Pac. 

36 Noyes v. Johnson, 139 Mass. 436, 1046. 
31 N. E. 767. S9 In re Johnson, 30 Ch. Div. 42. 

3^ Cunningham v. Blake, 121 Mass. ^" Bolton v. London School Board, 

333; Butts v. Andrews, 136 Mass. 221. 7 Ch. Div. 766. 



§ 8 TITLES AND ABSTRACTS 10 

tion of the early records. In such cases it would seem that the 
title should be shown for a period of forty years. In any event 
his examination should be carried back until he arrives at what is 
commonly "called the "root of title." By this phrase is meant a 
title existing in some one through whom the vendor claims for 
such length of time as would bar any adverse claim existing at 
the beginning of that period, including all savings in favor of 
persons under legal disabilities." 

When an abstracter is employed to make an abstract of title 
to certain lands from and after a specified date, he is not bound to 
inquire as to the existence of judgments entered or conveyances 
recorded prior to that date. He need not inquire or certify as to 
any lien arising under any such prior judgment, though the same 
attached to and became operative upon the land after that time ; 
nor is he required to inquire or state whether the title vested in 
any grantee during the period covered by the contract was af- 
fected by any prior conveyance or any estoppel growing out of 
any covenants therein.*^ It has been held that deeds recorded be- 
fore the grantor has any record title, may be safely disregarded 
in an examination of title under a system of registration and 
notice which provides that such deeds are not constructive notice 
to an innocent purchaser, and the abstracter is not bound to look 
for deeds of any person through whom the title passes, before 
the date of his record title.*' However, the safer plan would be 
to extend the search back at least to the date of the execution of 
the recorded deed. A grantee purchasing subsequent to the deed 
conveying the legal title to his grantor is not charged with notice 
of a mortgage by his grantor, made and recorded before the lat- 
ter obtained title.** A search for mortgages against the holder of 
the title to the property in question should begin from the time 
of the conveyance to him, and a mortgage on the property given 
by him and recorded before the date of the deed to him will not 
be constructive notice.*'' When the abstracter finds a deed or 
other instrument filed for record on a certain day, he should ex- 

« Paine v. Meller, 6 Ves. 347; Funk, 68 Mo. 18, 30 Am. Rep. 771; 

Cooper V. Emery, 1 Phil. 388. Farmers Loan &c. Co. v. Maltby, 8 

«2 Wakefield v. Chowan, 26 Minn. Paige Ch. 361 

379, 4 N. W. 618. , , _ « State v. Bradish, 14 Mass. 296; 

*3 State V. Bradish, 14 Mass. 296; Calder v. Chapman, S2 Pa. St. 359, 91 

Dodd V. Wilhams, 3 Mo. ,App. 278. Am. Dec. 163 ; McCusker v. McEvey, 

** Morse v. Curtis, 140 Mass. 112, 10 R. I. 606. 
2 N. E. 929, 54 Am. St. 456; Turk v. 



11 ABSTRACTS IN GENERAL § 9 

amine the records for the whole of that day. While it may be 
said that the law takes notice of fractions of days as to the time 
of filing instruments for record, the general rule that the law 
takes no notice of fractions of days applies to the execution of 
deeds and mortgages, where the hour of their execution does not 
appear. The rule requires the abstracter to go back in his search 
to the time of the execution of the deed, and where the deed does 
not show the hour of its execution, he should commence his 
search at the beginning of the day.*' 

§ 9. Qualifications of abstracters. — A person who holds 
himself out as an abstracter of titles to real estate, impliedly un- 
dertakes that he possesses the requisite knowledge and skill for 
such employment, and, if he contracts to render such service he 
is bound to exercise ordinary skill and care in making such ab- 
stract.*' An abstract company engaged in the business of making 
and selling abstracts of title, thereby represents to the purchaser 
of such abstracts that its employes are competent and qualified to 
make examinations of the records and to furnish such abstracts, 
and that the purchaser may safely rely upon the statements and 
representations contained in the abstract and certificate thereto.*^ 
It has been said that in preparing an abstract, no professional 
opinion as to the legal effect of the instruments abstracted is re- 
quired; that the abstracter has only to furnish the facts from the 
records, and the purchaser, mortgagee or his counsel, determines 
for himself their sufficiency.*® And yet, by their profession, ab- 
stracters are required to have a sufficient knowledge of the law 
to know what constitutes and what does not constitute a lien upon 
real estate, and to use sufficient diligence to find any such encum- 
brances when properly made a matter of record, so as to affect all 
parties interested with notice.^" 

The preparation of a perfect abstract of title to a tract of land, 
including all the instruments of conveyance and transfer, to- 
gether with all the encumbrances which affect it, involves the 
exercise of mucii legal knowledge and careful research. The per- 

*' Higgins V. Dennis, 104 Iowa 605, *» West Jersey Title &c. Co. v. 

74 N. W. 9. Barber, 49 N. J. Eq. 474, 24 Atl. 381 ; 

" Brown v. Sims, 22 Ind. 317, S3 Dickie v. Abstract Co., 89 Tenn. 431, 

N. E. 779, 72 Am. St. 308. 14 S. W. 896, 24 Am. St. 616. 

*8 Hillock v; Idaho Title &c. Co., soDodd v. Williams, 3 Mo. App. 

22 Idaho 440, 126 Pac. 612, 42 L. R. 278. 
A. (N. S.) 178. 



§ 10 TITLES AND ABSTRACTS 12 

son who undertakes its preparation must understand fully all the 
laws on the subject of conveyancing, descent and inheritances, 
uses and trusts, devises, and, in fact, every branch of the law 
that can affect real estate in its various mutations from owner 
to owner, sometimes by operation of law, and sometimes by act 
of the parties.''^ Just what constitutes a lien upon real estate may 
be a difficult question in some cases to decide ; but the abstracter 
is bound to know the state of the law on the subject, at least suffi- 
ciently to put him on his guard ; and where there may be a rea- 
sonable doubt as to whether such or such a recorded instrument is 
a lien, if he choose to resolve the doubt he does so at his own 
peril. If, for instance, it be possible that a deed given and re- 
corded before the grantor has any record title can be good against 
a subsequent purchaser without actual notice, of the same prop- 
erty from the same grantor, the abstracter will be bound to look 
for all conveyances of every grantor in the chain of title, up to the 
time the title passes out of such grantor or alienor. While an ab- 
stracter may become very proficient in his work without a thor- 
ough knowledge of the law .pertaining to the subject mentioned, 
yet he will find it much to his advantage to possess at least a 
knowledge of the fundamental principles pertaining thereto. But 
any mistakes he may make concerning matters of difficulty where 
the law is unsettled does not render him liable. The abstracter 
must also be perfectly familiar with the system of surveying and 
describing land which prevails in the United States, and must be 
able to construct a diagram or plat of the property which is de- 
scribed according to courses and distances. 

In case the abstracter does not choose to assume the liability 
which the law imposes upon him he may avoid it by noting in his 
certificate every question which arises upon the title as to which 
there can be the slightest doubt in the legal mind, or by giving a 
list of deeds and encumbrances, and abstaining from expressing 
any opinion as to their legal effect." 

§ 10. Scope of abstracter's undertaking. — The nature and 
scope of an abstracter's duties may be prescribed and limited by 
contract ;^^ but in the absence of an express contract defining the 
scope of an abstracter's duties, he impliedly agrees to exercise 

51 Banker v. Caldwell, 3 Minn. 94. =3 Wakefield v. Chowen, 26 Minn. 

52 Dodd V. Williams, 3 Mo. App. 379, 4 N. W. 618 ; Thomas v. Carson, 
278. 46 Nebr. 765, 65 N. W. 899. 



13 ABSTRACTS IN GENERAL § 10 

due and ordinary care in the performance of his task." He is 
bound to disclose to the person employing him all pertinent in- 
formation acquired by him in the course of his examination, and 
to set forth whatever concerns the sources of title and its condi- 
tions, whether these tend to confirm the title or to impair it.^' He 
must present a summary of the records of all grants, patents, 
conveyances, wills, documents and all judicial proceedings which 
may affect the title in any way; also all mortgages, judgments, 
taxes, assessments, mechanic's liens, lis pendens notices, or other 
liens which may encumber the title in any degree. He must note 
all unsatisfied liens, although he doubts their validity.^" He must 
set out every part of an instrument which may have any bearing 
on the condition of the title, and his employer is entitled to as- 
sume that any part not so set out has no bearing on the title." 
But it is not implied that he should show matters not of record, 
or all the facts and circumstances connected with the conveyances 
which might -affect the title, such as possession, names of legal 
heirs, and matters of a similar character. It would seem that he 
is only bound to exercise reasonable care, diligence and skill in 
preparing the abstract, and that the element of guaranty does not 
enter into the employment.^* His examination must be of the 
actual records, ^^ and he is not justified in relying upon marginal 
notes and references."" "One who undertakes the examination 
of titles, for compensation, is liable for want of ordinary care 
and skill in the performance of that task. To furnish abstracts 
of title is a business — a sort of profession.- The party under- 
taking it assumes the responsibility of discharging his duty in a 
skilful and careful manner. That is just what he is paid for do- 
ing. Patience in the investigation of records is the main capacity 
required. There are no professional opinions required of the 
abstracter. It is his duty to furnish facts from the records, with- 
out concern for their legal effect. Upon the facts furnished the 

s^Lattin v. Gillette, 95 Cal. 317, 30 =7 gurnaby v. Equitable Reversion- 

Pac. 545, 29 Am. St. 115; Chase v. ary Interest Soc, 54 L. J. Ch. 466, 52 

Heaney, 70 III. 268. L. T. (N. S.) 350. 

=5 Smith V. Taylor, 82 Cal. 533, 23 ^s Thomas v. Schee, 80 Iowa 237, 

Pac. 217 ; Taylor v. Williams, 2 Colo. 45 N. W. 539. 

App. 559, 31 Pac. 504 ; Heinsen v. so Wacek v. Frink, 51 Minn. 282, 53 

Lamb, 117 111. 549, 7 N. E. 75 ; Banker N. W. 633, 38 Am. St. 502. 

V. Caldwell, 3 Minn. 94; Kane v. e" Wacek v. Frink, 51 Minn. 282, S3 

Rippey, 22 Ore. 296, 23 Pac. 180. N. W. 633, 38 Am. St. 502. 

=6 Oilman v. Hovey, 26 Mo. 280^ 



§ 11 TITLES AND ABSTRACTS 14 

purchaser must make his own examination, and determine for 
himself on their sufficiency."" 

The scope of an abstracter's duties may be defined by an agree- 
ment between the parties. Thus, where the agreement was to make 
and furnish a correct record abstract of title to certain lands 
from and after a specific date, there is no obligation to note upon 
the abstract an unsatisfied judgment against one of the grantees 
of the title, and which judgment only appears of record prior to 
that date, though the same becomes a lien upon the premises after 
that time."^ It has been held, however, that an abstracter in 
searching the records for a chain of title, should not stop at the 
day and hour at which the evidence of a title in a certain grantee 
is filed for record, but should go back to the date of that title 
as shown by the record; for the grantee may have made con- 
veyances affecting the title between the dates of his receiving title 
and recording his deed."^ 

§ 11. Relation of trust and confidence. — Persons engaged 
in the business of preparing abstracts of title occupy a relation 
of trust and confidence toward those employing them, which is 
second only in the sacredness of its nature to the relation which 
an attorney sustains to his client. Such persons consult the evi- 
dence of ownership and become familiar with the chains and his- 
tories of title. They handle private title papers, and become 
aware of whatever weaknesses or defects may exist in the legal 
proceedings through which the ownership of real property is se- 
cured. They should be held to a strict responsibility in the exer- 
cise of the trust and confidence which are necessarily reposed in 
them.'* 

Where the abstracter, in addition to making the abstract, un- 
dertakes to advise his employer as to whether his examination 
discloses a good and marketable title, he assumes the same re- 
sponsibilities and owes such employer the same duty as if he were 
an attorney. This involves upon his part the exercise of due 
care and skill in investigating the title, and the utmost frankness 
toward his employer in disclosing the result of his investigation, 
and in advising the proper course to pursue in view of the facts 

" Stephenson v. Cone, 24 S. Dak. es Higgins v. Dennis, 104 Iowa 605, 

460, 124 N. W. 439, 26 L. R. A. (N. 74 N. AV. 9. 

S.) 1207n. 6*Vallette v. Tedens, 122 111. 607, 

" Wakefield v. Chowen, 26 Minn. 14 N. E. 52, 3 Am. St. 502. 
379, 4 N. W. 618; Dodd v. Williams, 
3 Mo. App. 278. 



15 ABSTRACTS IN GENERAL § 12 

which have been discovered respecting the title.^^ Abstracters 
and attorneys who undertake to assemble all the evidence of title, 
or to advise their clients with reference thereto, but who make 
mistakes either intentionally or unintentionally, will be estopped 
from taking advantage of their own wrong by buying up out- 
standing titles that destroy the rights of those who trusted in 
them.°° But an abstracter is not precluded from purchasing an 
interest in land adverse to the title for which he has furnished 
a correct abstract to his client." An attorney at law, holding him- 
self out as a competent person to make and certify abstracts of 
title, and who induces parties to buy of him a tract of land by 
presenting them with an abstract of title thereto on which he cer- 
tified in writing that "he had carefully examined the title to said 
lands, and that the same was a full, true and complete abstract 
of said title," is liable for damages resulting to the purchasers 
on account of his fraudulent entries as to the character of his 
title.^^ 

§ 12. Who may make abstracts. — The business of exam- 
ining titles and making abstracts was formerly confined mainly 
to public officers having the custody and care of the records of 
instruments relating to the title to real estate,^" but in recent years 
the bulk of the business has been done by private individuals, 
partnerships and corporations.''" By statute in some states it is 
made the duty of local officers having charge of certain records 
relating to or affecting land titles to make and furnish searches 
of title when called upon for that purpose." The officer's duties 
under such statutes are not so extensive as those of private ab- 
stracters.^^ 

^= Gljm V. Title Guarantee &c. Co., Arizona, California, Colorado, Idaho, 

132 App. Div. 8S9, 117 N. Y. S. 424. Illinois, Minnesota, Montana, New 

^5 Marston v. Catterlin, 239 Mo. York, Oregon, Pennsylvania, South 

390, 144 S. W. 475. Carolina, Utah and Wyoming. See 

«^ Moore v. Empire Land Co., 181 also Lusk v. Carlin, 4 Scam. (111.) 

Ala. 344, 61 So. 940. 395 ; Kimball v. Connolly, 3 Keyes 

68 Thomas v. Schee, 80 Iowa 237, (N. Y.) 57, 2 Abb. Dec. 504, 33 How. 

45 N. W. 539. Prac. 247; Van Schaick v. Sigel, 58 

^^Glawatz v. People's Guaranty How. Pr. (N. Y.) 211; Ziegler v. 

Search Co., 49 App. Div. 465, 63 N. Commonwealth, 12 Pa. St. 227; 

Y. S. 691. Philadelphia v. Anderson, 142 Pa. St. 

■"> Allen V. Hopkins, 62 Kans. 175, 357, 21 Atl. 976, 12 L. R. A. 751 ; 

.61 Pac. 750 ; Glawatz ,v. People's Dirks v. Collin, 37 Wash. 620, 79 Pac. 

Guaranty &c. Co., 49 App. Div. 465, 1112. 

63 N. Y. S. 691. " Dirks v. Collin, 37 Wash. 620, 79 

^^ Such statutes will be found in Pac. 1112. 



§ 13 TITLES AND ABSTRACTS 16 

§ 13. Compensation of abstracters. — Statutes requiring 
public officers to make searches and furnish data for abstracts 
of title usually provide certain fees as compensation for their 
services/^ But where the provisions of a statute secure to the 
public the right to examine the records free of charge, the clerk is 
entitled to a fee only when he is required to make the search him- 
self ;'* and where the search is made by a private individual, with- 
out any service or assistance from the officer or his deputies, such 
officer is not entitled to any fees or compensation." The compen- 
sation of a private individual or a corporation engaged in the ab- 
stract business is regulated by the nature and terms of the em- 
ployment/^ and where such abstracter fails to comply with the 
terms of the employment the right to compensation will be de- 
nied/^ In the absence of an express agreement fixing the amount 
of compensation, the abstracter will be entitled to whatever his 
services are reasonably worth/^ Where the abstracter's compen- 
sation was based on an agreed price for each transfer, and there 
was a custom among abstracters to treat each successive step 
leading to a conveyance as a transfer, and not all the transactions 
taken together, it was held that the abstracter was authorized to 
make up his account on such theory/" 

§ 14. Bond of abstracters. — The statutes of some states 
require abstracters to give bonds with sureties as security against 
injury to the public records or against damages to their employ- 
ers from a lack of skill or care in the performance of their du- 
ties,^" but such statutory requirements do not create the business 

"Morse v. Lambe, 23 Ont. 608; Bowman, 27 Okla. 172, 111 Pac. 319, 

Ziegler v. Commonwealth, 12 Pa. St. 30 L. R. A. (N. S.) 642, Ann. Cas. 

227. 1912B, 839n. In Idaho a bond in the 

'* In re Chambers, 44 Fed. 786. penal sum of $10,000 signed by three 

75 State V. McMillan, 49 Fla. 243, sureties, residents of the county, 

38 So. 666; Burton v. Tuite, 78 Mich, must be given; in Kansas a bond for 

363, 44 N. W. 282, 7 L. R. A. 73. $5,000, with three or more sureties ; 

7" McVeigh v. Chicago Mill &c. Co., in Nebraska the bond must be for 

96 Ark. 480, 132 S. W. 638; Griffin $10,000 with not less than three sure- 

V. Arlt, 96 N. Y. S. 1033. ties ; in North Dakota the bond must 

" Griffin V. Arlt, 96 N. Y. S. 1033. be for $10,000 with not less than three 

■^8 Kenyan v. Charlevoix Imp. Co., sureties; in Oklahoma, $5,000 bond 

135 Mich. 103, 97 N. W. 407. with three sureties ; in South Dakota, 

79 McVeigh v. Chicago Mill &c. Co., $10,000 with three sureties ; in Utah, 

96 Ark. 480, 132 S. W. 638. bond for not less than $10,000 with 

8" Allen V. Hopkins, 62 Kans. 175, sureties to be approved by county 

61 Pac. 750; Thomas v. Carson, 46 commissioners. 
Nebr. 765, 65 N. W. 899; Walker v. 



17 ABSTRACTS IN GENERAL § 15 

of abstracting into a public office, nor constitute the abstracter a 
public officer.^^ Under some statutes the abstracter and his sure- 
ties are liable not only to the person employing the abstracter, 
but to all persons who purchase the land in reliance on the ab- 
stract.'^ Sureties liable on the bond of an abstracter, to a pur- 
chaser of land for the omission from the abstract of an outstand- 
ing mortgage on the land, are not discharged by an extension of 
time granted by the vendee to the vendor to make good his cove- 
nants of waranty against encumbrances contained in his deed/'' 
The sureties on the bond of an abstracter of titles can not be held 
liable for an error or omission of their principal occurring prior 
to the execution of the bond.'* 

§ 15. Nature of abstracter's liability. — That there exists 
a liability on the part of persons who engage in the business of 
searching records, examining titles and preparing abstracts for 
compensation, is well settled, but as to the nature of the liability 
thus assumed, the authorities have not been altogether in har- 
mony. It appears to be settled, however, that the contract is not 
one of indemnity, but merely an undertaking that the abstracter 
will faithfully and skilfully perform his work.'^ "The examiner 
of titles does not warrant. He is not liable except for negligence 
or want of necessary skill and knowledge. The contract made by 
him when he receives a fee and examines a title is not one of 
indemnity, but a contract that he will faithfully and skilfully do 
his work ; and this contract is broken, and an action lies for the 
breach of it, so soon as he, through negligence or ignorance of his 
business, delivers a false certificate of title. Where indemnity 
alone is expressed it has always been held that damage must be 
sustained before a recovery can be had; but, where there is a 
positive agreement to do the act which is to prevent damage to 
plaintiff, there the action lies if defendant neglects or refuses to 
do the act."'^ An action against an abstracter to recover dam- 
si Allen V. Hopkins, 62 Kans. 175, ^^ Dundee Mortgage Co. v. Hughes, 
61 Pac. 750. 20 Fed. 39; Thomas v. Schee, 80 

82 E. T. Arnold & Co. v. Earner, Iowa 237, 45 N. W. 539; Wacek v. 
91 Kans. 768, 139 Pac. 404, Ann. Cas. Frink, 51 Minn. 282, 53 N. W. 633, 38 
1915D, 446n. Am. St. 502. 

83 Allen V. Hopkins, 62 Kans. 175, se Rankin v. Schaeffer, 4 Mo. App. 
61 Pac. 750. 108. See also In re Negus, 7 Wend. 

8* Goldberg v. Sisseton Loan &c. ,(N. Y.) 499; Rowsey v. Lynch, 61 
Co., 24 S. Dak. 49, 123 N. W. 266, 140 Mo. 560. 
Am. St. 775. 

2 — TnoMP. Abstr. 



§ 16 TITLES AND ABSTRACTS 18 

ages for negligence in making or certifying an abstract of title 
does not sound in tort, but must be founded on contract ;" and 
the foundation of the action for damages is his implied promise 
to perform with care, diligence and sufKcient skill the duty under- 
taken for the compensation agreed upon.^^ Thus where an ab- 
stracter knew that the abstract was being made for the exclusive 
benefit and use of a certain person, and he kne^ that such person 
would rely thereon, and the abstract was delivered to such per- 
son, the abstracter was held liable.^^ But the remedy may be in 
tort where the injury or loss resulted from a conspiracy between 
the abstracter and others to defraud the plaintiff by leaving off 
instruments not covered by the certificate."" 

§ 16. Liability for negligence or mistake. — If an abstracter 
fails to make necessary searches, or searches without due care,, 
or fails to note in the abstract any material fact discovered in 
his search, he is liable to his employer for any damage the latter 
may sustain by reason of such failure or neglect."^ But before 
damages can be recovered it must appear that they are the direct 
result of the abstracter's negligence.^^ He impliedly agrees to ex- 
ercise reasonable care and skill in the performance of his under- 
taking, and if he fails to exercise this reasonable care and skill, 
he is liable for the injury that is the direct result of his neglect or 
want of skill."'' "It is elementary that one who undertakes, for 

87 Lattin V. Gillette, 95 Cal. 317, 30 W. 539 ; Smith v. Holmes, 54 Mich. 
Pac. 545, 29 Am. St. 115; Russell v. 104, 19 N. W. 767; Wacek v. Frink, 
Polk County Abs. Co., 87 Iowa 233, 51 Minn. 282, 53 N. W. 633, 38 Ara. 
54 N. W. 212, 43 Am. St. 381 ; St. 502 ; Oilman v. Hovey, 26 Mo. 280. 
Thomas v. Title &c. Co., 81 Ohio St. S2 Kimball v. Connolly, 42 N. Y. 
432, 91 N. E. 183, 26 L. R. A. (N. S.) 57, 33 How. Prac. 247, 2 Abb. Dec. 
1210; Bremerton Development Co. v. 504. 

Title Trust Co., 67 Wash. 268, 121 »3 National Sav. Bank v. Ward, 100 

Pac. 69. U. S. 195, 25 L. ed. 621 ; Lattin v. 

88 Chase v. Heaney, 70 111. 268; Gillette, 95 Cal. 317, 30 Pac. 545, 29 
Smith V. Holmes, 54 Mich. 104, 19 N. Am. St. 115 ; Hillock v. Idaho Title 
W. 767; Gilman v. Hovey, 26 Mo. & Trust Co., 24 Idaho 242, 133 Pac. 
280; Stephenson v. Cone, 24 S. Dak. 119; Brown v. Sims, 22 Ind. App. 
460, 124 N. W. 439, 26 L. R. A. (N. 317, 53 N. E. 779, 72 Am. St. 308; 
S.) 1207n ; Dickie v. Abstract Co., 89 Young v. Lohr, 118 Iowa 624, 92 N. 
Tenn. 431, 14 S. W. 896, 24 Am. St. W. 684; Renkert v. Title Guaranty 
616. Trust Co., 102 Mo. App. 267, 76 S. 

89 Denton v. Nashville Title Co., W. 641; Western Loan &c. Co. v. 
112 Tenn. 320, 79 S. W. 799. Silver Bow Abstract Co., 31 Mont. 
. 90 Thomas v. Carson, 46 Nebr. 765, 448, 78 Pac. 774, 107 Am. St. 435 ; 
65 N. W. 899. Security Abstract &c. Co. v. Long- 

91 Chase v. Heaney, 70 111. 268; acre, 56 Nebr. 469. 76 N. W. 1073; 
Thomas v. Schee, 80 Iowa 237, 45 N. Crook v. Chilvers, 99 Nebr. 684, 157 



19 ABSTRACTS IN GENERAL § 16 

a consideration, the examination of titles is liable for a fail- 
ure to exercise ordinary care in so doing. It is the general 
rule that the liability of an abstracter is based upon con- 
tract."'* The abstracter must examine the records themselves, 
and if he relies upon the indexes thereto or marginal refer- 
ences thereon, and damages result therefrom, he is liable for 
the loss.'^ Where a person informs the abstracter that he shall 
rely entirely upon the abstract, and the abstracter assures him 
that he may place, such reliance on the abstract, such abstracter, 
if he fails, through negligence, to set out in the abstract an ex- 
isting lis pendens, will be liable for such damages as may result 
from his negligence."^ But where an abstracter, without any 
fraudulent intent, makes a mistake in the abstract, the person em- 
ploying him can not hold such abstracter liable for a loss occa- 
sioned thereby unless he uses ordinary diligence in informing the 
abstracter of such mistake, where the loss could be averted, if 
the abstracter were so informed."' Nor can a party recover 
against an abstracter for a false certificate of title, where he does 
not examine the abstract or have some one to examine it 
for him."^ Damages for negligence are recoverable against 
a person engaged in searching the records and certifying 
to titles who undertakes to furnish a party a full abstract 
of title to land which the latter desires to purchase, if, in conse- 
quence of the careless omission therefrom of an incumbrance, the 
purchaser is put to additional expense to perfect the title."" 
Where an abstracter furnished an errbneous abstract to a hus- 
band who delivered it to a loan company to obtain a loari, and the 
loan company's attorney reported the title good, relying on the 
abstract for his opinion, and the company granted the loan, the 
abstracter having had no knowledge of the purpose for which the 

N. W. 617; Hershiser v. Ward, 29 v. Waco Abstract &c. Co., 16 Tex. 

Nev. 228, 87 Pac. 171 ; Economy Civ. App. 329, 40 S. W. 812. 

Bldg. &c. Assn. v. West Jersey Title »* Young v. Lohr, 118 Iowa 624, 92 

Co., 64 N. J. L. 27, 44 Atl. 854; N. W. 684. 

Byrnes v. Palmer, 18 App. Div. 1, 45 os Wacek v. Frink, 51 Minn. 282, 53 



N. Y. S. 479, 26 Civ. ; Proc. 382 
Washington County Abstract Co. v 
Harris, 48 Okla. 577, 149 Pac. 1075 
Watson V. Muirhead, 57 Pa. St. 161 
98 Am. Dec. 213 ; Stephenson v 
Cone, 24 S. Dak. 460, 124 N. W. 439, 



N. W. 633, 38 Am. St. 502. 

s^ Brown v. Sims, 22 Ind. App. 317, 
S3 N. E. 779, 72 Am. St. 308. 

°^ Roberts v. Leon Loan &c. Co., 63 
Iowa 76, 18 N. W. 702. 

^8 Trimble v. Stewart, 35 Mo. App. 



26 L. R. A. (N. S.) 1207n ; American 537. 

Trust Inv. Co. v. Nashville Abstract o" Smith v. Holmes, 54 Mich. 104, 

Co. (Tenn.), 39 S. W. 877; Puckett 19 N. W. 767. 



§ 17 TITLES AND ABSTRACTS 20 

husband wanted the abstract, it was held that the abstracter was 
not Hable to the loan company for damages due to his mistake.' 

§ 17. Liability for failure to show liens or incumbrances. 

—An abstracter has been held liable for damages sustained 
through his failure to disclose in the abstract the following liens 
or encumbrances against the estate : Prior deeds of conveyances 
duly recorded;' mortgages f sale of land for taxes;* judgments;' 
attachment suits;' and special assesments.' If an abstract refers 
to a will and purports to set out its contents as devising the land 
in fee, while in fact only a life estate was devised, the abstracter 
has not exercised a proper degree of care and skill, and if his 
employer is injured through his reliance on the abstract, he may 
recover damages to compensate him for his loss.^ But no recov- 
ery can be had against an abstracter for failure to report a judg- 
ment lien against the property where his employer had purchased 
the property before he made the examination, and advanced no 
money on the faith of the statement in the abstract." Nor is an 
abstracter liable to his employer beyond nominal damages for 
failure to note on an abstract a lien junior to his employer's claim 
of title, unless it appears that he has necessarily suffered special 
damages on account of such omission.^" 

§ 18. Measure of damages against abstracter. — The meas- 
ure of damages for an abstracter's failure to set out in the ab- 
stract the true condition of the title is his employer's actual loss, 
which is usually the amount which he had to pay to get the title, 
or to get the encumbrance removed." Where an abstracter failed 

1 Equitable Bldg. &c. Assn. v. Pac. 774, 107 Am. St. 435; Renkert 
Bank of Commerce, 118 Tenn. 678, v. Title Guaranty Trust Co., 102 Mo. 
102 S. W. 901, 12 L. R. A. (N. S.) App. 267, 76 S. W. 641. 

449n, 12 Ann. Cas. 407. ^ Security Abstract &c. Co. v. 

2 National Sav. Bank v. Ward, 100 Longacre, 56 Nebr. 469, 76 N. W. 
U. S. 195, 25 L. ed. 621 ; Washington 1073. 

County Abstract Co. v. Harris, 48 ' Morange t. Mix, 44 N. Y. 315. 

Okla. 577, 149 Pac. 1075; Dickie v. » Equitable Bldg. &c. Assn. v. 

Nashville Abstract Co., 89 Tenn. 431, Bank of Commerce, 118 Tenn. 678, 

14 S. W. 896, 24 Am. St. 616. 102 S. W. 901, 12 L. R. A. (N. S.) 

s Smith V. Holmes, 54 Mich. 104, 19 449n, 12 Ann. Cas. 407. 

N. W. 767; Thomas v. Carson, 46 » United States Wind Engine &c. 

Nebr. 765, 65 N. W. 899. Co. v. Linville, 43 Kans. 455, 23 Pac. 

4 Hillock V. Idaho Title &c. Co., 24 597; Roberts v. Sterling, 4 Mo. App 
Idaho 242, 133 Pac. 119; Chase v. 593. 

Heaney, 70 111. 268. lo Williams v. Hanley, 16 Ind. App. 

5 Western Loan &c Co. v. Silver 464, 45 N. E. 622. 

Bow Abstract Co., 31 Mont. 448, 78 "Chase v. Heaney, 70 111. 268; 



21 ABSTRACTS IN GENERAL § 18 

to show a deed in the abstract, it was held that a purchaser rely- 
ing on such abstract could recover damages from such abstracter 
to the extent of the Rrice paid for the land, reasonable attorney's 
fees, costs, and other necessary expenses incurred in an attempt 
to defeat the outstanding title, provided there was- a reasonable 
probability of defeating same.^^ But an abstracter is liable only 
for the damage which is the direct consequence of his error or 
mistake. He is not liable for any loss resulting to his employer 
on account of defects in the abstract to the extent such loss could 
have been averted or lessened, by prompt action on the part of 
such employer/^ Thus where" he has omitted a- mortgage from 
an abstract prepared for an intending purchaser of lands, he can 
not be held liable for any payments made after the purchaser 
has notice of the mortgage." But one who has suffered an injury 
by reason of an error in an abstract is not called upon to do an 
act which will not affect his own damages, though it would be of 
service to the abstracter.^^ Where a purchaser of land relied on 
an abstract furnished him by an abstracter, which failed to set 
out an attachntent on the land, and the land was afterward sold 
and a deed executed under the attachment before the purchaser 
had notice of the omission, the measure of such purchaser's dam- 
ages was held to be the value of the land and not the amount of 
the judgment in attachment.^" Where, by reason of an abstract- 
er's negligence, the abstract does not show a prior lien on the 
property, and his employer, in reliance on the abstract, makes a 
loan on the property, the employer is entitled to bring suit against 
such abstracter without waiting for any default in the mortgage 
and may recover the difference in value between the security he 
contracted for and that which he actually received." An abstracter 
is liable to a mortgagee for the entire amount loaned on a mort- 
gage, on the faith of the abstract showing no prior lien, when in 
fact the property was mortgaged for more than its value, and 
was exhausted to satisfy the first mortgage. ^^ 

Dodd V. Williams, 3 Mo. App. 278; i= Van Schaick v. Sigel, 60 How. 

Morange v. Mix, 44 N. Y. 315; Allen Pr. (N. Y.) 122, 9 Daly 383. 

V. Clark, 7 L. T. N. S. 781. is Security Abstract &c Co. v. 

12 Washington County Abstract Co. Longacre, 56 Nebr. 469, 76 N. W.. 
V. Harris, 48 Okla. 577, 149 Pac. 1075. 1073. 

13 Roberts v. Leon Loan &c. Co., 63 " Lilly v. Boyd, 72 Ga. 83 ; La 
Iowa 76, 18 N. W. 702; Kimball v. Wall v. Groman, 180 Pa. St. 532, 37 
Connolly, 42 N. Y. 57, 33 How. Pr. Atl. 98, 57 Am. St. 662. 

247, 2 Abb. Dec. 504. is Fox v. Thibault, 33 La. Ann. 32. 

"Brega V. Dickey, 16 Grant's Ch. 
(U. C.) 494. 



§ 19 TITLES AND ABSTRACTS 22 

§ 19. Actual damages sustained. — In an action against an 
abstracter to recover damages for loss sustained by a defective 
abstract, the plaintiff must show that he relief upon the abstract." 
If he relied upon the abstract and has sustained a loss thereby, he 
can recover damages against the abstracter, if the error was one 
that a person of ordinary care and skill in the business of making 
abstracts would not have made.^" The plaintiff must show that 
he had a right to rely on the abstract, and that actual injury has 
resulted to him. It is not enough to show that the abstract was 
defective, but it must be shown in addition thereto that actual 
loss resulted from it.^^ Unless something is bought and some- 
thing is parted with, there can, of course, be no damages.^^ "The 
damages in this class of cases should be confined to injuries which 
the court can see resulted in loss of title or impairment of some 
kind to the ownership or enjoyment of the property which was 
purchased on the faith of the abstract, and that such injury was 
the direct result of the defect complained of therein."^^ 

§ 20. Limiting liability of an abstracter. — An abstracter 
may limit his liability as to the correctness of the abstract and 
fullness of search to certain records, either by a specific contract 
to that effect or by specifying in his certificate the records, exam- 
ined.^* But he can not limit his liability by an obscure statement 
in his certificate without specifically calHug his employer's atten- 
tion thereto. If he finds it impossible to furnish a complete and 
reliable abstract, it is his duty to give his employer notice of the 
fact, that he may employ some one else ; otherwise such employer 
will have a right to rely on his competency and fidelity in this 
respect.^' A statement in the certificate to the effect that the ab- 

19 Young V. Lohr, 118 Iowa 624, 92 gine &c. Co. v. Linville, 43 Kans. 455, 
N. W. 684; United States Wind En- 23 Pac. 597; Kimball v. Connolly, 3 
gine &c. Co. V. Lmville, 43 Kans. 455, Keyes (N. Y.) 57, 2 Abb. Dec 504, 
23 Pac. 597; Hershiser v. Ward, 29 33 How. Pr. 247; Byrnes v Palmer 
Nev. 228, 87 Pac. 171 ; Equitable 18 App. Div. 1, 45 N. Y. S. 479, 26 
Bldg. &c. Assn. v. Bank of Com- Civ. Proc. 382 ; Puckett v Waco Ab- 
merce, 118 Tenn. 678, 102 S. W. 901, stract &c. Co., 16 Tex. Civ. Add 329, 
12 L. R. A. (N. S.) 449n, 12 Ann. 40 S. W. 812. 

*^^o^„-T?°^-- V, T,,. » . =2 Kimball V. Connolly, 3 Keyes 

20 Equitable Bldg. &c. Assn. v. (N. Y.) 57, 2 Abb. Dec. 504, 33 How. 
Bank of Commerce, 118 Tenn. 678, Pr. 247 

i?^ ^\7^^ ^°V^2 L R. A. (N. S.) =3 Denton v. Nashville Title Co.,' 

449n, 12 Ann. Cas. 407. 112 Tenn. 320, 79 S W 799 

_ 21 Batty v. Fout, 54 Ind. 482; Will- 2* Thomas v. Carson, 46 Neb--. 765, 

lams V. Hanley, 16 Ind. App. 464, 45 65 N. W. 899. i 

N. E. 622; United States Wind En- 25 chas v. Heaney 70 III 268 



23 ABSTRACTS IN GENERAL § 21 

stracter finds no conveyance or encumbrance affecting the title, Is 
equivalent to a statement that there are none.^" The liability of 
an abstracter is measured by his employment, and when he is 
engaged to search the records for liens only, or for deeds only, 
his liability will not, by implication, be so extended as to embrace 
liens or conveyances not disclosed by a search of the designated 
office or offides. In other words, in order to maintain an action 
upon the statutory undertaking of an abstracter, it is necessary to 
show that the act of omission or commission alleged as the cause 
thereof is a breach of the conditions, express or implied, of the 
particular engagement to which it relates.^^ So if the engagement 
is to make a correct abstract of title from a specified sale, the ab- 
stracter is not liable for a failure to note upon the abstract an 
unsatisfied judgment against a grantee in the chain of title, which 
only appears of record prior to that date, notwithstanding that 
the judgment becomes a lien upon the property after that time.^** 

§ 21, Liability of public officers examining titles. — By 
statute in some states abstracters are not permitted to search the 
public records; and in others they are required to pay a fee for 
the privilege of making a search. In such states, it is the prac- 
tice of the abstracter, after having ascertained the chain of title, 
to direct written requisitions to the proper official having custody 
of the records for searches for encumbrances or liens of record 
that may affect the property. Whenever, by law or 'custom, it is 
made a part of the duty of such official to make such searches, he 
is held liable for mistakes and omissions and false certificates of 
search, to the same extent as an abstracter.^" A duty sufficient to 
create such liability on the part of a public official need not be 
expressly created by statute, but may be created by custom, or 
may be implied from the fact that he may charge a fee for his 
services.^" When such liability exists the officer is liable for the 

26ZiegIerv. Commonwealth, 12 Pa. W. 767; Kimball v. Connolly, 42 N. 

St. 227; Philadelphia v. Anderson, Y. 57, 33 How. Pr. 247, 2 Abb. Dec. 

142 Pa. St. 357, 21 Atl. 976, 12' L. R. 504; McCaraher v. Commonwealth, 

A. 751; Tripp v. Hopkins, 13 R. I. 99. 5 Watts & S. (Pa.) 21, 39 Am. Dec. 

2' Thomas V. Carson, 46 Nebr. 765, 506; Ziegler v. Commonwealth, 12 

65 N. W. 899. Pa. St. 227; Houseman v. Girard 

28 Wakefield v. Chowan, 26 Minn. Bldg. &c. Assn., 81 Pa. St.' 256; Siew- 

379, 4 N. W. 618. ers v. Commonwealth, 87 Pa. St. IS ; 

=9Lusk V. Carlin, 4 Scam. (111.) Tripp v. Hopkins, 13 R. I. 99. 

395 ; Fox V. Thibault, 33 La. Ann. 32 ; s" Lusk v. Carlin, 4 Scam. (111.) 

Smith V. Holmes, 54 Mich. 104, 19 N. 395 ; Ziegler v. Commonwealth, 12 



§ 22 TITLES AND ABSTRACTS 24 

mistakes and omissions of his deputies, clerks, and persons in 
his employ/^ His HabiHty, Hke that of an abstracter's, is only 
to those who employ him, or others in privity of contract with 
him.^^ The ofificer may limit his liability by his certificate, or it 
may be limited by the requisition for the search.^^ But in the 
absence of a statute requiring a public officer to make searches, 
and especially where the statute specifies no compensation there- 
for, he is not liable unless he has a contract with the person for 
whom the search is made, or unless the certificate is falsely made 
with an intent to defraud.^* 

§ 22. To whom an abstracter may be liable. — As a general 
rule, in the absence of fraud, collusion, or malicious or tortious 
act, the maker of an abstract is liable for his errors only to the 
party that employed him, or is in some way in privity of contract 
with him.^^ And where this rule obtains, the fact that the ab- 
stracter has knowledge that the abstract is to be used in a sale .or 
loan to advise a prospective purchaser or mortgagee of the land 
does not affect the rule as to his liability.^" But, inasmuch as the 
vendee or mortgagee, the only parties likely to be damaged by 
any mistake or inaccuracy in an abstract, seldom procures the 

Pa. St. 227; McCaraher v. Common- v. Ferguson, 50 Kans. 685, 32 Pac. 

wealth, 5 Watts & S. (Pa.) 21, 39 410, 22 L. R. A. 99; Morano v. Shaw, 

Am. Dec. 506. 23 La. Ann. 379; Schade v. Gehner, 

31 Kimball v. Connolly, 42 N. Y. 133 Mo. 252, 34 S. W. 576; Zwei- 

57, 33 How. Pr. 247, 2 Abb. Dec. 504; gardt v. Birdseye, 57 Mo. App. 462; 

Peabody Bldg. &c. Assn. v. House- Thomas v. Carson, 46 Nebr. 765, 65 

man, 89 Pa. St. 261, 33 Am. Rep. 757. N. W. 899; Gate City Abstract Co. 

32Mallory v. Ferguson, SO Kans. v. Post,. 55 Nebr. 742, 76 N. W. 471; 

685, 32 Pac. 410, 22 L. R. A. 99; Day v. Reynolds, 23 Hun (N. Y.) 

Commonwealth v. Harmer, 6 Phila. 131 ; Lockwood v. Title Ins. Co., 73 

(Pa.) 90; Houseman v. Girard Bldg. Misc. 296, 130 N. Y. S. 824; Thomas 

&c. Assn., 81 Pa. St. 256. v. Title &c. Co., 81 Ohio St. 432, 91 

33 Tripp V. Hopkins, 13 R. I. 99. N. E. 183, 26 L. R. A. (N. S.) 1210; 

31 Mechanics Bldg. Assn. v. Whit- Sackett v. Rose (Okla.), 154 Pac. 

acre, 92 Ind. 547; Mallory v. Fergu- 1177; Houseman v. Girard Bldg. &c. 

son, 50 Kans. 685, 32 Pac. 410, 22 L. Assn., 81 Pa. St 256: Siewers v. 

R. A. 99; Wood v. Ruland, 10 Mo. Commonwealth, 87 Pa. St. 15; Com- 

143. monwealth v. Harmer, 6 Phila. 90; 

35 Savings Bank v. Ward, 100 U. S. Equitable Bldg. &c. Assn. v. Bank of 

195, 25 L. ed. 621; Dundee Mtg. Co. Commerce, 118 Tenn. 678, 102 S. W. 

V. Hughes, 20 Fed. 39; Talpey v. 901, 12 L. R. A. (N. S.)- 449n, 12 

Wright, 61 Ark. 275, 32 S. W. 1072, Ann. Cas. 407; Bremerton Develop- 

54 Am. St. 206; Buckley v. Gray, 110 ment Co. v. Title Trust Co., 67 Wash. 

Cal. 339, 42 Pac. 900, 31 L. R. A. 862, 268, 121 Pac. 69. 

52 Am. St. 88; Mechanic's Bld.g. 36 z^eigardt v. Birdseye, 57 Mo. 

Assn. V. Whitacre, 92 Ind. 547; App. 462; Anderson v. Spriesters- 

Brown v. Sims, 22 Ind. App. 317, 53 bach, 69 Wash. 393, 125 Pac. 166, 42 

N. E. 779, 72 Am. St. 308; Mallory L. R. A. (N. S.) 176n 



25 ABSTRACTS IN GENERAL § 22 

abstract to be made, there is a tendency to extend the liability to 
parties other than the employer of the abstracter. Thus where 
one employed by a landowner to make an abstract knew that it 
was to be used to induce a third party to make a loan on the land 
and that he would rely on it, subsequently delivered the abstract 
to such proposed mortgagee with the assurance that his work 
could be relied upon and that the title was correctly shown in the 
abstract, he was held liable to such mortgagee for loss sustained 
by him on account of defects in the title not shown by the ab- 
stract." In another case it was held that the maker of an ab- 
stract, who guaranteed its correctness, was answerable in dam- 
ages to the purchaser who relied upon the abstract, and refused 
to purchase without it, where recorded conveyances were omitted 
from such abstract to the injury of such purchaser, though the 
abstract was made at the request and expense of and delivered to 
the owner of the property, who thereupon delivered it to the in- 
tending purchaser for examination.^^ Where, upon inquiry, an 
abstracter affirms the correctness of his abstract to the grantee or 
mortgagee of his employer, he will be held liable for loss result- 
ing to such grantee or mortgagee relying upon his abstract, on 
account of defects therein.^^ The abstracter's liability is not af- 
fected by the fact that a person other than his employer paid him 
for making it.*" Nor will the fact that the borrower knew of the 
existence of omitted liens, and acted as the agent of the lender in 
ordering the abstract, relieve the abstracter from liability to a 
party loaning money and relying on his certificate.*^ Where a 
landowner, being an abstracter, prepares an abstract of title to his 
land, which abstract is to be used to induce others to purchase 
the land, he is liable to a purchaser thereof for mistakes in the 
abstract just as much as if the abstract was prepared upon the 
purchaser's order.*^ There is a contract between the owner of 
land and an abstracter, for making ah abstract, rendering the ab- 
stracter liable for failure to exercise ordinary care in the exam- 
ination, though the contract was by the owner's agent, who did 

37 Brown v. Sims, 22 Ind. App. 317, Assn., 81 Pa. St. 256 ; La Wall v. 
53 N. E. 779, 72 Am. St. 308. Groman, 180 Pa. St. 532, 37 Atl. 98, 

38 Dickie V. Abstract Co., 89 Tenn. 57 Am. St. 662. 

431, 14 S. W. 896, 24 Am. St. 616. ^'^ Houseman v. Girard Bldg. &c. 

3^ Siewers v. Commonwealth, 87 Assn., 81 Pa. St. 256. 

Pa. St. 15. *2 Thomas v. Schee, 80 Iowa 2:^7, 

^» Page V. Trutch, Fed. Cas. No. 45 N. W. 539. 
10668; Houseman v. Girard Bldg. &c. 



§ 23 TITLES AND ABSTRACTS 26 

not disclose his agency/' Under statutes requiring abstracters to 
give bond for the payment of any darpages to a party through 
any error, they are liable to a purchaser who relies on the ab- 
stract, without regard to who paid for the abstract or ordered it 
made." 

§ 23. When right of action accrues. — The right of action 
against an abstracter for damages resulting from a defective ab- 
stract accrues at the time the examination is made and reported, 
and not when the error is discovered, and the damages resulting 
therefrom have been paid;*' and the statute of limitations runs 
from that time, and not from the time the damages accrued.*" 
Whether the negligence out of which the cause of action arises 
is the breach of an implied contract, or the affirmative disregard 
of some positive duty, is immaterial. In either case the liabiHty 
arises immediately upon such breach of contract or disregard of 
duty, and an action to recover the damages which are the measure 
of such liability may be immediately maintained. The right to 
maintain the action is distinguished from the measure of dam- 
ages, and, although the entire damage resulting from such a neg- 
ligence may not have been sustained, or the fact that the negli- 
gence occurred may not have been known until the right to a 
recovery is barred, yet the time within which an action may be 
brought is not thereby prolonged.*' But where the complaint in 
an action against an abstracter not only alleged the contract and 
purchase of the abstract and certificate, but also alleged that 
through and by the mistake of the defendant the certificate to the 
abstract was false and untrue, and that, relying on the truth and 
correctness of the certificate, plaintiff made the purchase of the 
land, and subsequently sustained the injury and damages corn- 
ea Young V. Lohr, 118 Iowa 624, 92 27 Okla. 172, 111 Pac. 319, 30 L. R. 
N. W. 684. A. (N. S.) 642, Ann. Cas. 1912B, 

4^ Scott V. Jordan (Okla.), 155 839n; Owen v. Western Sav. Fund, 
Pac. 498; Goldberg v. Sisseton Loan 97 Pa. 47, 39 Am. Rep. 794; Bodine 
&c. Co., 24 S. Dak. 49, 123 N. W. 266, v. Wayne Title &c. Co., 33 Pa. Super. 
140 Am. St. 775. Ct. 68. 

« Lattin V. Gillette, 95 Cal. 317, 30 « Lattin v. Gillette, 95 Cal. 317, 30 
Pac. 545, 29 Am. St. 115 ; Russell v. Pac. 545, 29 Am. St. 115 ; Russell v. 
Polk County Abstract Co., 87 Iowa Polk County Abstract Co., 87 Iowa 
233, 54 N. W. 212, 43 Am. St. 381 ; 233, 54 N. W. 212, 43 Am. St. 381 ; 
Provident Loan Trust Co. v. Wol- Schade v. Gehner, 133 Mo. 252, 34 S. 
cott, 5 Kans. App. 473, 47 Pac. 8; W. 576. 

Schade v. Gehner, 133 Mo. 252, 34 " Lattin v. Gillette, 95 Cal. 317, 30 
S. W. 576; Rankin v. Schaeffer, 4 Pac. 545, 29 Am. St. 115. 
Mo. App. 108; Walker v. Bowman, 



27 ABSTRACTS IN GENERAL § 24 

plained of, it was held that the cause of action did not accrue 
until the discovery, by the plaintiff, of the facts constituting the 
fraud or mistake/* 

§ 24. Pleadings in action against abstracter. — In an ac- 
tion against an abstracter for damages resulting from an incor- 
rect or defective abstract, the complaint should allege or show the 
nature of the agreement or character of the abstract to be fur- 
nished,*^ that the abstract was defective,^" that the plaintiff re- 
lied and acted upon the abstract,^^ and that he has been damaged 
thereby/^ Where the damage resulted from a false certificate 
the complaint must show that the plaintiff has been damaged on 
account of it.^^ The complaint must allege facts and not conclu- 
sions/* But it is not defective because it alleges that the plaintiff 
was ousted from the premises "by due course of law."°° Where 
the action is brought by a vendee, to recover damages on account 
of an error in an abstract, he must allege in his complaint that he 
purchased the realty/" But allegations as to defendant's lack 
of care and skill may be general,^' and, as the cause of action ac- 
crues when the abstract is furnished, the complaint, if it shows a 
breach of duty on the part of the defendant, and a liability in- 
curred by plaintiff as a result thereof, need not allege that the 
plaintiff at the time the action was begun had been actually sub- 
jected to pecuniary loss/^ 

§ 25. Agreement to furnish abstract. — Ordinarily parties 
entering into an executory agreement for the purchase and sale 
of real estate make provisions therein specifying the time allowed 
for examination of the title, for furnishing abstract, making re- 
port of defects and objections, specifying the time within which 
the vendor may thereafter make his title good, and the character 
of the conveyance to be executed by him/' Where the vendor 

48 Hillock V. Idaho Title &c. Co., 22 =* Puckett v. Waco Abstract &c. 

Idaho 440, 126 Pac. 612, 42 L. R. A. Co., 16 Tex. Civ. App. 329, 40 S. W. 

(N. S.) 178. 812. 

*!> Hershiser v. Ward, 29 Nev. 228, =5 Hershiser v. Ward, 29 Nev. 228, 

87 Pac. 171. 87 Pac. 171. 

5» Hershiser v. Ward, 29 Nev. 228, =« Batty v. Fout, 54 Ind. 482. 

87 Pac. 171. " Giltnan v. Hovey, 26 Mo. 280. 

" Batty v. Fout, 54 Ind. 482. =8 Walker v. Bowman, 27 Okla. 172, 

=2 United States Wind Engine &c. Ill Pac. 319, 30 L. R. A. (N. S.) 642, 

Co. v. Linville, 43 Kans. 455, 23 Pac. Ann. Cas. 1912 B, 839n. 

597. 58 Easton v. Montgomery, 90 Cal. 

"United States Wind Engine &c. 307, 27 Pac. 280, 25 Am. St. 123. 
Co. v. Linville, 43 Kans. 455, 23 Pac. 
597. 



§ 25 TITLES AND ABSTRACTS 28 

agrees to furnish an abstract of title within a specified time, but 
fails to do so, the vendee can not be required to extend the time, 
but may rescind the contract and recover the purchase-money 
which he has paid to the vendor."" Likewise, if the vendor agrees 
to furnish an abstract, and furnishes one showing a defective 
title, he may recover the purchase-money paid, even though the 
vendor had a good title as a matter of fact." Where the vendor 
agrees in the contract of sale to furnish the vendee an abstract of 
title and the condition of the sale is that the title shall be good or 
there shall be no sale, the fair interpretation of the contract is 
that a full and complete abstract of title is to be furnished. If 
the abstract does not disclose a good record title, the purchaser 
is not required to make an investigation dehors the record, nor 
is he required to assume the risk of any litigation shown by the 
abstract to be either pending or probable. In an action by the 
vendee to recover purchase-money paid by him, evidence of the 
invalidity of the claims of persons whom the abstract shows to 
be asserting title adverse to the vendor is inadmissible."^ It is a 
sufficient compliance with an agreement to furnish an abstract if 
the vendee is notified where it may be found, if it is accessible to 
him, and if he raises no objection at the time."' The agreement to 
furnish an abstract means an abstract of the records in the re- 
corder's office and all the records showing the title of the vendor 
to the real estate."* It is a statement of the substance of the mat- 
ters appearing in the public records affecting the title to the real 
estate involved."^ By some authorities it means not only a state- 
ment in substance of what appears on the public records affecting 
the title, but also a statement in substance of those facts which 
do not appear on the public records necessary to perfect the 
title."" Where an abstract of title furnished by a vendor to a ven- 
dee under a contract of sale does not connect the vendor with the 
title, but shows it to be in a third person, the vendee may properly 

«o Howe V. Hutchinson, 105 III. SOI ; es Union Safe Deposit Co. v. Chis- 

Des Moines &c. Real Estate Co. v. holm, 33 111. App. 647. 

Beale, 78 III. App. 40. ee Tasker v. Garrett County, 82 Md. 

"Boas V. Farrington, 85 Cal. 535, 150, 33 Atl. 407; Loring v. Oxford, 

24 Pac. 787. 18 Tex. Civ. App. 415, 45 S. W. 395 ; 

«2 Smith V. Taylor, 82 Cal. 533, 23 HoUifield v. Landrum, 31 Tex Civ. 

Pac. 217. App. 187, 71 S. W. 979 ; Dickinson v. 

63 Papin V. Goodrich, 103 111. 86. Chesapeake R. Co., 7 W. Va 390 

6* Stevenson v. Polk, 71 Iowa 278, 32 
N. W. 340. 



29 ABSTRACTS IN GENERAL § 26 

refuse to comply with the contract of sale, though a sufficient 
deed to the vendor is afterward exhibited to the vendee, since the 
absence of the vendor's name from the abstract does not show 
whether any conveyances have been made by the vendor, or any 
judgments recovered against him, or any other facts which would 
affect the title as to him.^^ There is no agreement to furnish an 
abstract where the contract of sale and purchase simply provides 
that "title to be satisfactory and a warranty deed given,"**^ or to 
"make good title and give a warranty deed.""" 

§ 26. Duty to furnish abstract irrespective of agreement. 

— In England it would seem that the vendor must furnish the 
vendee with an abstract of title irrespective of any agreement 
upon the subject/" The reason assigned for this is, that the ven- 
dee, in the absence of any record of the vendor's muniments of 
title, must be given an opportunity to inspect them or their equiv- 
alents, unless he has agreed to take the title without such inspec- 
tion. But it is the usual practice in that country to insert in the 
contract of sale a provision that the vendor shall, within a stated 
time, prepare at his own expense and deliver to the purchaser 
an abstract of the title.'^ Although the vendor should think fit to 
deliver his title deeds to a purchaser in lieu of an abstract, the 
purchaser would yet have a right to require an abstract of title 
at the vendor's expense.''^ In this country the universal custom 
now prevailing in the transfer of real estate is for the vendor to 
furnish to the vendee satisfactory evidence of his title, and this is 
usually done by furnishing him an abstract. "An abstract has 
become the usual concomitant of every instrument evidencing an 
interest or ownership in land."'^ But, in the absence of an ex- 
press agreement to furnish an abstract, the vendor is not bound 
to furnish one, and it is incumbent upon the purchaser to provide 
an abstract and to satisfy himself as to the condition of the title.''* 

•"•Union Safe Deposit Co. v. Chis- "Dart Vend. & Purch. (5th ed.) 

holm, 33 III. App. 647 ; Drury v. Mick- 125. 

elberry, 144 Mo. App. 212, 129 S. W. "Preston on Abstracts, p. 34. 

237. 73 Gate City Abstract Co. v. Post, 

«8 Taylor v. Williams, 45 Mo. 80. 55 Nebr. 742, 76 N. W. 471. 

69 Tapp V. Nock, 89 Ky. 414, 12 S. ■'^ Bolton v. Branch, 22 Ark. 435 ; 

W. 713, 11 Ky. L. 611. Easton v. Montgomery 90 Cal. 307; 

'"Williams Real Prof. (6th ed.), 27 Pac. 280, 25 Am. St. 123; Symns, 

450; 2 Sudg Vend (8th ed) 29 (428) ; v. Cutter, 9 Kans. App. 210, 59 Pac. 

Dart Vend. (Sth ed.) 125. 671; Carr v. Roach, 2 Duer (N. Y.) 

20; Espy V. Anderson, 14 Pa. St. 308. 



§ 26 TITLES AND ABSTRACTS 30 

"In the absence of any special agreement, the purchaser must 
look for himself to the records for the validity of the title to 
lands he would purchase."" Since the title is of record, the ap- 
plication of the doctrine of caveat emptor, in the absence of spe- 
cial agreement, requires the purchaser to satisfy himself as to the 
sufficiency of the title, and for that purpose to procure an ab- 
stract of the title, if he desires it, and to make the necessary in- 
vestigation/" The Supreme Court of Alabama, following the 
English rule, has held that it is the duty of the vendor, when re- 
quired, to furnish to the purchaser an abstract of the title." It 
would seem that as between mortgagor and mortgagee, the for- 
mer must furnish the latter an abstract of title and pay for same. 
The reason assigned for this rule is, that the mortgagee is en- 
titled to the full amount of his loan and interest, and without 
discount for expenses incurred in preparing the security and 
ascertaining its value.''* Where there is no agreement obligating 
the vendor to furnish the vendee with an abstract of the title, the 
latter is not at liberty to pronounce the title defective without any 
examination, or upon a partial examination. Having assumed to 
examine the title for the purpose of determining whether it was 
good, it is incumbent upon him to make a complete examination 
thereof. He could call upon the vendor for any information with 
reference thereto, and it then would be the duty of the vendor to 
furnish such information as he possesses.'' If, upon such exam- 
ination, it appears to him that the title is defective, it then becomes 
his duty to report to the vendor the particulars wherein such de- 
fects are claimed to exist, and in the absence of any time fixed by 
the contract of sale within which the vendor must remove the de- 
fects, or satisfy the vendee's objections, a reasonable time will be 
allowed therefor.^" If the vendor fails within such time to rem- 
edy the defects thus pointed out, the vendee in an action to re- 
cover the purchase-money or deposit paid by him on the ground 
,that the title is defective, is limited to such defects as were then 
pointed out.^^ 

'5 Symns v. Cutter, 9 Kans. App. ^s Mart, on Abst. 9. 

210, 59 Pac. 671. 79 Benson v. Shotwell, 87 Cal. 49, 

70 Easton v. Montgomery, 90 Cal. 25 Pac. 249. 

307, 27 Pac. 280; 25 Am. St. 123; so More v. Smedburgh, 8 Paige (N. 

Espy V. Anderson, 14 Pa. St. 308. Y.) 600. 

77 Chapman v. Lee, 55 Ala. 616 ; si Easton v. Montgomery, 90 Cal. 

Wade V. Killough, 5 Stew. & P. 307, 27 Pac. 280, 25 Am. St. 123. 
(Ala.) 450. 



31 ABSTRACTS IN GENERAL § 27 

§ 27. Contract by broker to furnish abstract. — It has been 
held that authority conferred on a real estate broker to make a 
binding contract for the sale of. land includes power to bind the 
grantor to furnish an abstract of title.^^ But it would seem that 
if the grantor is not required to furnish an abstract, a real estate 
broker employed to find a purchaser for his property at a price 
stipulated in the contract of employment, has no power, in mak- 
ing a contract of sale, to bind the grantor to furnish an abstract.*' 
A real estate broker who has no express authority from his prin- 
cipal to agree to furnish a satisfactory abstract of title has no 
implied authority to so agree, and a contract made by him, con- 
taining such agreement, is in excess of his authority.^* It is well 
settled that, if the broker relies for his commission on having 
made a sale under the authority conferred on him by the owner, 
he must prove a sale made on the terms and conditions specified 
by the owner.*^ A real estate broker's authority is limited to the 
precise terms given him by his principal, and the principal is not 
bound by a departure therefrom.^* 

§ 28. Requiring abstracts of parties to real actions. — The 
statutes of many states provide .that either party to a real action 
may require the other to furnish an abstract of the title or titles 
to the real estate involved. The time for furnishing the abstract 
is usually regulated by the statute requiring it to be furnished. 
Under a statute providing that the court may, in all proper cases, 
upon motion, order abstracts of title to be furnished, it was held 
that the plaintiff in an action upon a fire insurance policy could 
not be required to furnish an abstract of title to the property 
which was destroyed by fire.*' Where the action was for the pos- 
session of the land described in the complaint and to quiet title 
thereto, and the plaintiff had filed an abstract of. title showing 
upon what deeds of conveyance she relied to prove such title, it 

82 Jasper v. Wilson, 14 N. Mex., ss Blodgett v. Sioux City & St. P. 

482, 94 Pac. 951, 23 L. R. A. (N. S.) R. Co., 63 Iowa 606, 19 N. W. 799; 

^ 982n. Smith v. Allen, 101 Iowa 608, 70 N. 

8^ Easton v. Montgomery, 90 Cal. W. 694; Balkema v. Searle, 116 Iowa 

307, 27 Pac. 280, 25 Am. St. 123 ; Gil- 374, 89 N. W. 1087. 

bert V. Baxter, 71 Iowa 327, 32 N. W. se Balkema v. Searle, 116 Iowa 374, 

364; Balkema v, Searle, 116 Iowa 374, 89 N. W. 1087; Ballou v. Bergvend- 

89 N. W. 1087 ; Hunt v. Tuttle, 133 sen, 9 N. Dak. 285, 83 N. W. 10. 

Iowa 647, 110 N. W. 1026; Espy v. 87 phcenix Ins. Co. v. Rowe, 117 

Anderson, 14 Pa. St. 308. Ind. 202, 20 N. E. 122. 

8* Mitchell V. Hagge (Iowa), 160 
N. W. 287. 



§ 29 TITLES AND ABSTRACTS 32 

was held that she was not required to furnish a more complete 
abstract.^^ When an abstract is furnished pursuant to the statute, 
either voluntarily or by order of court, it constitutes no part of 
the complaint.^' Where a statute provides that an abstract may 
be demanded in an action in ejectment, it is not to be construed 
as requiring the production of an abstract in the technical sense. 
It is sufficient if it be specific enough to advise the opposite party 
of the title upon which reliance will be placed."" Where a statute 
provided in substance that either party may demand of the other 
an abstract in writing of the claim of title upon which he relies, 
which must be filled within a specified time, and in default thereof 
no evidence of the title of such opposite party shall be given on 
the trial, it was held that where the abstract filed stated that a 
deed in the chain of title was recorded in volume 5 of the records 
of deeds, while in fact it was recorded in book lettered V, it was 
not a sufficient compliance with the statute."^ 

§ 29. Abstract where records destroyed. — Where the 
public records and title papers have been lost or destroyed, an 
abstract of title, or letter press copy thereof, made in the ordinary 
course of business prior to such loss or destruction, and delivered 
to the parties interested in the land, is generally regarded as com- 
petent evidence of the facts therein recited.^^ Such abstract or 
copy thereof is rendered competent evidence either by comity, or, 
in some states, by statutory enactment. But before it can be relied 
on as evidence under a statute, the requirements of the statute 
must be complied with. Thus an affidavit which states that the 
original documents referred to 'in a certified abstract are not in 
the possession of the complainant and "that they have been either 
lost or destroyed, and it is not in the power of the complainant to 
produce them," was held insufficient to lay the foundation for the 
introduction of the abstract in evidence, under the statute, be- 
cause the affidavit failed to show that the original instrument was 
not intentionally destroyed or. disposed of for the purpose of in- 
troducing a copy.°^ 

88 Roberts v. Vornholt, 126 Ind. Sll, »o Jackson v. Tribble, 156 Ala. 480, 

26 N. E. 207. 47 So. 310. 

8» Roberts v. Vornholt, 126 Ind. 511, "i Coler v. Alexander 60 Tex. Civ. 

26 N. E. 207 ; Hoover v. Weesner, 147 App. 573, 128 S. W. 664 

Ind. 510, 45 N. E. 650, 46 N. E. 90S ; "2 Russell v. Mandell, 73 111. 136. 

O'Mara v. McCarthy, 45 Ind. App. ss Bauer v. Glos, 244 111. 627, 91 N. 

147; 90 N. E. 330. E. 701. 



33 ABSTRACTS IN GENERji.L § 30 

§ 30. Property in the abstract. — In England the pur- 
chaser has a temporary right of property in the abstract during 
the negotiations for sale of the land, and an absolute ownership 
therein if the sale be consummated."* There seems to be no rea- 
son why this rule should not apply in this country."" Our courts 
have held that the absolute right of property in the abstract re- 
mains in the vendor until the sale is consummated. Pending the 
sale the vendee is entitled to the custody of the abstract and has a 
special property therein, which he can enforce against the vendor 
or other persons. But immediately upon the rescission of the 
contract of sale all his rights in and to the abstract cease."" If 
the contract of sale is, for any reason, rescinded, the purchaser 
can not hold the abstract as a security for the return of any pur- 
chase-money he may have paid.°^ As between mortgagor and 
mortgagee, the rule is that an abstract furnished by the mort- 
gagor to assist the mortgagee in examining the title becomes a 
part of the security for the loan, and may be retained by the 
mortgagee until the mortgage is discharged."^ 

§ 31. Delivery of abstract. — An executory contract for 
the sale and purchase of real estate requiring the furnishing of 
an abstract implies that it shall be furnished sufficiently long be- 
fore the date of the consummation of the sale and payment of 
the purchase-money for the purchaser to have opportunity to ex- 
amine it."" If such contract provides for the exhibition of an ab- 
stract showing title in the vendor by a day named, this is a con- 
dition precedent to be performed before either party can call 
upon the other to perform the agreement, and if the abstract is 
not satisfactory, or fails to show the title agreed to be made, the 
other may elect to consider the contract at an end.^ If the vendor 
does not produce the abstract at the appointed time, the purchaser 
may rescind the contract and recover his deposit.^ When the con- 
tract calls for an abstract showing good title by a day certain, the 
vendor can not demand time to furnish an additional abstract if 
the first is defective.^ But a purchaser who has granted the ven- 

9* Roberts v. Wyatt, 2 Taunt, 268; ssHolm v. Wust, 11 Abb. Pr. (N. 

Langslow v. Cox, 1 Chit. 98. S.) (N. Y.) 113. 

9= Chapman y. Lee, SS Ala. 616. »» Compton v. Bagley, 1 Ch. 313. 

96 Jackson v. Conlin, SO 111. App. i Howe v. Hutchinson, 105 111. 501. 

538 ; Espy v. Anderson, 14 Pa. St. 308. 2 Williams v. Daly, 33 111. App. 454. 

^'' Jackson v. Conlin, 50 111. App. s Howe v. Hutchinson, 105 111. 501 ; 

538. Williams v. Daly, 33 111. App. 454. 

3 — Thomp. Abstr. 



§ 32 TITLES AND ABSTRACTS 34 

dor time to remedy defects in an abstract will not be allowed to 
rescind for failure to furnish an additional abstract within a rea- 
sonable time without notifying the vendor that he will wait no 
longer, where he receives the abstract furnished as if he meant to 
have it examined.'* Where the vendor agrees to furnish an ab- 
stract of title within a certain specified number of days from the 
date of the contract, which he fails to do, and the vendee raises 
no objection on that ground, and continues to make payments 
under the contract and otherwise treats it as still in force, he will 
be deemed to have waived the performance of that condition, and 
can not maintain rescission or recover the money advanced on 
account of such default.^ If no time is fixed in the contract for 
the delivery of the abstract to the purchaser, it may be delivered 
within a reasonable time.' Where the contract required the ven- 
dor to furnish an abstract within a reasonable time, it was held 
that what was a reasonable time depended on the circumstances 
of the case, and the fact that a payment was to be made within 
thirty-five days from the date of the contract did not necessarily 
mean that the abstract should be delivered within that time.' If 
the contract provides that an abstract shall be furnished "without 
delay," the vendee must allege and prove a demand, and a refusal 
to deliver the abstract within a reasonable time thereafter, to en- 
title him to a rescission of the contract.* 

§ 32. Tender of abstract after expiration of agreed time. 

— Should the vendee wish to insist on a breach of the contract of 
sale due to the vendor's failure to furnish an abstract within the 
time specified, he must decline to accept it, if tendered to him 
after the period limited by the terms of the contract. If he ac- 
cepts the abstract after a breach of the condition respecting the 
time of delivery, he waives his right to claim rescission on ac- 
count of such breach. In a case where the contract provided that 
the vendor should deliver an abstract within ten days from the 
signing of the contract, but he did not do so until after the ex- 
piration of the prescribed ten days, and the abstract was accepted, 
the Supreme Court of the United States said : "The effect of the 

* Jackson v. Conlin, SO 111. App. 538. ^ jackson v. Conlin, 50 111. App. 538. 

5 McAlpine v. Reicheneker, 56 « Cummings v. Wilson, 99 Minn. 
Kans. 100, 42 Pac. 339. 502, 110 N. W. 4 

6 Martin v. Roberts, 127 Iowa 218, 
102 N. W. 1126. 



35 ABSTRACTS IN GENERAL § 33 

fact that the abstract was not delivered within ten days after sale 
has been waived by the acceptance of it, when delivered, without 
objection, and its retention for months without specifically re- 
ferring to any other defects in the title than those amendable by 
the steps taken in the county court suggested by the buyer's coun- 
sel as necessary to perfect the title."^ The vendee can not waive 
the condition to furnish an abstract within a specified time, and 
subsequently obtain rescission, or recover the money advanced, 
by reason of such default.^" Thus where the vendor agreed to 
furnish the vendee an abstract within thirty days from the date 
of sale, which was not done, and the vendee thereafter treated 
the default as immaterial, and continued to make payments under 
the contract, and otherwise treated the contract as still in force, 
he was denied rescission, or a recovery of the money advanced, 
on account of such default.^^ 

§ 33. Merger in deed of contract to deliver abstract. — 

Whether a contract for the future delivery of an abstract show- 
ing a good title is merged in a warranty deed, and a mortgage 
executed by the purchaser to secure payment of purchase-money, 
all of which instruments were executed simultaneously, must be 
determined from an examination of such instruments, taking 
into consideration the situation, conduct and intention of the par- 
ties. The provision in the contract will be merged in the deed if 
the latter instrument is accepted as a performance of the condi- 
tion, but the deed will not supersede the provision if it is agreed 
and intended by the parties that the provision relative to furnish- 
ing the abstract is to continue in full force and effect.^^ It can 
not be said as a matter of law that a contract of sale is merged 
in a subsequent deed, especially where there is no inconsistency 
between the provisions of the contract and the deed.^^ But a writ- 
ten contract for the sale of real estate is superseded and extin- 
guished by a subsequent deed of conveyance between the same 
parties, which covers in its provisions all of the stipulations con- 
tained in the contract." 

» Kentucky Distilleries &c. Co. v. is Nothe v. Nomer, 54 Conn. 326, 

Blantoh, 149 Fed. 31, 80 C. C. A. 343. 8 Atl. 134; Witbeck v. Waine, 16 N. 

10 McAlpine v. Reicheneker, 56 Y. 532 ; Close v. Zell, 141 Pa. 390, 21 

Kans. 100, 42 Pac. 339. Alt. 770, 23 Am. St. 296. 

" McAlpine v. Reicheneker, 56 i* Hampe v. Higgins, 74 Kans. 296, 

Kans; 100, 42 Pac. 339. 85 Pac. 1019. 

12 Read v. Loftus, 82 Kans. 485, 108 
Pac. 850, 31 L. R. A. (N. S.) 457n. 



§ 34 TITLES AND ABSTRACTS 36 

§ 34. Waiver of objections to title by taking possession. — 

Whether or not a purchaser waives objections to the title by tak- 
ing possession of the premises is clearly one of fact. If he takes 
possession with knowledge of defects, the general rule is that he 
thereby waives his right to rescind the contract or to recover 
damages against the vendor.^^ But the rule is otherwise where 
the purchaser was not aware of the objections to the title when 
he took possession;^" or where the contract of sale authorizes him 
to take possesion before title is made;^' or where under the con- 
tract he is entitled to call for a good title and takes possession with 
the concurrence of the vendor ;^^ or where the vendor has agreed 
to remove the objection to the title. ^^ Where the contract of sale 
provides that the vendor shall furnish an abstract showing a 
good title, the fact that the vendee has taken possession of the 
land and made improvements thereon, is not conclusive evidence 
that he has waived the stipulation as to title. ^^ If the vendor de- 
livers an abstract to the purchaser's attorney in compliance with 
the contract of sale, and the attorney in good faith makes objec- 
tions to the title, and the vendor, for the purpose of removing 
one of these objections, promises to prosecute an action to quiet 
title, the fact that the vendee continues in possession for a rea- 
sonable time in reliance upon such promise, will not be denied 
rescission, where the vendor refuses to take any steps to remove 
the objections. But an unreasonable delay on the part of the 
purchaser in instituting a suit for rescission, while it does not 
constitute, as a legal proposition, a waiver of the stipulation in 
the contract to give good title, is, nevertheless, a proper circum- 
stance for consideration in determining whether or not rescission 
should be decreed.^^ Where a contract for the sale of mineral 
lands provided that the vendor furnish the vendee a sufficient ab- 
stract of title showing clear title in the vendor, and where ab- 
stracts were delivered to the vendee who took possession of the 

isBarnett v. Gaines, 8 Ala. 373; (S. Car.) 370; Hendricks v. Gillespie, 

Tompkins v. Hyatt, 28 N. Y. 347; 25 Grat. (Va.) 181. 

Caswell V. Black River Mfg Co., 14 is Magaw v. Lathrop, 4 Watts & S. 

Johns. (N. Y.) 453; Mitchell v. (Pa.) 316. 

Pinckney, 13 S. Car. 203 ; Christian ^^ Barnett v Wheeler 7 M & W 

V. Cabell, 22 Gratt. (Va.) 99. 363. 

./l^^"!.'^- Renshaw, 2 Pa. St. 34, 20 Read v. Loftus, 82 Kans. 485, 108 

^"^i^^C ^^"^ ^^^- T^ „ r T,. , T^ P^=- S^*'' 31 L- R. A. (N. S.) 457n. 
" Thompson v. Dulles, 5 Rich. Eq. 21 Read v. Loftus, 82 Kans 485 108 

Pac. 850, 31 L. R. A. (N. S.) 4S7n. 



37 ABSTRACTS IN GENERAL § 35 

property, and nearly three years after executing the contract of 
sale exchanged the property acquired for other property, it was 
held that there was an acceptance on the part of the original ven- 
dee of the title to the property as a sufficient compliance with the 
terms of the contract.^^ 

§ 35. Time in which to examine abstract. — Sufficient time 
in which to examine and verify the abstract should be given the 
purchaser by the terms of the contract of sale, and where no time 
is specified therein, he will be allowed a reasonable time for that 
purpose. ^^ Unless he has expressly agreed to do so, he can not 
be required to pay the purchase-money before he has examined 
the abstract.^* Where a vendor contracts to sell land, agreeing 
to furnish an abstract of title, and the vendee is to have a speci- 
fied number of days from the date of the contract in which to ex- 
amine the title and pay the purchase-money, a tender of the pur- 
chase-money after the expiration of the time given for such ex- 
amination and payment is too late, and specific performance will 
be denied, though the vendor did not furnish the abstract within 
the time limited for such examination and payment.^^ When the 
record shows an apparent encumbrance, the most that the vendor 
can insist upon is that the vendee shall satisfy himself within a 
reasonable time whether such apparent encumbrance is valid or 
not.^° After the purchaser has examined the abstract in the time 
allowed for that purpose, it is his duty to point out his objections 
to the title, if any, so as to give the vendor an opportunity to re- 
move them.^^ If he retains the abstract an unreasonable length 
of time, without making any. objections thereto, he will be 
deemed to have waived any defects there may be in the title. ^^ 
But in the absence of any waiver of defects, it would seem that 
the vendee is not bound at his peril to point out his objections 
specifically in order to insist on a breach of the contract.^" Where 
the vendee is given a specified time in which to examine the ab- 

22 Thornburg v. Doolittle, 148 Iowa Goodell v. Sanford, 31 Mont. 163, 17 
530, 125 N. W. 1003. Pac. 522. 

23 Hoyt V. Tuxbury, 70 111. 331. 28 Stevenson v. Polk, 71 Iowa 278, 
2* Pennsylvania Min. Co. v. Thorn- 32 N. W. 340. 

as, 204 Pa. 325, 54 Alt. 101. 29 Smith v. Taylor, 82 Cal. 533, 23 

25Kelsey v. Crowther, 7 Utah 519, Pac. 217; Howe v. Hutchinson, 105 

27 Pac. 695. 111. 501 ; Lessenich v. Sellers, 119 

2s Allen v. Atkinson, 21 Mich. 351. Iowa 314, 93 N. W. 348 ; Kane v. Rip- 

27 Easton v. Montgomery, 90 Cal. pey, 22 Ore. 296, 23 Pac. 180. 

307, 27 Pac. 280, 25 Am. St. 123; 



§ 36 TITLES AND ABSTRACTS 38 

stract, he may abandon the contract at the expiration of the time, 
if he finds that the vendor has not such a title as the contract calls 
for.^° Even if he makes no objection to the title at the expiration 
of the time allotted for the examination, the vendor can not com- 
pel specific performance of the contract if his title is defective.'^ 
But the purchaser can not recover back his deposit where he has 
not, at the expiration of the specified time, notified the vendor 
that the title is unsatisfactory, and that he intends to rescind the 
contract.'^ Where the vendor, in pursuance of his agreement 
with the purchaser, furnishes an abstract showing the title to the 
land, and the purchaser accepts same without objection, and 
keeps it until the time allowed the vendor to furnish the abstract 
has passed, the purchaser can not then insist upon, its insufficiency 
as a breach of the contract.^^ 

§ 36. Taxation of abstract books. — There is a lack of uni- 
formity of opinion relative to the question of the liability of ab- 
stract books to taxation. Sorne courts class them with private 
manuscripts as being of no intrinsic value, and for this reason 
say they are not liable to taxation. These authorities contend 
that such books are only valuable for the information they con- 
tain, and that information is conveyed by consultation or ex- 
tracts ; that their value is only kept up by their completeness and 
continued correction; that the sale of a complete copy would 
practically destroy their value in the hands of their owner; and 
that a similar compilation by any one else would have a like re- 
sult. They hold that the value of such books, except as they are 
used, is nothing; that they resemble in nature, if not precisely, 
the books which are consulted by any person who makes an in- 
come from his acquired knowledge, whether scientific or other- 
wise.^* Although such books may be made subject to levy and 
sale on execution by statute, it is held that such a statute will not 
operate as modifying the rule by which they are considered not 
to be subject to taxation.^^ In some jurisdictions, however, such 

80 Mead v. Fox, 6 Cush. (Mass.) s* Stevens v. Gladding, 17 How. 

^^?iT> , J TT,. n r^ (U. S.) 447, IS L. ed. 155; Dart v. 

31 Packard v. Usher, 7 Gray Woodhouse, 40 Mich. 399, 29 Am. 

(Mass.) 529. Rep. 544; Perry v. Big Rapids, 67 

,o o^"-^^"°,"„n^r- Strassburger, 92 Gal. Mich. 146, 34 N. W. 530, 11 Am. St. 

^V^T^*^- ^°??- • „ , . 570; Banker V. Caldwell, 3 Minn. 94. 

ie7^°v om ?o x?%^ 1^.^? ? <^'^']-' "' Loomis v. Jackson, 130 Mich. 594, 

157 N. Y. 201, 52 N. E. 1, 45 L. R. A. 90 N. W. 328. • 
666. 



39 ABSTRACTS IN GENERAL § 36 

books, being used as a means of profit, are considered property 
having a market value, and may be properly assessed for taxa- 
tion/° It is argued that the chief value of such books consists in 
their contents being kept from the public. "They are the means, 
in a sense the instruments, for carrying on a business ; as much 
so as are the tools or machinery by which the artisan plies his 
calling."^^ It is held that the fact that the books are largely in 
abbreviations and in cipher code which only a limited number 
of persons understand does not render them exempt from taxa- 
tion.^* 

^' Leon Loan &c. Co. v. Equaliza- ^'' Leon Loan &c. Co. v. Equaliza- 
tion Board, 86 Iowa 127, 53 N. W. 94, tion Board, 86 Iowa 127, S3 N. W. 94, 
17 L. R. A. 199, 41 Am. St. 486; 17 L. R. A. 199, 41 Am. St. 486. 
Booth V. Phelps, 8 Wash. 549, 23 L. ss Booth v. Phelps, 8 Wash. 549, 36 
R. A. 864, 36 Pac. 489, 40 Am. St. Pac. 489, 23 L. R. A. 864, 40 Am. St. 
921. 921. 



CHAPTER II 

ESTATES, INTERESTS AND RIGHTS IN REAL PROPERTY 



40. Estates defined and distinguished. 

41. General classification of estates. 

42. Estates in fee simple. 

43. Modified fees. 

44. Conditional fees at common law. 

45. Creation of fee simple estate by 
deed. 

46. Creation of fee simple estate by 
will. 

47. Limitations and restrictions in 
transfers of fee simple estates. 

48. Estates in fee tail. 

49. Life estates. 

50. Estates for years. 

51. Estates at will. 

52. Estates at sufferance. 



SEC. 

53. Estates from year to year. 

54. Estates upon condition. 

55. Estates upon limitation. 

56. Estates upon conditional limita- 
tion. 

57. Legal and equitable estates. 

58. Uses. 

59. Trusts. 

60. Powers. 

61. Easements. 

62. Licenses. 

63. Profits a prendre. 

64. Curtesy. 

65. Dower. 

66. Homestead. 

67. Widow's quarantine. 



§ 40. Estates defined and distinguished. — The term "es- 
tate" is used in various senses. It is often used to designate the 
property composing the assets of a descendant, or the property, 
real and personal, belonging to an existing individual,^ and in its 
broadest sense is held to include choses in action.^ "The word 'es- 
tate,' unqualified or restricted, is always construed to embrace 
every description of property, real, personal, and mixed."^ But 
when applied to real property, it signifies not only the title or in- 
terest which the owner has therein, but' the state, condition or cir- 
cumstances in which he stands in regard to it, and has relation to 
the quantity or interest he has therein, and the time at which that 
quantity or interest is to be enjoyed.* Subjectively speaking, an 
estate in lands is the quantity of interest which the owner thereof 
has, from a fee simple down to naked possession.^ It expresses 
the owner's position with regard to the degree, quantity, nature 
or extent of interest he has in land," and, particularly, with ref- 



1 Sellers v. Sellers, 35 Ala. 235. 

2 State V. Fidelity &c. Co., 35 Tex. 
Civ. App. 214, 80 S. W. 544. 

3 PuUiam v. Pulliam, 10 Fed. 25. 
*In re Rash's Estate (Pa.), 2 Pars. 

Eq. Cas. 160. , 

5 Moody V. Farr, 33- Miss. 195 ; Jack- 
son V. Parker, 9 Cow. (N. Y.) 72. 



^ Robertson v. Vancleave, 129 Ind. 
217, 26 N. E. 899, 29 N. E. 781, 15 L. 
R. A. 68; Bates v. Sparrell, 10 Mass. 
323; Clift V. White, 12 N. Y. 519; 
Messmore v. Williamson, 189 Pa. St. 
IZ, 41 Atl. 1110, 69 Am. St. 791. 



40 



41 ESTATES AND INTERESTS IN REAL PROPERTY § 41 

erence to quantity, whether a fee simple, a fee tail, for life, for a 
term of years or any other interest/ It does not import a fee or 
even a freehold, but any legal interest in land.* The words "es- 
tate" and "interest" are synonymous terms, and are not infre- 
quently used as convertible terms.' But it has been held that "es- 
tate" and "equity" are not synonymous words either in meaning 
or substance.^" Objectively speaking, an estate is the thing itself 
of which one is owner,^^ but the technical use of the term "es- 
tate" is to be carefully distinguished from the corporeal property 
itself.^^ 

§41. General classification of estates. — The primary 
classification of estates is: (1) With reference to their quantity 
or duration; (2) with reference to their conditional or qualified 
nature; (3) with reference to their legal or equitable character; 
(4) with reference to the time of their enjoyment; and (5) with 
reference to the number of their owners. 

In respect to the quantity or duration of estates, they are either 
(1) freehold estates or (2) estates less than freehold. 

Freehold estates are divided into (1) Estates of inheritance, 
and (2) estates not of inheritance. Estates of inheritance are 
such as pass to the owner's heirs, and include : ( 1 ) Fee simple 
estates, (2) modified fees, or base, qualified and determinable 
fees, (3) estates in fee conditional, and (4) estates in fee tail. 
Estates not of inheritance are either estates for the life of the 
owner, termed "life estates," or for the life of another, termed 
"estates pur autre vie." Life estates created by voluntary act are 
known as "conventional" life estates, and those created by act of 
law are termed "legal" life estates. Legal life estates are either 
~a "tenancy in tail after possibility of issue extinct," curtesy, 
dower and homestead. 

Estates less than freehold are: (1) Estates for years, (2) 
estates at will, (3) estates from year to year, and (4) estates by 
sufferance. 

Estates with reference to their conditional or qualified nature 

7 Co. Lit. 34Sa. lo Tewksbury Tp. v. Readington 

8 Sudbury v. Stow, 13 Mass. 462. Tp., 8 N. J. L. 319. 

9 New York v. Stone, 20 Wend. (N. " Sellers v. Sellers, 35 Ala. 235. 
Y.) 139; Hurst v. Hurst, 7 W. Va. "Deering v. Tucker. 55 Maine 284. 
289. 



§ 42 TITLES AND ABSTRACTS 42 

may be divided into: (1) Estates upon condition, (2) estates 
upon limitation, and (3) estates upon conditional limitation. 

Estates as regards their quality are either: (1) Legal or (2) 
equitable. The former applies to such estates as are cognizable 
by courts of law ; the latter are such as are recognized and pro- 
tected in courts of equity, and embrace uses, trusts and equity 
of redemption. 

Estates with reference to their time of enjoyment are divided 
into: (1) Estate in possession, and (2) estates in expectancy. 
The first of these are the kinds most frequently owned and most 
commonly desired. The second class includes all future estates, or . 
all interests where the right of possession and enjoyment is post- 
poned to some future time. 

Estates with reference to the number of their owners are 
divided into: (1) Estates in severalty, and (2) joint estates. To 
the former class belong those estates in which the right of posses- 
sion is in one person at a time. To the latter class belong those 
estates in which the right of possession and enjoyment may be 
held by two or more persons in an undivided ownership, and in- 
clude joint tenancies, tenancies in common, estates in coparce- 
nary, estates in the entirety, and estates in partnership. Legal 
estates are those cognizable by courts of law. 

§ 42. Estates in fee simple. — A fee simple is the greatest 
interest and the most absolute in the rights conferred that a per- 
son can have in real property,^^ and carries with it an unlimited 
power of alienation." It is the highest estate which the law rec- 
ognizes,^^ and when this term is used, and no words of qualifica- 
tion or limitation are added, it necessarily implies an estate owned 
in severalty, and an estate in possession." It includes all qualifi- 
cations or restrictions as to the persons who may inherit as heirs ; 
thus distinguishing it from a fee tail, as well as from an estate 
which, though inheritable, is subject to conditions or collateral 
determination." The word "fee" means inheritance, and, as 
Lord Coke says, " 'simple' is added, for that it is descendible to 
the heirs of the body, or the like."'^ In other words, the owner 

w Bush V. Bush, S Del Ch. 144; le Brackett v. Ridlon, 54 Maine 426. 
Brackett V. Ridlon, 54 Maine 426; " Warden v. Lyons, 118 Pa. St. 396, 
Jecko V. Taussig, 45 Mo. 167. 12 Alt 408 

\\ ?/???n "■ ^°»''"j ^'^ ^'- ^^- '' Haynes v. Bourn, 42 Vt. 686 ; Co. 

"McMillen V Anderson, 95 U. S. Lit. lb; 2 Bl. Comm. 105. 
37, 24 L. ed. 335. 



43 ESTATES AND INTERESTS IN REAL PROPERTY § 43 

of the fee holds the land for himself and for his heirs, absolutely 
and simply/' The word "absolute" added does not impart any- 
thing to the legal effect of the term "fee" or "fee simple."^" The 
terms "fee," "fee, simple" and "fee simple absolute," when used 
in modem conveyancing, are practically synonymous.^'- An estate 
in fee simple is a freehold estate in perpetuity. ^^ Ownership in 
fee simple implies something more than being the holder of the 
naked legal title to land. It implies an indefeasible legal title — 
the entire title and estate in land.^^ 

§ 43. Modified fees. — Under the head of "modified fees" 
may be included what are termed base, qualified or determinable 
fees. This classification results from the fact that they are modi- 
fications of estates in fee. The terms "base fees," "qualified 
fees" and determinable fees," have been used promiscuously as 
descriptive of an estate which has a qualification subjoined thereto, 
and which may be determined whenever the qualification annexed 
to it is at an end.^* Some question of doubt has arisen as to 
whether there is now any such estates as base, qualified or deter- 
minable fees, but such estates are recognized in this country by 
courts' and text-writers generally. ^^ 

A qualified fee is one where, instead of limiting the estate to 
a man and his heirs, it is limited to him and the heirs of an an- 
cestor whose heir he is. 

A determinable fee is an estate limited to a man and his heirs, 
with a qualification annexed to it by which it is provided that it 
must determine whenever that qualification is at an end.^® 

An estate which is to continue till the happening of a certain 
event is not upon a condition subsequent, because upon the hap- 
pening of that event the estate ceases by its own limitation with- 
in Stephen's Comm. (ISth ed.), Vol. First Universalist Soc. v. Boland, 155 
1, 145. Mass. 171, 29 N. E. 524, 15 L. R. A. 

20 Clark v. Baker, 14 Cal. 612, 76 231; Hall v. Turner, 110 N. Car. 292, 
Am. Dec. 449. 14 S. E. 791 ; Lyf ord v. Laconia, 75 

21 Bowen v. John, 201 111. 292, 66 N. N. H. 220, 72 Atl. 1085, 22 L. R. A. 
E, 357; Jecko v. Taussig, 45 Mo. 167; (N. S.) 1062n, 139 Am. St. 680; 2 Bl. 
Lott V. Wykoff, 2 N. Y. 355. Comm. 109. 

22 Friedman v. Steiner, 107 111. 125 ; 25 pirst Universalist Society v. Bo- 
Jecko V. Taussig, 45 Mo. 167. land, 155 Mass. 171, 29 N. E. 524, 15 

23 United States v. Hyde,, 132 Fed. L. R. A. 231. 

545. 26 Weed v. Woods, 71 N. H. 581, 

2* Wiggins Ferry Co. v. Ohio &c. 53 Atl. 1024; Lyf ord v. Laconia, 75 

R. Co., 94 111. 83 ; Wills v. Wills, 85 N. H. 220, 72 Atl. 1085, 22 L. R. A. 

Ky. 486, 9 Ky. L. 76, 3 S. W. 900; (N. S.) 1062n, 139 Am. St. 680. 



§ 43 TITLES AND ABSTRACTS 44 

out a re-entry by the grantor. Such an estate is a fee, because it 
lasts forever ; it is determinable, because it may end by the happen- 
ing of the event named. Illustrations of determinable fees are, 
"as long as the church of St. Paul shall stand," or "a tree shall 
stand," or "so long as A shall have heirs of his body," or "till 
the marriage of a certain person."^^ A grant to a religious so- 
ciety to hold so long as the society shall support certain specified 
doctrines, the deed reciting that when the land is devoted to other 
purposes "then the title of said society or its assigns shall forever 
cease," creates a determinable fee. The grant in such case is not 
upon a condition subsequent, and no re-entry is necessary; but 
by the terms of the grant the estate is to continue so long as the 
real estate shall be devoted to the specified uses, and when it shall 
no longer be so devoted, then the estate will cease and determine 
by its own limitation. ^^ 

A base, qualified or determinable fee is created by a devise in 
fee coupled with a provision that upon the happening of a certain 
condition or contingency the estate so devised may be deter- 
mined.^^ If the condition or contingency be void,^° or becomes 
impossible of performance without fault of the devisee, the estate 
becomes a fee simple absolute.^^ The event or contingency which 
may be provided for to defeat the qualified or defeasible fee may 
be the marriage of the first devisee,^^ or his death before mar- 
riage,^^ or death before distribution,^* or death before attaining a 
certain age.^^ 

2^2 Bl. Comm. 109; 4 Kent Coram. S2 Frey v. Thompson, 66 Ala. 287; 

9, 129. Cummings v. Lohr, 246 111. 577, 92 N. 

28 Owen V. Field, 102 Mass. 90; E. 970; Chenault v. Scott, 23 Ky. L. 
First Universalist Society v. Boland, 1974, 66 S. W. 7S9 ; Rohrbach v. San- 
ISS Mass. 171, 29 N. E. 524, IS L. R. ders, 212 Pa. 636, 62 Atl. 27 ; Haring 
A. 231. V. Shelton, 103 Tex. 10, 122 S. W. 13. 

29 McFarland v. McFarland, 177 III. 33 Wheeler v. Long, 128 Iowa 643, 
208, 52 N. E. 281 ; Greer v. Wilson, 105 N. W. 161. 

108 Ind. 322, 9 N. E. 284; Common- s* Giles v. Anslow, 128 111. 187, 21 

wealth V. Pollitt, 25 Ky. L. 790, 76 S. N. E. 225 ; Corey v. Springer, 138 Ind. 

W. 412. • 506, 37 N. F. 322 ; Schneider v. Holtz- 

30 Carter v. Carter, 39 Ala. 579; In hauer, 134 Ky. 33, 119 S. W. 177- Rob- 
re Walkerly's Estate, 108 Cal. 627, 41 ert v. Corning, 89 N. Y. 225, 23 Hun 
Pac. 772, 49 Am. St. 97. 299. 

3iHuckabee v. Swoope, 20 Ala. 35 Matlock v. Lock, 38 Ind. App. 

491 ; New Haven Co. v. Trinity 281, 73 N. E. 171 ; Wheeler v Long 

Church Parish, 82 Conn. 378, 73 Atl. 128 Iowa 643, 105 N. W. 161 ; Hersey 

789, 17 Ann. Cas. 432; Shockley v. v. Purington, 96 Maine 166,' 51 Atl. 

Parvis, 4 Houst, (Del.) 568; Green v. 865; Woodman v. Madigan, 58 N.IL 

Gordon, 38 App. D. C. 443 ; Harrison 6 ; Foster v. Wick, 17 Ohio 250 ; 

V. Harrison, 105 Ga. 517, 31 S. E. 455, Glasscock v. Tate, 107 Tenn. 486 64 

70 Am. St. 60. S. W. 715. 



45 ESTATES AND INTERESTS IN REAL PROPERTY § 44 

A devise of lands by a testator to his wife, "her heirs and as- 
signs forever," with a stipulation that "it is my will that my said 
wife and her heirs shall hold said land in fee simple forever, or 
so long as she shall remain a widow," gives the wife a fee simple 
title, determinable on her remarriage ; and a purchaser from her 
takes with notice of the nature of her estate.^^ The event or con- 
tingency expressed must be of such a character that it may, by 
possibility, never happen.^^ Where an estate is conveyed in fee 
for a specified purpose and no other, the fee is a base fee, 
determinable upon the cessation of the use of the property 
for that purpose.^^ The right or possibility of reverter after 
the termination of such an estate is similar to, though not quite 
identical with, the possibility of reverter which remains in the 
grantor of lands upon a condition subsequent. This right repre- 
sents whatever is not conveyed by the deed, and it is the possibil- 
ity that the land may revert to the grantor or his heirs when the 
granted estate terminates.^* 

§ 44. Conditional fees at common law. — Conditional fees, 
at common law, were fees limited to some particular heir ex- 
clusive of others, as to the heirs of A's body, by which only his 
lineal descendants are admitted, in exclusion of the collateral 
heirs.^" This was construed to be a fee simple upon condition that 
the grantee had the heirs prescribed. If the grantee die leaving 
no such heirs, the land reverted to the grantor. A fee conditional 
at common law became a fee tail by the statute de donis condition 
alibus. This statute ordained that "the will of a donor according 
to the form of the deed or gift manifestly expressed, be hence- 
forth observed; so that they to whom a tenement was given 
under such condition shall have no power to alien the tenement so 
given, but that it shall remain unto the issue of them to whom 
it was given after their death, or shall revert to the donor or his 
heirs, if issue fail, or there is no issue at all."*^ The effect of the 
statute was not to create a new estate, but to prevent the dis- 
ss Haring v. Shelton, 103 Tex. 10, land, ISS Mass. 171, 29 N. E. 524, IS 
122 S. W. 13. L. R. A. 231. 

s'' Van Horn V. Campbell, 100 N. Y. ^t" Simmons' v. Augustin, 3 Port. 

287, 3 N. E. 316, S3 Am. Rep. 166. (Ala.) 69; Baltimore & O. R. Co. v. 

ssSlegel V. Lauer, 148 Pa. St. 236, Patterson, 68 Md. 606, 13 Atl. 369; 

23 Atl. 996, IS L. R. A. 547. Paterson v. Ellis, 11 Wend. (N. Y.) 

39 First Universalist Society v. Bo- 259, 277 

" 13 Edw. I. 1285. 



§ 45 TITLES AND ABSTRACTS 46 

charge of the condition by the donee's having issue of the pre- 
scribed class. The fee was preserved to such issue while there 
existed any to take it, and when there was a failure of such issue 
the reversion was secured to the donor. 

§ 45. Creation of fee simple estate by deed. — A fee simple 
estate in land may be created by deed or by will. In the creation 
of an estate in fee simple by deed at common law the limitation 
must be to one "and his heirs" ; otherwise, the grantee will take 
only a life estate.*^ And it would seem that other words of the 
same meaning will not suffice, even though the intention to pass 
a fee is clear. Thus it has been held that a fee simple will not 
pass by such words as "his lawful issue and their lawful issue 
forever,"*^ "successors and assigns forever,"** "executors, ad- 
ministrators and assigns,"*^ or "in fee simple."*® 

It would seem that no words of limitation are required to pass 
a fee simple to a corporation aggregate,*^ but the use of some 
such words is necessary to pass such an estate to a corporation 
sole.*' 

Since a quitclaim deed passes whatever interest the grantor has, 
no words of inheritance are necessary to pass a fee simple estate 
to the grantee, if the grantor was seized in fee simple.*^ But con- 
veyances between tenants in common must contain words of in- 
heritance in order to pass a fee, as one tenant in common can not 
convey to another in any other way, or by a conveyance whose 
operation is different from those used by grantors' between whom 
such relationship exists.^" When technical words of inheritance 
are not used in the conveyance, but are supplied by reference 
to another instrument which contains them, a fee simple estate 
will vest in the grantee." Whenever, however, it can be shown 

^2 Edwardsville R. Co. v. Sawyer, Congregational Soc. v. Stark, 34 Vt. 

92 111. 377; Adams v. Ross, 30 N. J. L. 243. 

505, 82 Am. Dec. 237 ; Stell v. Barkam, ^s Overseers of Poor v. Sears, 22 

87 N. Car. 62; Jordan v. McClure, 85 Pick. (Mass.) 126; Olcott v. Gabert, 

Pa. St. 495 ; Arms v. Burt, 1 Vt. 303, 86 Tex. 121, 23 S. W. 985. 

18 Am. Dec. 680; contra: Cole v. *" Rector v. Waugh, 17 Mo. 13, 57 

Lake Co., 54 N. H. 242. Am. Dec. 251. 

« Williams v. Cause, 83 S. Car. s" Rector v. Waugh, 17 Mo. 13, 57 

265, 65 S. E. 241. Am. Dec. 251. 

^* Sedgwick v. Laflin, 10 Allen ^^ Reaume v. Chambers, 22 Mo. 36 ; 

(Mass.) 430. Mercier v. Missouri &c. R. Co., 54 

45 Clearwater v. Rose, 1 Blackf. Mo. 506; Lemon v. Graham, 131 Pa. 

(Ind.) 137. St. 447, 19 Atl. 48, 6 L. R. A. 663. 

*« Taylor v. Cleary, 29 Grat. (Va.) But see Lytle v. Lytle, 10 Watts 

448. (Pa.) 259. 

" Wilcox V. Wheeler, 47 N. H. 488 ; 



47 ESTATES AND INTERESTS IN REAL PROPERTY § 45 

to a court of equity that it was the manifest intention of the 
grantor to convey a fee simple, the deed will be reformed so as 
to include words of inheritance in conformity to such intention/^ 
The use of the word "heirs" is regarded as merely indicating 
that the grantee takes an estate which will pass to his heirs, or to 
the heirs of any one to whom he may alien it; that is, it is a 
word of limitation, and not a word of purchase/^ 

The office of the habendum is to define the grantee's estate. 
However, the nature and duration of the estate are sometimes 
defined in the "premises," by which term are designated all those 
parts of a deed which go before the habendum. In naming the 
grantee in the granting clause, if the words "and his heirs" are 
added, the grantee takes an estate in fee simple, though the haben- 
dum clause be wholly omitted.'* Although the words of limita- 
tion usually appear in the habendum as an independent clause of 
the deed, it is not necessary that they should, if they appear in 
some other part, as in the premises. '^ The habendum may ex- 
plain, enlarge or qualify, biit can not contradict or defeat the 
estate granted by the premises.^^ If no words of inheritance are 
used in the premises, the grantee by the premises takes by ipipli- 
cation only a life estate at most. The habendum may then, by 
express limitation, define the estate granted as an estate in fee, 
and the estate so expressly defined necessarily excludes the un- 
certain implication from the premises.'^ 

While the word "heirs" is indispensable at common law in the 
limitation of an estate of inheritance, yet the statutes of most 
of the states have dispensed with the necessity of its use to 
create an estate in fee simple, and in some states a fee simple 
estate is presumed to have been intended, unless a contrary in- 
tention clearly appears.^^ Notwithstanding a statutory provision 

^^Ewing V. Shannahan, 113 Mo. ^^ Montgomery v. Sturdivant, 41 

188, 20 S. W. 1065; Vickers v. Leigh, Cal. 290; Riggin v. Love, 72 III. SS3; 

104 N. Car. 248, 10 S. E. 308. ■ Bodine v. Arthur, 91 Ky. S3, 12 Ky. 

=3 Cole V. Lake Co., 54 N. H. 242. L. 650, 14 S. W. 904 ; 34 Am. St. 162 ; 

" Goodtitle v. Gibbs, S B. & C. 709, Berry v. Billings, 44 Maine 416, 69 

8 D. & Ry. 502. Am. Dec. 107 ; Bean v. Kenmuir, 86 

^^ Montgomery v. Sturdivant, 41 Mo. 666. 

Cal. 290; Major v. Bukley, 51 Mo. =8 Stim. Am. St. Law, § 1474. 

227; Karchner v. Hoy, 151 Pa. St. The common law rule requiring the 

383, 25 Atl. 20. use of words of inheritance to pass a 

^s Breed v. Osborne, 113 Mass, 318; fee simple estate prevails in Delaware, 

Rines V. Mansfield, 96 Mo. 394, 9 S. Florida, New Jersey, Ohio, Pennsyl- 

W. 798; Tyler v. Moore, 42 Pa. St. vania, South Carolina and Wyoming. 
374 ; Warn v. Brown, 102 Pa. St. 347 ; 
Thompson v. Carl, 51 Vt. 408. 



§ 46 TITLES AND ABSTRACTS 48 

that the words "convey and warrant" shall convey a fee simple 
to the grantee, the grantor may use these words and yet actually 
convey in the deed, after description of the land, his intention to 
pass a less estate than one of inheritance to the first taker, which 
will be given effect.^^ 

§ 46. Creation of fee simple estate by will. — A devise 
of real estate to one and his "heirs and assigns" is the surest 
method of creating a fee in the devisee,"" but even in the absence 
of the word "heirs," other words in the will showing an intention 
to devise a fee simple are sufficient to pass such an estate."^ But 
the intention must, in the absence of a statute changing the rule, 
appear in some way on the face of the will,"^ and it is sometimes 
said that there must be words from which an intention to pass 
-a fee may necessarily be implied.^* 

But by statute in most states it is provided that a devise of 
land shall pass or be construed to pass a fee simple, or all the 
testator's interest in the land, unless a contrary intention appear 
from the words of the will;"* the presumption which formerly 
obtained that only a life estate was intended to pass, unless the 
contrary appeared, being thus reversed. "^ Where the statute 
has dispensed with the use of the word "heirs" in devising real 

59 Adams v. Merrill, 45 Ind. App. In re Barrett's Will, 111 Iowa 570, 

315, 85 N. E. 114, 87 N. E. 36. 82 N. W. 998, 5 Prob. Reb. Ann. 639; 

<"> Galloway v. Darby, 105 Ark. 558, Boston Safe Deposit &c. Co. v. Stich, 

151 S. W. 1014, 44 L. R. A. (N. S.) 61 Kans. 474, 56 Pac. 1082; Clay v. 

782n, Ann. Cas. 1914 D, 712n ; Red- Chenault, 108 Ky. 77, 21 Ky. L. 1485 ; 

dick V. Lord, 131 Ind. 336, 30 N. E. 55 S. W. 729; Fuller v. Fuller, 84 

1085; Kendall v. Clapp, 163 Mass. 69, Maine 475, 24 Atl. 946; Simonds v. 

39 N. E. 773; Jackson v. Littell, 213 Simonds, 168 Mass. 144, 46 N. E. 

Mo. 589, 112 S. W. 53, 127 Am. St. 421; Johnson v. Delome L. &c. Co., 

620. And see post chap. 30, § 793. 77 Miss. 15, 26 So. 360 ; Yocum v. 

61 Wright V. Denn, 10 Wheat. (U. Siler, 160 Mo. 281, 61 S. W. 208; Feit 
S.) 204, 6 L. ed. 303; Schneer v. v. Richard, 64 N. J. Eq. 16, 53 Atl. 
Greenbaum, 27 Del. 97, 86 Atl. 107; 824; Grain v. Wright, 114 N Y 307, 
Robinson v. Randolph, 21 Fla. 629, 58 21 N. E. 401 ; Whitfield v. Garriss, 131 
Am. Rep. 692 ; Ashby v. McKinlock, N. Car. 148, 42 S. E. 568 ; In re Tere- 
271 111. 254, 111 N. E. 101; 2 Bl. my's Estate, 178 Pa. St. 477, 35 Atl. 
Comm. 108; Co. Lit. 9b. 847; Waterman v. Greene, 12 R. I. 

62 Jackson v. Wells, 9 Johns. (N. 483; McAllister v. Tate, 11 Rich. L. 
Y-)222. (S. Car.) 509, 73 Am. Dec. 119;Dulin 

63 Wheaton y. Andress, 23 Wend. v. Moore (Tex. Civ. App ) 69 S W 
^^; J-^ '^^^- ... . 54 ; Reeves v. School Dist. 59, 24 

6* For cases illustratmg the applica- Wash. 282, 64 Pac. 752; Morrison v. 

tion of these statutes see Smith v. Clarksburg C. &c. Co., 52 W. Va. 331, 

Phillips, 131 Ala. 629, 30 So. 872; 43 S. E 102 

Ford V. Gill, 109 Ga. 691, 35 S. E. 156; 65 McConnel v. Smith, 23 111 611; 

McFarland v. McFarland, 177 111. 208, Baldwin v. Bean, 59 Maine 481 ; 

52 N. E. 281, 4 Prob. Rep. Ann. 279 ; Shirey v. Postlethwaite, 72 Pa. St. 39. 



49 ESTATES AND INTERESTS IN REAL PROPERTY § 47 

estate, the fact that a testator used the word has been held not to 
cast any doubt upon the intention of the testator to devise a fee 
simple.^' 

It has been held that, unless a contrary intention appear, a 
devise of one's "estate" located at a certain place, "^ or of "all" 
his "estate,"^' or "all" his "real estate,"'" or his "property," with 
reference to particular land or to the testator's possessions gen- 
erally,^" though without the use of the word "heirs" or other 
words of limitation, will vest a fee simple in the devisee; such 
expressions being regarded as descriptive of the quantity of in- 
terest intended to be conveyed. The same effect is given to a 
devise to a person "in fee simple," or "forever,"" and to such 
a devise with merely a charge or duty imposed on the devisee 
personally in regard to the payment of money, to enable him to 
discharge which an estate for life might not be sufficient, though 
not if the charge is imposed on the land alone." > 

§ 47. Limitations and restrictions in transfers of fee simple 
estates. — The owner of a fee simple estate can not, in its 
transfer, create an estate unknown to the law, or one which is 
prohibited by law,^^ nor is he permitted to convey to another, and 
at the same time forbid such other the right of alienation, for 
only very limited restraints on alienation are allowed.'* Thus 
he will not be permitted to transfer the estate, and by the terms 

«« Gannon v. Allbright, 183 Mo. 238, Foster v. Stewart, 18 Pa. St. 23 ; 

81 S. W. 1162, ()] L. R. A. 97, 105 Am. Arnold v. Lincoln, 8 R. I. 384. 
St. 471. ■^12 Bl. Comm. 108; Co. Lit. 9b. 

«!' Lambert v. Paine, 3 Cranch (U. '^2 Wright v. Den, 10 Wheat.. (U. 

S.) 97, 2 L. ed. 377; Robinson v. Ran- S.) 204, 6 L. ed. 303; Funk v. Eggle- 

dolph, 21 Fla. 629, 58 Am. Rep. 692; ston, 92 111. 515, 34 Am. Rep. 136; 

Leland v. Adams, 9 Gray (Mass.) Snyder v. Nesbitt, 11 Md. 576, 26 Atl. 

171. 1006; Parker v. Parker, 5 Mete. 

esSaeger v. Bode, 181 III. 514, 55 (Mass.) 134; Jackson v. Bull, 10 

N. E. 129; Godrey v. Humphrey, 18 Johns. (N. Y.) 148, 6 Am. Dec. 321; 

Pick. (Mass.) 537, 29 Am. Dec. 621; King v. Cole, 6 R. I. 584; 2 Jarman 

Forsaith v. Clark, 21 N. H. 409; Wills, 1131. 

Steward v. Knight, 62 N. J. Eq. 232, ''^ Loosing v. Loosing, 85 Nebr. 66, 

49 Atl. 535; Jackson v. Merrill, 6 122 N. W. 707, 25 L. R. A. (N. S.) 

Johns. (N. Y.) 185, 5 Am. Dec. 213. 920; In re Doebler's Appeal, 64 Pa. 

*8 Boston Safe Deposit &c. Co. v. St 9. 
Stich, 61 Kans. 474, 59 Pac. 1082 ; ^4 Hill v. Gray, 160 Ala. 273, 49 So. 

Bacon v. Woodward, 12 Gray 676; Langdon v. Ingram, 28 Ind. 360; 

(Mass.) 376; Forsaith v. Clark 21 N. Conger v. Lowe, 124 Ind. 368, 24 N. 

H. 409; Sharp v. Humphreys, 16 N. E. 889, 9 L. R. A. 165; Blackstone 

J. L. 25. Bank v. Davis, 21 Pick. (Mass.) 42, 

^0 Lincoln v. Lincoln 107 Mass. 32 Am. Dec. 241. 
590; Fogg V. Clark, 1 N. H. 163; 

4 — Thomp. Abstr. 



§ 48 TITLES AND ABSTRACTS SO 

of the transfer provide that the estate shall terminate if the 
grantee attempts to transfer it to another.'^ 

While the general policy of the law is against unHmited re- 
strictions upon the right of alienation, an owner of land may 
agree, for a valuable consideration, that he will not sell his 
property during his lifetime, or that during his lifetime a certain 
person shall have the right to say whether or not he will take 
the property at his death at a stipulated or an agreed price/' 
Some authorities hold that a condition in an instrument of con- 
veyance that the tenant of the fee shall not transfer it to a 
particular person or persons is invalid;'' while others seem to 
think that such a condition is valid.'* But, by the weight of 
authority, a condition that he can transfer it only to a certain 
class of persons, is invalid.'® The restriction against selling to 
particular persons, or to any but certain specified parties, does 
not, if valid, suspend for a moment the power of sale, but a sale 
may be made at any time to parties not coming within the re- 
striction.*" 

The fact that a restriction suspending the power of alienation 
for a limited time only, does not, by the weight of authority, 
render the restriction valid, if the estate in fee simple is vested.*^ 
But it has been held that such a restriction is valid if the estate 
is to be terminated upon the making of the alienation.*^ 

§ 48. Estates in fee tail. — An estate in fee tail is a free- 
hold estate of inheritance limited, not to the grantee's heirs in 

"Potter V. Couch, 141 U. S. 296, 602; Attwater v. Attwater, 18 Beav. 

11 Sup. Ct. 1005, 35 L. ed. 721; Win- 330; In re Rosher, 26 Ch. Div. 801. 

sor V. Mills, 157 Mass. 362, 32 N. E. See also Morse v. Blood, 68 Minn. 

352; Mutual Beneiit Life Ins. Co. v. 442, 71 N. W. 682. 

Grace Church, 53 N. J. Eq. 413, 32 8»Maudlebaum v. McDonell, 29 

Atl. 691; Hardy v. Galloway, 111 N. Mich. 78, 18 Am. Rep. 61. 

Car. 519, 32 Am. St. 828; Turley v. si Potter v. Couch, 141 U. S. 296, 

Massengil, 7 Lea (Tenn.) 353. 11 Sup. Ct. 1005, 35 L. ed. 721; Con- 

76 Elliott V. Delaney, 217 Mo. 14, ger v. Lowe, 124 Ind. 368, 24 N. E. 

116 S. W. 494. 889, 9 L. R. A. 165; Todd v. Sawyer, 

" Barnard v. Bailey, 2 Har. (Del.) 147 Mass. 570, 17 N. E. 527 ; Maudle- 

56; Williams v. Jones, 2 Swan baum v. McDonell, 29 Mich. 78, 18 

(Tenn.) 620; 4 Kent. Comm. 131. , Am. Rep. 61 ; Van Home v. Campbell, 

'sCowell V. Colorado Springs, Co., 100 N. Y. 287, 3 N. E. 316; Anderson 

100 U. S. 55, 25 L. ed. 547 ; Winsor v. v. Gary, 36 Ohio St. 506, 38 Am. Rep. 

Mills, 157 Mass. 362, 32 N. E. 352; 602; In re Rosher, 26 Ch. Div. 801. 

Co. Lit. 223. But see Harkness v. Lisle, 132 Ky. 

'^Chappell V. Chappel (Ky.), 119 767, 117 S. W. 264. 

S. W. 218 ; Schermerhorn v. Negus, 1 82 Powlkes v. Wagoner (Tenn. 

Denio (N. Y.) 448; Anderson v. Ch.) 46 S. W. 586. 
Gary, 36 Ohio St. 506, 38 Am. Rep. 



51 ESTATES AND INTERESTS IN REAL PROPERTY § 48 

general, but to the heirs of his body/^ When the grantee in tail 
is alone mentioned as a person from whose body the heirs are to 
be derived the estate is in tail general, and any of the issue of 
the donees' body can inherit.** When both the parents from 
whose bodies the heirs must be derived are specified, as where 
the grant is to one and the heirs of his body by a woman named, 
the estate is in tail special.^^ The estate may be confined to heirs 
male or female, and then the descent must be traced through 
heirs male in the one case, or heirs female in the other, and the 
estate is in tail male or female.*'' 

To create an estate in fee tail it is essential to use not merely 
the word "heirs," but some words indicating the body from which 
the heirs are to come, or some word of procreation from a par- 
ticular person.*^ While the words of limitation generally used 
are "heirs of his body," other equivalent words, which clearly 
make the limitation to the heirs of the body of the grantee, are 
sufficient. Thus it has been held that the words "heirs of his 
flesh" will create an estate in fee tail.** Any words which show 
that the word "heirs" is to be restricted to the heirs of the body, 
will be sufficient to create such an estate.*'' It has been held, 
however, that the word "issue" or "seed" can not be substituted 
for the word "heirs" in creating an estate in fee tail.^" 

In this country the statute de donis was generally recognized 
in the colonies and original estates as being in force."^ Recoveries 
for barring entails were adopted in several of the colonies, and 
generally continued in use until more effectual remedies were 
secured by statute."^ But now, however, great changes have been 
made. By the statutes of some states, estates tail have been abol- 

83 McArthur v. Allen, Fed. Cas. No. pital, 155 Mass. 323, 29 N. E. 625 ; 

8659; Riggs v. Sally, 15 Maine 408; Corbin v. Healy, 20 Pick. (Mass.) 

Corbin v. Healy, 20 Pick. (Mass.) 514; Holcomb v. Lake, 24 N. J. L. 

514; Fanning v. Doan, 128 Mo. 323, 686; Pollock v. Speidel, 17 Ohio St. 

30 S. W. 1032; Prindle v. Beveridge, 439; Hall v. Vandegrift, 3 Bin. (Pa.) 

7 Lans. (N. Y.) 225; Goodright v. 374. 

Morningstar, 1 Yeates (Pa.) 313. »» Wheeler v. Duke, 1 Cr. & M. 210. 

8* Duffy V. Jarvis, 84 Fed. 731; "i Corbin v. Healy, 20 Pick. 

Lehndorfv. Cope, 122 111. 317, 13 N. (Mass.) 514; Pollock v. Speidel, 17 

E. SOS. Ohio St. 439; Giddings v. Smith, IS 

85 Allen V. Craft, 109 Ind. 476, 9 N. Vt. 344. 

E. 919, 58 Am. Rep. 425. s2 Hawley v. Northampton, 8 M^s. 

86 Co. Lit. 377a; 2 Bl. Comm. 114. 3, 5 Am. Dec. 66; Baker v. Mattocks, 

87 Adams v. Ross, 30 N. J. L. SOS, Quincy (Mass.) 69; Den v. Smith, 
82 Am. Dec. 237. ' 10 N. J. L. 46; Jackson v. Van Zandt, 

88 Co. Lit. 20b. 12 Johns. (N. Y.) 169. 
8^ Brown v. Addison Gilbert Hos- 



§ 49 TITLES AND ABSTRACTS 52 

ished, and an attempt to create such an estate will result simply 
in vesting a fee simple in the donee.^"* In such states, the words 
of procreation used in deeds, which, without the statute, would 
have created estates tail, are to be wholly disregarded, leaving 
the limitation simply to the heirs of the grantee and creating in 
him a fee simple.^* In several states the first donee in tail takes 
the life estate and the heirs of the body of such donee take as 
purchasers, the remainder in fee simple."^ The statutes of several 
states enable the tenant in tail to bar the entail by a convenance 
in fee simple."^ In some states, however, no statutory provisions 
as to estates tail exist, and in such states, fees tail are as at com- 
mon law,^^ unless, the court deems such estates inapplicable to 
our institutions.^^ 

While estates in fee tail in their original form have now prac- 
tically fallen into disuse, their consideration is deemed important 
from the fact that they are still recognized in a form modified by 
statutory enactments. We find, for example, that it is provided in 
some states that language which formerly created an estate tail 
shall be held to create a fee simple, while in others that by such 
language a life estate only will be created. Whatever form such 
statutes abolishing or modifying estates tail as they formerly 
existed may take, in order that they may be properly applied, a 
knowledge of the character of the estate and the mode, of its 
creation is absolutely necessary. 

§ 49. Life estates.— A life estate is a freehold estate in 
land, but not of inheritance.'^ This estate can not extend beyond 

93 Duffy V. Jarvis, 84 Fed 731 ; Bar- 95 Preston v. Smith, 26 Fed. 884; 

nett V. Barnett, 104 Cal. 298, il Pac. Peterson v. Jackson, 196 111. 40 63 N. 

1049; Durant v. Muller, 88 Ga. 251, E. 643; Clarkson v. Clarkson, 125 Mo. 

14 S. E. 612 ; McIIhinny v. Mcllhinny, 381, 28 S. W. 446; Brown v. Rodgers, 

1£ l"r'^\''"'f ?o/\^''^' 24 L. R. A. 125 Mo. 392, 28 S. W. 630; Fanning 

489, 45 Am. St. 186; Lanham v. Wil- v. Doan, 128 Mo. 323, 30 S. W 1032; 

son, 15 Ky. L. 109, 22 S. W. 438; Weart v. Cruser, 49 N. J. L. 475, 13 

Pruitt V. Holland, 92 Ky. 641, 13 Ky. Atl. 36; Doty v. Teller 54 N J L. 

L. 867, 18 S. W. 852; Prichard v. 163, 23 Atl. 944, ZZ Am. St. 670. 

i""???' o,'l^?,V^°,^' ^'^ ^y- f- 243. 20 96Collamore v. Collamore, 158 

S. W. 216; Rhodes v. Bouldrey, 138 Mass. 74, 32 N E 1034 

^'?v- ^oo' i?^ ^- B 206; Nellis V. =>' Ewing v. Nesbitt, 88 Kans. 708, 

Nelhs, 99 N. Y. 505, 3 N. E. 59; 129 Pac 1131 

Nicholson V. Bettle 59 Pa. St. 384; 98jordon v. Roach, 32 Miss. 481. 

???'7o,^'t''^"'^^"''J'^^^,*-,§'-242. 23 99Cummings v. Cummings, 76 N. 

^*-cPiio"of ?'i''onl°''' ^'*^*^' ^49 J. Eq. 568, 75 Atl. 210; 2 Bl. Comm. 
Pa. St. 418, 24 Atl. 297. 120 

9* Andrews v. Spurlin, 35 Ind. 262; 

Singletary v. Hill, 43 Tex. 588. 



53 ESTATES AND INTERESTS IN REAL PROPERTY § 49 

the life or lives of some particular person or persons, but it may 
possibly continue for the period of such life or lives.^ 

To constitute a life estate, it is not necessary that it continue 
during the life or lives named, but it is sufficient that it may so 
continue, though liable to terminate sooner by the happening of 
a contingency. Thus, an estate granted to a woman for her life 
or during her widowhood, or to a man so long as he shall occupy 
certain premises, is a life estate.^ Where the estate is limited 
for the life of the tenant himself it is sometimes termed a "con- 
ventional" life estate, and where it is limited to the life of 
another person or persons it is termed an estate "pur autre vie."^ 

With reference to their creation life estates are either "con- 
ventional" or "legal." The former has reference to such as are 
created by the act of the parties, and the latter to such as are 
created by construction and operation of law.* Either of these 
forms of a life estate may be created by deed or will. Where the 
owner of the fee grants the land to another for so long as he 
lives, the grantee takes a conventional life estate.^ This form of 
life estate may be created either by express words or by impli- 
cation," but never by parol.' On the other hand, legal life estates 
result from the construction and operation of law. Thus mar- 
riage will often give both spouses life interests in the lands of 
each other, though no express contract in relation to such prop- 
erty be made.* In the absence of a statute providing that a fee 
simple is presumed to be conveyed unless otherwise restricted, no 
special words are necessary to create a life estate.^ Consequently, 
conveyances, for example, to one "and his generation, to endure 
as long as the waters of the Delaware should run ;"^° to one "his 

iGilmore v. Hamilton, 83 Ind. 196; ''Smith v. May, 3 Pennew. (Del.) 

Hurd V. Gushing, 7 Pick. (Mass.) 233, SO Atl. 59; Stewart v. Clark 1^ ' 

169; Warner v. Tanner, 38 Ohio St. Mete. (Mass.) 79; Garrett v. Clark 5 

118; 2 Bl. Comm. 121; 4 Kent Comra. Ore. 464. 

26. 8 Rose V. Rose, 104 Ky. 48, 20 Ky. 

2 McArthur v. Scott, 113 U. S. 340, L. 417, 46 S. W. S24, 41 L. R. A. 353, 
5 Sup. Ct. 652, 28 L. ed. 1015 ; Hay- 84 Am. St. 430 ; Foster v. Marshall, 
ward V. Kinney, 84 Mich. 591, 48 N. 22 N. H. 491. 

W. 170; Roseboom v. Van Vechten, ^ Bozeman v. Bishop, 94 Ga. 459, 

5 Denio (N. Y.) 414; Mattocks v. 20 S. E. 11; Kearney v. Kearney, 17 

Stearns, 9 Vt. 326. N. J. Eq. 59 ; Trusdell v. Lehman, 47 

3 Co. Lit. § 56; 2 Bl. Comm. 120; N. J. Eq. 218, 20 Atl. 391; Jackson v. 
4 Kent Comm. 25. Embler, 14 Johns. (N. Y.) 198. 

*2 Bl. Comm. 120. ""Foster v. Joice, Fed. Gas. No. 

= 2 Bl. Comm. 120. 4974, 3 Wash. (U. S.) 498. 

8 2 Bl. Comm. 121; 4 Kent Comm. 
25 



§ 50 TITLES AND ABSTRACTS 54 

executors, administrators and assigns ;"^^ to several "and their 
representatives;"^'^ to them and "assigns forever;"" have been 
held to convey life estates only to their respective grantees." 

§ 501 Estates for years. — An estate for years is an estate 
or interest in land less than a freehold, and having for its dura- 
tion a definite and ascertained period, as a term for a fixed num- 
ber of weeks, months or years.^" According to the common law, 
this estate was of less dignity than a life estate, and was not an 
interest in real estate, but was a mere chattel interest, known as 
a chattel real to distinguish it from chattels personal. The prime 
requisite of this kind of an estate is definiteness of duration, 
while there is no requirement that it must last for at least a year." 
Its duration may be limited to nine months, or any time certain 
less than a year." 

Where the term and duration of a tenancy is fixed and certain, 
it is an estate for years and not a tenancy from year to year. 
The term may be fixed to continue "during the minority of" a 
person named, or to endure for a certain time from the happening 
of a certain contingency, as in the case of a lease for twenty years 
after payment of a certain sum by the lessee to the lessor." 
Estates for years are almost invariably created by contract, and 
never by operation of law.^° The contract is called a "lease" or 
"demise;" the words "grant," "demise" and "let" being com- 
monly used, though any words expressing an intention to transfer 
the possession for a fixed time is sufficient.'"' Such contracts are 

" Hofsass V. Mann, 74 Md. 400, 22 i^ Shaffer v. Sutton, 5 Binn. (Pa.) 

Atl. 6S. 228. 

12 Mattocks V. Brown, 103 Pa. St. is Reed v. Lewis, 74 Ind. 433, 39 

16. Am. Rep. 88 ; Murray v. Cherrington, 

i^McMichael v. McMichael, 51 S. 99 Mass. 229; Batchelder v. Dean, 16 

Car. SSS, 29 S. E. 403. N. H. 265 ; Western Transp. Co. v. 

1* For other words held to pass a Lansing, 49 N. Y. 499. 

life estate, see Jossey v. White, 28 is Poppers v. Meagher, 148 III. 192, 

Ga. 265 ; Schaef er v. Schaef er, 141 35 N. E. 805 ; Sawyer v. Hanson, 24 

III. 337, 31 N. E. 136; Lowrie v. Ry- Maine 542; Cass County v. Cowgill, 

land, 65 Iowa 584, 22 N. W. 686; Cor- 97 Mich. 448, 56 N. W. 849; Loring 

by V. Corby, 85 Mo. 371 ; Sheafe v. v. Taylor, 50 Mo. App. 80. But see 

Gushing, 17 N. H. 508; Jones v. Skinner v. Skinner, 38 Nebr. 756, 57 

Stites, 19 N. J. Eq. 324; Leeper v. N. W. 534. 

Neagle, 94 N. Gar. 338 ; Robinson v. 20 Branch v. Doane, 17 Conn. 402 ; 

Robinson, 89 Va. 916, 14 S. E. 916; Duncklee v. Webber, 151 Mass. 408, 

Dew V. Kuehn, 64 Wis. 293, 25 N. W. 24 N. E. 1082 ; Horner v. Leeds, 25 

212. N. J. L. 112; Watson v. O'Hern, 6 

15 Brown v. Bragg, 22 Ind. 122. Watts (Pa.) 362. 

18 Casey v. King, 98 Mass. 503. 



55 ESTATES AND INTERESTS IN REAL PROPERTY § 51 

a charge upon the fee and must be set out in the abstract wherever 
they are found on the public records, as will be seen in a subse- 
quent part, of this work. 

§ 51. Estates at will. — An estate at will, in the primary 
and technical sense of that expression, is created by grant and 
contract, whereby one man lets land to another to hold at the 
will of the lessor.^^ In a tenancy of this kind both the entry and 
occupation are lawful, but for no definite term or purpose, subject 
to be determined at common law by either party instanter and 
without notice, or at most by mere demand of possession by the 
landlord.^^ This kind of holding is distinguished on the one 
hand from a tenancy at sufferance by adverse possession by the 
fact that it is under an agreement from the landowner. In every 
case a tenancy at will rests on the actual or presumed consent of 
the owner of the premises.^^ 

On the other hand, an estate of this kind differs from a term 
for years or for life in that it may be brought to an end at any 
time at the whim of the parties, instead of continuing until the 
happening of a certain event or the lapse of a certain period of 
time. Moreover, it was determined at an early date that if an 
estate was at the will of one of the parties it was equally at the 
will of the other.^* Where a tenant occupies the premises with- 
out rent and without any time agreed upon to limit the occupation 
and without in any way binding himself to become a tenant for 
any definite time or at any agreed price, his occupation is that 
of a tenant at will.^^ It has been held that a mere tenancy at 
will was created where a life tenant verbally leased the premises 
for the full term of his life in consideration of an agreement for 
his support.^'' Also where the owner of land allowed some of 
his relatives to use and improve it without payment of rent, it 
was held that they became mere tenants at will.^' In a case where 
no claim was made for a more permanent tenure, the occupant 
was held to be by implication a tenant at will, even without the 

21 Den V. Drake, 14 N. J. L. 523; 47 Ind. lOS, 17 Am. Rep. 692; Cowan 
4 Kent Coram. (1st ed.) 100. v. Radford Iron Co., 83 Va. 547, 3 S. 

22 Brown v. Kayser, 60 Wis. 1, 18 E. 120. 

N. W. 523 ; Webb v. Seekins, 62 Wis. 2= Maher v. James Hanley &c. Co., 

26, 21 N. y. 814. 23 R. I. 323, 50 Atl. 330. 

23Gaultv. Stormont, 51 Mich. 636, s" Barrett v. Cox, 112 Mich. 220, 

17 N. W. 214 ; Ridgely v. StiUwell, 25 70 N. W. 446. 

Mo.- 570. 27 Ellsworth v. Hale, 33 Ark. 633. 

2* Knight v. Indiana Coal &c. Co., 



§ 52 TITLES AND ABSTRACTS 56 

reservation of any rent.^* A parol gift of land creates merely 
an estate at will in the donee, which he has no power to alienate 
by deed or lease, and any attempt to do so on his part termniates 
the will.^^ A tenant who enters and continues in possession of 
the demised premises under a written lease until the expiration 
of the term, does not thereafter become a tenant at will by refus- 
ing to surrender that possession and by holding over without the 
consent of the lessor.^" 

Entry and occupation under a void parol lease creates a 
tenancy, which is either strictly at will or from year to year or 
from month to month, according to the circumstances of the 
case.^^ The rule that occupation under a void lease creates a 
tenancy at will applies only in the case of leases granted by the 
owner of the premises which can not be enforced because of a 
failure to comply with some statutory requirement as to execu- 
tion.=^ 

An estate at will is uncertain and defeasible, and is destroyed 
by the alienation of the premises by either party/^ The estate 
of a tenant at will is not an interest capable of bargain and sale. 
It can not be assigned without the landlord's consent. An un- 
authorised transfer gives the transferee no right that he can hold 
against the will of the landlord.^* 

§ 52. Estates at sufferance. — An estate at sufferance is 
where one who comes lawfully into possession of land holds over 
after his interest has determined,^^ and while he is not liable 

28 Larned v. Hudson, 60 N. Y. 102. Minn. 172 ; Yellow Jacket &c. Co. v. 

2" Jackson v. Rogers, 1 Johns. Cas. Stevenson, 5 Nev. 224. 

(N. Y.) 33; Contra, Kaufman v. 33 joy v. McKay, 70 Cal. 445, 11 

Cook, 114 111. 11, 28 N. E. 378. Pac. 763; Jackson v. Aldrich, 13 

so Ferine v. Teague, 66 Cal. 446, 6 Johns, (N. Y.) 106; Co. Lit. SSb, S7a. 

Pac. 84; Canning v. Fibush, 11 Cal. 34 Cook v. Cook, 28 Ala. 660; Mc 

196, 19 Pac. 376; Kuhn v. Smith, 125 Leran v. Benton, 1i Cal. 329, 14 Pac. 

Cal. 615, 58 Pac. 204, 73 Am. St. 79. 879; Atlanta &c. R. Co. v. McHan, 

3iphelan v. Anderson, 118 Cal. 504, 110 Ga. 543, 35 S. E. 634; Cunning- 

50 Pac. 685 ; Lockwood v. Lockwood, ham v. Holton, 55 Maine 33 ; Cooper 

??. ?°"^'i- ^'^^'' Huyser v. Chase, 13 v. Adams, 6 Cush. (Mass.) 87; Whit- 

Mich. 98; Whitney v. Swett, 22 N. temore v. Gibbs, 24 N H 484- Mc- 

H. 10; Dumn v. Rothermel, 112 Pa. Cann v. Rathbone, 8 R. I. 403. 

St 272, 3 Atl. 800; Duke v. Harper, 35 Hauxhurst v. Lobree, 38 Cal. 563; 

6 Yerg. (Tenn.) 280, 27 Am. Dec. Coomler v. Hefner, 86 Ind. 108 ; Han- 

462; Sartwell v. Sowles, 72 Vt. 270, son v. Johnson, 62 Md. 25 50 Am. 

48 Atl 11; Dolan v. Scott, 25 Wasli. Rep. 199; Warren v. Lyons, 152 Mass. 

2H6oPac. 190. 310, 25 N. E. 721 ; Abeel V. Hubbell, 

32 Toan V. Pline, 60 Mich. 385, 27 52 Mich. Zl, 17 N. W. 231 ; Poole v 

N. W. 557; Sanford v. Johnson, 24 Engelke, 61 N. J. L. 124 38 Atl 823; 

Smith V. Littlefield, 51 N. Y. 539 



57 ESTATES AND INTERESTS IN REAL PROPERTY § 53 

strictly for rent as such, he is Hable for such sum as may be 
reasonable in an action for use and occupation. It has never been 
required that there should be privity either of contract or estate 
between the parties to a tenancy at sufferance.^^ 

The distirtguishing feature of a holding by sufferance is the 
absence of consent. It is to a certain extent a wrongful holding. 
If there is any agreement it can not be a tenancy at sufferance. ^'^ 
A tenancy by sufferance is not by the consent but by the laches 
of the owner, and it follows that where the owner has been 
guilty of no laches there can be no tenancy at sufferance.'^ A 
tenancy at sufferance arises under the statutes of some states 
from a bare holding over,'^ especially where the lease stipulates 
for payment of rent beyond the term.*" An employe occupying 
premises owned by his master becomes, on holding over after the 
termination of his employment, a tenant at sufferance.*^ Also a 
purchaser of land who is put in possession before a transfer of 
title, and who makes default in the payment of an instalment of 
the purchase-money, becomes a tenant by sufferance.*^ The rule 
that one who comes into possession of land lawfully, and holds 
over after the expiration of his right, becomes a tenant at suffer- 
ance, does not apply to one whose original right of occupancy 
became vested in him by operation of law.*' 

§ 53. Estates from year to year. — An estate from year to 
year is a qualified tenancy at will introduced to obviate the incon- 
veniences of the latter kind of estate; and the qualification re- 
quires the determination of the will to be prospective, to take 
effect at the end of a current year of the tenancy.** Estates at 
will, and estates from year to year differ chiefly in that the 
former may be terminated by either of the parties at his pleasure, 
while the latter can be terminated against the tenant only at the 

38 Bennett v. Robinson, 27 Mich. 26; 19; School District No. 11 v. Batsche, 

Smith V. Littlefield, 51 N. Y. 539. 106 Mich. 330, 64 N. W. 196, 29 L. R. 

3^ Columbian Ins. Co. v. Ashby, 4 A. 576. 

Pet. (U. S.) 139, 7 L. ed. 809; John- ^2 Sanders v. Richardson, 14 Pick, 

son V. Carter, 16 Mass. 443. (Mass.) 522. 

38 Moore v. Morrow, 28 Cal. 551; « Brown v. Smith, 83 111. 291 ; Han- 
Spalding V. Hall, 6 D. C. 123. son v. Johnson, 62 Md. 25, 50 Am. 

39 Brown v. Markham, 56 Fla. 202, Rep. 199 ; Pattison v. Dryer, 98 Mich. 
48 So. 39; Swift v. Boyd, 202 Mass. 564, 57 N. W. 814; Livingston v. Tan- 
26, 88 N. E. 439. ner, 14 N. Y. 64. 

*» Benton v. Williams, 202 Mass. ** Crawford v. Morris, 5 Grat. 
189, 88 N. E. 843. (Va.) 90. 

*i Eichengreen v. Appel, 44 111. App. 



§ S3 TITLES AND ABSTRACTS, 58 

expiration of the year, month, etc., as the' case may be, by a 
notice to quit.*^ Some courts have, in the absence of any ex- 
cepting clause in the statute favoring short term parol leases, 
refused to recognize tenancies from year to year,*^ but it would 
seem without sound reason; because the doctrine of notice to 
quit for the purpose of increasing the stability of the tenant's 
tenure is a very ancient one. It existed before the passage of the 
English statute of frauds. 

In certain respects an estate from year to year resembles a 
holding under a lease for a definite term of one year. The tenant 
from year to year is bound for the full year's rent even thotigh 
he abandons the premises. If the landlord choose to hold him, a 
tenant from year to year is in no better position in regard to 
escaping liability for rent than is a lessee who is bound by express 
covenants.*^ 

An estate at will is converted into an estate from year to year 
by the payment of rent; the conversion being wrought, not by 
the length of time of the holding, but by the fact that the tenant 
entered under an agreement to pay an annual rent and pays it 
accordingly.^' A general occupancy by one other than the 
owner of land will be treated as a tenancy from year to year 
whenever the reservation of rent or other circumstances plainly 
indicate an agreement for an annual holding.*" 

The leading circumstance which turns parol leases for uncer- 
tain terms into tenancies from year to year is the reservation of 
an annual rent.°° Where a tenant enters and occupies under an 
invalid parol lease, the agreement governs the terms of the holding 
as to the amount and time for payment of rent and as to other 
matters, but not as to the duration of the term.^^ 

One of the most common ways in which a tenancy from year 
to year originates is for a landlord to allow his tenant for years 

*5 Currier v. Perley, 24 N. H. 219. 31 Mo. 13; Johnson v. Johnson, 13 R. 

«8 Hammon v. Douglas, SO Mo. 434. I. 467. 

*7 Lackwood v. Lockwood, 22 Conn. " Larkin v. Avery, 23 Conn. 304 ; 

425; Tanton v. Van Alstine, 24 111. Railsback v. Walke, 81 Ind. 409; 

App. 405 ; Currier v. Perley, 24 N. H. Laughran v. Smith, 75 N. Y. 205 ; 

219. Peoples v. Evens, 8 N. Dak. 121, 77 

48 Silsby V. Allen, 43 Vt. 172. N. W. 93 ; Baltimore & O. R. Co. v. 

« Judd V. Fairs, 53 Mich. 518, 19 N. West, 57 Ohio St. 161, 49 N. E. 344; 

W. 266; Farley v. McKeegan, 48 Thurber v. Dwyer, 10 R. I. 355 ; Bar- 

Nebr. 237, 67 N. W. 161. low v. Wainwright, 22 Vt. 88, 52 Am. 

50 Packard v. Cleveland &c. R. Co., Dec. 79. 
46 111. App. 244; Williams v. Derair, 



59 ESTATES AND INTERESTS IN REAL PROPERTY § 54 

to hold over after the expiration of the term.^^ The terms of a 
year to year holding are the same as those of a lease which pre- 
ceded it in the absence of any agreement changing them.^^ 

§ 54. Estates upon condition. — Estates upon condition 
are such as have a qualification annexed to them by which they 
may upon the happening of a particular event be created, enlarged 
or destroyed.^* They are divided into: (1), Estates upon con- 
ditions impHed in law; and (2), estates upon conditions express 
or in deed. An example of an implied condition at common law 
was that a tenant for life should not convey, by feoffment or by 
fine or recovery, a greater estate than that which he had ; for such 
conveyances, by which seisin was divested, worked a forfeiture.^^ 
Where an estate is granted in fee simple or otherwise, with an 
express qualification annexed whereby the estate shall commence, 
be enlarged or defeated upon performance or breach of such 
qualification or condition, it is an estate upon condition ex- 
pressed.^^ 

Conditions are either precedent or subsequent. Precedent con- 
ditions must happen or be performed before the estate vests."*^ 

52 Crommelin V. Thiess, 31 Ala. 412, 298, 39 Am. Rep, 147; Bradley v. 
70 Am. Dec. 499; Belding v. Texas Slater, 50 Nebr. 682, 70 N. W. 258; 
Produce Co., 61 Ark. 377, 33 S. W. Hemphill v. Flynn, 2 Pa. St. 144; 
421 ; Burkhard v. Mitchell, 16 Colo. Providence County Sav. &c. Bank v. 
376, 26 Pac. 657; Roberson v. Simons, Hall, 16 R. I. 154, 13 Atl. 122; Voss 
109 Ga. 360, 34 S. E. 604 ; Hately v. v. King, 38 W. Va. 607, 18 S. E. 762. 
Myers, 96 III. App. 217 ; Kleespies v. 5* Warner v. Bennett, 31 Conn. 468 ; 
McKenzie, 12 Ind. App. 404, 40 N., Co. Lit. 201a; 2 Bl. Comm. 152. 

E. 648; Adams Express Co. v. Mc- s^Co. Lit. §§ 415, 416; 2 Bl. Comm. 

Donald, 21 Kans. 680; Hobbs v. 274. This doctrine did not apply to 

Batory, 86 Md. 68, 37 Atl. 713 ; Card- conveyances under the Statute of 

ner v. Dakota, 21 Minn. 33 ; Finney Uses, since these conveyed only what 

V. St. Louis, 39 Mo. 177; Bradley v. the grantor had; nor does it apply at 

Slater, 50 Nebr. 682, 70 N. W. 258; this time in this country. Quimby v. 

Yetter v. King &c. Co., 66 N. J. L. Dill, 40 Maine 528 ; McCorry v. King, 

491, 49 Atl. 678; Harty v. Harris, 120 3 Humph. (Tenn.) 267, 39 Am. Dec. 

N. Car. 408, 27 S. E. 90; Parker v. 165. 

Page, 41 Ore. 579, 69 Pac. 822 ; Har- se Warner v. Bennett, 31 Conn. 468 ; 

vey v. Gunzberg, 148 Pa. St. 294, 23 Co. Lit. 201 ; 2 Bl. Comm. 154; 4 Kent 

Atl. 1005; State v. Fort, 24 S. Car. Comm. 125. 

510 ; Banbury v. Sherin, 4 S. Dak. 88, " Stockton v. Weber, 98 Cal. 433, 

55 N. W. 723; Shipman v. Mitchell, 33 Pac. 332; Hurd v. Shelton, 64 

64 Tex. 174; Peirce v. Grice, 92 Va. Conn. 496, 30 Atl. 766; Richards v. 

763, 24 S. E. 392 ; Amsden v. Atwood, Richards, 90 Iowa 606, 58 N. W. 926 ; 

67 Vt. 289, 31 Atl. 448; Allen v. Bart- Upington v. Corrigan, 69 Hun 320, 23 

lett, 20 W. Va. 46; Ganter v. Atkin- N. Y. S. 451, 53 N. Y. St. 310; TiUey 

son, 35 Wis. 48. v. King, 109 N. Car. 461, 13 S. E. 

53 Keegan v. Kinnare, 123 111. 280, 936 ; Moore v. Perry, 42 S. Car. 369, 
14 N. E. 14; Tolle v. Orth, 75 Ind. 20 S. E. 200. 



§ 54 TITLES AND ABSTRACTS 60 

If the condition never happens or is not performed, the grant or 
devise containing the condition never becomes operative.^* In 
other words, the happening or performance of the condition 
precedent is necessary to the vesting of the estate.^" Thus where 
a deed, made in consideration of the performance of certain con- 
ditions by the grantee, provides that "when these conditions are 
fully complied with, then this deed is to be in full force and 
virtue in law, and otherwise null and void," the grantee does not 
take any title until the conditions are performed."" 

Subsequent conditions are such which, by reason of nonper- 
formance, defeat the estate already created. The condition di- 
minishes or destroys the estate to which it is attached."''^ The 
characteristic of a condition subsequent is that it prescribes terms 
upon which the land granted shall revert to the grantor. If such 
a condition be impossible or unlawful, the estate already vested 
can not be defeated."^ Conditions subsequent can not affect the 
estate conveyed until they have been broken."^ Conditions sub- 
sequent are not favored ;"* but they are favored rather than con- 
ditions precedent."' 

It is not always easy to determine whether a particular clause 
constitutes a condition precedent or a condition subsequent, as 
there are no technical words by which to distinguish between 
them."" It is a matter of intention of the party imposing the 
condition to be gathered from the whole instrument and not 
merely from the terms of a part of it."'' If it appears that the 
condition on which the estate depends must be performed before 

58 Mizell V. Burnett, 49 N. Car. 249, «3 Lynch v. Melton, ISO N. Car. 
69 Am. Dec. 744; Donohue v. Mc- 595, 64 S. E. 497, 27 L. R. A. (N. S.) 
Nichol, 61 Pa. St. n. 684n. 

59 Borst V. Simpson, 90 Ala. Zli, 7 "s Aumiller v. Dash, 51 Wash. 520, 
So. 814. 99 Pac. 583. 

eoQakman v. Walker, 69 Vt 344, «* Patterson v. Patterson, 135. Ky. 

38 Atl. 63. 339, 122 S. W. 169; Potomac Power 

ei Bank of Suisun v. Stark, 106 Cal. Co. v. Burchell, 109 Va. 676, 64 S. E. 

202, 39 Pac. 531; Ritchie v. Kansas 982. 

&c. R. Co., 55 Kans. 36, 39 Pac. 718 ; os Congregational Church Bldg. Soc. 

Rice V. Boston &c. R. Corp. 12 Allen v. Everett, 85 Md. 79, 36 Atl. 654, 35 

(Mass.) 141; Harrison v. Foote, 9 L. R. A. 693, 60 Am. St. 308. 

Tex. Civ. App. 576, 30 S. W. 838 ; ee Nicoll v. New York &c. R. Co., 

Mills V. Seattle &c. R. Co., 10 Wash. 12 N. Y. 121. 

520, 39 Pac. 24€. But see Baker v. "'Lynch v. Melton, 150 N. Car. 

Mott, 78 Hun 141, 28 N. Y. S. 968, 60 595, 64 S. E. 497, 27 L. R A (N S.) 

N. Y. St. 174 ; Kilpatrick v. Balti- 684n ; Finlay v. King, 3 Pet. (U. S.) 

more, 81 Md. 179, 31 Atl. 805, 27 L. 346, 7 L. ed. 701 ; Frank v. Straford- 

R. A. 643, 48 Am. St. 509; Studdard Handcock, 13 Wyo. 37, 11 Pac 134, 

v. Wells, 120 Mo. 25, 25 S. W. 201. 67 L. R. A. 571, 110 Ai^. St. 963. 



61 ESTATES AND INTERESTS IN REAL PROPERTY § 55 

the estate can vest, it is a condition precedent; if, however, the 
performance of the act does not necessarily precede the vesting 
of the estate, but may accompany or follow it, there is a condition 
subsequent/® 

§ 55. Estates upon limitation. — The word "limitation" in 
legal sense has two distinct meanings. Primarily, it signifies the 
marking out of the bounds or limits of the estate created ; in the 
other sense it signifies simply the creating of an estate.^' When 
used in the habendum clause of a deed, it is an appropriate word 
to declare the nature and extent of the estate granted, and the 
uses for which the grant is made.'" 

An estate upon limitation, therefore, is an estate created by 
the use of words denoting duration of time; such as "while," 
"until," "during," "as long as," etc.'^ Such are estates, to A so 
long as he shall live on the premises; to A and the heirs of his 
body, while they do not sell intoxicating liquor on the land. 
Thus we see the estate is one which is determined, rather than 
defeated, by the happening of a contingency.'^ In a case where 
land is granted to a woman "during widowhood," the words 
"during widowhood" define the time during which it is the inten- 
tion of the grantor that the estate shall endure, and at the end 
of which time the estate shall end. However, neither the use 
of such words of limitation, nor their absence, is conclusive.'^ 

A limitation determines an estate upon the happening of the 
event itself, without the necessity of doing any act to regain the 
estate.'* "A condition is to be carefully distinguished from a 
limitation. It is the character and quality of the estate granted, 
and not the terms used in their creation, fhat distinguishes them. 
The latter requires no entry to determine the estate, but termi- 
nates it ipso facto by the happening of the event referred to, 

. 68Finlay v. King, 3 Pet. (U. S.) 268; Henderson v. Hunter, 59 Pa. 

346, 7 L. ed. 701; Burdis v. Burdis, St. 335; In re Machu, 21 Ch. Div. 

96 Va. 81, 30 S. E. 462, 70 Am. St. 838; Co. Lit. 234b. 

825 ; Donnelly v. Eastes, 94 Wis. 390, '2 Partington's Cas. 5 Coke 41 ; 2 

69 N. W. 157. BI. Comm. 155. 

68 Starnes v. Hill, 112 N. Car. 1, 16 " wheeler v. Walker, 2 Conn. 196, 

S. E. 1011, 22 L. R. A. 598. ■ 7 Am. Dec. 264; Stearns v. Godfrey, 

'0 Mills V. Davison, 54 N. J. Eq. 659, 16 Maine 158; Owen v. Field, 102 

35 Atl. 1072, 35 L. R. A. 113, 55 Am. Mass. 90; Camp v. Cleary, 76 Va. 140. 

St. 594. 74 Hoselton v. Hoselton, 166 Mo. 

'1 Vanatta v. Brewer, 32 N. J. Eq. 182, 65 S. W. 1005. 



§ 56 TITLES AND ABSTRACTS 62 

while the former is determined only by the re-entry of the grantor 
or his heirs for the condition broken."" 

§ 56. Estates upon conditional limitation. — An estate 
upon conditional limitation is one which arises from a conveyance 
to one person, with words of either condition or limitation, and 
with the further provision that, upon the happening of a speci- 
fied contingent event, it shall depart from him and go over to 
another person." Such are estates, to A and his heirs until 
he marries and then to B and his heirs; to A for twenty years, 
but if he sell intoxicating liquor on the premises, then to B for 
the residue of the term. Thus we see, the estate partake both of a 
condition and a limitation;^' of a condition because it defeats the 
estate previously limited; of a limitation, because upon the hap- 
pening of the contingency, the estate passes to the person in whose 
favor the limitation is made.'^ 

"One material difference, therefore, between an estate in fee 
on condition and on a conditional hmitation is briefly this : that the 
former leaves in the grantor a vested right, which, by its very 
nature, is reserved to him as a present existing interest, transmis- 
sible to his heirs; while the latter passes the whole interest of the 
grantor at once, and creates an estate to arise and vest in a third 
person upon a contingency, at a future and uncertain period of 
time. A grant of a fee on condition only creates an estate of a 
base or determinable nature in the grantee, leaving the right or 
possibility of reverter vested in the grantor. Such an interest 
or right in the grantor, as it does not arise and take effect upon a 
future uncertain or remote contingency, is not liable to the ob- 
jection of violating the rule against perpetuities in the same degree 
with other conditional and contingent interests in real estate of 
an executory character. The possibility of reverter, being a 
vested interest in real property, is capable at all times of being 
released to the person holding the estate on condition, or his 
grantee, and if so released vests an absolute and indefeasible title 

"Bryan v. Spires, 3 Brewst. (Pa.) "Brattle Square Church v. Grant, 

7GW . ct J nn ^, A-rn 3 Gray (Mass.) 142, 63 Am. Dec. 725. 

^^Horton V. Sledge, 29 Ala. 478; ^s Brattle Square Church v. Grant, 

§"^o,"'l'';^°'^^"'ii^ I"d. ISO 17 N. 3 Gray (Mass.) 142, 63 Am. Dec. 725; 

ii. ^81, / Am. bt. 4^0; Brattle Square Fowlkes v. Wagoner (Tenn ) 46 S. 

Church V. Grant, 3 Gray (Mass.) 142, W. 586 

63 Am. Dec. 725; Miller v. Levi, 44 

N. Y. 489. 



63 ESTATES AND INTERESTS IN REAL PROPERTY § 57 

thereto. The grant or deVise of a fee on condition does not 
therefore fetter and tie up estates, so as to prevent their ahena- 
tion, and thus contravene the poHcy of the law which aims to 
secure the free and unembarrassed disposition of real property. 
It is otherwise with gifts or grants of estates in fee with limita- 
tions over upon a condition or event of an uncertain or indeter- 
minate nature. The limitation over being executory, and de- 
pending on a condition, or an event which may never happen, 
passes no vested interest or estate. It is impossible to ascertain 
in whom the ultimate right to the estate may vest, or whether it 
will ever vest at all, and therefore no conveyance or mode of 
alienation can pass an absolute title, because it is wholly uncer- 
tain in whom the estate will vest on the happening of the event or 
breach of the condition upon which the ulterior gift is to take 
effect."" 

§ 57. Legal and equitable estates. — Estates as regards 
their quality are either legal or equitable. A legal estate is one 
which arises under, and is recognized by the common or statutory 
law. The legal estate in land is the whole estate therein, and the 
holder of the legal title is the sole owner.^" Prior to the time 
when courts of equity began to take cognizance of estates in land 
every estate was "legal" in the proper acceptation of that term, 
and in contemplation of law there was and could be but one 
estate, which might properly be denominated the "legal estate."*^ 
Such legal estates known to the courts of law, and which they 
protected, are, in the main, the strictly legal estates which are 
recognized by the courts of law today. They were and are such 
interests in lands, for which the owners have, by and for them- 
selves, their remedies at law for any wrongful taking thereof or 
injury thereto. 

Equitable estates are interests which a person has in lands, 
tenements and hereditaments which can be enforced only in a 
court of equity.^^ Such an estate is not, however, strictly speak- 
ing, an interest in the land itself, but a right which can be en- 
forced in equity.^* Upon the establishment of the system of 

T» Brattle Square Church v. Grant, sz Mcllvaine v. Smith, 42 Mo. 45, 97 

3 Gray (Mass.) 142, 63 Am. Dec. 725. Am. Dec. 295; Avery v. Dufrees, 9 

8° In re Qualification of Electors, Ohio, 145. 

19 R. I. 387, 35 Atl. 213. ss jn re Qualification of Electors, 

81 Sayre v. Mohney, 30 Ore. 238, 47 19 R. I. 387, 35 Atl. 213. 
Pac. 197. 



§ 58 TITLES AND ABSTRACTS 64 

equity jurisprudence, rights and interests in real property which 
courts of law did not recognize were protected and enforced by 
courts of equity. These rights or interests thus recognized by 
courts of equity are termed "equitable estates," and they may 
exist in fee simple, fee tail, for life, or for years. Ordinarily, 
equitable estates in fee are subject to the same incidents which 
attach to legal estates in fee, and, generally speaking, these in- 
clude the right to dispose of the estate by alienation as well as by 
devise.^* Equitable estates descend in case of intestacy, and are 
subject to the rights of dower and curtesy. The most important 
forms of equitable estates are uses and trusts, which will be 
discussed in succeeding sections. 

§ 58. Uses. — A use, as it originally existed, was an equi- 
table right to the beneficial enjoyment of an estate, the seisin or 
possession of which was in another. Such rights were not rec- 
ognized in the courts of law, but were protected and enforced by 
courts of equity. By the statute of 27 Henry VIII, c. 10, com- 
monly called the Statute of Uses, it was provided that, in the 
case of a use, the seisin should be transferred to the person en- 
titled to the use, and thereafter uses ceased to exist as equitable 
obligations separate from the legal title, except in certain cases 
which were decided not to be within the operation of the statute, 
and three of which have survived under the name of trusts. A 
modern use, therefore is an estate of right which is acquired 
through the operation of the Statute of Uses; and which, when 
it may take efifect according to the rules of the common law, is 
called the "legal estate," and, when it may not, is denominated a 
"use." The statute of Uses is in force in many of the states of 
this country, either by re-enactment or judicial recognition.*^ In 
some states, however, the statute is not recognized,*" and in others 
all uses and trusts have been abolished by statute, except in cer- 
tain cases.*' 

8*Gunn V. Brown (Md.), 23 Atl. 799, 31 Atl. 167; Reeves v. Brayton, 

462; Ropes v. Upton, 125 Mass. 2S8; 36 S. Car. 384, 15 S. E. 658. 

Lewin, Trusts, 692; Story Eq. Jur. »« McCurdy v. Otto, 140 Cal. 48, 

§ 974. 1Z Pac. 748 ; Farmers & Merchants' 

85 Webster v. Cooper, 14 How. (U. Ins. Co. v. Jensen, 58 Nebr. 522, 78 N. 
S.) 488, 14 L. ed. 510; Morgan v. W. 1054, 44 L. R. A. 861 ; Helf enstein 
Rogers, 79 Fed. 577, 25 C. C. A. 97; v. Garrard, 7 Ohio 275; Gorham v. 
Tindal v. Drake, 51 Ala. 574; Bryan Daniels, 23 Vt. 600. 
V. Bradley, 16 Conn. 474 ; Myers v. 87 See statutes of New York, Mich- 
Myers, 167 111. 52, 47 N. E. 309 ; Kay igan, Minnesota, South Dakota and 
V. Scates, 37 Pa. St. 31, 78 Am. Dec. Wisconsin. 
399; Sullivan v. Chambers, 18 R. I. 



65 ESTATES AND INTERESTS IN REAL PROPERTY § 59 

It must be understood that, where the Statute of Uses is in 
force, every estate arising thereunder is a legal and not an equita- 
ble estate, and that it is solely by reason of the fact that the statute 
fails to operate in certain cases, that a class of equitable estates 
exists. The uses which have been decided not to be within the 
operation of the statute are, active uses, uses in chattel interests, 
uses to the legal grantee, uses upon a use and estates for the 
separate use of married women. If the use imposed on the first 
taker is of an active nature, involving the exercise of some power, 
agency or control by him, it has been held that the statute will 
not operate.** This holding* is on the ground that it would be 
impossible for such person to perform his duties in regard to the 
estate unless he is permitted to retain the legal title.*' Also uses 
in chattel interests, that is, interests or estates for a term of years, 
have been held not within the statute, because the language of the 
statute is "where any person or persons stand or be seised," and 
a tenant for years is not "seised."^" Also a use limited to the 
grantee of a legal estate is held not within the statute, because 
the provisions of the statute apply to cases where one person is 
seised to the use of another person.'^ A use limited upon a use is 
another case which has been held not to be within the terms of 
the statute, because the effect of the statute is exhausted in the 
first use.'^ Also lands conveyed or devised for the separate use 
of a married woman are held not within the statute, because, if 
the legal title were to vest in her, the purpose of the use would 
be defeated by entitling the husband to control the estate."^ 

§ 59. Trusts. — While it was the object of the statute of 
Uses to destroy that double property in land which resulted from 
the invention of conveyances to uses, it is evident that this object 

88 Kirkland v. Cox, 94 111. 400. s2 Durant v. Ritchie, Fed. Cas. No. 

89 In re Clark's Appeal, 70 Conn. 195 ; 4190; Reid v. Gordon, 35 Md. 183; 
39 Atl. 155; Hart v. Seymour, 147 Hutchins v. Heywood, 50 N. H. 491. 
111. 598, 35 N. E. 246; Morton v. Bar- »3 Bowen v. Chase, 94 U. S. 812, 24 
rett, 22 Maine 261, 39 Am. Dec. 575; L. ed. 184; Dean v. Long, 122 111. 
Hutchins V. Heywood, 50 N. H. 500; 447, 14 N. E. 34; Ware v. Richardson, 
In re Barnett's Appeal, 46 Pa. St. 392, 3 Md. 505, 56 Am. Dec. 762 ; Richard- 
86 Am. Dec. 502 ; Sprague v. Sprague, son v. Stodder, 100 Mass. S28-; Wal- 
13 R. I. 701 ; Blount v. Walker, 31 S. ton v. Drumtra, 152 Mo. 489, 54 S. W. 
Car. 13, 9 S. E. 804. 233 ; Pittsfield Sav. Bank v. Berry, 

»» Kirkland v. Cox, 94 111. 400. 63 N. H. 109 ; Steacy v. Rice, 27 Pa. 

91 Meredith v. Joans, 3 Cro. Cas. St. 75, 67 Am. Dec. 447. 
244; Peacock v. Eastland, L. R. 10 
Eq. 17. 

5 — Thomp. Abste. 



§ 59 TITLES AND ABSTRACTS 66 

was not entirely accomplished. The strict construction put upon 
the statute by the courts defeated, in a large measure, the objects 
for which it was enacted. As was pointed out in the preceding 
section, there were certain uses upon which the statute had no 
effect. These uses continue separate and distinct from legal 
estates, and are recognized and supported by courts of equity as 
such, under the general name of trusts."* A trust, therefore, is 
a use not executed by the Statute of Uses.°^ The words "use" 
and "trust" were both mentioned in the statute, and were per- 
fectly synonymous ; but as the provisions of the statute were not 
deemed co-extensive with the various modes of creating uses, such 
uses as were not provided for by the statute were left to their 
former jurisdiction. A trust is the general name applied to the 
relation between two persons, by virtue of which one of them, 
as trustee, holds the legal title to property for the benefit of the 
other who holds the equitable title and who is called the cestui que 
trust. There are certain distinct modes of creating trusts; that 
is to say, there are certain principal cases in which legal estates, 
created upon trusts for certain purposes, will not be executed or 
transferred from the common law grantee to the beneficiary by 
force of the statute. These cases, as explained in the preceding 
section were chattel interests, active uses, estates for the separ- 
ate use of married women, a use upon a use, and uses to grantees 
of legal estates. 

Respecting their manner of creation, trusts are divided into 
express trusts, and implied trusts. Express trusts, are those 
which are created in express terms in the deed or will,"" or by 
words showing an intention to create a trust."^ When the in- 
strument creating a trust contains all the terms of the trust, and 
nothing remains to be done to carry out its terms, it is termed an 
executed trust."^ But when the full intention of the donor is 
not declared, so that something remains to be done in order to 
complete the trust, it is said to be executory."^ 

»* Ware v. Richardson, 3 Md. SOS, s>7 Tennant v. Tennant, 43 W. Va. 

56 Am. Dec. 762; Farmers' Loan & 547, 27 S. E. 334. 

Trust Co. V. Carroll, S Barb. (N. Y.) ss in re Fair's Estate, 132 Cal. 523, 

^'■t ^. , T,. . , ,„ 60 Pac. 442, 64 Pac. 1000, 84 Am. St. 

»5 Fisher V. Fields, 10 Johns. (N. 70; Cornwell v. Orton, 126 Mo. 355, 

Y.) 495 ; Fuller v. Missroon, 35 S. 27 S. W. 536 

Car 314, 14 S E. 714 »» Gaylord v. Lafayette, 115 Ind. 

»« Jones V Byrne, 149 Fed. 457; 423, 17 N. E. 899; Morris v. Linton, 

Caldwell v. Matthewson, 57 Kans. 258, 74 Nebr. 411, 104 N W 927 • In re 

45 Pac. 614; Kaphan v. Toney (Tenn. Smith's Estate, 144 Pa. " St. 428, 22 

Ch. App.) 58 S. W. 909. Atl. 916, 27 Am. St. 641. 



67 ESTATES AND INTERESTS IN REAL PROPERTY § 59 

While no particular or technical words are required to create 
an express trust, the words used for that purpose must clearly 
show an intention on the part of the donor to give to one the 
legal title to the property, and to another the equitable title 
thereto.^ There must concur sufficient words or acts to show an 
unequivocal intention to devote the subject-matter to the object 
of the trust; the subject-matter must be definite in character and 
so at the disposal of the settler as to enable him to devote it to 
the object of the trust; and this object must be one that is lawful, 
certain and ascertained.^ 

The donor frequently expresses his desire by words of entreaty, 
expectation, request, recommendation, hope, wish, desire, and the 
like, rather than by words of command. Such expressions are 
termed "precatory words," and they have often been held suffi- 
cient to create a trust in favor of the person or object sought to 
be benefited.^ 

While no consideration is required to support an executed 
trust,* equity will not enforce an executory agreement to create 
a trust in the absence of any consideration.^ 

A trust may often be implied from the nature of the powers 
granted or duties imposed by the instrument creating it.^ But 
in order that a trust may be implied from the context of an in- 

iln re Heywood's Estate, 148 Cal. 7 N. E. 269; Brunson v. Henry, 140 

184, 82 Pac. 755; Hughes v. Fitzger- Ind. 455, 39 N. E. 256; Hall v. Hall, 

aid, 78 Conn. 4, 60 Atl. 694 ; Quinn v. 76 Kans. 806, 93 Pac. 177 ; Bennett v. 

Shields, 62 Iowa 129, 17 N. W. 437, Littlefield, 177 Mass. 294, 58 N. E. 

49 Am. Rep. 141 ; Patrick v. Patrick, 1011 ; Ownes v. Ownes, 23 N. J. Eq. 

135 Ky. 307, 122 S. W. 159 ; Robinson 60. But see Hamilton v. Downer, 152 

V. Cogswell, 192 Mass. 79, 78 N. E. 111. 651, 38 N. E. 733 ; Beeman v. Bee- 

389; Pembroke Academy v. Epsom man, 88 Hun 14, 34 N. Y. S. 484, 68 

School Dist., 75 N. H. 408, 75 Atl. 100, N. Y. St. 491. 

37 L. R. A. (N. S.) 646n; Close v. = Moore v. Ransdel, 156 Ind. 658, 

Farmers' Loan &c. Co., 195 N. Y. 92, 59 N. E. 936 ; Fisher v. Hampton 

87 N. E. 1005 ; Haywood v. Wright, Trans. Co., 136 Mich. 218, 98 N. W. 

152 N. Car. 421, 67 S. E. 982; In re 1012, 112 Am. St. 358; Brannock v. 

Nevins' Estate, 192 Pa. St. 258, 43 Magoon, 141 Mo. App. 316, 125 S. W. 

Atl. 996; Holmes v. Walter, 118 Wis. 535. 

409, 95 N. W. 380, 62 L. R. A. 986. • « Prince v. Barrow, 120 Ga. 810, 48 

2 Lines v. Darden, 5 Fla. 51; In re S. E. 412; Ingraham v. Ingraham, 169 
Soulard's Estate, 141 Mo. 642, 43 S. 111. 432. 48 N. E. 561, 49 N. E. 320; 
W. 617; In re Smith's Estate, 144 Pa. • Robinson v. Cogswell, 192 Mass. 79, 
St. 428, 22 Atl. 916, 27 Am. St. 641. 78 N. E. 389; Barksdale v. Capital 

3 McRee v. Means, 34 Ala. 349 ; City Realty Co., 88 Miss. 623, 42 So. 
Warner v. Bates, 98 Mass. 274; Knox 668; Woodward v. James, 115 N. Y. 
V. Knox, 59 Wis. 172, 18 N. W. 155, 346, 22 N. E. 150; In re Warner's Ap- 
48 Am. Rep. 487; Contra, Colton v. peal, 80 Pa. St. 140; Woodruff v. 
Colton, 21 Fed. 594; Hopkins v. Pleasants, 81 Va. 37; Wolbert v. 

' Glunt, 111 Pa. St. 287, 2 Atl. 183. Beard, 128 Wis. 391, 107 N. W. 663. 

*Massey v. Huntington, 118 111. 80, 



§ 59 TITLES AND ABSTRACTS 68 

strument it must be reasonably certain in its terms as to the 
property embraced in the trust; the beneficiaries, the nature of the 
estate they are to have, and the manner in which the trust is to 
be executed, and, when either of these elements are indefinite or 
uncertain, the trust must fail/ When a trust arises by implica- 
tion or construction of law in order to carry out the presumed 
intention of the parties, it is termed a resulting trust. Thus 
where one -standing in a fiduciary relation uses fiduciary funds to 
purchase property in his own or in another's name, a resulting 
trust will be created.* Also a resulting trust will arise in con- 
nection with certain fraudulent dealings with property.^ 

There is a class of implied trusts which arise entirely by con- 
struction of equity, independently of any intention of the parties, 
and often contrary to their intention, for the purpose of prevent- 
ing fraud, or promoting justice. These are called constructive 
trusts." 

Trusts are also classified as passive and active trusts. A pas- 
sive trust, or dry trust as it is sometimes called, is one in which 
the trustee has a mere legal title, and which, in jurisdictions 
where the Statute of Uses is in force, will be executed so as to 
vest the entire legal title in the beneficiary.^^ Where- the trustee 
is given a mere legal title, with no control over the subject 
matter, and no duties to perform, the trust is passive and is 
executed in the cestui que trust by the Statute of Uses.^^ An active 
trust is one in which powers or duties are imposed upon the trus- 
tee with reference to the property granted ar devised, in which 
case it becomes necessary that he should continue to hold the 
legal title in order to perform his duty or execute the trust." 

7 Smullin V. Wharton, 73 Nebr. 667, 424, 123 S. W. 29, 25 L. R. A. (N. S.) 
103 N. W. 288, 106 N. W. 577, 112 424n; Hayes v. Tabor, 41 N. H. 521; 
N. W. 622, 113 N. W. 267. Denison v. Denison, 185 N. Y. 438, 78 

8 Williams v. Williams, 108 Iowa N. E. 162; Mims v. Machlin, 53 S. 
91, 78 N. W. 792 ; Avery v. Stewart, Car. 6, 30 S. E. 585 ; Holmes v. Wal- 
136 N. Car. 426, 48 S. E. 775, 68 L. ter, 118 Wis. 409, 95 N. W. 380, 62 L. 
R. A. 776. R. A. 986. 

"Trapnall v. Brown, 19 Ark. 39; ' 12 Ringrose v. Gleadall, 17 Cal. App. 

Walker v. Bruce, 44 Colo. 109, ^1 Pac. 664, 121 Pac. 407 ; Jones v. Jones, 223 

250. Mo. 424, 123 S. W. 29, 25 L. R. A. 

loScadden Flat Gold-Min. Co. v. (N. S.) 424n-. 

Scadden, 121 Cal. 33, 53 Pac. 440; i3 Chicago Terminal T. R. Co. v. 

Wilhams v. Wilhams, 108 Iowa 91, Winslow, 216 111 166 74 N E 815; 

78 N. W. 792; Avery v. Stewart, 136 Gerard v. Buckley, 137 Mass. 475; 

N. Car. 426, 48 S. E. 775, 68 L. R. A. Webb v. Hayden, 166 Mo. 39, 65 S. 

776. W. 760; Story v. Palmer, 46 N. J. 

"Russell V. Bates, 181 Mass. 12, Eq. 1, 18 Atl. 363; In re Spring's 

62 N. E. 950; Jones v. Jones, 223 Mo. Estate, 216 Pa. 529, 66 Atl. 110. 



69 ESTATES AND INTERESTS IN REAL PROPERTY § 60 

Thus where the trustee is given the duty to care for the land, 
pay taxes, collect rents or make sale of or mortgage the land, the 
trust is active.^* 

§ 60. Powers. — A power is an authority reserved by or 
limited to one to do certain acts in relation to the subject-matter 
of the gift for his own benefit or for the benefit of another, and 
operating upon an estate vested either in himself or in another. 
It must be understood, however, that the power is distinct from 
the estate,^^ although it may be, and frequently is, coupled with 
an interest in the land, as in case of a gift to a tenant for Hfe, 
with a general power of disposition; in which case the power 
does not enlarge the life estate into a fee, although a sale there- 
under will pass a fee to the purchaser.^^ 

It will be observed that the procedure under powers presents 
a new mode of conveyance, operating through the medium of 
springing and shifting uses; and inasmuch as such uses may be 
created either by deed or by will, lands may be transferred in 
this manner either by will or deed. In form and general attrib- 
utes powers are executory interests, but are called powers from 
the fact that their distinguishing feature is that some designated 
person has the power to raise the use in another. Before the 
enactment of the Statute of Uses, powers were merely directions 
to the trustee of the legal estate as to the manner of transferring 
the estate. They were future uses to be designated by the person 
on whom the power was conferred. When such future uses 
arose, equity compelled the trustee to observe them; and when 
conveyances under the Statute of Uses became established, it 
was still usual to reserve or limit such powers as the exigencies of 
the case required. 

A power differs from an estate, in that no title or interest in 
the land is vested in the donee by reason of the creation of the 
power. There is also a clear distinction between a power and a 
trust. Thus a power conferred upon one by will is not imperative, 
but may be exercised by him at his discretion; while a trust is 
imperative, and is made with strict reference to its faithful ex- 
ecution. The trustee is not empowered, but is required to act in 

" Chicago Terminal T. R. Co. v. " Sewall v. Wilmer, 132 Mass. 131 ; 

Winslow, 216 III. 166, 74 N. E. 81S; Eaton v. Straw, 18 N. H. 320. 

Gerard v. Buckley, 137 Mass. 475; " Durr v. Wilson, 116 Ala. 125, 22 

Webb V. Hayden, 166 Mo. 39, 65 S. So. 536; Vamplew v. Chambers, 29 

W. 760. Nebr. 83, 45 N. W. 268. 



§ 60 TITLES AND ABSTRACTS 70 

accordance with the will of the testator. ^^ However, if the 
power is made a duty, or if it is coupled with the duties of a 
trustee for the benefit of the trust, or ministerial or coupled with 
an interest, it may be enforced by a court of equity.^* 
' Powers are either general or special. They are general when 
they are capable of being exercised by the donee in favor of any 
person, including himself, and are not restricted as to the estate 
or interest over which he may exercise the power, while the 
power is special if its exercise is restricted to particular persons, 
or a particular class of persons, or if it can be exercised only for 
certain named purposes or under certain conditions.^" 

Powers are also further classified as appendant or appurtenant, 
in gross, or collateral. Powers are said to be appendant or ap- 
purtenant when they depend on the estate limited to the person 
to whom they are given.^" Thus, where an estate for life is 
limited to a person, with a power to convey or incumber his life 
estate, the power is appendant.^'^ Powers collateral or in gross 
are powers given to one who has an interest in the estate, to 
create such estates only as will not attach on the interest limited 
to him, or take effect out of his own interest. Thus where a 
tenant for life has a power to create an estate which is not to 
begin until his own ends. It is a power in gross, because the 
estate for life has no concern in it.^^ A power simply collateral 
is a power given to a person not having any interest or estate in 
land, and to whom no estate is given, to dispose of or charge 
the estate in favor of another.^^ 

Again, powers are ( 1 ) exclusive, such as to appoint to certain 
members of a class,^* or (2) nonexclusive, as a power to appoint 
among all the members of a class.^^ 

T " ^^T^,^^""^*^*", *^ '"'''"5* Co. V. 23McGriflf V. Porter, S Fla. 373; 

Jones, 103 Tenn. 245, 58 S. W. 219. Hammond v. Croxton, 162 Ind. 353, 

«o oi^?"^^ I-,/''^?'^^''^^'*' ^i Ga- 69 N. E. 250, 70 N. E. 368; Bradt v. 

?i?' ?} ^- ?;^^''vi .Nugent v. Cloon, Hodgdon, 94 Maine 559, 48 Atl. 179; 

sF „^^'no^i^vP^-,,?'''i^ ^- Gordon, Raid v. Gordon, 35 Md. 174. 

^.^u- ^' ^^ ^■^- ^^S , '* Portsmouth v. Shackford, 46 N. 

/D T -?o'?P','?"a'^- ^^™°°rn^^ ^hzit. H. 423 ; Graefif v. De Turk, 44 Pa. St. 

(Pa.) 287 31 Am. Dec. 502; Sugden 527; Ruling v. Fenner, 9 R. I. 410. 

Powers (8th ed), 394. 2s Hatchett v. Hatchett, 103 AI^. 

n u'°'^w-7- ^T,''!^^' ^^i^"^- ^^' 556. 16 So. 550; Faloon v. Flannery, 

Clark V Wilson 53 Miss 119. 74 Minn. 38, 76 N. W. 954 ; Lippincott 

c i,?^i'll"'^ ""• ^""*' ^^ ^°- ^' 64 V. Ridgway, 10 N. J. Eq. 164; 

2^ „. ,, ,,„ ., , Thrasher V. Ballard, 35 W. Va. 524, 

22 Young V. Sheldon, 139 Ala. 444, 14 S. E. 232 
26 So. 27, 101 Am. St. 44; Garland v! 
Smith, 164 Mo. 1, 64 S. W. 188. 



71 ESTATES AND INTERESTS IN REAL PROPERTY § 61 

§ 61. Easements. — An easement is a right in the owner of 
one parcel of land, by virtue of such ownership, to use the land 
of another for a special purpose not inconsistent with a general 
property in the latter.^" In strictness it is a mere use of the land 
of another without taking anything from it.^^ It is a privilege, 
service or convenience in the estate of another, but comprises no 
interest in the land itself.^^ One person may own land in fee 
simple, and be in actual possession thereof, while another may 
have an easement therein.^". But one can not have an easement in 
his own lands.^° 

Strictly speaking, an easement does not confer title, but it may 
afifect the title and possession of the owner to such an extent as 
to be more than an incumbrance/^ Its existence is a breacli of 
a covenant against incumbrances.^^ 

The essential qualities of easements are: (1) They are incor- 
poreal; (2) they are imposed upon corporeal property; (3) they 
confer no right to a participation in the profits arising from such 
property, and (4) there must be two distinct tenements, the domi- 
nant to which the right belongs, and the servient upon which the 
obhgation rests.^^ 

There is a well-settled distinction between an easement and 
license, although it is sometimes difficult to discover a substantial 
difference between them.^* An easement is an interest in an- 
other's land with a right to enjoy it, while a license carries no 
such interest,'^ is personal, and does not run with the land.^° A 
license may be created by parol,^' while some instrument in writ- 

20 Wessels v. Colebank, 174 111. 618, 32 Mitchell v. Warner, 5 Conn. 497; 

51 N. E. 639; Warner v. Rogers, 23 Leonard v. Adams, 119 Mass. 366; 

Minn. 34; Stevens v. Dennett, SI N. Wilson v. Cochran, 48 Pa. St. 107, 86 

H. 324; Clark v. GHdden, 60 Vt. 702, Am. Dec. 574; Russ v. Steel, 40 Vt. 

IS Atl. 358. 310. 

2' Kennedy Stave & Cooperage Co. ^3 Pierce v. Keator, 70 N. Y. 419, 26 

V. Sloss-Sheffield Steel &c. Co., 137 Am. Rep. 612; Le Blond v. Peshtigo, 

Ala. 401, 34 So. 372. 140 Wis. 604, 123 N. W. 157, 25 L. 

28 Peck V. Smith, 1 Conn. 103, 6 R. A. (N. S.) 51 In. 

Am. Dec. 216; Rhode Island Hospital 3* Wolf v. Frost, 4 Sandf. Ch. (N. 

Trust Co. V. Hayden, 20 R. I. 544, 40 Y.) 72 ; Hazelton v. Putnam, 3 Pin- 

Atl. 421, 42 L. R. A. 107. ney (Wis.) 107, 54 Am. Dec. 158. 

2» Rhode Island Hospital Trust Co. 3= Pomeroy v. Mills, 3 Vt. 279, 23 

v. Hayden, 20 R. I. 544, 40 Atl. 421, Am. Dec. 207. 

42 L. R. A. 107. , 36 Taylor v. Waters, 7 Taunt. 374. 

3°Worthen & Aldrich v. White 37 pjtch v. Seymour, 9 Mete. 

Spring Paper Co., 74 N. J. Eq. 647, (Mass.) 462; Morrill v. Mackman, 

70 Atl. 468. 24 Mich. 279, 9 Am. Rep. 124. 

31 Coleman v. Thomson, 6 Pa. 
County Ct. 126. ' 



§ 61 TITLES AND ABSTRACTS 



72 



ing is usually required to create an easement.^^ The person giving 
a license may usually revoke same at will,^'' vi^hile an easement 
can not be so revoked/" 

The strict and technical definition of an easement excludes a 
right to the proceeds of land, or, as they are generally termed, 
"profits a prendre." Strictly speaking, these latter are rights 
exercised by one man in the soil of another, accompanied with 
participation in the profits thereof, such as rights of pasture, tak- 
ing virood, digging sand, and the like. But this right of profit a 
prendre, if enjoyed by reason of holding a certain other estate, 
is regarded in the light of an easement appurtenant to such 
estate.*^ Easements that inhere in the land, concern the premises, 
and are necessary to its enjoyment, are called easements appur- 
tenant. They attach to the land to vi^hich they are appurtenant, 
and pass by deed of the land vsrithout express mention.*^ Thus, 
if a lot to which a right of way appurtenant is attached be sub- 
divided, each subdivision is entitled to all legitimate rights, by 
way of easement, which appertain to the entirety of the original 
lot.*' 

A mere personal interest or privilege in the real estate of an- 
other, and which is not assignable or inheritable is called an ease- 
ment in gross. It dies with the person who may have acquired it, 
and it is so exclusively personal that the owner by right can not 
take another person in company with him.** An easement in 
gross will never be presumed when it can be fairly construed to 
be appurtenant to some other estate.*^ 

Where the easement is of a continuous nature, or where its en- 
joyment may be continued without the necessity of any human 
interference, it is said to be a continuous easement.*^ To this 

38 Johnson v. Lewis, 47 Ark. 66, 2 ^2 jjuecken v. Voltz, 110 III. 264; 

S. W. 329, 14 S. W. 466; Howes v. Moore v. Crose, 43 Ind. 30; Willets 

Barmon, 11 Idaho 64, 81 Pac. 48, 69 v. Langhaar, 212 Mass. 573, 99 N. E. 

L. R. A. 568, 114 Am. St. 255; Yea- 466; Boatman v. Lasley, 23 Ohio St. 

ger V. Tuning, 79 Ohio St. 121, 86 N. 614. 

E. 657, 19 L. R. A. (N. S.) 700, 128 *3 Trenton v. Toman, 74 N. J. Eq. 

Am. St. 679. 702, 70 Atl. 606. 

s^Cook V. Chicago &c. R. Co., 40 **Cadwalader v. Bailey, 17 R. I. 

Iowa 451. 495, 23 Atl. 20, 14 L. R. A. 300. 

*" Hills V. Miller, 3 Paige (N. Y.) *5Lidgerding v. Zignego, 77 Minn. 

254, 24 Am. Dec. 218; Foster v. 421, 80 N. W. 360, 77 Am. St. 677. 

Browning, 4 R. I. 47, 67 Am. Dec. *3 Lampman v. Milks, 21 N. Y. SOS; 

505. Dee v. King, 77 Vt 230, 59 Atl. 839, 

41 Huntington v. Asher, 96 N. Y. 68 L. R. A. 860. 
604, 48 Am. Rep. 652. 



73 ESTATES AND INTERESTS IN REAL PROPERTY § 62 

class of easements belong right to lateral or subjacent support, 
right to light and air, right to an open drain, right to a water 
course, and the like. Noncontinuous easements, on the other 
hand, are those the enjoyment of which can be had only by the 
interference of man,^^ such as rights of way,** or a right to draw 
water from a well.*" 

If an easement is necessary for the use of the tenement, and 
without which the land can not be used at all, it is called an ease- 
ment of necessity or natural easements, in distinction from con- 
ventional easements, or those arising out of agreement.^" 

At common law, easements were said to "lie in grant" and "not 
in livery." So an easement must be created by deed unless some 
statute provides otherwise.^^ This includes prescription, which is 
based upon the common-law doctrine of the presumption of a 
grant. While ordinarily an easement can be created only by 
writing under seal, it may be created b.y adverse user, by estoppel, 
or part performance of a parol agreement.^^ While it is custom- 
ary to- create an easement by an express reservation in the deed 
of conveyance, it may be done quite as effectually by a separate 
instrument which operates to create .or convey the easement 
only.°^ Unlike other estates or interests, easements may be cre- 
ated by implication as well as by express grant.^* In order that an 
easement may be created by implication it must be necessary to 
the enjoyment of the land granted.^^ But the necessity need not 
be absolute. It is sufficient if it appears that without the ease- 
ment the grantee could not enjoy his estate in full, except at un- 
usual cost or inconvenience. °° 

§ 62. Licenses. — A license is a mere permission given by 

4^ Lampman v. Milks, 21 N. Y. 505. =3 Ashcroft v. Eastern R. Co., 126 

48 Oliver V. Pitman, 98 Mass. 46; Mass. 196, 30 Am. Rep. 672; Gilbert 

Morgan v. Meuth, 60 Mich. 238, 27 v. Peteler, 38 Bark. (N. Y.) 489; 

N. W. 509; Stuyvesant v. Woodruff, Richardson v. Clements, 89 Pa. St. 

21 N. J. L. 133, 57 Am. Dec. 156. 503, 33 Am. Rep. 784. 

« Lampman v. Milks, 21 N. Y. 505. =* Bean v. Bean, 163 Mich. 379, 128 

s" Hildreth v. Googins, 91 Maine N. W. 413 ; Morgan v. Mason, 20 

227, 39 Atl. 550; Laumier v. Francis, Ohio 402, 55 Am. Dec. 464. 

23 Mo. 181. 55 cihak v. Klehr, 117 111. 643, 7 

=1 Fuhr V. Dean, 26 Mo. 116, 69 Am. N. E. Ill; Philbrick v. Ewing, 97 

Dec. 484; Cagle v. Parker, 97 N. Car. Mass. 133; In re Francies' Appeal, 96 

271, 2 S. E. 76; Huff v. McCauley, Pa. St. 200. 

53 Pa. St. 206, 91 Am. Dec. 203. =6 Thompson v. Miner, 30 Iowa 386, 

52 Shaw V. Proffitt, 57 Ore. 192, 109 517 ; Oliver v. Hook, 47 Md. 301 ; 

Pac. 584, 110 Pac. 1092, Ann. Gas. Lanier v. Booth, 50 Miss. 410 ; Valley 

1913 A, 63. Falls Co. v. Dolan, 9 R. I. 489. 



§ 62 TITLES AND ABSTRACTS 74 

one landowner to another to use his land for a given purpose." 
It may be created either by express agreement, or by implica- 
tion.^' A mere license exists wherever the owner grants to an- 
other a right to enter, without giving him an interest in the 
land.=^ 

Every landowner impliedly licenses his neighbors and stran- 
gers to enter for any proper occasion, as business, social visits, 
and to make inquiries and the like. The nature and extent of this 
implied license is controlled and measured by the kind of prem- 
ises, the purpose of the entry and the general custom of the 
community."" Being a purely personal right,"^ the licensee has no 
power to assign it."^^ Such a license is personal to the licensee and 
it is subject to revocation by the licensor at will."^ But if the 
license is coupled with an interest it can not be so revoked."* For 
instance, if a londowner sell personal property on his land, giving 
the buyer a license to go upon the land and remove such property, 
the license can not be revoked."^ Also a license to do some act 
which obstructs or destroys an easement of the licensor can not 
be revoked after it is executed, so long as the easement 
is in force."" In some states it is held that an executed license, 
the execution of which involved the expenditure of money or 
labor, is regarded in equity as an executed agreement for a valua- 
ble consideration, and that it is therefore irrevocable, although 
given merely by parol, and relating to the use and occupation of 

" Emerson v. Bergin, 76 Cal. 197, (Mass.) 187; Ward v. Rapp, 79 Mich. 

18 Pae. 264; Howes v. Barmon, 11 469, 44 N. W. 934; Fuhr v. Dean, 26 

Idaho 64, 81 Pac. 48, 69 L. R. A. 568, Mo. 116, 69 Am. Dec. 484; Pearson 

114 Am. St. 255; Baldwin v. Taylor, v. Hartman, 100 Pa. St. 84. 

166 Pa. St. S07, 31 Atl. 250. es Hibbard, Spencer, Bartlett & Co., 

58 Cutler V. Smith, 57 111. 252 ; Har- v. Chicago, 173 111. 91, 50 N. E. 256, 

mon V. Harmon, 61 Maine 222 ; Lakin 40 L. R. A. 621 ; Classen v. Chesa- 

V. Ames, 10 Cush. (Mass.) 198; peake Guano Co., 81 Md. 258, 31 Atl. 

Adams v. Burton, 43 Vt. 36. 808; Pitzman v. Boyce, 111 Mo. 387, 

69 Prince v. Case, 10 Conn. 375, 27 19 S. W. 1104, 33 Am. St. 536. 

Am. Dec. 675 ; Baltimore & H. R. Co. 64 Barney v. Lincoln Park, 203 111. 

V. Algire, 63 Md. 319; Cook v. 397, 67 N. E. 801 ; Long v. Buchanan, 

Stearns, 11 Mass. 533. 27 Md. 502, 92 Am. Dec. 653; Sterling 

«» Cutler V. Smith, 57 111. 252; Gib- v. Warden, 51 N. H. 217, 12 Am. Rep. 

son V. Leonard, 143 111. 182, 32 N. E. 80. 

182, 17 L. R. A. 588, 36 Am. St. 376; "^ Carter v. Wingard, 47 111. App. 
Sterling v. Warden, 51 N. H. 217, 12 296; Rogers v. Cox, 96 Ind. 157, 49 
Am. Rep. 80; Kay v. Pennsylvania Am. Rep. 152. But see Fish v. Cap- 
Co., 65 Pa. St. 273, 3 Am. Rep. 628. well, 18 R. I. 667, 29 Atl. 840, 25 L. 

" Blaisdell v. Portsmouth &c. R. R. A. 159, 49 Am. St. 807. 

Co., 51 N. H. 483 ; East Jersey Iron ^ Powers v. Harlow, 53 Mich. 507, 

Co. V. Wright, 32 N. J. Eq. 248. 19 N. W. 257, 51 Am. Rep. 154. 

82Ruggles V. Lesure, 24 Pick. 



75 ESTATES AND INTERESTS IN REAL PROPERTY § 63 

real estate.^^ Where, however, the authority consists of a mere 
oral license, the courts generally hold that the license can be re- 
voked, regardless of the expenditures or improvements made, 
since a contrary holding would, in effect, transfer an interest in 
land by parol.^* 

A license is also revoked by the death,^° or insanity''" of either 
the licensor or licensee, by the expiration of the time for which it 
was given,^^ by abandonment or nonuser,'^ by a sale of the land,'^ 
or by the exercise of the right of eminent domain.'* 

§ 63. Profits a prendre. — A profit a prendre is a right in 
one person to take the soil, gravel, minerals, and the like from the 
land of another.'^ The thing so taken is supposed to have some 
value.'^ It is, in its nature, corporeal, and is capable of livery, 
while easements are not, and may exist independently without 
connection with or being appendant to other property," that is, 
it may be held by one independently of his ownership of other 
land, the rule in this respect differing from that usually regarded 
as applying to easements, unattended with a right of profit/* It 
may be further distinguished from an easement, in that the latter 
consists in a right to use or enjoy, but involves no right to take 
any profit from the land.'^ 

Profits a prendre may, however, be appurtenant to other land, 
the land to which the right appertains being then the "dominant 

" Ferguson V. Spencer, 127 Ind. 66, ener 117 Ind. 465, 20 N. E. 2S4; 

25 N. E. 1035; Rerick v. Kern, 14 Fischer v. Johnson, 106 Iowa 181, 76 

Serg. & R. (Pa.) 267, 16 Am. Dec. N. W. 658. 

497. 73 Entwhistle v. Henke, 211 III. 273, 

«s West Chicago St. R. Co. V. Peo- 71 N. E. 990, 103 Am. St. 196; 

pie, 214 111. 9, li N. E. 393 ; Whitte- Worthen v. Garno, 182 Mass. 243, 65 

more v. New York &c. R. Co., 174 N. E. 67. 

Mass. 363, 54 N. E. 867 ; Nowlin Lum- ^4 ciapp v. Boston, 133 Mass. 367. 

ber Co. V. Wilson, 119 Mich. 406, 78 "Black v. Elkhorn Mining Co., 49 

N. W. 338; Rodefer v. Pittsburg &c. Fed. 549; Bingham v. Salene, 15 Ore. 

R. Co., 72 Ohio St. 272, 74 N. E. 183, 208, 14 Pac. 523, 3 Am. St. 152. 

70 L. R. A. 844. 7" Pierce v. Keator, 70 N. Y. 419, 

89 Ruggles V. Lesure, 24 Pick. 26 Am. Rep. 612 ; Payne v. Sheets, 75 

(Mass.) 187; Estelle v. Peacock, 48 Vt. 335, 55 Atl. 656. 

Mich. 469, 12 N. W. 659; Blaisdell '^ pierce v. Keator, 70 N. Y. 419, 

V. Portsmouth &c. R. Co., 51 N. H. 26 Am. Rep. 612. 

483. "" 78 Tinicum Fishing Co. v. Carter, 

70 Berry V. Potter, 52 N. J. Eq. 664, 61 Pa. St. 21, lOO Am. Dec. 597; 
29 Atl. 323. Youghrogheny River Coal Co. v. 

71 Detroit & B. Plank Rd. Co. v. Pierce, 153 Pa. St. 74, 25 Atl. 1026; 
Detroit Suburban R. Co., 103 Mich. Cadwalader v. Bailey, 17 R. I. 495, 
585, 61 N. W. 880; Glynn v. George, 23 Atl. 20, 14 L. R. A. 300. 

20 N. H. 114. 79 Huntington v. Asher, 96 N. Y. 

72 Lake Erie & W. R. Co. v. Mich- 604, 48 Am. Rep. 652. 



§ 64 TITLES AND ABSTRACTS 76 

tenement," and the land from which the profits are taken being 
the "servient tenement."^" Some of the most common profits a 
prendre are' the right of pasture, the right to take minerals, the 
right to take firewood, and the right to fish. 

Profits a prendre, like easements, may be acquired either by 
grant or by prescription; and, like easements, they may be cre- 
ated by words of exception or reservation.*^ If created by grant 
it carries with it by necessary implication all rights necessary to 
its full enjoyment.*^ A right of profit in gross can not be appor- 
tioned so that different persons may work it separately, but all 
the assignees must work it in common, otherwise there might re- 
sult an overcharging of the servient estate.*^ A right of profit a 
prendre may be distinguished by a release of the right to the 
owner of the servient estate,^* by a union of the titles to the dom- 
inant and servient estates in one person,*' and, if common appur- 
tenant, by an alienation of a part of the land to which the right is 
attached.*' 

§ 64. Curtesy. — Upon the marriage of a man to a woman 
who is seised during coverture of an estate of inheritance, and 
has by her issue born alive, capable of inheriting the estate, he 
takes an estate for life. This is sometimes called tenancy by the 
curtesy of England, though the same estate existed in ancient 
times in other countries. In this country such an estate obtains 
in all the states where not abolished by statute. The requisites of 
curtesy are (1) lawful marriage," (2) legitimate issue born alive 
and capable of inheriting,** (3) sufficient seising of the wife 

soGrubb V. Grubb, 74 Pa. St. 25; 582; Bell v. Ohio R. Co., 25 Pa. St. 

Hall V. Lawrence, 2 R. I. 218, 57 Am. 161, 64 Am. Dec. 687. 
Dec. 715. 87 Wells v. Thompson, 13 Ala. 793, 

81 Stockbridge Iron Co. v. Hudson 48 Am. Dec. 16; 2 Bl. Comm. 127. 

Iron Co., 107 Mass. 290; Wardell v. A statute giving the surviving hus- 

Watson, 93 Mo. 107, 5 S. W. 603 ; band a right of curtesy in the estate 

In re Alden's Appeal, 93 Pa. St. 182. of his deceased wife has no applica- 

82Wilhams v. Gibson, 84 Ala. 228, tion to marriages contracted before 

4 So. 350, 5 Am. St. 368; Marvin v. its enactment: Hall v. Moore 32 Ky 

Brewster Iron Min. Co. 55 N. Y. 538, L. 56, 105 S W 414 

^'^=^t'?- ?^P- ^^^-t . ^ . '^ Nicrosi v. Phillipi, 91 Ala. 291, 8 

ssHarlow v. Lake Superior Iron So. 561; Goff v. Anderson, 91 Ky. 

Co., 36 Mich. 105 ; Funk v. Haider- 303, 12 Ky. L. 888, 15 S. W. 866, 11 

""t^'r-^^ ?■: ^'koF^- L- R- A- 825; Ryan v. Freeman, 36 

85H-11 T o-D T 010 r, H''^^^S' Donogan v. Griffith, 215 

85 Hall V. Lawrence, 2 R. I. 218, 57 Mo. 149, 114 S. W. 621, 20 L. R A 

^Ta^P^'i? ■ 1 T, . v^ ,n S^- S-) 825n, 128 Am. St. 458n; 15 

83 Van Rensselaer v. Radchff, 10 Ann. Cas. 724 
Wend. (N. Y.) 639; 25 Am. Dec. 



77 ESTATES AND INTERESTS IN REAL PROPERTY § 64 

during coverture,^^ and (4) death of the wife in the lifetime of 
the husband."" At common law both the seising of the wife dur- 
ing coverture and birth of issue capable of inheriting are nec- 
essary to constitute an estate by the curtesy, but where this rule 
prevails it is held that a concurrence of seisin and birth of issue 
is not necessary to constitute an estate of this kind.°^ Thus if 
the wife becomes seised of lands during coverture and then be 
disseised, and then have issue, the husband will be tenant by the 
curtesy initiate, and on his wife's death may enter as such.°^ 
' It has been said that the estate by the curtesy had its origin in 
the obligation to support the children of the marriage;"^ but if 
this is so, the reason operates in originating only and not in 
bounding or limiting the estate."* 

The husband is 'entitled to curtesy: (1) In his wife's estate of 
inheritance;"^ (2) in her equitable estate of inheritance;"^ (3) in 
her estates in expectancy when they vest in possession during her 
life;"^ (4) in her estates held in joint tenancy or in coparce- 
nary ;"* and ( 5 ) in her determinable estates, when they are deter- 
mined by a shifting use or executory devise."" But the husband 
is not entitled to curtesy (1) in his wife's life estate;^ (2) in a 
reversion or remainder where the prior particular freehold estate 
does not determine before her death ;^ (3) in her estates in joint 

89 Stinebaugh v. Wisdom, 13 B. (Md.) 179, 48 Am. Dec. 557; Thorn- 
Mon. (Ky.) 467; Wass v. Bucknam, ton v. Krepps, 2,1 Pa. St. 391. 

38 Maine 356; Rabb v. Griffin, 26 s" Meacham v. Bunting, 156 111. 586, 

Miss. 579 ; Hopper v. Demarest, 21 41 N. E. 175, 28 L. R. A. 618, 47 Am. 

N. J. L. 525. St. 239. 

90 Wheeler v. Hotchkiss, 10 Conn. s^ Withers v. Jenkins, 14 S. Car. 
225 ; Porch v. Fries, 18 N. J. Eq. 204. 597. 

91 Heath v. White, 5 Conn. 228 ; ss Wass v. Bucknam, 38 Maine 360 ; 
Zeust V. Staffan, 16 App. Cas. (D. C.) Buckley v. Buckley, 11 Barb. (N. Y.) 
141; Stewart v. Ross, 50 Miss. 776; 43. 

Donovan v. Griffith, 215 Mo. 149, 114 "9 Carter v. Couch, 157 Ala. 470, 47 

S. W. 621, 20 L. R. A. (N. S.) 825n, So. 1006, 20 L. R. A. (N. S.) 858n; 

128 Am. St. 4S8n, 15 Ann. Cas. 724; Martin v. Renaker, 10 Ky. L. 469, 9 S. 

In re Starbuck, 63 Misc., 156, 116 N. W. 419; Hatfiel v. Sneden, 54 N. Y. 

Y. S. 1030; Templeton v. Twitty, 88 280; McMasters v. Negley, 152 Pa. 

Tenn. 595, 14 S. W. 435. St. 303, 25 Atl. 641. 

"2 Jackson v. Johnson, 5 Cow. (N. ^Janney v. Sprigg, 7 Gill (Md.) 

Y.) 75, IS Am. Dec. 433. 197, 48 Am. Dec. 557; Spencer v. 

93 Hunter v. Whitworth, 9 Ala. 965 ; O'Niell, 100 Mo. 49, 12 S. W. 1054 ; 

Templeton v. Twitty, 88 Tenn. 595, 14 Adams v. Ross, 30 N. J. L. 505, 82 

S. W. 435. Am. Dec. 237. 

"* Heath v. White, S Conn. 228. 2 Orford v. Benton, 36 N. H. 395 ; 

s^Northcut V. Whipp, 12 B. Mon. Adair v. Lott, 3 Hill (N. Y.) 182; 

(Ky.) 65; Janney v. Sprigg, 7 Gill Watkins v. Thornton, 11 Ohio St. 

367; Hitner v. Ege, 23 Pa. St. 305. 



§ 64 TITLES AND ABSTRACTS 78 

tenancy;' (4) in a bare legal estate, the beneficial interest in 
which is in another;* (5) in a future estate expectant upon the 
termination of a present freehold estate;' or (6) in the home- 
stead right of an infant wife.® 

The husband's curtesy may be excluded: (1) By perpetual 
separation amounting to an absolute divorce;^ (2) by special pro- 
vision in a conveyance to the wife;^ (3) where the husband joins 
his wife in a mortgage upon her lands;® (4) by a devise by the 
wife of her separate estate;" (5) by contract between the parties 
made before or after marriage," and (6) by the husband's fail- 
ure to claim such right as against an adverse holder for the period 
of limitations/^ Where a husband has voluntarily settled lands 
upon his wife by deed executed to her, and there is no express or 
implied relinquishment in the deed of his right to claim curtesy 
upon her death, he will not be denied such right.^^ 

The right of curtesy exists in Alabama, Alaska, Arkansas, 
Connecticut, Delaware, District of Columbia, Hawaii, Kentucky, 
Missouri, New Hampshire, New Jersey, New York, North Caro- 
lina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, 
Virginia, West Virginia and Wisconsin. In Ohio and Illinois the 
husband is given the right of dower in the place of curtesy. In 
Virginia, curtesy initiate has been abolished but curtesy consum- 
mate remains as at common law. In Connecticut every man mar- 

3 Carr v. Givens, 9 Bush (Ky.) 679, the wife may thus defeat curtesy; the 

15 Am. Rep. 747. general rule being that her power to 

* Norton v. McDevitt, 122 N. Car. make a will does not enable her to 

755, 30 S. E. 24; McKee v. Jones, 6 defeat the husband's curtesy. Casler 

Pa. St. 425. V. Gray, 159 Mo. 588, 60 S. W. 1032 ; 

s Planters' Bank of Tennessee v. In re Clarke's Appeal, 79 Pa. St. 376 ; 

Davis, 31 Ala. 626; Ferguson v. Alderson v. Alderson, 46 W. Va. 242, 

Tweedy, 43 N. Y. 543. 33 S. E. 228. 

« Owens V. Jabine, 88 Ark. 468, 115 " McBreen v. McBreen, 154 Mo. 

S. W. 383. 323, 55 S. W. 463, 77 Am. St. 758; 

7 Hartigan v. Hartigan, 65 W. Va. Charles v. Charles, 8 Grat. (Va.) 486, 
471, 64 S. E. 726, 131 Am. St. 973, 19 56 Am. Dec. 155. 

Ann. Cas. 728. 12 Shortall v. Hinckley, 31 III. 219; 

8 McBreen v. McBreen, 154 Mo. Childers v. Bumgarner, 53 N. Car. 
323, 55 S. W. 463, 77 Am. St. 758; 297; Crow v. Kightlinger, 25 Pa. St. 
Haight V. Hall, 74 Wis. 152, 42 N. W. 343. 

109, 3 L. R. A. 857, 17 Am. St. 122. is Ogden v. Ogden, 60 Ark. 70, 28 

9 Hayden v. Peirce, 165 Mass. 359, S. W. 796, 46 Am. St. 151 ; Meacham 
43 N. E. 1 19. V. Bunting, 156 111. 586, 41 N. E. 175, 

"Garner v. Wills, 92 Ky. 386, 13 28 L. R. A. 618, 47 Am. St. 239; 

Ky. L. 726, 17 S. W. 1023 ; Stewart v. Tremmel v. Kleibolt, 6 Mo. App. 549 ; 

Ross, SO Miss. 776; Tiddy v. Graves, Deming v. Miles, 35 Nebr. 739, 53 

126 N. Car. 620, 36 S. E. 127; Chap- N. W. 665, 37 Am. St. 464; Depue v. 

man v. Price, 83 Va. 392, 11 S. E. Miller, 65 W. Va. 120, 64 S. E. 740, 

879. It is only under some statutes that 23 L. R. A. (N. S.) 775n. 



79 ESTATES AND INTERESTS IN REAL PROPERTY § 65 

ried prior to April 20, 1877, is given the right of curtesy in his 
wife's estate, but those married subsequent to that date take as 
survivor of the wife. In all other states not mentioned above 
curtesy has been abolished by statute. 

§ 65. Dower. — By the common law a wife was entitled, on 
the death of her husband, to be endowed of a third part of all the 
lands and tenements whereof the husband was seised, in fee sim- 
ple or in fee tail, at any time during coverture." At first it was 
limited to lands held by the husband at the time of the marriage, 
but by the Magna Charta it was extended to all lands of which 
the husband was seised during coverture. This right or estate 
of dower exists in all the states where it has not been modified or 
abolished by statute. It is a right, though inchoate pending the 
life of the husband, is in the nature of a property right, and the 
wife can not be divested of it by any act of the husband, whether 
done in good faith, or in fraud, either of his immediate grantee 
or of those who may come after him.^^ 

The requisites of this common-law right of estate of dower 
are: (1) A valid marriage ;^° (2) seisin of the husband during 
coverture;" and (3) death of the husband during the lifetime 
of the wife.^' 

At common law the right of dower attached only to the hus- 
band's estates of inheritance ; that is, to fee simple estates or es- 
tates in fee tail.^" Generally speaking, a wife has no dower in 
lands to which'her husband has merely an equitable title. But by 
statute in many states this rule has been changed, so that the right 
exists in the husband's equitable estates.^" It is generally held 

"Sisk V. Smith, 1 Gil. (111.) 503; Phelps v. Phelps, 143 N. Y. 197, 38 

2 BI. Coram. 129; Co. Lit. § 30a; N. E. 280, 25 L. R. A. 625; Dudley 

Co. Lit. § 36. V. Dudley, 1(, Wis. 567, 45 N. W. 602, 

1^ Warner v. Norwegian Cemetery 8 L. R. A. 814. 

Assn., 139 Iowa 115, 117 N. W. 39. is sisk v. Smith, 1 Gil. (111.) 503 ; 

1^ De France v. Johnson, 26 Fed. McCraney v. McCraney, 5 Iowa 232, 

891 ; Jones v. Jones, 28 Ark. 19 ; Hig- 68 Am. Dec. 702 ; Wait v. Wait, 4 N. 

gins V. Breen, 9 Mo. 497; Pearson v. Y. 95. 

Howey, 11 N. J. L. 12; Cropsey v. ^^ Johnson v. Jacob, 11 Bush (Ky.) 

Ogderi, 11 N. Y. 228. 646; Pinkham v. Pinkhara, 55 Nebr. 

IT Kirkpatrick v. Kirkpatrick, 197 729, 76 N. W. 41,1 ; Kennedy v. Ken- 
Ill. 144, 64 N. E. 267; Smallridge v. nedy, 29 N. J. L. 185; 2 Bl. Comm. 
Hazlett, 112 Ky. 841, 23 Ky. L. 2228, 131 ; Co. Lit. § 36. 
66 S. W. 1043 ; Hill v. Pike, 174 Mass. 2» Atkin v. Merrell, 39 111. 62 ; 
582, 55 N. E. 324 ; Wheeler v. Smith, Stroup v. Stroup, 140 Ind. 179, 39 N. 
50 Mich. 93, IS N. W. 108; Ellis v. E. 864, 27 L. R. A. 523; McMahan v. 
Kyger, 90 Mo. 600, 3 S. W. 23; Kimball, 3 Blackf. (Ind.)l; Everitt 



§ 65 TITLES AND ABSTRACTS 80 

that, though the husband's land is subject to a mortgage, which 
takes precedence of dower, the wife is entitled to dower in the 
land as against all persons except the owner of the mortgage/^ 
Where the interest of the husband is that of a tenant in common 
or as a coparcener with others, it is subject to the wife's dower. ^^ 
Where lands are held by the husband in partnership with another, 
the wife is entitled to dower in any surplus interest of her hus- 
band after payment of the firm's debts.^^ But land held by the 
husband with others in joint tenancy is not subject to dower, 
though a severance will entitle the widow to dower if the husband 
thereafter remains solely seised.^* In the absence of any statutory 
provision to the contrary, a wife is not entitled to dower in land 
held in reversion or remainder by the husband, where the preced- 
ing estate does not determine during coverture. ^^ And if his 
estate is determinable on the happening of a condition subsequent 
or by limitation, the determination of the estate in the lifetime of 
the husband will defeat the wife's right of dower.^" But if the 
husband's estate is an executory devise, defeasible by the death of 
the husband without issue, it has been held that the widow is en- 
titled to dower, even if there be no issue.^^ Dower can not be 
claimed in an estate by the entirety f ^ nor can a divorced woman 

V. Everitt, 71 Iowa 221, 32 N. W. Willet v. Brown, 65 Mo. 138, 27 Am. 

273 ; Davis v. Green ; 102 Mo. 170, 14 Rep. 265 ; Greenwood v. Marvin, 111 

S. W. 876, 11 L. R. A. 90; McClure N. Y. 423, 19 N. E. 228. 

V. Fairfield, 153 Pa. St. 411, 26 Alt. 2*Mayburry v. Brien, 15 Pet. (U. 

446. A married woman has no in- S.) 21, 10 L. ed. 646; Cockrill v. 

choate riglit of dower in real estate Armstrong, 31 Ark. 580; Babbitt v. 

which her husband holds under a con- Day, 41 N. J. Eq. 392, 5 Atl. 275. 

tract of purchase, having paid only a =5 Kirkpatrick v. Kirkpatrick, 197 

part of the purchase price. Nortnass III. 144, 64 N. E. 267; Young v. More- 

V. Pioneer Townsite Co., 82 Nebr. head, 94 Ky. 608, 15 Ky. L. 383, 23 S. 

382, 117 N. W. 951. W. 511 ; Hill v. Pike, 174 Mass. 582, 

21 Cox V. Garst, 105 111. 342 ; Snow 55 N. E. 324 ; Von Arb v. Thomas, 
V. Stevens, 15 Mass. 278; Jones v. 163 Mo. 33, 63 S. W. 94; Dudley v. 
Bragg, 33 Mo. 337, 84 Am. Dec. 49; Dudley, 76 Wis. 567, 45 N. W. 602, 
Wade v. Miller, 32 N. J. L. 296 ; Mills 8 L. R. A. 814. 

V. Van Voorhies, 20 N. Y. 412, 10 2" Beardslee v. Beardslee, S Barb. 

Abb. Prac. 152. (N. Y.) 324; Rhode Island Hospital 

22 Harvill v. Holloway, 24 Ark. 19 ; Trust Co. v. Harris, 20 R. I. 408, 39 
Ross V. Wilson, 58 Ga. 249 ; Cook v. Atl. 750. 

Walker, 70 Maine 232; Rockwell v. 27 Northcut v. Whipp, 12 B. Mon. 

Rockwell, 81 Mich. 493, 46 N. W. 8; (Ky.) 65; Clark v. Clark, 84 Hun 362, 

Lee V. Lindell, 22 Mo. 202, 64 Am. 32 N. Y. S. 325, 65 N. Y. S. 483; 

Dec. 262 ; Whitney v. Whitney, 45 N. Pollard v. Slaughter, 92 N. Car. 72, 

H. 311. S3 Am. Rep. 402 ; Contra : Edwards v. 

23 Bopp V. Fox, 63 111. 540 ; Grissom Bibb, 54 Ala. 475. 

V. Moore, 106 Ind. 296, 6 N. E. 629, "^ Roulston v. Hall, 66 Ark. 305, 50 
55 Am. Rep. 742 ; Dyer v. Clark, 5 S. W. 690, 74 Am. St. 97. 
Mete. (Mass.) 562, 39 Am. Dec. 697; 



81 ESTATES AND INTERESTS IN REAL PROPERTY § 65 

have dower in lands owned oy her former husband during the 
marriage.^" A wife is not entitled to dower in lands paid for by 
the husband but conveyed to another;^" in lands sold before mar- 
riage by oral contract under which the vendee had gone into pos- 
session;'^ in lands to which the husband gives a bond to convey 
to another at the time he acquires title f^ or in lands held in trust 
by the husband for a third person.'^ 

The right of dower at common law exists only in the husband's 
lands and tenements.'* This includes mines and quarries belong- 
ing to the husband which were opened and worked during his 
life,'° wild and unimproved lands,'^ rent charged on another's 
land in favor of the husband and his heirs/^ and in a fishing priv- 
ilege, or other right of profit.'' But the wife is not entitled to 
dower in unopened mines,'" in crops or timber which has been 
severed from the realty,*" or in mere personal hereditaments.*^ 

The right to dower may be barred or forfeited in various 
ways, though the husband by his act alone, without the wife's 
assent, can not bar it.*^ It may be barred : ( 1 ) By the husband's 
bona fide conveyance before marriage,*' and sometimes after 
marriage;** (2) by the elopement and adultery of the wife;*' (3) 

29 Allen V. Austin, 21 R. I. 254, 43 ^s Co. Lit. 32a. 

Atl. 69. 39 Stoughton v. Leigh, 1 Taunt. 402. 

30 Phelps V. Phelps, 143 N. Y. 197, Contra : In re Seager, 92 Mich. 186, 

38 N. E. 280, 25 L. R. A. 625. 52 N. W. 299 ; Coates v. Cheever, 1 
"Chapman v. Chapman, 92 Va. Cow. (N. Y.) 460. 

537, 24 S. E. 225, 53 Am. St. 823. *» Hallett v. Hallett, 8 Ind. App. 

32 Hallett V. Parker, 68 N. H. 598, 305, 34 N. E. 740. 

39 Atl. 583. " Co. Lit. § 32. 

33 Gritten v. Dickerson, 202 111. 372, *" Gove v. Gather, 23 111. 634, 76 
66 N. E. 1090. Am. Dec. 711; McKelvey v. McKel- 

3*2 Bl. Comm. 131; Co. Lit. § 36. vey, 75 Kans. 325, 89 Pac. 663, 121 

35Hendrix v. McBeth, 61 Ind. 473, Am. St. 435; Rodman v. Robinson 

28 Am. Rep. 680; Gaines v. Green 134 N. Car. 503, 47 S. E. 19, 65 L. R. 

Pond Iron Co., 33 N. J. Eq. 603 ; A. 682. 

Sayers v. Hoskinson, 110 Pa. St. 473; *3 Daniher v. Daniher, 201 III. 489, 

Clift V. Chft, 87 Tenn. 17, 9 S. W. 198, 66 N. E. 239; Pratt v. Skolfield, 45 

360. Maine 386; Beckwith v. Beckwith, 61 

36 Chapman v. Schroeder, 10 Ga. Mich. 315, 28 N. W. 116. 

321; Schnebly v. Schnebly, 26 111. 116; ^* Stewart v. Stewart, 5 Conn. 317; 

Brown v. Richards, 17 N. J. Eq. 32. Hopkins v. Bryant, 85 Tenn. 520, 3 S. 

But a different rule seems to prevail W. 827. 

in the New England states : Stevens *= McQuinn v. McQuinn, 110 Ky. 

V. Owen, 25 Maine 94; Conner v. 321, 22 Ky. L. 1770, 61 S. W. 358; 

Shepherd, 15 Mass. 164; Johnson v. Walters v. Jordan, 35 N. Car. 361, 57 

Perley, 2 N. H. 56, 9 Am. Dec. 35. Am. Dec. 558. But adultery without 

3^ Chase's Cas. 1 Bland (Md.) 227, elopement does not bar dower. Cogs- 

17 Am. Dec. 277; Co. Lit. 32a. well v. Tibbetts, 3 N. H. 41; Reel v. 

6— Thomp. Abstr. 



§ 66 TITLES AND ABSTRACTS 82 

by divorce ;*^ (4) by annulment of the marriage f (5) by the loss 
of the husband's estate;*^ (6) by voluntary release on the part of 
the wife; *" and (7) by jointure/" 

The common-law right of dower exists in Florida, Illinois, 
Kentucky, Maine, Massachusetts, Michigan, Missouri, Nebraska, 
New Jersey, New York, North Carolina, Ohio, Oregon, Rhode 
Island, Virginia, West Virginia and Wisconsin. The widow is 
entitled to dower in one-half of the lands owned by the husband 
at the time of his death, if he left no lineal descendants, and to 
one-third if there be such, in Alabama, Arkansas and Pennsyl- 
vania. She takes one-third of all the real estate of which the 
husband died seised, or which came to him in right of marriage, 
in Georgia and New Hampshire ; and the husband must have had 
title in fee simple in Delaware." In Connecticut, Tennessee and 
Vermont, the widow has a right of dower during her life in one- 
third part of the real estate of which her husband died seised. 
In all other states not mentioned above, the right of dower has 
either been abolished by statute, or has never been adopted; but 
in lieu thereof the wife takes a certain share of the husband's 
estate under the statutes of descent and distribution. 

§ 66. Homestead. — Generally speaking, a homestead is 
an artificial estate in land, usually for the life or lives of those en- 
titled to it, exempt from the demands of creditors. °^ Strictly 
speaking, it is not an estate in land,°' but a right additional to and 
independent of the ordinary right of ownership. °* It is desig- 
nated as a shelter of the homestead roof, and not as a mere in- 
Elder, 62 Pa., St. 308, 1 Am. Rep. 414. *!> Dooley v. Greening, 201 Mo. 343, 
Nor does adultery committed by the 100 S. W. 43 ; Hinchliffe v. Shea, 103 
wife after her husband has driven her N. Y. 153, 8 N. E. 477. 
away bar her right to dower. Heslop s" Bryan v. Bryan, 62 Ark. 79, 34 S. 
V. Heslop, 82 Pa. St. 537. W. 260 ; Andrews v. Andrews, 8 

*8 Kent V. McCann, 52 111. App. 305; Conn. 79; Culberson v. Culberson, 37 
Fletcher v. Monroe, 145 Ind. 56, 43 , Ga. 296; Wentworth v. Wentworth, 
N. E. 1053 ; Winch v. Bolton, 94 Iowa 69 Maine 247 ; Grogan v. Garrison, 
573, 63 N. W. 330; Calame v. Calame, 27 Ohio St. SO. 
24 N. J. Eq. 440. ei Bush v. Bush, 5 Del. Ch. 144. 

*7 Price V. Price, 124 N. Y. 589, 27 52 Buckingham v. Buckingham, 81 
N. E. 383, 12 L. R. A. 359. Mich. 89, 45 N. W. 504. 

« Stribling V. Ross, 16 111. 122 ; ss Ellinger v. Thomas, 64 Kans. 180, 
Toomey v. McLean, 105 Mass. 122; 67 Pac. 529; Thomas v. Fulford, 117 
Vickers v. Henry 110 N. Car. 371, 15 N. Car. 667, 23 S. E. 635. 
S. E. 115; McClure v. Fairfield, 153 ^4 Speyrer v. Miller, 108 La. 204, 32 
Pa. St. 411, 26 Atl. 446. So. 524, 61 L. R. A. 781. 



83 



ESTATES AND INTERESTS IN REAL PROPERTY 



§ 66 



vestment in real estate, or the rents and profits derived there- 
from."' 



55 Lyon V. Harden, 129 Ala. 643, 29 
So. W; Norris v. Kidd, 28 Ark. 485; 
Dickman v. Birkhauser, 16 Nebr. 686, 
21 N. W. 396. 

There is no homestead exemption 
in Delaware, District of Columbia, 
Hawaii, Indiana, Maryland, New Jer- 
sey, Pennsylvania and Rhode Island; 
but in all the other states there are 
constitutional or statutory provisions 
exempting from execution or other 
forced sale for debts, to a certain ex- 
tent, the homestead or residence of 
the debtor. Th? amount, extent and 
value of this homestead exemption 
vary greatly in the different states. 
In Alabama, the claimant is entitled 
to not more than one hundred and 
sixty acres, with improvements, and 
of value not to exceed two thousand 
dollars ; in Alaska, not more than one 
hundred and sixty acres, and if lo- 
cated in a city or town, not to exceed 
a quarter of an acre, and the value 
thereof not to exceed two thousand 
five hundred dollars; in Arizona, one 
compact body, not limited in extent, 
but not to exceed four thousand dol- 
lars in value; in Arkansas, one hun- 
dred and sixty acres in extent and if 
located within a city or town, one 
acre, and not to exceed two thousand 
five hundred dollars in value; in Cal- 
ifornia, the dwelling-house in which 
the claimant resides and the land on 
which the same is situated, not ex- 
ceeding in value five thousand dollars 
for the head of the family and one 
thousand for any other person; in 
Colorado, real estate not exceeding 
two thousand dollars in value; in 
Connecticut, a dwelling-house or 
other real estate in connection there- 
with of a value not to exceed one 
thousand dollars ; in Florida, one 
hundred and sixty acres of land, or 
half of one acre within a city or town, 
together with improvements thereon, 
regardless of value; in Georgia, real 
estate, or personal property, or both, 
to the value in the aggregate of one 
thousand six hundred dollars ; in 
Idaho, real estate in value not exceed- 
ing five thousand dollars ; in Illinois, 
the whole of the lot of land and 
buildings thereon occupied as a resi- 



dence by the claimant, to the extent 
and value of one thousand dollars; 
in Iowa, half an acre if within a city 
or town, or forty acres if outside, 
and without limit as to value ; in Kan- 
sas, one hundred and sixty acres of 
farming land, or one acre within the 
limits of a city or town, and regard- 
less of value; in Kentucky, so much 
land, including, the dweUing-house 
and appurtenances owned by claim- 
ant, as shall not exceed in value one 
thousand dollars ; in Louisiana, real 
estate of the value not to exceed two 
thousand- dollars; in Maine, a home- 
stead not exceeding five hundred dol- 
lars in value; in Massachusetts, real 
estate of the value of not more than 
eight hundred dollars; in Michigan, 
one lot or its equivalent in town or 
city, or not more than forty acres in 
the country, and not exceeding in 
value in eitlier case one thousand five 
hundred dollars ; in Minnesota, eighty 
acres if situated outside the limits of 
a city or town, and one-half acre in 
city or town containing less than five 
thousand inhabitants, and one-third 
acre if there be more than five thou- 
sand inhabitants; in Mississippi, not 
more than one hundred and sixty 
acres, and of the value of not more 
than three thousand dollars exclusive 
of improvements, or a residence in a 
city or town not to exceed in value 
three thousand dollars; in Missouri, 
not more than one hundred and sixty 
acres of land in the country not to 
exceed one thousand five hundred 
dollars in value, and in cities or 
towns having a population of forty 
thousand or more, not to exceed 
eighteen square rods of ground of the 
value of three thousand dollars, and 
in cities having a population of ten 
thousand and less than forty thou- 
sand, not to exceed thirty square rods 
of ground of the total value of one 
thousand five hundred dollars, and in 
towns of less than ten thousand, not 
to exceed five acres of ground, of the 
total value of one thousand five hun- 
dred dollars ; in Montana, a home- 
stead of value not exceeding two 
thousand five hundred dollars ; in Ne- 
braska, a house and one hundred and 



§ 66 



TITLES AND ABSTRACTS 



84 



The statutes creating homesteads have no extraterritorial 
force,^° but are to be Hberally construed for the benefit of those 
entitled to the benefits thereof." This homestead legislation con- 
sists of two materially different forms ; one of the federal law, 
and the other of the statutes of the several states. The former 
provides for the acquisition of land for a homestead, and inci- 
dentally exempts it from the debts of the homesteader before he 
acquires his patent; the latter authorizes the head of the family to 
designate property as a homestead, and thus exempt it from his 
future debts. The state homestead law does not affect the prop- 
erty until the owner obtains a patent.^^ The law does not gen- 
erally require that the claimant of the homestead rights be the 



sixty acres of land in the countryor 
if in a town or city, not exceeding 
two lots, and in either case not ex- 
ceeding two thousand dollars in val- 
ue; in Nevada, a homestead not ex- 
ceeding fiye thousand dollars in 
value; in New Hampshire, a home- 
stead in real estate of the value of 
five hundred dollars ; in New York, 
a lot of land and buildings thereon 
not exceeding in value one thousand 
dollars; in North Carolina, a home- 
stead and dwellings and buildings 
used therewith, not exceeding in value 
one thousand dollars ; in North Da- 
kota, homestead not exceeding in 
value five thousand dollars, and if 
within a town not exceeding two acres 
in extent, and if not within a town 
not exceeding one hundred and sixty 
acres ; in Ohio, a family homestead 
not exceeding one thousand dollars in 
value; in Oklahoma, real estate con- 
sisting of not more than one hundred 
and sixty acres regardless of value; 
in Oregon, not to exceed one hundred 
and sixty acres in extent if not lo- 
cated in a city, or one block if located 
in a city, in neither case to exceed 
one thousand five hundred dollars in 
value; in South Carolina, real estate 
of the value of one thousand dollars ; 
in South Dakota, a tract not exceed- 
ing one hundred and sixty acres if in 
the country, or one acre if in a town, 
to the extent and value of five thou- 
sand dollars; in Tennessee, land and 
improvements thereon not exceeding 
in value one thousand dollars ; in 
Texas, land not in city or town con- 
sisting of two hundred acres with 



improvements thereon, and if in city 
or town consisting of a lot or lots 
not to exceed in value, five thousand 
dollars; in Utah, land not exceeding 
in value, with improvements thereon, 
of the sum of one thousand five hun- 
dred dollars for the head of the fam- 
ily, and the further sum of five hun- 
dred dollars for his wife, and two 
hundred and fifty dollars for each 
other member of the family; in Ver- 
mont, a homestead of the value of 
five hundred dollars ; in Virginia, a 
homestead of the value of two thou- 
sand dollars ; in Washington, home- 
stead with improvements thereon not 
exceeding in value the sum of two 
thousand dollars ; in West Virginia, 
a homestead of the value of one thou- 
sand dollars ; in Wisconsin, not ex- 
ceeding forty acres when not includ- 
ed in city or town, and not exceeding 
one-fourth of an acre and a dwelling- 
house thereon in city or town, in 
either case not exceeding in value the 
sum of five thousand dollars; in 
Wyoming, the homestead consists of 
a house and lot or lots in a town or 
city, or a farm not exceeding one 
hundred and sixty acres, to the value 
of two thousand five hundred dollars. 

=« Cherokee Const. Co. v. Harris, 
92 Ark. 260, 122 S. W. 485, 135 Am. 
St. 177. 

"Deere v. Chapman, 25 111. 610, 
79 Am. Dec. 350; Barber v. Rora- 
beck, 36 Mich. 399 ; Jarvis v. Moe, 38 
Wis. 440. 

=8Hesnard v. PJunkett, 6 S. Dak. 
73, 60 N. W. 159. 



85 



ESTATES AND INTERESTS IN REAL PROPERTY 



§ 66 



owner of a freehold, but allows such rights to be established 
whether the estate be in fee, for life, or for years.^' 

One is entitled to the homestead exemption in a leasehold 
estate f in an equitable estate f^ in lands held in cotenancy f^ in 
lands held in joint tenancy;"^ and in lands held by the entireties."* 
But, as a rule, homestead rights can not be claimed in partnership 
property;*^ nor in remainders and reversions after freehold in- 
terests."" 

The general intent of the statutes is to confer the right of 
homestead upon the actual head of the family,"' and so it is pri- 
marily to the husband, and on his death it inures to his widow."* 
In order that a person may successfully claim the right of home- 
stead he must have some one dependent upon him; some one 
whom he is under a legal or moral obligation to support."' 

Actual or constructive occupation of the premises as a home, is 
essential to give the character of homestead to real property.'" In 
some states it is required, in addition to occupancy, that the 
claimant execute a written declaration or certificate that the 



=» Bartholomew v. West, 2 Dill (U. 
S.) 290, Fed. Cas. No. 1071 ; Tyler v. 
Jewett, 82' Ala. 93, 2 So. 90S; Alexan- 
der V. Jackson, 92 Cal. 514, 28 Pac. 
593, 27 Am. St. 158; Allen v. Haw- 
ley, 66 111. 164; Maatta v. Kippola, 

102 Mich. 116, 60 N. W. 300; Doane 
V. Doane, 46 Vt. 485. 

«» Conklin V. Foster, 57 111. 104 ; In 
re Emerson's Homestead, 58 Minn. 
450, 60 N. W. 23 ; Phillips v. Warner, 
4 Tex. Civ. App. 147, 16 S. W. 423 ; 
Beranek v. Beranek, 113 Wis. 272, 89 
N. W. 146. 

«iMyrick V. Bill, 5 Dak. 167, 3,7 
N. W. 369; Rice v. Rice, 108 111. 199; 
Stafford v. Woods, 144 111. 203, 33 
N. E. 539; Eessell v. Goodman, 97 
Iowa 681, 66 N. W. 917, 59 Am. St. 
432; McKee v. Wilcox, 11 Mich. 358, 
83 Am. Dec. 743 ; Doane v. Doane, 46 
Vt. 485 ; Canfield v. Hard, 58 Vt. 217, 
2 Atl. 136. 

^2 Chapman v. White Sewing Ma- 
chine Co., 78 Miss. 438, 28 So. 735; 
Clark V. Thias, 173 Mo. 628, 73 S. W. 
616. 

63 Swan V. Walden, 156 Cal. 195, 

103 Pac. 931, 134 Am. St. 118, 20 Ann. 
Cas. 194; Giles v. Miller, 36 Nebr. 
346, 54 N. W. 551, 38 Am. St. 730. 



6* Cole V. Cole, 126 Mich. 569, 85 
N. W. 1098. 

«= Ex parte Karish, 32 S. Car. 437, 
11 S. E. 298, 17 Am. St. 865 ; Brady 
V. Kreuger, 8 S. Dak. 464, 66 N. W. 
1083, 59 Am. St. 771. 

«s Kingsley v. Kingsley, 39 Cal. 665 ; 
Drake v. Moore, 66 Iowa 58, 23 N. 
W. 263 ; Howell v. Jones, 91 Tenn. 
402, 19 S. W. 757. 

s'Dawley v. Ayers, 23 Cal. 108; 
Adams v. Clark, 48 Fla. 205, 37 So. 
734; Taylor v. Taylor, 223 111. 423, 
79 N. E. 139; People v. McClay, 2 
Nebr. 7; Sproul v. McCoy, 26 Ohio 
St. 577; Cobbs v. Coleman, 14 Tex. 
594. 

esRaggio V. Palmtag, 155 Cal. 797, 

103 Pac. 312 ; Garwood v. Garwood, 
244 111. 580, 91 N. E. 672 ; Weaver v. 
First Nat. Bank, 76 Kans. 540, 94 
Pac. 273, 16 L. R. A. (N. S.) 110, 
123 Am. St. 155. 

ooSheehy v. Scott, 128 Iowa 551, 

104 N. W. 1139, 4 L. R. A. (N. S.) 
365. 

'oAucker v. McCoy, 56 Cal. 524; 
Floyd County v. Wolfe, 138 Iowa 
749, 117 N. W. 32; Ingels v. Ingels, 
50 Kans. 755, 32 Pac. 387; Kennedy 
V. Duncan, 157 Mo. App. 212, 137 S. 
W. 299. 



§ 67 TITLES AND ABSTRACTS 86 

premises are claimed as a homestead/^ The statutes fix the 
amount, extent and value of homestead, and it can not exceed 
the. statutory limitation." 

The rule is universal that one can not claim homestead exemp- 
tions in more than one piece of property," and hence that an 
actual abandonment, or the acquiring of a new homestead, will 
extinguish the right in the old." While homestead rights are re- 
quired by some statutes to be described in writing by the claim- 
ant, and the description entered upon the public records, but in 
the absence of such a statute an inquiry dehors the record should 
be made. 

The statutes of many states provide for restrictions upon hus- 
band's right to convey or mortgage the homestead property with- 
out the wife joining in the conveyance.'^ Neither can the owner 
■dispose of the homestead by will so as to cut off the rights of the 
wife and children to the benefits thereof after his death." 

In order to provide a home and shelter for a surviving husband 
or wife and for the minor children, the homestead acts generally 
provide for the descent or continuance of the homestead of a par- 
ent to or for the benefit of the surviving spouse and children." 

§ 67. Widow's quarantine. — At common law the widow 
was entitled to have her dower assigned to her within forty days 

" Boreham v. Byrne, 83 Cal. 23, 23 461 ; Kleimann v. Gieselman, 114 Mo. 

Pac. 212; Welch v. Spragins, 98 Ky. 437, 21 S. W. 796; Norris v. Moulton, 

279, 17 Ky. L. 884, 32 S. W. 943; 34 N. H. 392 ; McCrae v. McCrae, 103 

Donaldson v. Winningham, 48 Wash. Tenn. 719, 54 S. W. 979 ; Hall v. 

374; 93 Pac. 534, 125 Am. St. 937. Fields, 81 Tex. 553, 17 S. W. 82; 

72Powe V. McLeod, 76 Ala. 418; In re Hatch's Estate, 62 Vt. 300, 18 

HoUey v. Horton, 164 Mich. 31, 129 Atl. 814, 22 Am. St. 109. 

N. W. 6; Acreback v. Myer, 165 Mo. " Xartt v. Negus, 127 Ala. 301, 28 

685, 65 S. W. 1015; Pickett v. deed. So. 713; Kirksey v. Cole, 47 Ark. 504, 

39 Tex. Civ. App. 71, 86 S. W. 946. 1 S. W. 778; Gresham v. Johnson, 70 

"Atchison Sav. Bank v. Wheeler, Ga. 631; Capek v. Kropik, 129 III. 

20 Kans. 625; Donaldson v. Lamprey, 509, 21 N. E. 836; Burns v. Keas, 21 

29 Minn. 18, 11 N. W. 119. Iowa 257; Barbe v. Hyatt, 50 Kans. 

7* Taylor v. Hargous, 4 Cal. 268, 86, 31 Pac. 694; Gavin v. Sanders, 5 

60 Am. Dec. 606. Ky. L. 321 ; Eaton v. Robbins, 29 

"Miller V. Marx, 55 Ala. 322; Minn. 329, 13 N. W. 143; Acker v. 

Club v. Wise, 64 111. 157; Davis v. Trueland, 56 Miss. 30; Fore v. Fore, 

McCullouch, 192 111. 277, 61 N. E. 2 N. Dak. 260, 50 N. W. 712 ; Stewart 

377; First Nat. Bank v. Jacobs, 50 v. Blalock, 45 S. Car. 61, 22 S. E. 

Mich. 340, 15 N. W. 500 ; Morrill v. 774 ; Threat v. Moody, 87 Tenn. 143, 

Hopkms, 36 Tex. 686; Day v. Adams, 9 S. W. 424; Ashe v. Yungst, 65 Tex. 

42 Vt. 510; Riehl v. Bingenheimer, 631; Knudsen v. Hannberg, 8 Utah 

28 Wis. 88. 203, 30 Pac. 749 ; Austin v. Clifford, 

70 Bell V. Bell, 84 Ala. 64, 4 So. 24 Wash. 172, 64 Pac. 155 ; Speidel v. 

189; Sulzberger v. Sulzberger, 50 Cal. Schlosser, 13 W. Va. 686; Johnson 

385 ; Wilson v. Fridenburg, 19 Fla. v. Harrison, 41 Wis. 381. 



87 ESTATES AND INTERESTS IN REAL PROPERTY § 67 

after her husband's death. During this period she has the right 
to reside in the dwelling-house, occupied by the family, and to 
be supported out of his estate. This right is entitled the "wid- 
ow's quarantine," and in some jurisdictions she is permitted to 
remain until her dower is assigned." It has been held that the 
right can be claimed only as to the property of which the widow 
is dowable," and does not extend to leasehold estates unless the 
same is made subject to dower.^" 

The widow's quarantine is not subject to sale on execution for 
her debts,*^ nor need she pay a tax on the premises.*^ Her right, 
however, may be forfeited by her remarriage, but the right is not 
forfeited by her abandonment of the premises during the term of 
residence.*^ Modern statutes, however, in respect to the widow's 
quarantine, are, as a general thing, more liberal in her favor than 
the common law. No change from the common law is made in 
Delaware, Maryland, Massachusetts, New Hampshire, New 
York, North Carolina and Tennessee. The period during which 
the widow may remain in the mansion of the deceased husband is 
extended to ninety days in Maine ; two months, and until dower ' 
is assigned, in Arkansas; one year in Ohio, Oregon and Rhode 
Island; and until dower be assigned with no limit of time in 
Alabama, Florida, Georgia, Illinois, Kentucky, Michigan, Mis- 
souri, Nebraska, New Jersey, Vermont, Virginia, West Virginia 
and Wisconsin. 

In those states in which dower has been abolished by statute, 
the homestead laws, the year's support allowed to the widow and 
family, and the laws regulating the descent of real estate, com- 
pensate for the right of quarantine at common law. Until the 
dower has been assigned the widow may not only occupy, free of 
rent, the dwelling-house, together with all the appurtenant be- 
longings, and the messuage or plantations connected therewith,^* 
but her right constitutes a freehold for life, unless sooner de- 
feated by assignment of dower.^^ And it has been held that she 

's Pharis v. Leachman, 20 Ala. 662 ; others. Grubbs v. Leyendecker, 153 

Rambo V. Bell, 3 Ga. 207. Ind. 348, S3 N. E. 940. 

" Harrison v. Boyd, 36 Ala. 203. 82 Branson v. Yancy, 16 N. Car. 77. 

8» Pizzala V. Campbell, 46 Ala. 35. ss Doe v. Carrol, 16 Ala. 148. 

81 Cook V. Webb, 18 Ala. 810. Right swinge v. Murphy, 14 Ala. 289; 

of widow to occupy lands of her hus- White v. Clarke, 7 T. B. Mon. (Ky.) 

band with his children or heirs until 640. 

her death is assigned as a personal ^5 ^fiUgr v. Talley, 48 Mo. 503; 

right which she can not convey to Bleecker v. Hennion, 23 N. J. Eq. 

123. 



§ 67 TITLES AND ABSTRACTS 88 

may lease such freehold to another, and will be entitled to the 
rent paid therefor.'" But whether she can assign her right to re- 
main in the mansion house to another has been differently held, 
the right being affirmed in some states,'^ and denied in others.'* 

86 Reeves v. Brooks, 80 Ala. 26; s? Jones v. Manly, 58 Mo. SS9. 
Chaplin v. Simmons, 7 T. B. Mon. 68 Barber v. Williams, 74 Ala. 331. 
(Ky.) 337; McLaughlin v. McLaugh- 
lin, 22 N. J, Eq. SOS. 



CHAPTER III 

TITLE TO REAL ESTATE IN GENERAL 



SEC. SEC. 

70. Title defined and distinguished. 75. Complete, perfect, good, and clear 

71. Various estates to which title re- titles. 

lates. 76.' Bad, defective, imperfect, and 

72. Allodial titles. doubtful titles. 
IZ. Color of title. _ 11. Marketable titles. 
74. Legal and equitable titles. 78. Evidences of title. 

79. Title insurance. 

§ 70. Title defined and distinguished. — ^The term "title," 
as applied to real estate, may be defined as the means whereby 
the ownership of land is acquired or established. It is the means 
whereby the owner of land has the just possession of his prop- 
erty.^ The term indicates the evidence of ownership, or the chan- 
nel through which an estate in land is acquired, and when used in 
a legal sense it is sometimes said to mean ownership,^ and estate 
in fee,^ a right of possession,* or the evidence of one's right of 
possession.^ The term "title," in the popular sense, refers rather 
to the instruments which are usually relied upon to evidence the 
title, and to the outward assertive acts that import dominion, than 
to the strict legal means whereby the owner of land has the just 
possession thereof. Title is clearly distinguishable from the 
property or interest which one has in lands, tenements and here- 
ditaments. This property or interest is called an "estate," and is 
entirely distinct, not only from the land itself, but also from the 
methods of holding it, and from the title by which it may be ac- 
quired or held. An estate in land is the degree, quantity, nature 
or extent of interest which a person has in it; while his title to it 
is the evidence of his right or of the extent of his interest ; the 

1 Adain's v. Hopkins, 144 Cal. 19, 17 * Rodgers v. Palmer, 33 Conn. 155 ; 
Pac. 712; Jacob Tome Institute v. Dunster v. Kelly, 110 N. Y. 558, 18 
Davis, 87 Md. 591, 41 Atl. 166; 2 Bl. N. E. 361. 

Comm. 195. ^ Chapman v. Dougherty, 87 Mo. 

2 Livingston v. Ruff, 65 S. Car. 284, 617, 56 Am. Rep. 469; Patty v. Mid- 
43 S. E. 678. dleton, 82 Tex. 586, 17 S. W. 909. 

3 Gillespie V. Broas, 23 Barb. (N. 
Y.) 370. 

89 



§ 71 TITLES AND ABSTRACTS 90 

means whereby the owner is enabled to assert or maintain his 
possession, the right of the owner considered with reference 
either to the manner in which it has been acquired, or its capacity 
of being effectually transferred." 

§ 71. , Various estates to which title relates. — It would be 
beyond the scope of this work to discuss at length the various 
kinds of estates or interests in real property, but inasmuch as 
they will be frequently referred to in connection with our treat- 
ment of title it is deemed important that we include a classifica- 
tion of them, together with a brief definition of each. 

With reference to their quantum or duration estates are either: 
(l)Freehold estates or (2) estates less than freehold. 

A freehold estate is one which is to endure for an uncertain 
period, which must, or at least may, last during the life of some 
person. Freehold estates are either estates of inheritance or 
estates not of inheritance. The former has reference to estates 
which may descend to heirs, and includes : (a) Fee simple estates 
and (b) estates in fee tail; while the latter has reference to 
estates which do not descend to heirs, and includes: (a) Life 
estates, (b) estates pur autre vie, (c) tenancy in tail after possi- 
bility of issue extinct, (d) dower, (e) curtesy and (f) estates 
during coverture. An estate in fee simple is that estate which a 
person has where lands are given to him and to his heirs abso- 
lutely, without any end or limit put to his estate. An estate in fee 
tail is an estate of inheritance which, if left to itself, will, after the 
death of the first taker, descend to his lawful issue as long as his 
posterity endures in a regular order of descent from one to an- 
other, and will terminate on the failure of such posterity. A life 
estate is an estate which can not extend beyond the life or lives of 
some particular person or persons, but may possibly continue for 
the period of such life or lives. If the estate is for the life of 
another person or persons other than the life of the tenant him- 
self it is an estate pur autre vie. A tenancy in tail after possibil- 
ity of issue extinct is where, upon the death of the appointed wife 
of the donee in special tail, or of one of two donees in special 
tail without issue living, the donee or survivor of the two donees 
takes for his life, possibility of issue being extinct. Dower is an 

6 Robertson v. Vancleave, 129 Ind. 217, 26 N. E. 899, 29 N. E. 781, IS 

L. R. A. 68. 



91 TITLE TO REAL ESTATE § 71 

estate for life which a widow has in some portion of the lands 
and tenements of which her husband was seised at any time 
during coverture, and which her issue might have inherited if she 
had had any. An estate by the curtesy is a life estate to which a 
husband is entitled upon the death of his wife in lands or tene- 
ments of which she was seised in fee in possession during their 
coverture, provided they have any lawful issue born alive, and 
possibly capable of inheriting the estate. An estate during cover- 
ture is that right or interest which a husband or wife has during 
coverture in the lands and tenements of his or her spouse. 

Estates less than freehold are: (a) Estates for years, (b) 
estates at will, (c) estates from year to year, and (d) estates at 
sufferance. An estate for years is an estate or interest in land, 
having for its duration a definite and ascertained period, as a 
term for a fixed number of weeks, months or years. An estate at 
will, in the primary and technical sense of that expression, is cre- 
ated by grant and contract, whereby one person lets land to an- 
other to hold at the will of the lessor. An estate from year to 
year is a qualified tenancy at will introduced to obviate the incon- 
veniences of the latter kind of estate; and the qualification re- 
quires the determination of the will to be prospective, to take 
effect at the end of a current year of the tenancy. An estate at 
sufferance is where one who comes lawfully into possession of 
land holds over after his interest has determined. 

Estates with regard to their time of enjoyment are either : ( 1 ) 
Present estates or (2) future estates. The former has reference 
to an estate where the tenant is in actual possession of the prem- 
ises, or in receipt of the rents and other income arising there- 
from. The latter is an estate in which the tenant has a present or 
vested contingent right of future possession and enjoyment. Fu- 
ture estates include : (a) Reversions, (b) remainders, (c) contin- 
gent uses, (d) springing uses, (e) shifting uses, and (f) execu- 
tory devises. An estate in reversion is the residue of an estate 
left in the grantor to commence in possession after the deter- 
mination of some particular estate granted out by him. An es- 
tate in remainder is an estate limited to take effect and be enjoyed 
after another estate is determined. A contingent use is a use lim- 
ited in a deed or conveyance of land which may or may not hap- 
pen to vest, according to the contingency expressed in the limita- 
tion of such use. A springing use is one limited to arise on a 



§ 72 TITLES AND ABSTRACTS 92 

future event, where no preceding estate is limited, and which 
does not take effect in derogation of any other interest than that 
of the grantor. A shifting use is one which takes effect in dero- 
gation of some other estate, and is either limited by the deed by 
which it is created, or authorized to be created by some one 
named in the deed. An executory devise of lands is such disposi- 
tion of them by will that thereby no estate vests at the death of 
the testator, but only on some future contingency. 

Estates classified according as they are owned by one or more 
persons, and according to the nature of the rights of several 
owners, are: (1) Estates in severalty and (2) joint estates. The 
former has reference to those estates which are held by a per- 
son in his own right, without any other person being joined or 
connected with him in point of interest during his estate. The 
latter has reference to estates in which two or more persons are 
joined in interest, and include: (a) Joint tenancy, (b) tenancy 
in common, (c) tenancy in coparcenary, and (d) tenancy in en- 
tirety. A joint tenancy is where lands or tenements are granted 
to two or more persons, to hold in fee simple, fee tail, for life, 
for years or at will. In such tenancies, there must be unity of in- 
terest, of title, of time and of possession. A tenancy in com- 
mon is where there are several owners who may hold by differ- 
ent title, in different interests, which may be acquired at differ- 
ent times, the only unity being unity of possession. A tenancy 
in coparcenary is where several persons hold as one heir, whether 
male or female. This form of tenancy has unity of time, title, 
and possession, but the interests of the coparceners may be un- 
equal. A tenancy in entirety is one arising on a conveyance to a 
man and his wife jointly. They are seised, not of moieties, but 
of entireties, and the survivor takes the whole estate. 

§ 72, Allodial titles. — Under the feudal system in Eng- 
land there was no such thing as absolute ownership in land ; the 
primary title to all lands being vested in the crown, and no 
method was provided by which it could divest itself thereof. Many 
of the old feudal tenures have been abolished, so that at the present 
time, in England, all lands of inheritance are held either by 
socage or copyhold tenure.' 

The early English settlers in this country brought with them 
from the mother country such parts of the common and statutory 

7 Laws of Eng., vol. 24, pp. 147, 148. 



93 TITLE TO REAL ESTATE § 73 

laws as were of a general nature and applicable to their situa- 
tion.' Lands in this country were then held in free and common 
socage under grants from the crown.^ But by statute, or by force 
of judicial decisions, land tenures have been generally abolished 
in this country,^" and the lands are said to be allodial, as opposed 
to feudal; by which is meant that while title is primarily vested 
in the sovereign power, that power may, by proper gifts or con- 
veyances, divest itself of such title and transfer the same to indi- 
viduals. Allodial lands are said to be held in absolute ownership, 
the same as personalty.^^ 

Thus the character of the title to lands in this country since 
the revolution has become allodial, that is, wholly independent, 
and held of no superior at all. It must be remembered, however, 
that some rights and interests in the land are reserved to the 
state; such, for instance, as the right of taxation, the right of 
eminent domain, and the right of escheat. Land held allodially 
is owned subject to such rights of the state, but free and inde- 
pendent of all other domination or control. 

§ 73. Color of title. — Color of title is that which in ap- 
pearance is title, but which in reality is not title.^^ Color of 
title is an apparent title founded upon descent cast,^^ deed of con- 
veyance,^^ an execution sale,^^ a decree of court,^" a will,^^ a tax 
deed,^* a quitclaim deed,^" or any instrument in writing defining 

sBogardus v. Trinity Church, 4 is Pgadro v. Carriker, 168 111. 570, 
Paige (N. Y.) 178. 48 N. E. 102; Miller v. Davis, 106 

9 Chisholm V. Georgia, 2 Dall. (U. Mich. 300, 64 N. W. 338. 

S.),419, 1 L. ed. 440; Van Rensselaer i*Chickering v. Failes, 26 111. 508; 

V. Hays, 19 N. Y. 68, 75 Am. Dec. Welborn v. Anderson, 37 Miss. 155. 

278. But see Wright v. Tichenor, 104 Ind. 

10 Matthews v. Ward, 10 Gill & J. 185, 3 N. E. 853. 

(Md.) 443. 15 Kendrick v. Latham, 25 Fla. 819, 

"New Orleans v. United States, 6 So. 871; Falls of Neuse Mfg. Co. 

10 Pet. (U. S.) 662, 9 L. ed. 573; v. Brooks, 106 N. Car. 107, 11 S. E. 

Cook V. Hammond, 4 Mason 467, 478, 456. 

Fed. Cas. No. 3, 159; Bancroft v. "Owsley v. Matson, 156 Cal. 401, 

Cambridge, 126 Mass. 438; Minne- 104 Pac. 983; Huls v. Buntin, 47 111. 

apolis Mill Co. v. Tiffany, 22 Minn. 396. 

463. "Baldwin v. Ratcliflf, 125 III. 376, 

12 Wright V. Mattison, 18 How. (U. 17 N. E. 794 ; HoUoway v. Jones, 143 

S.) 50, 15 L. ed. 280 ; Black v. Ten- Pa. St. 564, 22 Atl. 710. 

nessee Coal &c. Co., 93 Ala. 109, 9 So. is Mclntyre v. Thompson, 4 Hughes 

537; Finley V. Hogan, 60 Ark. 499, 30 (U. S.) 562, 10 Fed. 531, 4 Hughes 

S. W. 1045 ; Millett v. Lagomarsino, 562 ; Chicago v. Middlebrooke, 143 111. 

107 Cal. 102, 40 Pac. 25 ; StudstiU v. 265, 32 N. E. 457. 

Willcox, 94 Ga. 690, 20 S. E. 120; i^ Safford v. Stubbs, 117 111. 389, 

Kopp V. Herrman, 82 Md. 339, 33 Atl. 7 N. E. 653 ; contra. Swift v. Mulkey, 

646. 14 Ore. 59, 12 Pac. 76. 



§ 74 TITLES AND ABSTRACTS 94 

the extent of the disseisor's claim.^" Any instrument may consti- 
tute color of title, within the meaning of the statute of limita- 
tions, which purports to convey the land and shows the extent 
and boundaries of the premises conveyed, although it is void as 
a muniment of title.^^ "When we say a person has color of title, 
whatever may be the meaning of the phrase, we express the idea, 
at least, that some act has been previously done, or some event 
transpired, by which some title, good or bad, to a parcel of land of 
definite extent has been conveyed to him."^^ 

It is not necessary that the title under which the disseisor 
claims should be a valid one.^" 

§ 74. Legal and equitable titles, — ^The classification of 
titles into legal and equitable has reference more particularly to 
the courts by which they are recognized. For instance, a person 
has a legal title to land when he has a right thereto in the nature 
of ownership cognizable by, and enforcible in, a court of law. 
Actual or constructive possession, coupled with the legal right of 
possession, will constitute a good and sufficient legal title. This 
legal right of possession must be such as would authorize a court 
of law to award a possessory writ. So, when we speak of a per- 
son having title to a piece of land we mean that he has a legal 
title, or one without qualification.^* When the title to real estate 
is spoken of without qualifying terms, a legal title is understood 
as meant.^^ 

An equitable title is the right in a party to whom it belongs to 
have the legal title to land transferred to him.^° It is such an in- 
terest as is cognizable solely in a court of equity. Such a title ex- 
ists where the legal title is vested in one person and the beneficial' 
interest inures to another person, who may be named in the deed 
or who may not be named at all, but whose right may exist by 
parol. Thus where title to land for which a wife paid the 
purchase-money is taken in the name of her husband, an equitable 

20 Cook V. Norton, 43 111. 391; Mich. 359, 45 N. W. 343; Jackson v. 
Thompson v. Burhans, 79 N. Y. 93. Newton, 18 Johns. (N. Y.) 355. 

21 Joplin Brewing Co. V. Payne, 197 24Hoult v. Donahue, 21 W. Va. 
Mo. 422, 94 S. W. 896, 114 Am. St 294. 

770. 25 Spencer v. Winselman, 42 Cal. 

22 St. Louis V. Gorman, 29 Mo. 593, 479. 

n Am. Dec. 586. 26 Thygerson v. Whitbeck, 5 Utah 

23 Hall V. Law, 102 U. S. 461, 26 406, 16 Pac. 403. 
L. ed. 217; Hecock v. Van Dusen, 80 



95 TITLE TO REAL ESTATE § 75 

title exists in favor of the wife, and a court of equity will decree 
a transfer of the legal title to her.^' Likewise, where the legal 
title to lands sold remains in the vendor until the purchase-money 
has been paid, the vendee acquires an equitable title only, and 
ypon payment of the full amount of the purchase-money, he can 
compel the vendor to transfer the legal title to him.^^ Although 
an equitable title is one that a court of equity will enforce, it has 
been repeatedly held that a purchaser can not be compelled to 
take such a title,^" especially where the equity is controverted/" 
It will be remembered, however, that the vendor will, if time is 
not material, be allowed time in which to get the legal title. 

§ 75. Complete, perfect, good, and clear titles. — To con- 
stitute in one a .complete title to real estate, he must have ac- 
quired, from one or more sources, the possession, the right of 
possession, and the right of property.^^ Where any one or more 
of these elements is wanting, the title is defective or does not ex- 
ist. While the element of the right of property is sometimes said 
to have disappeared from our modern law, yet it is still to be 
found as a distinct entity in some jurisdictions; and clearness of 
conception of how ownership becomes complete, through various 
sources of acquisition, often depends on a careful inquiry regard- 
ing all three of these elements. 

It is apparent that one may have possession or actual occupa- 
tion without any pretense of right; or one may have the right of 
possession, while another has the possession in fact ; or one may 
have the mere right of property, while possession and right of 
possession may be in another. These elements must be united in 
one person to constitute a complete title. ^^ By statute in most 
jurisdictions, the right of property as distinct from the right of 
possession is now recognized. The two go hand in hand, so that, 
generally speaking, adverse possession may now complete a title, 
by transferring all the elements of ownership, in the period fixed 
by the statute. 

27 Beringer v. Lutz, 188 Pa. St. 364, Am. Dec. 48 ; Littlefield v. Tinsley, 

41 Atl. 643. . 26 Tex. 353 ; Newberry v. French, 98 

28Jennisons v. Leonard, 21 Wall. Va. 479, 36 S. E. 519. 

(U. S.) 302, 22 L. ed. 539. so Ankeny v. Clark, 148 U. S. 345, 

29 Waggoner v. Waggoner, 3 B. 13 S. Ct. 617, il L. ed. 475. 

■Mon. (Ky.) 556; Morris v. Mowatt, ^iDinggy v. Paxton, 60 Miss. 1038. 

2 Paige (N. Y.) 586, 22 Am. Dec. 32 Ehle v. Quackenboss, 6 Hill (N. 

661; Jones v. Taylor, 7 Tex. 240, 56 Y.) 537. 



§ 75 TITLES AND ABSTRACTS 96 

To constitute a perfect title there must be a union of the same 
elements, namely, actual possession, the right of possession, and 
the right of property."^ Strictly speaking, there is no such title as 
a "perfect title." Where the phrase was embodied in a contract 
of sale, it was said to mean such a title as is perfect and safe to a 
moral certainty; a title which does not disclose a patent defect 
which suggests the possibility of a lawsuit to defend it; a title 
such as a well-informed and prudent person paying full value for 
the property would be willing to take/* "A perfect title always 
carries with it, in legal contemplation, lawful seisin and posses- 
sion. Such seisin and possession is co-extensive with the right, 
and deemed to continue until ouster by actual possession of an- 
other under claim of right."^^ 

The term "good title" does not necessarily mean one perfect of 
record.^' It consists in the rightful ownership of property and 
in the rightful possession thereof, together with the appropriate 
legal evidence of rightful ownership. As between vendor and 
purchaser, it means the legal estate in fee, free and clear of all 
valid tlaims, liens or encumbrances whatsoever.^' It means a title 
free from litigation, palpable defects, and grave doubts. It 
should consist of both legal and equitable titles, fairly deducible 
of record.^^ "A good title means not merely a title valid in fact, 
but a marketable title, which can again be sold to a reasonable 
purchaser or mortgaged to a person of reasonable prudence as 
security for a loan of money. A purchaser will not generally be 
compelled to take a title when there is a defect in the record title 
which can be cured only by a resort to parol evidence."^' In a 
contract to convey a good title, the word "good" comprehends all 
that the word "clear" does.*" And the term "clear title," as used 
in such contract, means that there are no incumbrances on the 
land.*^ Where a contract of sale provided that the vendor was 
to furnish an abstract of title "showing a good and clear title, 

33 Donovan v. Pitcher, 53 Ala. 411, ss Reynolds v. Borel, 86 Cal. 538, 

25 Am. Rep. 634 ; Converse v. Kel- 25 Pac. 67. 

logg, 7 Barb. (N. Y.) 590. ,39 Moore v. Williams, 115 N. Y. 

3* Birge v. Bock, 44 Mo. App. 69. 586, 22 N. E. 233, 5 L. R. A. 654, 12 

35 Altschul V. O'Neill, 35 Ore. 202, Am. St. 844. 

58 Pac. 95. «o Oakey v. Cook, 41 N. J. Eq. 350, 

3s Bloch V. Ryan, 4 App. Cas. (D. 7 Atl. 495. 

C.) 283. "Roberts v. Bassett, 105 Mass. 409. 

3T Jones V. Gardner, 10 Johns. (N. 
Y.) 269. 



97 TITLE TO REAL ESTATE § 76 

free from defects," it was held that the contract was not per- 
formed where the abstract shows defects which may or may not 
exist in the title as tested by the original records, and an incum- 
brance which may or may not be barred by limitation." 

§ 76. Bad, defective, imperfect and doubtful titles. — A 
bad title is one which conveys no property to the purchaser of the 
estate.*^ But the word "bad," when used in connection with title, 
is merely a vulgarism, and the fact that it is commonly used does 
not make it any the less a vulgarism. 

A title is said to be defective when the party who claims to 
own the land has not the whole title, but some other person has 
title to a part or portion of it.** A defective title is the same as 
no title whatever.*^ 

An imperfect title is one where something remains to be done 
by the granting power to pass the fee in land.*" 

A doubtful title is one which turns upon some question of law 
or fact which the court considers so doubtful that the purchaser 
will not be compelled to accept the title and incur the risk of a 
lawsuit by adverse claimants. Just what matters of law or fact 
are sufficient to make a title so doubtful as to be unmarketable 
can not be indicated by positive rules. A doubtful title has also 
been defined to be one which conveys no property to the pur- 
chaser of the estate.*^ Every title is doubtful which invites or 
exposes the partj: holding it to litigation.** 

§ 77. Marketable titles. — The term "marketable title," 
when applied to real estate, means a title free from reasonable 
doubt.** A reasonable doubt concerning the title exists when 
there is uncertainty as to some fact appearing in the course of its 
deduction, and the doubt must be such as affects the value of the 
property or will interfere with its sale.^" It means a title that is 

*2 Kane v. Rippey, 24 Ore. 338, 33 ^s Herman v. Somers, 158 Pa. St. 

Pac. 936. 424, 27 Atl. 1050, 38 Am. St. 851. 

*3 Heller V. Cohen, IS Misc. 378, ^^ Austin v. Barnum, 52 Minn. 136, 

36 N. Y. S. 668, 71 N. Y. St. 582. 53 N. W. 1132; Sproule v. Davies, 69 

«Copertini v. Opperraann, 76 Cal. App. Div. 502, 75 N. Y. S. 229; 

181, 18 Pac. 256. Holmes v. Woods, 168 Pa. St. 530, 32 

^5 Place V. People, 192 111. 160, 61 Atl. 54; Morrison v. Waggy, 43 W. 

N. E. 354. Va. 405, 27 S. E. 314. 

*6 Paschal v. Perez, 7 Tex. 348. " Vought v. Williams, 120 N. Y. 

" Heller v. Cohen, 15 Misc. 378, 253, 24 N. E. 195, 8 L. R. A. 591, 17 

36 N. Y. S. 668, 71 N. Y. St. 582. Am. St. 634; Schenck v. Wicks, 23 



Utah 576, 65 Pac. 732. 



7 — Thomp. Abstr. 



§ 77 TITLES AND ABSTRACTS 98 

reasonably free from such doubts as will affect the market value 
of the estate; one which a reasonably prudent person with knowl- 
edge of all the facts and their legal bearing would be willing to 
accept." 

The title should be not only good, but indubitable.^^ It should 
at least be such a title as would insure to the purchaser a peaceful 
enjoyment of the property.''^ If a reasonable doubt remains, after 
the vendor has produced all the proof he is able to produce, the 
title is not marketable, and the purchaser is not obliged to take 
it.°* A title may be perfect, and yet not be marketable. For in- 
stance, suppose the validity of A's title depends upon the question 
whether or not he is next of kin to B. If he is in fact the next of 
kin to B, his title is perfect. But if he is unable to show to the 
court beyond a reasonable doubt that he is such, then his title, 
though really perfect if all the facts could be shown, will be 
deemed unmarketable."^^ The title may be good in fact, but to be 
marketable it must be good of record.^" The fact that the title is 
capable of being made good by the production of oral testimony 
or by affidavits, does not make it a marketable title where the rec- 
ord does not show the title to be good." "The authorities hold 
that to render a title marketable it is only necessary that it shall 
be free from reasonable doubt; in other words, that a purchaser 
is not entitled to demand a title absolutely free from every pos- 
sible suspicion. He can only demand, such title as a reasonably 
well-informed and intelligent purchaser, acting upon business 
principles, would be willing to accept.'"^* "A title open to a rea- 
sonable doubt is not a marketable title. The court can not make 
it such by passing upon an objection depending upon a disputed 
question of fact or a doubtful question of law, in the absence of 
the party in whom the outstanding right was vested. He would 

51 Roberts v. McFadden, 32 Tex. N. E. 868, 3 L. R. A. 161 ; Brown v. 

Civ. App. 47, 74 S. W., 105. Widen (Iowa), 103 N. W. 158; Horn 

=2 0rmsby v. Graham, 123 Iowa v. Butler, 39 Minn. 515, 40 N. W. 833; 

202, 98 N. W. 724. Kane v. Rippey, 22 Ore. 296, 23 Pac. 

=3 Barnard v. Brown, 112 Mich. 452, 180; Speakman v. Foripaugh, 44 Pa. 

70 N. W. 1038, 67 Am. St. 432. St. 363. 

=* Shriver v. Shriver, 86 N. Y. 575. " Howe v. Coates, 97 Minn. 385, 

=5Eggers V. Busch, 154 111. 604, 39 107 N. W. 397, 4 L. R. A. (N. S.) 

N. E. 619; Reynolds v. Strong, 82 1170, 114 Am. St. 723; Speakman v. 

Hun (N. Y.) 202, 31 N. Y. S. 329, Forepaugh, 44 Pa. St. 363. 

63 N. Y. St. 778. ss Cummings v. Doian, 52 Wash. 

=8 Bloch V. Ryan, 4 App. D. C. 283; 496, 100 Pac. 989, 132 Am. St. 986. 
Close V. Stuyvesant, 132 III. 607, 24 



99 TITLE TO REAL ESTATE § 78 

not be bound by the adjudication, and could raise the same ques- 
tion in a new proceeding. * * * j^ would especially be un- 
just to compel a purchaser to take a title, the validity of which 
depended upon a question of fact, where the facts presented upon 
the application might be changed on a new inquiry or are open to 
opposing influences."^® 

§ 78. Evidences of title. — The legal title to land is made 
up of a series of documents required to be executed with the 
solemnities prescribed by law, and of facts not evidenced by doc- 
uments, which show that the claimant is a person to whom the 
law gives the estate, such as an heir, a tenant in dower, and an 
adverse holder for the statutory period of limitation. Docu- 
mentary evidences of title consist of voluntary grants by the sov- 
ereign, deeds of conveyance and wills by individuals, conveyances 
by statutory or judicial permission, deeds made in connection 
with a sale of land for delinquent taxes, proceeding in the exer- 
cise of the power of eminent domain, and deeds executed by min- 
isterial or fiduciary ofHcers. A person is not deemed the legal 
owner of land until there exists such documents and facts as the 
law requires for the transfer of title to him. He may be entitled 
to a conveyance, but is not deemed the legal owner until the 
proper conveyance has been made.*" It is with the instruments 
which are relied upon to evidence the title, and to the outward as- 
sertive acts that import dominion, that the abstracter has to do in 
compiling an abstract, and that the attorney must examine in 
order to determine the true status of the title. 

§ 79. Title insurance. — The business of insuring titles to 
real estate has become quite extensive in the larger cities and 
older settled parts of the country. Financial corporations of 
large capital and established responsibility, that have, practically, 
perpetual chartered life, empowering them to issue policies of in- 
surance of titles, operative without limit as to time, are to be 
found in almost every state. In consideration of the payment 
of a certain premium, the amount of which is fixed by special 
agreement, guided by rates proportional to the amount insured, 
these companies issue such policies to owners of lands, or to their 
mortgagees, agreeing to insure the party interested and his trans- 

5" Fleming v. Burnham, 100 N. Y. e" Page v. Rogers, 31 Cal. 294. 
1, 2 N. E. 90S. 



§ 79 TITLES AND ABSTRACTS 100 

ferees, his heirs, devisees, and personal representatives, against all 
loss or damage, not exceeding the sum named in the policies, 
which the insured shall sustain, not only by reason of any defects 
of title, or from incumbrances affecting the designated property, 
but also against all loss or damage by reason of the unmarket- 
ability of the title of the insured in the premises. By force of 
such policies, the liability of the insuring companies extends, not 
merely in favor of the contracting party and his heirs, etc., but 
also in favor of any third person to whom he may have trans- 
ferred the policy. -It also extends to defects of title, and to the 
existence of any encumbrance, whether discoverable or not by the 
most thorough and complete searches, provided only that any 
judgments adverse to the title shall be pronounced, under the 
conditions named, by any competent court. As a rule the defects 
insured against must exist at the time the contract is entered into, 
and any defects arising after the date of the policy are not covered 
by it. But it is not necessary that the defect should actually exist 
at the date of the policy in order to bind the insurer in case of 
subsequent loss. It is sufficient if there be in existence on the 
date of the policy an inchoate or potential defects which the hap- 
pening of some subsequent event renders substantial and real. 
In all cases of title insurance the rights and liabilities of the par- 
ties are measured by the terms and conditions of the contract. 
The policy is usually issued on a v^ritten application by the in- 
sured, and it usually provides that the application shall be held 
to be a warranty of the facts therein stated. When the contract 
has been agreed upon and the policy issued, it is subject to the 
same rules of construction as are applicable to policies of other 
kinds of insurance. 



CHAPTER IV 

METHODS OF ACQUIRING TITLE 
SEC. SEC. 

85. Title by descent and by pur- 99. Estoppel by deed, 
chase. 100. Estoppel in pais. 

86. Title by descent based on laws 101. Relation. 

of inheritance. 102. Prescription and limitation. 

87. Common-law canons of descent. 103. Accretion and alluvion. 

88. Rules of descent under the civil 104. Title to riparian lands, 
law. 105. Dedication. 

89. Consanguinity and affinity. 106. Confirmation. 

90. Fact of death. 107. Occupancy. 

91. Fact of intestacy. 108. Abandonment. 

92. Title by purchase classified. 109. Eminent domain. 

93. Title by private deed. 110. Title and rights acquired by con^ 

94. Official grants. deranation. 

95. Public grants. 111. Escheat. 

96. Devise. 112. Confiscation. 

97. Title by estoppel in general. 113. Forfeiture. 

98. Estoppel by record. 

§ 85. Title by descent and by purchase. — Most authorities 
agree that title to real property is acquired either by descent or 
by purchase. The former method includes only those cases in 
which property passes from an ancestor to his heirs by virtue of 
the law of descent. The latter method includes all those cases 
where title to property is acquired by a method other than by 
descent. It is only when the law transfers property to an heir 
that title is obtained by descent.^ The interests of dower and 
curtesy, though created by law, do not come within the doctrine 
of descents.^ But where the heirs at law of a testator are given 
the same estates or shares that the law would have cast upon 
them in case of intestacy, they are said to take by descent, even 
though the estate be charged with incumbrances.^ 

The principal distinction between title by descent and title by 
purchase is that by the latter method the estate acquires a new in- 
heritable quality and is rendered descendible to the blood in gen- 
eral of the person acquiring it. An estate thus acquired will not, 

1 Hutchinson Investment Co. v. ^ Jackson v. Alsop, 67 Conn. 249, 

Caldwell,, 152 U. S. 65, 14 Sup. Ct. 34 Atl. 1106; Thomas v. Miller, 161 

504, 38 L. ed. 356. 111. 60, 43 N. E. 848; Frick Coal Co. 

M Kent Com., p. *374, note (c). v. Laughead, 203 Pa. 168, 58 Atl. 172. 

101 



§ 86 TITLES AND ABSTRACTS 102 

like that acquired by descent, render the owner answerable for 
the acts of his ancestors.* Such statutory rules as require ances- 
tral blood as a prerequisite to descent do not operate upon estates 
acquired by purchase/ In title by descent, the inheritance is cast 
upon the heir, whether he is willing or not, immediately upon the 
death of the ancestor. 

§ 86. Title by descent based on laws of inheritance. — In- 
heritance is not a natural or absolute right, but is piirely a creature 
of statutory law, and the state may enact laws under which real 
property may descend, and may preclude any other mode or law 
of descent." It may designate what person or persons shall in- 
herit an estate, or whether the estate shall be inherited by any 
person whomsoever. Hence, at any time prior to the vesting of 
an estate by the death of the owner thereof, the line of inheritance 
may be changed by statute, and the statute affecting such change 
will control the succession of the estate, and may increase or 
diminish the number of the heirs at law ; may entirely destroy the 
expectancy of the heir apparent, or may cast the descent upon 
those who previously did not possess the right of inheritance.' 
But after the interest of an heir has become vested by the death 
of his ancestor, it remains subject to administration, and may be 
sold to pay decedent's debts and the expenses of administration.* 

The right to inherit is said to rest in public policy, and is de- 
pendent upon the will of the legislature, except as restricted by 
constitutional provision.^ To discover who are the rightful heirs, 
and to provide how and in what proportions the inheritance shall 
pass, is the purpose of all statutes and canons of descent. In 
most of the states of this country, the statutes of descent are mod- 
eled after the English statutes for the distribution of personalty, 
and these statutes were taken from the rules of the civil law." 
The great object of these statutes of distribution was to accom- 
plish an equal distribution of the estate. In this respect their pro- 

*Kohl V. United States, 91 U. S. lor, 132 Tenn. 92, 177 S. W. 61. 

367, 23 L. ed. 449 ; Burt v. Merchants' i Gregley v. Jackson, 39 Ark. 487. 

Ins. Co., 106 Mass. 356, 8 Am. Rep. 8 Overturf v. Dugan, 29 Ohio St. 

339. 230. 

5 Ramsey v. Ramsey, 7 Ind. 607. " In re Colbert's Estate, 44 Mont. 

<= Wilson V. Storthz, 117 Ark. 418, 259, 119 Pac. 791. 

175 S. W. 45 ; National Safe Deposit i" Rountree v. Pursell, 11 Ind. App. 

Co. V. Stead, 250 111. 584, 95 N. E. 522, 39 N. E. 747; Blackborough v. 

973 ; Northern Trust Co. v. Buck, 263 Davis, 1 P. Wms. 41 : Lloyd v. Tench, 

111. 222, 104 N. E. 1114; Cole v. Tay- 2 Vesey 215. 



103 METHODS OF ACQUIRING TITLE § 87 

visions were in striking contrast with the common-law canons 
of descent. The intention of the modern statutes of descent is to 
follow the lead of the natural affections of the intestate, and to 
consider as most worthy the claims of those who stand nearest to 
his affections. ^^ While it is true that the descent and distribution 
of property in most states is governed entirely by statute, it is 
also true that in the construction of such statutes and in deter- 
mining the meaning of the words and terms employed, heed is 
given to the meaning attached to such words and terms by the 
common law. When words of a definite signification under the 
common law are used in such statutes, and there is nothing to 
show that they are used in a different sense, they are deemed to be 
employed in their known and defined common-law meaning.^^ 

§ 87. Common-law canons of descent. — The feudal sys- 
tem introduced in England a theory for the devolution of lands 
and landed property founded upon military services. With some 
modifications, it became the common law of descent in that coun- 
try. By its rules, actual seisin or seisin in deed was indispensable 
to the inheritable quality of estates. If the ancestor was not 
seised, no matter how clear his right of property, the heir could 
not inherit. Hereditaments descended lineally, but could never 
ascend. The oldest son was admitted to the inheritance, to the 
exclusion of his brothers and sisters, and males before females. 
Lineal descendants in infinitum represented their ancestors, stand- 
ing in the same place the ancestor would have stood if living; 
and on failure of lineal descendants, the inheritance descended to 
the collateral relations, being of the blood of the first purchaser, 
subject to the preceding rules. The collateral heir of tjie intestate 
was required to be his collateral kinsman of the whole blood. 
In collateral inheritances, the male stock was preferred to 
the female, and kindred of the blood of the male an- 
cestor, however, remote, was admitted before those of the 
blood of the female, however near, unless the lands in 
fact descended from a female. These canons of descent had two 
leading purposes in view : The first, to preserve the inheritance 
in the blood of that family by whom it was originally acquired ; 

"Garland v. Harrison, 8 Leigh A. (N. S.) 220n, 139 Am. St 404; 

(Va.) 368. Allen's Appeal, 99 Pa. St. 196, 44 Am. 

12 Holt V. Agnew, (P Ala. 360; Rep. lOln; Apple v. Apple, 38 Tenn. 

Truelove v. Truelove, 172 Ind. 441, 348. 
86 N. E. 1018, 88 N. E. 516, 27 L. R. 



87 



TITLES AND ABSTRACTS 



104 



the second, to preserve the inheritance entire by keeping it for the 
time being in a single representative of that family by which it 
was acquired. While these common-law canons of descent have 
never been in force to any considerable extent in this country, and 
while our statutes are designed to cover every conceivable case 
or state of circumstances that can surround the descent of prop- 
erty,^^ yet as our laws of descent are so interwoven with the 
common law, and are so generally based upon it, a review of the 
common-law canons will not be out of place in this connection; 
and an examination of each will show how far the spirit of such 
canons is incorporated, if at all, in our statutes of descent. These 
canons are usually given as seven in number, and are as follows : 

(1) Inheritances shall lineally descend to the issue of the per- 
son who died last actually seised, in infinitum, but shall never 
lineally ascend.^* 

(2) The male issue shall be admitted before the female.^' 

(3) That where there are two or more males in equal degree, 
the eldest only shall inherit, but the females altogether.^" 



13 Cloud V. Bruce, 61 Ind. 171; 
Bruce v. Bissell, 119 Ind. 525, 22 N. 
E. 4, 12 Am. St. 436. 

" Bates V. Brown, 5 Wall. (U. S.) 
710, 18 L. ed. 535; Rountree v. Pur- 
sell, 11 Ind. App. 522, 39 N. E. 747; 
2 Bl. Comm. 208. Descent in this 
country is traced from the person last 
entitled to the land regardless of 
whether he was actually seised, or 
whether he obtained the land by pur- 
chase or descent. 4 Kent's Comm. 
388; Kelly v. McGuire, IS Ark. 555; 
Thompson v. Sanford, 13 Ga. 238; 
Guion V. Burton, Meigs (Tenn.) 565. 
The principle that inheritances shall 
never lineally ascend is also generally 
abrogated, and in most jurisdictions 
parents and grandparents are now 
permitted to inherit in case there be 
no issue of the intestate owner. Mag- 
ness V. Arnold, 31 Ark. 103; Gard- 
ner V. CoIHns, 2 Pet. (U. S.) 58, 7 L. 
ed. 347; Leonard v. Lining, 57 Iowa 
648, 11 N. W. 623; Albee v. Vose, Id 
Maine 448; McDowell v. Adams, 45 
Pa. St. 430; 2 Bl. Comm. 212. This 
rule of descent has never been adopt- 
ed in this country, so that for all 
purposes of inheritance no distinc- 
tion is made between males and fe- 
males in either lineal or collateral 



lines of inheritance. Albee v. Vose, 
76 Maine 448; McCracken v. Rogers, 
6 Wis. 278. 

15 However, a modified preference 
for males may be found in some 
states in cases where the estate has 
come to the intestate by purchase. In 
such cases it passes first to those of 
the paternal ancestral line in prefer- 
ence to those of the maternal kin in 
the same degree. Kountz v. Davis, 
34 Ark. 590; Magee v. Doe, 9 Fla. 
382 ; In re Kane's Estate, 38 Misc. 276, 
n N. Y. S. 874; Wright v. Wright, 
100 Tenn. 313, 45 S. W. 672. In other 
states no preference is given to the 
male line, but where the estate came 
to the intestate in any manner other 
than by gift, devise, or descent, it is 
divided into two equal parts and 
given one part each to the paternal 
and maternal line, and on failure of 
either the other takes the whole es- 
tate. Murphy V. Henry, 35 Ind. 442. 

1" This rule has never prevailed in 
this country, but instead, all descend- 
ants of equal degree of consanguinity 
to the ancestor, take in equal shares 
as tenants in common, regardless of 
sex. Jewell v. Jewell, 28 Cal. 232; 
Brewer v. Blougher, 14 Pet. (U. 
S.) 178, 10 L. ed. 408; Jewell v. 



105 



METHODS OF ACQUIRING TITLE 



§ 87 



(4) That the Hneal descendants in infinitum of any deceased 
person shall represent their ancestor, that is, shall stand in the 
same place as the person himself would have done had he been 
living." 

(5) On failure of lineal descendants, or issue of the person 
last seised, the inheritance shall descend to his collateral relations, 
being of the blood of the first purchaser, subject to the pre- 
ceding rules. ^* 



Jewell, 28 Cal. 232; Joslin v. Joslin 
(Iowa), 75 N. W. 487; Dodge v. 
Beeler, 12 Kans. 524 ; Benson v. Swan, 
60 Maine 160; Benedict v. Beurmann, 
90 Mich. 396, 51 N. W. 461 ; Waldron 
V. Taylor, 52 W. Va. 284, 45 S. E. 336. 
"2 Bl. Comm. 217. This doctrine 
is called taking by right of represen- 
tation or per stirpes. By statute in 
a great many states this right is ex- 
tended to grandchildren and more re- 
mote descendants, and all relations of 
the intestate, whether lineal or col- 
lateral. Under such statutes, those 
nearest in degree of consanguinity to 
the intestate, remaining alive at his 
death, are taken as the basis of dis- 
tribution. Cox V. Cox, 44 Ind. 368; 
Balch V. Stone, 149 Mass. 39, 20 N. E. 
322. When all the heirs are in the 
same or equal degree of consanguin- 
ity to the intestate, they take per cap- 
ita, or in equal shares. Taylor v. 
Cribbs, 174 Ala. 217, 56 So. 952; 
Baker v. Bourne, 127 Ind. 466, 26 N. 
E. 1078; Pittsburg &c. R. Co. v. Reed, 
44 Ind. App, 635, 88 N. E. 1080 ; Snow 
V. Snow, 111 Mass. 389; Staubitz v. 
Lambert, 71 Minn. 11, 73 N. W. 511; 
Fisk V. Fisk, 60 N. J. Eq. 195, 46 Atl. 
538; Barber v. Brundage, 50 App. 
Div. 123, 63 N. Y. S. 347; Ellis v. 
Harrison, 140 N. Gar. 444, S3 S. E. 
299; In re Cremer's Estate, 156 Pa. 
St. 40, 26 Atl. 782. But if" the heirs 
are in diflferent degrees of consan- 
guinity, the more remote take per 
stirpes, or by representation. Kilgore 
V. Kilgore, 127 Ind. 276, 26 N. E. 56 ; 
Ernest v. Freeman, 129 Mich. 271, 88 
N. W. 636; In re Shedaker, 74 N. J. 
Eq. 802, 70 Atl. 659; In re Dunning, 
48 Misc. 482, 96 N. Y. S. 1110; Pond 
V. Bergh, 10 Paige (N. Y.) 140; In 
re Person's Appeal, 74 Pa. St. 121; 
Haynes v. Walker, 111 Tenn. 106, 76 



S. W. 902. By statute in some states 
no representation shall be admitted 
among collaterals beyond the children 
of brothers and sisters. Campbell's 
Appeal, 64 Conn. 277, 29 Atl. 494, 24 
L. R. A. 667 ; In re Schlosser, 116 N. 
Y. S. 796; Conant v. Kent, 130 Mass. 
178; In re Rogers' Estate, 131 Pa. 
St. 382, 18 Atl. 871. 

18 2 Bl. Comm. 220. This rule is 
now altered so that the estate goes to 
the lineal ascendants, if any, in pref- 
erence to collateral relations. 4 Kent 
Comm. 392 ;, Magness v. Arnold, 31 
Ark. 103 ; Hillhouse v. Chester, 3 Day 
(Conn.) 166, 3 Am. Dec. 265; Leon- 
ard V. Lining, 57 Iowa 648, 11 N. W. 
623 ; Bolinger v. Beacham, 81 Kans. 
746, 106 Pac. 1094 ; King v. Middles- 
bough Town &c. Co., 106 Ky. li, 50 
S. W. Z1, 1108, 20 Ky. L. 1859. In 
so far as this canon requires the heir 
to be of the blood of the first pur- 
chaser, it may be said to have but 
limited application in this country, as 
here regard is generally had only to 
the immediate descent from the an- 
cestor last seised. Murphy v. Henry, 
35 Ind. 442. Those having the blood 
of the last ancestor may inherit, and 
the word ancestor in this connection 
means the person from whom the im- 
mediate descent is had and not the 
first purchaser. This includes the 
half, as well as the whole blood for 
by the blood of the ancestor it is 
merely intended to mark the class in 
which the heirs are to be found. In 
re Ranck's Appeal, 113 Pa. St. 98, 4 
Atl. 924; Miller v. Speer, 38 N. J. Eq. 
567; Brower v. Hunt, 18 Ohio St. 
311. By this rule an inheritance 
could not pass in the ascending line, 
except only through some collateral 
ascendant; Smith v. Gaines, 35 N. J. 
Eq. 65. 



§ 88 TITLES AND ABSTRACTS 106 

(6) The collateral heirs of the person last seised must be the 
next collateral kinsman of the whole blood.^" 

(7) In collateral inheritance male stock shall be. preferred to 
female, unless where the lands have in fact descended from a 
female.'" 

§ 88. Rules of descent under the civil law. — Under the 
civil-law rules of descent three orders of succession were created : 
(1) That of descendants, (2) that of ascendants, and (3) that 
of collaterals. The descendants of an intestate ancestor, whether 
adoptive or natural, or whether emancipated or not, succeed to 
his estate, without any distinction as to sex or degree, to the ex- 
clusion of all the other relatives of such ancestor. If such de- 
scendants were all in the first degree of relationship to the an- 
cestor they shared the succession per capita, otherwise it passed 
per stirpes. If such ancestor left no such descendants the inheri- 
tance belonged to the heirs of the ascending line, with the excep- 
tion that where there were brothers and sisters of the whole 
blood of such intestate surviving him, the inheritance was divided 
between them, and the heirs of the ascending line share and share 
alike. But if there were no brothers or sisters of the whole blood, 
the nearest ascendant took the entire estate to the exclusion of 

" 2 Bl. Comm. 224. This rule of 42, Utah 40, 129 Pac. 360 ; Stevenson 

excluding the half blood is not in v. Gray, 46 Ind. App. 412, 89 N. E. 

harmony with the spirit of our laws 509; Stockton v. Frazier, 81 Ohio St. 

of descent, and has never been adopt- 227, 90 N. E. 168, 26 L. R. A. (N. S.) 

ed by any of the states. In some 603n. But, generally speaking, no dis- 

states, however, a preference is given crimination is made against those of 

to kinsmen of the whole blood in the the half blood, and they will, as a 

amount of the estate to be taken ; rule, inherit equally with those of the 

Petty V. Malier, 15 B. Mon. (Ky.) whole blood in the same degree. Car- 

591 ; Hulme v. Montgomery, 31 Miss, ter v. Carter, 234 111. 507, 85 N. E. 

105; Marlow v. King, 17 Tex. 177; 292; Pond v. Irwin, 113 Ind. 243, IS 

and in others the half blood is post- N. E. 272 ; Finley v. Abner, 4 Ind. 

poned in the inheritance to those of Terr. 386, 69 S. W. 911 ; Tays v. Rob- 

the whole blood. Chirac v. Reinecker, inson, 68 Kans. S3, 74 Pac. 623 ; Lar- 

2 Pet. (U. S.) 613, 7 L. ed. 538; rabee v. Tucker, 116 Mass. 562; Stark 

Keller v. Harper, 64 Md. 74, 1 Atl. 65 ; v. Stark, 55 Pa. St. 62. 

Stark V. Stark, 55 Pa. St. 62. Where 20 Bl. Comm. 234. This rule does 

the statute provides that collateral not obtain in this country. Generally, 

kindred of the half blood take equally no preference, even among coUater- 

with those of the whole blood, except als, is given on account of sex. But 

where the estate came to the intestate in some states male ascendants are 

by gift, devise, or descent from an given preference over female ascend- 

ancestor, such kindred of the half ants. Kountz v. Davis, 34 Ark. 590; 

blood share only where they are of In re Kane's Estate, 38 Misc. 276, 77 

the blood of the ancestor from whom N. Y. S. 874 ; Wright v. Wright, 100 

the estate came. Gardner v. Gardner Tenn. 313, 45 S. W. 672. 



107 METHODS OF ACQUIRING TITLE § 89 

those more remote. If ascendants of the same degree were part 
in the paternal Hne and part in the maternal, the inheritance was 
given in equal parts to each line without any regard as to whether 
there were more in the same degree in the one line than in the 
other. Each line took one-half the inheritance. In the absence of 
heirs, either in the ascending or descending line, the collateral 
heirs succeeded. First, brothers and sisters of the whole-blood, 
and then brothers and sisters of the half-blood. By right of rep- 
resentation the children of a deceased brother or sister were en- 
titled to the share of their deceased parent, but this right of rep- 
resentation did not extend to grandchildren of such deceased 
brother or sister. If there were no brothers or sisters of either 
the whole or the half-blood, or children of such brothers or sis- 
ters, the inheritance passed to the nearest relation in whatever 
degree, and where there were several of the same degree they took 
such inheritance per capita, not per stirpes. ^^ 

§ 89. Consanguinity and affinity. — Consanguinity is the 
connection or relation of persons descended from the same stock 
or common ancestor. ^^ It is having in common the blood of 
such ancestor.^' Some portion of the blood of such common an- 
cestor flows through the veins of all his descendants, however 
mixed such blood may be with that of others, and constitutes the 
kindred by blood between any two of such descendants. Such 
blood relationship Is of two kinds, either lineal or collateral. 
Lineal consanguinity is that which subsists between persons, one 
of whom is in a direct line from the other, either upward in direct 
ascending line as from son to father or grandfather, or down- 
ward in the direct descending line, as frorn father to son or 
grandson ; and in every generation in lineal, direct consanguinity 
constitutes a different degree, reckoning either upward or down- 
ward.^* Collateral consanguinity, on the other hand, is that which 
subsists between persons who are lineally descended from the same 
common ancestor, but not from each other.^^ 

In considering this subject of consanguinity care should be 

21 118, 127 Justinian, Sanders' In- (N. Y.) 49S ; Blodget v. Brinsmaid, 9 

stitutes 388. Vt. 27. 

22 State V. DeHart, 109 La. 570, 33 24 Brown v. Baraboo, 90 Wis. ISl, 
So. 60S ; Farmers' Loan &c. Co. v. 62 N. W. 921, 30 L. R. A. 320. 
Iowa Water Co., 80 Fed. 467. 25 Oklahoma Rev. Laws (1910) § 

23 Holt V. Watson, 71 Ark. 87, 71 S. 8423 ; McDowell v. Addams, 45 Pa. 
W. 262; Sweezey v. Willis, 1 Bradf. St. 430. 



§ 90 TITLES AND ABSTRACTS 108 

taken not to- confound the rules for ascertaining the degree of 
kindred with the rules of descent. A canon of descent is one 
thing, a rule for the ascertainment of the next of kin is another.^' 

Affinity is the relationship contracted by marriage between a 
husband and his wife's kindred and between a wife and her hus- 
band's kindred, in contradistinction from relationship by consan- 
guinity or blood." By marriage one spouse holds by affinity the 
same relation to the kindred of the other that the other holds by 
consanguinity. And such relationship is no more lost by the dis- 
solution of the marriage than the relationship by blood is lost 
through death.^^ Relationship by affinity ceases with the disso- 
lution of the marriage creating it, except so far as the children of 
such marriage are concerned.^" But there is no affinity between 
the blood relatives of the husband and the blood relatives of the 
wife.'" 

While the words "of consanguinity" import the same as the 
word kindred,'^ and while a man's kindred, in the proper sig- 
nification of the term, means such persons as are related to him by 
the ties of consanguinity,'^ the terms must not be taken as strictly 
synonymous, as the word kindred is given a broader meaning 
that may include relatives in law and by affinity or even by adop- 
tion, as well as those by blood.'' 

§ 90. Fact of death. — One can not take the property of 
another as his heir, or claim a succession through him, without 
proof of the death of such other, or the establishment of such 
facts as will raise a presumption of his death.'* The claimant 
has the burden of proving the facts necessary to sustain his right, 
including the death of the alleged intestate or of facts from 
which his death may be legally presumed.'^ 

26 Humphries v. Davis, 100 Ind. si Leigh v. Leigh, IS Ves. 92. 

274, SO Am. Rep. 788. 32 Wetter v. Walker, 62 Ga. 142; 

27 Farmers' Loan &c. Co. v. Iowa Farr v. Flood, 11 Cush. (Mass) 24. 
Water Co., 80 Fed. 467 ; Holt v. Wat- 33 Power v. Hafley 8S Ky 671 4 
son, 71 Ark. 87, 71 S. W. 262; Ex S. W. 683; Delano v. Bruerton, 148 
parte Hams, 26 Fla. 77, 7 So. 1, 6 L. Mass. 619, 20 N. E. 308, 2 L R. A. 
R. A. 713, 23 Am. St. S48; Tegarden 698. 

V. PhilHps (Ind.), 39 N. E. 212. 34 Boe v. Filleul, 26 La. Ann. 126. 

28 Spear v. Robmson, 29 Mame 531 ; 35 Hurdle v. Stockley, 6 Houst. 
Carman v. Newell, 1 Denio (N. Y.) (Del.) 447; Martin v. Royse, 21 Ky. 
2S; Waterhouse v. Martin, Peck, L. 77S, S2 S. W. 1062; Miller v Mc- 
(Tenn.) 392. ^ , _ • Elwee, 12 La. Ann. 476; Johnson v. 

29 Trout V. Drawhorn, S7 Ind. S70. Merithew, 80 Maine 111, 13 Atl 132, 

30 Trout V. Drawhorn, S7 Ind. 570 ; 6 Am. St. 162 ; Schaub v Griffin 84 
Paddock v. Wells, 2 Barb; Ch. (N. Md. 557, 36 Atl. 443; In re Taylor, 
Y.) 331. 20 N. Y. S. 960. 



109 METHODS OF ACQUIRING TITLE § 90 

Some statutes provide that where a person has been absent from 
his last place of residence without having been heard from for 
seven years by those who would naturally have heard from him 
if he had been alive, and where diligent and ineffectual search has 
been made wherever there was a reasonable probability that he 
could be found or information leading to the discovery of his 
whereabouts, a presumption of his death arises and authorizes 
letters of administration upon his estate.^^ There is no pre- 
sumption as to the time of death within the seven years, and in 
the absence of proof the absentee is presumed to be living for 
seven years from the time of his disappearance." These stat- 
utes have a limited application and do not include cases lying out- 
side the letter of them, and in cases not connected with admin- 
istration of the estates of absentees the common-law rule that one 
is not presumed dead until after an unexplained absence of seven 
years still obtains.^^ It is within the power of a state to provide 
for the administration of the estates of persons who are absent 
for such a length of time as gives rise to a reasonable presump- 
tion of death, and while probate courts possess general authority 
10 settle estates of deceased persons, they are without authority 
to administer the property of living persons.^'' The general rule 
'S, that letters of administration, granted upon the estate of a 
living person, are absolutely void, and it makes no difference if, 
through his absence long continued, a presumption of death has 
arisen. In such case the presumption may be overthrown, and a 
decree granting letters may be collaterally impeached.*" So if 
any person presumed to be dead is, in fact, alive, any distribution 
of his estate to those who would be entitled to it if he were dead 
would be void and would not affect his title." Ordinarily, how- 
ever, the death of a person leaving property to be administered 
upon is a matter of such notoriety that proof of his death is of 

=6 Donovan v. Major, 253 111. 179, 198 U. S. 458, 25 Sup. Ct. 721, 49 L. 

97 N. E. 231; Policemen's Benevolent ed. 1125, 3 Ann. Cas. 1121. 

Assn. V. Ryce, 213 111. 9, 72 N. E. *« Griffith v. Frazier, 8 Cranch (U. 

764, 104 Am. St. 190; Henderson v. S.) 9, 3 L. ed. 471; Duncan v. Stew- 

Bonar, 11 Ky. L. 219, 11 S. W. 809; art, 25 Ala. 408, 60 Am. Dec. 527; 

Esterly's Appeal, 109 Pa. St. 222. Jochumsen v. Suffolk Sav. Bank, 3 

S7 Schaub V. Griffin, 84 Md. 557, 36 Allen (Mass.) 87; Devlin v. Com- 

Atl. 443; in re Mutual Benefit Co., monwealth, 101 Pa. St. 273; 47 Am. 

174 Pa. St. 1, 34 Atl. 283, 52 Am. St. Rep. 710; Fisk v. Norvel, 9 Tex. 13, 

814. 58 Am. Dec. 128. 

^^ Connecticut Mut. L. Ins. Co. v. ^i Stevenson v. Montgomery, 104 

King 47 Ind. App. 587, 93 N. E. 1046. N. E. 1075, 263 111. 93, Ann. Cas. 1915 

3» Cunnius v. Reading School Dist., C, 112n. 



§ 91 TITLES AND ABSTRACTS 110 

easy access among his neighbors and relatives. Whatever may be 
the facts presented to the probate court in support of death, if 
deemed sufficient to confer jurisdiction, is prima facie evidence of 
the fact of such death. So the issue of letters testamentary or of 
administration is taken as prima facie evidence of the death of 
the person named therein as testator or intestate, and is regarded 
as the highest and best evidence of title in the heir. 

§ 91. Fact of intestacy. — Intestacy w^ill be presumed upon 
proof of death and heirship ;^^ but this presumption may be re- 
butted.*^ Testacy is an affirmative, and intestacy a negative, 
fact.** And one whose claim to heirship is uncontroverted is not 
called upon to show negatively that his decedent did not die 
testate.*^ Where an unmarried person has been absent for such 
a length of time as will create the presumption of death, he will 
be presumed to have died intestate.*'^ Upon the failure of a de- 
vise, the land descends to the heirs of the testator as intestate 
property.*^ A statute prescribing rules of descent when a person 
seised of lands dies "without having devised" them, does not ap- 
ply when the owner dies testate as to the lands.*^ 

§ 92. Title by purchase classified. — For convenience, title 
by purchase may be divided into : ( 1 ) Title by alienation, and 
(2) title by purchase other than by alienation. Under the first 
division are included: (1) Alienation by deed or grant, and (2) 
alienation by devise. Under the second division, or title by pur- 
chase other than by alienation, may be classed: (1) Title by 
escheat, (2) title by occupancy, (3) title by accretion, (4) title 
by forfeiture, (5) title by abandonment, (6) title by estoppel, 
(7) title by prescription, (8) and title by adverse possession. In 
the sections following these various methods of requiring title 
by purchase will be briefly considered, and only tliose general 

« Sims V. Boynton, 32 Ala. 353, 70 435, 94 N. E. 67, 21 Ann. Cas 229. 
Am. Dec. 540; Murphy v. Crowley, "Lyon v. Kain, 36 111. 362. 
140 Cal. 141, li Pac. 820; Whitham, *= Chase v. Woodruff, 133 Wis. SS5, 

V. Ellsworth, 259 111. 243, 102 N. E. 113 N. W. 973, 126 Am. St 972. 
223; McClanahan v. Williams, 136 « Barson v. Mulfean 191 N Y 

Ind. 30, 35 N. E. 897; Baxter v. Brad- 306, 84 N E 75 

bury, 20 Maine 260, 21 Am. Dec. 49 ; *7 Walker v. Bradbury, 15 Maine 

Jarson V. Mulligan, 191 N. Y. 306, 84 207; In re Filbert, 195 Pa. St. 295, 45 

N, E. 75, 16 L. R. A. (N. S.) 151. Atl. 733. 

*3 Sielbeck v. Grothman, 248 111. ^s Morse v. White (Mich.) 148 N. 

W. 970. 



Ill METHODS OF ACQUIRING TITLE § 93 

features that the examiner of titles should know will be pre- 
sented. 

§ 93. Title by private deed. — Conveyances of estates of in- 
heritance or freehold in land, or of any interest in it more than 
for a short term of years, must be by deed in writing; and this is 
expressly declared by statute in many states, and is implied by 
the statutory provisions of other states. Statutes providing for 
the conveyance of interests in real property by deed do not at- 
tempt to define a deed nor to state all its essentials, hence resort 
must be had to the common law for a definition of the term. The 
common-law understanding of a deed "is an instrument written 
in parchment or paper, whereunto ten things are necessarily in- 
cident, viz. : (1) Writing; (2) parchment or paper ; (3) a per- 
son able to contract; (4) by a sufficient name; (5) a person able 
to be contra!cted with; (6) by a sufficient name; (7) a thing 
to be contracted for; (8) apt words required by law; (9) sealing; 
(10) 'delivery."*" While the word "deed," at common law, im- 
plied a sealed instrument,^" under modern statutes the seal may be 
dispensed with.^'- The word "deed" in its broadest meaning in- 
cludes all varieties of sealed instruments; in its secondary and 
more common meaning it signifies a writing under seal conveying 
real estate.^^ In some jurisdictions the term "deed" embraces 
every instrument in writing by which any real estate or interest 
therein is created, aliened, mortgaged, or assigned, or by which 
the title thereto may be afJected in law or equity, except last wills 
and leases for one year or less.°^ A deed of conveyance is not 
merely evidence of a gift or other grant; but it is the gift or 
grant itself, and ipso facto operates to transfer or convey the 
title of the property described to the donee or grantee.^* In or- 
der for an instrument to be good as a deed it must convey a pres- 
ent' interest in the property attempted to be conveyed.''^ 

«9 Co. Lit. 3Sb. =2 Malsby v. Gamle, 61 Fla. 310, 54 

=» People V. Watkins, 106 Mich. 437, So. 766; Fisher v. Pender, S2 N. Car. 

64 N. W. 324; Jackson v. Wood, 12 483. 

Johns. (N. Y.) 73; McLeod v. Lloyd, ^^ Salt v. Anderson, 71 Nebr. 826, 

43 Ore. 260, 71 Pac. 795, 74 Pac. 491. 99 N. W. 678. 

"Burk V. Johnson, 146 Fed. 209, s^Alferitz v. Arrivillaga, 143 Cal. 

76 C. C. A. 567; Tatiim v. Tatum, 81 646, 77 Pac. 657. 

Ala. 388, 1 So. 195; Atlanta, &c. R. == Givens v. Ott, 222 Mo. 395, 121 

Co. V. McKinney, 124 Ga. 929, S3 S. S. W. 23. 

E. 701, 6 L. R. A. (N. S.) 436, 110 

Am. St. 215.' 



§ 94 TITLES AND ABSTRACTS 112 

§ 94. Official grants. — Official grants are such as are 
made by state or federal officers acting under statutory or judi- 
cial authority, and which do not dispose of public property, but 
transfer title from one private person to another without the co- 
operation of the former, and even against his wish in certain 
cases. They are illustrated by sales under execution ; foreclosure 
sales ; conveyances by guardians, executors and administrators un- 
der statutory or judicial permission; sales for non-payment of 
taxes and assessments; and other transfers under judicial process, 
judgment or decree. While these conveyances are variously 
termed "judicial sales," "involuntary sales," etc., it is deemed 
proper to include them under the head of "official grants" to dis- 
tinguish them from private and public grants. 

The transfer of real estate by official grant is sometimes said 
to be an involuntary transfer on the part of the owner. It is 
true, however, that when such owner incurs or assumes a debt, 
he impliedly consents to or authorizes the sale of his property on 
execution for the purpose of paying the debt. In any event the 
validity of the title passed by such sale does not depend upon his 
mental attitude, but upon a compliance with the law of pro- 
cedure in making the sale and transfer. Title by official grant 
will be discussed at some length in subsequent chapters, as great 
care and skill must be exercised by both abstracter and counsel in 
dealing with them as muniments of title. 

§ 95. Public grants. — A direct conveyance of public lands 
from the state or federal government to a private person is 
usually termed a "public grant." Such conveyances are supposed 
to rest upon a different foundation from that of private convey- 
ances. They emanate from the sovereign power, according to 
certain rules and forms of proceeding prescribed by itself for the 
regulation of its own action. Such a grant is not only an appro- 
priation of the land, but is itself a perfect title.^'' 

Officers are appointed and commissioned by the government 
for the express purpose of conducting and supervising all the 
preliminary proceedings from the origin to the consummation of 
the title ; and when these incipient measures are completed, and 
the grant issued, the law presumes that the government agents 
have performed their duty and that the grant is valid." But a 



66 I 



oon'^'r^^^/'r^j*'^''' ^ *^''^"'='' (U. S.) "Brush V. Ware, 16 Pet. (U. S.) 
229, 3 L. ed. 545. 93, 10 L. ed. 672. 



113 METHODS OF ACQUIRING TITLE § 96 

claimant of public lands acquires no vested rights, as against the 
sovereign, until all the prerequisites for the acquisition of the title 
have ,been complied with.^^ Before such grants can be made the 
lands must be surveyed in accordance with the federal laws.^" un- 
less there is a special statute to the contrary."" 

The usual method by which the sovereign divests itself of title 
to public lands is by patent issued in conformity to prescribed 
legal formalities, but a settler who has entered public lands, has 
from such entry, an inchoate title, which is in legal sense, prop- 
erty, and subject to defeat only by his failure to comply with the 
conditions imposed by the acts of congress."^ While the naked 
legal title remains in the government until a patent is issued, the 
beneficial ownership or equitable title is vested in the entryman 
from the time he receives a certificate of purchase from the gov- 
ernment showing full payment for the land. When such patent 
is issued, it does not convey to the entryman a new or independent 
title derived from such entry and final payment, but converts the 
imperfect or equitable title into a perfect legal title."^ Also a 
legislative confirmation of a claim to land is a recognition of the 
validity of such claim, and operates as efifectually as a grant from 
the government.*^ The sovereign being the source of title for 
all lands, the original grant therefrom is the first link in the chain 
of title, and whatever may be the form of this grant, the abstract 
should, whenever practicable, begin with that document. 

§ 96. Devise. — The term "devise" means primarily a di- 
viding or division, and when used as a noun denotes a gift of 
real property by will. When used as a verb, however, it de- 
notes the act of disposing of real property by will ; and when used 
in the latter sense it is the proper term to be used in a will to 
denote a gift of real property. Alienation by devise is secondary 
in common use only to deeds as a mode of transferring title to 
real estate. The instrument by which this form of alienation of 
land is effected is termed a will. The land thus- alienated, as 

68 Guthrie v. Beamer, 3 Okla. 652, <=o Carson v. Smith, 5 Minn. 78, 11 
41 Pac. 647. Am. Dec. 539. 

69 Stark V. Starrs, 6 Wall. (U. S.) ei Culbertson Irr. &c. Co. v. Olan- 
402, 18 L. ed. 925 ; Rector v. Gaines, der, 51 Nebr. 539, 71 N. W. 298. 

19 Ark. 70; Daniels v. Lansdale, 43 62Hagan v. Ellis, 39 Fla. 463, 22 
Cal. 41 (affirmed 100 U. S. 113, 25 L. So. 727, 63 Am. St. 167. 
ed. 587). esLangdean v. Hanes, 88 U. S. (21 

Wall.) 521, 22 L. ed. 606. 

8 — Thomp. Abstr. 



§ 97 TITLES AND ABSTRACTS 114 

well as the title thereto, is called a devise, and the beneficiary 
named in the instrument, a devisee. The will is a legal declara- 
tion of the testator's intention or wish respecting what shall be 
done after his death touching the disposition of his property. It 
does not pass a present interest or right in the property, but such 
right or interest takes efifect only at his death. During his Hfe- 
time it is entirely inoperative; in othe-r words, the will is am- 
bulatory during the life of its maker. It is in efifect reiterated 
as his will at each moment during his life. It will be distin- 
guished from a deed in that the latter instrument must pass a 
present interest in the land. Whether, therefore, an instrument 
be a deed or a will, depends upon whether the maker intended 
the estate to vest before his death and upon execution of the in- 
strument, or whether he intended that all the interest and estate 
should take effect only after his death. If the former, it is a 
deed; if the latter, a will; and it is immaterial whether he calls 
it a will or a deed, the instrument will operate according to its 
legal effect.^* Where the instrument is in the form of a deed, 
but possession and enjoyment is postponed until after the death 
of the grantor, it is a deed nevertheless'.''^ While alienati'on by 
devise is an effective mode of transferring title to real estate, yet 
such title is subject to be defeated by a sale to make assets for 
the payment of the testator's debts and the expenses of adminis- 
tration. 

§ 97. Title by estoppel in general. — Title by estoppel "is 
where equity, and in some cases the law, in order to accomplish 
the purposes of justice which can not be otherwise reached, draws 
certain conclusions from the acts of one party in favor of another, 
in respect to the ownership of lands, which it does not allow the 
first to controvert or deny."^^ It arises from the fact that he 
who would otherwise be the owner of property is precluded by 
his own act or representation to assert,- as against another claim- 
ant, his right or interest therein. The doctrine of estoppel does 
not operate to force a title on one against his will." But it is 
generally held that when a real estoppel affecting land is estab- 
lished, it does transfer the title, from the person estopped, in 

«* Adair v. Craig, 135 Ala. 332, 33 «<i 3 Wash. Real Prop. § 70. 
So. 902; Wall v. Wall, 30 Miss. 91, «7 Tucker v. Clarke, 2 Sandf. Ch. 
64 Am. Dec. 149. (N Y ) 96 

"5 West V. Wright, 115 Ga. 277, 41 
S. E. 602. 



lis METHODS OF ACQUIRING TITLE § 98 

such manner that the person estopped can not subseciuently trans- 
fer to another any substantial interest."* "The vital principle of 
estoppel is that he who by his language or conduct leads another 
to do what he would not otherwise have done shall not subject 
such person to loss or injury by disappointing the expectations 
upon which he acted. Such a change of position is strictly for- 
bidden. It involves fraud and falsehood, and the law abhors 
both. This remedy is always applied so as to promote the ends 
of justice. It is available only for protection, and can not be used 
as a weapon of assault. It accomplishes that which ought to be 
done between man and man, and is not permitted to go beyond 
that limit. It is akin to the principle involved in the limitation 
of actions, and does its work of justice and repose where the 
statute can not be invoked.""^ Like the office of injunctions in 
equity, estoppel at law precludes rights that can not be asserted 
consistently with good faith and justice, and prevents wrongs for 
which there might be no adequate remedy.'" The relation of the 
parties must be such that the estoppel may be mutual.'^ It fol- 
lows from the very principle on which the whole doctrine of 
estoppel rests, that they operate neither in favor of nor against 
strangers, but affect only the parties thereto and their privies, 
either in blood, in estate, or in law; and hence a stranger can 
neither take advantage of, nor be bound by, an estoppel. This 
principle applies equally to estoppels by deed, by record, and in 
pais.'^ 

§ 98. Estoppel by record. — By estoppel by record is 
meant the preclusion by a party to deny the truth of matters set 
forth in judicial or legislative records. A judgment, sentence, 
order, or decree passed by a court of competent jurisdiction, 
which creates or charges a title or any interest in an estate, is not 
only final as to the parties themselves, and all claiming under 
them, but furnishes conclusive evidence to all mankind that the 
right or interest belongs to the party to whom the court ad- 

^8 Contra Salisbury Savings Soc. v. '"Van Rensselaer v. Kearney, 11 

Cutting, 50 Conn. 113; Thalls v. How. (U. S.) 297, 13 L. ed. 703; 

Smith, 139 Ind. 496, 39 N. E. 154; Buckingham v. Hanna, 2 Ohio 551. 

Ayer v. Philadelphia & Boston B. Co., 'i Wilson v. Holt, 91 Ala. 204, 8 

159 Mass. 84, 34 N. E. 177 ; Mutual So. 794. 

Life Ins. Co. v. Corey, 135 N. Y. 326, 72 Simpson v. Pearson, 31 Ind. 1, 

31 N. E. 1095. 99 Am. Dec. 577. 

«!> Dickerson v. Colgrove, 100 U. S. 
578, 25 L. ed. 618. 



§ 99 TITLES AND ABSTRACTS 116 

judges it." So the recital in the record of a court imparts abso- 
lute verity, and all parties thereto are estopped from denying its 
truth/* 

The general rule is that a judgment record is evidence by way 
of estoppel in subsequent actions, only of such facts as were 
legitimately within the issues to be tried therein as a part of the 
merits of the case, and either expressly, or by necessary implica- 
tion, determined." To constitute an estoppel by a former judg- 
ment, the precise point which is to create the estoppel must have 
been put in issue and decided; and this must appear from the 
record alone.'^^ But it has been held that the effect of a- former 
adjudication extends to all the issues which might have been 
raised and litigated in the case.''^ The estoppel of a judgment 
binds the privies as well as the parties.''^ A party to a suit may be 
estopped by the averments of his pleadings." A decree alloting 
dower to a widow in all the lands of which her husband died 
seised will estop her from subsequently asserting a parol trust 
in her favor in any such lands.*" Estoppel by judgment is merely 
an arbitrary arrangement based on no other principle than politi- 
cal necessity. 

§ 99. Estoppel by deed. — An estoppel by deed is that 
which arises from the covenants or recitals in a deed, by which 
the grantor makes it appear that he is the rightful owner of the 
estate therein described; in such case if the grantor has no title 
at the time of the conveyance, but afterwards acquires title, either 
by descent or purchase, he is precluded from asserting the same 
against his grantee, he being estopped to deny that he had, at the 
time when he executed the deed, the title or estate described in 
such deed.*^ Of this form of estoppel it has been said: "No 

73 Prince v. Antle, 90 Ky. 138, 13 " Donnell v. Wright, 147 Mo. 639, 

S. W. 436, 11 Ky. L. 927; Grevem- 49 S. W. 874. 

berg V. Bradford; 44 La. 400, 10 So. 's Cox v. Crockett, 93 Va. SO, 22 

786. S. E. 840. 

'* Ex parte Rice, 102 Ala. 671, IS '» Winn v. Strickland, 34 Fla. 610, 

So. 450. 16 So. 606. 

"Fairman v. Bacon, 8 Conn. 418; so Boyd v. Redd, 118 N. Car. 680, 

Woodgate v. Fleet, 44 N. Y. 1, 11 24 S. E. '429. 

Abb. Prac. (N. S.) 41. si Croft v. Thornton, 12S Ala. 391, 

78 Wixon V. Devine, 91 Cal. 477, 27 28 So. 84 ; Watkins v. Wassell, 15 

Pac. W; Wilhams v. Hacker, 16 Ark. 73; Klumpke v. Baker, 68 'Cat 

Colo. 113, 26 Pac. 143; Smith v. Sher- 559, 10 Pac. 197; Parker v. Jones, 57 

wood, 4 Conn. 276, 10 Am. Dec. 143 ; Ga. 204 ; Owen v. Brookport, 208 111. 

Stephens v. Motl, 82 Tex. 81, 18 S. 35, 69 N. E. 952 ; Glendinning v. Su- 

W. 99. perior Oil Co., 162 Ind. 642, 70 N. E. 



117 METHODS OF ACQUIRING TITLE § 99 

person can be allowed to dispute his own solemn deed, which is 
therefore conclusive against him, and those claiming under him, 
even as to the facts recited in it. The general rule is that an in- 
denture estops all who are parties to it, while a deed poll only 
estops the party who executes it, since it is his sole language and 
act."*^ An estoppel by recital binds the grantor and all who take 
his estate, privies in blood, privies in estate, and privies in law.*^ 
The recital does not bind persons who are not privies of the 
grantor, such as claimants by adverse or prior title, or the gran- 
tor's creditors.^* A party to a deed must be, sui juris, competent 
to make an effectual contract, to be estopped by a recital.'^ In a 
deed by a corporation, a recital by the person who executes it in 
behalf of the corporation, that he was duly authorized to execute 
it, estops him to deny that he was so authorized.*^ But, even as 
between the parties, recital is not binding when the proceeding 
is really collateral to the deed and th^ title thereby conveyed. In 
such case the facts recited may be disputed.^' A conveyance is 
not affected by a false recital made by the same grantor on the 
same day in conveying an adjoining lot to a different grantee.*' 
A recital, to have the effect of an estoppel, must be a distinct 
recital of particular facts, and not a recital in general terms. 
Where a distinct statement of a particular fact is made in a 
recital, and the parties act with reference to that recital, it is 
not, as between them, competent for the party bound to deny the 
recital.*" A recital, to operate as an estoppel, must also be clear 

976; Dickerson v. Talbot, S3 Ky. 60; 47 S. E. 312; Shepherd v. Kahle, 120 

Benton v. Sentell, SO La. Ann. 869, 24 Wis. 57, 97 N. W. S06; Balch v. Arn- 

So. 297 ; Williams v. Thurlow, 31 old, 9 Wyo. 17, 59 Pac. 434. 

Maine 392; Williams v. Peters, 72 sa shep. Touch. 53. 

Md. 584, 20 Atl. 175 ; Dye v. Thomp- ss Doe v. Errington, 6 Bing. N. Cas. 

son, 126 Mich. 597, 85 N. W. 1113; 79; Bank of U. S. v. Benning, 4 Cr. 

Kaiser v. Earhart, 64 Miss. 492, 1 So. C. C. 81. 

635; Jewell v. Porter, 11 Post. (N. 84De Farges v. Ryland, 87 Va. 404, 

H.) 34; Moore v. Rake, 26 N. J. L. 12 S. E. 805, 24 Am. St. 659; West 

584; Jackson v. Winslow, 9 Cow. (N. v. Pine, 4 Wash. (U. S.) 691, Fed. 

Y.) 13; Hallyburton v. Slagle, 130 Cas. No. 17423. 

N. Car. 482, 41 S. E. 877 ; Broadwell s^ Bank of America v. Banks, 101 

V. Phillips, 30 Ohio St. 255 ; Taggart U. S. 240, 25 L. ed. 850. 

V. Risley, 3 Ore. 306; Wingo v. Par- ss stow v. Wyse, 7 Conn. 214, 18 

ker, 19 S. Car. 9 ; Johnson v. Brauch, Am. Dec. 99. ' 

9 S. Dak. 116, 68 N. W. 173; Burkitt 87 Bank of America v. Banks, 101 

V. Twyman, (Tex. Civ. App.) 35 S. U. S. 240, 25 L. ed. 850. 

W. 421; Raines v. Walker, 11 Va. 92; ss Bay v. Pasner (Md.) 29 Atl. 11. 

Walker v. Arnold, 71 Vt. 263, 44 Atl. S9 Carpenter v. Buller, 8 Mees. & 

351 ; Clark v. Lumbert, 55 W. Va. 512, W. 209. 



§ 99 TITLES AND ABSTRACTS 118 

and without ambiguity,™ and the instrument must be so executed 
as to be binding on both parties." 

If one having no title to land conveys it with covenants of 
warranty, and this is duly recorded, and afterwards the grantor 
acquires title to the land, the estoppel by which he is bound under 
the covenants is turned into a good estate in interest in the 
grantee, so that by operation of law the title is considered as 
vested in him in the same manner as if it had been conveyed to 
the grantor before he executed the deed. The grantor is estopped 
to say he was not then seised. Then, if the grantor executes 
another conveyance, and this and the deed by which the grantor 
acquired his title are both recorded together, which grantee has 
the better title ? The estoppel binds not only the grantor and his 
heirs, but his assigns as well. A second grantee is therefore 
estopped to aver that the grantor was not seised at the time of 
his making the first conveyance, and that conveyance being first 
recorded must have priority.^^ But if a mortgagor has title at the 
time of executing two mortgages, the fact that one contains cove- 
nants of warranty does not give it priority over the other which 
contains no such covenants, if the latter be first filed for record.'^ 

A quitclaim deed or other deed without warranty does not have 
the effect of estopping the grantor from setting up a superior right 
and title subsequently acquired from another source."* To sus- 
tain a deed made before the grantor acquires title is certainly a 
violation of the spirit of the registry system, under which a record 
is notice only to subsequent purchasers and incumbrancers in the 
line of the title to which the recorded deed belongs. It has been 
insisted, therefore, with much force, that a second grantee, under 
a deed made after the grantor had acquired title and recorded 
his deed to himself, should be preferred to the first grantee, 
whose deed the second grantee, in following the title back to the 

00 Palmer v. Ekins, 2 Ld. Raym. 440 ; Semon v. Terhune, 40 N. J. Eq. 

1550. 364, 2 Atl. 18; Crane v. Turner, 67 

"Chicago &c. R. Co. v. Keegan, N. Y. 437; Philly v. Sanders, 11 Ohio 

152 111. 413, 39 N. E. 33. St. 490, 78 Am. Dec. 316; Jarvis v. 

92 Christy v. Dana, 34 Cal. 548, 42 Aikens, 25 Vt. 635. See, however, 

Cal. 174 ; Salisbury Sov. Soc. v. Cut- White & Tudor's Lead. Cases in Eq. 

ting, 50 Conn. 113 ; Boone v. Arm- 4th Am. ed. Vol. 2, pt., p. 212. 

strong, 87 Ind. 168; Warburton v. ss Vandercook v. Baker, 48 Iowa 

Mattox, Morris (Iowa) 367; Pike v. 199. 

Galvin, 29 Maine 183, 30 Maine 539; s* Smith v. Pollard, 19 Vt. 272; 

Knight V. Thayer, 125 Mass. 25; Doswell v. Buchanan, 3 Leigh 365, 

Bramlett v. Roberts, 68 Miss. 325, 10 (Va.) 23 Am. Dec. 280. 
So. 56; Gotham v. Gotham, 55 N. H. 



119 METHODS OF ACQUIRING TITLE § 100 

time his grantor acquired title, would not find of record. In this 
view of the question, a subsequent purchaser or creditor is not 
bound to take notice of a conveyance not lying in the line of 
title, though actually recorded ; and he is not bound to search for 
conveyances as against his grantor previous to the time when the 
grantor obtained his title to the land.'" "A recorded deed by one 
who has no title, but who afterwards acquires the title by re- 
corded deed, is not constructive notice to a subsequent purchaser 
in good faith from the common grantor. We think when he 
searches till he finds the deed by which his grantor acquires the 
title, he is not boimd to look for deeds made prior to that time. 
Such prior deeds are not 'in the line of title,' as that term is used 
by conveyancers and searchers.""" But notwithstanding the ob- 
jections, the title by estoppel in such cases is sometimes sustained ; 
and if a purchaser fails to examine the record, to ascertain 
whether the grantor had made a conveyance prior to the time 
of receiving and recording the conveyance to himself, he runs the 
risk of acquiring an imperfect title. '^ 

§ 100. Estoppel in pais. — The doctrine of estoppel in pais 
is that, one can not deny the existence of the state of facts which 
he, or one in privity with him, with full knowledge of the facts, 
or wi,th the duty of knowing the facts, has asserted to be true, or 
where he has by false representations, intended to deceive, or by 
silence when under a duty to speak, or by any other acquiescence, 
after discovering the right, or by conduct calculated to mislead, 
induced another to act, or refrain from acting, to his prejudice. °® 

»5 Prince v. Case, 10 Conn. 381, 27 372; Buckingham v. Hanna, 2 Ohio 

Am. Dec. 675 ; Salisbury Sav. See. v. SSI. 

Cutting, 50 Conn. 113, and note 122; ^^ Crawford v. Engram 157 Ala. 

Way V. Arnold, 18 Ga. 181 ; Farmers' 314, 47 So. 712 ; Waits v. Moore, 89 

Loan &c. v. Maltby, 8 Paige (N. Y.) Ark. 19, 115 S. W. 931; Hancock v. 

361 ; Woods v. Farmere, 7 Watts, King, 133 Ga. 734, 66 S. E. 949 ; Se- 

(Pa.) 382; M'Lanahan v. Reeside, 9 berg v. Iowa Trust &c. Bank, 141 

Watts (Pa.) 508; Calder v. Chapman, Iowa 99, 119 N. W. 378; Criley v. 

52 Pa. St. 359, 91 Am. Dec. 163. See Cassel, 144 Iowa 685, 123 N. W. 348 ; 

also Rawle on Covenants, 4th ed. 428 ; Schott v. Linscott, 80 Kans. 536, 103 

Bigelow on Estoppel, 33l ; McCusker Pac. 997 ; Conley v. Murdock, 106 

V. McEvey, 9 R. I. 528, 11 Am. Rep. Maine 266, 76 Atl. 682; Barbieri v. 

295; 10 R. I. 606. Messner, 106 Minn. 102 118 N. W. 

»« Ford V. Unity Church Soc, 120 258 ; Mason v. Ross, 75 N. J. Eq. 136, 

Mo. 498, 25 S. W. 394, 23 L. R. A. 71 Atl. 141 ; In re Saunders, 129 App. 

561, 41 Am. St. 711. See also Crock- Div. 406, 113 N. Y. S. 251 ; Rothschild 

ett V. Maguire, 10 Mo. 34; Dodd v. v. Title Guarantee &c. Co., 139 App. 

Williams, 3 Mo. App. 278. Div. 672, 124 N. Y. S. 441 ; Falls City 

«' Digman v. McCoUum, 47 Mo. Lumber Co. v. Watkins, 53 Ore. 212, 



§ 100 TITLES AND ABSTRACTS 120 

This form of estoppel is based upon the principle that, if a party, 
having proprietary rights, so conducts himself in regard thereto 
as to induce another party to act in regard to the same property 
upon a different assumption to his loss, the former is thereby 
estopped from asserting the contrary thereafter, because his 
otherwise innocent conduct would not only be changed to fraud, 
but he would be enabled to profit thereby. In other words, where 
one has done an act or said a thing, and another has relied on 
the act or word, as he had a right to do, and has shaped his con- 
duct accordingly, and will be injured if the former can repudiate 
the act, the actor or speaker is estopped from so doing.^" 

The essential elements necessary to create estoppel in pais are 
that the party sought to be estopped has previously, by words, 
acts or conduct made representations or concealment of material 
facts, inconsistent with those forming the basis of the present 
claim; that he knew or should have known the falsity of such 
representations, or pretended to know the facts when he did 
not know them; that he had the present intent to influence 
the conduct of another thereby, or should know that a reasonably 
prudent man would suppose it was intended to be acted on; that 
the latter' was ignorant of the true facts and had no convenient 
opportunity to learn them ; and that the latter in good faith relied 
thereon to his prejudice.^ The person claiming the estoppel must 
have been without knowledge, actual or constructive, of the facts,^ 
and must himself have been free from fraud, ^ since the doctrine 
of estoppel, being a creature of equity, can be interposed only to 
prevent injustice, and not to -Work injustice.* An estoppel can 
not be based on a mere mistake of law,^ and one can not claim 
estoppel by reason of an agreement which he must have known as 
a matter of law was unenforcible." Nor can one base an estoppel 
on declarations not made to him, nor intended to be communicated 

99 Pac. 884; In re Kimrael's Estate, i Musconetcong Iron Works v. Del- ' 

226 Pa. 47, 75 Atl. 23 ; Kenny v. Mc- aware &c. R. Co., 76 N. J. L. 717, 76 

Kenzie, 25 S. Dak. 485, 127 N. W. Atl. 971. 

597 ; Ragley-McWilliams Lumber Co. ^ Logan v. Davis, 147 Iowa 441, 

V. Hare, 61 Tex. Civ. App. 509, 130 124 N. W. 808. 

S. W. 864 ; Bender v. Brooks, 61 Tex. ^ Breaux v. Hanson Lumber Co., 

Civ. App. 464, 130 S. W. 653 ; Dudley 125 La. Ann. 421, 51 So. 444. 

v. Strain (Tex. Civ. App.) 130 S. W. * Mattox v. Hightshue, 39 Ind. 95. 

778. 5 Logan v. Davis, 147 Iowa 441, 124 

s» Pagan v. Stuttgart Normal Insti- N. W. 808. 

tute, 91 Ark. 141, 120 S. W. 404; <> Norris v. Letchworth, 140 Mo. 

Trimble v. King, 131 Ky. 1, 114 S. W. App. 19, 124 S. W. 559. 
317, 22 L. R. A. (N. S.) 880n. 



121 METHODS OF ACQUIRING TITLE § 100 

to him.' An estoppel can not arise in favor of one who knows 
the truth f and where both parties have equal knowledge or equal 
means of ascertaining the truth there can be no estoppel.^ Acts 
committed by one when ignorant of his rights can not create an 
estoppel.^" 

That a state or the United States, as well as individuals, may be 
estopped by its acts, conduct, silence, and acquiescence, is estab- 
hshed by a line of well adjudicated cases." There are cases, how- 
ever, which hold that the doctrine does not apply to a state as it 
does to individuals.^^ These latter holdings are based upon the 
general doctrine that the state can not divest herself of title 
except by grant or other record evidence.^^ 

No estoppel can ordinarily arise from the act of a municipality 
or officer thereof done in violation or without authority of law." 
But it has been held that a city is estopped to set up any claim to 
streets, alleys, and public squares, which had been platted as 
such, but had remained in one. body and had been utilized by the 
original owners and their grantees for more than thirty years, 
and continuously subject to taxation as private property.^^ The 
rights of property in land, depending for proof of their existence 
upon the testimony of adverse possession-, are also rights by 
estoppel but it is the estoppel in pais that operates. If the owner 
of land permits another to occupy it under a claim of title for the 
statutory period of limitation, he is estopped from denying that 
the occupant has legal title. The law presumes from the adverse 
holding, first, a grant in fee from the state, and second, either 
that the occupant is that grantee, as the original party, or as a 
secondary party by descent, devise, or assignment ; and the party 
claiming otherwise, is estopped to show the contrary. When 
the fact of adverse possession is established it is accepted in law 

' Townsend Sav. Bank v. Todd, 47 Hough v. Buchanan, 27 Fed. 328 ; 

Conn. 190 ; Morgan v. Spangler, 14 United States v. McLaughHn, 30 Fed. 

Ohio St. 102 ; McLaren v. Jones, 89 147 (affirmed 127 U. S. 428, 8 S. Ct. 

Tex. 131, 33 S. W. 849. 1177, 32 L. ed. 213) I Commonwealth 

* Brigham- Young Trust Co. v. v. Andre, 3 Pick. (Mass.) 224; State 

Wagner, 12 Utah 1, 40 Pac. 764. v. Flint &c. R. Co., 89 Mich. 481, 51 

I ^ Crabtree v. Bank of Winchester, N. W. 103. 

1 108 Tenn. 483, 67 S. W. 797 ; Parkey 12 Parish v. Coon, 40 Cal. 33 ; Fan- 

V. Ramsey, 111 Tenn. 302, 76 S. W. nin Co. v. Riddle, 51 Tex. 360. 

812; Cautley v. Morgan, 51 W. Va. " gaunders v. Hart, 57 Tex. 8. 

304, 41 S. E. 201. i*Seeger v. Mueller, 133 111. 86, 24 

lOBriggs V. Murray, 29 Wash. 245, N. E. 513. 

69 Pac. 76S. 15 Smith v. Osage, 80 Iowa 84, 45 

"State V. Milk, 11 Fed. 389; N. W. 404, 8 L. R. A. 633. 



§ 101 TITLES AND ABSTRACTS 122 

as substitutional evidence of title in the place of charters, patents, 
deeds, and all other kinds of evidence used in the law to prove 
title. 

§ 101. Relation. — Relation is a fiction of lav^ v^rhereby an 
act done at one time operates as if done at another time. By its 
operation effect is given to instruments, which without it would be 
invalid. Thus, a deed not acknowledged until long after its ex- 
ecution has been held to take effect from its date, the acknowl- 
edgement operating as of that time by relation.^^ It has its most 
frequent appHcation to sheriff's sales, where the deed is not made 
for some time after the sale, but when it is made, relates back 
to the sale, and, in so far as the defendant in the execution and 
his privies and strangers purchasing with notice are concerned, 
vests the title in the purchaser from that time.^^ "The title ac- 
quired by the deed of the ofiicer relates back to the date of the 
judgment lien, for the judgment is the source of his authority, 
and by such relation the last act is carried back to the first in mak- 
ing out the title, and takes priority as of the date of the first, 
which is the day of the judgment lien."^^ Where a deed is de- 
livered in escrow the title only passes on the performance of the 
condition or the happening of the event, except in certain cases 
where by the doctrine of relation the deed is allowed to take 
effect from the first delivery. This relation back to the first 
delivery is permitted, however, only in cases- of necessity and 
where no injustice will be done, to avoid injury to the operation 
of the deed from events happening between the first" and second 
delivery. ^^ 

The doctrine is applicable for the purpose of protecting the 
equities of the piarties on the performance of the conditions of 
delivery,^" but is inapplicable to a case where the death of the 
grantor renders a subsequent performance of conditions impos- 
sible." As between the parties to a deed it may sometimes, for 
the furtherance of justice, be permitted, in its operation, to relate 
back to the date of a contract of purchase, unless to so permit 

!« Lincoln v. Thompson, 75 Mo. is Prutsman v. Baker, 30 Wis. 644, 

613. 11 Am. Rep. 592. 

"Ozark Land &c. Co. v. Franks, ^o Whitmer v. Schenk, 11 Idaho 702, 

156 Mo. 673, 57 S. W. 540. 83 Pac. 775. 

18 Hibberd v. Smith, 67 Cal. 547, 21 Mclntyre v. Mclntyre, 147 Mich. 

4 Pac. 473, 8 Pac. 46, 56 Am. Rep. 365, 110 N. W. 960 
726. 



123 METHODS OF ACQUIRING TITLE § 102 

it would operate to do wrong to strangers.^^ Where a deed once 
executed has been lost and the grantor executes a second deed, it 
may, in some instances, be permitted to relate back to the time 
of the first deed.^^ 

§ 102. Prescription and limitation. — Prescription is a 
term applied to the mode of acquiring title to incorporeal hered- 
itaments by immemorial or long-continued use and enjoyment. 
The period of such use and enjoyment now generally corresponds 
with the period of legal limitation for obtaining title 
to land by adverse possession.^* To acquire title by prescrip- 
tion the user must be adverse,^^ exclusive,^'* peaceable,^^ notori- 
ous,^* and continuous. ^^ "Prescription" implies an original grant,^° 
and can only be for things which may be created by grant.^^ 

Both prescription and limitation are dependent for their valid- 
ity upon possession, and in each case the possession must be that 
of him who claims title by virtue thereof. In both cases this 
possession must be coupled with lapse of time in order to com- 
plete the title. In prescription, the common law fixes what length 
of enjoyment shall be deemed evidence of an ownership of an 
incorporeal right, while as to limitation, being land, the period 
is fixed by statute beyond which no one may set up a title adverse 
to the presumed title of him who has for that length of time 
enjoyed the uninterrupted possession of same.^^ The statutes of 
limitations usually provide that no action for the recovery of the 
title or possession of real estate shall be maintained after twenty 
years from the time the cause of action accrued, while in case 
the adverse holder claims a title exclusive of any other right, 
founding his claim upon some written instrument, judgment or 
decree, a shorter time is frequently sufficient.^^ A title founded 
upon prescription or limitation is good as against all save the 
sovereign power,^* and where, as sometimes happens, it is diffi- 

22 Jackson v. Bard, 4 Johns. (N. =8 Carbrey v. Willis, 7 Allen 
Y.) 230, 4 Am. Dec. 267. (Mass.) 368. 

23 Hodges V. Spicer, 79 N. Car. 223. 29 pdlard v. Barnes, 2 Cush. 
2*Nicholls V. Wentworth, 100 N. Y. (Mass.) 191. 

455. 30 Ft. Smith v. McKibbin, 41 Ark. 

25 Dexter v. Tree, 117 111. 532. 45, 48 Am. Rep. 19. 

28 Kilburn v. Adams, 7 Mete. ^i State v. Kansas City &c. R. C.o., 

(Mass.) 33. 45 Iowa 139. 

27 Lehigh Valley R. Co. v. McFar- 223 Washb, Real Prop. 51. 
Ian, 31 N. J. Eq. 706. 33 Adverse Title, Chap. 29. 

3* Gardiner v. Miller, 47 Cal. 570. 



§ 103 TITLES AND ABSTRACTS 124 

cult to trace title from a definite owner, conveyances are often 
accepted on the strength of an adverse holding for the statutory 
period of limitation. 

§ 103. Accretion and alluvion. — Accretion is the increase 
of land by the addition of portions of soil made by the washing 
of the sea, a navigable river, or other water course to which the 
land is contiguous, whenever such increase is through the opera- 
tion of natural causes and is deposited gradually so that the 
process can not be noticed at any moment of time/^ The riparian 
rights of the owner of land bounded by a stream of water vest 
him- with ownership of alluvial accretions gradually formed on 
the adjacent bank by the action of waters/" ■ 

The courts have not been fully agreed as to the principle on 
which the law of accretion is founded. The reason of the rule 
giving accretions to a riparian owner is that every owner of land 
bounded by a stream of water is subject, by reason of the gradual 
changing of the coursfe thereof, to lose a portion of his land, or 
have the same increased in quantity by accumulations thereto, 
and, inasmuch as he is wholly without remedy if a loss occurs 
by the water washing away his land, he is entitled to whatever 
increase, also, that is caused by the gradual accretion or reliction." 
Sometimes the rule is based on the riparian owners' right of 
access to the water.^* When particles of the soil of one owner 
is gradually worn away and deposited upon the land of another, 
such other is entitled to claim the deposit upon the theory that 
the soil so deposited can not be identified by its former owner.^' 
The new land formed by the addition of sand or soil by the 
action of the water is sometimes called "accretion,"*" but "allu- 
vion" is a better term for such deposit, while "accretion" more 
properly denotes the process by which it is deposited.*^ If an 

35 Lovingston v. St. Clair Co., 64 111. 38 Lamprey v. State, 52 Minn. 181, 

56, 16 Am. Rep. 516; Benson v. Mor- 53 N. W. 1139, 18 L. R. A. 670, 38 

row, 61 Mo. 352 ; De Lassus v. Faher- Am. St. 541 

ty, 164 Mo. 361, 64 S. W. 183, 58 L. ^s Welles v. Bailey, 55 Conn. 292, 

R. A. 193 ; Houseman v. International 10 Atl. 565, 3 Am. St. 48 ■ Stern v. 

Nav. Co., 214 Pa. 552, 64 Atl. 379. Fountain, 112 Iowa 96, 83 N. W. 826. 

s^Coulthard v. Stevens, 84 Iowa ^o Stern v. Fountain, 112 Iowa 96, 

241, SO N. W. 983, 35 Am. St. 304; 83 N. W. 826. 

Gill V. Lydick, 40 Nebr. 508, 59 N. W. « St. Louis, &c. R. Co. v. Ramsey, 

104; Denny v. Cotton, 3 Tex. Civ. 53 Ark, 314, 13 S. W. 931, 8 L. R. A. 

App. 634, 22 S. W. 122. 559, 22 Am. St. 195. 

37 Sweringen v. St. Louis, 151 Mo. 
348, 52 S. W. 346. 



125 METHODS OF ACQUIRING TITLE § 104 

island be formed in a non-navigable river between the thread 
thereof and one of its banks, the owner of such bank is deemed 
the owner of the island,*^ but if the island is formed in the middle 
of the river, so that the thread of the stream passes through the 
island, it belongs to the opposite owners in severalty, the dividing 
line running according to the original thread/^ Where islands 
are formed in navigable rivers, lakes, or the sea, they belong to 
the state or national government owning the land under the 
water/* 

§ 104. Title to riparian lands. — By the common law, both 
the title and the dominion of the sea, and all rivers and arms of 
the sea, where the tide ebbs and flows, and of all the lands below 
high-water mark, within the jurisdiction of the crown of Eng- 
land, are in the king. Such waters, and the lands which they 
cover, either at all times, or at least when the tide is in, are 
incapable of ordinary and private occupation, cultivation, and im- 
provement ; and their natural and primary uses are public in their 
nature for highways of navigation and commerce, domestic and 
foreign, and for the purpose of fishing by all the king's subjects.*^ 
The common law of England upon this subject, at the time of the 
emigration of our ancestors, is the law of this country, except 
so far as it has been modified by the charters, constitutions, stat- 
utes, or usages of the several colonies and states, or by the con- 
stitution and laws of the United States. In this country there is 
no universal and uniform law upon the subject, but each state has 
dealt with the lands under the tide waters within its borders ac- 
^cording to its own views of justice and policy. The law is general 
that private ownership of land bordering on tide water extends 
only to high-water mark. The space between high and low-water 
mark is variously dominated "the shore," "the beach," "the 
flats," "the strand," "the sand," and is also designated by several 
other less familiar terms. The general rule is, that a boundary on 
the sea, a bay, navigable or tide water river is a boundary at the 
ordinary high-water mark.*° A grant from the sovereign of land 

*2 Grand Rapids, &c. R. Co. v. But- 4^ Shively v. Bowlby, 1S2 U. S. 1, 

ler, 159 U. S. 87, IS Sup. Ct. 991, 40 14 Sup. Ct. S48. 

L. ed. 85. 46 Long Beach Land Co. v. Rich- 
es Ingraham V. Wilkinson, 4 Pick, ardson, 70 Cal. 206, 11 Pac. 695; 

(Mass.) 268, 16 Am. Dec. 342. Storer v. Freeman, 6 Mass. 435, 4 

** Cox V. Arnold, 129 Mo; Zi7, 31 S. Am. Dec. 155 ; Martin v. O'Brien, 34 

W. 592, 50 Am. St. 450. Miss. 21 ; Yard v. Ocean Beach Assn., 



§ 104 TITLES AND ABSTRACTS 126 

bounded by the sea, or by any navigable tide water, does not pass 
any title below the tide water mark, unless through the language 
of the grant or long usage under it, it clearly indicates that such 
was the intention.*' The common-law rule that the title to the 
shore is in the state does not include the possibiHty of private 
title derived from the sovereign or obtained by prescription.*' In 
the New England states the rule of private ownership of the shore 
was estabhshed by an early colonial ordinance, and by usage 
founded thereon.*^ By virtue of this ordinance the owner in fee 
of upland adjoining tide waters whether of the sea or of a tidal 
stream, becomes the owner also of the adjacent shore, flats, or, 
beach, one hundred rods in extent, if the tide ebbs and flows that 
distance; and a conveyance of upland bounded by such waters 
passes the grantor's title to the same extent.^" There is a pre- 
sumption that the grantor conveys the title to land covered by 
water so far as his own title extends, whether the conveyance 
is bounded by the sea, a tidal river, or a fresh-water stream, un- 
less he expressly reserves the land under the water, or the terms 
of the deed indicate an intention to reserve it.°^ But this presump- 
tion may always be overcome by language in the deed showing 
an intention not to convey any title to the land covered by water."^ 
Of course the owner in any sale may sever the upland from the 
flats, selling either without the other at his pleasure. ^^ 

The land covered by fresh-water streams not navigable is 
prima facie the property of the riparian proprietors, to the center 
of the stream. But if the same person owns the land on both 
sides of the stream, he owns the entire river-bed so far as his 
lands extend.^* In many states the common-law rule as regards 
navigable lakes and rivers has been changed, and in its place the 
civil-law rule has been adopted, which recognizes as navigable 
all streams and lakes which are really so, though they are not tide 

49 N. J. Eq. 306, 24 Atl. 729; New "Houck v. Yates, 82 111. 179; Paine 

York V. Hart, 95 N. Y. 443, efifg. 16 v. Woods, 108 Mass. 160; Carter v. 

Hun 380. Chesapeake &c. Co., 26 W. Va. 644, 

« Shively v. Bowlby, 1S2 U. S. 1, 53 Am. Rep. 116. 

14 Sup. Ct. 548, 38 L. ed. 331. ^2 People v. Madison Co., 125 111. 

^8 Oakes v. DeLancey, 71 Hun (N. 9, 17 N. E. 147. 

Y.) 49, aff'd. 143 N. Y. 673, 14 N. Y. =3 Ladies Seamen's Friends' Soc. v. 

S. 294. Halstead, 58 Conn. 144, 19 Atl. 658; 

^0 Mass. Colony Laws (ed. 1606) Erskine v. Moulton, 66 Maine 27& 

P- 50. 54 Packer v. Bird, 137 U. S. 661, 

60 Clancey v. Houdlette, 39 Maine 11 Sup. Ct. 210, 34 L. ed. 819. 
451. 



•127 METHODS OF ACQUIRING TITLE § 105 

water rivers, and this is now the prevailing doctrine in this 
country.^^ A division of waters into public and private waters 
has been adopted in some recent decisions, and undoubtedly the 
tendency is to extend and assert public rights against private 
ownership in lakes and rivers, without much regard to any test 
or definition of navigability/^ 

§ 105. Dedication. — Dedication is the setting apart of 
land for public use." It is essential to every vahd dedication 
that it should conclude the owner, and that as against the public 
it should be accepted by the proper local authorities or by general 
public user.°* 

There are two kinds of dedications, statutory dedication, which 
is by way of grant, and common law dedication, which arises by 
way of an estoppel in pais. Where the statute requires that the 
dedication shall be evidenced in a particular way, as by plats or 
maps, and that they shall be acknowledged before some competent 
officer, these requirements must be strictly complied with.^^ The 
owner of land may, by virtue of his absolute dominion over it, 
donate or dedicate it to whomsoever he pleases. He may give 
it to the public, to a body corporate capable of holding it, or 
to a natural person, for such purposes, either public or private, 
as the donor sees fit to appoint. But to render such gift effectual 
the owner must grant or convey to the donee the land, or such 
interest therein as he wishes to donate, either by deed or by some 
equivalent mode of conveyance recognized by law. But, by the 
rules applicable to what is known as "common-law dedications," 
lands or easements therein may be dedicated to the public, so as 
to become effectually vested, without the aid of any conveyance. 
It may be done in writing, by parol, or by acts in pais, or even by 
acquiescence in the use of the easement by the public. A dedica- 

55 Barney v. Keokuk, 4 U. S. 324, 53 N. W. 1139, 18 L. R. A. 670, 38 
24 L. ed. 224; Packer v. Bird, 137 U. Am. St. S41. 

S. 661, 11 Sup. Ct. 210, 34 L. ed. 819; " m. E. Church v. Mayor &c. of 

Hess V. Cheney, 83 Ala. 251, 3 So. Hoboken, 33 N. J. L. 13, 97 Am. Dec. 

791 ; Martin v. Evansville, 32 Ind. 85 ; 696. 

Wood V. Fowler, 26 Kans. 682, 40 Am. ^s Brakken v. Minneapolis &c. R. 

Rep. 330; Lamprey v. State, 52 Minn. C9., 29 Minn. 41, 11 N. W. 124; Buch- 

181, 53 N. W. 1139, 18 L. R. A. 670, anan v. Curtis, 25 Wis. 99, 3 Am. Rep. 

38 Am. St. 541 ; Benson v. Morrow, 23. 

61 Mo. 345 ; Hodges v. Williaftis, 95 =9 Wilder v. Aurora &c. R. &c. Co., 

N. Car. 331, 59 Am. Rep. 242. 216 111. 493, 75 N. E. 194. 

56 Lamprey v. State, 52 Minn. 181, 



§ 106 TITLES AND ABSTRACTS 128 

tion of this character, to be effectual, must be to the public/" 
and not merely a public corporation."^ 

As a general rule, in order to create a common-law dedication 
there must be an acceptance in behalf of the public by the public 
authorities."^ By the common-law method of dedication a mere 
easement in the land dedicated passes to the public, while the fee 
remains in the donor subject to be sold and conveyed by him to 
third persons. In such case the right of the public is paramount 
to that of the owner of the fee."^ In statutory dedications the 
fee may vest in the public, although no express words creating 
such an estate are used, but this is only so in cases where the 
statute under which the dedication i 3 made provides that the fee 
shall vest,"* and counsel should consult the local statute on this 
proposition wherever dedication is involved in the title. 

Dedication may be established against the owner of the soil by 
showing that he has platted the ground, representing streets and 
alleys on the plat, and has sold lots with reference to it,''^ or by 
showing that he has adopted a map or plat made by public officers, 
or other persons,"" or by showing that he has sold lots describing 
them as bounded by a street or road."'' Dedication by maps and 
plats are sometimes so made as to render it difficult to determine 
their nature and extent, and their construction is often one of 
difficulty for counsel in passing upon a title where such dedication 
is relied upon. 

§ 106. Confirmation. — "A confirmation is the conveyance 
of an estate or right, that one hath in or unto lands or tenements, 
to another that hath possession thereof, or some estate therein, 
whereby a voidable estate is made sure and unavoidable, or 
whereby a particular estate is increased or enlarged.""^ A con- 
firmation makes a voidable estate sure, or increases a particular 

60 Lake Erie & W. R. Co. v. Whit- 10 Sup. Ct. SS4, 33 L. ed. 909 ; Miller 

ham, 155 111. 514, 40 N. E. 1014, 28 v. Indianapolis, 123, Ind. 196, 24 N. E. 

L. R. A. 612, 68 Am. St. 355. 228. 

«i Todd V. Pittsburgh &c. R. Co., 19 e" Moale v. Baltimore, 5 Md. 314, 

Ohio St. 514. 61 Am. Dec. 276; Methodist Church 

62 Trme v. Pueblo, 21 Colo. 102, 39 v. Hoboken, 33 N. J. L. 13. 
Pac. 330 erourkin v. Cobleigh, 156 Mass. 

"^ M. E. Church v. Hoboken, 33 N. 108, 30 N. E. 474 17 L. R. A. 270, 32 

J- L. 13. Am. St. 436. 

«*Maywood &c. Co. v. Maywood. es ghep. Touch. 311. See also De 

118 111. 61, 6 N. E. 866; Wisby v. Mares v. Gilpin IS Colo. 76, 24 Pac. 

Boute, 19 Ohio St. 238. 568; Northern Pac. R. Co. v. Majors, 

65 Gormley v. Clark, 134 U. S. 338, 5 Mont. Ill, 2 Pac. 322. 



129 METHODS OF ACQUIRING TITLE § 106 

estate. There must be a previous estate on which it is to operate.'*' 
This is the proper form of conveyance when one having aliened 
land for a particular purpose, voidable at his option, subsequently 
desires to make the estate of his grantee certain and unavoidable. 
It does not regularly create the estate, but operates on an exist- 
ing estate by strengthening the title of the grantee who already 
has, or claims some right or inteirest therein. It is of a nature 
similar to a release.'" If the original conveyance which it is at- 
tempted to vaHdate was originally void it can not be rendered 
valid by a confirmation," but only confirms its infirmity;" al- 
though such an instrument may be operative as a deed of bargain 
and sale." 

The proper words used in a deed of confirmation are "given," 
"granted," "ratified," "approved," and "confirmed," although 
other words which sufficiently show an intention to confirm may 
be used.''' In modern practice the quitclaim deed is generally 
used instead of a confirmation. 

The transfer of property of infants and other incapacitated 
persons may take place through the medium of a parent, guardian, 
committee, or next friend under order of a court of competent 
jurisdiction, and when 'the transfer is confirmed by the court the 
title passes to the transferee by what is termed "office grant." 
Confirmation by the court is a signification of its approval, and 
the sale is not complete without it.'' 

Conveyances defective in form, and accordingly inoperative in 
law, may be corrected, deeds made to the wrong grantees may be 
replaced by others to the right persons, or an official omission of 
duty may be supplied through office grants as directed by statute.'" 

Congress has made provision for the confirmation of uncertairi 
and inchoate interests of persons claiming title through the na- 
tional government or from foreign powers, and when confirma- 
tion is had by virtue of such provisions it is conclusive as be- 
tween the government and the confirmee." Confirmation of such 
claims may also be made by special act of congress. Confirmation 

«8 Jackson v. Root, 18 Johns (N. '*2 Bl. Comra. 32S. 

Y.) 60. 75 Johnson v. Cooper, 56 Miss. 608. 

'"Turk V. Skiles, 45 W. Va. 82, 30 ^6 Watson v. Mercer, 8 Pet. (U. S.) 

S. E. 234. 88, 8 L. ed. 876 ; Leavitt v. Thornton, 

"Barr v. Schroeder, 32 Cal. 609. 123 App. Div. (N. Y.) 683, 108 N. Y. 

^2 Branham v. San Jose, 24 Cal. 585. S. 162. 

" Fauntleroy v. Dunn, 3 B. Mon. " Meader v. Norton, 11 Wall. (U. 

(Ky.) 594. S.) 442, 20 L. ed. 184. 

9 — Thomp. Abste. 



§ 107 TITLES AND ABSTRACTS 130 

of such claims, whether made by commissioners, by the federal 
court, or by special act, has been held as to all intents and 
purposes a grant from the government,'^ yet it would seem that 
the confirmee under any such method has the equitable title only 
until a patent has issued for the land/'' 

§ 107. Occupancy. — Mere possession or occupancy is the 
lowest form of title, but it is good in the occupant against all the 
world until some one shows a better title. Occupancy is owner- 
ship with a present active use.*" As a mode of acquiring title 
it does not seem to be recognized in this country. In this country 
there is no such thing as common property in lands. When not 
owned by private individuals, they are the property of either the 
state or national government. At the time of discovery by the 
nations of Europe the Indians held the use and enjoyment of his 
lands by occupancy, but this holding has never been regarded as 
property in the soil, and this government has ever reserved the 
right to extinguish the Indian claim by purchase or conquest.*^ 
Squatter sovereignty is no longer recognized, and the title to all 
lands rests either with the government or some private mdividual 
or corporation. Formerly in England the law restricted the right 
of acquiring title by occupancy to the single instance where one 
was tenant for the life of another who outlived him. In such 
case, he who could first enter on the land might lawfully retain 
the possession thereof so long as such person lived, by right of 
occupancy.^^ At the present time, however, both in England and 
in this country, provision is made by statute that the interest left 
at his death by a tenant pur autre vie, who dies prior to the one 
by whose life the estate is measured, is governed by the laws of 
descent and distribution.^^ In case the occupancy takes the form 
of adverse possession, or if it continues for such a period of 
time as to invoke the protection of the statute of limitations, we 
then have title by adverse possession, or prescription, or, possibly, 
by estoppel. 

§ 108. Abandonment. — Strictly speaking there can be no 
abandonment of a legal title to real estate by mere failure to assert 

78 Challefoux v. Ducharme, 4 Wis. si Johnston v. Mcintosh, 8 Wheat, 

554. (U. S. ) 543, 5 L. ed. 681. 
78 Le Beau v. Armitage, 47 Mo. 138. 82 2 Bl. Comm 258 
8'> New England Hospital v. Boston, ss 3 Washb. Real Prop. 51. 
113 Mass. 518. 



131 METHODS OF ACQUIRING TITLE § 108 

it in the absence of adverse possession. If there can not be a 
devolution of title by operation of an adVerse possession, no 
abandonment for any period of time will divest the owner of 
title.** Mere abandonment of corporeal property does not effect 
a loss thereof; and in a strict sense this is true of incorporeal 
property.'^ 

The term "abandonment," as used in this connection, has refer- 
ence to a method of extinguishing intangible rights. Thus the 
right which a disseisor has before the full period of limitation 
has run may be lost by abandonment before such time has ex- 
pired f" but if he holds possession until his title has become per- 
fected by limitation, his subsequent abandonment does not divest 
him of such title.*^ The doctrine of abandonment, therefore, 
when applied strictly, has to do with incorporeal hereditaments. 
Title is thus lost by one, and an advantage or a title gained by 
another, when an owner of an easement or other servitude leaves 
it unused tinder circumstances indicating an intention not to reas- 
sert his right and the servient land is then properly so used by 
its owner, or some other rightful holder, that he will be injured 
by any further use or employment of the easement as such.** It 
must be remembered that intent becomes a materia:! element in 
abandonment. Mere non-user for a certain length of time does 
not constitute abandonment.*" Abandonment is a question of 
fact to be determined from the circumstances of each particular 
case.°° Whenever it may be inferred as a matter of law, from 
the acts of the owner of an easement or servitude, that it was 
his intention to give up his rights and to lay no further claim 
thereto, such owner will lose his title rather upon the ground of 

^* East Tennessee Iron &c. Co. v. ownership, why may he not do so in 

Wiggin, 68 Fed. 446, IS C. C. A. 510. the case of land, as well as of a chat- 

*^ Holmes v. Cleveland &c. R. Co., tel ? It might go to the government 

3 Ohio Dec. 416. It has been said, instead of the first occupant, upon the 

however, that "if a person having the principle upon which land escheated 

disposing power absolutely, does an or became derelict." Dikes v. Miller, 

act sufficient in itself, legally to di- 24 Tex. 417. 

vest his title with the express inten- s" Bennett v. Atlantic Coast Line 

tion of relinquishing and abandoning Co., 126 Ga. 411, 55 S. E. 177. 

the property, it is not easy to perceive ^^ Sage v.- Rudnick, 67 Minn. 362, 

why he may not do so. Abandon- 69 N. W. 1096. 

ment, it is said, is the relinquishment ^^ Farrell v. Lockhart, 210 U. S. 

of a right; the giving up something 142, 52 L. ed. 994. 

to which one is entitled. If the owner ^9 McKee v. Perchraent, 69 Pa. St. 

sees proper to abandon his property, 349. 

and evidences his intention by an act °" Corning v. Gould, 16 Wend. (N. 

legally sufficient to vest or divest Y.) 531. 



§ 109 TITLES AND ABSTRACTS 132 

an estoppel in pais than upon the theory of abandonment.'^ An 
.abandonment can not be made in favor of any particular person, 
and must be without any intention or desire that any other par- 
ticular person shall thereby acquire any rights in the property."^ 
The abandonment of a homestead by the widow or minor chil- 
dren destroy their homestead right in the premises."^ But their 
temporary absence from the premises has been held not an aban- 
donment such as will deprive them of the right.'* 

§ 109. Eminent domain. — Among the ways of acquiring 
title by purchase may be included title acquired by the exercise 
of the right of eminent domain."^ Eminent domain is the right- 
ful authority which exists in every sovereignty to control and 
regulate those rights of a public nature which pertain to its citi- 
zens in common, and to appropriate and control individual prop- 
erty for the public benefit, as the public safety, necessity, con- 
venience, and welfare may demand. This power has its limits 
fixed by the constitution of the United States and of the several 
states which provide that private property shall not be taken for 
public use without just compensation."" The right to gxercise 
this power is limited to cases in which the public have an interest." 
The power may be delegated to corporations, public"* or private,'' 
and even to individuals,^ prtDviding such corporations or individ- 
uals are engaged in some public enterprise, and the property is 
taken for the benefit of the public.^ 

Cities and towns take property in this manner for streets and 
parks; railroad, turnpike, telegraph, telephone, canal, ferry, gas, 
water, and irrigation companies condemn land for right of way, 
and exercise this right when authorized to do so by the legisla- 

91 Welknd Canal v. Hathaway, 8 98 -Warner v. Gunnison, 2 Colo. App. 
Wend. (N. Y.)-840, 24 Am. Dec. 51. 430, 31 Pac. 238; Kansas City v. 

92 Stephens v. Mansfield, 11 Cal. Marsh Oil Co., 140 Mo. 458, 41 S. 
363. W. 943. 

93Farnan v. Borders, 119 111. 228, ss Postal Telegraph-Cable Co. v. 

10 N. E. 550 ; Carrigan v. Rowell, 96 Chicago &c. R. Co., 30 Ind. App. 654, 

Tenn. 185, 34 S. W. 4. 66 N. E. 919 

9* Carter v. Randolph, 47 Tex. 376. i Pool v. Simmons, 134 Cal. 621, 

95 Kohl V. United States, 91 U. S. 66 Pac. 872 ; Peterson v. Bean, 22 

367, 23 L. ed. 449 ; Burt v. Merchants' Utah 43, 61 Pac. 213. 

Ins. Co., 106 Mass. 356, 8 Am. Rep. 2 Gaylord v. Sanitary Dist., 204 111. 

339. 576, 68 N. E. 522, 63 L. R. A. 582, 98 

9«5 2 Kent Comm. 339. Am. St. 235 ; Peterson v. Bean, 22 

97 Board of Health v. Van Hoesen, Utah 43, 61 Pac. 213. 

87 Mich. 533, 49 N. W. 894. 



133 METHODS OF ACQUIRING TITLE § 109 

ture, with whom rests the power to determine the manner in 
which, and the purposes for which, it may be exercised.^ 

Where the public necessity requires it, any kind of property, 
whether tangible or intangible, is subject to condemnation.* Thus, 
where the public necessity requires it, condemnation may be had 
of church property,^ a private bridge," the property of a railway 
company,^ the water flowing from springs,'^ the waters of a 
creek,^ lands belonging to the state,^° property of a cemetery 
association,^^ a homestead occupied as a residence,^^ the franchise 
of a corporation,^^ and lands under navigable waters owned by 
private individuals.^* Also property already devoted to public 
use may be thus appropriated.^^ 

Where it is desired to appropriate land for the purpose of 
establishing navy yards, arsenals, or for sites for post-office build- 
ings, custom houses and the like, the government, if it can not 
secure desirable property by purchase, institutes by its proper 
officers proceedings in the proper courts within whose jurisdic- 
diction the land lies, to have the value of the land ascertained. 
Upon payment of the amount so ascertained, the title vests in the 
government. But this right is exercised in another way when 
private individuals or corporations for their own profit embark 
in enterprises which perform some public service. It can only 
be exercised by them where the property is taken for a public 
use, and where the property condemned is necessary to enable 
the public use to be carried into effect. It is also a condition that 
compensation must be made to the owner, and it is generally 
held that payment must be made before entry.^® 

3 New York &c. R. Co. v. Long. 69 " Woodmere Cemetery v. Roulo, 

Conn. 424, 37 Atl. 1070 ; Chicago &c. 104 Mich. 595, 62 N. W. 1010. 

R. Co. V. Pontiac, 169 111. 155, 48 N. i^Jockheck v. Board of Commis- 

E. 485. sioners, 53 Kans. 780, Zl Pac. 621. 

* Rigney v. Chicago, 102 111. 64. is Southern Pac. R. Co. v. Southern 
= Macon &c. R. Co. v. Riggs, 87 Ga. Cal. R. Co., Ill Cal. 221, 43 Pac. 602. 

158, 13 S. E. 312. i*Kerr v. West Shore R. Co., 127 

« Blaine County v. Brewster, 32 N. Y. 269, 27 N. E. 833. 

Nebr. 264, 49 N. W. 183. is Samish River Boofn Co. v. 

' Pittsburgh Junction R. Co. v. AI- Union Boom Co., 32 Wash. 586, IZ 

leghany R. Co., 146 Pa. St. 297, 23 Pac. 670. 

Atl. 313. 16 Southern R. Co. v. Hayes, ISO 

^Ely V. Ferguson, 91 Cal. 187, 27 Ala. 212 43 So. 487; Knoth v. Man- 

Pac. 587. hattan R. Co., 187 N. Y. 243, 79 N. 

* Santa Cruz v. Enrlght, 95 Cal. 105, E. 1015 ; State v. Wells, 142 N. Car. 
30 Pac. 197. 590, 55 S. E. 210; McCord v. Eastern 

I'Friedrichs v. New Orleans, B. & R. Co. 136 Wis. 254, 116 N. W. 845. 
T. Co., 114 La. 95, 38 So. 32. 



§ 110 TITLES AND ABSTRACTS 134 

§ 110. Title and rights acquired by condemnation. — As a 
general rule the right or interest acquired by the exercise of the 
power of eminent domain is hmited to the use of the property 
appropriated, and does not deprive the owner of the fee there- 
in.^^ This is especially true of property condemned for a public 
highway/^ a turnpike/" a street,^" a park/^ an aqueduct," or a 
telephone route.^^ The right acquired is an easement running 
with the land,^* and is usually regarded as perpetual, but in case 
of non-user or failure to pay damages the land reverts to the 
owner of the fee disincumbered of the easement.^^ While the 
condemnation of land for railroad purposes will usually pass an 
easement only,^" yet it has been held to vest a fee in the company." 

The fee simple title to condemned property passes only where 
the absolute and unconditional price is paid therefor,^^ or where 
the statute provides that a complete title shall pass.^^ The power 
of eminent domain "when exercised acts upon the land itself, 
not upon the title, or the sum of the titles if there are diversified 
interests. Upon appropriation all inconsistent proprietary rights 
are divested, and not only privies but strangers are concluded. 
Thereafter whoever may have been the owner, or whatever may 
have been the quality of his estate he is entitled to full com- 
pensation according to his interest and the extent of the taking, 
but the paramount right is in the public, not as claiming under 
him, by a statutory grant, but by an independent title."^" 



17 Morris v. Schollsville &c. Tpk. zs Union Pacific R. Co. v. Colorado 

Rd., 6 Bush (Ky.) 671; Shields v. Postal Tel. &c. Co., 30 Colo. 133, 69 

Norfolk &c. R. Co., 129 N. Car. 1, 39 Pac. 564, 97 Am. St. 106; Gurney v. 

S. E. 582 ; Muhle v. New York &c. R. Minneapolis Union Elevator Co., 63 

Co., 86 Tex. 459, 25 S. W. 607. Minn. 70, 65 N. W. 136, 30 L. R. A. 

isHagaman v. Moore, 84 Ind. 496. 534. 

19 Kelly V. Donahoe, 2 Mete. (Ky.) ^t Challiss v. Atchison &c. R. Co., 
482. 16 Kans. 117 ; Troy &c. R. Co. v. Pot- 

20 Harris v. Chicago, 162 111. 288, ter, 42 Vt. 265, 1 Am. Rep. 325. 

44 N. E. 437. zs Driscoll v. New Haven, 75 Conn. 

21 Devine v. Lord, 175 Mass. 384, 56 92, 52 Atl. 618; Detroit City R. Co. v. 
N. E. 570. Mills, 85 Mich. 634, 48 N.'W. 1007; 

22 In re Thompson, 57 Hun (N. Y.) U. S. Pipe Line Co. v. Delaware &c. 
419, 10 N. Y. S. 705. R. Co., 62 N. J. L. 254, 41 Atl. 759, 

23 Lockie v. Mutual Union Tel. Co., 42 L. R. A. 572 

103 111. 401. 29 Fox V. Western Pac. R. Co., 31 

21 Deavitt V. Washmgton County, 75 Cal. 538 ; Dodson v. Cincinnati, 34 

Vt. 156, 53 Atl. 563. Ohio St. 276. 

23Waterbury v. Piatt, 76 Conn. 435, s» Weeks v. Grace, 194 Mass. 296; 

56 Atl. 856; Chicago &c. R. Co. v. 80 N. E. 220, 9 L. R. A. (N. S.) 

Clapp, 201 111. 418, 66 N. E. 223; 1092n, 10 Ann. Cas. 1077. 

Remey v. Iowa Cent. R. Co., 116 Iowa 

133, 89 N. W. 218. 



135 METHODS OF ACQUIRING TITLE § 111 

§ 111. Escheat. — Under the feudal system an escheat was 
the resumption of the fee by the lord when issue failed or where 
the estate was lost by the crime of the tenant. In this country 
when a man dies intestate and without heirs, the title to his real 
property reverts or escheats to the people, as forming part of the 
common stock of the community, it being a fundamental princi- 
ple that, if the ownership of property becomes vacant, the right 
must necessarily subside into the whole community in whom it 
was vested at the origin of society. The state by sovereign right, 
and as the original source of all title, ownership and right of pos- 
session in lands, becomes entitled, upon the failure of heirs, to the 
estate of an intestate as the final and ultimate heir. 

Escheat by forfeiture for corruption of blood by attainder for 
crime is prohibited generally in this country. With us escheat 
takes place only in case an owner dies intestate without heirs 
capable of inheriting.^^ An escheat will not be permitted so 
long as kindred capable of inheriting can be found. The title to 
land can not be in abeyance but must vest somewhere, and where 
the escheat is for want of heirs, it takes place at the instant the 
owner dies intestate and no inquisition of office is needed to vest 
the title.^^ In some jurisdictions, however, when property is thus 
acquired, the state can not make its title available without first 
establishing it in the manner prescribed by law.^^ But where an 
inquisition is provided for, it is only the means by which the 
state declares, ascertains, or furnishes record evidence of an es- 
cheat.^* Lands which fall to the state by virtue of an escheat are 
not in the position of vacant lands, but come to the state with 
such rights as the last tenant held in them,^° and will be held liable 
for the debts of the last owner.^® Statutes providing for the 
disposition of estates of unknown heirs is, to a certain extent, a 
species of escheat. If such estates are not claimed it would seem 
that they would lapse to the state as unclaimed estates.^^ 

At common law the lands of an alien, may be claimed by the 

^'^ Meadowcroft v. Winnebago Co., ^^Wallahan v. IngersoU, 117 111. 

181 111. 504, 54 N. E. 949; Crane v. 123, 7 N. E. 519. 

Reeder, 21 Mich. 24, 4 Am. Rep. 430; 34 Sands v. Lynham, 27 Grat. (Va.) 

Van Kleek v. O'hanlon, 21 N. J. L. 291, 21 Am. Rep. 348. 

582. ■ 35 Hughes v. State, 41 Tex. 10. 

32 State V. Reeder, 5 Nebr. 203; 36 state v. Meyer, 63 Ind. 33. 

Mooers v. White, 6 Johns. Ch. (N. 37 State v. Meyer, 63 Ind. 33. 
Y.) 360; Rubeck v. Gardner, 7 Watts 
(Pa.) 455. 



§ 112 TITLES AND ABSTRACTS 136 

state by escheat upon office found, but until so claimed he may 
convey title thereto f^ but it has been held that the estate so con- 
veyed may be forfeited in the hands of the grantee.^'' At common 
lawr, in the absence of direct heirs, the estates of illegitimates 
dying intestate escheated to the state.*" Upon the death of an in- 
testate ovirner without heirs, but leaving a wife surviving, the 
escheat of the property does not affect the right of dower in the 
wife/^ 

§ 112. Confiscation.— Confiscation is the act of the sov- 
ereign against a rebellious subject, or against an alien enemy 
during war, whereby the property of such subject or enemy is 
appropriated to the use of the state. It is either based upon 
penal justice for the punishment of crimes against the state or 
upon the exercise of a belligerent right against the property of 
public enemies.*^ The term ordinarily implies a taking by some 
extraordinary process, or for some extraordinary purpose other 
than the general purpose of government or the general process of 
taxation.*^ It. may be employed as a punishment for carrying 
contraband of war, or for attempting to carry supplies to a place 
besieged or blockaded. It may be effected by such means, sum- 
mary or arbitrary, as the sovereign, expressing its will through 
lawful channels, may please to adopt.** The estate forfeited by a 
proceeding in confiscation is the life estate of the offender, the 
fee remaining in him after the confiscation, but without power of 
alienation until his disability is removed.*^ It has been held that 
after confiscation the fee simple title was withheld from confisca- 
tion exclusively for the benefit of the heirs of the offender, and 
that they alone could take it at the termination of the life estate 
which was conveyed to the purchaser at the confiscation sale.*° 

§ 113. Forfeiture. — ^Title by forfeiture is a title which the 
state acquires to the property of a felon who, with his heirs, dev- 

38 Halstead v. Lake Co., 56 Ind. ^2 The Globe, 10 Fed. Cas. No. 5484. 

363; Sheafife v. O'Neil, 1 Mass. 256; ^s State v. Sargent, 12 Mo. App. 228. 

Montgomery v. Darion, 7 N. H. 475 ; ^* Winchester v. United States, 14 

Abrams v. State, 45 Wash. 327, 88 Ct. CI. 13. 

Pac. 327. 15 United States v. Dunnington, 146 

3» Scanlan v. Wright, 13 Pick U. S. 338, 13 Sup. Ct. 79 ; Menger v. 

(Mass.) 523, 25 Am. Dec. 344; Peo- Carruthers, 3 Kans. App. 75, 44 Pac. 

pie V. Conkhn, 2 Hill (N. Y.) 67. 1096. 

*»Doe V. Bates, 6 Blackf. (Ind.) ^s Ledoux v. Lavedan, 52 La. Ann. 

533. 311, 27 So. 196. 

"4 Kent Comm. 49. 



137 METHODS OF ACQUIRING TITLE § 113 

isees and legatees, are. deprived of it on account of, and as a 
punishment for, high crimes. Such forfeitures are by constitu- 
tions of many states prohibited. The constitution of the United 
States forbids forfeiture beyond the life of the offender, and 
when forfeiture is enforced, the state or national government 
takes only the title of the offender.*^ By statute in some states 
a person may be deprived of his property for certain specified 
causes, such for illustration as in West Virginia for failure dur- 
ing five consecutive years to enroll it for taxes.^^ Some states 
have reserved the right to take realty from a corporation that 
attempts to acquire more than it is authorized to hold.** 

As between individuals forfeiture has reference to the method 
by which real estate reverts to a former owner by operation of 
law where the estate is upon condition and there has been a 
breach. Where the nonfulfilment of a condition works a for- 
feiture of the estate the grantor may re-enter at this will.^" Con- 
ditions involving forfeitures are, however, not favored in law, 
and in case it is doubtful whether a clause in a deed or a covenant, 
the courts will construe the clause as a covenant rather than a 
conditiott.^^ 

^7 Shields V. Shiff, 124 U. S. 351, R. A. 634; Fayette L. Co. v. Louis- 

8 Sup. Ct. 510, 31 L. ed. 445. ville &c. R. Co., 93 Va. 274, 24 S. E. 

48 King V. Mullins, 171 U. S. 404, 1016. 

18 S. Ct. 925, 43 L. ed. 214. 5<> Woodruff v. Trenton Water 

*8 National Bank v. Matthews, 98 Power Co., 10 N. J. Eq. 489. 

U. S. 621, 25 L. ed. 188 ; Matter of " Peden v. Chicago &c. R. Co., li 

McGraw, 111 N. Y. 66, 19 N. E. 233; Iowa 328, 35 N. W. 424, S Am. St. 

Commonwealth v. New York &c. R. 680. 
Co., 132 Pa. St. 591, 19 Atl, 291, 7 L. 



CHAPTER V 

THE PUBLIC RECORDS 
SEC. SEC. 

lis. Public records generally. 125. Effect of a record duly made. 

116. Style of office under which re- 126. The doctrine of notice, 
cording is done. ' 127. Actual notice. 

117. What constitutes recording. 128. Implied notice. 

118. Object of recording acts. 129. Constructive notice. 

119. Particular instruments which 130. Official tract indexes, 
may be recorded. 131. General index of records. 

120. Proper execution and acknowl- 132. Whether the index is a part of 
edgment as a prerequisite to re- the record. 

cording. 133. Records of attachment and lis 

121. Books in which instruments pendens. 

must be recorded. 134. Index of judgment records. 

122. Time of recording. 135. TaX records. 

123. Time allowed by statute for re- 136. Records of vital statistics, 
cording deeds and other instru- 137. Abstracters' use of public rec- 
ments. ords. 

124. Place of recording. 138. Loss or destruction of records. 

§ 115. Public records generally. — As an abstract must set 
out the items of record which affect the title to a particular tract 
of land, the examiner must make himself familiar with the pub- 
lic records of the jurisdiction in which the search is to be carried 
on. The information or data from which the abstract must be 
compiled will be found in certain depositories prescribed by law, 
as will be hereinafter shown. 

By "public record" is meant any "written memorial made by 
a public officer authorized by law to perform "that function, and 
intended to serve as evidence of something written, said or done."^ 
By such records interested persons may ascertain the ownership 
of a particular tract of land, all estates or interests therein and 
all liens and incumbrances thereon. By such record the deeds 
through which a purchaser derives his title are put in a perma- 
nent shape. Because of the fact that the entries made therein by 
a public officer are of public interest and notoriety such records 
are designated as "public records." It is a public document, be- 
longing to the state, and is in no sense a private memorandum.^ 

1 Bouvier Law Diet., Vol. 2, p. 424. Clay v. Ballard, 87 Va. 787, 13 S. E. 

2 Coleman v. Commonwealth, 25 262. 
Grat. (Va.) 865, 18 Am. Rep. 711; 

138 



139 PUBLIC RECORDS § 116 

In order to give a document the character of a public record it 
is not necessary that there be an express statutory requirement 
that it shall be kept, or that it be of such a nature that its keep- 
ing is indispensable. The acts of congress and of the state legis- 
latures are public records, and when signed by the presiding offi- 
cer of both houses, approved by the executive, and filed in the 
proper public office, they become permanent public records of the 
highest type. ^ A written history of an action at law or a suit in 
equity from its commencement to its termination, drawn up by the 
proper officer and entered upon a record provided for that pur- 
pose, is a public record of recognized dignity. In this country 
every conveyance of real estate by deed or mortgage is subject to 
recording laws, by which its priority as respects other convey- 
ances depends for the most part upon priority of record. These 
laws grew up with the country, and records* made in pursuance of 
such laws are public records. Such acts of the different states 
are alike in their purpose and in their most important features, 
but differ in minor matters and in details. Records made in pur- 
suance of such acts are of controlling efficacy in the state where 
made, and full faith and credit is given in each state of the rec- 
ords of every other state. 

§ 116. Style of office under which recording is done. — 
Public records must be kept by proper authority, and the officer 
making the entries must have express or implied authority to 
make same,^ and the instrument must be filed with such accom- 
paniments as make it the duty of the officer to receive it for 
registration.* , 

The officer charged with the duty of keeping such record and 
of making entries therein is variously named in the different 
jurisdictions. In some states the authority and duty of receiv- 
ing and recording deeds is incident to' an office primarily created 
for a different purpose. Thus in Illinois the clerk of the circuit 
court in all counties having a population of less than sixty thou- 
sand has the duty of registering deeds. In Nebraska the county 
clerk in all counties having a population not exceeding eighteen 
thousand and three is the proper recorder of deeds. In Maine, 
New Hampshire, Massachusetts, Michigan, Wisconsin, Minne- 

^ Adams v. Buhler, 131 Ind. 66, 30 * Cunninggim v. Peterson, 109 N. 
N. E. 883. Car. 33, 13 S. E. 714. 



§ 117 TITLES AND ABSTRACTS 140 

sota, Kansas, Nebraska and the Dakotas the officer is called a 
"registrar of deeds;" in North Carolina and Tennessee, a "reg- 
ister;" in Arkansas, California, Colorado, Idaho, Illinois, Indiana, 
Montana, Pennsylvania and West Virginia, a "recorder;" in 
Delaware and Missouri, a "recorder of deeds;" and in Iowa, Ne- 
vada, Ohio and Oregon, a "county recorder." In Connecticut, 
Rhode Island and New Hampshire, the town clerk has the duty 
of recording the deeds to real estate within the corporate limits 
of towns, but in all other states the county is the unit for record- 
ing all instruments relating to real property. In the city of New 
York the "register of deeds" records all instruments of convey- 
ance pertaining to real estate within the city limits, but de^'ds to 
lands outside the city are recorded by the clerk of the county 
wherein the land is situated. In New Jersey, Virginia, Kentucky, 
Texas, Maryland, Florida, Mississippi and Georgia, the clerk of 
the court of the county has the duty of recording such instru- 
ments. In Alabama such record is made and kept by the judge of 
the probate court. In Washington this duty is performed by the 
county auditor. 

§ 117. What constitutes recording. — A deed is sufficiently 
recorded by depositing it with the person in charge of the regis- 
tration office, though such person be neither the official recorder 
nor a deputy of his, for the recorder is responsible for the acts of 
the person whom he has placed in charge of the office and the 
acts of such person in .custody of the records are the acts of the 
recorder.^ The registration of a conveyance being purely a min- 
isterial act, the recorder is not disqualified from acting by reason 
of his being a party to the deed." The recorder is usually re- 
quired by statute to- attest the record by his signature, but in the 
absence of such requirement a copy of the record is admissible in 
evidence though this has not been signed by the officer.'' The 
payment of the recording fee is not a prerequisite to a valid rec- 
ord of a deed if the recorder receives it for record. If he waives 
his right to a prepayment .of such fee, he is bound to make a 
proper record of the deed.^ But where the statute provides that 
the registration tax shall be paid before the instrument is re- 

sCook V. Hall, 6 Gil. (III.) 575; ^wilt v. Cutler, 38 Mich. 189. 

Bishop V. Cook, 13 Barb. (N. Y.) 326. s Bussing v. Crain, 8 B. Mon. (Ky.) 

8 Brockenborough v. Melton, 55 593 ; People v. Bristol, 35 Mich. 28. 
Tex. 493. 



141 PUBLIC RECORDS § 117 

corded, such payment must be made before the instrument left 
for record will operate as notice to creditors or innocent pur- 
chasers for value.° Even a provision of a statute, that no deed 
shall be admitted to record until the fee for recording is paid, is 
regarded as directory merely, and the record is valid. The re- 
corder in such case assumes the fee or tax/° But if a deed is 
sent to a recorder by mail or otherwise to be recorded, without 
the fee for recording, and the recorder in consequence of not re- 
ceiving the fee "pigeon-holes" it, the deed is not lodged for rec- 
ord so as to be notice to a subsequent bona fide creditor of the 
vendor.^^ But if the recorder receives the deed without the fee 
being paid and enters it as a deed received, or indorses such entry 
upon the deed, and he allows the entry to stand, he can not be 
held to contradict such entry upon finding that his fees are not 
in fact paid.^^ Under a statute giving instruments of title effect 
from the time they are filed for record, and requiring the recorder 
to keep a book for indexing all papers presented for record, the 
failure of such officer to keep the index will not prejudice the 
title of one leaving his deed for record.^^ Nor will a mistake on 
the part of the officer in making the record prejudice the grantee; 
he being protected by leaving his deed for record.^* 

A mortgage duly filed for record is, in contemplation of law, 
deemed recorded, and becomes notice to all the world. But if 
it is subsequently withdrawn from the files by the mortgagee be- 
fore being spread upon the record, it is ineffectual as notice until 
reinstated. ^° A grantee who deposits his deed for record in the 
auditor's office, which deed is received by that officer, discharges 
his duty of notice to the pubhc, and his title can not be prejudiced 
through the fault of the auditor. A title paper is deemed to be 
filed when it is delivered to the proper officer, and by him received 
to be kept on file or recorded. ^^ When a person deposits his title 
papers in the proper custody and for the proper purpose to charge 
others with notice, he has discharged his whole duty in the mat- 

» Martin v. Bates, 20 Ky. L. 1798, erson v. Bowers, 42 N. J. Eq. 295, 11 

50 S. W. 38; Orr v. Sutton, 119 Minn. Atl. 142. 

193, 137 N. W. 973, 42 L. R. A. (N. 12 Simon v. Sewell, 64 Ala. 241. 
S.) 146. "Cook V. Hall, 6 Gil. (111.) 579. 

10 Hoffman v. Mackall, 5 Ohio St. 1* Merrick v. Wallace, 19 111. 496. 
124, 64 Am. Dec. 637 ; Lucas v. Oaf- ^^ Worcester Nat. Bank v. Cheeney, 

flin, 76 Va. 269. ,87 111. 602. 

1^ Burnham v. Farmers' Loan &c. 1^ Oats v. Walls, 28 Ark. 244 ; Reed 

Co., 44 Nebr. 438, 63 N. W. 45 ; Dick- v. Acton, 120 Mass. 130. 



§ 118 TITLES AND ABSTRACTS 142 

ter. The law does not impose upon him the task of following the 
officer to see that he discharges his official duties in respect to the 
matter." 

§ 118. Object of recording acts. — Registry laws are in- 
tended to furnish the best and most easily accessible evidence of 
the title to real estate ; to the end that those designing to purchase 
may be fully informed of instruments of prior date afifecting the 
subject of tfieir contemplated purchase, and also that having 
availed themselves of this means of knowledge they may rest 
there, and purchase in absolute security ; provided, that they do so 
without knowledge, information or such suggestions from other 
facts, as would be gross negligence to ignore, of some antecedent 
conveyance or equitable claim. The object of recording acts is to 
impart information to parties dealing with property respecting its 
transfers and incumbrances, and thus to protect them from prior 
secret conveyances and liens. ^* The policy of such acts is that the 
title to real estate and all that effects it\ should be disclosed by the 
public records, and upon the theory that the record makes such 
disclosure, the rule obtains that a purchaser may rely upon the 
title as it appears of record, and that he will be protected against 
unrecorded conveyances, outstanding equities, secret liens and 
conditions of which he has no notice.^" These acts in substance 
provide that all conveyances of real estate shall be void as against 
subsequent purchasers in good faith without notice, unless they 
are recorded in the registry of deeds for the county where the 
land lies.'" 

Every subsequent purchaser is bound to take notice of a re- 

"Lytle V. Arkansas, 9 How. (U. ligan, 108 Ind. 419, 9 N. E. 392, 58 

S.) 314, 13 L. ed. 153; Oats v. Walls, Am. Rep. 49; Testart v. Belot, 31 La. 

28 Ark. 244 ; Merrick v. Wallace, 19 Ann. 795 ; Bailey v. Myrick, 50 Maine 

111. 486 ; Lee V. Bermingham, 30 Kans. 171; Columbia Bank v. Jacobs, 10 

312, 1 Pac. 73 ; Mangold v. Barlow, Mich. 349, 81 Am. Dec. 792 ; Cogan v. 

61 Miss. 593, 48 Am. Rep. 84; In re Cook, 22 Minn. 137; Roll v. Rea, 50 

Woods' Appeal, 82 Pa. St. 116; Nicli- N. J. L. 266, 12 Atl. 905; Harrington 

ols V. Reynolds, 1 R. I. 30, 36 Am. v. Erie County Sav. Bank, 101 N. Y. 

Dec. 238; Throckmorton v. Price, 28 257, 4 N. E. 346; Ramsey v. Jones, 

Tex. 605, 91 Am. Dec. 334; Ferris v. 41 Ohio St. 685; Pancake v. Gouff- 

Smith, 24 Vt. 27. man, 114 Pa. St. 113, 7 Atl. 67; 

18 Patterson v. De La Ronde, 8 Wright v. Lassiter, 71 Tex. 604, 10 

Wall. (U. S.) 292, 19 L. ed. 415. S. W. 295 ; Hart v. Farmers' &c. 

18 Williams v. Jackson, 107 U. S. Bank, 33 Vt. 252; Hoyt v. Jones, 31 

478, 2 Sup. Ct. 814, 27 L. ed. 529; Wis. 389. 

Kearnes v. Hill, 21 Fla. 185 ; Hathorn 20 See statutes of various states. 
V. Maynard, 65 Ga. 168; Quick v. Mil- 



143 PUBLIC RECORDS § 118 

corded deed in the line of title previously recorded, although he 
has no actual notice of it. If he has relied upon the representa- 
tions of his grantor in regard to the title to the premises without 
consulting the record, which is always open to his inspection, he 
has done so at his peril ; and although he may in such case be an 
innocent purchaser in fact, he is not regarded as such in law.^^ 
The purpose of such acts is by registration to impart constructive 
notice of deeds and other instruments affecting the title to real 
estate, and to authorize priority of title in accordance with pri- 
ority of registration. In general, registration is equivalent to 
actual notice, and actual notice is equivalent to registration. But 
the record imparts constructive notice only to such instruments as 
the statutes require or authorize the recording of. And though 
the recording of the instrument is authorized, if entries are made 
in the reception-book, or in the index, which are not required or 
authorized to be made, purchasers are not charged with construct- 
ive notice of such entries.^^ 

Unless an instrument is such as the law requires to be recorded, 
putting it on the record is of no avail as notice to persons dealing 
with the same grantor and the same land. As between the parties 
themselves, registration is generally unnecessary and without ef- 
fect.^^ It is as against subsequent purchasers or incumbrancers 
for value without notice, that recording is necessary; and as 
against such purchasers recording is necessary to protect any title 
or interest in the land, though this be a mere easement such as a 
right of way.^* Though recording is not necessary as against the 
grantor's heirs, it is necessary as against a purchaser from such 
heirs having no notice of the prior conveyance. ^^ There are, how- 
ever, a few cases in which it has been held that the protection af- 

21 Buchanan v. International Bank, v. Hampton, 46 Mo. 404; Stevens v. 
78 III. 500; Acer v. Westcott, 46 N. Morse, 47 N. H. 532; Brem v. Lock- 
Y. 384, 7 Am. Rep. 355. hart, 93 N. Car. 191. 

22 Ahern v. Freeman, 46 Minn. 156, 24 Warnock v. Harlow, 96 Cal. 298, 
48 N. W. 677, 24 Am. St. 206. 31 Pac. 166, 31 Am. St. 209; Prescott 

'23 Smith V. Branch Bank, 21 Ala. v. Beyer, 34 Minn. 493, 26 N. W. 732 

125; Warnock v. Harlow, 96 Cal. Merriman v. Hyde, 9 Nebr. 113, 2 N, 

298, 31 Pac. 166, 31 Am. St. 209; W. 218; Russell v. Nail, 2 Tex. Civ 

Christy v. Burch, 25 Fla. 942, 2 So. App. 60, 20 S. W. 1006, 23 S. W. 901 
258; Roane v. Baker, 120 111. 308, 11 25 Kennedy v. Northup, 15 111. 148; 

N. E. 246; Shirk v. Thomas, 121 Ind. Earle v. Fiske, 103 Mass. 491; Welch 

147, 22 N. E. 976, 16 Am. St. 381 ; v. Ketcham, 48 Minn. 241, 51 N. W. 

Davis V. Lutkiewiez, 72 Iowa 254, 33 113; Youngblood v. Vastine, 46 Mo. 

N. W. 670 : Van Husan v. Heames, 239, 2 Am. Rep. 509. 
96 Mich. 504, 56 N. W. 22; Stevens 



§ 119 TITLES AND ABSTRACTS l44 

forded by the registration laws against unrecorded conveyances 
extends only to purchasers from the gra,ntor himself, and not to 
purchasers from his heirs or devisees.^^ 

§ 119.. Particular instruments which may be recorded. — 

Statutes very generally provide that all instruments in any man- 
ner affecting the title to land shall be apparent on the record, so 
that interested parties may easily and accurately trace the title 
to all interests therein.^^ Such requirement is either specifically 
made, or may be implied. Thus where the statute provided for 
recording of "deeds," it was held that the term emlaraced every 
instrument in writing by which any real estate or interest therein 
is created, aliened, mortgaged, or assigned, or by which title to 
real estate may be affected, in law or equity, except wills and 
leases for one year or less.^^ Where recording acts make no men- 
tion of instruments eo nomine, but the expression is, in effect, 
that all transfers of any interest in land must be recorded, they 
have been held to embrace mortgages and assignment of mort- 
gages,^" equitable mortgages,^" agreement for extension of a 
mortgage," an instrument by a first mortgagee waiving his pri- 
ority in favor of a subsequent incumbrancer,^^ mortgages of 
school certificates,^^ mortgage of a leasehold estate,'* leases and 
assignment of leases,^^ deed of gift,'^ deed of assignment," 
revocation of a power of attorney,''^ grant of an easement or 

28 Hill V. Meeker, 24 Conn. 211; si Kraft v. Holzman, 206 111. 548, 

Hancock v. Beverly, 6 B. Mon. (Ky.) 69 N. E. S74. 

531- , ^ ,, ^, 32 ciason V. Shepherd, 6 Wis. 369. 

27 Bush V. Golden, 17 Conn. S94; ^s Dodge v. Silverthorn, 12 Wis. 
Shaw V. Wilshire, 65 Maine 485 ; Hen- 644. 

derson v. Pilgrim, 22 Tex. 464. ^iLembeck & Bretz Eagle Brewing 

28 Ames V. Miller, 65 Nebr. 264, 91 Co. v. Kelly, 63 N. J. Eq. 401 5t Atl 
N. W. 250. 794. 

ssHassey v. Wilke, 55 Cal. 528; ^s guch seems to be the case in 

Ames V. Miller, 65 Nebr. 204, 91 N. Alabama, Arkansas, Arizona, Alaska, 

W. 250; Decker v. Boice, 83 N. Y. Colorado, Georgia, Iowa, Illinois, 

^n5 ' ^5'¥t°"t.'^- Thomas, 180 N. Y. Kansas, Michigan, Minnesota, Miss- 

483, 73 N. E. 484; Merrill v. Luce, issippi, Missouri, Nevada, New Mex- 

t \P.^^- ^^'^' ^^ ^- "^- ''^' ^^ ^™- '^'^°' Oregon and Texas. And see 

,„^^- T , . Grouse v. Mitchell, 130 Mich. 347, 90 

3" Pierce v. Jackson, 56 Ala. 599 ; N. W. 32, 97 Am St 479 . 

Putnam v. White, 76 Maine 551 ; Al- so Foster v. Mitchell, IS Ala. 571. 

derson v. Ames, 6 Md. 52 ; Edwards 37 Reeves v. Estes, 124 Ala. 303, 26 

V. McKernan, 55 Mich. 520, 22 N. W. So. 935 ; Steifel v. Barton 73 Md. 

20; Glamorgan v. Lane, 9 Mo. 446; 408, 21 Atl. 63; Eggleston v Harri- 

Hunt V. Johnson, 19 N. Y. 279 ; In son, 61 Ohio St. 397 55 N E 993 

re Russell's Appeal, 15 Pa. St. 319; ss Arnold v. Stevenson, 2 Nev 234. 
Smith V. Neilson, 13 Lea (Tenn.) 461. 



145 PUBLIC RECORDS § 119 

right of way/° receipt given for an advancement,*" a written rati- 
fication by an adult of a conveyance made by him during minor- 
ity/^ contracts of sale of real estate,^^ title bonds,*^ party wall 
contracts/* certificate of sale issued to a purchaser at an execu- 
tion or foreclosure sale,*^ an instrument acknowledging the non- 
payment of purchase-money and giving the vendor the right of 
possession until payment,*'^ an assignment of purchase-money 
notes secured by a lien,*' an instrument by a partner releasing his 
interest in partnership real estate.*' 

Where a statute applies in terms to the recording of deeds by 
natural persons it has been held to include deeds of corporations 
also.*' The statutes of some states require maps and plats of 
land to be recorded.^" Also wills are sometimes required to be 
recorded like deeds and other conveyances inter vivos.^^ But in 
many states there is no such requirement.^^ But the courts have 
refused to extend the acts by construction so as to embrace such 
instruments as a bond for the support of a mortgagee,^^ an assign- 
ment of an unrecorded contract for the sale of land,^* a bond for 
title and writings assigning it,°^ or an assignment of a land cer- 
tificate.'" 

Patents from the United States are not within the purview of 
recording acts unless they are specially included;" the original 

3" Prescott V. Beyer, 34 Minn. 493, «« Melross v. Scott, 18 Ind. 250. 
26 N. W. IZ; Taylor v. Albermarle «? First Nat. Bank v. Edgar, 65 

Steam Nav. Co., 105 N. Car. 484, 10 Nebr. 34, 91 N. W. 404. 
S. E. 897 ; Parker v. Meredith ^s Pegram v. Owens, 64 Tex. 475. 
(Tenn.), 59 S. W. 167. ^^ Sheehan v. Davis, 17 Ohio St. 

*° Pinckney v. Pinckney, 114 Iowa 571. 
441, 87 N. W. 406. =o Bauman v. Ross, 167 U. S. 548, 

" Black V. Hills, 36 111. 116, 87 Am. 17 Sup. Ct. 966, 42 L. ed. 270. 
Dec. 224; Weaver v. Carpenter, 42 "Harrison v. Weatherly, 180 111. 

Iowa 343. 418, 54 N. E. 237 ; Evansville Ice and 

*2 Kent V. Williams, 146 Cal. 3, 79 Cold Storage Co. v. Winsor, 148 Ind. 

Pac. 527; Baltimore & O. S. W. R. 682, 48 N. E. 592; Keith v. Keith, 97 

Co. v. Brubaker, 217 111. 462, 75 N. E. Mo. 223, 10 S. W. 597; Lovejoy v. 

523 ; McPheeters v. Ronning, 95 Minn. Raymond, 58 Vt. 509, 2 Atl. 156. 
164, 103 N. W. 889. s2 Currell v. Villars, 72 Fed. 330. 

^^McFarran v. Knox, 5 Colo. 217; s^Noyes v. Sturdivant, 18 Maine 

De Wolf V. Pratt, 42 111. 198 ; Macrae 104. 

V. Goodbar, 80 Miss. 315, 31 So. 812; =* Early Times Distillery Co. v. 

Hunt V. Johnson, 19 N. Y. 279; Scar- Zeiger, 11 N. Mex. 221, €1 Pac. 734. 
borough V. Arrant, 25 Tex. 129. =5 Cochran v. Adler, 121 Ala. 442, 

** Parsons v. Baltimore Bldg. &c. 25 So. 761. 
Assn., 44 W. Va. 335, 29 S. E. 999, ^e palkner v. Jones, 12 Ala. 165. 
67 Am. St. 769. " Rhinehart v. Schuyler, 7 111. 473 ; 

^5 Webber v. Kastner, 5 Ariz. 324, David v. Rickabaugh, 32 Iowa 540; 

S3 Pac. 207; Raymond v. Pauli, 21 Sands v. Davis, 40 Mich. 14; Evitts 

Wis. 531. v. Roth, 61 Tex. 81; Sayward v. 

10 — Thomp. Abstr. 



§ 120 TITLES AND ABSTRACTS 146 

record in the general land office from which they are issued be- 
ing held notice to the world of their •existence.''® 

It is provided by statute in nearly all the states, though in 
somewhat varying terms, that a power of, attorney to convey 
or incumber real estate must be executed, acknowledged and 
recorded in the same manner that conveyances are, and the 
record of the deed or other instrument without the power has no 
legal effect.'^" While modern recording acts generally include 
powers of attorney,"" yet it would seem that they need not be re- 
corded where there are no provisions specifically enumerating 
them and making them subject to the operation of the acts."^ 

§ 120, Proper execution and acknowledgment as a pre- 
requisite to recording. — The first requisite to the valid record 
of any instrument affecting the title of real estate is that it shall 
be executed according to law. If defectively executed, it is not 
generally entitled to be recorded ; but even if it is recorded it is 
not constructive notice, so as to vest in a grantee, mortgagee or 
other incumbrancer, any interest in the premises as against a sub- 
sequent purchaser in good faith without notice. '^^ The record- 
ing acts generally prescribe certain formalities in the execution 
of such instruments which must be complied with to entitle them 
to be recorded. Thus the real estate to be conveyed or incum- 
bered must be described so as reasonably to enable subsequent 
piirchasers or incumbrancers to identify the land; otherwise the 
record of the instrument is not constructive notice."^ It has been 

Thompson, 11 Wash. 706, 40 Pac. 379. Maine 423; Cockey v. Milne, 16 Md. 

But see Coles v. Berryhill, 37 Minn. 200; Blood v. Blood, 23 Pick. (Mass.) 

56, 33 N. W. 213. 8 ; Galpin v. Abbott, 6 Mich. 17 ; Co- 

58 Lomax v. Pickering, 165 111. 431, gan v. Cook, 22 Minn. 137 ; Bass v. 

46 N. E. 238 ; Stevens v. Geiser, 71 Estill, 50 Miss. 300 ; Bishop v. Schnei- 

Tex. 140, 8 S. W. 610. der, 49 Mo. 472, 2 Am. Rep. S33; 

ssCarnall v. Duvall, 22 Ark. 136; Fryer v. Rockefeller, 63 N. Y. 268;, 

Graves v. Ward, 2 Duv. (Ky.) 301; Todd v. Outlaw, 79 N. Car. 235; 

Lowry v. Harris, 12 Minn. (Gil. 166) White v. Denman, 1 Ohio St. 110; 

255. McKean & Elk Land Imp. Co. v. 

eo Gratz v. Land &c. Co., 82 Fed. Mitchell, 35 Pa. St. 269, 78 Am. Dec. 

381; Hager v. Spect, 52 Cal. 579; 335; Holliday v. Cromwell, 26 Tex. 

Hughes V. Wilkinson, 37 Miss. 482. 188 ; Pope v. Henry, 24 Vt. 560 ; Prin- 

ei Valentine v. Piper, 22 Pick, gle v. Dunn, 37 Wis. 449, 19 Am. Rep. 

(Mass.) 85, 33 Am. Dec. 715. 772. 

82 McMinn v. O'Connor, 27 Cal. «3 Bright v. Buckman, 39 Fed. 243 ; 

238; Sumner v. Rhodes, 14 Conn. Adams v. Edgerton, 48 Ark. 419, 3 

135; Keech v. Enriquez, 28 Fla. 597, S. W. 628; Chamberlain v. Bell, 7 

10 So. 91 ; Herndon v. Kimball, 7 Ga. Cal. 292, 68 Am. Dec. 260 ; Rodgers 

432, 50 Am. Dec. 406 ; Barney v. Lit- v. Kavanaugh, 24 111. 583 ; Murphy v. 

tie,' 15 Iowa 527 ; Brown v. Lunt. 37 Hendricks, 57 Ind. 593 ; Peters v. 



147 PUBLIC RECORDS § 120 

held, however, that a deed, though void on its face, is nevertheless 
entitled to record.^* 

Registration is constructive notice only of what appears on the 
face of the instrument. It is not notice of what one might pos- 
sibly ascertain by such inquiries as an examination of the record 
might induce a prudent man to make.°° But when a descrip- 
tion in a deed or mortgage is erroneous, and it is apparent what 
the error is, the record is constructive notice of the deed or mort- 
gage of the land intended to be described.^* If the description is 
such as reasonably to put one upon inquiry as to the property in- 
tended to be conveyed or mortgaged, and to lead him to ascertain 
what that property is, the record will afford constructive notice 
of a conveyance or mortgage of that property.*'^ 

The record of a deed without the signature of the grantor is 
not constructive notice-; and this is so though the instrument was 
in fact signed, but the signature was omitted by mistake from the 
record.*^ A signature is binding if made at the proper time and 
duly acknowledged, whether signed by the person owning the 
same, or by some one else by his consent."* 

Conveyances must generally be executed under seal to entitle 
them to be recorded.'^" In several states the use of a seal has been 
wholly dispensed with by statute.'^ In others a scroll is given 
the same effect as a seal.''^ But where the use of a seal or of its 
equivalent is required, and an instrument purporting to be a mort- 
gage is not executed under a seal, it is not entitled to be re- 
corded; and if it be copied in the records, it does not impart notice 

Ham, 62 Iowa 656, 18 N. W. 296; derson v. Baughman, 7 Mich. 69, 74 

Green v. Witherspoon, il La. Ann. Am. Dec. 699; Knox Co. v. Brown, 

751; Barrow v. Baughman, 9 Mich. 103 Mo. 223, IS S. W. 382; Tousley 

213; Bailey v. Galpin, 40 Minn. 319, v. Tousley, S Ohio St. 78; Nye v. 

41 N. W. 1054 ; Eggleston v. Watson, Moody, 70 Tex. 434, 8 S. W. 606. 

S3 Miss. 339; Banks v. Ammon, 27 es shepherd v. Burkhalter, 13 Ga. 

Pa. St. 172 ; Waters v. Spofford, 58 443, 58 Am. Dec. 523. 

Tex. 115; Warren v. Syme, 7 W. Va. 69 Johnson v. Van Velsor, 43 Mich. 

474. 208, 5 N. W. 265. , 

6*Bliss V. Tidrick, 25 S. Dak. 533, ™ Hebron v. Centre Harbor, 11 N. 

127 N. W. 852, Ann. Cas. 1912C 671. H. 571 ; Evans v. Mengel, 3 Pa. St. 

"^McLouth V. Hurt, 51 Tex. 115. 239. 

"^ Anderson v. Baughman, 7 Mich. '^i This is true in Alabama, Ar- 

69, 74 Am. Dec. 699; Wolfe v. Dyer, kansas, California, Colorado, Indiana, 

95 Mo. 545, 8 S. W. 551 ; People v. Iowa, Kansas, Kentucky, Louisiana, 

Storms, 97 N. Y. 364; Tousley v. Michigan, Mississippi, Montana, Ne- 

Tousley, S Ohio St. 78. braska, Nevada, North Dakota, Ohio, 

6' Tranum v. Wilkinson, 81 Ala. Oklahoma, South Dakota, Tennessee, 

408, 1 So. 201 ; Citizens' Nat. Bank v. Texas and Wyoming. 

Dayton, 116 111. 257, 4 N. E. 492 ; Rob- " i„ the following states the seal is 

erts V. Bauer, 35 La. Ann. 453 ; An- required but a scroll answers for a 



§ 120 TITLES AND ABSTRACTS 148 

to subsequent purchasers or incumbrancers.'^ A seal need not be 
copied in the record. All that is necessary is, that the record 
should afford some indication that the instrument was under 
seal.'* 

The record of a deed not executed in compliance with a stat- 
ute requiring that it shall be attested by two witnesses is not con- 
structive notice.'^ 

An acknowledgment or proof of the instrument before some 
officer is, in most of the states, an essential prerequisite to record- 
ing. Without an acknowledgment, or with one that is defective, 
the record of the instrument is unauthorized and is not construct- 
ive notice.'" The registration of a conveyance, acknowledged or 
proved before an officer who has not been duly appointed or quali- 
fied, has no effect in rendering it operative against subsequent 
purchasers." When a statute requires that a certificate of the 
official character of the officer before whom the acknowledgment 
was made shall accompany the certificate of acknowledgment, the 
filing of the instrument for record without the latter certificate 
does not constitute a record of it. Upon the same principle, also, 
when a statute requires that the ofiicer shall certify that he is per- 
sonally acquainted with the party making the acknowledgment, 
the omission so to do renders null the acknowledgment and the 
record." The requirement must be substantially complied with.'' 

seal: Arizona, Delaware, Florida, Blood v. Blood, 23 Pick. (Mass.) 80; 

Georgia, Idaho, Illinois, Maryland, Parret v. Shaubhut, 5 Minn. 323, 80 

Minnesota, Missouri, New Jersey, Am. Dec. 424; Bass v. Estill, 50 Miss. 

New Mexico, North Carolina, Ore- 300 ; Bishop v. Schneider, 46 Mo. 472, 

gon, Pennsylvania, Utah, Virginia, 2 Am. Rep. 533; Irwin v. Welch, 10 

Washington, West Virginia and Wis- Nebr. 479, 6 N. W. 753 ; Frost v. 

consin. Beekman, 1 Johns. Ch. (N. Y.) 288; 

73Racomllat v. Sansevain, 32 Cal. Todd v. Outlaw, 79 N. Car. 235; 

376; Arthur v. Screven, 39 S. Car. White v. Denman, 1 Ohio St. 110; 

n, 17 S. E. 640. Fleschner v. Sumpter, 12 Ore. 161, 

7* Smith V. Dall, 13 Cal. 510; Sum- 6 Pac. 506; Woolfolk v. Graniteville 

mer v. Mitchell, 29 Fla. 179, 10 So. Mfg. Co., 22 S. Car. 332 ; Hill v. Tay- 

56, 14 L. R. A. 815, 30 Am. St. 106. lor, 11 Tex. 295, 14 S. W. 366; Wood 

^5 Gardner v. Moore, 51 Ga. 268; v. Cochrane, 39 Vt. 544; Raines v. 

Thompson v. Morgan, 6 Minn. (Gil. Walker, 11 Va. 92; Cox v. Wayt, 26 

199) 292; Van Thorniley v. Peters, W. Va. 807; Girardin v. Lampe, 58 

26 Ohio St. 471 ; Potter v. Stransky, Wis. 267, 16 N. W. 614. In the fol- 

48 Wis. 235, 4 N. W. 95. lowing states acknowledgment is not 

JsDufphey v. Frenaye, 5 St. & P. a prerequisite to registration: Ala- 

(Ala.) 215 ; Jacoway v. Gault, 20 Ark. bama, Colorado, Connecticut, Illinois, 

190, 73 Am. Dec. 494; Willard v. Michigan and Washington. 

Cramer, 36 Iowa 22 ; Meskimen v. " Worsham v. Freeman, 34 Ark 55. 

Day, 35 Kans. 46, 10 Pac. 14; Sitler ^s Kelsey v. Dunlap, 7 Cal. 160. 

V. McComas, 66 Md. 135, 6 Atl. 527; ^Ritter v. Worth, 58 N. Y. 627. 



149 PUBLIC RECORDS § 121 

The certificate of acknowledgment is not conclusive ; but when it 
IS correct in form, and is apparently executed by one authorized to 
act in the matter, and within his jurisdiction, it is sufficient to ad- 
mit the deed to record, and is prima facie good.*" Delivery is 
another incident necessary to giving effect to the conveyance even 
as to the parties to it." Although the deed be recorded, if it has 
not been delivered, but the delivery was authorized, a subsequent 
conveyance by the grantor, or a subsequent judgment against him, 
will take precedence.*^ Although a deed is of no effect until there 
has been a delivery of it to the grantee, yet if it is made for a good 
consideration, as, for instance, an existing debt and is filed for 
record without delivery, a subsequent acceptance of the deed has 
been held to ratify the making and recording of it, and to give 
it legal effect from the time of filing, as against intermediate in- 
cumbrancers.*^ 

§ 121. Books in which instruments must be recorded. — 

In most of the states all instruments relating to' the title to real 
estate are recorded in the same books of record, but in several 
states it is provided that all mortgages shall be recorded in sep- 
arate books kept for this purpose only.** A record not made in 
the proper book does not operate as constructive notice.*^ The 
record of a deed in the mortgage record is not constructive notice 
of the deed to subsequent purchasers.*^ 

Usage may determine the validity of a record. Thus, where 
mortgages of real and personal property are required to be re- 
corded in separate books, and a mortgage embracing both real 
and personal property is recorded only in the book of real estate 
mortgages it is held to be sufficiently recorded to be constructive 
notice of the lien on the personal property, if it appear that it is 
the custom to record such mortgages in this manner without 
making a double record. But where a mortgage covers both 

8° People V. Snyder, 41 N. Y. 397. 388 ; Baker v. Lee, 49 La. Ann. 874, 

81 Freeman v. Peay, 23 Ark. 439; 21 So. 588; Parsons v. Lent, 34 N. J. 
Goodwin V. Owen, 55 Ind. 243 ; Ward Eq. 67 ; Deane v. Hutchinson, 40 N. 
V. Small, 90 Ky. 198, 12 Ky. L. 58, 13 J. Eq. 83, 2 Atl. 292 ; Van Thorniley 
S. W. 1070 ; Maynard v. Maynard, 10 v. Peters, 26 Ohio St. 471. 

Mass. 452, 6 Am.. Dec. 146. ^e Neslin v. Wells, 104 U. S. 428, 26 

82 Woodbury v. Fisher, 20 Ind. 387, L. ed. 802 ; Colomer v. Morgan, 13 
83 Am. Dec. 325. La. Ann. 202; Abraham v. Mayer, 7 

83 Carnall v. Duval, 22 Ark. 136. Misc. 250, 27 N. Y. S. 264, 58 N. Y. 
8* See statutes of various states. St. 29 ; In re Luch's Appeal, 44 Pa. 
8= Kent V. Williams, 146 Cal. 3, 79 St. 519 ; Drake v. Reggel, 10 Utah 

Pac. 527; Gossett v. Tolen, 61 Ind. 376, 11 Pac. 583. 



§ 121 TITLES AND ABSTRACTS 150 

realty and personalty the recording of it in the record of personal 
property mortgages does not constitute a compliance with the re- 
quirement of the statute concerning the recording of the real 
estate mortgages.*' The record of a deed of standing timber 
made in a book called "Miscellaneous Records," in which it is 
customary in the state to record exceptional instruments offered 
for record, such as contracts of sale, leases, and various other 
kinds of property, is constructive notice of the rights of the par- 
ties claiming under such deed/* The record of an assignment for 
the benefit of creditors, embracing real property, is not void as to 
nonconsenting creditors because it was not transcribed by the re- 
corder in the proper book of records, but was transcribed in a 
book marked "Miscellaneous," and the only question that can 
arise by reason of the improper record is as to its effect on subse- 
quent purchasers and mortgagees in good faith. As to them the 
record would seem to be good under a statute providing that an 
instrument is deemed to be recorded when it is deposited in the 
recorder's office with the proper officer for record.** When it is 
provided that mortgages shall be recorded in books kept for that 
purpose separate from other instruments, a mortgage recorded 
as a deed is not effectual as against subsequent bona fide pur- 
chasers or mortgagees even if the mortgage be in form an abso- 
lute deed, but intended as security for a loan of money."" But it 
has been held that the record of the mortgage, in form a deed, in 
the book of deeds gives notice."^ If a mortgage is not recorded in 
the mortgage books, and it can not be found by the index to these 
books, it therefore is not regarded as properly recorded."' Such 
an instrument is of course valid as between the parties,"' and, 
though the record is a nullity, it becomes operative in case the 
mortgagee afterward acquires the equity of redemption."* Where 
the statute provides for the keeping of separate books for the 
recording of deeds and mortgages, it is held that a lease recorded 

87 Harriman v. Woburn Electric man, 52 Pa. St. 359, 91 Am. Dec. 163 ; 
Light Co., 163 Mass. 85, 39 N. E. Knowlton v. Walker, 13 Wis. 264. 
1004. 91 Kennard v. Mabry, 78 Tex. 151, 

88 Mee V. Benedict, 98 Mich. 260, 14 S. W. 272 

57 N. W. 175, 22 L. R. A. 641, 39 Am. 82 In re Luch's Appeal, 44 Pa. St. 

St. 543. 519. 

83 Watkins v. Wilhoit, 104 Cal. 395, as James v. Moray, 6 Johns. Ch. (N. 

38 Pac. 53. Y.) 417, 2 Cow. 246, 14 Am. Dec. 475. 

»» Colomer v. Morgan, 13 La. Ann. 9* Grellet v. Heilshorn, 4 Nev. 526; 

202; Warner v. Wmslow, 1 Sandf. Parsons v. Lent, 34 N. J. Eq. 67. 
Ch. (N. Y.) 430; Calder v. Chap- 



151 PUBLIC RECORDS § 122 

in a miscellaneous record and indexed as a deed, was not con- 
structive notice to a subsequent mortgagee of a mortgage clause 
contained therein.^^ 

A subsequent purchaser or mortgagee who has actual notice of 
the mortgage which is improperly recorded, as an absolute con- 
veyance, qf course takes a title subject to such mortgage, just 
as he would if the mortgage had not been recorded at all. A stat- 
ute which is merely directory to the recorder in this respect would 
not invalidate a record of the mortgage not being in the record 
books specially used for mortgages.'" Except in states whose 
statutes require a different construction, the record of a convey- 
ance in the form of an absolute deed, in a book kept for the re- 
cording of deeds ought to be held to impart effectual notice of 
the rights or interests conveyed, although a statute requires mort- 
gages to be recorded, in separate books.'^ Where an instrument 
was copied into a book that had not been in use for recording 
purposes, for many years, it was held that the book was improper 
for that purpose and that the instrument was not duly recorded.'* 

The filing of a mechanic's lien creates a lien, but where the law 
provides that it shall be recorded in the "Miscellaneous Record," 
the "Mechanic's Lien Record" would not be competent record 
evidence to take the place of the original instrument.'" Where a 
recorder records a mechanic's lien in the wrong book, the defect 
can be cured.^ 

§ 122. Time of recording. — In the usual course of record- 
ing each instrument deposited with the recording officer is imme- 
diately indorsed with an official time stamp or other memoran- 
dum of the fact and time of filing, and placed among the acces- 
sible files of newly-deposited and untranscribed instruments until 
it can be copied in the records at length. In due order and course 
of time, sometimes specified by statute, the recorder enrolls it 
in the record books. The record is notice from the time of filing 
the deed for record. It is sometimes provided by statute that a 
deed shall be deemed to be recorded when it is filed for record, or 
noted in an entry book or index by the recorder as received. But, 

85 Gordon v. Constantine Hydraulic s^ Sawyer v. Adams, 8 Vt. 172, 30 
Co., 117 Mich. 620, 16 N. W. 142. Am. Dec. 459. 

«« Smith V. Smith, 13 Ohio St. 532. s" Adams v. Buhler, 131 Ind. 66, 

"Kennard v. Mabry, 78 Tex. 151, 30 N. E. 883. 
14 S. W. 272. 1 Wilson v. Logue, 131 Ind. 191, 30 

N. E. 1079, 31 Am. St. 426. 



§ 122 TITLES AND ABSTRACTS 152 

aside from any express statutory provision, the judicial inter- 
pretation of the effect of the filing is generally the same.- The 
record as notice dates from the moment the instrument was left 
for record, and was indorsed by the recorder and entered upon the 
index or entry book, although it was not actually spread upon 
the record for months, or for any length of time afterward;^ or 
be lost and not recorded at all,* though according to some author- 
ities the record is constructive notice from the time of filing the 
instrument for record only in case it is subsequently copied ac- 
curately upon the record book.^ The entry in the index or entry 
book is constructive notice until the instrument is spread in full 
upon the record. It. may be kept in the office and referred to 
until it is transcribed, and the original instrument so filed is 
notice to all the world." When it is spread upon the record, how- 
ever, it is notice of only what appears upon the record.'' 

As to the time when an instrument was left for record, the cer- 
tificate of the recorder is conclusive as between the grantee or 
mortgagee and a subsequent purchaser or creditor who has at- 
tached the mortgaged land subsequently to the time stated in the 
certificate.^ If the recording officer has failed to note the time of 
receiving an instrument for record, this may be shown by parol 
evidence. The requirement that the recording officer shall note 

2 Leslie v. Hinson, 83 Ala. 266, 3 Am. Dec. 393 ; St. Croix Land & L. 

So. 443 ; Oats v. Walls, 28 Ark. 244 ; Co. v. Ritchie, Ti Wis. 409, 41 N. W. 

Watkins v. Wilhoit, 104 Cal. 395, 35 345. 

Pac. 646 ; Lewis v. Hinman, 56 Conn. 3 Kiser v. Heuston, 38 111. 252 ; Sin- 

55, 13 Atl. 143 ; Haworth v. Taylor, clair v. Slawson, 44 Mich. 123, 6 N. 

108 111. 275 ; Kessler v. State, 24 Ind. W. 207, 38 Am. Rep. 235 ; In re 

313; Lee v. Bermingham, 30 Kans. Woods' Appeal, 82 Pa. St. 116; Crews 

312, 1 Pac. 1Z\ Bank of Kentucky v. v. Taylor, 56 Tex. 461. 

Haggin, 1 A. K' Marsh. (Ky.) 306; *Lee v. Bermingham, 30 Kans. 312, 

Gillespie v. Rogers, 146 Mass. 610, 16 1 Pac. 73 ; Perkins v. Strong, 22 Nebr. 

N. E. 711; Sinclair v. Slawson, 44 725, 36 N. W. 292 ; Vaughn v. Moore, 

Mich. 123, 6 N. W. 207, 38 Am. Rep. 89 Va. 925, 17 S. E. 326. 

235; Mangold v. Barlow, 61 Miss. = Ritchie v. Griffiths, 1 Wash. St. 

593, 48 Am. Rep. 84; Bishop v. 429, 25 Pac. 341, 12 L. R. A. 384, 22 

Schneider, 46 Mo. 472, 2 Am. Dec. Am. St. 155. 

533; Perkins v. Strong, 22 Nebr. 725, « Nichols v. Reynolds, 1 R. I. 30, 36 

36 N. W. 292 ; Mutual Life Ins. Co. Am. Dec. 238 ; Bigelow v. TopHff, 25 

V. Dake, 87 N. Y. 257 ; Davis v. Whit- Vt. 273, 60 Am, Dec. 264. 

aker, 113 N. Car. 279, 19 S. E. 699, 41 i Potter v. Dooley, 55 Vt. 512. 

Am. St. 793 ; Bercaw v. Cockerill, 20 s Hatch v. Haskins, 17 Maine 391 

Ohio St. 163; Gladihg v. Frick, 88 Adams v. Pratt, 109 Mass. 59; Bui 
Pa. St. 460; Woodward v. Boro, 16 ' lock v, Wallingford, 55 N. H. 619, 

Lea (Tenn.) 678 ; Lignoski v. Crook- Edwards v. Barwise, 69 Tex. 84, 6 

er, 86 Tex. 324, 24 S. W. 278; Hors- S. W. 677. 
ley V. Grath, 2 Grat. (Va.) 471, 44 



153 PUBLIC RECORDS § 122 

the time ©f recording an instrument is directory merely, when 
there is no question of rights depending on priority of record. 
His failure to perform his legal duty does not defeat the effect of 
the delivery for record." When the time of receiving an instru- 
ment for record is entered in the index book and shovirs upon its 
face that it was not made at the time of such reception, the pre- 
sumption of the correctness of the registrar's entry is lost," and 
parol evidence is admissible to show when the deed was actually 
received for record. The filing of a mortgage for record affords 
no notice if the deed be withdrawn before it is recorded.^^ 

If the statute is such that no notice is imparted until the con- 
veyance is actually spread upon the record, though when this is 
done the notice relates back to the time of the deposit of the deed 
for record, where there is a conflict of dates between the time of 
the actual record as it appears upon the record book and the con- 
structive record by indorsement made upon the deed when it was 
deposited, the recorded date prevails over the true date.^^ As 
between two mortgagees whose mortgages are executed and re- 
corded on the same day, that which was first delivered for rec- 
ord has priority,^^ and parol evidence is admissible to show which 
was first deposited for record.^* To ascertain which is prior, the 
fractional parts of a day are considered.^^ In case no entry is 
made upon the record of the time of the recording of the mort- 
gage, when the statute required no such entry, and it appears 
from the record to have been recorded at an early day, it will be 
presumed that the record was made within the time required by 
law after the execution of it.^" Where a statute provides that a 
mortgage shall take effect from the time of its deposit for record, 
it has been held that a mortgage which has not been deposited for 
record with the proper officer before the assignment of the same 
property by the mortgagor for the benefit of his creditors takes 
effect, such mortgage is not a valid lien on the property as against 
the assignee or the creditors, and does not become so by being 

" Thorn v. Mayer, 12 Misc. 487, 33 is Brookfield v. Goodrich, 32 111. 

N. Y. S: 664, 67 N. Y. St. 389. 363. 

1" Hay V. Hill, 24 Wis. 235. i* Spaulding v. Scanland, 6 B. Men. 

"Lawton v. Gordon, 37 Cal. 202; (Ky.) 353. 

Worcester Nat. Bank v. Cheeney, 87 ^^ Lemon v. Staats, 1 Cow. (N. Y.) 

111. 602; Clarmorgan v. Lane, 9 Mo. 592. 

442, 16 Hall V. Tunnell, 1 Houst. (Del.) 

12 Donald v. Beals, 57 Cal. 399. 320. 



§ 123 TITLES AND ABSTRACTS 154 

subsequently recorded/^ A mortgage may be recorded after the 
death of the mortgagor, if he has in his lifetime made delivery of 
it.^^ It has been held that a statute extending the time for record- 
ing deeds is valid/" 

§ 123. Time allow^ed by statute for recording deeds and 
other instruments. — The recording acts of the several states 
provide that deeds and mortgages shall be recorded v^rithin a 
specified time after execution. Thus in Alabama unconditional 
deeds and mortgages to secure debts, created at the date thereof, 
are void as to purchasers, mortgagees and judgment creditors 
without notice, unless recorded within thirty days from date.^" 
But under a subsequent statute mortgages to secure debts, created 
at the date thereof, are made void as to purchasers, mortgagees 
and judgment creditors, without notice, unless recorded before 
the accrual of the right of such purchasers, mortgagees or judg- 
ment creditors.^^ 

In Delaware a mortgage for purchase-money recorded within 
thirty days after its execution has precedence of any judgment 
or other lien of prior date. Other deeds and mortgages must be 
recorded within three months after delivery in order to avail 
against a subsequent creditor, mortgagee or purchaser for a val- 
uable consideration without notice.^^ 

In Georgia, deeds must be recorded within one year and mort- 
gages within thirty days from date, or they will be postponed to 
other liens or purchases made prior to the record without notice 
of the unrecorded conveyances. The record of a mortgage not 
made within the time prescribed is notice from the time of rec- 
ord.^= 

In Indiana, deeds and mortgages not recorded within forty-five 
days from their execution are fraudulent and void as against sub- 
sequent , purchasers, lessees, or mortgagees in good faith and 
a valuable consideration.^* But under a subsequent statute of 
that state deeds and mortgages take priority according to the time 

I'Betz V. Snyder, 48 Ohio St. 492, 21 Alabama Code (1907), i 3383. 
28 N. E. 234, 13 L. R. A. 235. 22 Del. Rev. Code (1874), pp. 504, 

18 Haskell V. Bissell, 11 Conn. 174; 505, § 21; Del. Laws, 1881, chap. 520; 

Gill V. Finney, 12 Ohio St. 38. Del. Laws 1883, p. 509. 

1" Spivey V. Rose, 120 N. Car. 163, 2= Ga. Code 1882, §§ 1959, 1960, 

26S. E. 701. 2705; Ga. Civ. Code (1910), § 3260. 

2» Alabama Code (1896), §§ 1005, 2* Ind. Rev. Stat. (1888), §§ 2931, 

1016. 2932. 



155 PUBLIC RECORDS § 123 

of filing for record, and are fraudulent and void as to subsequent 
purchasers or mortgagees in good faith for a valuable considera- 
tion, having their deeds or mortgages first recorded.^' 

In Kentucky, deeds other than deeds of trust and mortgages by 
residents of the state, sixty days from date; by persons residing 
out of the state in the United States, four months; by persons 
out of the United States, twelve months.^" 

In Maryland, deeds and mortgages, within six months from 
date." 

In Oregon, deeds and mortgages must be. recorded within five 
days after execution.^® 

In Pennsylvania, deeds executed within the state must be re- 
corded within six months after execution, but if executed with- 
out the state, they must be recorded within twelve months after 
their execution. ^^ But by recent statute, applicable to Philadel- 
phia alone, deeds and other conveyances are valid as against sub- 
sequent purchasers only from the date of record.^" 

In South Carolina, deeds, deeds of trust and mortgages, and 
statutory liens are valid, so as to affect subsequent creditors or 
purchasers for valuable consideration without notice, only when 
recorded within forty days from the time of execution. ^^ The 
time for recording such instruments have been limited in a recent 
statute to ten days.*^ 

In Virginia, any conveyance recorded within ten days from the 
day of its acknowledgment shall, unless it be a mortgage, or a 
deed of trust not in consideration of marriage, .be as valid as to 
creditors and subsequent purchasers as if recorded on the day of 
acknowledgment.^^ 

With the exception of the above statutes, however, there is a 
general uniformity to the effect that the registration of deeds and 
mortgages is effective as constructive notice from the time only 
when they are filed for record. The tendency is decidedly toward 
abolishing the provisions giving a specified time to record convey- 
ances. The effect of provisions allowing time for the recording 

2=Ind. Burns' Ann. Stat. (1914), 2" Pa. Purdon's Dig. 190S, p. 1181, 
§ 3962. § 155. 

28 Ky. Gen. Stat. 1888, p. 315, § 14; 3» Purdon's Ann. Dig., p. 2110, i 5. 

But see Ky. Stat. (1909), §i 496, 497. ^i s. Car. Civ. Code (1902), § 2456. 

"Md. Ann. Code (1911), art. 21, 32 S. Car. Code (1912), § 3542. 

§§ 13-lS. 33 Va. Code (1904), § 2467. 

28 Ore. Laws (1910), § 7129. 



§ 123 TITLES AND ABSTRACTS 156, 

of instruments after execution is not to invalidate the conveyance 
or mortgage, as between the parties, if not recorded within the 
time specified. It is admissible in evidence and is an equitable 
lien, although not so recorded.^* The failure to comply with this 
requirement only goes to the effect of the conveyance as to sub- 
sequent purchasers. As to purchasers whose conveyances are 
registered before a deed recorded after the expiration of the lim- 
ited time, the date is ineffectual.^^ Of two conveyances of equal 
equity, recorded within the time limited after execution, that 
which is first recorded has priority.^"^ The effect of these pro- 
visions is that the record, when made within the prescribed time, 
relates back to the delivery of the instrument, and gives it prior- 
ity over an instrument of subsequent date or delivery, although 
this has already been recorded.^^ But the record will not relate 
back to the date of the delivery of the instrument if this was not 
then completely executed, ready to be recorded. It will not so 
relate back in case the deed was not attested and acknowledged 
as required by statute to entitle it to be recorded.^^ A record 
made after the prescribed time operates as notice only from the 
time of delivery of the instrument for record.^" As between con- 
veyances neither of which is recorded within the prescribed time, 
the ordinary rule of priority of record prevails, and preference is 
given to the instrument first recorded.*" 

The terms of the statute may determine the question of prior- 
ity between instruments not recorded within the prescribed time. 
If the second deed is executed after the first deed has been re- 
corded, though not within the time limited, the first deed has pri- 
ority." If the second deed be made before the first deed is re- 
corded and the second deed be recorded within the time limited, 

3* Charter v. Graham, 56 111. 19; =8 White v. Magarahan, 87 Ga. 217, 

Sixth Ward Bldg. Assn. v. Wilson, 13 S. E. 509. 

41 Md. 506; Plume v. Bone, 13 N. J. 39 DeLane v. Moore, 14 How. (U. 

L- 63 S.) 253, 14 L. ed. 409; Adair v. Davis, 

25 Cowan V. Green, 2 Hawks (N. 71 Ga. 769; Gilchrist v. Gough, 63 

Car.) 384. Ind. 576, 30 Am. Rep. 250; Harding 

36 Wood V. Lordier, 115 Ind. 519, v. Allen, 70 Md. 395, 17 Atl. 377; Mc- 

18 N E. 34 ; Den v. Roberts, 4 N. J. Mamee v. Huckabee, 20 S. Car. 190. 

L. 315 ; Dungan v. American Life Ins. "o Reasoner v. Edmundson, 5 Ind. 

&c. Co., 52 Pa. St. 253. 393 ; Fleschner v. Sumpter, 12 Ore. 

,.n' Cl?''''^'^^'^^^'*'=' 12 P«'- <^U. S.) 161, 6 Pac. 50b; Collins v. Aaron, 162 

178, 9 L. ed. 1046 ; Betz v. Mullin, 62 Pa. St. 539, 29 Atl. 724. 

Ala. 365 ; Nichols v. Hampton, 46 Ga. ^i Adair v. Davis, 71 Ga. 769. 
253; Clairborne v. Holmes, 51 Miss. 
146. 



157 PUBLIC RECORDS § 124 

but the first deed be not so recorded, though recorded before the 
second deed, the second deed has priority by virtue of relation 
back to the time of its execution.*^ Such a provision is .a perni- 
cious one, and is a source of much more unfairness and fraud 
than it can possibly prevent. It particularly aims to the with- 
drawal of the protection of the registry law for the period al- 
lowed for registration. A purchaser is never sure of his own pri- 
ority until he has waited for the prescribed time to elapse after 
the recording of the deed to himself. 

§ 124* Place of recording. — ^The registration of instru- 
ments affecting the title to real estate must be made in the reg- 
istry district within which the land lies, which is generally a 
county.*^ But in New Hampshire, Rhode Island and Connecticut 
registration must be made in the town where the land lies. The 
fact, however, that a deed was not recorded in the county where 
the land lay is not evidence that'the grantor did not intend to con- 
vey lands lying therein, as it was not his duty to see to the record- 
ing.** In some of the new states in which there is territory which 
is not yet organized into counties, special provision is made for 
the recording of deeds of lands, lying within such unorganized 
territory, as by providing that the record shall be made in the 
county in which such unorganized territory is attached for judi- 
cial purposes.*^ After the organization of a new county, a deed 
properly recorded under the law as it existed at the time of the 
record need not be recorded anew,*' for the record already made 
does not cease to be constructive notice;*^ but a deed that had 
been executed but not recorded at the time of the organization of 
a new county, should be recorded in that county.** An owner, the 
■ deed of whose land has once been properly recorded in the county 

*2Legerv. Doyle, 11 Rich. (S. Car.) "Black v. Skinner Mfg. Co., S3 

109, 70 Am. Dec. 240 ; McNamee v. Fla. 1090, 43 So. 919. 

Huckabee, 20 S. Car. 190. *5 Meagher v. Drury, 89 Iowa 366, 

*3 Lewis V. Baird, 3 McLean (U. 56 N. W. 531. 

S.) 56, Fed. Cas. No. 8316; Green v. *» Lumpkin v. Muncey, 66 Tex. 311, 

Green, 103 Cal. 108, 2,1 Pac. 188; 17 S. W. 732. 

Kennedy v. Harden, 92 Ga. 230, 18 «7 Thomas v. Hanson, 59 Minn. 274, 

S. E. 542; St. John v. Conger, 40 111. 61 N. W. 135. 

•535; Geer v. Missouri Lumber &c. *8 Astor v. Wells, 4 Wheat (U.S.) 

Co., 134 Mo. 85, 34 S. W. 1099, 56 466, 4 L. ed. 616 ; Garrison v. Haydon, 

Am. St. 489; Jencks v. Smith, IN. 1 J. J. Marsh. (Ky.) 222, 19 Am. Dec. 

Y. 90, 3 Denio 592, 4 How. Prac. 183 ; 70. 
Stewart v. McSweeney, 14 Wis. 468. 



§ 124 TITLES AND ABSTRACTS 158 

where the land lies, need not have it again recorded in a new or 
different county into which the land subsequently falls/" 

If the land embraced in the instrument is situated in more than 
one county, it should be recorded in each county in which any 
part of the land is situated.^" Under some statutes a deed con- 
veying land lying partly in two or more counties is allowed to be 
recorded in that county in which the greater part lies, and make 
such record full constructive notice.^^ 

It is intended that the registry laws shall enable a person inter- 
ested in the title to land to ascertain from the records of the 
county, or through the registry district within which the land is 
situated, what conveyances there are affecting that land. So the 
recording of a deed in a county other than that in which the land 
is situated does not operate as constructive notice/^ Thus where 
a new county had been created, and a grantee, not being advised 
of the change, recorded his deed in the old county instead of the 
new, the registration was regarded as worthless as notice.^' A 
subsequent change of the county boundaries by which the land be- 
came part of another county does not impose upon the grantee 
the duty of recording his deed again in such county. °* But if the 
county lines have never been established, the grantee must at his 
peril ascertain in what county the land is situated.^^ If a county 
is divided into two registry districts, a deed recorded in one dis- 
trict of land situated in the other is not properly recorded and the 
record is not constructive notice. When a deed already recorded 
is recorded in another county, a certificate of the recorder of the 
prior record is not a part of the deed, and need not be copied in 
the second record.^" Where, at the time of the execution of a 
deed, the land conveyed was in a county which was divided be- 

*9 Bivings v. Gosnell, 133 N. Car. Hayden, 60 Tex. 223 ; Perrin v. Reed, 

574, 45 S. E. 942. 35 Vt. 2 ; Stewart v. McSweeney, 14 

so Kennedy v. Harden, 92 Ga. 230, Wis. 468. 

18 S. E. 542 ; Woodbury v. Manlove, 63 Astor v. Wells, 4 Wheat. (U. S.) 

14 111. 213; Van Meter v. Knight, 32 466, 4 L. ed. 616. 

Minn. 205, 20 N. W. 142 ; Wells v. <^^ Beaver v. Frick Co., 53 Ark. 18, 

Wells, 47 Barb. (N. Y.) 416; In re 13 S. W. 134; Chambers v. Haney, 45 

Oberholtzer's Appeal, 124 Pa. St. 583, La. Ann. 447, 12 So. 621 ; Koerper v. 

17 Atl. 143. St. Paul &c. R. Co., 40 Minn. 132, 41 

siShiveley v. Gilpin, 23 Ky. L. N. W. 656; Melton v. Turner, 38 

2090, 66 S. W. 763. 81. 

52 Harper v. Tapley, 35 Miss. 506 ; =5 jo^es v. Powers, 65 Tex. 207. 

King V. Portis, 77 N. Car. 25 ; Haw- =« Stinnett v. House, 1 Posey Un- 

ley V. Bullock, 29 Tex. 216 ; Adams v. rep. Cas. (Tex.) 484. 



159 PUBLIC RECORDS § 125 

fore the deed was recorded, it should be recorded in the county 
in which the land is situated at the time of recording." 

A power of attorney to convey land must be registered in any 
county in which the grantor may at the time or thereafter have 
land to convey ; but the fact that it is recorded in one county, does 
not make a deed executed under the power recordable as to land 
in another county/* A deed of assignment embracing lands in a 
county other than that of the residence of the assignor must be 
recorded in such county."* 

§ 125. Effect of a record duly made. — The record of a 
deed or mortgage is constructive notice to all subsequent pur- 
chasers and mortgagees of the same interest or title from the 
grantor or from one deriving title from him.°° As to them the in- 
strument takes effect, not because of its prior execution, but by 
reason of its prior record. Subsequent purchasers are bound 
conclusively by the record of the deed or other conveyance in 
the line of their title as much as the mortgagor himself.*^ It is 
notice only to subsequent purchasers and incumbrancers under the 
same grantor, or through one who is the common source of title 
in the line of title to which the recorded deed belongs.®* The reg- 
istry of a conveyance of an equitable title is not notice to a pur- 
chaser of the legal title from a person who appears by the record 
to be the real owner. "^ It is not notice to those who have prior 
rights of record, or even to those whose rights are contempora- 
neous with those of the grantor, as, for instance, to his coten- 
ants; therefore a mortgage by one tenant in common, though 
duly recorded, is not notice to his cotenant of its existence, or of 
the claim of the mortgagor of the exclusive ownership of the 
land.®* 

A deed or mortgage duly recorded is notice not only of the ex- 

^' Green v. Green, 103 Cal. 108, Zl Humphreys v. Newman, 51 Maine 40 ; 

Pac. 188. Clabaugh v. Byerly, 7 Gill (Md.) 354, 

=8 Muldrow V. Robinson, 58 Mo. 48 Am. Dec. 575 ; Doyle v. Stevens, 4 

331. Mich. 87; McPherson v. Rollins, 107 

"Eggleston v. Harrison, 61 Ohio N. Y. 316, 14 N. E. 411, 1 Am. St. 

St. 397, 55 N. E. <^Z. 826; Souder v. Morrow, 33 Pa. St. 

eoRager V. Spect, 52 Cal. 579; Bush 83; Barbour v. Nichols, 3 R. I. 187; 

V. Golden, 17 Conn. 594; Buchanan v. Edwards v. Barwise, 69 Tex. 84, 6 S. 

International Bank, 78 111. 500; Chi- W. 677; Wells v. Smith, 2 Utah 39. 
cago, P. & St. L. R. Co. v. Vaughn, " Tripe v. Marcy, 39 N. H. 439. 
206 111. 234, 69 N. E. 113 ; Blair v. ^2 McCabe v. Grey, 20 Cal. 509. 
Whitaker, 31 Ind. App. 664, 69 N. E. 63 Tarbell v. West, 86 N. Y. 280. 
182; Ogden v. Walters, 12 Kans. 282; «* Leach v. Beattie, 33 Vt. 195. 



§ 126 TITLES AND ABSTRACTS 160 

istence of the deed or mortgage, but of all its contents, so far as 
these fall within the line of the chain of title."^ It is notice, too, 
of the covenants contained in it."" It is notice of any easement or 
privilege created by the deed or referred to in it."^ The registry 
of a deed or mortgage is equivalent to a registry of it to all per- 
sons who may subsequently be interested in the property and 
fully protects the grantee's rights. A mortgage having once ob- 
tained priority by record does not lose its place by being held by 
any one under an unrecorded assignment.'^ The destruction of 
the record in any manner affects the constructive notice afforded 
by the recording of the deed.*' Any one purchasing land in good 
faith, without notice of an unrecorded mortgage, takes it dis- 
charged of the lien;'" and he can convey a good title to it al- 
though the mortgage is recorded before he conveys and his ven- 
dee has notice of it.'^ 

If one having no title to land conveys it with covenants of war- 
ranty, and this is duly recorded, and afterward the grantor ac- 
quires title to the land, the estoppel by which he is bound under 
the covenants is turned into a good estate in interest in the grantee, 
so that by operation of law the title is considered as vested in him 
in the same manner as if it had been conveyed to the grantor 
before he executed the deed.'^ To sustain a deed made before the 
grantor acquires title is certainly a violation of the spirit of the 
registry system, under which a record is notice only to subsequent 
purchasers and incumbrancers in the line of the title to which the 
recorded deed belongs.'* 

§ 126. The doctrine of notice. — The doctrine of notice as 
affecting priority is generally adopted both in England and in this 
country. Subsequent purchasers who have- notice of a prior un- 
recorded deed or mortgage are affected by their knowledge of it 
in the same way that the prior record of the instrument would 

85 Sowden v. Craig, 26 Iowa 156, «3 Paxton v. Brown, 61 Fed. 874, 10 

96 Am. Dec. 125 ; McPheraon v. Rol- C. C. A. 135. 

lins, 107 N. Y. 316, 14 N. E. 411, 1 TONeslin v. Wells, 104 U. S. 428, 

Am. St. 826 ; Grandin v. Anderson, 15 26 L. ed. 802 

Ohio St. 286. 71 Tarbell v. West, 86 N. Y. 280. 

66 Morris v. Wadsworth, 17 Wend. " Salisbury Sav. Soc. v. Cutting, 
(N. Y.) 103. 50 Conn. 113. 

67 Bellas V. Lloyd, 2 Watts (Pa.) 's Pord v. Unitv Church Soc, 120 
401; „ . , , ^ , Mo. 498, 25 S. W. 394, 23 L. R. A. 

68 Brmckerhoff v. Lansing, 4 Johns. 561, 41 Am. St. 711. 
Ch. (N. Y.) 65, 8 Am. Dec. 538. 



r61 PUBLIC RECORDS § 126 

affect them.''* Judgment creditors having- such notice stand in a 
Hke position.'^ The doctrine is the same under statutes which de- 
clare without qualification that an unacknowledged or unrecorded 
deed shall be void as against purchasers, or as against all persons 
who are not parties to the conveyance.'" The record is con- 
structive notice only ; but it is notice to all the world that comes 
after. Any other notice must in the nature of things be limited 
in the extent of it, but, so far as it goes, its effect is equitable not 
any less, certainly, than that of the record. Having notice of a 
deed or mortgage defectively recorded, or not recorded at all, a 
subsequent purchaser can not claim priority for his own deed.'' 
As between him and the prior grantee or mortgagee, it is the 
same as if the prior deed or mortgage had been duly recorded.'* 

Therefore priority among mortgagees and grantees depends 
not only upon the date of their deeds and the date of their record, 
but also upon the knowledge they have of the true state of facts 
as to the title, and of the rights and equities of those who have 
not fixed their priority by duly recording* their deeds." It has 
been questioned whether the courts ought ever to have suffered 
the question of actual notice to be agitated against one whose 
conveyance is duly registered.*" 

The basis of the doctrine of notice is, that it is unconscientious 
and fraudulent to permit a junior purchaser to defeat a prior 
conveyance or incumbrance of which he has knowledge.*^ But it 
has been doubted whether this doctrine does not give occasion to 
more fraud than it prevents and whether vigilance in recording 
the mortgage should not be rewarded as much as vigilance in ob- 
taining it.*^ The recording acts charge subsequent purchasers 

7* Hutchinson v. Hutchinson, 16 ''^ Bullock v. Whipp, 15 R. I. 195, 2 

Colo. 349, 26 Pac. 814; Thompson v. Atl. 309. 

Maxwell, 16 Fla. 773 ; Peters v. Ham, • " Coe v. Winters, IS Iowa 481 ; 

62 Iowa 656, 18 N. W. 296; Short v. Johnston v. Camby, 29 Md. 211. 

Fogle, 42 Kans. 349, 22 Pac. 223 ; 's Hill v. McNichol, 76 Maine 314 ; 

Cook V. French, 96 Mich. 525, 56 N. Smallwood v. Lewin, 15 N. J. Eq. 60. 

W. 101 ; Keith & Perry Coal Co. v. '9 Sheffey v. Bank, 33 Fed. 315. 

Bingham, 96 Mo. 96, 10 S. W. 32; so Donahue v. Mills, 41 Ark. 421; 

Hendrickson v. WooUey, 39 N. J. Eq. Calumet Canal & Dock Co. v. Russell, 

307; Dingley ^v. Bon, 130 N. Y. 607, 68 111. 426; Allen v. Cadwell, 55 Mich. 

29 N. E. 1023 ; Morrill v. Morrill, 53 8, 20 N. W. 692. 

Vt. 74, 38 Am. Rep. 659; Rowell v. si Harrington v. Allen, 48 Miss. 

Williams, 54 Wis. 636, 12 N. W. 86. 492. 

" Jordan v. Mead, 12 Ala. 247 ; 82 Mayham v. Coombs, 14 Ohio 428. 
Manaudas v. Mann, 25 Ore. 597, 37 
Pac. 55. 

11 — Thomp. Abstr. 



§ 127 TITLES AND ABSTRACTS j 162 

with constructive notice of all instruments of record in the ap- 
parent chain of title, and not with notice of all instruments of 
record by whomsoever made relating to the land in question. 
When a purchaser searches the records till he finds the deed by 
which his grantee acquired his title, he is not bound to look for 
deeds of an antecedent grantor recorded after the deed to his 
grantor. The record of the deed is constructive notice only to 
subsequent purchasers under the same grantor.*'' 

The rule that the purchaser in good faith is not affected with 
notice of a prior deed from an antecedent grantor, recorded sub- 
sequently to the deed to his grantor, though prior to his own pur- 
chase deed, has the support of the better authorities.** There 
are, however, quite a number of decisions to the contrary.*" As 
a general rule a purchaser is not bound to search the records for 
incurribrances as against a title that does not appear of record.*" 
Generally, therefore, the record of any mortgage prior to the con- 
veyance by which the mortgagor took his title is no notice of the 
incumbrance to a subsequent purchaser.*' Yet the circumstances 
may be such that a purchaser will be bound to search the records 
for incumbrances as against a title which does not appear of rec- 
ord ; as, for instance, when he has actual notice, prior to the date 
of the conveyance to himself, of an equitable interest to another 
in the land by reason of his possession of it under a parol con- 
tract of purchase.** 

§ 127. Actual notice, — Actuai notice literally means direct 
personal knowledge.*^ Yet the term is often used in a broader 
sense as including notice implied from indirect or circumstantial 

83 Carbine v. Pringle, 90 111. 302; se Stockwell v. State, 101 Ind. 1; 

Hill V. McNichol, 76 Maine 314; Losey v. Simpson, 11 N. J. Eq. 246; 

Morse v. Curtis, 140 Mass. 112, 2 N. Cook v. Travis, 20 N. Y. 400. 

E. 929, SS Am. Rep. 4S6; Ford v. s^ Montgomery v. Keppell, 75 Cal. 

Unity Church Soc, 120 Mo. 498, 25 128, 19 Pac. 178, 7 Am. St. 125 ; Tar- 

S. W. 394, 23 L. R. A. 561, 41 Am. bell v. West, 86 N. Y. 280 ; Calder v. 

St. 711 ; Calder v. Chapman, 52 Pa. Chapman, 52 Pa. St. 359, 91 Am. Dec. 

St. 359, 91 Am. Dec. 163; Day v. 163. 

Clark, 25 Vt. 397. ss Emeric v. Aldarado, 90 Cal. 444, 

8* See note 83. 27 Pac. 356; Losey v. Simpson, 11 N. 

S5 Mahoney v. Middleton, 41 Cal. J. Eq. 246. 

41; English v. Waples, 13 Iowa 57; 89 Crassen v. Swoveland, 22 Ind. 

Van Aken v. Gleason, 34 Mich. 477; 427; Baltimore v. Williams, 6 Md. 

Woods V. Garnett, 72 Miss. 78, 16 So. 235; Lamb v. Pierce, 113 Mass. 72; 

390; Westbrook v. Gleason, 79 N. Y. Rogers v. Jones, 8 N. H. 264; Will- 

23 ; Erwin v. Lewis, 32 Wis. 276. iamson v. Brown, 15 N. Y. 354. 



163 PUBLIC RECORDS § 127 

evidence."'' Whether actual notice exists in any particular case, 
and whether it is sufficient to charge the party whom it is sought 
to affect by it, is a question of fact to be considered and deter- 
mined upon the evidence in each particular case. It is deemed 
effectual and sufficient when the evidence shows that the matter 
relating to the prior claim or interest of another, constituting 
notice of it, was brought distinctly to the knowledge and atten- 
tion of the person it is sought to affect.®^ 

Whether "actual notice" means actual knowledge or includes 
constructive knowledge, in statutes requiring actual notice to 
affect a purchaser, is a question upon which the decisions are not 
in harmony. Some courts have held that, although a purchaser 
has knowledge that the lands had been sold and purchased by an- 
other person, yet if no deed had been recorded, and the purchaser 
had no knowledge that a deed had been made, he is not charged 
with actual notice."^ This construction gives full effect to the reg- 
istry laws and enables purchasers to rely upon them fully and im- 
plicitly without searching the outside world to ascertain the true 
state of the title. It simply requires of all persons who hold or 
claim any interest in real estate, that they shall use due care and 
diligence in placing their rights beyond all danger by obtaining 
and putting upon record proper title papers. But in states in 
which there are statutes requiring "actual notice" or "knowledge" 
to affect a purchaser, a less strict interpretation of the word is 
adopted, and actual notice does not imply actual knowledge. 
While actual notice of an unrecorded deed is distinguished from 
mere notice such as would be imparted from actual, open and 
visible occupation, whether known to the purchaser or not, yet the 
words are held to include constructive knowledge imparted from 
actual, open and visible occupation, where such occupation is in 
fact known to- the purchaser,"^ or from other facts which con- 
structively charge him with notice. Notice is regarded as actual 
when the purchaser either knows of the adverse claim to title, or 
is conscious of having the means of such knowledge.^* 

»» Knapp V. Bailey, 79 Maine 195, 9 gold v. Bryan, 3 Md. Ch. 488 ; State 

Atl. 122, 1 Am. St. 29. Bank v. Frame, 112 Mo. 502, 20 S. 

»i Michigan Mutual Life Ins. Co. W. 620 ; McKinzie v. Perrill, IS Ohio 

V. Conant, 40 Mich. 530. St. 162, 45 Am. Dec. 565 ; Musgrove 

"2 Lamb v. Pierce, 113 Mass. 72. v. Bonser, 5 Ore. 313, 20 Am. Rep. 

»3 Allen V. McCalla, 25 Iowa 464, 96 111 ; Brinkman v. Jones, 44 Wis. 498. 

Am. Dec. 56 ; Greer v. Higgins, 20 "* Connecitcut Mutual Life Ins. Co. 

Kans. 420; Knapp v. Bailey, 79 Maine v. Smith, 117 Mo. 261, 22 S. W. 623, 

195, 9 Atl. 122, 1 Am. St. 29; Ring- 38 Am. St. 656. 



§ 127 TITLES AND ABSTRACTS 164 

Notice implied by circumstances has been called actua. notice 
in the second degree.'" The degrees and kinds of actual notice 
are without number, ranging from a formal written statement of 
the lien, giving all its detail, to a mere verbal declaration of the 
fact of its existence; it may be one given expressly as a notice, or 
it may have come in an accidental way. But neither the manner 
of the notice nor the purpose of it is material."" A mere remark 
or supposition that some other person claims an interest in prop- 
erty will not affect a person with notice of such interest.'^ 

Of course, formal and technical notice can be given only by 
the person interested; but a stranger can give information which 
will affect a purchaser by putting him upon inquiry as to the fact. 
Information from a person directly interested in the property is 
entitled to more weight than the statements of a stranger are 
entitled to ; but it may be stated as a general proposition that, if 
the information be derived from any other source entitled to 
credit, and it be definite, it will be equally binding as if it came 
from the party himself."^ What is sufficient to put a purchaser 
upon inquiry, and affect him with the facts which the inquiry 
might lead to, it is difficult to state in the form of a rule univer- 
sally applicable. In each case it must be determined whether the 
facts and considerations disclosed are such as to charge the con- 
sciousness of the purchaser with the duty of following up the 
inquiry."^ In general, a notice of a claim, right, or interest af- 
fecting a title is sufficient if it is such a notice as a man of ordi- 
nary intelligence would act upon if it affected his ordinary busi- 
ness affairs.^ 

A purchaser knowing of the existence of a debt for unpaid 
purchase-money is not charged with notice of an unrecorded 
mortgage securing such purchase-money.^ But a purchaser with 
such knowledge" is put upon inquiry as to the existence of the 
vendor's lien, and is chargeable with notice of it, if it exists, in 

95 Wilson V. Miller, 16 Iowa 111; ss Lawton v. Gordon, 37 Cal. 202; 

Knapp V. Bailey, 79 Maine 195, 9 Atl. Jaeger v. Hardy, 48 Ohio St. 335, 27 

122, 1 Am. St. 29. N. E. 863; Mulliken v. Graham, 72 

"8 Wailes V. Cooper, 24 Miss. 208. Pa. St. 484 ; Martel v. Somers, 26 

B'' Lambert v. Newman, 56 Ala. 623 ; Tex. 551. 

Hall V. Livingston, 3 Del. Ch. 348; »" Baker v. Bliss, 39 N. Y. 70. 

Ratteree v. Conley, 74 Ga. 153 ; Chi- i Bradlee v. Whitney, 108 Pa. St 

cago V. Witt, 75 111. 211; Weare v. 362. 

Williams, 85 Iowa 253, 52 N. W. 328; 2 Pollak v. Davidson, 87 Ala. 551, 

Butlers v. Stevens, 26 Maine 484; 6 So. 312. 
Shepard v. Shepard, 36 Mich. 173. 



165 PUBLIC RECORDS § 128 

a state where such a lien is recognized." A purchaser may be 
charged with notice by the fact that he is paying a very inade- 
quate price for the property.* Notice, to supply the place of reg- 
istry, must be sufficient to make inquiry upon; it must be more 
than what is barely sufficient to put the party upon inquiry.'^ In 
general it may be said that the facts disclosed amount to notice 
when they are such as render it incumbent upon the purchaser 
or mortgagee to inquire, and at the same time enable him to 
prosecute the inquiry success fully." 

As a general rule a purchaser is not put upon inquiry by notice 
of a deed not in the line of title under which he claims.^ The in- 
quiry should be prosecuted by recourse to reliable and disinter- 
ested sources of information. It is not safe or sufficient to rely 
upon the statements of the vendor, or of one who has a motive 
for misleading the inquirer.* If a purchaser put upon inquiry 
fails to prosecute it with due diligence he is conclusively pre- 
sumed to have notice of the facts that a due inquiry would have 
disclosed." 

§ 128. Implied notice. — Implied notice arises out of the 
legal relation of a person who has no notice with another who has 
notice. Implied notice is a branch of actual notice, and is im- 
puted to a person when he is conscious of having the means of 
knowledge which he does not use, or that he has such relations 
with another that the knowledge of the latter, though not com- 
municated, is imputed to him. Thus notice to the prinpipal is im- 
plied from notice to his agent. When an agent acquires knowl- 
edge of any matters or instruments affecting the title of any 
lands, about the purchase or mortgage of which he is employed, 
and this knowledge is such that it is his duty to communicate it 
to his principal, the law imputes this knowledge to the principal ; 

3 Overall v. Taylor, 99 Ala. 12, 11 E. 291, 19 L. R. A. lOS; Smith v. 

So. 738. Schweigerer, 129 Ind. 363, 28 N. W. 

*Durant v. Crowell, 'il N. Car. 696. 

367, 2 S. E. 541. 7 Satterfield v. Malone, 35 Fed. 445, 

5 Tompkins v. Henderson, 83 Ala. 1 L. R. A. 35. 

391, 3 So. 774; Reed v. Gannon, 50 « Overall v. Taylor, 99 Ala. 12, 11 

N. Y. 345. So. 738; Blatchley v. Osborn, 33 Conn. 

^Tompkins v. Henderson, 83 Ala. 226. 

391, 3 So. 774; Thompson v. Pioche, » Foster v. Stallworth, 62 Ala. 547; 

44 Cal. 508; Boswell v. Goodwin, 31 Gaines v. Saunders, SO Ark. 322, 7 

Conn. 74, 81 Am. Dec. 169 ; Hunt v. S. W. 301 ; Montgomery v. Keppel, 

Dunn, 74 Ga. 120 ; Rock Island & Pac. 75 Cal. 128, 19 Pac. 178 ; Mason v. 

R. Co. v. Dimick, 144 111. 628, 32 N. Mullahy, 145 111. 383, 34 N. E. 36. 



§ 128 TITLES AND ABSTRACTS 166 

or, in other words, notice to the principal of such matters or in- 
struments is implied." Silch notice is sometimes called construc- 
tive notice, but it is really implied from the identity of principal 
and agent, and not imputed by virtue of a construction placed 
upon their conduct or relation. The line of demarcation between 
the different kinds of notice is not always observed but this is 
a matter of very little practical importance, because the effect of 
notice, whether it be called actual, implied, or constructive, is the 
same. Notice to an agent, to bind the principal, must be brought 
home to the agent while engaged in the business and negotiation 
of the principal, and when it would be a breach of trust in the 
former not to communicate the knowledge to the latter." 
Whether the notice must be in the same transaction, or in some 
transaction in which the principal is concerned, is a question upon 
which the authorities are not agreed. Some courts hold that 
notice to the agent binds the principal only when it is given or 
acquired by him in the transaction in which the principal employs 
him.^^ Other courts have adhered to the doctrine that the prin- 
cipal is affected by the agent's knowledge of any prior lien, trust, 
or fraud affecting the property, no matter when acquired. ^^ The 
notice must be of some matter material to the transaction; of 
something which it is the duty of the agent to make known to 
the principal.^* When the same agent or attorney is employed by 
both parties in the same transaction his .knowledge is then the 
knowledge of both the vendor and vendee, or both the mortgagor 
and mortgagee." When an agent is guilty of any fraud, for the 
carrying out of which it is necessary that he should conceal it 
from his principal, notice of it can not be imputed to the latter.^" 

10 Smith V. Ayer, 101 U. S. 320, 26 L. ed. 164; Satterfield v. Malone, 

25 L. ed. 9SS ; Donald v. Beals, 57 35 Fed. 445, 1 L. R. A. 35. 

Cal. 399; Clark v. Fuller, 39 Conn. 12 McCormick v. Wheeler, 36 III. 

238; Walker v. Schreiber, 47 Iowa 114, 85 Am. Dec. 388; Rand v. Davis 

529; Willis v. Valletta, 4 Mete. (Ky.) (Tex.), 27 S. W. 939; Blumenthal v. 

186; Allen v. Poole, 54 Miss. 323; Brainard,' 38 Vt. 402, 91 Am. Dec. 350. 

Hickman v. Green, 123 Mo. 165, 27 i^Arrington v. Arrington, 114 N. 

S. W. 440, 29 L. R. A. 39; Coggswell Car. 151, 19 S. E. 351 ; Hart v. Farm- 

V. Griffith, 23 Nebr. 334, 36 N. W. ers &c. Bank, 33 Vt. 252. 

538; Hovey v. Blanchard, 13 N. H. "Wyllie v. Pollen, 32 L. J. (N. S.) 

145 ; Stanley v. Chamberlin, 39 N. J. Ch. 782. 

L. 565 ; Slatterly v. Schwannecke, 118 1= Losey v. Simpson, 11 N. J. Eq. 

N. Y. 543, 23 N. E. 922; Cowan v. 446. 

Withrow, 111 N. Car. 306, 16 S. E. i" Dillaway v. Butler, 135 Mass. 479; 

397; Bigley v. Jones, 114 Pa. St. 510, National Life Ins. Co. v. Minch, 53 

7 Atl. 54. N. Y. 144. 

" Rogers v. Palmer, 102 U. S. 263, 



167 PUBLIC RECORDS § 129 

Notice is not necessarily implied out of the relationship of hus- 
band and wife/^ But where a husband buys land for his wife, 
with knowledge of a prior unrecorded deed, the wife is charge- 
able with such knowledge.^^ 

A purchaser from one of two joint owners is chargeable with 
notice of the interest of the other, when this interest is shown by 
the conveyance, to which he must look for his vendor's title.^' 
If a purchaser has knowledge that the land is partnership prop- 
erty, and he attempts to purchase the individual interest of one 
partner, be buys subject to the equitable rights of the other part- 
ners.^" Notice, to affect a corporation, must be brought home to 
the president and directors, or to some ofificer to whom the matter 
to which the notice relates has been specially given in charge.^"- 

§ 129. Constructive notice. — Constructive notice is that 
which is imputed to a person upon strictly legal inferences of 
matters which he necessarily ought to know, or which, by the ex- 
ercise of ordinary diligence, he might know. It excludes actual 
notice. It can not be controverted.^^ The most familiar instance 
of constructive notice is that which under the registry laws is 
afforded by the record of the deed. Every subsequent inquirer 
is bound to know the existence and contents of such deed, and it 
is not admissible for him to show that his attorney examined the 
records and failed to find the deed of record.^* 

But there are various other kinds of constructive notice, and a 
purchaser or mortgagee is as much bound by the knowledge thus 
imputed to him of the matters and instruments affecting the title 
to property, as he would be if he were informed of them by a 
deed properly recorded. Whether the person charged with such 
notice actually had knowledge of the facts affecting the property 
in question, or might have learned them by inquiry, or whether 
he studiously abstained from inquiry for the very purpose of 
avoiding notice, he is alike presumed to have had notice. Con- 
structive notice is imputed either upon the ground of fraud or of 

" Satterfield v. Malone, 35 Fed. 445, ran, 142 U. S. 417, 12 Sup. Ct. 239, 

1 L. R. A.. 35. 35 L. ed. 1063. 

18 McMaken v. Niles, 91 Iowa 628, 22 Simmons Creek Coal Co. v. Do- 

60 N. W. 199. ran, 142 U. S. 417, 12 Sup. Ct. 239, 

" Campbell v. Roach, 45 Ala. 667. 35 L. ed. 1063. 

2<>Tillinghast v. Champlin, 4 R. I. 23 Edwards v. Barwise, 69 Tex. 84, 

173, 67 Am. Dec. 510. 6 S. W. 677. 

"^ Simmons Creek Coal Co. v. Do- 



§ 129 TITLES AND ABSTRACTS 168 

negligence. It does not exist without the one or the other. No- 
tice of the existence of an adverse right, title or lien, without the 
particulars of it, is sufficient.^*' Having notice of the existence of 
an adverse right, title, or lien, the purchaser is chargeable with 
constructive notice of all its contents. ^^ 

When a person claims under a deed which by its recitals leads 
him to other facts affecting the title to the property, he is pre-' 
sumed to know such facts ; or it would be gross negligence in him 
not to make inquiry as to the facts he is thus put in the way of 
ascertaining.^" When a purchaser can not make out his title ex- 
cept through a deed which leads him to the knowledge of another 
fact, he will be deemed to have knowledge of that fact.^^ A pur- 
chaser from one whose title-deed describes him as "trustee" has 
notice of a trust of some kind, and is put upon inquiry as to the 
existence and nature of the trust, though the word "trustee" 
without the name of the beneficiary or any declaration of trust, 
may be sufficient in itself to create a trust.^^ Persons dealing 
with a trustee are bound to take notice of the scope of his author- 
ity, and even a third person taking a title which comes through 
a trustee, and having notice of facts which would put him upon 
inquiry whether the trustee was acting within the scope of his 
authority, is not protected.^^ One who purchases land by a deed, 
which expressly recites that the premises are subject to a mort- 
gage, has notice of the mortgage from the recital, and can not 
claim against it, although it be not recorded.^" Where there is a 

2*WilIink V. Morris &c. Co., 4 N. 490; Acer v. Westcott, 46 N. Y. 384, 

J. Eq. 377. 7 Am. Rep. 35S ; Bonner v. Ware, 10 

25 Webb V. Robbins, 11 Ala. 6; Mar- Ohio 46S ; Parke v. Neeley, 90 Pa. St, 

tin V. Cauble, 72 Ind. 67. 52 ; Kansas City Land Co. v. Hill, 87 

zi^Corbitt V. Clenny, 52 Ala. 480; Tenn. 589, 11 S. W. 797; Renick v. 

Hassey v. Wilke, 55 Cal. 525 ; Hamil- Dawson, 55 Tex. 102 ; Willis v. 

ton V. Nutt, 34 Conn. 501; Rosser v. Adams, 66 Vt. 223, 28 Atl. 1033; 

Cheney, 61 Ga. 468; Dean v. Long, Whitlock v. Johnson, 87 Va. 323, 12 

122 111. 447, 11 N. E. 34; Cincinnati, S. E. 614; Dailey v. Kastell, 56 Wis. 

I., St. L. & C. &c. R. Co. V. Smith, 127 444, 14 N. W. 635. 

Ind. 461, 26 N. E. 1009 ; Clark v. Hoi- 2^ Loring v. Groomer, 110 Mo. 632, 

land, 72 Iowa 34, 33 N. W. 350, 2 Am. 19 S. W. 950 

St. 230; Pike v. Collins, 33 Maine 38; 2s Marbury v. Ehlen, 72 Md. 206, 
Bryan y. Harvey, 18 Md. 113; Sar- 19 Atl. 648, 20 Am. St. 467; Mercan- 
gent V. Hubbard, 102 Mass. 380 ; Wait tile Nat. Bank v. Parson, 54 Minn. 
V. Baldwin, 60 Mich. 622, 27 N. W. 56, 55 N. W. 825, 40 Am. St. 299. 
697, 1 Am. St. 551 ; Ross v. Worth- 29 Kirsch v. Tozier, 143 N. Y. 390, 
ington, 11 Minn (Gil. 323) 438, 88 38 N. E. 375, 42 Am. St. 729. 
Am. Dec. 95; Deason v. Taylor, 53 3° Hull v. Sullivan, 63 Ga. 196 ; Gar- 
Miss. 697; Mason v. Black, 87 Mo. rett v. Puckett, 15 Ind. 485; Howard 
329; Buchanan v. Balkum, 60 N. H. v. Chase, 104 Mass. 249; Westervelt 
406; Jennings v. Dixey, 36 N. J. Eq. v. Wyckoff, 32 N. J. Eq. 188. 



169 PUBLIC RECORDS § 130 

recital in a prior deed that the sale was made upon credit, a sub- 
sequent purchaser is bound to inquire whether the purchase- 
money has been paid or whether the vendor has a lien for it ; and 
the mere fact that the time of payment of the purchase-money, as 
recited in the deed, has elapsed does not authorize him to pre- 
sume that it was paid.'^ Where the mortgaged premises have 
been sold in parcels to different persons at different times, in the 
absence of any intervening equities the several parcels are subject 
to the mortgage, and are to be resorted to in the inverse order of 
alienation.^^ A purchaser having actual notice of a mortgage is 
affected with notice of any other incumbrances which are re- 
ferred to in that mortgage, or in other deeds to which the deeds 
first referred to may in turn refer.^^ 

A general description of the deed is sufficient to put all parties 
interested upon inquiry, and to charge them with notice of all 
facts that could be obtained by the exercise of ordinary diligence 
and the prosecution of the inquiry in the right direction/* The 
limit of inquiry necessary in any case is that required by the use 
of reasonable diligence. What is reasonable diligence can not be 
determined by any general rule, but must vary with the circum- 
stances of each case. 

§ 130. Official tract indexes. — By statute in some states 
the recording officer is required to keep, in books suitable for the 
purpose, a tract index of each instrument of record affecting the 
title to each particular tract of land in the county or district. 
From this index the officer furnishes, on demand of any person, 
and on payment of the fee, if any provided therefor, an abstract 
of title to any land in such county or district. Where such offi- 
cial tract index is in use the private abstracter is enabled to com- 
pile an abstract with less difficulty than he would otherwise ex- 
perience. As a rule he has, with the general public, free access to 
this tract index in compiling an abstract for a client, yet in the ab- 
sence of express statutory permission, he may not copy it into 
other books for use in his business as an abstracter of titles. Such 
tract indexes are to be distinguished from other records such as 
are usually denominated "public records."^^ These official tract 

'^Deason v. Taylor, S3 Miss. 697; ^^ Howard Ins. Co. v. Halsey, 8 N. 
Tydings V. Pitcher, 82 Mo. 379. Y. 271, S9 Am. Dec. 478. , 

32 Iglehart v. Crane, 42 111. 261 ; Mc- ^4 Seymour v. Darrow, 31 Vt. 122. 
Kinney v. Miller, 19 Mich. 142. ^^ Davis v. Abstract Construction 

Co., 121 111. App. 121. 



131 



TITLES AND ABSTRACTS 



170 



indexes are usually made by so ruling and arranging the paper 
that opposite to the description of each quarter section, sectional 
lot, town, city or village lot or other subdivision of land in the 
county, which a convenient arrangement may require to be noted, 
there shall be left a blank space of ample proportions in which to 
enter the letter or numeral indicating each volume, and the class 
of records of such volume, designating deeds by the letter D, 
mortgages by the letter M, miscellaneous instruments by the ab- 
breviation Misc., and the register of attachments, sales and no- 
tices by the letter R, together with the page of the volume upon 
which any deed, mortgage or other instrument affecting the title 
to or mentioning such tract or any part thereof shall heretofore 
have been or may hereafter be recorded or entered. 

§ 131. General index of records. — There is no uniform 
method of indexing public records in use in this country, but 
some sort of system, more or less perfect, will be found in every 
state. The official in charge of the records is usually required to 
keep a general index in which he must enter every instrument or 
writing received by him for record, under the respective and ap- 
propriate heads. The following is illustrative of the form of 
such general index : 



No. of 
Instrument 



Time of 
Reception 



Name of 
Grantor 



Name of 
Grantee 



Descrip- 
tion of 
Land 



Name of 
Instru- 
ment 



Volume 
and page 

where 
recorded 



To 

whom 

delivered 



Fee 
received" 



I 



The officer is required to make correct entries in the index of 
every instrument or writing received by him for record, under 
the respective and appropriate heads, entering the names of the 
grantors in alphabetical order. He is required immediately upon 
the receipt of any such instrument for record to enter in the ap- 
propriate column, and in the order of time in which it is received, 
the day, hour and minute of its reception. He is also required 
to enter in the appropriate columns of the index a description of 
the land, the name of the instrument, the volume and page where 
the instrument is recorded, to whom it was delivered when re- 
corded, and the fee received. The index above described is 



171 



PUBLIC RECORDS 



§ 132 



usually intended for all instruments of conveyance. The statutes 
sometimes provide for the keeping of another and additional in- 
dex in which are shown instruments of a miscellaneous character. 
In this index the instruments are numbered .consecutively, the 
kind of instrument designated, and where such instrument is 
recorded or filed. An illustration of the form of such index is as 
follows : 



No. of 


Kind of 
Instrument 


Where Recorded br Filed 


Instrument 


Volume 


Page 


Letters of Title 

































Generally an instrument is deemed recorded at the time it is 
noted in the index, and statutes not infrequently provide that 
wherever the recording officer has made in any index required 
by law to be kept in his office, in the index column provided for 
describing the land affected by the instrument indexed, the words 
"see record," "see deed," "see mortgage," or other instrument, 
as the case may be, such entry shall be sufficient reference to the 
record of such instrument if it be in fact recorded at large in the 
place so referred to. 

§ 132. Whether the index is a part of the record. — ^Unless 
otherwise provided by statute the index is generally considered no 
part of the record, and a mistake in it does not invalidate the 
notice afforded by a record otherwise properly made.^° Although 
a deed be omitted from the index, there is constructive notice of 
it which affects all subsequent purchasers from the time it was left 
for record.^^ The general policy of the recording acts is to make 



s" Chatham v. Bradford, SO Ga. 327, 

15 Am. Rep. 692; Gilchrist v. Gough, 
63 Ind. 576, 30 Am. Rep. 2S0 ; Bishop 
V. Schneider, 46 Mo. 472, 2 Am. Rep. 
S33; Lincoln Bldg. & Sav. Assn. v. 
Hass, 10 Nebr. 581, 7 N. W. 327; 
Semon v. Terhune, 40 N. J. Eq. 364, 
2 Atl. 18; Mutual Life Ins. Co. v. 
Dake, 87 N. Y. 257; Davis v. Whit- 
aker, 114 N. Car. 279, 19 S. E. 699, 
41 Am. St. 793; Green v. Garrington, 

16 Ohio St. 548, 91 Am. Dec. 103; 



Musgrove v. Bonser, 5 Ore. 313, 20 
Am. Rep. 734 ; Stockwell v. McHenry, 
107 Pa. St. 237, 52 Am. Rep. 475; 
Barrett v. Prentiss, 57 Vt. 297; Ely 
V. Wilcox, 20 Wis. 523, 91 Am. Dec. 
436. 

" Perkins v. Strong, 22 Nebr. 725, 
36 N. W. 292 ; Stockwell v. McHenry, 
107 Pa. St. 237, 52 Am. Rep. 475; 
Throckmorton v. Price, 28 Tex. 605, 
91 Am. Dec. 334 ; Curtis v. Lsmian, 24 
Vt. 338, 58 Am. Dec. 174. 



§ 133 TITLES AND ABSTRACTS 172 

the filing of a deed duly executed and acknowledged, with the 
proper recording officer, constructive notice from that time ; and 
although it be provided that the registrar shall make an index for 
the purpose of effecting a correct and easy reference to the books 
" of reference in his office, the index is designed, not for the pro- 
tection of the party recording his conveyance but for the conven- 
ience of those searching the records; and, instead of being a part 
of the record, it only shows the way to the record. It is in no 
way necessary that a conveyance shall be indexed, as well as 
recorded, in order to make it a valid notice.^^ When a grantee 
has delivered his deed to the recorder, notice of its contents is 
imparted from that time, if it is correctly spread upon the record, 
He has done all the law requires of him for his protection. The 
.purpose of the index is only to point to the record, but consti- 
tutes no part of it.^^ 

But in Iowa, Washington and Wisconsin, the index is an essen- 
tial part of the record, and a deed filed but not indexed, or even 
one copied into the record but not indexed, does not impart con- 
structive notice.*" In such states the laws require a descriptive 
index to be kept, and prescribe the requisites of the index, and the 
index is regarded as an integral part of the complete and valid 
registration.*^ But the omission of the description in such index 
is cured by the recording of the deed at length in the proper 
record.*^ The record, though complete in every other respect 
except that it is not properly indexed, does not operate as con- 
structive notice.*^ 

§ 133. Records of attachment and lis pendens. — In most 
states recording officers are required to keep a separate book or 
register divided into two columns with appropriate headings, in 
which he shall enter an abstract of every writ of attachment or 
copy thereof and certificate of real estate attached, of every cer- 
tificate of sale of real estate, and of every notice of the pendency 
of any action affecting real estate, which may be filed pursuant to 
law in his office, specifying the day, hour and minute of its 

38 Davis V. Whitaker, 114 N. Car. 155; Oconto Co. v. Terrard, 46 Wis. 
279, 19 S. E. 699, 41 Am. St. 793. 317, 50 N. W. 591. 

39 Bishop V. Schneider, 46 Mo. 472, 4i Barney v. McCarty, 15 Iowa 510, 
2 Am. Rep. 533. 83 Am. Dec. 427. 

*° Whalley v. Small, 25 Iowa 184 ; ^2 Pringle v. Dunn, 37 Wis. 449, 19 
Ritchie V. Griffiths, 1 Wash. 429, 25 Am. Rep. 772 
Pac. 341, 12 L. R. A. 384, 22 Am. St. *3 Howe v. Thayer, 49 Iowa 154. 



173 PUBLIC RECORDS § 134 

reception, the names of the several parties mentioned therein, 
designating separately plaintiffs and defendants ; the names of the 
attorneys of the respective parties; the date when the land was 
sold; the description of all such real estate mentioned, and the 
amount of indebtedness claimed in any such writ, and the amount 
for which any such land was sold. He is usually required to 
keep an index for such record, showing in alphabetical order, sep- 
arately, the names of each party plaintiff and each party de- 
fendant, and the page on which such name is found. 

The force and effect of the recording of a deed or mortgage are 
limited not only by the actual notice which the grantee may have 
of prior unrecorded conveyances, but also by constructive notice 
of rights and claims of other parties, furnished by the pendency 
of an action in relation to the title of the property, notice of the 
pendency of which has been filed according to law.** But only 
those persons are charged with notice, or are affected by a lis 
pendens, who, pending the suit, purchase from a party to the 
suit,*' or derive title from one so purchasing.*^ 

§ 134. Index of judgment records. — As a rule all judg- 
ments, decrees and orders rendered or made by any court in cases 
where the title to land shall have been in controversy or operating 
to pass title thereto or otherwise affect the title, is required to be 
recorded .in the office of the register of deeds of the county where 
any part of the lands are situated, in the same manner and with 
like effect as conveyances. But as judgments and decrees of a 
court of record are required by law to be recorded in the office of 
the clerk of the court in order to constitute a lien on the real 
estate of the defendant, the proper place to look for judgments 
against a particular person is in the judgment dockets in the 
clerk's office. Clerks are usually required to keep a judgment 
index and cross-index arranged in the alphabetical order of the 
names of the plaintiff and defendant. The requirement that a 
cross-index shall be kept is not merely directory. It is important 
and necessary. It is intended to enable any person to learn that 
there is a docketed judgment in favor of a certain party or parties, 
and against certain other parties, and where to find it on the 
docket. The inquirer is not required to look through the whole 

** Lacassagne v. Chapuis, 144 U. S. IS Atl. 497, 2 L. R. A. 48, 6 Am. St. 
119, 12 Sup. Ct. 659, 36 L. ed. 368. 760. 
*5 Green v. Rick, 121 Pa. St. 130, *« Norton v. Birge, 35 Conn. 250. 



§ 135 TITLES AND ABSTRACTS 174 

docket to learn if there be a judgment against a particular person. 
The purpose is that the index shall point to a judgment against 
the particular person inquired about, if there be a judgment on 
the docket against him/^ 

It is provided by statute in some states that a judgment is not 
a lien on the real estate of the judgment debtor as against subse- 
quent bona fide purchasers without notice unless properly in- 
dexed/^ In some states, before a judgment is entered on the 
judgment docket, the clerk is required to enter it in a judgment 
book or daily journal, and after such entry he must immediately 
docket the judgment. The entry on the journal stand in the 
place of the record, and must always be consulted in making a 
search for judgments. Both a plaintiff's index and a defendant's 
index will be found in some offices. The entries in these indexes 
are usually made upon the filing of a suit, and where no Hs 
pendens has been filed, discovery may be made here of a suit 
pending. In the absence of a proper index of judgments, recourse 
must be had to the judgment dockets. 

§ 135. Tax records. — It will be shown in a subsequent 
chapter that taxes and assessments are everywhere made liens 
upon the real estate of the taxpayer, and no examination is com- 
plete without a thorough search at the tax offices for delinquent 
taxes, tax sales, forfeitures and judgments. The indexes to the 
records in the clerk's or auditor's office are usually sufficient to 
afford all the information necessary. It has been held that until a 
tax deed is properly indexed it is not deemed recorded; but the 
indexing, if done afterwards, will relate back to the record.*" 

Search must also be made for special assessments for local im- 
provements. These are usually found in the records of street, 
alley and sewer improvement assessments in the treasurer's office, 
as certified by the proper municipal officer. 

§ 136. Records of vital statistics. — The scope of the ex- 
amination of a title is limited to the public records, and the 
examiner need not extend his search to matters in pais. But it 
sometimes becomes important to know the facts relating to birth, 

" Dewey v. Sugg, 109 N. Car. 328, ^s Lombard v. Culbertson, 59 Wis. 
13 S. E. 923, 14 L. R. A. 393. 433, 18 N. W. 399. 

■*8 Citizens' Bank of Stanton v. 
Young, 78 Nebr. 312, 110 N. W. 1003. 



175 PUBLIC RECORDS § 137 

marriage, or death of a person. In such cases it may become 
necessary to pursue inquiries outside the record to supply the 
missing link. Doubtful questions of pedigree may sometimes be 
cleared up by entries made in church or parish records. These 
matters may sometimes be shown from the records of vital sta- 
tistics required to be kept by certain officials. Statutes sometimes 
provide for local registrars whose duty it is to make and keep a 
complete and accurate copy of each birth, death, and marriage 
certificate received by him, and which must be filed and preserved 
in his office as a record of such birth, death or marriage. These 
records are accessible to any person desiring such information 
as may be disclosed thereby. 

§ 137. Abstracter's use of public records. — ^The public 
records are public property, and are kept for the public benefit, 
and, although their custody and safe keeping are committed by 
law to designated officials, yet, as a general rule, everyone has the 
right to examine them, and to make such copies thereof as he 
may see fit, free of charge. This right need not be declared by 
statute,^" but statutes will be found in many states expressly con- 
ferring this right. Independent of any statute declaring a right 
of inspection or requiring such record to be )cept, the records of 
a public officer become such public records as are subject to the 
free and general inspection by the public.'^ Under a statute 
providing that every conveyance of real estate, and every instru- 
ment of writing setting forth an agreement to convey any real 
estate, or whereby any real estate may be affected, proved, ac- 
knowledged, certified, and recorded in the manner prescribed 
shall, from the time of filing the same with the recorder for 
record, impart notice to all persons of the contents thereof, it 
has been held that a corporation organized for the purpose of 
furnishing abstracts and guaranteeing titles may, free of charge, 
through its agents and employes, during regular business hours, 
inspect and make memoranda and copies of all files and records 
in the office of the county recorder, in so far as they relate to 
current transactions in which it is authorized or employed to 
make searches, furnish abstracts, or guarantee titles by persons 
having or seeking to acquire, an interest in property ; tiie exam- 
s'' Lum V. McCarty, 39 N. J. L. "Brown v. Knapp, 54 Mich. 132, 
287. 19 N. W. 778, 52 Am. Rep. 800. 



§ 138 TITLES AND ABSTRACTS 176 

ination to be made at such times and under such circumstances 
as will not prevent the recorder or his assistants from discharging 
their duties, nor interfere with the right of other persons to have 
access to the records.'*^ But under such statute, the right to so 
inspect and copy public records has been denied persons and 
corporations seeking thereby data from which to compile an in- 
dependent set of abstract books to be used for profit in their 
private business. ^^ Under a statute which provided that all books 
and papers required to be kept by the county officers shall be 
open to the inspection and examination of any person, it has been 
held that this right of inspection should be exercised only by 
persons who have an interest in the record, or by someone for 
them, for the purpose of information, and was not intended to 
give a right to parties to engage in private speculation in con- 
nection with the information there received.^* But both reason 
and authority sustain the right of a person or corporation en- 
gaged in the business of abstracting, to freely examine all public 
records, and make reasonable memoranda therefrom, under rea- 
sonable rules and regulations.^^ 

§ 138. Loss or destruction of records. — The destruction 
of the record in no manner affects the constructive notice afforded 
by the recording of the deed.^" Thus where a deed has been 
once recorded, a subsequent burning or other destruction of the 
records will not render the same ineffectual as notice to subse- 
quent purchasers." If the deed itself has been preserved, the 
recorder's certificate of its having been duly recorded is of the 
highest class of evidence.^^ So, also, the index book in which the 
deed is described, and its record certified in the proper book, are 
good evidence of the fact that the deed was recorded.^^ Other 

52 State V. Grimes, 29 Nev. SO, 84 Fisher, 98 N. Car. 20, 3 S. E. 822. 
Pac. 1061, S L. R. A. (N. S.) S45, 124 =6 Paxson v. Brown, 61 Fed. 874, 10 
Am. St. 883. C. C. A. 135 ; Franklin Sav. Bank v. 

53 Bean v. People, 7 Colo. 200, 2 Taylor, 131 111. 376, 23 N. E. 397; 
Pac. 909; Colescott v. King, 154 Ind. Hyatt v. Cochran, 69 Ind. 436; Addis 
621, 57 N. E. 535. v. Graham, 88 Mo. 197; Fitch v. 

5* Brewer v. Watson, 71 Ala. 299, Boyer, 51 Tex. 336. 

46 Am. Rep. 318 ; Bean v. People, 7 " Cooper v. Flesner, 24 Okla. 47, 

Colo. 200, 2 Pac. 909; Cormack v. 103 Pac. 1016, 23 L. R. A. (N. S.) 

Wolcott, 37 Kans. 391, 15 Pac. 245. 1180, 20 Ann. Cas. 29. 

55 Randolph v. State, 82 Ala. 527, 58 Alvis v. Morrison, 63 111. 181, 14 

2 So. 714, 60 Am. Rep. 761; Boylan Am. Rep. 117. 

V. Warren, 39 Kans. 301, 18 Pac. 174, =0 Smith v. Lindsay, 89 Mo. 76, 1 

7 Am. St. 551 ; People v. Richards, 99 S. W. 88. 
N. Y. 620, 1 N. E. 258; Newton v. 



177 PUBLIC RECORDS § 138 

secondary evidence may be shown that the deed was filed for 
record ;°° and when this is the case, the testimony of an attorney 
of a purchaser, that he examined an abstract of title to the prop- 
erty, which purported to be a full and complete abstract, and did 
not find a prior deed of trust upon the premises, is not sufficient 
to show that there was no record of it, as it does not follow that 
the abstract was what it purported to be." 

Where the registry office and its records have been destroyed 
by fire, evidence of the execution of a mortgage and of its loss, 
with slight circumstances in regard to the recording of it, have 
been held enough to sustain a presumption that it was recorded, 
as against another mortgagee who claims priority on the ground 
that such mortgage was never recorded."^ 

The legislatures of some states have passed acts providing for 
the re-recording or restoration of burnt records, and some courts 
have held that the acts are broad enough to determine and estab- 
lish a title even as against a party holding or claiming a con- 
tingent interest.^^ A restoration of the record may be had, if 
desired, upon proof of proceedings for foreclosure of a mort- 
gage in a court of general jurisdiction, a decree of sale, a sale 
under it, and its approval by the court, and the delivery of a 
certificate of purchase ; and the court will thereupon order the ex- 
ecution of a deed to the purchaser, and a surrender of possession 
to him."* A court of equity will not restore a burnt record when 
such restoration would not show good title in the petitioner but 
would only cloud the title of the defendant."^ 

6» Stebbins v. Duncan, 108 U. S. 32, rison v. McMurray, 71 Tex. 122, 8 

2 Sup. Ct. 313, 27 L. ed. 641 ; Cowles S. W. 612. 

V. Hardin, 91 N. Car. 231. «3 McCampbell v. Mason, 151 111. 

«i Steele v. Boone, 75 111. 457. SOO, 38 N. E. 672. 

«2Heacock v. Lubuke, 107 111. 396; «* Curyea v. Berry, 84 111. 600. 

Alston V. Alston, 4 S. Car. 116; Har- «5 Beattie v. Whipple, 1S4 111. 273, 

40 N. E. 340. 



12 — Thomp. Abstr. 



CHAPTER VI 
abstracter's indexes and reference books 

SEC. SEC. 

145. Importance of indexes and ref- 150. The tract index, 
erence books. 151. Index of irregulars. 

146. The government tract book. 152. Index of tax sales. 

147. Surveyor's field notes. 153. Index of judgments. 

148. Books of original entries. 154. Miscellaneous indexes and ref- 

149. Instrument number index. erence books. 

§ 145. Importance of indexes and reference books. — The 

primitive method of compiling abstracts from the indexes and 
records of the public depositories is seldom practiced even in the 
more recent settled parts of the country. Such a method of 
search is not only tedious and laborious, but where the title is in 
the least degree intricate or complicated, the search is apt to be 
incomplete and unreliable. Modern business methods, and the 
ever increasing number of transactions affecting the title to real 
estate, have developed a speedier and a more reliable method of 
conducting the business of compiling abstracts. Every modern 
abstract office is now equipped with what is commonly called tract 
indexes, in which the various instruments of record are indexed 
under the heading or description of the real property affected 
thereby, and which, when completed and kept up to date, consti- 
tute an index to the records by tracts instead of by the names of 
the parties to such instruments. These tract indexes are now 
considered indispensable to the convenient and proper transaction 
of the business of compiling abstracts of title. By their use the 
abstracter is enabled to quickly produce a perfect chain of re- 
corded title to any tract of land in his county or district. There 
is a lack of uniformity in the methods of compiling tract indexes, 
and the number of separate books used, but certain fundamental 
ideas will be found embodied in every system worth mentioning. 
Perhaps no system in use is complete and perfect within itself, 
and it would be impossible to suggest a system that would apply 
with equal facility in all localities. The time and labor required 
to complete and keep up a set of tract indexes will depend upon 
the number of transactions had in reference to the lands involved. 
In the older and more densely populated counties the task will 

178 



179 INDEXES AND REFERENCE BOOKS § 146 

be much greater than in the more recently settled counties. In 
order that the books may be relied upon for what they contain, 
great care and skill must be exercised in abstracting every instru- 
ment of record affecting each and every tract or parcel of land 
in the county or district intended to be covered, and the data must 
be so arranged that it may be readily referred to in making up an 
abstract. In succeeding sections the reader's attention is called to 
some of the more important matters to be noticed in compiling a 
set of abstract books. 

§ 146. The government tract book. — Since the inaugura- 
tion of our system of disposing of the public lands it has been the 
duty of each register or receiver of a land district to keep a dia- 
gram or plat of each township in his district showing the sections 
and fractional parts thereof as per the government survey. He 
was required to note on these plats in connection with each tract 
disposed of, the form of the entry, the name of the claimant, the 
character of the entry, the number of the certificate, the date of 
filing or entry, the price paid, the cancellation and re-entry, if any, 
and the issuance of the patent, with the date and name of the 
patentee. Many of the land offices have long since been abolished, 
but the records made have been preserved by depositing them with 
some state official, designated by law, in which the land office was 
located. A copy of any township plat may be obtained upon ap- 
plication made to the proper custodian of the records, but where 
the land office is still in operation, application for copies must be 
made to the district register or receiver. It is to the government 
land office records that the abstracter must look for data that con- 
stitutes the foundation of all his indexes. In case these records 
do not show issuance of a patent application must be made to the 
General Land Office at Washington. In a great many places 
township plats containing all the data referred to above will be 
found in some county office, and the abstracter may use same in 
compiHng his tract indexes. 

§ 147. Surveyor's field notes. — The plats and surveys 
made by the United States government can not be contradicted 
by parol evidence, or by private surveys and plats.^ Corners 

1 Chapman v. Polack, 70 Cal. 487, Morrill, 91 Mich. 29, SI N. W. 700; 
11 Pac. 764; Spawr v. Johnson, 49 Arneson v. Spawn, 2 S. Dak. 269, 49 
Kans. 788, 31 Pac. 664; Brown v. N. W. 1066, 39 Am. St. 783. 



§ 148 TITLES AND ABSTRACTS 180 

shown to have been originally made by government surveyors are 
conclusive, and must be accepted as true corners, no matter how 
inaccurately they may have been originally established.^ Where 
there is a discrepancy in a government survey between the monu- 
ments and distances given in the field-notes, the monuments will 
control, even though the result be that some of the quarter sec- 
tions will contain less than their proper number of acres.^ Calls 
for monuments in the field-notes of a government survey control 
in relocating the boundaries to land.* Monuments and boundary 
lines as established by the government survey control the descrip- 
tion of lands patented by the United States, and mistakes in sur- 
veys can not be corrected by the judicial department of the gov- 
ernment.' Field notes and plats of the original government sur- 
vey are competent evidence in ascertaining where monuments are 
located in case a government corner is destroyed or the point 
where it was originally placed can not be found, or the location 
of the original corner is in dispute, but when it is shown by un- 
contradicted evidence that a section corner was located at a cer- 
tain point, such location must control.^ Hence, the importance 
of having access to the field-notes and plats of the original gov- 
ernment surveyor can not be overlooked and no abstract office is 
complete without a copy of same. Copies may be obtained from 
the register of the district land office, or where the office has been 
abolished, from the state officer having custody of same as pro- 
vided by law. 

§ 148. Books of original entries. — ^The modern abstract 
office must contain a series of books in which to enter the daily 
transactions in the various record offices of the county. In these 
books are set forth a brief description of each and every instru- 
ment filed of record during the day, and of each and every trans- 
action in any manner affecting the title to any land in the county. 
The fullness with which the entry is made will be detemiined by 
the nature of the instrument or transaction. It should contain 
no more nor less than is necessary to make a proper posting of 
the transaction or instrument on the tract index. In counties 

2Billingsley v. Bates, 30 Ala. 376, *Tognazzini v. Morganti, 84 Cal. 

68 Am. Dec. 126; Liberty v. Burns, 159, 23 Pac. 1085. 

114 Mo. 426; 19 S. W. 1107; 21 S. ^ Cragin v. Powell, 128 U. S. 691, 

W- 728 . ^ , 9 Sup. Ct. 203, 32 L. ed. 566. 

3 Ogiivie V. Copeland, 145 111. 98, « Woods v. West, 40 Nebr. 307, SB 

33 N. E. 1085. ■ N. w. 938. 



181 



INDEXES AND REFERENCE BOOKS 



§ 148 



where a large volume of business is transacted daily in the record- 
ing offices it is possible to make only a brief note of each instru- 
ment, showing its date, its nature, the parties thereto, and a 
brief description of the land. But where the volume of daily 
business is small the notes may be extended to any length desired. 
The original entry books may be arranged in any manner to suit 
the convenience of the abstracter, the only requirement being 
that the daily transactions should appear under heads following 
the order of time of their appearance on the public records. The 
following example is submitted : 

May 1, 1918 



Inst. 
No. 



Grantor 



Grantee 



Description 



Inst. 



Date 



Remarks 



The entries in these books may be made up from the original 
instruments filed in the recording offices from day to day, or 
they may be made up from the reception indexes in the record- 
er's office where such indexes are kept, but in the latter case there 
is always a possibility that the instrument may be filed, and hence 
a matter of record, though not indexed, at the time of the search. 
Where the entry is made from the original instrument on file there 
is presented an opportunity of discovering an error in transcrib- 
ing the instrument by the examiner comparing his entry with the 
record. In sparsely-settled counties the entry is sometimes ex- 
tended so as to constitute a complete abstract of every instrument 
filed of record, but this method of entry is impracticable in coun- 
ties where a large number of instruments are filed each day. The 
long form of entries has the advantage of enabling the abstracter 
to compile his abstract without having to go through the records, 
the abstract being made up from the data in the book of original 
entries. But this method has the disadvantage of not disclosing 
errors made by the officer in transcribing the instrument. The 
abstract is supposed to be a copy of the record and not a copy of 
the instrument of which the record is intended to be a copy. If 
the abstract be made up from the original entry it should be com- 



§ 149 TITLES AND ABSTRACTS 182 

pared with the record to ascertain if any mistakes were made in 
transcribing the instrument on the record. By this precaution 
any mistakes in making up the original entry will also be dis- 
covered. 

§ 149. Instrument number index. — Every instrument 
filed for record should be given a number, and this number should 
be inserted in the proper column of the book of original entries, 
as well as in the tract book when it is made up. For the purpose 
of ready reference in compiling an abstract a separate index of 
instrument numbers should be kept. In the first column of this 
index should be entered the number given the instrument when the 
same is filed for record, and on the day the instrument is spread 
upon the record the book and page of the record should be en- 
tered in the index opposite the number of the instrument. This 
instrument number index may be made up as follows : 



Instrument No. 



Book 



Page 



It is optional with the abstracter who makes long form entries 
to keep an instrument number index, but if it is his practice to 
compare his entries with the record, the instrument number index 
will be of great service. 

§ ISO. The tract index. — It is essential to the convenient 
and proper transaction of the business of compiling abstracts that 
those engaged in it provide themselves with a set of tract books. 
In thes6 books are entered the various instruments of record un- 
der the heading or description of the real estate affected thereby, 
and when completed will constitute an index to the records by 
tracts instead of by the names of the parties. Thus a division 
or page of the index is set apart to a lot or subdivision of land, 
and in said division or on said page is entered in consecutive order 
of record thereof the number of the instrument as given it when 
filed of record, the names of the parties, a description of the land, 
the kind of instrument, and the volume and page where the same 
is recorded. The date of the instrument, the date of recording, 
and the consideration may also be entered in their proper place. 
This index should contain all instruments and transactions of 



183 



INDEXES AND REFERENCE BOOKS 



150 



record affecting the title to the division or tract of land described 
in the caption, unless a separate book is kept for certain instru- 
ments, in which case such instruments may be omitted from the 
tract index. All entries made in the original entry book should 
be transferred to the tract index under the description of the land 
affected by the instrument, and should be arranged under the 
proper heads provided in the outline. When properly made up 
the tract index should embrace under each particular tract or sub- 
division of land in the county an epitome of every deed, mort- 
gage, agreement, release, attachment, sale, lis pendens, or other 
instrument or transaction of record, in any way affecting title to 
such tract or subdivision, or mentioning same, of any part 
thereof. Where any part of a section in a particular township 
and range in the county has been subdivided into blocks and lots, 
the subdivision is laid out by devoting to each page a limited 
number of the lots, and everything relating to these lots is posted 
on the page. Certain pages of the index are devoted to the origin 
of the titles to the subdivided tracts, and any instrument describ- 
ing the property as acre property, or describing all interest in the 
subdivision, or describing inaccurately land covered by the sub- 
division, is posted under this "origin." All instruments which 
seem to describe subdivided property in such a manner that it is 
difficult to determine what lots and blocks are affected by it are 
also placed in this "origin." The size of the pages to be used 
for tract books and the number of volumes needed, will be de- 
termined by the present and prospective volume of business in the 
county. At the top of each page should appear the caption, 
which consists of a description of the tract, subdivision, or lots. 
The page should be ruled across with light lines, and divided into 
the required number of columns by heavy vertical lines. At the 
top of each column should be placed the respective heads. A sam- 
ple page of a tract index is as follows : 

Sec. 1, Tp. 25 N., R. 8 E. 



5^ 


Grantor 


Grantee 


Description 




Consid- 
eration 


QM 




Qo 


Entry 

Book 

to Page 


Record 

Book 

and Page 


Remarks 





































































§ 151 TITLES AND ABSTRACTS 184 

§ 151. Index of irregulars. — instruments and transactions 
will frequently be found on the public records, which from their 
peculiar nature and character, should not be posted in the tract 
index proper. Among these may be classed affidavits as to 
dower, heirship or kindred matters, general powers of attorney, 
instruments of release and satisfaction, confirmations and assign- 
ments, conveyances describing no property or property of indefi- 
nite location, and the like. This index consists of two books, 
one for the names of grantors arranged in alphabetical order, the 
other for the names of grantees arranged alphabetically. This 
index is made up from the books of original entries, and is used, 
in compiling abstracts, in the same manner as the judgment index. 
It should always be consulted in making up the chain by running 
through the names of grantors and grantees to find if, during the 
period covered by the examination, any person has held title to 
the land in question, or possessed any equities therein. In com- 
piling this index one volume should contain in the first column 
the names of grantors arranged alphabetically, with the name of 
the grantee set opposite in the next column. The other volume 
should contain in the first column the names of the grantees ar- 
ranged alphabetically, with the name of the grantor set opposite 
in the next column. In each book opposite the names of the par- 
ties, and in an appropriate column, should be entered a brief 
statement of the subject-matter of the instrument. All other mat- 
ters, such as the instrument number, the description of the prop- 
erty, if any given, the nature of the instrument, the date of the 
instrument, the date of record, the book and page where record 
may be posted in the same manner as in the tract index. 

§ 152. Index of tax sales. — It is sometimes the practice of 
abstracters to post in the tract index everything pertaining to 
taxes except tax sales, and these latter are included in a separate 
volume kept for the purpose. This is perhaps the better method, 
as a large majority of the entries of tax sales become dead matter 
upon redemption, and for this reason the tract index should not 
be burdened with them. If a separate index of tax sales is kept 
there should be entered under the description of the tract in the 
caption, a description of the land sold, the name of the person 
against whom the tax was assessed, the nature of the tax, as 
general, special, state, county, municipal, special assessment, etc., 
the amount of the tax, the year for which it was levied, the date 



185 



INDEXES AND REFERENCE BOOKS 



§ 153 



of sale, and the name of the purchaser. A column on the right 
hand margin of the page should be left in which to note the fact 
of redemption. The page of the index should be arranged as 
follows : 

Sec. , Tp. , R. . 



Descrip- 
tion 


Name of 
Delinquent 


Nature of 
Taxes 


Amount 
Sold for 


Year for 
which 
levied 


Date of 
Sale 


Name of 
Purchaser 


Redemption 



















































This index should always be consulted in compiling an ab- 
stract, and the entries made therein compared with the tax rec- 
ords. Much labor may be saved by noting all redemptions on the 
date they are made. 

§ 153. Index of judgments. — All judgments for money, 
or such as create a lien on land should be indexed in a separate 
book kept for that purpose. Decrees and sales in chancery, or 
proceedings in court of an equitable nature directly involving the 
title to land, should not be indexed in this judgment index, but 
should be posted in the tract index. 

The index of money judgments is very simple in its arrange- 
ment, consisting of an entry in alphabetical order of the names of 
the judgment debtor in each case as they appear on the court's 
records from day to day. Opposite the name of the judgment 
debtor, and in columns provided for their reception should be 
entered in consecutive order, the name of the judgment creditor, 
the court in which the judgment is docketed, the number of the 
case, the nature of the action, the date of the judgment, the 
amount of the judgment and costs, and the fact of satisfaction. 
In compiling an abstract this index is used in the same manner as 
the tax index. A sample page of the index is submitted: 



No.of 
Inst. 


Name of 
Defendant 


Name of 
Plaintiff 


Court 


No.of 
Case 


Nature 
of Action 


Date of 
Judgment 


Amount of 
Judgment 


Fact of 
Satisfaction 

























































An execution sale under a money judgment should be noted in 
the general tract index. 



§ 154 TITLES AND ABSTRACTS 186 

§ 154. Miscellaneous indexes and reference books. — In 

addition to the indexes and reference books described in the fore- 
going sections, many abstracters, especially in large cities and 
populous counties, keep certain special indexes and supplemental 
reference books which are deemed advantageous to the proper 
conduct of their business. Thus, it has become the practice of 
many abstracters to keep an index of special assessments instead 
of including them in the tract index or in the index of tax sales. 
Also, where inheritance taxes are levied on the estates of dece- 
dents, an index is sometimes provided for their reception. Spe- 
cial indexes are sometimes kept for probate proceedings, and all 
matters pertaining to estates of decedents, minors, and other per- 
sons under legal disability. Again, some abstracters keep what 
they term a "vowel index." In this in4ex the names of all 
grantees are posted in alphabetical order, opposite each of which 
name is noted the book and page of the record where the name 
appears and a reference to the book and page of the abstracter's 
original entry set. By use of this index the interest of any 
grantee, whether present or past, may be readily ascertained with- 
out consulting any book except that of the original entries. Some 
offices may contain other indexes and reference books not men- 
tioned herein, but it is thought that a sufficient number have been 
described to enable the reader to provide such as will be necessary 
to carry on his business with accuracy, and with a minimum of 
labor. 



CHAPTER VII 

COMPILATION OF AN ABSTRACT 

SEC. SEC. 

160. Introductory remarks. 168. Abstracter's notes. 

161. Scope and extent of the exami- 169. Exhibiting instruments for ref- 
nation. erence. 

162. Preliminary sketch of chain. 170. Showing irregular instruments. 

163. Formal parts of the abstract. 171. Showing mistakes made in trans- 

164. The caption. cribing instruments. 

165. Arrangement of the abstract. 172. Abbreviations. 

166. Synopsis of instruments and pro- 173. Preserving copy of abstract, 
ceedings. 174. Abstractor's certificate. 

167. Fullness of synop'sis. 

§ 160. Introductory remarks. — In the preceding chapter 
we attempted to describe certain indexes and reference books 
wherein the abstracter enters the material parts of every instru- 
ment or transaction of record affecting the title to each particular 
tract of land and city or town lot in the county. The purpose of 
these books, as we have explained, is to afford a ready reference 
to the public records where such instruments may be found, and 
to facilitate the work of compiling abstracts therefrom. In the 
present chapter we propose to call the reader's attention to the 
manner of using these books, and the public records of which 
they are a copy, in compiling abstracts, and to offer some sug- 
gestions relative to the form of the completed abstract. 

When complete the abstract should contain a statement of every 
fact, and the contents of every instrument or transaction of 
record, affecting the land covered by the search, so full that no 
reasonable inquiry shall remain unanswered, so brief that the 
mind of the readet shall not be distracted by irrelevant details, 
so methodical that counsel may form an opinion on each instru- 
ment as he proceeds in his reading, and so clear that no new ar- 
rangement or dissection of the evidence shall be required. The 
abstract should present a summary of the public records of all 
grants, patents, conveyances, wills, mortgages, judgments, taxes, 
assessments, mechanic's liens, attachments, lis pendens notices, 
judicial orders or decrees affecting the title in any way, and all 
other liens which may incumber the title. It should contain what- 

187 



§ 161 TITLES AND ABSTRACTS 188 

ever concerns the sources of title and its conditions, whether these 
tend to confirm the title or to impair it. Every part of a recorded 
instrument which may have a bearing on the condition of the 
title should be set out. 

§ 161. Scope and extent of the examination. — Mention 
has already been made of the period for which title should be 
shown/ but in this connection we deem it important to refer to 
the subject more in detail even at the risk of repetition. In the 
preparation of an original abstract to land, and the contract of 
employment places no limitation upon the period for which the 
search is to be made, it is customary to carry the search back to 
the time when the title emanated from the government, and to 
continue it to the date of the certificate, showing not only all con- 
veyances affecting the title for the period, but all liens or incum- 
brances of record affecting the title, and in the case of titles de- 
rived from the judgments or decrees of courts in judicial pro- 
ceedings, as well as ministerial acts of officers of the government. 
It should show the essential parts of every instrument in the chain 
of title for the period, such as the names of the parties, description 
of the property conveyed or devised, words of grant or devise, 
and the like. In the older states it is sometimes impossible, owing 
to the condition of the records, to trace a title from the original 
patent. In such cases it is said the title should be shown for a 
period of not less than forty years. The abstracter first finds the 
patentee from the government, if the records permit him to go 
back that far. The patentee being found, his name is searched 
for in the alphabetical list of grantors to find a conveyance from 
him. When a conveyance from him to another person is found 
the patentee becomes a stranger to the title, the search being con- 
tinued in the alphabetical list of grantors from the date of the 
conveyance to such other person, and so on down to the convey- 
ance by the last grantor in the chain of title. But the examiner 
is not bound to look for deeds of any person through whom the 
title passed, before the date of his record title.^ And where there 
is an agreement to make a search from and after a certain speci- 
fied date the examiner is not bound to inquire or state whether 
the title vested in any grantee during the time covered by the 
search is affected by any prior mortgage or conveyance, or by any 

iChap. 1, § 8. 2Dodd v. Williams, 3 Mo. App. 

278. 



189 COMPILATION OF ABSTRACT § 162 

estoppel growing out of any covenants in any such conveyance.' 
A properly prepared tract index will disclose at a glance any con- 
veyance or mortgage from a grantee, recorded within a short 
time before he obtained title and will give actual notice of any 
such instrument. 

In the absence of instructions to the contrary, an abstracter is 
bound to examine and certify for judgments against any grantee 
who has taken title to the land during the period covered by 
the search. These propositions seem simple and certain. It is 
in accordance with the principles of good abstract making to dili- 
gently search for judgments against every grantee of the title at 
least back to such time as the statute of limitations would be a 
bar to their enforcement. A tax or judgment lien may have its 
inception at a time antedating the period of the search, but at- 
taching during such period, and it would be gross neglect not to 
show it on the abstract. 

§ 162. Preliminary sketch of chain. — Before the final draft 
of the abstract is attempted the various indexes and reference 
books should be carefully searched and a note made of each in- 
strument or transaction in any way affecting the title to the 
land under consideration. The tract index will show all con- 
veyances, incumbrances and liens. The index of tax sales will 
disclose all sales or forfeitures for nonpayment of taxes. Where 
special indexes are kept for confirmed special assessments such 
assessments should be found in such index, but if it is the practice 
to post them in the general tract index, they should be looked for 
in the latter book. Money judgments which are a lien on the 
land will be found in the judgment index. Execution sales, and 
sales made in pursuance of an order or decree of a court of 
equity are usually posted in the general tract index, but if separ- 
ate indexes are kept for these they must be looked for in these 
indexes. The irregular index must be searched for powers of 
attorney, instruments of release and satisfaction, confirmations 
and assignments, affidavits as to dower, heirship or kindred mat- 
ters, and all conveyances describing no property or property of 
indefinite location. After a brief note has been made of each 
instrument or transaction found in this search of the indexes the 
examiner should proceed to verify same with the entries in his 

3 Wakefield v. Chowen, 26 Minn. 379, 4 N. W. 618. 



§ 163 TITLES AND ABSTRACTS 190 

book of original entries and with the records in the registry- 
offices. If the original entries were made in long form the greater 
portion of the abstract can be made up from this book without 
consulting the records. This practice, however, is not recom- 
mended, as a mistake in transcribing the instrument may be dis- 
covered by a comparison of the original entry with the record. 
When this verification is completed, the examiner has before him 
a complete abstract of each instrument, proceeding, etc., affecting 
the title to the property under consideration. These are then 
numbered and arranged in the order of their appearance on the 
completed abstract. The abstracter should make his comparisons 
with the record and not with the index thereof, unless the party 
employing him agrees that in the making of the abstract the 
examiner may rely upon the index alone for his information.* 

§ 163. Formal parts of the abstract. — The documents and 
facts upon which a title is based should not only be methodically 
stated, Tjtit should be assembled in such a manner as to enable 
counsel in passing upon the sufficiency of the title to perform his 
work with the least possible confusion. The time of counsel 
may be saved, and his labor greatly facilitated, if the entries be 
made in logical and chr6nological order. Every abstract should 
be headed with a caption containing a description of the real 
estate which is the subject-matter of the examination. Thus the 
mind of the reader is directed at once to the person for whom the 
search is made, the property it relates to, and when the search was 
made. The caption does not always mention the person for 
whom the search was made, or the time when made, but is usually 
confined to a description of the land. It is the practice of some 
abstracters to follow the caption with a plat showing the location 
of the land with reference to the section or addition wherein it is 
situated. The various searches are next arranged under classified 
heads and numbered consecutively from the beginning. The ab- 
stract closes with a certificate signed by the examiner setting 
forth the scope and extent of the examination. 

§ 164. The caption. — We have already said that the office 
of the caption is to apprise the reader of the subject-matter of 
the examination, and to accomplish this object' a correct descrip- 
tion of the property is all that is required. But the custom 

* Crook V. Chilvers, 99 Nebr. 684, 157 N. W. 617. 



191 COMPILATION OF ABSTRACT § 165 

generally prevails of stating in connection with the description 
the time from which the search is made. It was the practice of 
English abstracters to state in the caption whose title it is, and 
for what interest, but since it is the duty of counsel to determine, 
from the examination as a whole, the party in whom the title is 
vested, and the nature of such title, there no longer exists any 
reason for such statement. A title is made up of a series of docu- 
ments and of facts, and it is the duty of the abstracter to set forth 
in methodical order a statement of the contents of these docu- 
ments and facts, leaving to counsel the duty of determining in 
whom the title rests, and to what extent, if any, it is incumbered. 

The following form of a caption is submitted: 

Abstract Of Title to The Northwest quarter of the Southeast 
quarter of Section thirty-two (32) in Township one hundred 
twenty-eight (128) north of Range seventy (70) west of the fifth 
(5th) principal meridian, in McPherson County, State of South 
Dakota, and containing forty (40) acres more or less. 

The above form of caption is used for an original examination, 
but should the examination be only a continuation of a former 
search, the words "Continuation of" should precede the word 
"Abstract" in the first line of the caption, and the description 
should be followed by a statement of the time from which the 
search dates, thus : 

This examination commencing Jan. 12, 1896. 

If it is desired to state in the caption both the time of begin- 
ning and the time of ending the search, as is sometimes the 
practice, the description should be followed by a statement similar 
to the following: This examination beginning Jan. 12, 1896, 
and ending Aug. 26, 1910, inclusive of both dates. 

The time covered by the search should always be stated in the 
certificate of the examiner at the close of the abstract. 

Where the search is to extend from the date of a particular 
conveyance, or where it is to be special, the caption should defi- 
nitely state the extent and scope of the search, or this should be 
distinctly set forth in the certificate. 

§ 165. Arrangement o£ the abstract, — An abstract may 
contain every matter of record and every fact in any way affecting 
the title to a particular tract of land, and yet be very confusing 
from the mere inattention of the searcher to the details of ar- 
rangement. It is the practice of most abstracters to group all the 



§ 166 TITLES AND ABSTRACTS 192 

instruments or transactions of a certain class together and to set 
them out in chronological order. Thus deeds and grants are 
usually shown in the order of their appearance on the records. 
Mortgages and liens are sometimes shown in the same manner. 
While it is the better practice to show liens and incumbrances 
under classified heads, mortgage liens are better shown in regular 
chronological order in the chain. When considered simply as 
liens, mortgages might, before default or foreclosure, with pro- 
priety, be shown with other liens, but after default and fore- 
closure they constitute muniments of title, and should appear 
in the chain in regular chronological order. By placing all mere 
liens, charges, and incumbrances under one classification the sym- 
metry of the title is best preserved, and counsel is enabled to 
obtain a clearer view of the title than he could possibly obtain 
were they inserted in the chain in the order of time at which 
they took effect. When liens or incumbrances are inserted in 
the chain in chronological order with other instruments, the re- 
leases or discharges should appear immediately after them, re- 
gardless of the time when such releases or discharges took effect. 

The instruments or transactions forming muniments of title 
constitute the links in the chain, and these links should be placed 
in the chain in chronological sequence, from the earliest to the 
latest. Among these may be mentioned, patents, grants, deeds, 
mortgages after default and foreclosure, decrees, judgments and 
orders affecting the land, and tax deeds. A sheriff's deed under 
execution should appear in the order mentioned, and should be 
immediately preceded by the judgment. Official deeds made in 
pursuance of a decree or order of court are muniments of title 
and should be preceded by the proceedings and decrees upon 
which they are based. 

At the end of the chain should be shown under classified heads, 
judgments against the person, mechanic's liens, taxes and tax 
sales, mortgages not yet due, and any other liens or incumbrances 
shown by the public records. 

Experience has demonstrated that an abstract arranged in the 
order suggested above gives the least trouble to counsel in making 
his analysis of the title. The arrangement shows a permanent 
chronological record of the title for the time covered by the ex- 
amination. 

§ 166. Synopsis of instruments and proceedings. — In this 
country there is no uniform style or system used in displaying 



193 COMPILATION OF ABSTRACT § 166 

the various instruments and proceedings on the abstract. Each 
individual abstracter is at liberty to exercise his own tastes in the 
matter, and to employ whatever system which seems to him most 
convenient and practical. A great many abstracters, especially in 
the older states, still employ, with more or less variation there- 
from, the system of English abstracters. What is known as the 
"New England Abstract" is apparently an offshoot from the 
English system, which it resembles in many respects. By the 
New England method the page of th& abstract is ruled by vertical 
lines into four columns. At the top of the page and immediately 
above these columns is written the name of the grantor and the 
date from which his title is traced. In the first column on the 
left is placed the date of execution, date of acknowledgment, date 
of recording, and the name of the officer taking the acknowledg- 
ment. In the next column to the right is noted the book and 
page of the record. The next column contains the names of the 
grantees, the consideration, notes referring to dower and home- 
stead, the words of grant, covenants, and notes regarding de- 
fects in form. In the last column to the right is inserted the 
description, the incumbrances, conditions, recitals, etc. 

The form of synopsis employed by most abstracters of this 
country, especially throughout the middle and western states is 
very simple, and is generally conimended by the legal profession. 
By this method the matter pertaining to a particular transaction 
fonning a muniment of title is headed by a caption, containing 
the names of the parties thereto, the capacity or office in which 
the parties act or receive, and whatever else is deemed necessary 
in the way of explanation or identification. This caption is some- 
times written across the page, but more often it is placed at the 
left hand side of the page and separated from the remainder of 
the page by a line or bracket. To the right of this line or 
bracket is inserted the nature of the instrument or transaction, its 
date, the date of recording, the book and page where recorded, 
and if a court proceeding, the case number and the name of the 
court. Following this, and written across the entire page, the 
recitals are set out. These may be paragraphed as required, but 
need not be separated otherwise. Notes may be distinguished 
from other matter by sHght indentation. For the convenience of 
counsel in making notes, a margin one inch or more in width is 

13 — Thomp. Abste. 



§ 167 TITLES AND ABSTRACTS 194 

usually reserved on the left side of each page. Examples of the 
form of synopsis we have just described will be shown hereafter. 
It will be observed that this form of synopsis is not only neat and 
compact in appearance, but enables the reader to see at a glance 
any portion of an instrument without having his attention diver- 
ted to other parts of the abstract. 

§ 167. Fullness of synopsis. — We have said that the pur- 
pose of an abstract is to enable one interested in the title to a 
particular tract of land to determine its sufficiency without hav- 
ing to refer to the original source for information. This would 
include all the material parts of the records of all grants, patents, 
conveyances, wills, documents and all judicial proceedings which 
may affect the title in any way, and of all mortgages, judgments, 
taxes, assessments, mechanic's liens, lis pendens notices or other 
liens which may incumber the title. There should be set out 
every part of an instrument or proceeding, which may have a 
bearing on the title, and one who has procured an abstract has a 
right to assume that any part which is not set out has no bearing. 
The abstracter must decide for himself whether an instrument 
or any part thereof is required to be transcribed literally, or 
should be abstracted merely. It is not always an easy matter 
for the average abstracter to determine what parts of a particu- 
lar instrument or proceeding are material and what parts are not 
material. When in doubt about whether he should set out a 
particular part of an instrument, he should take no chances by 
omitting it. The tendency is to include too much, rather than not 
enough. Much time and labor of counsel is saved if all unnec- 
essary verbage and redundant matter is omitted from the abstract. 
It rarely ever occurs that an instrument may not, with perfect 
safety, be digested in such a way as to show its pith and substance 
without impairing its significance. 

It must be borne in mind, however, that certain instruments ap- 
pearing in a chain of title are best presented in the language of 
the originals. Thus, an abstract of a conveyance containing con- 
ditional or strictive clauses should quote these clauses fully, and 
should not merely state them according to what seems to the ab- 
stracter to be their legal efifect, and as the construction to be 
placed on such clauses may depend on other parts of the instru- 
ment, a copy of the entire instrument should be set out. Every 
part of a will, except, perhaps, the preamble and bequests or gifts 



195 COMPILATION OF ABSTRACT § 168 

of personalty, should be set out literally, in order that counsel may 
have an opportunity of judging by the context as well as by the 
particular words, the effect of the devise. 

§ 168. Abstracter's notes. — It is the practice of many ab- 
stracters to insert explanatory notes and comments relative to 
certain matters contained in the abstract. These are often highly 
important and useful in clearing up obscure statements, and in 
assisting counsel in arriving at a proper estimate of the matters 
to which they relate. The abstracter, by his constant use of the 
public records and private papers, becomes familiar with the 
histories of titles and learns of weaknesses and defects, and he 
is bound to disclose to his employer all pertinent information ac- 
quired by him in the course of his investigations. Such informa- 
tion should be appended immediately after the instrument or 
transaction to which it relates, but should this be impracticable, 
it may be inserted at the end of the abstract, immediately before 
the certificate. If it becomes desirable or necessary to insert 
notes in the abstract, they should be confined to a brief statement 
of facts, and none should be inserted which do not in some way 
tend to clarify or explain an ambiguity in the entry to which they 
relate. Frequent and voluminous note making only serves to con- 
fuse and distract the mind of the examining counsel, but when 
they are pertinent and concise they become a valuable contribution 
to the examination. 

§ 169. Exhibiting instruments for reference. — Instru- 
ments outside the chain, but which are collaterally connected with 
the title are frequently exhibited for the purpose of reference in 
obtaining a clearer view of the title under consideration. Where 
this is done the instrument should be shown immediately after the 
deed or other instrument which it affects or explains, and should 
be preceded by a note stating that it is shown for the purpose of 
reference only. 

§ 170. Showing irregular instruments. — A search of the 
index of irregulars will often disclose certain instruments of an 
irregular and independent character, which are not muniments 
of title, but which, from their nature and contents, are required 
to be shown in order to throw light upon some instrument or 
transaction claimed^ as a muniment of title. Thus a certain in- 
strument outside the chain of title being made up may contain an 



§ 171 TITLES AND ABSTRACTS 196 

affidavit of dower, heirship, or kindred matters which may have 
an important bearing upon the title under consideration, and 
should be properly set out. The contents of instruments in- 
tended primarily to affect lands other than those being abstracted 
may affect collaterally the lands under consideration. 

§ 171. Showing mistakes made in transcribing instru- 
ments. — It is the duty of the abstracter to exhibit instru- 
ments as they appear on the public records regardless of the fact 
that they have been incorrectly transcribed. The abstracter's 
book of original entries is made up from the original instrument 
when it is filed for record, but in compiling the abstract he com- 
pares this entry with the record, and may discover an error in 
transcribing. After satisfying himself that the recording officer 
has made a mistake, it becomes the abstracter's duty to note on the 
abstract the fact of such mistake and make reference to the orig- 
inal document. This note should follow the synopsis of the er- 
roneous document as an appendix thereto. 

§ 172, Abbreviations. — The use of abbreviations by the 
abstracter in preparing his notes and making up his indexes and 
reference books is a matter wholly within his own choice, but he 
should be able to interpret them readily. Much time and labor 
may be saved by abbreviating the names of the points of the 
compass with the initial letter thereof. In the same manner the 
different classes of conveyances may be abbreviated. Govern- 
mental subdivisions of land are invariably abbreviated in these 
books and in the abstracter's notes. In compiling the abstract, 
however, the form found in the record must be used. If a name 
or word is abbreviated in the record it must appear in the abstract 
in the same form, and if they are written out in full in the 
record they must be written out in full in the abstract, and where 
words are abbreviated in the record their abbreviation in the ab- 
stract should be enclosed in quotation marks. This relieves the 
abstracter of the responsibility of interpreting them. We do not 
wish to, infer that abbreviations may not be made of terms used 
in the record when they are such as are commonly accepted in 
compiling legal documents, but we deem it the safer practice to 
copy into the abstract whatever abbreviations may be found on 
the record. 



197 COMPILATION OF ABSTRACT § 173 

§ 173. Preserving copy of abstract. — As a matter of self- 
protection, if for no other reason, the abstracter should make and 
carefully preserve a copy of each and every abstract compiled by 
him. This may be readily done by use of a letter press, or pref- 
erably by use of the carbon sheet if the typewriter is used. Aside 
from their use in verifying work delivered to clients, they obviate 
the necessity of an examination of the records in case the ab- 
stracter is called upon to prepare another abstract of the same 
property or a subdivision thereof. These copies should be ar- 
ranged in book form and the pages carefully numbered. There 
should be noted on the tract index opposite the entry of the in- 
strument under consideration the volume and page of the copy 
book where the duplicate copy may be found. 

§ 174. Abstracter's certificate. — Immediately at the end 
of the abstract proper should be written the abstracter's cer- 
tificate of search. This should briefly show the fact that he has 
examined the indexes to, and the records of, conveyances, mort- 
gages, judgments, lis pendens, mechanics' liens, tax sales, and con- 
firmed special assessments, and that there are no conveyances, 
judgipents, liens, tax sales, forfeitures and confirmed special as- 
sessments for the period covered by the abstract, except as noted 
in the abstract. The number of pages of the abstract should be 
given in the certificate. The certificate should be dated as of the 
date of the examination, and signed by the examiner. Where the 
entries on the abstract are in all respects true, according to the 
terms of the certificate, and the abstract and certificate are satis- 
factory to the person ordering them, the examiner has completed 
his contract. If he has not performed his work in a thorough 
and skilled manner, or if he discovers that it is impossible for 
him to furnish a complete and trustworthy abstract, it becomes 
his duty to state that fact in his certificate. If he fails in this 
respect his employer will have a right to rely on the completeness 
of the abstract.^ The examiner can not, by a vague and obscure 
certificate, limit his liability. If he states in his certificate that 
he finds of record no liens on the property in question, this is 
equivalent.to stating that there are none of record.^ Where the 
certificate to an abstract stated that it was a "full, true and com- 

s Chase v. Heaney, 70 111. 268. « Philadelphia v. Anderson, 142 Pa. 

St. 357, 27 Atl. 976. 



§ 174 TITLES AND ABSTRACTS 198 

plete abstract of the title," this was held to cover suits affecting 
the title as well as conveyances or incumbrances/ We have seen 
that an abstracter may limit his liability by a certificate that he 
has examined the records in certain offices only. Thus, where a 
certificate states that a careful search has been made of the rec- 
ords of the office of the county clerk, the clerk of the district 
court, the county treasurer, and that there are no liens of record 
upon the property described except as mentioned in the abstract, 
it was held that an omission from the abstract of a prior mortgage 
upon the property, then of record in the office of the register of 
deeds, it was held that on account of the limitation contained in 
the certificate, there could be no recovery in a suit upon the bond 
of the abstracter for loss occasioned by such omission.® The 
contents of the certificate should conform to the agreement be- 
tween the abstracter and his employer, and should be definite and 
certain in its statements. If the examination was made from the 
records this fact should be stated, and where it was made from the 
examiner's indexes the certificate should so state. The following 
form of certificate will illustrate the points we have been con- 
sidering : 

Certificate of Abstracter 

This is to certify- that I have made a careful examination of 
the records in the Recorder's Office, the General Judgment Dock- 
ets of the Marion Circuit, Superior and Probate Courts, the Lis 
Pendens Records of complaints and attachments, the tax Dupli- 
cates and Municipal Assessment Records in the Treasurer's Of- 
fice, and the Indexes of Tax Sales in the Auditor's Office, all in 
Marion County, Indiana, as said records and dockets are now en- 
tered, and I find that there are no instruments of conveyance or 
unsatisfied incumbrances of record or on file in any of the offices 
aforesaid in any manner affecting the title to the real estate de- 
scribed in the caption of this abstract, except such as are shown 
above and included on pages one to twenty-five of this abstract. 

Witness my hand and seal this 12th day of April, 1901. 

John Jones, Abstracter. 

7 Thomas v. Schge, 80 Iowa 237, 45 « Thomas v. Carson, 46 Nebr. 765, 
N. W. 539. 65 N. W. 899. 



199 COMPILATION OF ABSTRACT § 174 

Where the abstract is a continuation of a former abstract made 
by the same party the certificate may take the following form : 

Certificate of Continuation 

I, John Jones, hereby certify that I have made a careful re- 
examination of the records in the Recorder's Office, the General 
Judgment Dockets of the Marion Circuit, Superior and Probate 
Courts, the Lis Pendens Records of complaints and attachments, 
the Tax Duplicates and Municipal Assessment Records in the 
Treasurer's Office, and the Indexes of Tax Sales in the Auditor's 
Office, all in Marion County, Indiana, as said records and dock- 
ets are now entered, and that there are no conveyances, judg- 
ments, mechanics' liens, unpaid taxes, instruments or liens of any 
kind, of record or on file in any of the offices aforesaid in any 
manner affecting the title to the real estate described in the cap- 
tion to the within abstract, except as shown in this continuation 
of abstract and included on pages one to five thereof. 

Continued from April 12, 1901. 

Witness my hand and seal this 1st day of September, 1910. 

John Jones, Abstracter. 

Where the abstracter is employed to make and furnish an ab- 
stract of title to certain land from a date when the title is as- 
sumed to be in a given person, the name of such person and the 
fact that the title is assumed to be in him at the time the examina- 
tion is to commence should be set out in the certificate. 

Where instruments are shown for reference only there is no 
necessity for following the chain of title to which it properly be- 
longs, but a note should be placed, either immediately after the 
abstract of the instrument, or in the certificate, explaining the 
purpose for which the instrument is shown, and reciting the fact 
that no examination was made for conveyances or judgments 
against any person connected with such collateral title. 

Where the real estate described in the caption is in two or more 
separate parcels or tracts, and the date of the commencement of 
the examination is not the same for each tract, the date from 
which the examination was made for the respective tracts must 
be mentioned in the certificate. 



CHAPTER VIII 



BEGINNING OF TITLE 



SEC. 

180. Inceptive stages of title gener- 
ally. 

181. Source of title shown by com- 
plete chain. 

182. Methods of transfer under gov- 
ernment land laws. 

183. Who may acquire title to public 
lands. 

184. Power of congress to dispose of 
public lands. 

185. Disposal of state lands. 

186. Direct legislative grants. 

187. Form and construction of direct 
legislative grants. 

188. Abstracting legislative grant. 

189. Confirmation acts and decrees. 

190. Transfer by public sale. 

191. Appropriation by private entry. 

192. Nature of entryman's title. 

193. Lands subject to entry. 

194. Statement of the entry. 

195. Receipts, certificates, etc., issued 
by register or receiver. 

196. Pre-emption. 

197. Pre-emptor's right or title. 

198. Contracts and conveyances be- 
fore entry. 



SEC. 

199. Graduation acts. 

200. Homestead and free grants. 

201. Nature of rights acquired by 
homesteader. 

202. Donations and bounty lands. 

203. Land warrants and scrip. 

204. Desert land entries. 

205. Timber and stone lands. 

206. Timber culture claims. 

207. Swamp land grants. 

208. School and university land 
grants. 

209. Statement where - title founded 
on school land grant 

210. Grants for internal improve- 
ment. 

Initial statement of abstract 
where title based on grant for 
internal improvements. 
Land grants to railroads. 
Grant for public highway. 
Private land claims. 

215. Town site entry. 

216. Initial statement of abstract 
where title obtained through 
town site entry. 



211. 



212. 
213. 
214. 



§ 180. Inceptive stages of title generally. — All lands 
ceded to the confederation by individual states, as well as those 
. acquired by the present government from foreign powers, was, 
for the most part, free from any claims of ownership by indi- 
viduals, and became the exclusive property of the national govern- 
ment, to be disposed of to such persons, at such times, in such 
modes, and by such titles, as seemed expedient. In admitting 
new states into the' union, this right of disposition of the public 
lands has been uniformly reserved in the admission act. But by 
the terms of their charters, some of the original colonies which 
became states reserved the right when the union was formed to 
hold and dispose of the lands within the boundaries of their re- 

200 



201 BEGINNING OF TITLE § 180 

spective grants independently 'of the nation.^ The ownership of 
the United States of lands- within the limits of the original states 
is based upon cessions from the states.^ In acquiring territory 
from foreign powers by treaties and annexation, the United 
States agreed that titles held by grant from such foreign powers 
should be respected and treated as valid. But lands vacant and 
unappropriated at the date of the treaty or cession became part 
'of the public lands of the United States/ and the new states which 
have been formed out of such territory have no title to vacant 
and unappropriated lands within their borders,* save in so far 
as such lands have been granted to theta by the federal govern- 
ment/ "The system adopted for the disposition of public lands 
embraces the interests of all the states, and proposes the equal 
participation therein of all the people of all the states. This 
system is, therefore, peculiarly and exclusively the exercise of a 
federal power. The theater of its accomplishment is the seat of 
the federal government. The mode of that accomplishment, the 
evidences or muniments of right it bestows, are all the work of 
federal functionaries alone."^ It is beyond the power of a state 
or territory, by its law, to interpose and dictate to the federal 
government, to whom, and in what mode, and by what title, the 
public lands shall be disposed of. The land laws provide for cer- 
tain preliminary steps to be taken before title passes from the sov- 
ereign to the individual. Such provisions are embodied in the 
various acts of congress passed from time to time in furtherance 
of the plan to develop the country, and these steps constitute the 
initial link in the chain of title when traced from the government. 
Wherever practicable the abstract should start out with a recital 
of these preliminary proceedings, but in the older sections of the 
country where titles originated in colonial or state grants these 
preliminary steps, of course, do not appear, and the abstract 
should commence with some other well authenticated fact ante- 
dating the period prescribed by statute for the bringing of an 
action to recover land. 

1 People V. Livingston, 8 Barb. (N. United States v. Berrigan, 2 Alaska 
Y.) 253; Pollard v. Hagan, 3 How. 442. 

(U. S.) 212, 11 L. ed. 565. *Stoner v. Royar, 200 Mo. 444, 98 

2 Pollard V. Hagan, 3 How. (U. S.) S. W. 601. 

212, 11 L. ed. 565. ^Ward v. Mulford, 32 Cal. 365. 

3 People V. Fblsom, 5 Cal. 373 ; Ter- « Irvine v. Marshall, 20 How. (U. 
ritory v. Lee, 2 Mont. 124; State v. S.) 558, IS L. ed. 994. 

Kennard, 57 Nebr. 711, 78 N. W. 282; 



§ 181 TITLES AND ABSTRACTS 202 

As one of the results of the Revolutionary War, title to the ter- 
ritory occupied by the thirteen colonies, and of the so-called 
"Northwest Territory," passed to the colonies and states. Indi- 
vidual claims, however, based upon grants from the crown or 
colonial governments, were made to portions of this territory, 
and such claims have been respected and confirmed by special acts 
of congress or in conformity to general laws on the subject/ 

§ 181. Source of title shown by complete chain. — ^The 
practical question to be determined by the examiner is the source 
of title, whether it appear in the abstract or not. In most com- 
munities these general sources are understood, and there is gen- 
erally some conceded starting-point, as the patent, a deed from a 
canal trustee, etc. A complete chain of title, especially of the 
states of Ohio, Indiana, Michigan, Illinois and Wisconsin, com- 
prising the Northwest Territory, will show : ( 1 ) The proclama- 
tion of discovery ; (2) the grant by the king of Great Britain and 
his council to the original Virginia patentees; (3) the treaty of 
peace, whereby the colonists were confirmed in their rights ; (4) 
the Act of Virginia of 1783, authorizing the Virginia delegates to 
cede the Northwest Territory; (5) the Ordinance of 1787; (6) 
the treaties of the United States with the Indians whereby they 
vacated; (7) the government survey which defined the boun- 
daries; (8) the act of congress which placed the land on the mar- 
ket ; (9) the certificate of the receiver of the land office ; and ( 10) 
the patent from the government. It is seldom practicable, or 
even necessary to include these inceptive measures in the abstract, 
as nothing passes a perfect title to public lands but a patent; the 
sole exception being a direct grant by act of congress. 

§ 182. Methods of transfer under government land laws. 

— Title to the public lands is vested in the United States,^ and 
congress has the sole power of disposition thereof and of making 
all needful rules and regulations with respect to the public do- 
main,° and has the absolute right to prescribe the times, the con- 
ditions, and the modes of disposing of any part of it.^" 

' United States v. King, 3 How. (U. ris, 2 Sawy. (U. S.) 176, 24 Fed. Cas. 
S.) m, 11 L. ed. 824; McMicken v. No. 14371. 

United States, 91 U. S. 204, 24 L. ed. » Gibson v. Chouteau, 13 Wall. (U. 
947. S.) 92, 20 L. ed. 534. 

8 Union Mill and Mining Co. v. Far- "> Gibson v. Chouteau, 13 Wall. (U. 

S.) 92, 20 L. ed. 534. 



203 BEGINNING OF TITLE § 183 

Only a brief mention can be here made of the different methods 
employed from time to time by the federal government in dispos- 
ing of public lands. For details of these methods the reader is 
referred to the United States Revised Statutes and the Statutes 
at Large. ^^ Under these laws may be included : ( 1 ) Public and 
private sales; (2) appropriation by private entry; (3) transfer 
by pre-emption; (4) homestead and free grants; (5) desert land 
entries; (6) timber culture claims; (7) bounty land claims; (8) 
swamp land grants; (9) school land grants; (10) grants for in- 
ternal improvement; (11) railroad grants; (12) mineral land 
grants, and (13) grants for public highways. The jurisdiction 
of the land department over public lands continues so long as the 
legal title remains in the United States. The issuance of a pat- 
ent, or such other act as passes the legal title from the govern- 
ment, is the final act and the expression and entry of the final 
judgment, of the officers of the land department, and marks the 
termination of the jurisdiction of these officers.^^ While the 
various measures passed for the disposal of the public domain 
create vested interests or give rise to equitable rights, the legal 
title remains in the government until the issuance of the patent 
or the performance of such other act as passes the title of the gov- 
ernment.^^ The mere right to acquire public lands, even if it be 
preferential, is not property in the lands.^* 

§ 183. Who may acquire title to public lands. — The va- 
rious acts of congress providing for the disposal of public lands 
prescribe the qualifications necessary to entitle persons to acquire 
title thereunder. Such acts usually provide that the applicant 
shall be the head of a family,^^ a widow,^® or a person over the 
age of twenty-one years,^^ and shall be a citizen of the United 
States,^^ or has declared his intention to become such at the time 
of his entry.^' An entry by an alien, however, has been held 
voidable but not void, his rights in this respect being subject only 

"U. S. Rev. Stat., §§ 2207-2490. is Ely v. Ellinton, 7 Mo. 302. 

12 Peyton v. Desmond, 129 Fed. 1, " Page v. Hobbs, 27 Cal. 483. 

63 C. C. A. 651. "Tatro v. French, 33 Kans. 49, S 

" Northern Lumber Co. v. O'Brien, Pac. 426. 

124 Fed. 819 ; Sims v. Morrison, 92 i^ Bogan v. Edinburgh American 

Minn. 341, 100 N. W. 88. Land Mtg. Co., 63 Fed. 192, 11 C. C. 

"Seattle & L. W. Waterway Co. A. 128. 

V. Seattle Dock Co., 35 Wash. 503, 77 ^ Merriam v. Bachioni, 112 Cal. 

Pac. 845. 191, 44 Pac. 481. 



§ 184 TITLES AND ABSTRACTS 204 

to such limitations as the particular states may prescribe.^" Thus 
it has been held that a person of foreign birth who is otherwise 
duly qualified, is entitled under the pre-emption laws, after hav- 
ing in due form declared his intention of becoming a citizen, and 
before becoming fully naturalized, to file and maintain a pre- 
emption claim.^^ The statutes sometimes exclude persons who 
are, at the time of entry, seised in fee simple of a designated num- 
ber of acres of land in any state or territory.^^ Under the terms 
of the statutes corporations are not entitled to acquire pubHc 
lands,^' and entry made by an individual acting on behalf of a 
corporation to which he conveys the land, is invalid.^* Officers, 
clerks and employes of the general land ofifice are prohibited from 
directly or indirectly purchasing or becoming interested in the 
purchase of any of the public lands.^^ Under the pre-emption 
laws one person can not enter public lands for the use and benefit 
of another.^" Also a pre-emption for a partnership can not be 
made by one member of the firm.^' 

§ 184. Power of congress to dispose of public lands. — The 

United States being the primary source of title to all public lands, 
congress has full power to dispose of it^^ whether it is within the 
limits of a state or a territory.^" The power to designate the per- 
sons or classes of persons to whom conveyances of the public 
land may be made is vested in congress.^" The land department 
has no arbitrary, unlimited or discretionary power to sell or grant 
public lands,^^ but the federal government or its officers may make 
such regulations for their use and disposal as are authorized by 
law.^^ A grant to a state to be disposed of by the latter may be 
made subject to conditions for such disposal.^^ The question, 
whether a title to a portion of the public domain has passed from 
the United States, must depend exclusively upon the laws of the 

2» 10 U. S. Stat, at L., § 649. 2s United States v. Ashton, 170 Fed. 

21 Boyce v. Danz, 29 Mich. 146. 509. 

22 Gourley v. Countryman, 18 Okla. 2s> Union Pac. R. Co. v. Karges, 169 
220, 90 Pac. 427. Fed. 459. 

23 Salina Stock Co. v. United States, so Gibson v. Chouteau, 13 Wall. (U. 
85 Fed. 339, 29 C. C. A. 181. S.) 92, 20 L. ed. 534; United States 

2* Pacific Live Stock Co. v. Gentry, v. Shannon, 151 Fed. 863. 

38 Ore. 275, 61 Pac. 422, 65 Pac. 597. si Hoyt v. Weyerhauser, 161 Fed. 

25 U. S. Comp. Stat. 1901, p. 257. 324. 

26 Robinson v. Jones, 31 Nebr. 20, S2 Stewart v. United States, 206 U. 
47 N. W. 480. S. 185, 27 Sup. Ct. 631, 51 L. ed. 1017. 

2T In re Groome, 94 Cal. 69, 29 Pac. S3 Brigham City v. Rich, 34 Utah 
487. 130, 97 Pac. 220. 



205 BEGINNING OF TITLE § 185 

United States, and when it has so passed it then becomes subject 
to state laws.^* 

§ 185. Disposal of state lands. — The legislature of a state 
has the sole power of disposition of lands belonging to it within 
its boundaries,"^ and, as in the case of 'the federal government, it 
has the power to designate the persons or class of persons to 
whom conveyance may be made."^ This right of disposition 
may be by direct legislative grant,^'' or by patent issued under 
statutory authority/* 

The state may impose conditions for the disposal of its lands, 
compliance with which is necessary to vest title."' It may make 
special agreements of sale,*" and, so far as its own rights are con- 
cerned, may validate what has been irregularly done.*^ The title 
to state lands may be transferred by special act,*^ or by patent is- 
sued in conformity with' law.*" 

There is a lack of uniformity among the states in the modes of 
disposing of public lands, and it would be beyond the scope of 
this work to describe them. In most of them a patent is effectual 
to pass the title, although the issuance of a patent is not necessary 
where there has been a direct legislative grant.** It is not neces- 
sary, however, to the passing of a complete title that a patent 
should be delivered, or even accepted by the grantee.*' The 
patent operates merely as a quitclaim of the state's interest in 
the land.*^ No valid title to state lands can be acquired until all 
the statutory requirements have been complied with.*' 

Like a certificate of sale of federal lands, a certificate of sale 
issued of state lands does not pass a fee simple title; but such 

3* Wilcox V. Jackson, 13 Pet. (U. « Ellerd v. Cox, 52 Tex. Civ. App. 

S.) 498, 10 L. ed. 264. 60, 114 S. W. 410. 

S5 Chisholm v. Caines, 67 Fed. 28S; ^i Steele v. Bryant, 132 Ky. S69, 116 

Patterson v. Trabue, 3 J. J. Marsh. S. W. 755. 

(Ky.) 598; State v. Lanier, 47 La. «2Hall v. Jarvis, 65 111. 302; Cary 

Ann. 568, 17 So. 130; Weiler v. Mon- v. Whitney, 48 Maine 516. 

roe County, 76 Miss. 492, 25 So. 352 ; *3 Lovin v. Carver, ISO N. Car. 710, 

Wyman v. Taylor, 124 N. Car. 426, 64 S. E. 775 ; Miller v. Moss, 65 Tex. 

32 S. E. 740. , 179. 

3« State V. Nashville University, 4 ** Hall v. Jarvis, 65 111. 302 ; Cary 

Humph. (Tenn.) 157. v. Whitney, 48 Maine 516. 

s'Hall V. Jarvis, 65 111. 302; Cary ^s shearer v. Clay, 1 Litt. (Ky.) 

V. Whitney, 48 Maine 516. 260. 

38 Chinoweth v. Haskell, 3 Pet. (U. *» Innes v. Crawford, 2 Bibb. (Ky.) 

S.) 92, 7 L. ed. 614; Lovin v. Carter, 412. 

ISO N. Car. 710, 64 S. E. 775. *? Dunn v. Ketchum, 38 Cal. 93. 

3' State V. Cross Lake &c. Fishing 
Club, 123 La. 208, 48 So. 891. 



§ 186 TITLES AND ABSTRACTS 206 

certificate entitles the purchaser to the beneficial interest in the 
land, and clothes him with the right of possession, enjoyment, 
descent, devise and alienation. But the state does not surrender 
the dominion and control of the land until the issuance of the 
patent/^ The certificate of sale of state lands must be issued 
by the duly authorized officer. It should describe the land sold, 
the amount of the purchase-price, the amount paid, and the 
amount remaining due, if any, and the time, place and terms of 
payment of such remainder. 

§ 186. Direct legislative grants. — Congress has power to 
convey public lands to individuals, states or corporations by direct 
legislative act without the issuance of a patent to the grantee.*' 
Large areas of the public domain have been disposed of in this 
manner, especially during the early days of the republic. For 
example, direct grants have been made to a number of the newer 
states for school and university purposes. Also to railroads as 
aids in their construction. 

A direct grant of public land by congress to a state or an indi- 
vidual vests in the grantee the most substantial title known to 
our law.^" Where the act contains words of present grant the 
grantee obtains a perfect and irrevocable title.'*^ Where the act 
at once divests the government of all property in the land, the in- 
dividual or state, as the case may be, becomes the absolute owner 
thereof in fee simple, and the subsequent issuance of a patent only 
furnishes documentary evidence of such title.'^^ A grant of pub- 
lic lands to be selected within a larger area does not pass title to 
any particular tract until the selection has been made and ap- 
proved.^^ 

§ 187. Form and construction of direct legislative grants. 
— No particular terms need be used in a legislative grant of pub- 
lic lands, but it will be sufficient to pass title if the words used 
show an intention on the part of congress or the legislature that 
certain lands shall be separated from the mass of federal or state 
lands and set apart and appropriated to the grantee." The form 

48 Hart V. Gibbons, 14 Tex. 213. sey, 70 Ala. 507, Dean v. Bittner, 11 

« Morrow v. Whitney, 95 U. S. Mo. 101. 

SSI, 24 L. ed. 456; Hall v. Jarvis, 65 62 Morrow v. Whitney, 95 U. S. 551, 

111. 302 ; Republican River Bridge Co. 24 L. ed, 456. 

V. Kansas Pac. R. Co., 12 Kans. 409. =3 shaw v. Kellogg, 170 U. S. 312, 

=0 Dousman v. Hove, 3 Wis. 466. 18 Sup. Ct. 632, 42 L. ed. 1050. 

"Strother v. Lucas, 12 Pet. (U. ^4 Republican River Bridge Co. v. 

S.) 454, 9 L. ed. 1137; Swann v. Lind- Kansas Pac. R. Co., 12 Kans. 409. 



207 BEGINNING OF TITLE § 188 

must necessarily vary with the exigencies of each particular case, 
but the act must contain apt words. "^^ If there is any ambiguity 
or uncertainty in a legislative grant, that interpretation is put 
upon it which is most favorable to the state ; that the words of the 
grant, being attributable to the party procuring the legislation, 
will receive a strict construction as against the grantee:^" A 
grant of land from the state must describe the land so that it can 
be certainly identified,^^ although it need not be strictly accurate 
in all respects/^ 

§ 188. Abstracting legislative grant. — Where the title to 
land has its inception in a direct legislative grant the initial state- 
ment of the abstract should contain a brief recital of the act. It 
should contain the title of the act, the date of its enactment, the 
words of grant used in the act, and the conditions or restrictions, 
if any, annexed to the grant. If the grant be from the federal 
government to the state for a specified purpose, the statement 
should show an acceptance on the part of the state authorities and 
a compliance with the conditions imposed by the granting act. 
The statement should contain: (1) A description of the land 
by the proper number of the section or part thereof, as the case 
may be, and the township and range; (2) a brief synopsis of the 
act constituting the original grant; (3) selection of the land by 
the proper authorities from a larger area included in the grant ; 
and (4) approval of selection by the president. The form of the 
statement is not important, nor is it advisable to set out more than 
will disclose the fact that the grant was by direct act of congress, 
or the legislature, and that all the conditions necessary to complete 
the grant have been complied with. The following example is 
submitted : 



United States 

to 

Southern Pacific Railroad 
Company of California. 



Act of Congress. 
Dated March 3, 1871. 
, Filed May 4, 1896. 
Recorded in Book M, page 45. 



An act, entitled, "An act 
granting lands to the Southern Pacific Railroad Company of 

== Foley V. Harrison, 15 How. (U. =' Merritt v. Bunting, 107 Va. 174, 

S.) 433, 14 L. ed. 461. Z7 S. E. 567. 

=« Oakland v. Oakland Water Front =« Kidd v. Central Trust &c. Co., 

Co., 118 Cal. 160, 50 Pac. 277; Creech 23 Ky. L. 1402, 65 S. W. 355. 
V. Johnson, 116 Ky. 441, 25 Ky. L. 
657, 76 S. W. 185. 



§ 189 TITLES AND ABSTRACTS 208 

California for the purpose of aiding in the construction of a rail- 
road." Enacts that there be, and hereby is, granted to the South- 
ern Pacific Railroad Company of Cahfomia, for the purpose of 
aiding in the construction of said railroad, every alternate sec- 
tion of ptiblic land, not mineral, designated by odd numbers, 
whenever, on the line thereof, the United States having full title, 
not reserved, sold, granted, or otherwise appropriated, and free 
from pre-emption or other claims of right, at the time the line 
of said road is designated by a plat thereof, filed in the office of 
the commissioner of the general land office. 

Plat of line of said railroad filed with the commissioner of the 
general land office September 12, 1878. 

§ 189. Confirmation acts and decrees. — It has always 
been the policy of the United States to respect the rights of pri- 
vate property in territory ceded to it, but at the same time it has 
maintained the right to provide reasonable means for determining 
the validity of titles within such territory. It may require all 
persons having claims to lands within such territory to present 
them for recognition, and to decree that all claims which are not 
thus presented shall be considered abandoned. ^'' Undoubtedly 
private rights of property within territory ceded to the United 
States were not affected by the change of sovereignty and juris- 
diction, and were entitled to protection, whether the claimant had 
the full and absolute ownership of the land, or merely an equitable 
interest therein, which required some further act of the govern- 
ment to vest in him a perfect title. But the duty of providing the 
mode of securing these rights and of fulfilling the obligations 
imposed upon the United States by the treaties, belonged to the 
political department of the gpvernment; and congress might 
either itself discharge that duty or delegate it to the judicial de- 
partment.'*" In many of the western and southwestern states 
titles often rest upon confirmed claims of inchoate rights de- 
rived from the governments of Spain and Mexico. These rights 
have been confirmed by special commissions appointed for that 
purpose, or by the federal courts. 

Where the title to be abstracted has its inception in grants from 
some foreign nation which owned the land prior to its acquisition 
by the United States, the proceedings leading up to the issuance 

58 Barker v. Harvey, 181 U. S. 481, «0De la Croix v. Chamberlain, 12 
21 Sup. Ct. 690, 45 L. ed. 963. Wheat, (U. S.) 599, 6 L. ed. 741. 



209 BEGINNING OF TITLE § 190 

of the patent by the United States should form the initial state- 
ment of the abstract. So, whenever practicable, the statement 
should include the decree of confirmation, or at least a reference 
to it, together with a note of the survey and approval. If the 
government has confirmed the title it becomes absolute, and the 
subsequent issuance of a patent is of value only as record evidence 
of ownership by the patentee.®^ 

§ 190. Transfer by public sale. — Under the early sjstem 
of land laws in this country it was the custom to offer land, as 
soon as surveyed, at public sale, in pursuance of a proclamation 
issued by the president, and at a minimum price. '^^ The land was 
sold to the highest bidder, provided the highest bid was not below 
one dollar and twenty-five cents per acre, except in cases where 
the land to be sold lay along a railroad, within the limits granted 
by act of congress, in which case the minimum price at which it 
could be sold was two dollars and fifty cents an acre. Sales un- 
der the Act of 1796 were made partly on credit, but the Act of 
1820 required full cash payments. The amount sold to any one 
purchaser ranged from forty to six hundred and forty acres, and 
even in larger tracts if the same were found vacant. The sale 
was required to be advertised for from three to six months, and 
a period of two weeks was adopted for receiving bids. Upon 
payment of the purchase-price a receipt was issued to the pur- 
chaser by the receiver of the local land office, and an entry of the 
sale was thereupon made in the tract book kept by such officer. 
The issue of the patent was the final act of transfer to the pur- 
chaser. Owing to the injustice to actual settlers by depriving 
them of valuable improvements made on the land prior to the 
sale, this method of disposition gradually fell into disuse, and is 
now abolished as to practically all the public lands.'^^ 

§ 191. Appropriation by private entry. — The term "en- 
try" was borrowed by congress from the land laws of Virginia. 
It is the first step of a purchaser, except in sales at public auction, 
for acquiring public lands, and consists of filing an application for 
a definite portion of the public domain which has been previously 
surveyed. It covers a homestead and townsite entry, as well as 

' "Ryan v. Carter, 93 U. S. 78, 23 «2 See Rev. Stat. U. S. §§ 2353, 
L. ed. 807. 23S7-2360. 

"3 26 U. S. Stat. 1099, §§ 9, 10. 

14 — Thomp. Abstr. 



§ 192 TITLES AND ABSTRACTS 210 

a private entry made by a settler after the close of the public 
sales."* As generally understood, however, the term "entry" ap- 
plies to the act by which an individual acquires an inceptive right 
to purchase at private sale a designated portion of the public do- 
main."' 

A person desiring to obtain public land by entry presents to 
the register of the local land office a memorandum in writing de- 
scribing the tract desired by the proper number of the section or 
part thereof, as the case may be, and the township and range, sub- 
scribing his name thereto, to which memorandum the register at- 
taches his certificate, reciting the fact that the particular tract is 
subject to private entry and specifying the price per acre. This 
memorandum and certificate is then taken to the receiver, and 
upon payment to him of the purchase-price he issues' duplicate 
receipts therefor, one of which is delivered to the applicant, to 
be surrendered on receiving his patent, and the other, together 
with the original memorandum, is delivered to the register, who 
enters the memorandum on file and issues his certificate of pur- 
chase of the land. The memorandum, together with the regis- 
ter's certificate of purchase, is then sent to the general land office 
for official sanction."" 

The land department has authority at any time before issue of 
patent to inquire whether an entry was made in conformity with 
law, and to correct or annul the same, but it can not arbitrarily 
destroy the equitable title acquired by the entryman and held by 
him or his assignee. The certificate of purchase issued to the 
purchaser, or the receiver's final receipt of payment entitles the 
lawful holder to a patent, but it does not convey the title."^ After 
the lapse of twenty years there is a presumption that a patent has 
been issued to the holder of the certificate."* 

§ 192. Nature of entryman's title. — As a general rule the 
issuance of a patent in the name of the United States is necessary 
to pass the title in pubHc lands to a private owner."* By the is- 

6* Denny v. Dodson, 32 Fed. 899, ss Culbertson v. Coleman, 47 Wis. 

13 Sawy. 68. 193, ^ N. W. 124. 

«5 Chotard v. Pope, 12 Wheat. (U. "9 Hagan v. Ellis, 39 Fla. 463, 22 

S.) 586, 6 L. ed. 737. So. 727, 63 Am. St. 167; Knapp v. Al- 

"o Rev. Stat. U. S., § 224S. exander-Edgar Lumber Co., 145 Wis. 

" Bowne v. Wolcott, 1 N. Dak. 415, 528, 130 N. W. 504, 140 Am. St. 1091. 

48 N. W. 336. Niles v. Cedar Point Club, 175 U. S. 

300, 20 Sup. Ct. 124, 44 L. ed. 171. 



211 BEGINNING OF TITLE § 192 

suance of the patent the title relates back to the date of the entry/" 
and takes character from that date.'^ If an entryman die before 
the patent is issued, title passes directly to his heirs, who take by 
purchase and not by descent/^ Where the right to a patent is 
vested in the purchaser, the government holds a naked legal title 
in trust for him/^ A certificate of purchase issued to a pur- 
chaser, or the land receiver's final receipt of payment for the 
land does not of itself convey the title,^* but it gives the holder an 
equitable title, and is binding upon the government.'^ The ac- 
ceptance and approval of an application to purchase public land 
vests in the applicant an equitable title, though the purchase-price 
has not been paid, which is perfected as of the date of the applica- 
tion by the subsequent payment of the purchase-price and the is- 
suance of the patent.'® Some cases hold, however, that it gives 
the holder a sufficient legal title to enable him to maintain eject- 
ment.'' An entryman who has obtained a receiver's receipt for 
the purchase-price has sufficient title upon which to maintain or 
defend a suit concerning the land.'* By statute in many states a 
person who has acquired a complete right to a patent for public 
lands is deemed to have the complete legal title, or that the land 
office certificate of final payment shall be evidence of the legal 
title in the holder." 

As soon as an entr}Tnan becomes entitled to a patent, he may 
sell or convey the land as though the patent had been issued.^" A 
substantial right accrues when payment is made and certificate or 
receipt received.*^ The transfer of such certificate passes to the 
transferee the equitable title to the land,'^ or, if transferred as 
collateral security, creates an equitable lien.*^ If the assignment 
of the certificate of entry is filed in the general land office the 

''" Boise City v. Wilkinson, 16 Idaho Moore v. Coulter, 31 Ga. 278 ; Carman 

150, 102 Pac. 148. v. Johnson, 29 Mo. 84. 

" Creamer v. Briscoe, 101 Tex. 490, 's Thompson v. Easier, 148 Cal. 646, 

109 S. W. 911. 84 Pac. 161, 113 Am. St. 321. 

" Brann v. Mathieson, 139 Iowa 79 Knabe v. Burden, 88 Ala. 436, 7 

409, 116 N. W. 789. So. 92; Combs v. Jolly, 28 Cal. 498; 

" McCIung V. Steen, 32 Fed. 373. Matthews v. Goodrich, 102 Ind. 557, 

'* Bowne v. Wolcott, 1 N. Dak. 1 N. E. 175 ; Tidd v. Rines, 26 Minn. 

415, 48 N. W. 336. 201, 2 N. W. 497. 

" American - Mtg. Co. v. Hoppei', «o Dale v. Griffith, 93 Miss. 573, 46 

56 Fed. 67; Fulton v. Doe, 5 How. So. 543. 

(Miss.) 751. siBudd v. Gallier, SO Ore. 42, 89 

'8 Nicholson v. Congdon, 95 Minn. Pac. 638. 

188, 103 N. W. 1034. ^^ Sillyman v. King, 36 Iowa 207 ; 

"Bates V. Herron, 35 Ala. 117; BurdJck v. Wentworth, 42 Iowa 440. 

S3 Wallace v. Wilson, 30 Mo. 335. 



§ 193 TITLES AND ABSTRACTS 212 

patent will be issued to the assignee/* but in case it is issued to 
the entryman he will take and hold the title in trust for the benefit 
of the assignee.^^ Title by patent from the United States is title 
by record, and delivery of the instrument to the patentee is not 
essential.^^ 

§ 193. Lands subject to entry. — It has been the practice 
of the land department of the government not to allow private 
entries until the land has been previously offered for sale at pub- 
lic auction/^ There is no presumption that lands are open to 
entry/* They are not thus open until provision is made for 
issuing grants thereto/" and in disposing of them the legislature 
acts in subordination to the constitution/" The area of land open 
for entry by a particular proclamation of the president depends on 
the construction to be given such proclamation/^ Public lands 
heavily covered with timber may be entered under the timber land 
act, though after removal of the timber they will be arable."^ 
When lands have once been sold by the United States and the 
purchase-money paid, the lands so sold are segregated from the 
public domain and are no longer subject to entry. A subsequent 
sale and grant of the same lands would be absolutely null and 
void so lohg as the first sale continued."^ Lands already patented, 
granted, confirmed to the grantee, or otherwise reserved, are not 
subject to entry.®* Where a portion of the public domain has 
been appropriated to public or other special purposes, it is usually 
expressly excepted from the operation of all general legislative 
grants and land laws, but even without being thus excepted no 
such grant or law will be construed to embrace them or to operate 
upon them."^ Where public lands have been thrown open to entry 
and sale, but subsequently withdrawn until private rights claimed 

8t Clark V. Hall, 19 Mich. 356. »» Montana v. Rice, 204 U. S. 291, 

85 Magruder v. Esmay, 35 Ohio St. 27 Sup. Ct. 281, 51 L. ed. 490. 

221. 91 Saylor v. Frantz, 17 Okla. 37, 86 

83 Rogers v. Clark Iron Co., 104 Pac. 432. 

Minn. 198, 116 N. W. 739. 92 Thayer v. Spratt, 189 U. S. 346, 

87 Chotard v. Pope, 12 Wheat. (U. 23 Sup. Ct. 576, 47 L. ed. 845, 

S.) 587, 6 L. ed. 737; United States ^^s Simmons v. Wagner, 101 U. S. 

V. Railroad Bridge Co., 6 McLean (U. 260 25 L. ed. 910 

S.) 517, Fed. Cas. No. 16114. 94Linebeck v. Vos, 160 Fed. 540; 

88 Bowser v. Westcott, 145 N. Car. Call v. Los Angeles-Pacific Co., 162 
56, 58 S. E. 748. Fed. 926; Sullivan v. Solis, 52 Tex. 

89 Ware v. Hager, 31 Ky. L. 728, Civ. App. 464, 114 S. W. 456. 

103 S. W. 283. 95 Wilcox v. Jackson, 13 Pet. (U. 

S.) 498, 16 L. ed. 264. 



213 BEGINNING OF TITLE § 194 

therein have been adjudicated, such withdrawal has the same ef- 
fect as a reversion, and the land is thereby withdrawn from the 
market.'"' Surveyed public lands which have not been offered for 
sale may be obtained under the provisions of the pre-emption 
law.^' Mineral lands are not subject to private entry, but are dis- 
posed of in accordance with special acts. 

§ 194. Statement of the entry. — An abstract should in- 
clude a concise statement of what appears upon the public records 
affecting the title to the property in question, whether it shows 
an equitable title, a legal title, or no title."' In most of the states 
not included in the original thirteen, where all public grants of 
land to individuals are comparatively recent, it is customary to 
carry the title back to its emanation from the government. It 
sometimes becomes important to extend the examination back to 
the time when the government parted with the equitable title, al- 
though a patent from the government usually constitutes the first 
link in the chain of title. If, for any reason, it is deemed neces- 
sary to state the inceptive steps leading up to the patent, the ab- 
stracter must confine his inquiry to the particular rnethod em- 
ployed by the government in making disposition of lands of 
which the tract to be abstracted is a part. In a former section 
we detailed the procedure for acquiring public land by private 
entry. Certain instruments of writing in respect to the particular 
tract of public land sought to be obtained from the government 
resulted from this procedure. The first of these was the appli- 
cant's written memorandum. This was followed by the register's 
certificate reciting the fact that the tract was subject to private 
entry at a certain price. Then comes the receiver's receipt in 
duplicate of payment. And lastly the register's certificate of 
purchase. The register of the local land office was the proper 
custodian of all these instruments except one of the receipts of 
payment and the certificate of purchase, the receipt going to the 
applicant and the certificate to the general land office. It was 
upon presentation of the receipt of payment and the approval of 
the certificate of purchase that the patent was issued to the ap- 
plicant. All the acts leading up to the issuance of the p^itent 

»« Wisconsin Central R. Co. v. For- ss Smith v. Taylor, 82 Cal. 533, 23 

sythe, 159 U. S. 46, 15 Sup. Ct. 1020, Pac. 217; Heinsen v. Lamb, 117 111. 

40 L. ed. 70. 549, 7 N. E. 75 ; Union Safe Deposit 

" Meyers v. Croft, 13 Wall. (U. Co. v. Chisholm, 33 III. App. 647. 
S.) 291, 20 L. ed. 562. 



§ 195 TITLES AND ABSTRACTS 214 

constitute the entry, and a brief recital of such entry should form 
the first statement of the abstract of every title having its origin 
in private entry, and, whenever practicable, this statement should 
be followed by a copy of the receiver's duplicate certificate of pur- 
chase. The order of the statement should be: (1) A descrip- 
tion of the land by the proper number of the section or part 
thereof, as the case may be, and the township and range; (2) the 
name of the entryman; (3) the date of the entry; (4) the loca- 
tion of the local land office where entry was made, and (5) the 
number of the certificate of purchase. In case there has been a 
cancellation of the original entry and a re-entry made, the state- 
ment should include the fact of such cancellation and the date of 
the re-entry together with the number of the certificate of re- 
entry. In making the entry the statute under which it is made 
should be followed, and if the entryman has complied with all the 
requirements for making a valid entry he is entitled to a cer- 
tificate of purchase, and has an equitable interest in the land, 
though a patent has not been issued therefor.''^ This entry gives 
the claimant color of title which may be the foundation for ac- 
quiring title by advance possession. If it is deemed proper to 
show the entry a brief note of the facts is all that is necessary, 
thus: 

The North West quarter of Section ten. Township twenty-five. 
North of Range eight East, in Grant County, Indiana, was en- 
tered by Franklin Thompson, March 2Sth, 1836, at the United 
States Land Office at Ft. Wayne, Indiana. Certificate No. 640. 

§ 195. Receipts, certificates, etc., issued by register or re- 
ceiver. — A receipt from the receiver of the local land office, 
showing the payment of the purchase-price of lands, is evidence 
of an equitable title in the holder thereof,^ and in many cases it 
has been accorded a dignity and effect equal to that of a patent. 
While the latter instrument passes the legal title to the land, the 
receipt has the effect to prevent the government from making a 
subsequent valid sale of the land. This receipt is prima facie 
evidence that the law has been complied with in making the entry,' 
and has been held to give a title good as against all the world ex- 

99 Wilson V. Byers, 11 III. 76. La. 155 ; Bigelow v. Blake, 18 Wis. 

1 Godding v. Deker, 3 Colo. App. 520. 
198, 32 Pac. 832 ; Doe v. Stephenson, 2 Whittaker v. Pendola, 78 Cal. 296, 

9 Ind. 144 ; Newport v. Cooper, 10 20 Pac. 680. 



215 BEGINNING OF TITLE § 196 

cept the United States.^ Upon the question as to the effect of the 
certificate of purchase or the receipt of payment of the purchase- 
price, there is a conflict in the cases. The state courts generally 
hold that the instrument gives the holder a sufficient legal title 
to enable him to maintain ejectment;* while the United States 
Supreme Court has held that a patent is necessary to pass the 
title.' The receiver's final receipt is an acknowledgment by the 
government that it has received full pay for the land and that it 
holds the legal title in trust for the entryman." When the entry- 
man has paid for the land and taken the receiver's receipt, he 
thereby became the equitable owner of the land, and thereafter 
the government has no right or power to sell it or to hold it open 
to pre-emption by another.' The absence of any record in the 
local land office showing payment, does not overcome the evidence 
of title afforded by the register's receipt.^ The initial statement 
of the abstract should show to whom the receipt was issued, its 
number, date of issue, place where recorded, volume and page of 
record, together with the fact of the receiver's acknowledgment 
of payment of a specified sum of money for a tract of land lo- 
cated in a designated land district. The receiver's receipt may 
be shown as follows : 

Receiver's Receipt No. 7886. 

Dated Aug. 30th, 1886. 

Filed Sept. 10th, 1886, at 1 

p. M. 

Recorded in Book 3 Deeds, 

page 193. 
Consideration, $200.00. 



United States 

to 
John Lippert. 



Covering the N. W. quarter of Sec. 32, Tp. 128, Range 70 
West of the 5th Principal Meridian in Kingsbury County, South 
Dakota. 

The proper location for the above statement is immediately 
after the note of entry. 

§ 196. Pre-emption. — We have discussed the mode of dis- 
posing of public lands during the early stages of our land sys- 

3 Cox V. Easter, 1 Port. (Ala.) 130. « Caldwell v. Bush, 6 Wyo. 342, 45 

* Bates V. Herron, 35 Ala. 117; Pac. 488. 

Moore v. Coulter, 31 Ga. 278; Car- ''Cornelius v. Kissel, 128 U. S. 457, 

man v. Johnson, 29 Mo. 84. 9 Sup. Ct. 122, 32 L. ed. 482. 

= Niles V. Cedar Point Club, 175 U. s Witcher v. Conklin, 84 Cal. 499, 

S. 300, 20 Sup. Ct. 124, 44 L. ed. 171. 24 Pac. 302. 



§ 196 TITLES AND ABSTRACTS 216 

tern, and referred to the injustice to actual settlers resulting from 
sales at public auction and private entry. It was to correct this 
evil that the government early adopted the mode of disposition 
known as "pre-emption." By this mode persons possessed of par- 
ticular qualifications, who have settled on and improved public 
lands, were given the right to a pre-emption or preference' in 
purchasing the same when they are offered for sale by the gov- 
ernment. Under the provisions of the pre-emption laws large 
portions of the public domain have been taken up.^° To create a 
right of pre-emption it was necessary that there be settlement, 
inhabitation and improvement by the pre-emptor — conditions 
which can not be met when the land is in the occupation of an- 
other.^^ The law required a residence both continuous and per- 
sonal. The settler was excused for temporary absence caused by 
well-founded apprehensions of violence, by sickness, by the pres- 
ence of an epidemic, by judicial compulsion, or by an engagement 
in the military or naval service." 

The pre-emption laws provided that any adult citizen of the 
United States, or a head of a family, might gain the first right to 
purchase one hundred and sixty acres or less, by actually settling 
thereon, and inhabiting and improving it, and erecting on it a 
dwelling-house. He was required to make his entry, his declara- 
tion entered on the books of the land commissioner of his intent 
to purchase, within thirty days after commencing such occupa- 
tion, and his payment of the purchase-price within twelve months 
thereafter. He was also required to establish his right to pre- 
emption, proving, among other things, that he did not own more 
than one-half section of land in any other state or territory 
and had not abandoned any other home in the state or territory 
where the pre-empted land lay. Having done these things, and 
obtained a certificate thereof from the land commissioner, he was 
deemed to hold a personal right to acquire the legal title to the 
land.^^ 

The term "bona fide," as applied to a pre-emption claimant, 

"Shields V. Walker, 2 Overt. i3 U. S. Rev. Stat. §§ 2257-2288; 

(Tenn.) llSn. Whitney v. Taylor, 158 U. S. 85, 15 

1° Meyers v. Croft, 13 Wall. (U. S.) Sup. Ct. 796, 39 L. ed. 906; Tarpey v. 

291, 20 L. ed. 562. Madsen, 178 U. S. 215, 20 Sup. Ct. 

11 Hosmer v. Wallace, 97 U. S. 575, 849, 44 L. ed. 1042 ; Bogati v. Edin- 

24 L. ed. 1130. burg American Land Mfg. Co., 63 

i2Bohall V. Dilla, 114 U. S. 47, 5 Fed. 192, 11 C. C. A. 128. 
Sup. Ct. 782, 29 L. ed. 61. 



217, BEGINNING OF TITLE § 197 

was intended to designate one who had settled upon land subject 
to pre-emption, with the intention to acquire the title thereto, and 
had complied, or was proceeding to comply, in good faith, with 
the requirements of the law to perfect his right to it.^* He is then 
entitled to a certificate of entry from the local land officer, and, 
ultimately, to a patent to the lands from the government.^^ A set- 
tlement made on the land by another person, who cultivated it for 
the proprietor, was sufficient to constitute "an actual settlement," 
though the proprietor did not reside in person on the estate or 
within the territory.^" But no right of pre-emption could be 
established by settlement and improvement on public lands, where 
the claimant forcibly intruded upon the possession of one who had 
already settled upon, improved and enclosed the same land.^' 
Such an intrusion, although made under the pretense of pre- 
empting the land, was deemed a naked, unlawful trespass, and 
could not initiate a right of pre-emption.^^ 

The basis of the pre-emptor's right consisted in his settlement 
upon, cultivation, and improvement of the land, and this gave him 
the first opportunity of purchasing the tract at the minimum price 
fixed by the government, when it became subject to sale.^' 

The early pre-emption acts applied only to the lands that had 
been surveyed, but the later acts permitted pre-emption of unsur- 
veyed lands.'" By the Act of Congress of March 3, 1891, all 
the then existing pre-emption laws were repealed, except a few 
sections.'^ 

, Where the title to a particular tract has its inception under the 
pre-emption laws, the various steps taken before entry are un- 
important, and shed no light on the title after issue of the certifi- 
cate. Hence the abstract should begin with a brief note of the 
entry, as shown in a previous section. 

§ 197. Pre-emptor's right or title. — The pre-emptor for- 

1* Hosmer V. Wallace, 97 U. S. 575, '802; Megerle v. Ashe, 33 Cal. 74; 

24 L. ed. 1130. Byrne v. Morehouse, 22 111. 611 ; Bow- 

^^ Hutchings v. Low, IS Wall. (U. ers v. Keesecker, 14 Iowa 301 ; Ems- 

S.) 77, 21 L. ed. 82. lie v. Young, 24 Kans. 732; Camp v. 

" Hickie V. Starke, 1 Pet. (U. S.) Smith, 2 Minn. (Gil. 131) 155; 

94, 7 L. ed. 67. Franklin v. Kelley, 2 Nebr. 79 ; Garcia 

" Trenouth v. San Francisco, 100 v. Callender, 125 N. Y. 307, 26 N. E. 

U. S. 251, 25 L. ed. 626. 283; Dillingham v. Fisher, 5 Wis. 475. 

18 Atherton v. Fowler, 96 U. S. 513, 2° 12 Stat, at L. § 457. 

24 L. ed. 732. 2^26 U. S. Stat, at L. § 1097. 

" Doe V. Beck, 108 Ala. 71, 19 So. 



§ 198 TITLES AND ABSTRACTS 218 

merly had no transferable right prior to the issuing of the patent.^^ 
The right thus acquired by the settler was not a title^^ nor a com- 
mon-law estate,^* nor was it an interest in the land or the legal title 
thereto.^^ It was not even an option to purchase the land, for the 
government was under no' obligation to sell to the settler at any 
time.^" It was merely a right of occupancy with preference as to 
purchasing when the government should elect to sell.^^ The legal 
title could be obtained thereafter by means of a patent. 

Where a party obtains a certificate of entry at a public land 
office, he obtains an imperfect title, but upon which, it has been 
held, he can maintain an action of ejectment against any person 
not having a better title. ^^ A pre-emptive right descended to the 
heirs of the settler; but could not be assigned against the govern- 
ment, nor reached on execution.^^ But the holder of a pre-emp- 
tion certificate which has been issued by the United States, en- 
tered, and paid for by him, has, previous to a patent, such an 
equitable estate in the land as will subject it to sale under execu- 
tion by the statutes of lowa.^" 

§ 198. Contracts and conveyances before entry. — By the 

Act of 1834 the pre-emption rights of settlers on public lands 
were permitted to be assigned, and the assignment passed an 
equitable title.^^ But by the Act of 1841 the sale of pre-emptive 
rights to public lands acquired by settlement and improvement 
were forbidden.^^ It was the policy of congress in enacting the 
pre-emption laws to confine the benefits of those laws to actual 
settlers upon the public lands and to prohibit all contracts and 
understandings entered into prior to the issuing of the final cer- 
tificates of entry, by which the benefit of the entry would inure 
directly or indirectly to any third party. All assignments and 
transfers of the pre-emption right are declared to be null and void, 
and it is provided that any person claiming the benefit of such pre- 

22 Arbour v. Nettles, 12 La. Ann. 28 Callahan v. Davis, 90 Mo. 78, 2 
217; Glenn v. Thistle, 23 Miss. 42; S. W. 216. 

Paulding V. Grimsley, 10 Mo. 210. 29 Myers v. Croft, 13 Wall. (U. S.) 

23 Grand Gulf R &c. Co. v. Bryan, 291, 20 L. ed. 562 ; Bernier v. Bernier, 
8 Smed. & M. (Miss.) 234. 147 U. S. 243, 13 Sup. Ct. 244, 37 L. 

2* Wittenbrock v. Wheadon, 128 ed. 1S2. 

Cal. ISO, 60 Pac. 664, 79 Am. St. 32. so Levi v. Thompson, 4 How. (U. 

25 Delaunay v. Burnett, 9 111. 454. S.) 17, 11 L. ed. 856. 

2f Doe V. Beck, 108 Ala. 71, 19 So. si Marks v. Dickson 20 How. (U. 

802. S.) 501, IS L. ed. 1002, 

27 Brown v. Throckmorton, 11 111. 32 Quj^by v. Conlan, 104,11. S. 420, 

529. 26 L. ed. 800. 



219 BEGINNING OF TITLE § 199 

emption, before he shall be allowed to enter the lands pre-empted, 
shall make oath before the registrar or receiver of the land dis- 
trict in which the land is situated, stating, among other things, 
that he has not settled upon and improved such land to sell the 
same on speculation, but in good faith to appropriate it to his 
own exclusive use, and that he has not directly or indirectly made 
any agreement or contract in any way or manner with any person 
whatever, by which the title which he may acquire from the 
government of the United States shall inure, in whole or in part, 
to the benefit of any person other than himself.^^ But this did 
not prevent the pre-emptor from selling his land after the entry.^* 
The provision of the Act of 1841, rendering null and void all 
assignments and transfers of pre-emption rights, has been held 
to apply only to the preference right to purchase at a minimum 
price,^^ and did not preclude the pre-emptor from selling or other- 
wise disposing of the land after the entry had been made.^'' So 
under the act last referred to, pre-emptors, who have proved up 
their claims, stand in the same relation to the government as other 
purchasers,"^ and their grantees become beneficiaries under the 
patent though issued to the pre-emptors.^* But contracts made by 
actual settlers of the public lands, concerning their possessory 
rights and the title to be acquired in future from the United 
States, are valid as between the parties to the contract, except in 
cases where congress has imposed restrictions on such contracts.^^ 
In this connection it must be borne in mind that the government 
has the power to annul all entries of public lands at any time be- 
fore patent issues, and a purchaser from a pre-emption entryman 
assumes the risk attendant upon an exercise of this power.*" 

§ 199. Graduation acts. — In 1854 congress passed an act 
providing for a scale of prices for public lands which had been 
on the market for ten years and upward.''^ From the time of the 
enactment of this statute until its repeal in 1862 large quantities 

33 U. S. Rev. Stat. §§ 2262, 2263; 37 Cady v. Eaghmey, 54 Iowa 615, 7 

Close V. Stuyvesant, 132 111. 607, 24 N. W. 102. 

N. E. 868, 3 L. R. A. 161. 38 Camp v. Smith, 2 Minn. (Gil. 

3* Myers v. Croft, 13 Wall. (U. S.) 131) 155. 

291, 20 L. ed. 562. 39 Davenport v. Lamb. 13 Wall. 

35 Meyers v. Croft, 13 Wall. (U. S.) (U. S.) 418, 20 L. ed. 655. 

291, 20 L. ed. 562. *o Taylor v. Weston, 11 Cal. 534, 20 

38Robbins V. Bunn, 54 111. 48, 5 Pac. 62 ; Guidry v. Woods, 19 La. 334, 

Am. Rep. 75. 36 Am. Dec. (HI. 

41 10 U. S. Stat, at L. § 574. 



§ 200 TITLES AND ABSTRACTS 220 

of land were disposed of under its provisions. The purpose of the 
act was to aid the pre-emption law which it closely resembled in 
its essential features. The price of public lands under the provi- 
sions of this act ranged from twelve and one-half cents to one 
dollar per acre, which could be paid in cash. The rights conferred 
by this act were strictly personal, and were based on actual settle- 
ment and cultivation,' made or to be made. The rights acquired 
were not assignable, and the patents were issued to the original 
purchaser only. The procedure for acquiring title under this 
act was substantially the same as that for acquiring title under 
the pre-emption laws, differing only in minor details. Where 
patents have not been issued on entries made under this act owing 
to the lack of the reqvtired proof of settlement and cultivation, 
the confirmatory Act of 1857 permits the delivery of patents on 
application therefor, without such proof, where the entry was 
allowed prior to the passage of the latter act. In the prepara- 
tion of an abstract for land acquired under this act it is neither 
customary nor necessary to incorporate the proceedings prior to 
entry which is the first material stage. 

§ 200. Homestead and free grants. — The principal mode 
by which individuals now obtain title to public lands is under 
homestead laws, the first of which was enacted in 1862.*^ The 
provisions of the federal statutes with regard to homesteads are 
in many respects similar to those in regard to pre-emption. In 
obtaining title to public land under these laws a settler who pos- 
sesses certain qualifications, goes through certain formalities, oc- 
cupies and improves a particular tract of public land for a speci- 
fic time, and at the expiration of such time a patent for the land 
issues from the government to the settler without any charge save 
the payment of certain fees to the land officers. A homestead 
entry is the initial step taken in the land office toward 'acquiring 
ownership under the homestead lav\r, and precedes the perform- 
ance on the part of a homestead claimant of the conditions of resi- 
dence upon and improvement of land which constitutes the real 
consideration for the transfer of the title and which are condi- 
tions precedent to the vesting of title in the homestead settler." 
Under the homestead laws three things must be done in order to 
constitute an entry on the land : ( 1 ) The applicant miist make 

^2 12 U. S. Stat, at L. § 392. 43 McCune v. Essig, 118 Fed. 273. 



221 BEGINNING OF TITLE § 200 

affidavit setting forth the facts which entitle him to make such 
entry; (2) he must make formal apphcation; and (3) he must 
make payment of the money required. When these three req- 
uisites are complied with, and the certificate of entry is executed 
and delivered to him, the entry is complete; the land is entered. 
If either one of these integral parts of an entry is defective, the 
register and receiver are justified in rejecting the application.** 
The homestead laws authorize a citizen of the United States, or 
one who has declared his intention of becoming a citizen, who 
is an adult or the head of a family, or being under age has served 
in the army or navy of the United States in case of war for not 
less than fourteen days, and who does not own as much as one 
hundred and sixty acres of land in any state or territory, and who 
has not previously exercised a homestead right under the fed- 
eral law, to take possession of not more than one hundred and 
sixty acres, and in good faith to occupy and cultivate it for five 
years, and thereby to obtain a right to acquire it from the gov- 
ernment without any payment other than the fees of the land 
office.*' 

To acquire a valid right under the homestead law, the settler 
must actually occupy the land in absolute good faith with the in- 
tention of permanently residing thereon.*'^ Such occupation must 
be evidenced by those things which are essential to its beneficial 
use.*^ A physical presence of the settler on public lands at all 
times is, however, not necessary to constitute legal possession,*^ 
nor need the settler himself construct the improvements required 
by law.*^ A valid right to public lands can be initiated only by 
persons qualified'" after compliance with all legal requirements.'^ 
A homestead right may be initiated by actual bona fide settlement 
on the land or by entry at the local land office,'^ and a homestead 
entry, valid on its face, segregates land from the public domain 
until canceled or forfeited.'^ Where the title has its inception un- 
der the homestead laws the abstract should contain a statement of 

** Hastings & D. R. Co. v. Whitney, *" Trodick v. Northern Pac. R. Co., 

132 U. S. 357, 10 Sup. Ct. 112, 33 L. 164 Fed. 913. 

ed. 363. 50 Call v. Los Angeles Pac. Co., 162 

*= U. S. Rev. Stat. §§ 2289, 2302. Fed. 926. 

*8 Whaley v. Northern Pacific R. =1 Ayres v. United States, 42 Ct. CI. 

Co., 167 Fed. 664. (U. S.) 385. 

*' Gordon v. Ross-Higgins Co., 162 ^2 Holt v. Classen, 19 Okla. 131, 91 

Fed. 637. Pac. 866. 

*8 Neal V. Kayser, 12 Ariz. 118, 100 ^3 McMichael v. Murphy, 12 Okla. 

Pac. 439. 155, 70 Pac. 189. 



§ 201 TITLES AND ABSTRACTS 222 

all proceedings had during the interval between entry and issue 
of the certificate. The data for such statement can be procured 
from a transcript of the register's tract book. 

§ 201. Nature of rights acquired by homesteader. — When 
the preliminary entry is made the right of possession is conferred 
on the entryman," although the legal title does not pass from the 
government until the issuance of a patent.^^ The receiver's re- 
ceipt issued to a homestead entryman in possession gives such 
title to the entryman as to enable him to maintain or defeat a 
suit concerning the land.^" But the holder of a Certificate of 
entry in possession of the land can not defend against ejectment 
brought by the grantee in fee of the government, v^rhether such 
grantee's patent was issued before or after the issuance of the 
certificate.^^ No right can be acquired by one person who enters 
upon land for the purpose of taking it as a homestead, while it is 
in the actual possession of another, during the latter's temporary 
absence.^* A person entering a homestead under the laws of the 
United States acquires a vested right therein at the expiration of 
five years from entry, but no estate in the land vests in him until 
he has complied with the required conditions.^^ A settler who 
has entered public land, has, from such entry, an inchoate title, 
which is, in a legal sense, property and subject to be defeated only 
by his failure to comply with the conditions imposed by law."" A 
homestead entry, so long as it remains a subsisting entry, pre- 
cludes a subsequent entry. "^ The mere application for a home- 
stead entry on government land vests no right in such applicant 
when such application is denied.^^ 

§ 202. Donations and bounty lands. — Congress has from 
time to time passed what are known as "Donation Acts," which 
were designed to induce settlements on isolated portions of the 

s* Stearns v. United States, 152 Fed. Pac. 475 ; Lovell v. Wall, 31 Fla. 73 

900, 82 C. C. A. 48 ; Tiernan v. Miller, 12 So. 659 ; Newkirk v. Marshall, 35 

69 Nebr. 764, 96 N. W. 661. Kans. 11, 10 Pac. 571 ; Coleman v. 

55 Thompson v. Easier, 148 Cal. McCormick, 2,1 Mo. 179, 33 N. W. 

646, 84 Pac. 161, 113 Am. St. 321. 556. 

5« Case V. Edgeworth, 87 Ala. 203, «o Culbertson Irr. & Water Power 

5 So. 783. Co. V. Olander, 51 Nebr. 539, 71 N. 

"Lowery v. Baker, 141 Ala. 600, W. 298. 

Zl So. 637. 61 Holt V. Murphy, 15 Okla. 12, 79 

58 Rourke v. McNally, 98 Cal. 291, Pac. 275. 

33 Pac. 62. 62 Baldwin v. Keith, 13 Okla. 624, 

B» Thrift V. Delaney, 69 Cal. 188, 10 75 Pac. 1124. 



223 BEGINNING OF TITLE § 202 

public domain. Such acts were local in character as well as 
limited in duration. Among the first of these acts was one 
passed in 1842, which applied to certain public lands in the penin- 
sula of Florida."^ By the provisions of this act any person, able 
to bear arms, was given a quarter section of such land if he be- 
came an actual settler thereon. 

The act known as the "Oregon Donation Act," passed in 1850, 
gave to every white settler upon public land within a specified 
district a half section if a single man, and an entire section if 
married."* This act embraced all the public lands of the territory 
of Oregon lying east and west of the Cascade mountains, and in 
1853 the terms of the act were extended so as to include the 
public lands of the territory of Washington. The early decisions, 
of the courts of Oregon and the inferior federal courts held that 
the act was a grant in praesenti and vested in the settler an estate 
in fee from the filing of his notification, subject to be defeated 
by his failure to comply with the conditions of the act."^ But the 
Supreme Court of the United States held that the grant did not 
take effect so as to pass anything more than a possessory right 
in the land occupied until the completion of the four years' resi- 
dence and cultivation and full compliance with all the other re- 
quirements of the act.^® The act required for the completion 
of the settler's right to a patent not only that he should reside 
upon the land and cultivate it for four years but that he should 
give notice to the surveyor-general of the precise land claimed; 
such notice was, by the Amendatory Act of 1853, required to 
be given in advance of the public survey."^ Upon full compliance 
by the settler with the conditions of the act, his right became 
vested and passed beyond the control of congress."^ A married 
woman was entitled to take under this act, not as a settler, but 
on account of her wifeship,"® but her share of land under the act 
was not a separate estate in her, for, by the existing laws of 
Oregon, her estate in the premises for their joint lives was cast 
upon the husband.^" The act contained a provision rendering 
void all contracts for the sale of conveyance of the land before 

«3 5U. S. Stat, at L. § 502. ■ " Brazee v. Schofield, 124 U. S. 

«*9 U. S. Stat, at L. § 496. 495, 8 Sup. Ct. 604, 31 L. ed. 484. 

«= Adams v. Burke, 3 Sawy. (U. S.) ^^ Stark v. Starrs, 6 Wall. (U. S.) 

415, Fed. Cas. No. 49; Love v. Love, 413, 18 L. ed. 925. 

8 Ore. 23. «» Ford v. Kennedy, 1 Ore. 166. 

"Hall V. Russell, 101 U. S. 503, 25 'oWythe v. Smith, 4 Sawy. (U. S.) 

L. ed. 829. 17, Fed. Cas. No. 18122. 



§ 202 TITLES AND ABSTRACTS 224 

the settler obtained a patent therefor, but this provision was re- 
pealed by the Act of 1855 permitting the settler to make sale 
after he had resided for four years upon the land/^ 

In 1854 congress passed an act similar to the one just dis- 
cussed, but applying to public lands in the territory of New 
Mexico." Only male persons then residing in the territory, or 
who should remove there prior to 1858, could obtain land under 
this act. 

In 1815 congress passed the New Madrid Act which provided 
for the relief of landowners in New Madrid County, Mo., whose 
lands had been injured by earthquakes. By its provisions, such 
persons were authorized to locate a like quantity of land on any 
of the public domain of said territory in lieu of the injured 
lands.'^ This act was not a direct grant of land, but merely an 
offer on the part of the government to exchange its land for that 
which had been injured,'* and when the exchange was effected the 
injured lands reverted to the federal government. Such exchange 
Vvas effected by the recorder of land titles issuing to the claimant 
upon proof of his ownership of injured land a certificate showing 
his right to locate; whereupon the deputy-surveyor made a loca- 
tion of the land applied for, and returned to the recorder a plat 
of the survey and a notice in writing, designating the tract located 
and the name of the claimant. This return was recorded by the 
recorder, who transmitted to the general land office a report of 
the claims allowed, and issued to the claimant a certificate showing 
his right to a patent, the certificate on being surrendered to the 
commissioner of the general land office entitled the claimant to 
take the patent.''^ The locator acquired no vested interest in the 
land located until the survey of the land was returned and re- 
corded in the recorder's office, at which time the locator acquired 
equitable title to the land, the legal title remaining in the govern- 
ment until issue of the patents.'"* 

In 1784 Virginia ceded to the United States ber territory 
northwest of the Ohio river, reserving the right to supply defi- 
ciencies in grants to officers and soldiers of the war of the Revo- 
lution. By an act passed 'in 1804 such officers and soldiers en- 

" Barney v. Dolph, 97 U. S. 652, 's Hot Springs Cases, 92 U. S. 698, 

24 L. ed. 1063. 23 L. ed. 690, 11 Ct. CI. 238. 

" 10 U. S. Stat, at L. § 308. 's Fenn v. Holme, 21 How. (U. S.) 

" 3 U. S. Stat, at L. 211, Ch. 45. 481, 16 L. ed. 198. 
'^ Holme V. Strautman, 35 Mo. 293. 



225 BEGINNING OF TITLE § 203 

titled to bounty lands in Ohio were required to complete their 
locations within three years and to make a return of their sur/eys 
to the secretary of war within five years after the passage of 
the act." 

In 1782 congress passed what has been called "North Carolina 
Grants," providing for the officers and soldiers of that state who 
served in the war of the Revolution. The additional homestead 
granted to Union soldiers by the federal laws is not in the nature 
of an application under the homestead laws, but is in the nature 
of a bounty extended by the government to its soldiers in the 
war of the Rebelhon.'® 

§ 203. Land warrants and scrip. — Some important trans- 
fers of title to public lands from the federal government to in- 
dividuals have taken place, in compensation for services in the 
army or navy. These were obtained, as prescribed by the 
statutes, by "warrants for bounty lands;" and have been held 
by soldiers and sailors of the United States, or their families, by 
virtue of such grants.''^ These warrants might be located on the 
public lands of the United States and were receivable at the rate 
of one dollar and twenty-five cents per acre in full or part pay- 
ment for such land as the case might be.*" The holder of such 
warrants had an absolute right to locate land under them, and to 
receive a patent for the land located.'^ Such warrants were not 
canceled nor did the title thereto pass from the locator vmtil they 
were accepted in payment for land by the government.^^ Entry 
under a bounty land warrant gave to the entryman an equitable 
title to the land, the legal title remaining in the government until 
the issue of the patent.*^ But the legal as well as the equitable 
title passes from the federal government without issuance of 
patent, if the congressional grants provide that the title shall pass 
on selection.** Bounty land warrants were regarded as lands, 
and on the death of the owner, passed to his heirs.'^ Previous to 
the cession of the Northwest Territory to the United States by 
the state of Virginia, that state had issued to its Revolutionary 

"2 U. S. Stat, at L. 274 § 2. sa Johnson v. Gilfillan, 8 Minn. 395. 

'8 United States v. Lair, 118 Fed. ss Gray v. Jones, 14 Fed. 83, 4 Mc- 

58- Crary (U. S.) SIS ; Swisher v. Sen- 

"U. S. Rev. Stat. §§ 2414, 2446. senderfer, 84 Mo. 104. 

'"Saunders v. Niswanger, 11 Ohio s4 pHce v. Dennis, 159 Ala. 625, 49 

St. 298. So. 248. 

81 Merrill V. Hartwell, 11 Mich. 200. s^Atwood v. Beck, 21 Ala. 590. 

IS — Thomp. Abste". 



§ 204 TITLES AND ABSTRACTS 226 

veterans land warrants receivable in payment of any land owned 
by the state, and the United States took this property chargeable 
with the obligation to satisfy the holders of such warrants under 
acts of congress. 

There has also been issued a species of location certificates 
known as "Indian or half-breed scrip." This form of scrip is 
not transferrable and can be located only in the name of the 
person to whom issued. No receipt or certificate of purchase is 
issued to the holder, the scrip and application being the muni- 
ments of title which are returned to the general land office, and 
the certificate of the commissioner showing the location of the 
scrip by the proper party is competent evidence to show title from 
the government.^" Likewise the states have enacted laws under 
which land warrants or scrip have been issued, entitling the 
holders to locate them upon the public lands of the state and to 
receive patents for such lands. Such warrants or scrip have been 
held to be assignable either in whole or in part.*^ Such assign- 
ment may be made by indorsement on the warrant or upon a 
separate paper.^^ The owner of such warrants or scrip after their 
location may convey his interest in the land so located before a 
patent is issued.*" 

§ 204. Desert land entries. — In 1877 congress passed 
what is known as the "Desert Land Act," which gives to any 
citizen of the United States, or any person of requisite age who 
may be entitled to become a citizen, and has filed his declaration 
to become such, upon payment of twenty-five cents per acre, to 
file a declaration under oath with the register and receiver of the 
land district in which any desert land is situated that he intends 
to reclaim a tract of desert land not exceeding one section, by 
conducting water upon the same, within the period of three years 
thereafter."" At any time within the designated period of three 
years after filing said declaration, and upon making satisfactory 
proof to the register and receiver of the reclamation of the tract, 
and upon the payment of an additional sum of one dollar per 
acre, the claimant becomes entitled to a patent."^ Upon entry 

86 Wilcox V. Jackson, 109 111. 261. S.) 371, 3 L. ed. 593 ; Bludworth v. 

87 Miller V. Texas &c. R. Co., 132 Lake, 35 Cal. 255 ; Peevy v. Hurt, 32 
U. S. 662, 10 Sup. Ct. 206, 33 L. ed. Tex. 146. 

487. sou. S. Corap. Stat. 1901, p. 1548. 

88 McArthur v. Gallaher, 8 Ohio si United States v. Healy, 160 U. S. 
512. 136, 16 Sup. Ct. 247, 40 L. ed. 369. 

80 Vowles V. Craig, 8 Cranch (U. 



227 BEGINNING OF TITLE § 205 

and the payment of twenty-five cents per acre the entryman be- 
comes entitled to possession of the land entered for three years 
from the date of his entry. °^ 

The occasion on which the desert character of the land is to be 
ascertained is at the time of filing the declaration. It is a suffi- 
cient reclamation to entitle the entryman to a patent that he has 
acquired the right to sufficient water to irrigate the land, and has 
constructed main ditches sufficient to carry it over the accessible 
parts of the tract, for purposes of cultivation in the ordinary 
manner though he has not actually used or cultivated the land."^ 
Upon compliance with all conditions and requirements of the act 
the entryman became vested with such title to the land as passed 
to his heirs and devisees in case of his death before the issuance 
of the patent.^* The Act of 1877, fixing the price of desert lands 
at one dollar and twenty-five cents per acre, has been held not to 
embrace the alternate sections reserved by congress in a railroad 
land grant, but their price is fixed at two dollars and fifty cents 
per acre by the proviso of the U. S. Rev. Stat. § 2357, and land 
entered under the act of 1877, when the price was two dollars and 
fifty cents per acre, can not be patented, after the passage of the 
act of 1891, upon paying only one dollar and twenty-five cents per 
acre.'^ 

§ 205. Timber and stone lands. — In 1878 congress passed 
an act providing that any citizen of the United States may pur- 
chase, under certain conditions, lands of the United States which 
are valuable chiefly for stone or timber and are unfit for culti- 
vation, to an amount not exceeding one hundred and sixty acres. "^ 
By the provisions of this statute the applicant must file with the 
register of the proper district a written statement in duplicate, 
one of which is transmitted to the general land office, designating 
by legal subdivisions the particular tract of land he desires to 
purchase, setting forth that the same is unfit for cultivation, and 
chiefly valuable for its timber or stone; that the tract is unin- 
habitated ; that he has made no other application under the act ; 
that he does not intend to purchase the same for speculation, but 
in good faith to appropriate it to his own exclusive use and 

'^Sallee v. Corder, 67 Cal. 174, 7 »* Phillips v. Carter, 135 Cal. 604, 
Pac. 455. 67 Pac. 1031, 87 Am. St. 152. 

85 United States v. Mackintosh, 85 9= United States v. Healy, 160 U. S. 
Fed. 333, 29 C. C. A. 176. 136, 16 Sup. Ct. 247, 40 L. ed. 369. 

98 U. S. Comp. Stat. 1901, p. 1545. 



§ 206 TITLES AND ABSTRACTS 228 

benefit; and that he has not directly or indirectly made any 
agreement or contract in any way or manner with any person or 
persons whatsoever, by which the title which he might acquire 
from the government should inure, in whole or in part, to the 
benefit of any other person except himself; which statement 
must be verified by the oath of the applicant before the register 
or receiver of the land office within the district where the land is 
situated.^^ It will be observed that the statute does not limit the 
dominion which the purchaser has over the land after it is pur- 
chased from the government or restrict in the slightest his power 
of alienation ; but that it only prohibits his entering the land under 
an agreement whereby he was acting for another; that he might 
make a valid entry of the land though with the view of disposing 
of the same after he had completed the purchase, provided that 
at or before the time of such purchase he had not entered into an 
agreement with another, whereby such other should receive any 
of the benefit of such purchase.^* The act included land which 
had not been offered at public sale according to law.^^ Persons 
entitled to purchase under this act must be citizens of the United 
States or persons' who have declared their intention to become 
such.^ The minimum price for which such land could be' sold 
was two dollars and fifty cents per acre. 

The filing of an application to purchase under this act may 
initiate a right to purchase as against a subsequent applicant for 
the same privilege but the mere filing of such application confers 
upon the applicant no right as against the United States, and 
that, until the applicant has acquired a vested right in the land, it 
is within the power of the government to withdraw it from sale 
or make any other disposition of it.^ But upon payment by the 
applicant of the purchase-price, and the delivery of the certificate 
or receipt therefor, it becomes the duty of the land commissioner, 
on receiving the papers and testimony in the case from the local 
■ land office, to cause a patent to issue to the purchaser.^ 

§ 206. Timber culture claims. — In 1878 congress passed 
an act giving to every person over twenty-one years of age, or 

37 Olson V. United States, 133 Fed. i Lewis v. Shaw, 70 Fed. 289. 

849, 67 C. C. A. 21. 2 United States v. Braddock, SO Fed. 

08 United States v. Budd, 144 U. S. 669. 

154, 12 Sup. Ct, 575, 36 L. ed. 384. 3 Montgomery v. United States, 36 

88 United States' v. Budd, 43 Fed. Fed. 4, 13 Sawy. 383. 
630. 



229 BEGINNING OF TITLE § 207 

the head of a family, and who was a citizen of the United States, 
or had declared his intention to become such, the right to receive 
a patent for public land to be acquired by the planting and culture 
of timber thereon.* The applicant was required to make affi- 
davit before the register or receiver, or the clerk of some court of 
record, or officer authorized to administer oaths in the district 
.where the land was situated, that the tract of land which he de- 
sires to enter is composed exclusively of prairie lands, or other 
lands devoid of timber; that the filing an entry is made for the 
cultivation of timber, and for his own exclusive use and benefit ; 
that he has made the application in good faith, and not for the 
purpose of speculation, or directly or indirectly for the use or 
benefit of any other person or persons ; that he intends to hold 
and cultivate the land, and to fully comply with the provisions 
of the act; and that he has not previously made an entry under 
the act.^ Before the entryman's right to a patent accrued he had 
the same right of possession as any other entryman," and was the 
owner of the trees standing on the land,'' but prior to the time 
when his right to a patent accrued the entryman had no vested 
right in the land, and the right passed, upon his death, to his 
heirs as grantees from the government.^ 

The applicant for land under this act was not required to reside 
on the land, or make any improvements thereon except the plant- 
ing and cultivation of timber in the manner prescribed in the act. 
At the expiration of eight years from the date of entry a patent 
may issue upon final proof that the conditions of the act have been 
fully complied with. It would seem that the act does not prevent 
a claimant, who has made his entry in good faith, from con- 
tracting to sell his claim prior to the final proof.® 

§ 207. Swamp land grants. — In 1850 congress passed 
what is known as the "Swamp Land Act."^" By that act it was 
provided that "to enable the state of Arkansas to construct the 
necessary levees and drains to reclaim the swamp and overflowed 
lands therein, the whole of these swamps and overflowed lands, 

„ *U. S. Rev. Stat. 1878, §§ 2464, ■? Carner v. Chicago &c. R. Co., 43 

2468. Minn. 375, 45 N. W. 713. 

= Watkins Land Co. v. Creps, 72 s Cooper v. Wilder, 111 Cal. 191, 43 

Kans. 333, 83 Pac. 969. Pac. 591, 52 Am. St. 163. 

«Braum v. Mathieson, 139 Iowa « Church v. Adams, 37 Ore. 355, 61 

409, 116 N. W. 789. Pac. 639. 

1° U. S. Rev. Stat. 1878, § 2479. 



§ 207 TITLES AND ABSTRACTS 230 

made unfit thereby for cultivation, which shall remain unsold at 
the passage of this act, shall be and are hereby granted to said 
state." The fourth section declared that the provisions of the 
act should be extended to, and their benefits conferred on each of 
the other states of the Union in which such swamp or overflowed 
lands might be situated. All such lands selected and reported to 
the general land office prior to March 3rd, 1857, so far as the 
same remained vacant and unappropriated, and not interfered 
with by actual settlement under other federal land laws, were con- 
firmed tO' the respective states by a subsequent act." The land 
department could not set aside these selections, because they 
were confirmed by this act, and the United States could convey 
no title after this to any of these lands unless they came within 
the exceptions of the act last referred to.^^ The Act of 1850 ap- 
propriated as a grant in praesenti to the states then in existence, 
of all the swamp lands in their respective jurisdictions; but the 
title to the swamp lands within a territory did not pass out of the 
United States by that act." By this act the title to all lands 
determined by the general land department to be swamp lands 
passed to the state as of the date the act took effect.^* The act 
being a grant in praesenti, the title to such lands passed at once 
to the state in which they lay,^^ but the determination and identity 
of what lands were and what lands were not swamp lands was 
left to the secretary of the interior." It would seem that the 
correct rule is that the legal title passed to the state only upon 
issuance of patent," although it has been frequently asserted that 
the Swamp Land Act followed by an identification of the land 
had the effect to pass title without the necessity of a patent.^* 
Where the grant to the state is on condition, a purchaser from 
the state takes the land subject to such condition." Swamp land 

"U. S. Rev. Stat. 1878, § 2484. Pac. 361; State v. Portsmouth Sav. 

12 Martin v. Marks, 97 U. S. 345, Bank, 106 Ind. 435, 7 N. E. 379. 

24 L. ed. 940. it Brown v. Hitchcock, 173 U. S. 

13 Rice V. Sioux City &c.R.Co., 110 473, 19 Sup. Ct. 48Si 43 L. ed. 772; 
U. S. 695, 4 Sup. Ct. 177, 28 L. ed. 289. Henry v. Brannan, 149 Ala. 323, 42 

1* Diana Shooting Club v. La- So. 995; Schlosser v. Hemphill, 118 

moreux, 114 Wis. 44, 89 N. W. 880, Iowa 452, 90 N. W 842. 
91 Am. St. 898. isKernan v. Griffith, 27 Cal. 87; 

15 Kelly V. Cotton Belt Lumber Co., Tolleston Club v. State, 141 Ind. 197, 

74 Ark. 400, 86 S. W. 436 ; People v. 38 N. E. 214, 40 N. E 690. 
Warner, 116 Mich. 228, 74 N. W. 705 ; ii> Reclamation District No. 70 v. 

Simpson V. Stoddard Co., 173 Mo. Sherman, 11 Cal. App. 399, 105 Pac. 

421, 73 S. W. 700. 277 

i^Tubbs V. Wilhoit, 73 Cal. 61, 14 



231 BEGINNING OF TITLE § 208 

grants whereto the state has completed the title may be sold, but 
if set aside for or granted to a particular incompatible public 
purpose they are withdrawn from settlement.^" A survey is or- 
dinarily necessary before a grant to swamp land can be made.^^ 
A patent issued to a state is conclusiye against collateral attack,^^ 
and can not be impeached in an action at law by showing that the 
land is not in fact swamp land.^^ 

Where the United States has sold lands which would be in- 
cluded under the Swamp Land Act of 1850, such sales have 
been held invalid,^* but a state has authority to ratify and con- 
firm a sale thus made by the federal government.^^ 

§ 208. School and university land grants. — The federal 
government has always maintained a generous policy in respect 
to grants for educational purposes,^" and in pursuance of that 
policy congress has from time to time granted lands to the states 
for such purposes. Such grants have usually been of section 
sixteen, or sections sixteen and thirty-six in each township.^'' In 
addition to this, grants have been made to the states and territories 
of seventy-two sections of land in each for the support of the 
state university.^' All of such grants have been held to be in 
praesenti,^^ and absolute for the purpose therein specified, and 
not upon a condition subsequent.^" These grants constitute a sol- 
emn compact between the federal government and the state, 
whereby the latter becomes the purchaser of the school sections 
for a valuable consideration, with full power to sell or lease the 
same for the use of schools,^^ and after the state has accepted the 
grant it can not be withdrawn. ^^ Upon the completion of the 
grant the title to such lands vests in the state,^^ but under some 

2» West V. Roberts, 135 Fed. 350, 68 String! ellow, 2 Kans. 263 ; State v. 

C. C. A. 58. Blasdell, 4 Nev. 241. 

21 Schlosser v. Hemphill, 118 Iowa 28 u. S. Comp. Stat. 1901, p. 1384. 
452, 90 N. W. 842. 2s> Sprayberry v. State, 62 Ala. 459 ; 

22 French v. Fyan, 93 U. S. 169, 23 Hermocilla v. Hubbell, 89 Cal. 5, 26 
L. ed. 812. Pac. 611; State v. Jennings, 47 Fla. 

23 Warner Valley Stock Co. v. Cal- 302, 35 So. 986. 

derwood, 36 Ore. 228, 59 Pac. 115. so Schneider v. Hutchinson, 35 Ore. 

2*Ringo V. Rotan, 29 Ark. 5^. 253, 57 Pac. 324, 76 Am. St. 474. 

2^ Bruce v. Patton, 54 Ark. 455, 16 ^i Morgan County School v. 

S. W. 195. Schroll, 120 111. 509, 12 N. E. 243, 60 

28Johanson v. Washington, 190 U. Am. Rep. 575. 

S. 179, 23 Sup. Ct. 825, 47 L. ed. 1008. 32 Daggett v. Bonewitz, 107 Ind. 

27 Dickens v. Mahana, 21 How. (U. 276, 7 N. E. 900. 

S.) 276, 16 L. ed. 158; State v. New- 33 Long v. Brown, 4 Ala. 622. 
ton, 5 Blackf. (Ind.) 455; State v. 



§ 209 TITLES AND ABSTRACTS 232 

grants the state holds the title to the land in trust for the use and 
benefit of the schools of the respective townships in which the 
lands are situated/* Where such lapds are unsurveyed at the 
time of grant title does not vest in the state until the survey is 
completed/^ whereupon the title passes from the government to 
the state without the issuance of a patent.^" But under an act of 
congress reserving land for school purposes it was held that such 
reservation did not amount to an absolute grant of the lands to 
the territory, and even after their survey, they were under the 
domination, protection and control of the United States govem- 
ment.^' Where a state is authorized by act of congress to make 
a selection from the public lands for the benefit of the county 
schools and the selection is duly made and noted on the records 
of the Interior Department, the fee to the lands so selected is 
vested ipso facto in the state. ^^ Where lands included in sections 
granted to states for school purposes have been previously dis- 
posed of by the government to individuals, the rights or titles of 
such individuals are not affected by such school land grants.^^ 

§ 209. Statement where title founded on school land 
grant. — We have seen that a grant of public lands to a state 
for the use of schools is an absolute grant, and such grant and its 
acceptance by the state constitute a solemn compact between the 
state and the United States whereby the state becomes the pur- 
chaser of the school sections with full power to sell same. The 
legal title to- such lands is in the state,*" in trust for the support 
of the schools of the respective townships in which the lands lie." 
The title usually vests in the state at once, but where the lands 
are unsurveyed title does not vest until the survey is completed 
and the grant is accepted by the state. It frequently happens that 

s^Widner v. State, 49 Ark. 172, 4 ss state v. Tanner, 73 Nebr. 104, 

S. W. 6S7 ; State v. Springfield Tp., 102 N. W. 235. 

6 Ind. 83 ; State v. Stark, 111 La. 594, 3o Mullan v. United States, 118 U. 

35 So. 760; Edwards v. Butler, 89 S. 271, 6 Sup. Ct. 1041, 30 L. ed. 170; 

Miss. 179, 42 So. 381 ; State v. Cun- Bullock v. Rouse, 81 Cal. 590, 22 Pac. 

ningham, 88 Wis. 81, 57 N. W. 1119, 919. 

59 N. W. 503. 40 Daggett v. Bonewitz, 107 Ind. 276, 

35 Sherman v. Buick, 45 Cal. 656; 7 N. E. 900. 

State V. Jennings, 47 Fla. 307, 35 So. "i Long v. Brown, 4 Ala. 622 ; Wid- 

986.* ner v. State, 49 Ark. 172, 4 S. W. 657; 

36 State V. Jennings, 47 Fla. 307, 35 State v. Stark, 111 La. 594, 35 So. 
So. 986. 760. 

37 United States v. Elliott, 12 Utah 
119, 41 Pac. 720. 



233 BEGINNING OF TITLE ' § 210 

the state does not acquire title to these particular sections on 
account of their previous disposition by the government. In such 
case the law of indemnity gives the state the right to select other 
lands contiguous thereto in lieu of such sections. The selection of 
these lieu lands must be certified and approved by the secretary 
of the interior, and noted on the records of the department. 
When all the requirements of the selection have been complied 
with, the title vests in the state as of the date of the selection. 
So, where the title to be abstracted had its inception in a donation 
by the government to the state for school purposes, the beginning 
statement will include: (1) The donative act, (2) acceptance of 
the grant by the state, (3) the act of the state legislature provid- 
ing for the sale of the land, and (4) the deed of the proper officer 
authorized by law to convey the land. And if the land is a part 
of lands selected in lieu of section sixteen or thirty-six the state- 
ment should contain: (1) The fact of such selection, (2) the 
act authorizing the selection, (3) the grant to the state of lands 
for school purposes, and (4) acceptance by the state. 

§ 210. Grants for internal improvement. — Congress has 
from time to time granted public lands to states to aid in the 
building of roads, bridges, canals, and other internal improve- 
ments. Some of these grants have been for such improvements 
generally, while other grants designate the kind of improvements 
which they are intended to aid. Whether or not such grants are 
in praesenti depends upon the intention of congress as expressed 
in the words of the grant. *^ Also whether the conditions ex- 
pressed in the grant are conditions precedent or subsequent is a 
matter to be determined by the wording of the grant.*' Where 
a grant of public lands to a state to aid in the construction of a 
military road excepted therefrom all lands theretofore "reserved 
to the United States or otherwise appropriated by act of congress 
or other competent authority," lands within the limits of the 
grant which was at the time excepted by a settlement under a pre- 
emption or homestead claim duly filed, was land "appropriated" 
and within the exception, and did not pass to the state under the 
grant for the construction of the road.** Grants for internal im- 
provement are frequently of certain amounts of land to be selected 

*^Van Valkenburg v. McCloud, 21 ** Eastern Oregon Land Co. v. 
Cal. 330. Brosnan, 147, Fed. 807. 

*3 Wheeler v. Chicago, 68 Fed. 526. 



§ 211 TITLES AND ABSTRACTS 234 

by the state, or by the land officers,*' and until such selection has 
been made and approved by the land department the grant does 
not attach to any particular lands. But when such selection has 
been made and approved by the land department the title at once 
vests in the state.*" A patent to the state under a grant in aid of 
internal improvements takes effect as of the date of the location 
and selection of the land.*^ 

Instead of granting the land to states in aid of internal im- 
provements conglress has seen fit in some cases to grant in aid 
of such improvements a certain percentage of the net proceeds of 
public lands lying within the state to be subsequently sold by the 
United States f^ but under such a grant the state is not entitled 
to a percentage on the value of lands disposed of by the federal 
government in satisfaction of military land warrants.*^ 

§ 211. Initial statement of abstract where title based on 
grant for internal improvements. — What we said in a pre- 
vious section of this chapter with reference to direct legislative 
grants will apply to grants to states for internal improvehients. 
If the title to the land to be abstracted had its inception in a grant 
to the state for the purpose of constructing a canal the initial 
statement should show: (1) The act of congress making the 
grant, (2) location and selection of the land by proper authority, 
and (3) act of state legislature providing for trustees to make 
sale. 

If the original grant was to the state for the purpose of building 
a railroad the statement should contain : ( 1) The act of congress 
making the grant, (2) the act of the state legislature providing 
for commissioners, and (3) the determination of the character 
of the railroad lands. But where the grant is made directly to the 
railroad company, the statement should show a compliance with 
the conditions of the grant ; such as the location of the road, the 
filing of a map of such location, acceptance and approval by the 
secretary of the interior, fixing of the general route of the road 
or any other condition of the grant the performance of which is 
necessary to pass title. 

« Koch V. Streuter, 232 111. 594, 83 ^s Indiana v. United States, 148 U. 

N. W. 1072. S. 148, 13 Sup. Ct. 564, 37 L. ed. 401. 

^e Godwin v. Davis, 74 Miss. 742, « Iowa v. McFarland, 110 U. S. 

21 So. 764. 471, 4 Sup. Ct. 210, 27 L. ed. 198. 

^' Patterson v. Tatum, 3 Sawy. (U. 
S.) 164, Fed. Cas. No. 10830. 



235 BEGINNING OF TITLE § 212 

§ 212. Land grants to railroads. — Aid has been given to 
railroads in many instances by a direct grant of land by the fed- 
eral government, and in other cases the grant is made to a state 
for the benefit of the railroad company. In the latter instance 
the position of the state is that of a trustee for the company."" 
A congressional land grant has the effect of a legislative enact- 
ment, and the intention of the legislature is to be sought and en- 
forced.^^ The statute making the grant abrogates common-law 
rules so far as they conflict with' its provisions.^^ Congressional 
grants are usually construed to pass the land at once, but to con- 
vey it upon condition subsequent, although, of course, a grant 
may be upon condition precedent.^^ Whether the grant is upon 
condition precedent or condition subsequent must, it is obvious, 
be determined from the statute making the grant. ^* In other 
words, the grant is usually regarded as conveying a title upon 
condition subsequent. Under acts granting a right of way over 
all government lands along certain routes, the railroad has been 
held to acquire a right of way over sections numbered sixteen 
and thirty-six, although such sections have been, before the grants 
were made, designated generally as school sections, but have not 
been definitely disposed of.^^ Grants to railroads by congress can 
not be construed to include routes not contemplated by the char- 
ters of the companies at the time of the grant.°° 

Where a grant of land to a railroad company becomes effective 
it relates back to the time of the enactment of the statute.^^ The 
general rule as to the time such grants become effective is that 
they take effect when the route is located and the sections thereby 
identified,''^ that is, they are usually grants in praesenti, which, 
when maps of definite location are filed and approved, take effect 
by relation as of the date of the act.^° It is generally held that 

^^ Rice V. Minnesota &c. R. Co., 1 ^' Coleman v. St. Paul &c. R. Co., 

Black (U. S.) 358, 17 L. ed. 147; 38 Minh. 260, 36 N. W. 638. 

Kansas City, L. & S. K. R. Co. v. ^e Jackson v. Dines, 13 Colo. 90, 21 

Attorney-General, 118 U. S. 682, 7 Pac. 918. 

Sup. Ct. 66, 30 L. ed. 281. " Winona & St. P. R. Co. v. Bar- 
si Winona & St. P. R. Co. V. Bar- ney, 113 U. S. 618, 5 Sup. Ct. 606, 28 

ney, 113 U. S. 618, 5 Sup. Ct. 606, 28 L. ed. 1109. 

L. ed. 1109. =8 St Paul & P. R. Co. v. Northern 

=2 St. Paul M. & M. R. Co. v. Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 

Greenhalgh, 26 Fed. 563. 389, 35 L. ed. 77. 

^^ United States v. Southern Pac. ^^ Southern Pac. R. Co. v. Lipman, 

R. Co., 39 Fed. 132. 148 Cal. 480, 83 Pac. 445. 
" State V. Rusk, 55 Wis. 465, 13 N. 

W. 452. 



§ 212 TITLES AND ABSTRACTS 236 

congress, by a grant of land to a railroad to aid in its construc- 
tion, confers a present title to the designated sections along this 
route, with such restrictions upon their use and disposal as to 
secure them for the purpose of the grant, subject to be defeated, 
however, on noncompliance with the terms of the grant.*" 

It is not necessary that a patent should be issued to the com- 
pany," since the effect of a patent to lands granted by such an 
act is not to vest title tO' them, but to afford record evidence 
thereof.*^ By operation of the act itself, or the conditions having 
been fully complied with as to a portion of the road, the railroad 
company's title to lands given along that portion becomes perfect 
and indefeasible.*' A general rule is that, until a survey and 
definite location of the road have been made, and a map of the 
proposed route has been filed, the railroad acquires no rights ad- 
verse to those of others taking claims under general laws.** A 
grant of land by the federal congress does not operate upon lands 
theretofore reserved.*^ Lands withdrawn from sale are re- 
served.** By a federal grant a railroad company does not ac- 
quire a vested interest in particular lands, within or without 
place limits, merely by filing a map of the general route and hav- 
ing same approved by the secretary of the interior, although the 
definite location of its line of road, and the filing and acceptance 
of a map thereof in the office of the commissioner of the general 
land office lands within primary or place limits not theretofore 
reserved, sold, granted, or otherwise disposed of, and free from 
pre-emption or other claims of right, become segregated from the 
public domination, and no rights in such place lands will attach 
in favor of a settler or occupant who becomes such after definite 
location. Also that no rights to lands within indeterminate limits 
will attach in favor of a railroad company until after selections 
made by it with the approval of the secretary of the interior.*^ 

In some of the grants provision is made that, in the event that 

«o Wisconsin C. R. Co. v. Price Land Co. v. Griffey, 72 Iowa SOS, 34 

County, 133 U. S. 496, 10 Sup. Ct. N. W. 304. 

341, 33 L. ed. 687. es Northern Pacific R. Co. v. Mus- 

81 Whitehead v. Plummer, 76 Iowa ser &c. Co., 68 Fed. 993, 16 C. C. A. 

181, 40 N. W. 709. 97. 
62 Pengra v. Munz, 29 Fed. 830. ee Wisconsin Cent. R. Co. v. For- 
es United States v. Northern Pac. sythe, 40 L. ed. 70, 159 U. S. 46, IS 

R. Co., 41 Fed. 842. Sup. Ct. 1020, 

6* Sioux City & I. F. Town Lot & " Sjoli v. Dreschel, 199 U. S. S64, 

26 Sup. Ct. 154, SO L. ed. 311. 



237 BEGINNING OF TITLE § 213 

a certain part of the road is completed within a certain time, title 
to a specified quantity of land shall vest in the company, and 
another designated part shall vest when another or other parts of 
the road is completed, and under such grants it is held that, upon 
the completion of a part of the road entitling it to a designated 
quantity of land, title to that quantity will vest although the other 
part of the road may not be completed within the time limited."' 

§ 213. Grant for public highway. — In 1866 congress 
passed an act granting the right to construct highways over gov- , 
ernment lands not reserved for public use.''^ This grant, like all 
other grants of the public domain made by congress, did not affect 
the rights of those on the lands in advance of the grant. The act 
was not intended to operate upon persons who had taken posses- 
sion under a bona fide claim or color of title, even though the 
settlement was made in advance of the public survey. The 
act does not make any distinction as to the methods recognized by 
law for the establishment of a highway. It is an unequivocal 
grant of a right of way -for public highways over public lands, 
without any limitation as to the method for their establishment.'"' 
The right of the public to a strip needed for a highway under the 
act dates only from the time thp initiatory steps are taken which 
ripen into a completed title. In this respect it resembles the 
Oregon Donation Act, the Pre-emption Act, and the Homestead 
Act, and is subject to the same rules governing these acts.'^^ 

It is always to be borne in mind in construing a congressional 
grant that the act by which it is made is a law as well as a con- 
veyance, and that such effect must be given to it as will carry out 
the intent of congress. There can not be a grant unless there 
is a grantee, and consequently there can be no present grant un- 
less there is a present grantee. So the act under discussion is a 
grant which remains in abeyance until the highway is established 
under some public law authorizing its establishment and takes 
effect as a grant from that time. It is held that under this act 
and an act of a territory declaring all section lines public roads, 
that persons filing on public lands take the same subject to the 

"=8 Courtright v. Cedar Rapids &c. 37 Wash. 682, 80 Pac. 262, 70 L. R. A. 
R. Co., 35 Iowa 386. 1027. 

«" U. S. Rev. Stat. 1878, § 2477. " McAllister v. Okanogan County, 

'"> Okanogan County v. Cheetham, 51 Wash. 647, 100 Pac. 146, 24 L. R. 

A. (N. S.) 764. 



§ 214 TITLES AND ABSTRACTS 238 

right of way along the section lines for highways and are not 
entitled to compensation/^ 

The rule seems to be well settled that a highway may be estab- 
lished by prescription over government lands within the purview 
of this grant." But it is held that there must at least be such a 
use and for such a period as is reqviired to establish highways un- 
der the law of the state where the state statute fixes it at less than 
the common-law period of twenty years/* 

§ 214. Private land claims. — Large areas of the present 
territory of the United States were, prior to the formation of our 
government, under the sovereignty of various foreign nations. 
These nations had made numerous grants of lands to individuals 
prior to the time when the various territorial acquisitions to the 
United States occurred. The titles claimed under these grants 
are termed "Private Land Claims," and numerous questions con- 
cerning such titles have from time to time arisen out of these 
grants." Titles in the original thirteen colonies begin with the 
grant from some foreign power. Many titles in Florida, Texas 
and California date back to original Spanish grants. Others em- 
braced in the Territory of the Louisiana Purchase begin with a 
grant from the French crown, but all these have been confirmed 
by the United States government. 

During the colonial period the various colonies were either 
royal or proprietary. In the royal provinces the crown exercised 
the right of granting lands, while in the proprietary governments 
the proprietors had the power to dispose of lands. Matters re- 
lating to the modes of disposition at that time are now of no 
practical importance. The only questions with reference to such 
grants which are of interest to us are those relating to their con- 
struction and effect, as to which it may be stated that the general 
rules of construction are the same as those relating to original 
conveyances." But the grants from Spain, Mexico and France 
have been the subject of much litigation from time to time, espe- 
cially when such grants were overlaid by the claims of the first 

" Keen v. Board, 8 S. Dak. SS8, 75 United States v. Ducros, IS How. 

67 N. W. 623. (U. S.) 38, 14 L. ed. 591; United 

73 Township of Walcott v. Skauge, States v. Pena, 175 U. S. 500, 20 

6 N. Dak. 382, 71 N. W. 544 ; Smith Sup. Ct. 165, 44 L. ed. 251 ; Brown v. 

V. Mitchell, 21 Wash. 536, 58 Pac. 667. O'Connor, 1 Cal. 419. 

7* Vogler V. Anderson, 46 Wash. 'f Attorney-General v. Delaware &c. 

202, 89 Pac. 551. R. Co., 27 N. J. Eq. 631. 



239 BEGINNING OF TITLE § 214 

settlers. These grants from other countries have usually been 
expressly protected by provisions in the treaties executed at the 
time of the accession/' The claims based upon grants from 
Mexico and Spain were confirmed by treaties with Mexico in 
1848, and also in 1853/* Likewise claims based upon grants 
from France were protected in a Treaty of 1803 with France." 
Regardless, however, of treaties, the law of nations protects the 
inhabitants of a ceded territory in their proprietary rights.*" 
Moreover, congress has, by express legislation recognized and 
confirmed the claims of persons to land and territory ceded to 
the United States.*^ Before an alleged grant under a former 
government will be recognized by the United States, it must ap- 
pear to have emanated from a public official having power to 
make it,*^ and acting under the authority of such former govern- 
ment.** In order to derive title to a land grant under Spanish 
authority, such grant must be shown to have been perfect and 
complete;** and complete grants are to be presumed from long 
continued possession.*^ Spanish and Mexican grants to be valid 
must be capable of identification,*" and if identifiable may be con- 
firmed,*' and when legally confirmed, the title is valid.** 

Under the Mexican law, when a grant of land is made by the 
government, a formal delivery of possession to the grantee by a 
magistrate of the vicinage is essential to the complete investiture 
of title. This proceeding, called in the language of the country, 
the delivery of juridical possession, involves the establishment of 
the boundaries of the land granted when there is any uncertainty 
with respect to them. A record of the proceeding is preserved 
by the magistrate, and a copy delivered to the grantee.*^ The ab- 
sence of documents evidencing ancient Spanish grants may be 

7' Ward V. Mulf ord, 32 Cal. 365 ; ss Carino v. Insular Government, 

Magee v. Doe, 9 Fla. 382. 212 U. S. 449, 29 Sup. Ct. 334, S3 L. 

'8U. S. Comp. Stat. 1901, § 767. ed. 594. 

" Les Bois V. Bramell, 4 How. (U. se Gwin v. Calegaris, 139 Cal. 384, 

S.) 449, 11 L. ed. 1051. 73 Pac. 851. 

8» Barker v. Harvey, 181 U. S. 481, ^7 Mobile Transportation Co. v. Mo- 

21 Sup. Ct. 690, 45 L. ed. 963. bile, 187 U. S. 479, 23 Sup. Ct. 170, 

81 United States v. Morant, 123 U. 47 L. ed. 266. 

S. 335, 8 Sup. Ct. 189, 31 L. ed. 171. 88 Catron v. Laughlin, 11 N. Mex. 

82Woodworth v. Fulton, 1 Cal. 295. 604, 72 Pac. 26. 

83 Faxon v. United States, 171 U. s^Van Reynegan v. Bolton, S Otto 

S. 244, 18 Sup. Ct. 849, 42 L. ed. 151. (U. S.) 33, 24 L. ed. 351. 

8* Sena v. American Turquoise Co., 
14 N. Mex. 511, 98 Pac. 170. 



§ 215 TITLES AND ABSTRACTS 240 

explained by showing a reasonable probability that they may have 
been lost or destroyed."" 

§ 215. Town site etitry. — The purpose of town site laws is 
to enable persons who have settled upon portions of the public 
domain, and who desire to lay out and establish a town or city, 
to procure title to unoccupied public lands from the United States 
at a minimum price, and to enable other persons desiring to pur- 
chase lots within an established city or town, upon the public 
lands, to procure a valid title thereto.''^ In enacting these laws, 
congress had in view the interests of the individual settlers rather 
than a benefit to municipalities.*^ The statutes provide that the 
corporate authorities of the town, if it is incorporated, or the 
judge of the county court, if the town is not incorporated, shall 
file at the local land office the claim to the land for town site 
purposes.'^ This constitutes the entry, and when payment is made 
the title to the land vests in the official making such entry, but 
only as trustee, however, for the occupants according to their 
shares."* But this trust terminates when all the land in the tract 
included in a town site has been disposed of."'^ The occupants 
obtain their title through such trustee by deed,*^ but such deed 
need not recite that the trustee had power to execute same." 
The deed from the trustee is valid although no patent has issued 
to him, since the patent, when issued takes effect as of the date 
of the entry."* The disposition of the lots in the town and the 
application of the proceeds of the sale thereof is regulated by 
the legislative authority of the state or territory in which the 
town is situated."" 

It is a prerequisite to an entry under the town site law that the 
land be actually settled upon and occupied as a town site, and 
the mere platting of the land as a town is not sufficient.^ 

Lands dedicated by the government to use for homesteads is 

so State V. Oritz, 99 Tex. 475, 90 S. ss Aspen v. Rucker, 10 Colo. 184, IS 

W. 1084. Pac. 791. 

»i Pascoe V. Green, 18 Colo. 326, 32 os Sherry v. Sampson, 11 Kans. 611. 
Paq. 824. 97 Green v. Barker, 47 Nebr. 934, 

82 Jones V. Petaluma, 38 Cal. 397. 66 N. W. 1032 

"SRev. Stat. (U. S.) § 2387; New- ^s Taylor v. Winona &c. R. Co., 45 

house V. Simino, 3 Wash. 648, 29 Pac. Minn. 66, 47 N W. 453. 
263. s» Clark v. Titus, 2 Ariz. 147, 11 

siMartm v. Hoff, 7 Ariz. 247, 64 Pac. 312. 
Pac. 445 ; Buffalo v. Harling, 50 1 Carson v. Smith, 12 Minn. 543. 
Minn. 551, 52 N. W. 931; Goldberg 
V. Kidd, 5 S. Dak. 169, 58 N. W. 574. 



241 BEGINNING OF TITLE § 216 

not subject to town site entry.^ Town site entries may be made 
on mineral lands, but no title is thereby acquired if the lands were 
known to be mineral lands at the time of the entry.^ All the 
interest which an occupant has in the land prior to the entry of the 
town site is an inchoate right to the benefit of the town site law 
in case the property shall be purchased from the United States 
by the corporate atithorities or the county judge under the 'pro- 
visions of that law.* 

§ 216. Initial statement of abstract where title obtained 
through town site entry. — In the cities and towns of many of 
the western states the title to real estate passed from the 
. government under town site acts. We discussed this method 
of acquiring title in the preceding section, and it only 
remains for us to call attention to what should be included in 
the initial statement of the abstract in case the title passed from 
the government by this method. It is important to remember 
that the method of acquiring title under the Acts of 1864 and 
1865 is somewhat different from the method prescribed by the 
Act of 1867. By the former method a purchase on sale or pre- 
emption at minimum figures is permitted, provided certain pre- 
liminary conditions are complied with. These conditions consist 
of the filing with the recorder a plat or map of the town in con- 
formity with the lots and blocks and coinciding with the rights 
of occupants. When the public surveys have been made the 
exterior boundary lines should conform to the lines of such sur- 
veys. The map must further show the name of the town or city, 
the streets, alleys, parks and various other subdivisions, their 
area and measurements. The plat or map must be sworn to by 
the proper municipal officer, and, when the town or city is within 
the limits of an organized land district, a copy of the plat or map 
must be filed with the local officer of such district, and a copy 
forwarded to the general land office within one month from the 
filing with the recorder. By the Act of 1867 the inhabitants of 
cities and towns on the public lands are given the privilege of 
entering lands occupied as town sites at a minimum price of one 
dollar and twenty-five cents per acre. The entry is made by the 

2 Long-Bell Lumber Co. v. Martin, * Stringf ellow v. Cain, 99 U. S. 610, 
11 Okla. 192, 66 Pac. 328. 25 L. ed. 421. 

^Tombstone Town Site Cases, 2 
Ariz. 272, IS Pac. 26. 

16 — Thomp. Abste. 



§ 216 TITLES AND ABSTRACTS 242 

corporate authorities of the town, if it is incorporated, or, if it is 
not incorporated, the judge of the county court of the county in 
which the town is situated, may enter the land as trustee for the 
occupants of the town. By whichever of these methods the title 
was acquired, the initial statement of the abstract should show a 
compliance with the conditions of the particular act under which 
title was acquired. If the proceedure was under the Act of 1864 
and the supplemental Act of 1865, a plat of so much of the town 
as is necessary to show the property in question should be in- 
cluded, and in addition thereto all the necessary steps preliminary 
to the issuance of the patent should be shown. But where the 
proceedure was under the Act of 1867, the statement should not 
be materially different from a case of ordinary entry. 



CHAPTER IX 

FEDERAL AND STATE PATENTS 



SEC. SEC. 

220. Patents in general. 226. Operation and effect of patents. 

221. Necessity of patent to pass title. 227. Construction of patents. 

222. Form and requisites of patents. 228. Conclusiveness of patents. 

223. Delivery, acceptance and record- 229. Rescission, cancelation and cor- 
ing of patents. rection of patents. 

224. Validity of patents. 230. Abstracting patents. 

225. Patents issued after death of 
claimant. 

§ 220. Patents in general. — A patent is an instrument is- 
sued by the state or federal government to one to whom it has 
transferred or agreed to transfer land, in order to vest in the 
transferee the complete legal title. It is the deed of the govern- 
ment, state or federal, by which it passes title to its lands.^ It 
is the last official act of the government in its procedure to divest 
itself of title to public lands. Until its execution in proper form 
the fee remains in the government, and the power of the land 
department over the land continues.^ The federal patent is said 
to be the highest and best deed known to the law.^ Where the 
government previously had the title, the patent becomes the high- 
est evidence of title in the person to whom it is issued.* The is- 
suance of a patent by the government affords prima facie evi- 
dence that all prerequisites of the law necessary to its issuance 
have been complied with.^ 

§ 221. Necessity of patent to pass title. — Except in cases 
where the legislative branch of the government has made a grant 
taking effect in praesenti a patent is necessary to pass a perfect 
title to public land." Consequently, when there has been no such 

1 United States V. MuUan, 10 Fed. ^Bagnell v. Broderick, 13 Pet. (U. 
785, 7 Sawy. 466; Stinson v. Call, 163 S.) 436, 10 L. ed. 235; Irvine v. Tar- 
Mo. 323, 63 S. W. 729. bat, 105 Cal. 237, 38 Pac. 896. 

2 Stimson Land Co. v. Rawson, 62 = Bradshaw v. Edelen, 194 Mo. 640, 
Fed. 426. 92 S. W. 691. 

3 Texas & P. R. Co. v. Smith, 159 « Wilcox v. Jackson, 13 Pet. (U. 
U. S. 66, 15 Sup. Ct. 994, 40 L. ed. S.) 498, 10 L. ed. 264; Carter v. Rud- 
n\ Wisconsin Cent. R. Co. v. For- dy, 166 U. S. 493, 17 Sup. Ct. 640, 41 
sythe, 159 U. S. 46, 15 Sup. Ct. 1020, L. ed. 1090. 

40L. ed. 71. 

243 



§ 222 TITLES AND ABSTRACTS 244 

previous grant, the patent is necessary for the transfer of the 
legal title/ Even where there has been a direct legislative grant, 
a patent will generally issue, not for the purpose of passing the 
title, however, but to furnish evidence of the transfer, or to show 
compliance with the conditions of the grant, obviating the neces- 
sity of other proof in case of any legal controversy over the 
title.^ A patent may issue upon the confirmation of a title by 
legislative act of a claim of a previously existing title, in which 
case it is documentary evidence, having the dignity of a record of 
the existence of that title, or of such equities respecting the claim 
as to justify its recognition and confirmation.^ Thus a patent 
issued to a confirmee of a Spanish or Mexican grant is, in its 
operation, like the deed of any other grantor, and passes only 
such interest as the United States possessed. It is a record of the 
government of its action and judgment with respect to the title 
of the patentee existing at the date of the cession of the territory 
to the United States.'" 

§ 222. Form and requisites of patents. — The federal stat- 
utes prescribe the form and requisites of a valid patent to public 
lands of the United States. Such patents must, of course, con- 
form in all their features to the requirements of law. State laws 
respecting the issuance of patents for state lands differ to such 
an, extent in the several states that it would be impracticable to 
indicate here every particular in which a state patent may be upon 
its face defective. Federal patents are issued in the name of the 
United States, and are required to be signed by the president, 
or in the name of the president by his secretary, or by an executive 
clerk, and countersigned by the recorder of the general land 
office.^' It must be sealed by the great seal of the land office." 
But neither the president nor any officer of the government has 
any power to sign or cause the seal of the United States to be 

7 Langdon v. Sherwood, 124 U. S. 121 U. S. 488, 7 Sup. Ct. 985, 30 L. - 
74, 8 Sup. Ct. 429, 31 L. ed. 344;- ed. 1039; Miller v. Tobin, 16 Ore. 
Roads V. Symraes, 1 Ohio 281, 13 Am. 540, 16 Pac. 161. 

Dec. 621 ; Brownsville v. Basse, 36 i" Leese v. Clark, 20 Cal. 387. 
Tex. 461. " Rev. Stat. § 458 (U. S.) Comp. 

8 Morrow v. Whitney, 95 U. S. 551 ; St. 1901, p. 259. 

24 L. ed. 456 ; Wright v. Roseberry, 12 McGarrahan v. New Idria Min- 

121 U. S. 488, 7 Sup Ct. 985, 30 L. ed. ing Co., 96 U. S. 316, 24 L. ed. 630 ; 

1039. Duluth, & I. R. R. Co. v. Roy, 173 

Langdeau v. Hanes, 88 U. S. 521, U. S. 587, 19 Sup. Ct. 549, 43 L. ed. 

22 L. ed. 606; Wright v. Roseberry, 820. 



245 FEDERAL AND STATE PATENTS § 223 

affixed to a patent, except such as is conferred by a federal stat- 
ute. ^^ The validity of the patent depends upon a strict com- 
pliance with the provisions of the statute respecting its signing, 
sealing, and recording.^* Each and every one of the integral 
parts of the execution is essential to the perfection of the patent, 
and until all of the requirements have been complied with the 
government has not executed a patent for a grant of land/^ 

A patent issued by the state must usually be signed by the 
governor, and sealed with the seal of the state.^^ Recitals in 
patents are governed by the same rules that govern recitals in 
deeds, and a person who traces his title to a patent is charged with 
notice of the facts contained in its recitals.^^ 

§ 223. Delivery, acceptance and recording of patents. — 

Title by patent from the United States is title by record, and 
the delivery of the instrument to the patentee is not, as in a con- 
veyance by a private person, essential to pass the title. While it 
is customary to deliver a patent to the claimant, as in the case of 
deeds,, yet delivery of it is not necessary.^^ 

Acceptance of the patent on the part of the patentee is necessary 
to the taking effect of the patent,^" but acceptance will be pre- 
sumed from the efforts of the patentee to procure the patent,^* 
or from the benefit he' is to derive there from.^^ 

The patent is required to be recorded in the gener'al land office, 
in books kept for that purpose,^^ but is not required to be recorded 
in the county where the land is located.^^ The acts of congress 
provide for the record of all patents for land in an office, and in 
books kept for that purpose. An officer called the "recorder", is 
appointed to make and keep these records. He is required to 
record every patent before it is issued, and countersign the instru- 

i^McGarrahan v. New Idria Min. Pac. 647; Rogers v. Clark Iron Co., 

Co., 49 Cal. 331, (affd. in 96 U. S. 104 Minn. 198, 116 N. W. 739; Say- 

316, 24 L. ed. 630.) ward v. Thompson, 11 Wash. 706, 40 

"McGarrahan v. New Idria Min- Pac. 379. 

ing Co., 96 U. S. 316, 24 L. ed. 630. i" Le Roy v. Jamison, 3 Sawy. (U. 

i=McGarrahan v. New Idria Min- S.) 369, Fed. Cas. No. 8271. 

ing Co., 96 U. S. 316, 24 L. ed. 630. 20 United States v. Schurz, 102 U; 

" State V. Morgan, 52 Ark. 150, 12 S. 378, 26 L. ed. 167. 

S. W. 243; Hulick v. Scovil, 9 111. 21 Wood v. Pittman, 113 Ala. 207, 

159; Exum v. Brister, 35 Miss. 391; 20 So. 972. 

Jarrett v. Stevens, 36 W. Va. 445, 22 United States v. Schurz, 102 U. 

IS S. E. 177. S. 378, 26 L. ed. 167. 

" Bonner v. Ware, 10 Ohio 465. 23 Lomax v. Pickering, 173 U. S. 26, 

18 Eltzroth V. Ryan, 89 Cal. 135, 26 19 Sup. Ct. 416, 43 L. ed. 601. 



§ 224 TITLES AND ABSTRACTS 246 

ment to be delivered to the grantee. This, then is the final record 
of the transaction,— the legally prescribed act which completes 
the "title by record," and when this is done the grantee is vested 
with that title.'* 

The state statutes in regard to the recording of conveyances 
do not apply to patents issued by the state to its lands. Such in- 
struments may be recorded, and generally are, but their effect as 
vesting title and affording notice is not dependent upon their being 
recorded. A statute authorizing the recording of such convey- 
ances without acknowledgment is permissive only.'^ Upon the 
due execution and recording of the patent the grantee is entitled 
to the possession thereof.^'' 

§ 224. Validity of patents. — Officers of the government, 
in issuing patents, act ministerially, and can rightfully act only 
in pursuance of some express provision of law. They are pre- 
sumed to do their duty, and courts of law accord the presump- 
tion of validity to all proceedings necessary to uphold the patent 
executed by them.^^ Thus if the patent is regular on its face it is 
of itself prima facie evidence that the preliminary steps required 
by law for its issuance had been regularly taken before it was 
issued,'^ that the patent was regularly issued, is valid, and passes 
the legal title.'" And a valid patent can not be invalidated by 
subsequent legislation.^" 

A patent from the state, not void on its face, can not be col- 
laterally attacked.'^ But a court of law will always treat as void 
a patent which appears on its face to have been issued without 
authority of law,^' and a court of equity will afford relief as 
against others than a bona fide purchaser for value, where there 

2* United States v. Schurz, 102 U. N. W. 469; Rogers v. Clark Iron Co., 

S. 378, 26 L. ed. 167; Marbury v. 104 Minn. 198, 116 N. W. 739. 
Madison, 1 Cranch (U. S.) 137, 2 L. 29 Jenkins v. Trager, 40 Fed. 726; 

ed. 60. Steeple v. Downing, 60 Ind. 478 ; Hill 

25 Patterson v. Langston, 69 Miss. v. Miller, 36 Mo. 182. 

400, 11 So. 932. 30 Kidd v. Central Trust &c. Co., 23 

26 United States v. Schurz, 102 U. Ky. L. 1402, 65 S. W. 355. 

S. 378, 26 L. ed. 167. si Prellsen v. Crandell, 217 U. S. 

27Ledbetter v. Borland, 128 Ala. 71, 30 Sup. Ct. 490, 54 L. ed. 670 ; Hill 

418, 29 So. 579. v. Miller, 36 Mo. 182 ; New York, C. & 

28 Hooper v. Young, 140 Cal. 274, 74 H. R. R. R. Co. v. Aldridge, 135 N. 

Pac. 140, 98 Am. St. 50; Smith v. Y. 83, 32 N. E. 50, 17 L. R. A. 516; 

Pipe, 3 Colo. 187 ; Combs v. Dodd, 4 Steiner v. Coxe, 4 Pa. St. 13. 

Rob. (La.) 58; Webber v. Pere Mar- 32Ledbetter v. Borland, 128 Ala. 

quette Boom Com., 62 Mich. 626, 30 418, 29 So. 579. 



247 FEDERAL AND STATE PATENTS § 225 

has been fraud in its procurement or mistake in its issuance, even 
though the patent is valid on its face.^^ 

Where a patent has been issued to a person other than the one 
entitled thereto, the latter may procure a decree establishing a 
constructive trust in his favor, and requiring the patentee to make 
a conveyance to him.^* A patent for lands which have been re- 
served by the government authorities from disposal, is void.^" 
Also a patent to land previously patented passes no title.^° A 
patent issued to a person not in existence is a nullity, but where 
it is issued to a person under an assumed name it is valid, and a 
conveyance by such person under his assumed name passes the 
title to the grantee.^^ Every purchaser under a patent is charged 
with notice of any defect appearing upon its face.^^ 

§ 225. Patents issued after death of claimant. — Statutes 
usually provide that when a person, entitled to claim the benefits 
of a settler or entr)TTian, dies before obtaining a patent, the pat- 
ent is generally issued to his widow or heirs. "^ In such case the 
heirs do not take the title by descent from their ancestor, but the 
land is conveyed to them directly from the government by virtue 
of the privilege of purchase given to them expressly by the pro- 
visions of the statute.*" The laws of descent of the state in which 
the land is situated governs in determining who are the grantees 
in such a patent.*^ A patent issued to the heirs of a deceased 
entryman passes title directly to them as substituted beneficiaries, 
who take by purchase and not by descent, and the title vests in 
such heirs by the grant, and not as successors to the interest of the 
deceased entryman.*^ If the patent is issued in the name of the 
holder of the certificate after his death, it takes effect for the ben- 
efit of his heirs or devises.*^ Where a patent is issued to a man's 

33 St. Louis Smelting & Refining 37 Thomas v. Wyatt, 31 Mo. 188, 

Co., V. Kemp, 104 U. S. 636, 26 L. ed. 11 Am. Dec. 640. 

875; Sparks v. Pierce, 115 U. S. 408, ss Bell v. Duncan, 11 Ohio 192. 

6 Sup. Ct. 102, 29 L. ed. 428 ; Sanford 39 Wittenbrock v. Wheadon, 128 

V. Sanford, 139 U. S. 642, 11 Sup. Ct. Cal. ISO, 60 Pac. 664, 79 Am. St. 32. 

666, 35 L. ed. 290; Gibson v. Chou- *o Caldwell v. Miller, 44 Kans. 12, 

teau, 39 Mo. 536. 23 Pac. 946; Dawson v. Mayall, 45 

3*Widdicombe v. Childers, 124 U. Minn. 408, 48 N. W. 12. 

S. 400, 8 Sup. Ct. 517, 31 L. ed. 427. ^i Braun v. Mathieson, 139 Iowa 

35 Klauber v. Higgins, 117 Cal. 451, 409, 116 N. W. 789. 

49 Pac. 466. 42 Braun v. Mathieson, 139 Iowa 

36 Hamilton v. Steele (Ky.), 117 S. 409, 116 N. W. 789. 

W. 378; Stone v. Perkins, 217 Mo. ^3 Schedda v. Sawyer, 4 McLean 
586, 117 S. W. 717. (U. S.) 181, Fed. Cas. No. 12443 ; 

Stubblefield v. Boggs, 2 Ohio St. 216. 



§ 226 TITLES AND ABSTRACTS 248 

"legal representative", or to his "heirs", it is held to be the inten- 
tion of the land department to leave the question open to inquiry 
in the proper court as to the party to whom the patent shall 
inure.** Where a patent was issued to the heirs of a deceased 
pre-emptor dying without having consummated his claim, it was 
held that their title was superior to that of a grantee of the pre- 
emptor holding under a conveyance executed after final proof. *^ 

§ 226. Operation and effect of patents. — While the naked 
legal title to public lands is in the government until the issuance 
of a patent therefor, the beneficial ownership or equitable title 
is vested in an entryman from the time he receives a certificate of 
purchase from the land office, showing full payment therefor. 
A patent from the government, issued in pursuance of, and based 
solely and exclusively upon, a prior entry accompanied by full 
payment of the purchase-price, does not convey to the entryman 
a new and independent title disconnected with his equitable title 
derived from such entry and final payment, but converts the im- 
perfect or equitable title into a perfect legal title.*'' The patent 
carries the legal title in fee simple,*^ and divests the land depart- 
ment of all authority over and control of the land.** The gov- 
ernment may, however, revoke the patent because of an irreg- 
ularity pertaining to its issue.*" 

When the patent is issued, it dates back, as against intervening' 
claimants, to the time when the equitable title vested in the pat- 
entee by payment of the purchase-price, or otherwise.^" But a 
patent for lands which have been reserved by the government 
from disposal, is void, and conveys no title to the patentee." 

§ 227. Construction of patents. — Government patents or 
grants must be construed liberally as to the government and 

"Cooper V. Wilder (Cal.), 41 Pac. 149, 5 Sup. Ct. 399, 28 L. ed. 962; 

26. Hagan v. Ellis, 39 Fla. 463, 22 So. 

« Tennessee Coal I. & R. Co. v. 727, 63 Am. St. 167; Johnson v. Pa- 

Tutwiler, 108 Ala. 483, 18 So. 668. cific Coast Steamship Co., 2 Alaska 

*« Hagan v. Ellis, 39 Fla. 463, 22 224. 

So. 727, 63 Am. St. 167. 49 Smith v. Crandall, 118 La. 1052, 

*7 Niles V. Cedar Paint Club, 175 43 So. 699. 

U. S. 300, 20 Sup. Ct. 124, 44 L. ed. so Gibson v. Chouteau, 13 Wall. (U. 

171; Fordyce v. Woman's Christian S.) 92, 20 L. ed. 534; Hussman v. 

Nat. Library Assn. 79 Ark. 550, 96 S. Durham, 165 U. S. 114, 17 Sup. Ct. 

W. 155, 7 L. R. A. (N. S.) 485; Wig- 253, 41 L. ed. 664; Waters v. Bush, 

gins V. Lusk, 12 111. 132 ; Verden v. 42 Iowa 255. 

Coleman, 4 Ind. 457. 51 Klauber v. Higgins, 117 Cal. 451, 

« Bicknell v. Comstock, 113 U. S. 49 Pac. 466. 



249 FEDERAL AND STATE PATENTS § 228 

strictly as to the grantee or patentee, and nothing will be taken to 
pass by implication/^ The reason for this rule is that the state 
or government is entitled to be protected against the encroach- 
ments of private interests upon its sovereign rights and against 
the greed of monopolistic corporations.^^ It has been held, how- 
ever, that the rule does not apply in its full extent to public 
grants made upon adequate consideration.^* So, where the grant 
is gratuitous, it will be construed strictly as against the grantee.^^ 
But a grant which is made in fulfilment of a pre-existing obliga- 
tion on the part of the government toward the grantee: is not 
deemed gratuitous and will be construed favorably for the 
grantee.^^ Public grants are not to be destroyed or be held in- 
effectual for uncertainty if by any reasonable means the intention 
of the parties can be shown, and these means are not to be con- 
fined to what appears on the face of the instrument." Where 
there is ambiguity in the descriptive words of a grant respecting 
the quantity, character, or duration of the estate conveyed, evi- 
dence of the intention of the parties at the time the instrument 
was executed is admissible in interpreting it.^^ If the description 
indicates the boundaries of the land granted, such boundaries 
will control a recital as to the quantity of land included in the 
grant.^' When the government grants land for a consideration, 
and does not reserve any rights or interests that would ordinarily 
pass by the rules of law, and does no ac^ which indicates an in- 
tention to make such reservation, the grant includes all that 
would pass by it if it were a private grant."" 

§ 228. Conclusiveness of patents. — ^The issuance of a pat- 
ent to lands over which the land department has jurisdiction as 
a quasi judicial tribunal is both a judgment and a conveyance,"^ 

52 United States v. Arredondo, 6 (U. S.) S62, 9 Fed. Cas. No. 4, 951; 
Pet. (U. S.) 691, 8 L. ed. 547; Swann Hodge v. Donald, 55 Tex. 344. 
V. Jenkins, 82 Ala. 478, 2 So. 136; "People ex rel Underhill v. Sax- 
Oakland V. Oakland Water Front Co., ton, IS App. Div. 263, 44 N. Y. S. 
118 Cal. 160, 50 Pac. 277; Wilcoxon 211. 

V. McGhee, 12 111. 381, 54 Am. Dec. ^s Mulford v. Le Franc, 26 Cal. 88 ; 

409; St. Paul &c. R. Co. v. Brown, 24 Adams v. Frothingham, 3 Mass. 352, 

Minn. 517. 3 Am. Dec. 151 ; Kanne v. Otty, 25 

=3 DeWitt V. Elmira Transfer Co., Ore. 531, 36 Pac, 537. 

134 N. Y. 495, 32 N. E. 42. ^9 Stein v. Ashby, 24 Ala. 521. 

^* Charles River Bridge v. Warren ^^ Johnson v. Johnson, 14 Idaho 

Bridge, 7 Pick. (Mass.) 346; Langdon 561, 95 Pac. 499. 

V. New York, 93 N. Y. 129. «i Le Marchel v. Teagarden, 152 

== Globe Mill Co. v. Bellingham Bay Fed. 662 ; Paterson v. Ogden, 114 Cal. 

Imp. Co., 10 Wash. 458, 38 P^c. 1112. 43, 74 Pac. 443, 99 Am. St. 31. 

s^Forsythe v. Ballance, 6 McLean 



§ 228 TITLES AND ABSTRACTS 250 

and is impervious to collateral attack."^ The patent is conclusive 
in a court of law"' as to the character of the land conveyed,"* as 
to the description of the land,"^ and the extent of the right passing 
under the grant."" The recitals in a patent are evidence against all 
persons claiming under it or by title arising or originating subse- 
quent to it."' But the judgment and conveyance of the department 
do not conclude the rights of the claimants to the land. Such 
rights rest on established principles of law and fixed rules of pro- 
cedure, which condition their initiation and prosecution, the appli- 
cation of which to the facts of each case determine its right deci- 
sion; and, if the officers of the land department are induced to is- 
sue a patent to the wrong party by an erroneous view of the law, 
or by a gross or fraudulent mistake of the facts, the rightful claim- 
ant is not remediless."^ The courts will exercise their equitable 
powers to control and limit the operation of a patent as between 
adverse claimants whenever it has been made to appear that by a 
mistaken application of the law to the facts of the case by the 
officers of the land department the patent has been issued to the 
wrong person, or when the holder of the legal title under it has 
obtained it by fraud upon the rights of one who is entitled to it."^ 
The general rule of law, which accords the presumption of 
validity to all proceedings necessary to uphold a patent issued by 
the federal government, does not prevent the cpurt from treating 
as void a patent which appears on its face to have been issued 
without authority, and proof extrinsic of the instrument itself 
is admissible to ascertain whether it was issued without author- 
ity.™ When the officers of the land department grant lands 
according to an actual survey of the United States, and when 
there is a conflict between the quantity expressed in the patent 
and that shown by the actual survey established, the survey will 
control." 

«2 Le Marchel v. Teagarden, 152 67 Bachop v. Critchlow, 142 Pa. St. 

Fed. 662; Chauvin v. Louisiana Oys- 518, 21 Atl. 984. 

ter Commission, 121 La. 10, 46 So. 38. «s James v. Germania Iron Co., 107 

63 Knabe v. Burden, 88 Ala. 436, 7 Fed. 597, 46 C. C. A. 476. 

So. 92. 69 Murray v. Montana &c. Mfg. Co., 

6* Paterson v. Ogden, 141 Cal. 43, 25 Mont. 14, 63 Pac. 719. 

74 Pac. 443, 99 Am. St. 31. ^oLedbetter v. Borland, 128 Ala. 

6= Miller v. Grunsky, 141 Cal. 441, 418, 29 So. 579. 

66 Pac. 858, 75 Pac. 48. ti Stonewall Phosphate Co. v. Pey- 

66Barrmger v. Davis (Iowa), 112 ton, 39 Fla. 726, 23 So. 440. 
N. W. 208. 



251 FEDERAL AND STATE PATENTS § 229 

§ 229. Rescission, cancelation and correction of patents. 
— We have seen that the issuance, recording and acceptance of a 
patent divests the government of all title to the land granted and 
control over same, and neither the executive nor the land depart- 
ment has any power to recall, cancel, annul or rescind the patent 
for any cause whatsoever. But the only way in which a patent 
improperly issued can be annulled is by decree of court in a suit 
instituted by the government for that purpose.'^ In bringing such 
suit the government does not act in its capacity as a sovereign, but 
as a litigant bound by the same rules as a private citizen.'^ 

Equity may relieve against a patent fraudulently obtained 
either by cancelation of the patent or by declaring the patentee 
a trustee for the benefit of complainant, but the latter relief 
may be granted only where the fraud complained of operated 
to prevent the complainant from establishing, in the proceedings 
before the officers of the land department, his own right to 
a patent.'* It has been held, however, that a patent will not 
be canceled on the ground that it was procured by the fraud of 
the patentee where the land has passed into the hands of a 
bona fide purchaser for value and without notice of the fraud, 
even though such purchase was made before such patent was 
issued and while the patentee had only an equitable title.^'*' If 
a patent has been erroneously issued, through fraud, mis- 
take or wrong views of the law, to one party, when another 
was legally entitled to it, it may be canceled at the suit of the 
government,'® provided, the rights of an innocent purchaser has 
not intervened." A patent issued by mistake which is recalled 
and canceled before any acceptance does not pass any title from 
the government.'* But the land department has no power to can- 
cel an entry for fraud or because the lands "entered were not sub- 
ject to entry without giving the entryman notice and a hearing.'^ 

The rule is well settled that where an attempt is made to annul 

"In re Emblen, 161 U. S. 52, 16 131, 31 L. ed. 182; People v. Swift, 

Sup. Ct. 487, 40 L. ed. 613; Gilmore 96 Cal. 165, 31 Pac. 16. 

V. Sapp. 100 111. 297 ; Bradley v. Dells ^o Janes v. Wilkinson, 2 Kans. App. 

Lumber Co., 105 Wis. 245, 81 N. W. 361, 42 Pac. 735. 

394. "United States v. Burlington &c. 

" Lynch v. United States, 13 Okla. R. Co., 98 U. S. 334, 25 L. ed. 198. 

142, 73 Pac. 1095. 78 Wood v. Pittman, 113 Ala. 207, 

'* Jameson v. James, 155 Cal. 275, 20 So. 972. 

100 Pac. 700. 79Delles v. Second Nat. Bank, 7 

" Colorado Coal & Iron Co. v. Uni- Wyo. 66, 65 Pac. 190, 75 Am. St. 875. 
■ ted States, 123 U. S. 307, 8 Sup. Ct. 



§ 230 



TITLES AND ABSTRACTS 



252 



or avoid grants, patents or other solemn evidences of title, em- 
anating from the government under its official seal, the great im- 
portance and necessity of the stability of titles demands that the 
effort to set them aside, annul or avoid them, or to correct mis- 
takes in them, shall only be successful w^hen the evidence is clear, 
strong and satisfactory.^" 

§ 230. Abstracting patents. — The initial step, in all ordi- 
nary cases being the patent from the United States, the abstract 
begins vvrith that document. If the patent can not be found re- 
corded in the office of the recorder or registrar of deeds in the 
county in which the land is situated, an office copy may be pro- 
cured from the general land office at Washington, upon filing 
there the affidavit of the owner stating his ownership and occupa- 
tion of the land, and the purpose for which the copy is wanted. 
The points to be noticed in the abstract are, the date of the 
issue, the name of the person to whom it was issued, the words 
of inheritance, the recital of the payment of the purchase-money, 
the person by whom the payment was made, the recital of any 
assignment by the certificate holder, his representatives or as- 
signs, the signing, sealing and volume and page of the record at 
Washington and in the county where the land lies. 

The following is deemed a sufficient showing of a patent from 
the United States government : 

Patent. 

Certificate No. 9887. 

Date of Certificate, January 15, 

1885. 
Certificate recorded February 

17, 1886. 
Certificate recorded in Book 98, 

page 74. 
Date of patent. May 15, 1890. 
Patent recorded August 17, 

1890. 
Patent recorded in Book 99, 
page 635. 

Consideration, $200.00, paid 
by patentee. Grants; the Southwest quarter of Section No. 31, 



United States 

to 

Samuel Hawkins. 



so Maxwell Land-Grant Case, 121 
U. S. 325, 7 Sup. Ct. lOlS, 30 L. ed. 



949; United States v. Budd, 144 U. 
S. 161, 12 Sup. Ct. 57S, 36 L. ed. 384. 



253 FEDERAL AND STATE PATENTS § 230 

Township No. 25, North of Range 8 East, containing 160 acres, 
to said Samuel Hawkins. 

Where the patent has issued it is customary to omit all refer- 
ence to the certificate or receipt except the number thereof. 

Where the patent shown consists of a copy recently received 
from the General Land Office reconi, the commissioner's certifi- 
cate should follow immediately after the abstract of the patent; 
or, as is now generally the practice, an abstract of the entry, 
showing the issuance and date of the receiver's receipt and cer- 
tificate, its number, and the book and page where recorded, should 
immediately precede the abstract of the patent. 

The formal execution of a state patent must conform to the 
statute in force at the time of its issue. The legislative act under 
which the grant was issued must be abstracted, showing the date 
of the passage of the act, and for what purpose the grant was 
made. All matters showing a compliance with the conditions of 
the grant must appear. The patent or grant must show the sig- 
nature of the public officer thereto, must be sealed with the offi- 
cial state seal, must be dated and recorded. Every step required 
by law to divest the state of its title must be shown. 



CHAPTER X 

SURVEYS, PLATS AND SUBDIVISIONS 
SEC. SEC. 

235. Historical view of government 239. Plats and subdivisions, 
land survey. 240. Maps and plats as evidence. 

236. Laying off the land into town- 241. Effect of reference in descrip- 
ships. tions to maps or plats. 

237. Laying off the townships into 242. Abstracting plat and subdivision, 
sections. 243. Vacation of plat. 

238. Subdividing the sections. 244. Dedication by maps or plats. 

§ 235. Historical view of government land survey. — In 

order to prepare public lands for sale and settlement, it became 
necessary to survey it into suitable tracts. Accordingly, in 1784, 
the Continental Congress appointed a committee to devise a sys- 
tem of land measurement. The first plan, which has been used 
to some extent in Virginia, was to take a square tract of land, 
which was called "hundreds," as the unit of measurement. This 
tract was ten miles each way, and the sections were numbered 
from one to one hundred, beginning at the northwest corner and 
numbering to the east and back again. In 1785 the plan was 
amended at the suggestion of Thomas Jefferson, chairman of 
the committee, by reducing the unit of measurement to six miles 
each way. This unit was called a "township," and the sections 
thereof were numbered from one to thirty-six, beginning at the 
southeast corner, and thence alternately west and east. Finally, 
in 1805, the present complete system of survey was adopted. 
This system was first applied to the survey of the Northwest 
Territory, and the system has been employed in surveying the 
lands of the states of Mississippi, Alabama, Florida and all the 
states north of the Ohio and west of the Mississippi river, except 
Texas. A map of the United States, published by the General 
Land Office, shows every meridian, base line and township that 
has been surveyed by this method in the different states. 

The work of surveying the public lands is now a part of the 
work of the General Land Office, one division of the department 
of the interior, and is under the control of the Commissioner of 
the General Land Office, who is subject to the direction of the 

254 



255 SURVEYS, PLATS AND SUBDIVISIONS | 236 

President. Prior to March 3, 1849, it had been a part of the 
duties assigned to the Secretary of State, next to the Secretary 
of War and then to the Secretary of the Treasury. 

§ 236. Laying off the lands into townships. — In making 
a survey of lands by the existing rectangular system it is neces- 
sary to have some substantial point from whence a start may 
be made. Such a point is selected as can readily be referred to, 
usually the mouth of some river, and from such point a line is 
run due north to the north line of the state or district to be sur- 
veyed. This first line is called the prime meridian. To illustrate : 
The first prime meridian is a line running north from the mouth 
of the Great Miami River in Ohio, and forms the western boun- 
dary of that state; the second is a line running north from the 
Little Blue Creek in Indiana; the third is a line running north 
from the mouth of the Ohio River; the fourth is a line running 
north from the mouth of the Illinois River; and the fifth is a line 
running north from the mouth of the Arkansas River. In the same 
manner other prime meridians are drawn farther west, there being 
twenty-four in all, and where the sectional system of survey is 
employed these prime meridians are first established. Lines are 
next run north and south parallel with the principal meridians six 
miles apart, beginning at the principal meridians. These lines 
mark the country off into strips six miles wide, and each strip is 
called a range. These ranges are numbered, beginning with one, 
east and west of the principal meridian. Owing to the curvature 
of the earth's surface these range lines get nearer together as they 
are extended toward the magnetic pole. In order to keep the 
ranges as near as possible to the prescribed width of six miles, at 
ev^ry twenty- four miles north from the base line a stop is made 
and the survey is moved over again so that the lines will be six 
miles apart again. Where a survey west from one meridian meets 
a survey east from another, the last row of townships or range 
surveyed may not be of the regulation width of six miles. After 
the range lines are run, the east and west lines are established. 
The first one drawn is designated the base line, and all cross the 
meridian lines at right angles. Other lines drawn parallel with 
the base lines and six miles apart cut the ranges into squares 
forming the congressional townships. These townships are num- 
bered, beginning with one, north and south from the base line. 

The accompanying diagram is designed to show the first work 



237 



TITLES AND ABSTRACTS 



256 



of a government survey, which is to divide the tract into town- 
ships. The ranges, which are numbered at the lower part of the 
diagram, are six miles wide at the base. The lines running east 
and west are six miles apart and are called parallels ; every fourth 
one is called a standard parallel, or correction line for the reason 
that distances, lessened by convergency, as above explained, are 
corrected on these lines and made the same as at the base line. 
The range lines and parallels divide the surveyed territory into 
townships, designed to be six miles square. The numbering of 
the townships is shown on the right hand side of the diagram. 
Guide meridians are run as often as may be necessary for the 
purpose of straightening the standard meridian lines as they be- 
come irregular in consequence of the corrections made on the 
standard parallels. 















1 Sta. 


dard 


Pari 


illel 




5 


(01 
-5' 






(C 




4 


Si 










3 


r5i 






a 




2 


31 

Ol 

I B 


ase 


Lin 


J- 
e ^ 




1 


! JGZ- 


m 


H 


I 


I 


1 


1 













§ 237. Laying off the tovirnships into sections. — ^We have 
seen that in making a survey of a new part of the country the 
township lines are established first. When this is done the sec- 
tions are located and the corners marked by placing a stake or 
stone at the comer, or by digging a hole in the ground or erect- 
ing a mound on the spot. In wooded districts a tree is some- 
times blazed near the section corner. These markers are called 



257 SURVEYS, PLATS AND SUBDIVISIONS § 237 

"monuments of a survey." An ideal township undef this system 
of surveying would produce thirty-six exact sections of six hun- 
dred and forty acres each, but owing to the fact, as already ex- 
plained, that two north and south lines get nearer together as they 
are extended north, the north end of each township is about three 
rods narrower than the south end. Also, owing to inaccurate sur- 
veying, the east and west lines which bound the townships on the 
north and south, do not always run parallel to each other. This 
produces a township of more or less than thirty-six exact sections 
of six hundred and forty acres each. To provide for this irreg- 
ularity the rows of sections on the north and west sides of the 
township are made to contain an irregular number of acres, which 
are called "fractional sections." All of the sections of the town- 
ship except those in the rows bordering on the north and west 
lines of the township are made to contain six hundred and forty 
acres each, while the remaining ones are laid off out of the land 
remaining in the township. Thus we have a township of thirty- 
six sections, twenty-five of which are full sections, containing six 
hundred and forty acres each, and eleven are fractional sections, 
containing a greater or less number of acres. The sections of a 
congressional township are numbered from one to thirty-six, be- 
ginning at the northeast corner, and counting west therefrom, 
and then proceeding east on the tier of sections next below, and 
so on until section thirty-six is reached in the southeast corner of 
the township. 

The accompanying diagram contains one full township and 
adjacent parts of the townships bounding the same on the north 
and west. The subdivision of townships is usually surveyed by a 
different crew of surveyors than those which survey the tract into 
townships. The first work of subdivision is to run lines parallel 
with the east line of the township and one mile apart, and to locate 
monuments or stakes upon these lines a distance of one-half mile 
apart. Lines one mile apart and parallel with the south line of 
the township are next run, thus dividing the township into one- 
mile squares, called sections, which are designated by number, 
as shown in the diagram. After measuring five and one-half 
miles north from the south line of the township, the distance re- 
maining may be a few feet more or a few feet less than one-half 
mile, owing to the discrepancy of the two measurements ; hence 
the quarter' sections on the north are usually fractional ; those 

17— Thomp. Absts. 



§ 238 



TITLES AND ABSTRACTS 



258 



on the west of each township are also fractional, for a similar 
reason. 

















36 

1 


31 


32 


33 


34 


35 


36 


6 


5 


4 


3 


2 


1 


12 


7 


8 


9 


10 


11 


12 


13 


18 


17 


16 


15 


14 


13 


24 


19 


20 


21 


22 


23 


24 


25 


30 


29 


28 


27 


26 


25 


36 


31 


3Z 


33 


34 


35 


36 



§ 238. Subdividing the sections. — A section is the small- 
est subdivision of which the lines are actually run on the ground, 
but smaller subdivisions are recognized, these being the "quarter 
section," containing one hundred and sixty acres, formed by 
running lines at right angles from points on the section boun- 
daries half way between the corners; "half of quarter sections," 
containing eighty acres, and "quarter quarter sections," of forty 
acres each. The areas of the various divisions do not, however, 
always correspond exactly to the figures above given, owing to 
irregularities in the surveys, and the convergence of the meridians 
in going north. The descriptions of parts of the fractional sec- 
tions differ somewhat from the descriptions in the full sections, 
and it is accomplished by having lots numbered in each of the 
irregular sections. If section one contains more or less than six 
hundred and forty acres it is surveyed so as to make three hundred 
and twenty acres in the south half and the remaining acres con- ■ 
stitute the north half. Then each of the north quarters is divided 
into lots by a line running east and west. The south half of the 
northeast or northwest quarter is made to contain eighty acres 



259 



SURVEYS, PLATS AND SUBDIVISIONS 



§ 238 



and is called "lot one" of that quarter. The remainder of the 
quarter is called "lot two" and will contain more or less than 
eighty acres, as the section is larger or smaller than six hundred 
and forty acres. In sections six, seven, eighteen, nineteen, thirty 
and thirty-one the surplus or deficient acreage is placed in the 
west half of the section and the east half is made to contain the 
prescribed three hundred and twenty acres, except in section six, 
which is also fractional in the north half. Where the fractional 
part occurs on the west side of the section, the lots are made to 
run north and south with lot one next to the center line of the 
section. Lot one always contains eighty acres, while the remain- 
ing lot numbered two contains more or less than eighty acres, as 
the section is more or less than a full section of six hundred and 
forty acres. When the section is very large more than two lots 
are made in a quarter. In such case several eighty-acre lots are 
marked off in the fractional quarters. As many full eighty-acre 
lots are surveyed as possible and the last lot of the quarter at the 
north end is left to contain as near eighty acres as it may, so that 
it does not contain one hundred and sixty acres or more. The 
lots are then numbered from one, beginning at the center line of 
the section. Where the fractional section is of the regulation 

N 



W 



of NW>i 

40A. 


N>iofNEJii 
of NWJ4 


NE %, 

160 A. 


SXofNEJ4 
of NWJ4 


S>i of NWJ^ 

80/4. 


SOUTH Vz 
3Z0A 



Diagram No. 1 



§ 238 



TITLES AND ABSTRACTS 



260 



length but is so narrow that a quarter thereof contains less than 
eighty acres, the section is divided into quarter quarters the same 
as if it were a full section, but each quarter quarter containing 
less than forty acres. 

The accompanying diagram No. 1 is designed to illustrate the 
division of a section into parts formed by regular surveyed 
lines, and to furnish a description of the various subdivisions. 

Diagram No. 2 is designed to illustrate the method of describ- 
ing government lands bounded on the west by guide meridians, 
and also lands bordering on meandering waters. Whenever a 



N 



W 



rtT 



12 



13 



U 



14 



10 



15 



&- 




Diagram No. 2 

guide meridian is run, it is evident that all sections lying di- 
rectly east must be extended to it, thus making all such sections 
more than a square mile; the north and south quarter line of each 
section is run as in other sections, and all that portion west of it 
is divided into lots as shown in this diagram. Assuming the sec- 
tion, illustrated by diagram No. 2, to belong to Township 112 of 
Range 17 West of the fifth principal meridian, the tract marked 
"A" should be described as follows: "Lot four (4) of the 
northwest quarter (J4) of section eighteen (18), of township 
one hundred twelve (112) north, of range seventeen (17) west, 
of the fifth (5th) principal meridian, containing twenty-two and 
fifteen-hundredths (22.15) acres, more or less, according to the 



261 SURVEYS, PLATS AND SUBDIVISIONS § 239 

government survey thereof." The tract marked "B" should be 
described in a similar manner; the "southeast quarter" of section 
18 must be substituted for the "northwest quarter" ; in other re- 
spects the descriptions would be the same except as to acreage. 

§ 239. Plats and subdivisions. — Statutes usually provide 
that persons in laying off any town or addition thereto, or any 
addition to any city or town, or any subdivision of any lots or 
lands within the limits of any city or town shall, previous 
to the sale of any lots in such town, addition or subdivision, 
cause to be recorded in the recorder's ofifice of the proper county 
a correct plat of such town, addition or subdivision, with the pub- 
lic grounds, streets and alleys properly marked, showing the 
length and width of each and with the lots regularly numbered 
and the size thereof marked upon the plat. This plat is generally 
required to be acknowledged by the owner to entitle it to record. 
Before admitting the plat to record, however, it must be sub- 
mitted to and approved by the duly authorized town or city 
board, a certificate of which approval must be attached to the plat. 
Sometimes the surveyor is required to describe the land surveyed 
and officially certify to same. A plat of an addition to a town or 
city implies a previous survey and marking upon the ground, and 
one claiming under a deed describing the property surveyed by 
reference to such plat may show the existence of the stakes indi- 
cating the lines as marked by the surveyor.^ In case of .a contest 
as to the boundary line between a street and the abutting lots, the 
original survey will control the recorded plat.^ 

A municipality, in accepting and approving a plat, performs a 
discretionary or judicial act, which the courts will not review 
unless some distinct legal duty has been violated.^ The approval 
of the plat of a proposed addition to a city by the common council 
does not constitute an acceptance of the streets thereon laid out, 
or amount to an act of jurisdiction over them, or impose an ob- 
ligation upon the city to keep them in repair, although such plat 
vests the fee of the streets therein described in the city.* The ex- 
ecution, acknowledgment and recording of a plat, in conformity 

1 Burke V. McCowen, 115 Cal. 481, => Funke v. St. Louis, 122 Mo. 132, 

47 Pac. 367. 26 S. W. 1034. 

^Thrush v. Graybill, 110 Iowa 585, *Downend v. Kansas City, 156 Mo. 

81 N. W. 798. ,60, 56 S. W. 902, 51 L. R. A. 170. 



§ 240 TITLES AND ABSTRACTS 262 

with the statute operates as effectively as a deed to convey the 
title to the streets therein mentioned to the municipality.'^ 

§ 240. Maps and plats as evidence. — The original plat of 
a survey, when duly executed, acknowledged, approved and re- 
corded according to law, may always be used in evidence to show 
the position of. the land, and is evidence of the most potent kind 
in determining the location of the lines and corners.'' But an un- 
official tracing or copy of a map is not admissible in evidence.' 
A plat, the accuracy of which is attested by the evidence of the 
surveyor who made it, is admissible in evidence on the question 
of boundary without proof of its execution, authentication and 
record.^ In a suit of one railway company against another rail- 
way company to prevent the latter company from constructing a 
railroad track across a certain tract of land, of which the plain- 
tiff company alleged ownership, on a hearing of the application 
for an interlocutory injunction, it was held not error to admit in 
evidence the affidavit of the surveyor and an attached plat of the 
land ; it being deposed by the witness that he had made the survey 
and the plat, and that it truly represented the land in dispute.^ 

§ 241. Effect of reference in descriptions to maps or plats. 

— It is a very common practice of conveyancers to refer in a con- 
veyance to a map or plat. Such a reference has the effect of in- 
corporating the map or plat in the conveyance.^" The fact that 
the plat referred to is invalid, because not made and filed in ac- 
cordance with statutory provisions, does not affect the deed. A 
reference to a void plat for a description is just as effectual as a 
reference to a valid plat, if the description is correct and the plat 
referred to is accessible.^^ When there is a conflict between a 
map or a plat referred to and an actual survey the latter controls, 
and the reference to the map or plat may be rejected as sur- 
plusage.^^ 

5 WoUacott V. Chicago, 187 111. 504, lo Masterson v. Munroe, 105 Cal. 

58 N. E. 426. 431, 38 Pac. 1106, 45 Am St. 57; In 

« Bell County Land & Coal Co. v. re Ferguson's Appeal, 117 Pa. St. 426,' 

Hendrickson, 24 Ky. L. 371, 68 S. W. 11 Atl. 885; State Savings Bank v. 

842. Stewart, 93 Va. 447, 25 S. E. 543. 

'Ellison V. Barnstrator, 153 Ind. "Nichols v. New England Furni- 

146, 54 N. E. 433. ture Co., 100 Mich. 230, 59 N. W. 155. 

8 Justen V. Schaaf, 175 111. 45, 51 N. 12 Cleveland v. Choate, 77 Cal. 73, 

E. 695. 18 Pac. 875 ; Racine v. Case Plow Co., 

^ Atlanta & W. P. R. Co. v. At- 56 Wis. 539, 14 N. W. 599. 
lanta &c. R. Co.,