THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
MARKETABLE TITLE
TO
BSTATE
BEING ALSO
A TREATISE
ON THE
RIGHTS AND REMEDIES OF VENDORS AND PURCHASERS
OF DEFECTIVE TITLES (As BETWEEN THEMSELVES)
INCLUDING THE
Law of Covenants for Title, the Doctrine of Specific
Performance, and other Kindred Subjects
SECOND EDITION
BY
CHAPMAN W. MAUPIN
n i
OF THK WASHINGTON, D. C., BAR
NEW YORK
BAKER, VOORHIS & COMPANY
1907
COPYBIGHT, 1907,
BY BAKER, VOORHIS & CO.
PREFACE.
This work is a treatise on the law of title to real property, as
that law is applied between vendor and purchaser. The material
v. Inch composes it has been drawn principally from cases that have
arisen between the buyer and seller of lands, and not from decisions
in ejectment, or other possessory actions, though of course these
latter cases have been availed of whenever they supply principles
which affect the rights of the vendor or purchaser with respect to
the title that is to be conveyed. The work is, therefore, in no re-
spect a treatise upon real property, real property tenures, nor titles
1o real estate, in the sense in which this last term is commonly
used, but is, instead, a collation of the laws and decisions which
govern the rights of both parties with respect to the title, and
prescribe the remedies of the purchaser; precautionary, where it is
anticipated that the title may prove defective, and compensatory,
where it has proven to be so. Therefore, what circumstances will
entitle a vendee to protection as a bona fide purchaser for value
without notice, or will sustain his title in ejectment, or will sup-
port his bill to remove a cloud from the title, have not been mado
the subject of separate and independent treatment in this work,
and have been considered only so far as they have served to
illustrate some principle of the law of defective titles, as applied
between vendor and purchaser. That law 7 is to be found dispersed
through the text books, and through the reports and digests under
the several heads of Vendor and Purchaser, Covenants for Title/
Specific Performance, Equity Jurisprudence, Deeds, Titles to
Real Estate, Real Property, Abstracts of Title, Judicial Sales.
Subrogation, and many other minor heads of the law. The effort
of the writer has been to collect the relevant matter from these
different sources in one volume, and so to arrange and to dispose
it as to render the whole easily accessible to the profession.
Some difficulty has been experienced in choosing between several
apparently appropriate titles for the work. That which has been
selected, " Marketable Title," is satisfactory, but requires a word
of explanation. The modern use and acceptation of this term it is
believed justifies its employment as the title of a treastise upon
735263
IV PREFACE.
the rights of vendors and purchasers of defective titles, including
as well the law of covenants for title as the equitable doctrine of
doubtful titles. But originally the term was narrow and technical
in its meaning, being used in equity to denote a title concerning
which there was no reasonable doubt. The term was not known in
the law courts, where titles were treated either as good or bad, and
judgment rendered accordingly. Hence at law a title might be
adjudged good which in equity the purchaser would not be com-
pelled to accept. A small but learned and abstruse treatise upon
the equitable doctrine of marketable titles by S. Atkinson wa*
published in London and republished in America (1838) in the
" Law Library ;" from this work the limited and technical signifi-
cance of the expression will appear. Of late years, however, the
American courts have very generally applied the term " un-
marketable " to any title which a purchaser cannot be required to
accept, without discriminating between titles absolutely bad and
those merely doubtful, so that now " unmarketable " is commonly
employed by the courts and the profession as a synonym for " de-
fective " title. This is probably due to the fact that in most of the
States legal and equitable relief are administered in one and the
same court and form of action without distinction, or at least
equitable defenses are allowed to be interposed in actions at law.
Hence there is no longer any occasion for treating the expression
*' marketable title " as limited and technical in its character. The
term then, or rather its negative form, being applicable to all
defective titles whether absolutely bad or merely doubtful, it is
apprehended that no inconvenience can arise from treating under
that head such subjects as Covenants for Title, Estoppel, Action
for Damages, Right to Perfect the Title, and so on, none of which
belong to the original equitable doctrine of marketable titles, but
obviously pertain to the law of defective titles.
The author desires to acknowledge the many facilities for the
prosecution of his labors which have been afforded him in a
generous manner by his publishers, Messrs. Baker, Voorhis & Co. r
of the city of New York ; and courtesies extended to him by
Messrs. B. Kennon Peter and F. S. Key Smith, in charge of the
law library of the Bar Association of the District of Columbia.
C. W. M.
WASHINGTON, D. C., May 1st, 1896.
PREFACE TO SECOND EDITION.
The author has examined the cases relating to this branch of
the law of real property, decided by the courts since the publication
of the first edition of this work in 189G. Such of them as are no
more than applications of settled principles of law, he has merely
cited or referred to under their appropriate heads. A large num-
ber, valuable for purposes of illustration, have been set out as
paragraphs in the notes; and many have furnished material for
the enlargement and improvement of the text. A number of new
sections have been added to the body of the work. In all some-
thing more than seven hundred new decisions appear in the present,
edition, representing the application of the law governing the
rights of purchasers of defective titles to real property by the
courts of nearly every State in the Union.
C. W. M.
WASHINGTON, D. C., 1907.
ANALYSIS.
BOOK I.
Of remedies in affirmance of the contract of sale. 1
Of affirmance by proceedings at law. 1
Of proceedings at law while the contract is executory. 1
Introductory. 1
Action for breach of contract. 11
Title which the purchaser may demand. 20
Implied and express agreements as to the title, 20
Sufficiency of the conveyance.
Caveat Emptor. 75
Covenants which the purchaser may demand. 143
Abstract of title. 159
Waiver of objections to the title. 183
Tender of purchase money and demand of deed. 199
Measure of damages. 209
Action for deceit. 232
Of proceedings at law after the contract has been executed. 253
Action for covenant broken. 253
Covenants for seisin and for right to convey. 253
Covenant against incumbrances. 278
Covenant of warranty and for quiet enjoyment. 318
Covenant for further assurance. 416
Detention of purchase money on breach of the covenants
of warranty and against incumbrances. 420
Of affirmance by proceedings in equity. 456
Specific performance of executory contracts. 456
Right of the purchaser to take the title with compensation
for defects. 467.
Eight of the purchaser to perfect the title. 481
Specific performance of covenants for title. 489
Estoppel of the grantor. 493
Reformation of the convevance. 526
Vlll ANALYSIS.
BOOK II.
Of remedies in disaffirmance or rescission of the contract of sale. 548
Of rescission by act of the parties. 548
Of virtual rescission by proceedings at law. 554
Of proceedings at law where the contract is executory. 554
Of the right to recover back or to detain the purchase
money. 554
Of the obligation of the purchaser to restore the premises
to the vendor. 583
Of proceedings at law where the contract has been executed. 599
Detention of the purchase money on breach of the covenant
of seisin. 599
Acceptance of conveyance without covenants for title. 61C-
Restitution of the purchase money where there are
covenants. 643
Fraud in respect to the title. G47
Of rescission by proceedings in equity. 65X5
Where the contract is executory. 656
Suit for rescission and defenses to suit for specific
performance. 656
The doctrine of doubtful titles. 672
Eight of the vendor to perfect the title. 741
Right to require the purchaser to take the title with
compensation. 769
Where the contract has been executed. 778
Injunction. 778
Fraud and mistake, 798
CONTENTS.
BOOK I.
OF REMEDIES IN AFFIRMANCE OF THE CONTRACT OF SALE.
OF AFFIRMANCE BY PROCEEDINGS AT LAW.
OF PROCEEDINGS AT LAW WHILE THE CONTRACT is
EXECUTOR^.
CHAPTER I.
INTRODUCTORY.
CHAPTER II.
ACTION FOR BREACH OF CONTRACT.
General principles; form of action. 1
Doubtful title in action for damages. 2
Purchaser in possession may sue. 3
Defenses to the vendor's action for breach of contract. 4
CHAPTER III.
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE.
Implied agreements:
General rule. 5
Express agreements:
General principles. 6
Terms and conditions of sales. 7
Auctioneer's declarations. Parol evidence. 8
English rules as to conditions. 9
Agreement {o make a ''good and sufficient doed." 10
Agreement to convey by quit claim. 11
Agreement to sell " right, title and interest." 12
Agreement to sell subject to liens. 13
CHAPTER IV.
OF THE SUFFICIENCY OF THE CONVEYANCE TENDERED BY THE VENDOR.
General observations. 14.
Essential requisites of the conveyance. 15
Material, printing, etc. 16
Date. 17
Parties. 18
Words of conveyance. 19
CONTEXTS.
Description of the premises. 20
Description of the estate or interest conveyed. 21
Signature and seal. 22
Attestation or acknowledgment. 23
(a) Venue of the certificate. 24
(b) Name and official designation of certifying officer. 25
(c) Name of grantor. 26
(d) Annexation of deed. 27
(e) Jurisdiction of certifying officer. 28
(f) Personal acquaintance with grantor. 29
(g) Fact of acknowledgment. 30
(h) Privy examination of wife. 31
(i) Explanation of contents of deed. 32
(k) Voluntary act of wife. 33
( 1 ) Wish not to retract. 34
(m) Reference to official seal. 35
(n) Date of certificate. 36
(o) Signature of officer. 37
(p) Abbreviation of official designation. 38
(q) Seal of officer. 39
(r) Surplusage and clerical mistakes. 40
(B) Amendment of certificate. 41
Reservation, restrictions and conditions. 42
Waiver of objections to the conveyance. 43
CHAPTER V.
CAVEAT EMPTOB.
General observations. 44
Application of the maxim to judicial sales:
Inherent defects of title. 45
Effect of confirmation of the sale. 46
Exceptions to the rule. 47
Fraud as it affects rights of purchasers at judicial sales. 48
Errors and irregularities in the proceedings. Collateral attack. $ 40
Want of jurisdiction. 50
Matters occurring after jurisdiction has attached. 51
Fraud as ground for collateral attack. 52
Sales by executors and administrators:
Sales in pursuance of testamentary powers. 53
Sales in pursuance of judicial license. 54
Fraud on the 'part of personal representative. 55
Want of jurisdiction. Errors and irregularities. 56
Sheriff's sales:
Want of title in execution defendant:
General rules. 57
Exceptions. $ 58
Fraudulent 'representations. ? 59
Rights of purchaser from purchaser under execution. 5 60
CONTEXTS. XL
Sheriff's sales Continued.
Title under void judgment. 61
Title under void sale. 62
Tax sales. 63
Sales by trustees, assignees, etc. 64
Subrogation of purchaser at judicial and ministerial sales:
Where the sale is void. 65
Where the sale is valid. 66
CHAPTER VI.
COVENANTS WHICH THE PURCHASE HAS A RIGHT TO DEMAND.
Usual covenants. 67
From grantors in their own right. 68
From fiduciary grantors. 69
From ministerial grantors. 70
CHAPTER VII.
ABSTRACT OF TITLE.
In general. 71
Root of title. 72
Duty to furnish abstract. 73
Property in the abstract. 74
Time in which to examine the title ;and verify the abstract. 75
Summary of the various sources of objections to title. 8 76
Objections appearing from the instruments under which title ia
claimed. 77
Objections which appear from the public records. 78
Objections which appear upon inquiries in fxtin. 8 79
CHAPTER VIII.
WAIVER OF OBJECTIONS TO TITLE.
In general. 80
Waiver by taking possession. 81
Laches of purchaser. 82
Waiver by continuing negotiations. 83
Waiver in cases of fraud. 84
Waiver by purchasing with notice of defect. 85
CHAPTER IX.
TENDER OF PERFORMANCE AND DEMAND FOR DEED.
General rule. 86
Exceptions. 87
Duty of the vendor to tender performance. 88
Pleadings. 89
.xii CONTENTS.
CHAPTER X.
MEASURE OF DAMAGES FOB INABILITY TO CONVEY A GOOD TITLE.
General observations. 90
Where the vendor acts in good faith:
Flureau v. Thornhill. Hopkins v. Lee. 91
Barter contracts. 92
Expenses of examining the title. 93
Interest. 94
Rents and profits. 8 95
Improvements. 96
Where the vendor acts in bad faith. 97
Where the vendor expects to obtain the title. 98
Where the vendor refuses to perfect the title. 99
Liquidated damages. 100
CHAPTER XI.
ACTION AGAINST TUB VENDOR FOR DECEIT.
General principles. 101
What constitutes fraud with respect to the title:
Concealment of defects. 102
Willful or careless assertions. 103
Defects which appear of record. 104
Existence of fraudulent intent. 105
Statements of opinion. 106
Pleading. 107
OF AFFIRMANCE BY PROCEEDINGS AT LAW AFTER THE CONTRACT
HAS BEEN EXECUTED ACTION FOR COVENANT BROKEN.
CHAPTER XII.
OF THE COVENANT FOB SEISIN.
Form and effect. 108
What constitutes a breach. 109
As-signability of this covenant :
Tn general. 110
Does not run with the land. 111
Contrary rule. Doctrine of continuing breach. 112
Possession must have passed with the covenantor's deed. 113
When Statute of Limitations begins to run. 114
Conflict of laws. 115
Measure of damages. 116
Burden of proof. 117
Pleadings. 118
CONTENTS. Xlll
CHAPTER XIII.
COVENANT AGAINST INCUMBBANCES.
Form. 119
Restrictions and exceptions. 120
Parol agreements. 121
What constitutes breach. 122
Definition of incuinbrance. 123
Pecuniary charges and liens. Effect of notice. 124
Outstanding interest less than a fee. 125
Easements or physical -incumbrances. 12G
Notice of easement at time of purchase. 127
Assignability of this covenant. 128
Measure of damages:
General rules. 129
Where covenantee discharges the incumbrance. 130
Damages cannot exceed purchase money and interest. 131
Where incumbrance is permanent. 132
Pleading and proof. 133
CHAPTER XIV.
COVENANTS OF WABBANTY AND FOB QUIET ENJOYMENT.
Form. 134
Construction and effect. 135
Qualifications and restrictions. 130
When implied. 137
Parties bound and benefited:
Married women. 138
Heirs and devisees. Joint convenantors. 139
Personal representatives. 140
Who may sue for breach. 141
What constitutes breach :
Tortious disturbances. 142
Eminent domain and acts of sovereignty. 143
Actual eviction:
General rule. 144
Entry by adverse claimant. Legal process. 145
Constructive eviction:
Inability to get possession. 146
Vacant and unoccupied lands. 147
Surrender of possession. 148
Hostile assertion of adverse claim. 149
Purchase of outstanding title. 150
Hostile assertion of adverse claim. 151
of incorporeal rights. 152
XIV CONTENTS.
Covenant of warranty runs with the land:
General rule. 153
Assignee may sue in his own name. 154
Separate actions against original covenantor. 155
Release of covenant \>y immediate covenantee. 156
Quit claim passes benefit of covenant. 157
Immediate covenantee must liave been damnified. 158
Remote assignee may sue original covenantor. 159
Mortgagee entitled to benefit of covenant. 160
Original covenantor must have been actually seised. 161
Assignee not affected by equities between original parties. 162
Covenant extinguished by reconveyance to covenantor. 163
Measure of damages:
General rule. 164
New England rule. 165
Amount to -which assignee is entitled. 166
Consideration may be shown. 167
Where covenantee buys in paramount title. 168
Loss of term for years. 169
Eviction from part of the estate. 170
Improvements. 171
Interest on damages. 172
Costs. 173
Counsel fees and expenses. 174
Notice of hostile suit and request to defend. 175
Pleading and burden of proof. 176
Covenant for quiet enjoyment. 177
CHAPTER XV.
COVENANT FOB FUBTHEB ASSUBANCE,
In general. 178
Breach. Estoppel. Assignability. Damages. 179
CHAPTER XVI.
DETENTION OF THE PURCHASE MONEY WHEBE THESE HAS BEEN A BBEACH OF
THE COVENANTS FOB TITLE.
General rule. 180
Merger of prior agreements in covenants for title. 181
Purchase with knowledge of defect. 182
Recoupment. 183
Recoupment in foreclosure of purchase-money mortgage. 184
Partial failure of consideration. 185
Assumpsit to try title. 186
What constitutes eviction. 187
Discharge of incumb ranees. 188
Rule in Texas. 189
Rule in South Carolina. 190
Pleadings. 191
Resum6. 192
CONTENTS. XV
OF AFFIRMANCE OF THE CONTRACT BY PROCEEDINGS IN EQUITY.
CHAPTER XVII.
SPECIFIC PERFORMANCE OF EXECUTORY CONTRACTS AT THE SUIT OF THE
PURCHASER.
In general. 193
Payment of the purchase money as condition precedent. 194
Laches of purchaser. 195
Damages in equity. 196
CHAPTER XVIII.
RIGHT OF THE PURCHASER TO TAKE TITLE WITH COMPENSATION FOR DEFECTS.
General rule. 197
Indemnity against future loss. 198
Indemnity against dower. 199
Exceptions to general rule. 200
Right of vendor to rescind on failure of the title. 201
CHAPTER XIX.
OF THE RIGHT OF THE PURCHASER TO PERFECT THE TITLE.
By the purchase of adverse claims. 202
By the discharge of liens or incumbrances. 203
Subrogation of purchaser. 204
CHAPTER XX.
OF SPECIFIC PERFORMANCE OF COVENANTS FOR TITLE.
General rules. 205
Covenant against incumbrances. 206
Conveyance of after-acquired estate. 207
CHAPTER XXI.
ESTOPPEL OF THE GRANTOR.
General rules. 208
After-acquired estate must be held in same right. 209
Mutual estoppels. 210
Estoppel of mortgagor. 211
Effect of void conveyance as an estoppel. 212
Effect of estoppel as an actual transfer of the after-acquired estate. 2!3
Rights of purchaser of the after-acquired estate from the covenantor. 214
Compulsory acceptance of the after-acquired estate in lieu of damages. 215
What covenants will pass the after-acquired estate. 216
Estoppel not dependent on avoidance of circuity of action. 217
Effect of quit claim by way of estoppel. 218
Estoppel of grantee. 219
Resum. 220
XVI CONTENTS.
CHAPTER XXII.
REFORMATION OF THE CONVEYANCE.
When granted and when denied:
General principles. 221
Mistake of fact. 222
Mistake of law. 223
Mutuality of mistake. Fraud. 224
Mistakes resulting from negligence. 225
Nature and degree of evidence required. 226
Laches in application for relief. 227
Defective execution of statutory power. 228
In favor of and against whom relief may be had:
In general. 229
In favor of grantor. 230
Purchasers and creditors. 231
Volunteers. 232
Married women. 233
BOOK II.
OF REMEDIES IN RESCISSION OR DISAFFIRMANCE OF THE CON-
TRACT OF SALE.
CHAPTER XXIII.
OF RESCISSION BY ACT OF THE PABTIES.
General principles. 234
Rescission by one party only. 235
Statute of Frauds. 236
OF VIRTUAL RESCISSION OF THE CONTRACT BY PROCEEDINGS AT
LAW.
OF PROCEEDINGS AT LAW WHERE THE CONTRACT is EXECU-
TORY.
CHAPTER XXIV.
OF THE RIGHT TO RECOVER BACK OR DETAIN THE PURCHASE MONEY ON
FAILURE OF THE TITLE.
General principles. 237
Restitution of the purchase money. 238
What action purchaser should bring. 239
Detention of the purchase money. 240
Exceptions and qualifications. 241
What objections to title may be made. 242
CONTENTS. XVI 1
Expenses of examining the title. 243
Burden of proof. Miscellaneous rules, 244
Right to rescind where the estate is incumbered. 245
Buying with knowledge of defect or incumbrance. 246
Chancing bargains. 247
Effect of accepting title bond. 248
Inquiry into consideration of sealed instrument. 249
Right to enjoin collection of purchase money. 250
Rights against transferee of purchase-money note. 251
Refusal of vendor to convey for want of title. 252
Tender of purchase money and demand of deed. 253
Offer to rescind. 254
Pleadings. 255
CHAPTER XXV.
OF THE OBLIGATION OF THE PURCHASER TO RESTORE THE PREMISES TO THE
VENDOR.
General principles. 256
Vendor must be placed in statu quo. 257
Restoration of premises a condition precedent to rescission. 258
Rule in Pennsylvania, 259
Restoration of the premises in cases of fraud. 260
When purchaser need not restore the premises. Purchaser's lien. 2G1
Other exceptions. 262
Restoration of the premises where the contract is void. 263
OF VIETUAL RESCISSION BY PROCEEDINGS AT LAW AFTEB THE
CONTRACT HAS BEEN EXECUTED.
DETENTION OF THE PUECHASE MONEY.
CHAPTER XXVI.
OF DETENTION OF THE PURCHASE MONEY WHERE THERE HAS BEEN A BREACH
OF THE COVENANT OF SEISIN.
General rule. 264
Qualifications of this rule. 265
Breach of covenant as to part of the premises. 266
CHAPTER XXVII.
OF THE DETENTION OR RESTITUTION OF THE PURCHASE MONEY WHERE THE
DEED CONTAINS NO COVENANTS FOR TITLE.
General principles. 267
Exception. Void conveyances. 268
Merger of prior agreements in the deed. 269
Merger in cases of fraud. 270
Rule in Pennsylvania as to detention of the purchase money. 271
XV111 CONTENTS.
CHAPTER XXVIII.
OF RESTITUTION OF THE PURCHASE MONEY WHERE THERE ARE COVENANTS FOR
TITLE.
General rule. 272
Exceptions. 273.
CHAPTER XXIX.
OF DETENTION OR RESTITUTION OF THE PURCHASE MONEY IN CASES OF- FRAUD.
General rule. 274
Executed contracts. 275
Waiver of fraud. 276
OF RESCISSION BY PROCEEDINGS IN EQUITY.
WHERE THE CONTRACT is EXECUTORY.
CHAPTER XXX.
OF THE SUIT FOR RESCISSION PROPER.
General principles. 277
Defenses to suits for specific performance. 278
Placing the vendor in statu quo. 279
Interest. Rents and profits. Improvements. 280
Pleading. 281
Parties. 282
CHAPTER XXXI.
OF DOUBTFUL TITLES.
General rules. 283
Classification of cases of doubtful titles. 284 .
Cases in which the title will be held free from doubt. 285
Doubtful titles at law. 286
Inconclusiveness of judgment or decree. 287
Special agreements as to the title. 288
Parol evidence to remove doubts. 289
Equitable title. Adverse claims. 290
Defeasible estates. 291
Title as dependent upon adverse possession. 292
Presumptions from lapse of time. 293
Title as affected by notice. 294
Burden of proof. 295
Illustrations of the foregoing principles. 296
Errors and irregularities in judicial proceedings. 297
Sale of the estates of persons under disabilities. 298
Want of parties to suits. 299 ,
Defective conveyances and acknowledgments. Imperfect registration.
300
Construction of deeds and wills. 301
Competency of parties to deeds. 302
Title as dependent upon intestacy. Debts of decedent. 303
CONTEXTS. XIX
Ineumbrances. 304
Admitted incumbrances. 305
Ineumbrances which make the title doubtful. 306
Apparently unsatisfied incumbrances. 307
CHAPTER XXXII.
OF THE RIGHT OF THE VENDOR TO PEBFECT THE TITLE.
Before the time fixed for completing the contract. 308
After the time fixed for completing the contract. 309
Exceptions: (1) Where time is material. 310
(2) Where the covenants* are mutual and dependent. 311
(3) Waiver of the right. 312
(4) Loss and injury to the purchaser. 313
(5) Fraud of the vendor. 314
(6) Want of colorable title. 315
(7) Laches of vendor. 316
_(8) Effect of special agreements. 317
(9) Effect of notice and request to perfect the title. 318
In what proceedings the right may bo asserted. 319
Reference of the title to master in chancery:
When directed. 320
When refused. 321
At what stage of the proceedings reference may be made. 322
Procedure. Costs. 323
Interest on the purchase money while title is being perfected. 324
CHAPTER XXXIII.
OF THE RIGHT OF THE VENDOR TO REQUIRE THE PURCHASER TO TAKE THE
TITLE WITH COMPENSATION FOR DEFECTS.
General rule. 325
Exceptions. 326
Indemnity against future loss. 327
CHAPTER XXXIV.
WHERE THE CONTRACT HAS BEEN EXECUTED. OF THE REMEDY BY INJUNCTION
AGAINST THE COLLECTION OF THE PURCHASE MONEY.
General observations. 328
Fraud on the part of the grantor. 329
Want of opportunity to defend at law. 330
Insolvency or non-residence of grantor. 331
Where the estate is incumbered. 632
Foreclosure of purchase-money mortgage, 333
Where there are no covenants for title. 334
Temporary and perpetual injnnction. 335
Resume. 336
Where there is no present right to recover substantial damages for breach
of the covenants. 337
XX CONTENTS.
CHAPTER XXXV.
OF FBAUD AND MISTAKE.
Fraud on the part of the grantor. 338
General principles:
Damages in equity. 339
Mistake of fact:
General rule. 340
Negligence of purchaser. 341
Immaterial mistakes. 342
Mistakes as to quantity. 343
Mistake of law:
General rule. 344
Distinction between ignorance of law and mistake of fact. 345
Erroneous construction of devise or grant. 346
Where the construction of the law is doubtful. 347
Misrepresentation of the law by the vendor.. 348
[BEFKKE.N'CK.S ARE TO PAGES.]
Abbott v. Allen, 256, 258, 276, 278,
447, 449, 637, 848.
Abbott v. Hills, 381
Abbott v. James, 721, 770
Abbott v. Ronan, 368
Abby v. Goodrich, 380
Abel v. Hethcote, 731
Abendroth v. Greenwood, 34
Abercombe v. Owings, 4V 7
Aberdeen v. Blackman, 282
Abernathy v. Boazman, 259, 335
Abernathy v. Phillips, 214
Able v. Chandler, 112
Abner v. York, 848
Abraham v. Mieding, 738
Abrams v. Rhoner, 738, 740, 745
Ackerman v. Smiley, 547
Adair v. McDonald, 575
Adami v. Backer, 754, 758
Adams v. Baker, 337
Adams v. Conover, 258, 375, 409
Adams v. Fairbain, 596
Adams v. Gibney, 343
Adams v. Heathcote, 190, 192%
Adams v. Henderson, 776
Adams v. Kibler, 82
Adams v. James, 251
Adams v. Messenger, 492
Adams v. Reed, 556, 641
Adams v. Ross, 340, 548
Adams v. Smith, 141
Adams v. Stevens, 574
Adams v. Valentine, 776, 828
Adamson v. Rose, 213
Aday v. Echols, 489
Addleman v. Mormon, 843
Adkins v. Tomlinson, 259, 274
Agan v. Shannon, 105
Aiken v. Franklin, 257
Aiken v. McDonald, 397, 401, 412
Aiken v. Sanford, 33
Ake v. Mason, 305
Akerly v. Vilas, 633
Ala. Life Ins. Co. v. Boykin, 67
Albro v. Garland, 791
Alday v. Rock Island Co, 118
Alden v. Parkliill, 470
Alexander v. Kerr, 195
Alexander v. McAuley, 640
Alexander v. Merry, 63
Alexander v. Mills, 712, 713, 714,715
Alexander v. Newton, 561
Alexander v. Schreiber, 311
Alexander v. Staley, *22
Alexander v. Utley, 194, 578
Alger v. Anderson, 857
Alkus v. Goettmann, 769
Allaire v. Whitney, 687, 688
Allemong v. Gray, 339
Allen v. Allen, 264
Allen v. Anderson, 2i3, 216, 500
Allen v. Atkinson, 166, 594, 749
Allen v. Denoir, 67
Allen v. Elder, 561
Allen v. Hammond, 859
Allen v. Hazen, 148, 149
Allen v. Holton, 340, 548
Allen v. Hopson, 600, 685, 835
Allen v. Kennedy, 265, 377
Allen v. Lee, 284, 335
Allen v. Little, 267, 379, 382
Allen v. Pegram, 445, 648
Allen v. Phillips, 606, .732, 738
Allen v. Sayward, 539
Allen v. Taylor, 335
Allen v. Thornton, 836, 838
Allen v. Yeater, 149
Allis v. Nininger, 363, 364
Allison v. Allison, 337, 356
Allison v. Shilling, 496, 499
Allstead v. Nicoll, 799
Almy v. Hunt, 292
Altemus v. Nichols, 527
Altgelt v. Mernitz, 108
Alvarez v. Brannan, 13, 538. 661, 806
Alvord v. Waggoner, 357, 382
American Assoc. v. Short, 636
Ames v. Cosby, 318, 370
Amick v. Bowyer, 606
Amos v. Cosby, 318, 370
Anderson v. Ahderson, 181
Anderson v. Creston L. Co., 794
Anderson v. Foulke, 78
Anderson v. Knox, 318, 374
Anderson v. Lincoln, 195, 446, 640,
847
Anderson v. Long, 657
Anderson v. Snyder, 822
Anderson v. Strasburger, 167, 727
795, 797
XX11
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Anderson v. Washabaugh, 357, 421,
000.
Anderson v. Wilder, 528
Andrews v. Appel, 208, 314, 315, 321
Andrews v. Babcock, 701, 731, 792,
810
Andrews v. Richardson, 137, 140
Andrews v. Spurrs, 560
Andrews v. Wolcott, 381, 385
Andrews v. Word, 148, 777
Andrews v. S. & L. Smelting Co., 242,
250, 351, 416, 662
Ankeny v. Clark, 149, 701, 731, 821,
826
Anonymous, 440
Anthony v. Rockefeller, 335, 362
Appleton v. Banks, 156
Appovvel v. Monnoux, 382
Arbib, In re, 504
Archer v. Archer, 779
Argall v. Raynor, 721, 752, 760
Arledge v. Brooks, 207
Armstead v. Hundly, 252, 858, 860
Armstrong's App., 116
Armstrong v. Brown. 793
Armstrong v. Darby, 439, 440, 515
Armstrong v. Harshorn, 103
Arnett v. Smith, 795
Arnold v. Carl, 843
Arnold v. Chamberlain, 304
Arnstein v. Burroughs, 828
Arrison v. Harmstead, 182
Arthur v. Weston, 46
A. S. Abell Co. v. Ins. Co., 745
Asay v. Lieber, 668
Ash v. Holder, 506
Ashbaugh v. Murphy, 74 ,
Ashburner v. Sewell, 197, 504
Asher Lumber Co. v. Cornett, 377
Ashworth v. Mounsey, 28
^tor v. Miller, 379, 385
Athens v. Nale, 332
Athey v. McHenry, 559
Atkins v. Bahrett, 36
Atkinson v. Taylor, 710, 764
Atty.-Gen. v. Day, 493, 829
Atty.-Gen. v. Purmort, 339
Atwood v. Chapman, 664
Atwood v. Frost, 116
Aufricht v. Northrup, 284, 286, 336
Augsberg v. Meredeth, 803
Austin v. Barnum, 787
Austin v. Ewell, 481, 492
Austin v. McKinney, 370
Austin v. Richards, 337
Auwerter v. Mathiot, 118, 126
Aven v. Beckom, 155
Averett v. Lipscombe, 25, 32, 725, 812
Averell v. Wilson, 552
Avery v. Aikens, 545
Avery v. Dougherty, 343, 353
Axtel v. Chase, 200, 363, 365, 556, 69'8
Ayer v. Bric^ Co, 288 .
Aylett v. Ashton, 495, 830, 831
Ayling v. Kramer, 301
Ayres v. Mitchell, 194
B.
Babbitt v. Doe, 103
Babcock v. Case, 239, 24;J, 622, 680,
698, 856
Babcock v. Collins, 46
Babcock v. Day, 673
Babcock v. Trice, 469
Babcock v. Wilson, 38, 150
Bacchus v. McCoy, 256, 257, 265
Backhnrst v. Mayo, 127
Bacon v. Lincoln, 277, 278
Bagley v. Fletcher, 148
Bailey v. Hopper, 529
Bailey v. James, 37, 500, 093, 826
Bailey v. Miltenberger, 354
Bailey v. Murphy, 335
Bailey v. School, 90
Bailey v. Smock, 243
Bailey v. Snyder, 667
Bailey v. Timbe'rlake. 573
Bain'v. Fothergill, 213. 225, 490
Bainbridge v. Kinnaird, 495
Baird v. Goodrich, 635, 833, 839
Baird v. Laevison, 840
Baker v. Baker, 89
Baker v. Bradt, 283
Baker v. Corbett, 216, 404, 506
Baker v. Howell, 404
Baker v. Hunt, 256
Baker V. Massev. 561. 572
Baker v. Pyatt, 573, 576
Baker v. Railsback. 469, 497
Baker v. Savidge, 679
Baker v. Shy, 772, 795
Balch v. Arnold, 519
Baldridge v. Cook, 197
Balclry v. Parker, 826
Baldwin v. McGrath, 798
Baldwin v. Munn, 211, 213. 215, 217
Baldwin v. Kerlin, 560
Baldwin v, Salter, 797
Baldwin v. Trimble, 776, 787
Baliour v. Whitman, 297
Ballard v. Burroughs, 220, 335
Ballard v. Child, 340
Ballard v. Johns. 115
Ballard v. Way. 30
Ballard v. Walker, 192
Ballentine v. Clark, 570
Ballon v. Lucas, 664
Ballou v. Sherwood, 738
Balmanno v. Lumley, 495. 825. 830
Baltimore, etc., Society v. Smith, 213
Bamford v. Harris. 457
Bandy v. Cortright, 343
TABLE OF CASES.
[REFERENCES ABE TO FACES.]
XXU1
Bangs v. Barrett, 821
Hank v. Bank, 855
Bank v. Baxter, 238
Bank v. Clements, 320, 405
Bank v, Ettinge, 697
Bank v. Loughrau, 749
Bank v. Mersereau, 483, 529, 538
Bank v. Risley, 130
Bank of Col. v. Hayner, 190
Bank of U S. v. Bank of Wash., 127
Hank of U. S. v. Cochran, 92
Bank of U. S. v. Daniel, 808
Bank of Winchester v. White, 424
Banks v. Ammon, 52, 112, 238, 668
Banks v. Walker, 460, G'48, 670, 845
Banks v. Whitehead, 360, 433
Bankson v. Lagerlof, 288
Bannister v. Higginson, 103
Bannister v. Read, 584
Baptiste v. Peters, 247, 850, 859
Barber v. Gery, 787
Barbour v. Mickey, 487, 497
Barbour v. Nichols, 215
Bardeen v. MarKstrum, 448
Bardell v. Trustees, 347
Barden & Stickney, 342
Bardsley's Appeal, 701
Barger v. Gery, 730, 787
Barickman v. Kuykendall, 628, 830
Barker v. Circle, 541
Barker v. Kuhn, 275
Barkhamstead v. Case, 650, 835
Barlow v. Delaney, 70, 335, 356, 370,
422
Barlow v. McKinley, 305, 308
Barlow v. St. Nicholas Bank, 295,
296
Barlow v. Scott, 150
Barnard v. Brown, 738
Barnard v. Duncan, 153, 154
Barnard v. Lee, 803, 812
Barnes' Appeal, 492
Barnes v. Bartlett, 560
Barnes v. Lightfoot, 337
Barnes v. U. P. R. Co., 241
Barnes v. Wood, 491
Barns v. Wilson, 303
Barnett v. Clark, 633, 839
Barnett v. Garnis, 189
Barnett v, Hughey, 155, 391
Barnett v. Keehn* 286, 341
Barnett v. Montgomery, 346, 419
Barnett v. Shackelford, 64
Barnhart v. Hughes, 294
Barnwell v. Harris, 714, 737
Barr v. Gratz, 529
Barr v. Greeley, 368, 406
Barr v. Flemings, 354
Barrere v. Bartet, 354
Barrett v. Churchill, 83
Barrett v. Gaines, 800
Barrett v. Hughey, 402
Barrett v. Porter, 359
Barron v. Easton, 13
Barron v. Mullin, 78
Barrow v. Bispham, 33
Barry v. Guild, 361, 648
Bartee v. Tompkins, 113
Earth v. Ward, 293
Bartholomew v. Candee, 263
Bartle v. Curtis, 78^
Bartlett v. i>lanton, 765
Bartlett v. Farrington, 353
Bartlett v. London, 605
Bartlett v. Magee, 734
Bartlett v. Salmon, 777
Bartlett v. Tarbell, 446
Barton v. Bouvien, 826
Barton v. Long, 248
Barton v. Morris, 527
Barton v. Rector, 190, 589
Basford v. Pearson, 259
Bashore v. Whisler, 674
Baskin v. Houser, 821
Bass v. Gilliland, 493, 821
Bassett v. Lockwood, 118, 136, 140,
141
Bassett v. Welch, 293
Baston v. Clifford, 207, 584, 698
Batchelder v. Curtis, 320
Batchelder v. Macon, 706, 723
Batchelder v. Sturgis, 299, 323
Bateman v. Johnson, 36, 47
Bateman's Petition, 67
Bates v. Bates, 568
Bates v. Delavan, 648, 678, 693, 858,
861, 862
Bates v. Foster, 340
Bates v. Lyons, 797
Bates v. Swiger, 481, 494, 513
Batley v. Foederer, 777
Batterman v. Pierce, 447
Batterton v. Smith, 335
Battle v. Rochester City Bank, 584
Baugh v. Price, 188
Baum v. Dubois, 201
Baumeister v. De Muth, 798
Baumeister v. Silver, 742
Baxter v. Aubrey, 594, 749
Baxter v. Bradbury, 256, 273, 537,
539
Baxter v. Howell, 58
Baxter v. Lewis, 200
Baxter v. Ryerss, 382
Bayliss v. Stinson, 713, 718, 719.720
Baynes v. Bernhard, 203
Baze v. Arper, 69
Beach v. Hud. R. L. Co., 776, 823
Beach v. Packard. 373
Beach v. Miller. 305
Beach v. Waddell, 447, 468, 639
Beal v. Beal, 542
XXIV
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Beale v. Seively, 4G1, 849
Beall v. Davenport, 506, 553
Beall v. Taylor, 34(5
Beamun v. Simmons, 579
Beaman v. Whitney, 58
Beams v. Mila, 766
Bean v. Herrick, 239
Bean v. Mayo, 292, 315
Bearce v. Jackson, 25U
Beard v. Delaney, 229, 231. 451, G33
Beardslee v. Underbill, 727, 7G3
Beardsley v. Knight, 261, 380, 381
Beaseley v. Phillips, 336, 377, 404
Beauchamp v. Handley, 814
Beauchamp v. Winn, 874
Beauman v. Whitney, 46
Beaumont v. Yeatman, 60
Beaupland v. McKeen, 413, G65, 66(5,
668
Beck v. Bridgman, 492
Beck v. Simmons, 189, 198, 556, 637,
692
Beck v. Ulrich, 654
Beckman v. Henn, 275
Beckwith v. Kouns, 739
Bedell v. Christy, 356, 367
Bedell v. Smith, 17, 202
Beddoe v. Wadsworth, 262, 351, 377,
381, 387
Beebe v. Swartwout, 261, 356, 366,
458, 552, 630, 638, 678
Beech v. Steele, 35
Beecher v. Baldwin, 398
Beer v. Leonard, 711
Beeson v. Beeson, 137
Beidelman v. Foulk, 670
Beioley v. Carter, 712, 713
Belcher v. Weaver, 67, 71
Belden v. Seymour, 155, 156, 402
Bell v. Adams, 529
Bell v. Duncan, 174
Bell v, Flaherty, 120
Bell v. Higgins, 356
Bell v. Holtby, 714
Bell v. Kennedy, 203
Bell v. Sternberg, 814
Bell v. Thompson, 455, 502
Bell v. Twilight, 546, 548
Bell v. Vana, 192
Bell v. Woodward, 51
Bellamy v. Ragsdale, 223, 616
Bellefont Iron W 7 ks. v. McGuire, 445
Bellinger v. Society, 354
Bellows v. Cheek, 603
Bellows v. Litchfield, 382, 417, 427
Belmont v. Coman, 286
Belmont v. O'Brien, 771, 787
Bemis v. Bridgman, 649
Bemis v. Smith, 372
Bender v. Fromberger, 2G4, 270, 271,
277, 339, 356, 395, 414
Benedict v. Oilman, 223
Benedict v. Hunt, 682
Benedict v. Williams, 808
Benjamin v. Hobbs, G96
Bennet Col. v. Cary, 460
Bennett v. Aorains, 452, 453
Bennett v. Adams, 483
Bennett v. Bittle, 353
Bennett v. Caldwell, 139
Bennett v. Fuller, 11
Bennett v. Jenkins, 270, 320, 414, 417
Bennett v. Keehn, 286, 341
Bennett v. Latham, 337, 414
Bennett v. Pierce, 845, 851
Bennett v. Waller, 439, 540, 545
Bennett v. Womack, 145
Bennett's Case, 440
Benningfield v. Reed, 92
Bensel v. Gray, 132, 507
Bensinger v. Erhardt, 47
Benson v. Coleman, 604
Benson v. Cromwell, 193
Benson v. Markol, 562, 871
Benson v. Shotwell, 181, 625, 724,
741, 763
Benson v. Yellott, 90
Bentley v. Craven, 730, 733
Bentley v. Long, 137
Benton v. Sentell, 519
Bergen v. Eby, 566
Bergmann v. Klein, 789, 790
Bernardy v. Mortgage Co., 531, 541
Berrian v. Rogers, 117
Berry v. Armstead, 855
Berry v. Billings, 45
Berry v, Lowell, 573
Berry v. Van Winkle, 489
Berry v. Walker, 510
Berry v. Webb, 559
Berryman v. Schumaker, 777
Bertram v. Curtis, 303
Bethell v. Bethell, 145, 146, 248, 252,
269, 270, 444, 535, 650
Bethune v. McDonald, 476, 477
Betts v. Union Bank, 402
Bever v. North, 363, 369, 373, 424,
657
Beverly v. Lawson, 493, 816
Tlevins v. Vansant, 534
Beyer v. Braender, 595
Beyer v. Schulze, 371, 374
lUbb v. Prather, 625
T.ibb v. Wilson, 504
IHckford v. Page, 256, 266, 325, 382
Bickley v. Biddle, 112
Bicknell v. Comstock, 737
Bierer v. Fretz, 219
Bigelow v. Hubbard, 300
Bigelow v. Jones, 359
Bigham v. Bigham, 284
Bigler v. Morgan, 47, 73, 153, 220
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Binford's Appeal, 78, 752
Bingham v. Bingham, 803, 809, 871
Bingham v. Maxey, 109
Binghum v. Weiderwax, 402
Binzer v. Epstein, 772
Birch v. Cooper, 734
Bircher v. Watkins, 273, 275, 278
Bird v. Smith, 77
Birdsall v. Walton, 486
Birney v. Hann, 382, 390
Bishop v. O'Connor, 77, 87, 113, 140
Bitner v. Brough, 211, 213, 220, 225,
497
Bitzer v. Orban, 698, 700
Bixby v. Smith, 753
Black v. Aman, 763
Black v. Barton, 338
Black v. Coon, 315
Black v. Croft, 600
Black v. Dressel, 116
Black v. Grant, 52
l>iack v. Gregg, 58
Black v. Stone, 556
Black v. Walker, 603, 604
Blackburn v. Randolph, 570
Blackburn v. Smith, 161, 620.
Black Hills, N. B. v. Kellogg, 463,811
Blackie v. Hudson, 292
Blacklow v. Laws, 163
Blackmore v. Shelby, 537, 538, 805
Blackshire v. Homestead Co., 275
Blackwell v. Atkinson, 377
Blackwell v. Lawrence Co., 213, 217
Blair v. Claxton, 467
Blair v. Perry, 466
Blair v. Rankin, 831
Blake v. Everett, 301
Blake v. Phinn, 28, 825
Blake v. Tucker, 5, 19, 547
Blakemore v. Kimmons, 771
Blakeslee v. Ins. Co., 540
Blanchard v. Blanchard, 300,
359, 362, 410
Blanchard v. Brooks, 340, 548
Blanchard v. Ellis, 535
Blanchard v. Hazeltine, 343
Blanchard v. Hoxie, 271, 278, 433
Blanchard v. Stone, 194
Blanck v. Sadlier, 728, 780
Bland v. Bowie, 139
Bland v. Thomas, 435
Blapks v. Ripley, 472
Blanks v. Walker, 628
Blann v. Smith, 203
Blanton v. Ky. Dist. Co., 81
Blasser v. Moats, 445
Bledsoe v. Doe, 44
Bledsoe v. Little, 51
Bletz v. Willis, 444
Blevins v. Smith, 300
Bliss v. Negus, 656
Blodgett v. Hitt, 127, 513
Blondeau v. Sheridan, 260, 303, 311,
360
Bloom v. Welsh, 121
Bloom v. Wolf, 156, 396
blossom v. Knox, 392
Blossom v. Van Court, 292
Blydenburgh v. Cotheal, 262, 356, 377
Boar v. McCormick, 673
Boas v. Farrington, 24
Board of Commrs. v. Younger, 236
Board of Ed. v. Reilly, 768
Boardman v. Taylor, 573
Boatman v. Wood, 392
Bobb v. Barnuin, 48
Bodley v. Bodley, 681
Bodley v. McChord, 35, 616
Boehm v. Wood, 798
Bogan v. Baughdrill, 492
Bogart v. Burkhalter, 601
Boggess v. Robinson, 151
Boggs v. Bodkin, 740
Boggs v. Hargrave, 82, 84, 86
Bogy v. Shoab, 540, 545, 548
Bohanan v. Bohanan, 559
Bohlcke v. Buchanan, 289
Bohm v. Bohm, 547
Bohm v. Fay, 739
Boiler Co. v. Gordon, 727
Bolen v. Lilly, 528
Bolgiano v. Cook, 76, 90
Bollis v. Beach, 520
Boiling v. Jones, 109, 110
Boiling v. Teel, 65
Bolton v. Branch, 163, 594
Bolton v. School Board, 737
Bond v. Montague, 506
Bond v. Ramsey, 112, 248, 249, 856
Bonham v. Walton, 244, 628
Bonner v. Johnston, 486
Bonner v. Lessly, 133
Booker v. Bell, 330, 358, 391, 430
Booker v. Meriweather, 430, 445
Bool v. Mix, 258
Boon v. McHenry, 265, 273
Boone v. Armstrong, 525
Boone v. Chiles, 180
Boorum v. Tucker, 80
Booth v. Cook, 69
Booth v. Ryan, 194, 634
Booth v. Saffold, 202, 615
Booth v. Starr, 363, 383, 385
Boothby v. Hathaway, 256, 276
Boothby v. Waller, 486
Booth royd v. Engles, 60
Bordeaux v. Carr, 476
Borden v. Borden, 781
Bordewell v. Colie, 371
Boreel v. Lawton, 281, 357
Boro v. Harris, 120
Bostick v. Winton, 119
XXVI
TABLE OF CASES.
[ REFERENCES ARE TO PAGES.]
Boston v. Binney, 4G4
Boston Steamboat Co. v. Manson, 354
Bostwick v. Beach, 492
Bostwick v. Lewis, 661, 687
Bostwick v. Williams, 300, 334, 356
Boswell v. Buchanan, 544
Boswell v. Mendheim, 681
Botsford v. McLean, 566
Botsford v. Wilson, 648
Bott v. Maloy, 748
Botto v. Berges, 41
Bottorf v. Smith, 258, 269, 450
Bourg v. Niles, 776
Bowden v. Achor, 688
' Bowen v. Jackson, 203
Bowen v. Mandeville, 14, 687
Bowen v. Thrall, 145, 409, 471
Bower v. Cooper, 21
Bowery N. B. v. Mayor, 727
Bowersock v. Beers, 792
Bowie v. Brahe, 828
Bowers v. Chaney, 90
Bowles v. Stewart, 236
Bowley v. Holway, 462, 469
Bowlin v. Pollock, 860
Bowling v. Benzer, 345
Bowman v. "Wittig, 52
Bowne v. Potter, 552
Bowne v. W T olcott, 280, 332
Boyce v. Grundy, 689, 691, 827
Boyce v. McCullogh, 578, 581
Boyd v. Bartlett, 292, 366
Boyd v. Hallowell, 726
Boyd v. Hazeltine, 343
Boyd v. McCullough, 669
Boyd v. Schlessinger, 132
Boyd v. Whitfield, 321
Boyd v. Woodbury Co., 725
Boyer v. Amet, 196, 507, 678
Boyer v. Porter, 841
Boykin v. Cook, 128
Boykin v. Rain, 67
Boylan v. Townley, 721
Boyle v. Edwards, 431
Boyle v. Rowand, 819
Boyles v. Bee, 37
Boyman v. Gutch, 719
Brackenridge v. Dawson, 99, 153
Bradford v. Bradford, 560
Bradford v. Dawson, 71
Bradford v. Potts, 198, 668, 671
Bradley v. Chase, 252
Bradley v. Dibrell, 360, 676, 855
Bradley v. Dike, 294
Bradley v. Mnnton, 491
Bradshaw v. Atkins, 570, 576
Bradshaw v. Crosby, 318
Bradshaw's Case, 275
Brady v. Peck, 433
Brady v. Spurck, 256, 259, 263, 363,
430
Braman v. Bingham, 317
Brandt v. Foster, 256, 258, 271, 368
391, 392, 410, 466, 650
Branger v. Manciet, 351
Branham v, San Jose, 138
Brannum v. Ellison, 607, 622
Brantley Co. v. Johnson, 444
Brantley v. Kee, 53
Brass v. Vandecar, 299, 311, 323
Brassfield v. Walker, 744
Brashier v. Gratz, 803
Bratton v. Guy, 269
Braun v. Vollmer, 747
Breckenridge v. Hoke, 820
Breckenridge v. Waters, 650, 652
Bree v. Holbech, 648, 649
Broitliaupt v. Thurmond, 20, 276
Brereton v. Barry, 188
Brett v. Marsh, 511
Brewer v. Fox, 163
Brewer v. Herbert, 774
Brewer v. Parker, 444
Brewer v. Wall, 499
Brewton v. Smith, 561
Brick v. Coster, 634, 668
Bricker v. Bricker, 288, 373
Brickhouse v. Crosby, 581
Bridge v. Wellington, 50
Bridge v. Young, 207
Briegel v. Moehler, 573
Briegel v. Muller, 559
Briggs v. Gillam, 189
Briggs v. Morse, 315
Brigham v. EvAns, 214, 219
Bright v. Boyd, 139, 223
Brinckerhoff v. Phelps, 211, 227
Brisbane v. McCrady, 312
Briscoe v. Mining Co., 443
Bristor v. McBean, 316
British-Am. Mtge. Co. v. Todd, 415
Britt v. Marks, 253
Brittain v. McLain, 603, 606
Britton v. Ruffin, 369
EBrizzolara v. Mosher, 484
Broadbelt v. Loew, 790
Broadway v. Buxton, 337, 558
Broadwell v. Phillips, 519
Brobst v. Brock, 137
Brock v. Hidy, 205
Brock v. O'Dell, 561, 871
Brock v. Southwick, 473, 819
Brockenbrough v. Blythe, 819, 821
Brodie v. Watkins, 466
Brokaw v. Duffy, 769
Bronk v. McMahon, 765
Bronson v. Coffin, 154, 290, 301, 323
Brooke v. Clarke, 816
Brooklyn v. Brooklyn City R. Co,
727
Brooklyn Park Com. v. Armstrong,
731, 785
TABLE OF CASES.
XXV 11
[RKFEBENCKS ABE TO PAGES.]
Brookmau v. Kurzraan, 764
Brooks v. Black, 401, 417, 422
Brooks v. Chaplin, 57
Brooks v. Moody, 292, 315, 318, 469,
838
Brooks v. Riding, 248, 867
Brown v. Allen, 358, 368
Brown v. Bank, 288
Brown v. Bellows, 41, 275, 781
Brown v. Brodhead, 315
Brown v. Brown, 137
Brown v. Cannon, 34, 739, 742, 743
Brown v. Christie, 130, 134
Brown v. Combs, 127
Brown v. Connell, 512
Brown v. Corson, 367
Brown v. Covilland, 33, 34
Brown v. Dickinson, 370, 372, 391
Brown v. Eaton, 205
Brown v. Farrar, 69
Brown v. Feagin, 436
Brown v. Frost, 82
Brown v. Gammon, 35
Brown v. Haff, 724, 797, 805
Brown v. Harrison, 588
Brown v. Hearon, 414, 427
Brown v. Herrick, 251
Brown v. Jackson, 548
Brown v. Lunt, 60
Brown v. Manning, 238
Brown v, Manter, 50, 528, 529
Brown v. McCormick, 531
Brown v. McMullen, 427
Brown v. Metz, 377
Brown v. Montgomery, 238, 634
Brown v. Moore, 58
Brown v. Morehead, 657, 660
Brown v. Phillips, 526
Brown v. Reeves, 678
Brown v. Rice, 246
Brown v. Staple, 287, 380, 381, 386,
389, 520, 523, 525, 526
Brown v. Starke, 35
Brown v. Taylor, 360, 427, 428
Brown v. Wetter, 77, 583, 708, 764
Browning v. Canal Co., 375
Browning v. Clymer, 200
Browning v. Estes, 618
Browning v. Still well, 413
Browning, In re, 78, 134
Browning v. Wright, 147, 151, 338
Broyles v. Bell, 693
Bruce v. Luke, 545
Bruington v. Barber, 373
Brumfield v. Palmer, 616, 695
Brumfit v. Morton, 30
Brummel v. Hunt, 124
Bruner v. Diamond, 73
Bruner v. Meigs, 691, 769
Bruns v. Schrciber, 305, 326
Brush v. Ware, 172
Bryan v. Boothe, 225
Bryan v. Johnson, 473
Bryan v. Lewis, 480
Bryan v. Osborne, 195, 737
Bryan v. Ramirez, 63
Bryan v. Read, 757, 826, 830
Bryan v. Salyard, 512
Bryan v. Swain, 451, 470
Bryan v. Booth, 247, 699, 855
Bryant v. Fairfield, 127
Bryant v. Hainbrick, 814
Bryant, In re, 741, 792, 80G
Bryant v. Wilson, 150
Bryson v. Crawford, 584
Buchanan v. Alwell, 587, 639, 817
Buchanan v. Lornian, 203, 204, 588,
698, 700
Buck v. Clements, 320, 405
Buck v. McCaughtry, 827
Buck v. Waddle, 596
Buckels v. Mouzon, 424
Buckle v. Mitchell, 715
Bucklen v. Hasterlik, 69, 70, 206, 738
Buckles v. Northern Bank of Ky., 4-14
Buckley v. Dawson, 212
Buckmaster v. Grundy, 14, 207, 214
Buckner v. Street, 285, 342, 649
Buell v. Tate, 444, 459, 4G9, 633, 8-'2
Buford v. Guthrie, 638, 806
Building Co. v. Fray, 439, 538
Bulkley v. Hope, 27
Bull v. Willard, 657
Bullard v. Bicknell, 734
Bullard v. Perry, 69
Uullitt v. Coryell, 293
BuIIitt v. E. Ky Land Co., 625
Bullitt v. Songster, 605
Bullock v. Adams, 487
Bullock v. Beemis, 690
Bullock v.. Whipp, 572, 575
Bulow v. Witte, 91
Bumberger v. Clippinger, 769
Bumnier v. Boston, 354
Bumpass v. Anderson, 340
Bumpass v. Platner, 447, 477, 637,
848
Bumstead v. Cook, 297
Bundy v. Ridenour, 315
Burbank v. Pillsbury, 301
Burbridge v. Sadler, 337
Bnrchard v. Hubbard, 524
Burk v. Clements, 320, 405
Burk v. Hill, 209, 305, 308
Burk v. Serrill , 214, 225, 229, 497
Burk's Appeal, 497
liurke v. Beveridge, 531. 537
Burke v. Davies. 587, 613, 808, 809
Burke v. Elliott, 99, 101, 102
iiurke v. Guinmey, 38
Burke v. Johnson, 512
Burke v. Nichols, 338
XXV111
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Burke v. Eyan, 770
Burke v. Schreiber, 587
Burkett v. Mumford, 606
Burke tt v. Twyman, 519
Burkholder v. Farmers' Bank, 411
Burley v. Shinn, 595
Burlock v. Peck, 303
Burnell v. Firth, 711
Burnett v. Hamill, 90
Burnett v. McCluey, 55
Burnett v. Wheeler, 30, 190
Burnham v. Laselle, 264
Burns v. Hamilton, 109, 110, 868
Burns v. Ledbetter, 128, 137
Burr v. Greely, 358
Burr v, Hutchinson, 571
Burr v. Lamaster, 303
Burr v. Todd, 231, 441, 814
Burrill v. Jones, 156
Burroughs v. McNeill, 516
Burroughs v. Oakley, 190, 191, 748
Burrow v. Scammel, 490, 491
Burrows v. Locke, 236, 241
Burrows v. Stryker, 445
Burrows v. Yount, 206
Burruss v. Wilkinson, 371
Burston v. Jackson, 543
Burt v. Wilson, 560
Burtners v. Reran, 519, 529
Burton v. Perry, 746
Burton v. Reed, 392, 415, 535, 537
Burwell v. Brown, 30
Burwell v. Jackson, 20, 22, 36, 242,
243, 246, 251, 718, 862
Burwell v. Sollock, 798, 827
Busby v, Treadwell, 198, 443, 838, 848
Bush v. Adams, 404
Bush v. Bush, 559, 573
Bush v. Cole, 227
Bush v. Collins, 512
Bush v. Cooper, 348, 483, 543
Bush v. Hicks, 568, 571
Bush v. Marshall, 798
Bustard v. Gates, 92
Butcher v. Peterson, 391, 410, 493,
867
Butcher v. Rogers, 540, 545
Butler v. Barnes, 377, 399, 417
Butler v. Gale, 306, 308
Butler v. Miller, 650, 864
Butler v. O'Hear, 785
Butler v. Seward, 152, 526
Butte v. Riffe, 304, 333, 376, 445,672
Butterfield v. Heath, 715, 734
Butterworth v. Volkenning, 352
Buttron v. Tibbitts, 142
Butts v. Andrews, 722, 767
Byers v. Aiken, 200, 207
Bynes v. Rich, 263, 271, 272
Bynum v. Govan, 128
C.
Cabell v. Grubbs, 63
Cabler v. Jenkins, 76'Z
Cadiz v. Majors, 545
Cadmus v. Fagan, 292, 297
Cadwalader v. Tryon, 150
Cady v. Gale, 492
Cain v. Guthrie, 695
Cain v. Woodward, 129
Cake v. Peet, 568
Calcraft v. Roebuck, 185, 189, 822
Calder v. Chapman, 531
Calder v. Jenkins, 762, 778
Caldwell v. Bower, 371
Caldwell v. Kirkpatrick, 332, 356
Calhoun v. Belden, 696, 729
Calkins v. Williams, 507
Calton v. Lewis, 864
Calumet, etc., Canal Co. v. Russell, 70
Calvert v. Ash, 95
Calvert v. Sebright, 432
Cambrelleng v. Purton, 746
Cameron v. Logan, 123
Camfield v. Gilbert, 12, 14, 220, 594,
710, 717, 719, 726
Camp v. Morse, 208, 595, 610, 613,
807
Camp v. Pulver, 681
Campbell v. Brown, 113, 115
Campbell v. Carter, 866
Campbell v. Fleming, 187, 194
Campbell v. Johnson, 560
Campbell v. McCahan, 80
Campbell v. McClure, 597
Campbell v. Lowe, 121, 137
Campbell v. Medbury, 448
Campbell v. Shields, 353
Campbell v. Shrum, 38, 600
Campbell v. Whittingliarn, 236, 245,
246, 251
Candler v. Lunsford, 543
Canedy v. Marcy, 561, 563, 569
Canton Co. v. B. & O. R. Co., 191, 19i
Cantrell v. Mobb, 594, 627, 851
Capehart v. Dowery, 78, 90
Capital Bank v. Huntoon, 130, 131
Capstick v. Crane, 494
Carbrey v. Willis, 302
Carey v. Daniels, 302
Carey v. Guillow, 457
Carey v. Gundlefinger, 597
Carlisle v. Carlisle, 68
Carnahan v. Hall, 666
Carne v. Mitchell, 517
Carneal v. Lynch, 79
Carnes v. Swift, 519
Carney v. Newberry, 578, 613
Carpenter v. Bailey, 35
Carpenter v. Brown, 164, 208, 797
Carpenter v. Hoi comb, 19
Carpenter v. Lockhart, 203, 231
TABLE OF CASKS.
XXIX
[UEFKHESCES AUK TO PAGES.]
Carpenter v. Schemerhorn, 542
Carpenter v. Stihvell, 130
Carpenter v. Strother, 83
Carpenter v. Thompson, 525
( arper v. Munger, 576
Curr v. Callaglian, 238
Carr v. Dooley, 292, 294
Carr v. Roach, 164, 661
Carrico v. Froman, 608
Carrodus v. Sharp, 819
Carroll v. Carroll, 389
Carroll v. McKahary, 708
Carson v. Carson, 525
Carson v. Kelly, 473
Carson v. Mulvany, 496
Carter v. Beck, 15, 468
Carter v. Carter, 476
Carter v. Chandron, 71
Carter v. Denman, 263, 300, 377
Carter v. Morris, 755
Carter v. Morris B. & L. Asso., 733
Cartwright v. Briggs, 444, 844
Cartwright v. Culver, 633
Carver v. Howard, 137
Carver v. Jackson, 541
Carver v. La Salette, 573
Carvill v. Jacks, 234, 395
Gary v. Gundlefinger, 597
Case v. Boughton, 682
Case v, Wolcott, 212
Casey v. Lucas, 445, 638
Cashon v. Faina, 77
Cassada v. Stabel, 353
Cass Co. v. Oldham, 575
Cassell v. Cooke, 768, 783, 803
Cassidy's Succession, 397
Castleberg v. Maynard, 771
Caswell v. Black River Mfg. Co., 189,
191, 194
Caswell v. Wendell, 272
Cater v. Pembroke, 244
Cates v. Field, 422, 430
Cathcart v. Bowman, 291, 298, 308
Cathcart v. Sugenheimer, 138
Catlin v. Hurlburt, 255, 266, 272
Cattell v. Corrall, 21, 711, 715
Caulkins v. Harris, 414, 415
Causton v. Macklew, 715, 737
Cavanaugh v. Casselman, 452
Cavanaugh v. McLaughlin, 778
Ceconni v. Rodden, 361
Ceconni v. Rhodes, 398
Cent. App. Co. v. Buchanan, 349
Chabot v. Winter Park Res. Co., 487
Chace v. Gregg, 524
Chace v. Hinman. 282
Chamberlain v. Amter, 596
Chamberlain v. Lee, 802, 807
Chamberlain v. McClung, 523
Chamberlain v. Meeder, 525, 543
Chamberlain v. Preble, 425, 426
Chambers v. Cochran, 123, 125
Chambers v. Cox, 445
Chambers v. Jones, 139
Chambers v. Pleak, 371
Chambers v. Smith, 269, 366
Chambers v. Tulane, 693, 769, 774
Champion v. Brown, 481
Champlin v. Dotson, 506, 843, 844
Champlin v. Layton, 247, 870, 871
Champlin v. Williams, 512
Chandler v. Brown, 362, 366
Chandler v. Spear, 61
Chapel v. Bull, 320
Chaplain v. Southgate, 353
Chaplin v. Briscoe, 449
Chapman v. Brooklyn, 122
Chapman v. Eddy, 609
Chapman v. Holmes, 263, 330, 431
Chapman v. Kimball, 263, 290
Chapman v. Lee, 163, 165, 207, 728.
741
Charles v. Dana, 589
Charleston v. Blohme, 78, 84, 87, 786
Charman v. Tatum, 325
Chartier v. Marshall, 230, 480
Chase v. Chase, 760
Chase v. Palmer, 44
Chase v. Peck, 626
Chase v. Weston, 380 *
Chastain v. Staley, 151
Chatfield v. Williams, 611
Chauncey v. Leominster, 773
Chauvin v. Wagner, 65, 265, 270, 440,
521, 540
Cheesman v. Thome, 737, 822
Cheever v. Minton, 90
Chenault v. Thomas, 357, 424, 434
Cheney v. Straube, 357, 368, 392,433
Cherry v. Davis, 615, 618, 741
Chesman v. Cummings, 722
Chester v. Rumsey, 70
Chew v. Tome, 746, 773
Chesterfield v. Jansen, 187
Chicago v. Rollins, 428
Chicago, Kans. & Neb. R. Co. v.
Cook, 116
Childs v. Alexander, 476, 477
Childs v. Lockett, 616
Childs v. McChesney, 542
Chinn v. Healc, 488, 492
Chitwood v. Russell, 339
Chopin v. Pol let, 773
Chouteau v. Allen. 63
Chrisman v. Partee, 807, 808
Christian v. Cabell, 36, 189, 805, 807
Christian v. Stanley, 826
Christman v. Colbert, 559, 576
Christy v. Ogle, 256, 259, 299, 324,
419
Christy v. Reynolds, 673
Church v. Brown, 147
XXX
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Church v. Shanklin, 726
Churchill v. Moore, 67
Citizens' Bank v. Freitag, 122, 124
Clagett v. Crall, 240
Clanton v. Burges, 447, 645
Clapp v. Herdmann, 256, 270, 405
Clare v. Lamb, 652
Clare v. Maynard, 212
Clark v. Baird, 14, 235
Clark v. Baker, 525, 541, 549
Clark v. Briggs, 695, 696
Clark v, Clark, 510
Clark v. Cleghorn, 839
Clark v. Conroe, 258, 3GO, 375, 378
Clark v. Croft, 589
Clark v. Drake, 572
Clark v. Fisher, 28, 290, 299, 407
Clark v. Hardgrove, 461, 493, 849
Clark v. Harper, 360
Clark v. Hutzler, 764
Clark v. Jacobs, 626
Clark v, Johnson, 380
Clark v. Lambert, 519
Clark v. Lockwood, 127
Clark v. Lyons, 148
Clark v. Mumford, 430, 474
Clark v. Parr, 392
Clark v. Perry, 315
Clark v. Post, '134, 658
Clark v. Redman, 34, 47, 145, 148, 777
Clark v. Seirer, 497
Clark v. Snelling, 444
Clark v. Swift, 268
Clark v. Weiss, 202, 604, 804
Clark v. Whitehead, 156, 366, 399,
444
Clark v. Zeigler, 298
Clarke v. Cleghorn, 839
Clarke v. Elliott, 486
Clarke v. Locke, 15, 209, 215, 618,
695
Clarke v. McAnulty, 356, 364, 402
Clarke v. Priest, 311, 440
Clarke v. Scudder, 270
Clarke v. Wilson, 133
Clarkson v. Skidmore, 407
Clason v. Bailey, 44
Claxton v. Gilben, 386
Claycomb v. Munger, 363, 370, 424
Claypoole v. Houston, 559
Clee v. Seaman, 552
Clegg v. Lemessurier, 55
Clemens v. Loggins, 74, 200, 201, 615,
792
Clement v. Bank, 258, 340, 382
Clement v. Burtis, 777
Clement v. Collins, 365, 424, 432
Cleveland v. Bergen B, & L. Co., 826
Cleveland v. Flagg, 527
Cleveland Park Co. v. Campbell, 288,
293
Click v. Green, 214, 347, 391
Clinch River Co. v. Kurth, 58, 66
Cline v. Catron, 91
Clinton v. Shugart, 597
Clive v. Beaumont, 22
Clopton v. Bolton, 611
Clore v. Graham, 291
Close v. Stuyvesant, 716
Close v. Zelf, 657, 659, 673
Clouse's Appeal, 767, 770
Clowes v. Higginson, 32
Clute v. Robinson, 35
Coal Creek Mining Co. v. Ross, 545
Cobb v. Hatfield, 14
Coble v. Wellborn, 373
Coburn v. Haley, 624, 731
Coburn v. Litchfield, 297, 318
Cochran v. Guild, 292, 293, 297
Cochran v. Pascault, 438, 439, 538
Cocke v. Taylor, 215
Cockey v. Cole, 90, 93
Cockrell v. Bane, 343
Cockrell v. Proctor, 273, 275
Cockroft v. Railroad Co., 213, 220
Codman v. Jenkins, 464
Codrington v. Denham, 353
Coe v. Harahan, 153
Coe v. N. J. Mid. R. Co., 557, 563
Coe v. Persons Unknown, 548
Coffee v. Newson, 623, 680, 823, 829
Coffin v. Cook, 116
Coffman v. Huck, 414
Coffman v. Scoville, 845
Cogan v. Cook, 35
Cogel v. Raph, 170, 180, 182
Cogswell v. Boehm, 187, 824
Cogwell v. Lyons, 222
Cohen v. Woolard, 458, 639
Coit v. McReynolds, 258. 260, 261
Colbert v. Moore, 109, 111
Colby v. Osgood, 350, 440
Colcord v. Leddy, 808
Colcord v. Swan, 542
Cole v. Gibbons, 187
Cole v. Hawes, 339
Cole v. Hughes, 303
Cole v. Johnson, 138
Cole v. Justice, 443, 455, 510
Cole v. Kimball, 265, 311, 318
Cole v. Lee, 332, 372
Cole v. Raymond, 540
Coleman v. Bank, 191, 603, 798
Coleman v. Clark, 422
Coleman v. Coleman, 558
Coleman v. Floyd, 62o
Coleman v. Hart, 657
Coleman v. Insurance Co., 470
Coleman v. Lyman, 265
Coleman v. Rowe, 446, 603, 611
Coleman v. Sanderlin, 605
TABLE OF CASES.
[REFEBEXCES ABE TO PAGES.]
XXXi
Collier v. Cowger, 321, 359, 372, 414.
426
Collier v. Gamble, 265, 208, 273, 642
Collingwood v. Irwin, 285, 403, 429,
430
Collins v. Baker, 428
Collins v. Clayton, 848
Collins v. Delashmutt, 35
Collins v. Miller, 128
Collins v. Smith, 492, 716
Collins v. Thayer, 596, 619
Collis v. Cogbill, 364, 427
Colton v. Seavy, 62
Colton v. Wilson, 189, 715
Colver v. Clay, 495, 502
Colvin v. Schell, 420, 661
Colwell v. Hamilton, 35, 589
Colyer v. Thompson, 194, 695, 858
Combs v. Scott, 214, 218
Combs v. Tarlton, 213, 222
Comegys v. Davidson, 468
Comer v. Walker, 820
Comings v. Little, 298, 316, 318, 347
Commercial Bank v. Martin, 93
Common School D. v. Conrad, 445
Commonwealth v. Andre, 158, 543
Commonwealth v. Dickinson, 126
Commonwealth v. McClanachan, 650
Commonwealth v. Pejepscut, 158, 543
Compton v. Nuttle, 481
Comstock v. Ames, 236
Comstock v. Crawford, 116
Comstock v. Smith, 526, 544, 546
Comstock v. Son, 336, 861
Conaway v. Gore, 557, 571
Concord Bank v. Gregg, 152, 236, 619,
683
Condit v. Bigelow, 522
Conger v. Weaver, 213
Conger v. Mericles, 571
Congregation v. Miles, 616, 667, 695
Conklin v. Hancock, 411
Conley v. Doyle, 15
Conley v. Dibber, 788
Conley v. Finn, 738
Connell v. McLean, 213, 216, 217
Connelly v. Peirce, 164, 208
Connelly v. Phila, 129
Connor v. Eddy, 446, 526
Connor v. Huggins, 739
Connor v. McMurray, 528
Connor v. Wells, 558
Conrad v. Trustees, 392, 394
Contee v. Lyons, 95, 96, 172, 769
Converse v. Blumrich, 579
Conway v. Case, 34
Conwell v. Clifford, 249
Coogan v. Ockershausen, 771
Cook v. Bean, 793
Cook v. Curtis, 402, 430
Cook v. Fuson, 326
Cook v. Jackson, 472
Cook v. Mix, 462, 403
Cooke v. Husband, 571
Cooley v. Rankin, 440, 038, 645
Coombs v. Lane, 111
Coombs v. O'Neal, 773
Coons v. North, 134
Cooper v. Bloodgood, 354, 447
Cooper v. Burns, 542
Cooper v. Denne, 731, 816, 817
Cooper v. Emery, 161
Cooper v. Cranberry, 380
Cooper, In re, 429
Cooper v. Phibbs, 863, 874
Cooper v. Reynolds, 94, 95
Cooper v. Singleton, 472, 601, 723
Cooper v. Sunderland, 103
Cooper v. Watson, 426
Cope v. Williams, 615, 629
Copeland v. Copeland, i87
Copeland v. Laun, 613
Copper v. Wells, 489
Coray v. Matthewson, 190, 724
Corbally v. Hughes, 506
Corbett v. Dawkins, 109, 648
Corbett v. McGregor, 855
Corbett v. Norcross, 55
Corbett v. Nutt, 769
Corbett v. Shulte, 191
Corcoran v. White, 485, 502
Core v. Strickler, 79
Core v. Wigner, 737, 817
Corn v. Bass, 303, 779
Cornell v. Andrews, 704, 722, 767
Cornell v. Jackson, 264, 339, 410,537
Cornish v. (iapron, 339
Cornwall v. Williams, 480
Cornwell v. Clifford, 444
Corrall v. Cattell, 817
Corson v. Mulvany, 496
Corus' Case, 352
Corwin v. Benham, 77, 118
Corwith v. Griffing r 97
Coster v. Monroe Mfg. Co., 153, 331,
837, 838
Costigan v. Hastier, 481
Costigan v. Hawkins, 860
Cotes v. Raleigh, 828
Cotton v. Ward, 537, 766, 811
Cottrell v. Cottrell, 154
Cottrell v. Watkins, 737
Coudert v. Say re, 301
Coughenour v. Swift, 667
Coulson v. Wing, 116
Courtright v. Courtright, 563
Covell v. Cole, 492
Coverly v. Burrell, 30
Coves v. Hallahan, 777
Cowan v. Kane, 300, 492, 497, 778
Cowdrey v. Coit, 371
Cowdrey v. Cuthbert, 506
XXX11
TABLE OF CA
[EEFEKZNCES ABE TO PAGES.]
Cowen v. Withrow, 130
Cowley r. Watts, 21
Cox v. Coven ton, 774
Cox v. Cox, 91, 737, 752
Cox v. Davis, 88
Cox v. Henry, 214, 230, 391, 404, 414,
415, 421* 451, 660, 673
Cox v. Johnson, 506
Cox v. Middleton, 21
Cox v. Strode, 213, 271, 395, 430
Coyne v. Souther, 119
Crabtree v. Levings, 47, 154
Craddock v. Shirley, 189, 195, 800
Craft v. La Tourette, 625
Craft v. Merrill, 130
Craig v. Donovan, 269
Craig v. Heis, 292, 447
Craig v. Lewis, 302, 552
Craig v. Martin, 804
Cramer v. Benton, 544
Cramer v, Mooney, 796
Crane v. Collenbaugh, 368
Craven v. Clay, 370
Crawford v. Kebler, 243, 590, 690
784
Crawford v. Murphy, 645, 668
Crawford v. Pendleton, 360
Crawley v. Timberlake, 724
Crayton v. Munger, 112
Creigh v. Boggs, 822
Creighton v. Pringle, 568
Crenshaw v. Smith. 410
Creps v. Baird, 118
Crippen v. Bauinrs. 570
Cripps v. Read, 152, 648
Crisfield v. Storr, 336, 357, 377, 401,
417, 422, 434
Critchett v. Cooper, 35, 205
Critchfield v. Kline, 559
Crittenden v. Craig, 235
Crittenden v. Posey, 215, 415
Crockett v. Crocke'tt, 576
Croft v. Thornton, 519
Cronister v. Cronister, 673
Cronk v. Trumble, 200
Crocker v. Jewell, 380, 381
Crop v. Norton, 480
Crosby v. Thedford, 754
("rosier v. Acer, 865
Cross v. Devine, 224
( 'ross v. Freeman, 39
Cross v. Martin, 538
doss v. Noble, 298, 652, 666, 667
Cross v. Robinson, 385, 525
Cross v. Zane, 140
Crosse v. Young, 352
Crotzer v. Russell, 675
('router v. Crouter, 753
Crowder, Ex parte. 153
Crowe v. Ballard. 188
Crowley v. Lumber Co., 300
Crowell v. Packard, 649
Croxall v. Sherrard, 737
Cram v. Cotting, 382
Cram v. Loud, 561
Crutcher v. Stump, 356
Crutchfield v. Danilly. 238, 244
Crutchfield v. Hewett, 761
Culbertson v. Blanc-hard, 624, 856
Culler v. Motzer, 668
Cullum v. Br. Bank, 242, 244, 443,
685, 843
Culver v. Avery, 13, 661, 687
Cumming's Appeal, 121, 126
Cummings v. Freer, 576
Cummings v. Harrison, 429
Cummings v. .Holt, 351
Cummins v. Boyle, 453, 704, 839
Cummins v. Kennedy, 361, 381, 391,
395
Cunningham v. Anderson, 115
Cunningham v. Blake, 767
Cunningham v. Buck, 129
Cunningham v. Depew, 481, 489
Cunningham v. Fithian, 194
Cunningham v. Gwinn, 589
Cunningham v. Knight, 377
Cunningham v. Sharp, 35, 732, 741,
767, 827
Curd v. Davis, 458
Curling v. Flight, 819
Curling v. Shuttleworth, 708
Curran v. Banks, 506
Currie v. Cowles, 488
Currie v. Xind, 734
Curtis v. Deering, 360, 433
Curtis v. Gooding, 138
Curtis v. Hawley, 390, 727
Cushing v. Spalding, 768
Cushman v. Blanchard, 419
Cuthbertson v. Irving, 387
Cutter v. Waadingham, 552
Cutts v. Thodey, 187
Cypress Lumber Co. v. Tiller, 494
Daggett v. Reas, 272, 356
Dahl v. Pross, 505
Dahle v. Stakke, 289, 318, 463. 469
Daisy Realty Co. v. Brown, 306
Dail v. Moore, 58, 61
Daily v. Litchfield, 704
Dalby v. Pullen, 805
Dale v. Shively, 256, 272, 404, 420,
421
Dale v. Sollett, 596
Dallmyer v. Ferguson, 738
Dalton v. Bowker, 392 ? 428, 430
Dalton v. Taliaferro, 146, 281
Daly v. Bernstein. 600, 601
Dalzell v. Crawford, 710, 752
TABLE OF CASES.
[REFERENCES ABB TO PAGES.]
Damra v. Moors, 571
Dana v. Goodfellow, 282
Dane v. Derber, 559, 506
Danforth v. Smith, 274, 397
Daniel v. Baxter, 591
Daniel v. Hollingshed, 180
Daniel v. Leitch, 78, 80, 92
Daniel v. Smythe, 782
Daniell v. Shaw, 710, 778
Daniels v. Newton, 19
Danly v. Rector, 118
Darlington v. Hamilton, 29, 777
Darrow v. Cornell, 733
Darrow v, Horton, 805
Dart v. Barbour, 573
Dart v. Dart, 545
Dart v. McQuilty, 494
Darvin v. Hillfield, 82
Daughtry v. Knolle, 337, 866
Davar v. Caldwell, 764
Davenport v. Bartlett, 363, 364, 370,
374
Davenport v. Latimer, 195, 481
Davenport v. Scovil, 571
Davenport v. Whisler, 676
Davidson v. Cox, 263, 386
Davidson v. Keep, 580
Davidson v. Moss, 236, 855
Davidson v. Van Pelt, 36
Davies v. Hughes, 109
Davis v. Agnew, 524
Davis v. Bean, 469
Davis v. Beasley, 58
Davis v. Evans, 194
Davis v. Gaines, 137
Davis v. Heard, 251, 252, 691, 858
Davis v. Henderson, 36, 148
Davis v. Hunt, 121
Davis v. Lewis, 226
Davis v. Logan, 359, 841
Davis v. Lyman, 256, 259, 263, 31 i,
338
Davis v. Murray, 126, 477
Davis v. Parker, 496
Davis v. Rogers, 573, 575
Davis v. Shields, 44
Davis v. Smith, 351, 365, 392, 427
Davis v. Symonds, 581
Davis v. Tollemache, 439, 515
Davis v. Watson, 616, 827
Davis v. Wilbourne, 424, 430
Davison v. De Freest, 460
Davison v. Perrine, 696
Dawes v. Betts, 30
Dawson v. Shirley, 145
Day v. Browne, 155.
Day v. Burnham, 149
Day v. Chism, 361, 433
Day v. Kingsland, 743, 746, 761
Day v. Nason, 220
Dayton v. Citizens' Nat. Bank, 575
Dayton v. Dusenberry, 843, 845
Dayton v. Melick, 460
Deacon v. Doyle, 307
Deal v. Dodge, 444, 461, 635, 644, 695
Dean v. Morris, 123
Dearth v. Williamson, 35
De Chaumont v. Forsyth, 381
Deck's Appeal, 298
Decker v. Schulze, 241, 854
De Courcey v. Barr, 59
Deery v. Cray, 65
De Forest v. Leete, 322, 320
De Haven's Appeal, 77
Deichman v. Deichman, 205
Lie Jarnatt v. Cooper, 506, 574
De Kay v. Bliss, 400
Delafield v. James, 726
Delavan v. Duncan, 203
Delavergne v. Norris, 315, 317, 469
De Long v. Spring Lake Co., 304, 415
Demarest v. Friedman, 746
Demarest v. Hopper, 545
Demarett v. Bennett, 472, 474, 847
Demars v. Koehler, 299
Demmy's Appeal, 116
Den v. Demarest, 542
Den v. Geiger, 67, 259
Den v. Hamilton, 71
Den v. Young, 121
Denn v. Cornell, 541
Denne v. Light, 21
Denning v. Cresson, 253
Dennis v. Heath, 365, 371, 446, 464
Dennis v. Strasburger, 200, 792, 794,
795
Dennison v. Ely, 53
Denny v. Wicklifl'e, 693, 723, 842
Denson v. Love, 370, 466
Denston v. Morris, 252, 846
Dentler v. Brown, 510, 512, 668
Dentler v. O'Brien, 809
DePeyster v. Murphy, 290, 292, 293,
295
Derr v. Wilson, 92
De Saussuer v. Bollman, 761
Des Moines, etc., R. E. Co. v. Beale,
164
Desverges v. Willis, 305, 836
Detroit R. Co. v, Griggs, 843
Deverell v. Bolton, 134, 187, 188
Devin v. Hendershott, 385
Devin v. Himer, 219
Devine v. Lewis, 402
Devine v. Rawle, 292
Devling v. Little, 39
Devore v. Sunderland, 265, 209
Devour v. Johnson, 430
Dewey v. Campau, 64, 65
DeWolf v. Hayden, 540
DeWolf v. Mallet, 123
Dexter v. Manly, 343, 433, 435, 437
XXXIV
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Dial v. Grain, 581
Dickinson v. Colgrove, 737
Dickerson v. Davis, 70
Dickins v. Shepherd, 391, 410
Dickinson v. Dickinson, 773
Dickinson v. Glenney, 555, 575, 576
Dickinson v. Hoomes, 146, 148, 151,
311, 339, 379, 387
Dickinson v. Talbot, 519, 539
Dickinson v. Voorhees, 337, 667
Dickson v. Desire, 265, 269, 401
Diggle v. Boulden, 796
Diggs v. Kirby, 233, OoO, 684
Dikeman v. Arnold, 778
Dill v. Noble, 727
Dill v. Wareham, 654
^illahunty v. R. Co., 368, 405, 406
Dillingham v. Estill, 452
Dimmick v. Lockwood, 321, 322, 397
Disbrow v. Folger, 772, 758
Disbrow v. Harris, 452
Dix v. School District, 448
Dixon v. Astley, 189
Dixon v. Rice, 498
Dixon v. Robbins, 62
Doan v. Mauzy, 487
Doane v. Willcutt, 439, 542, 546
Dobbins v. Brown, 334, 354, 355, 356
Dobbs v. Norcross, 732
Doctor v. Hellberg, 494
Dod v. Paul, 557
Dodd v. Nelson, 128
Dodd v. Seymour, 34, 150, 155
Dodd v. Templeman, 106
Dodd v. Toner, 467
Dodd v. Williams, 531
Dodson v. Cooper, 512
Doe v. Anderson, 100
Doe v. Dowdall, 534
Doe v. Oliver, 531, 532
Doe v. Quinlan, 519
Doe v. Smith, 130
Doe v. Stanion, 20, 28
Doebler's Appeal, V21, 766
Doggett v. Emerson, 699
Doherty v. Dolan, 12, 214
Doll v. Pizer, 758
Dom. Bldg. Asso. v. Guardiano, 167
Dominick v. Michael, 542, 817
Donaldson v. Waters, 615
Donlon v. Evans, 20, 392
Donnell v. Thompson, 274, 300, 324,
334, 404
Donner v. Redenbaugh, 229
Donohoe v. Emery, 156, 347
Donovan v. Frisker, 695
Donovan v. Twisl, 525
Doody v. Hollwedel, 765
Doom v. Curran, 392, 422
Doremus v. Bond, 456
Dorincturt v. La Croix, 214
Dorr v. Steichen, 572
Dorsey v. Dashiell, 282
Dorsey v. Gassaway, 544
Dorsey v. Hobbs, 589
Dorsey v. JacKman, 668, 672
Dorsey v. Kendall, 100
Doswell v. Buchanan, 532, 533
Dotson v. Bailey, 580, 700
Dougald v. Dougherty, 520
Dougherty v. Duval, 379, 401
Doughty v. Cottraux, 472
Douglas v. Lewis, 342
Douglas v. Scott, 529
Doupe v. Genin, 353
Dow v. Lewis, 154, 157
Dowdney v. Mayor, 296
Dowdy v. McArthur, 172
Downer v. Fox, 512
Downer v. Smith, 256, 258, 318, 41)
Downey v. Seib, 721
Dowson v. Solomon, 188, 191, 821
Doyle v. Brundred, 391
Doyle v. Hord, 337, 357, 865
Drake v. Baker, 213, 21(i, 217, 228,
391
Drake v. Barton, 20, 145
Drake v. Cockroft, 353
Drake v. Collins, 503
Drake v. Shiels, 22
Drennere v, Boyer, 19i), 611
Dresbach v. Stein, 76, 78
Dresel v. Jordan, 73, 765, 792, 807
Drew v. Clark, 871, 875
Drew v. Corporation, 785
Drew v. Pedlar, 204
Drew v. Smith, 405
Drew v. Towle, 363, 391, 446, 467
Driggin v. Cassaday, 98, 100
Driggs v. Dwight, 211
Drinker v. Byers, 660, 670, 673
Driver v. Spence, 12 /
Droge v. Cree, 720, 769
Drury's Case, 127
Drury v. Connor, 492
Drury v. Imp. Co., 286
Drury v. Shumway, 365, 398
Drysdale v. Mace, 28
Dubay v. Kelly, 410, 418
Dubois v. James, 798
Dutchess of Kingston's Case, 525
Dudley v. Bryan, 605
Dudley v. Cadwell, 529
Dudley v. Folliott, 351
Duff v. Wilson, 366
Duffield v. Wilson, 587
Duffield v. Scott, 418, 426
Duffy v. Sharp, 292
Dufief v. Boykin, 37, 589
Dufour v. Cambranc, 136
Duke- v. Barnett, 28, 29
Duluth Land Co. v. Klovdahl, 794
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
xxxv
Dumars v. Miller, 213, 217
Dunghee v. Geoghegan, 215
Dunbar v. Tredennick, 188
Duncan v. Blair, 284
Duncan v. Cafe, 188, 190
Duncan v. Charles, 206
Duncan v. Gainey, 138, 140
Duncan v. Jeter, 694, 696
Duncan v. Lane, 446
Duncanson v. Manson, 99
Duncan v. McCullough, 523
Duncan v. Tanner, 231
Dundas v. Hitchcock, 67
Dundy v. Chambers, 59
Dunfee v. Childs, 90
Dunham v. New Britain, 568
Dunkleberger v. Whitehill, 372
Dunklee v. Wilton R. Co., 309
Dunlap v. Dougherty, 57
Dunlap v. Hepburn, 692
Dunn v. Frazier, 122, 140
Dunn v. Huether, 778
Dunn v. Mills, 188, 191, 615
Dunn v. White, 291, 443, 455
Dunnica v. Sharp, 213, 222, 392
Dunning v. Leavitt, 447, 461
Dupre v. Thompson, 561, 575
Depuy v. Roebuck, 363
Durand v. Williams, 263
Durham v. Hadley, 20, 788, 797
Duroe v. Evans, 283
Durrett v. Piper, 300
Dussaume v. Burnett, 58
Dustin v. Newcomer, 212
Dutch v. Warren, 596
Dutch Church v. Mott, 755. 798, 804
D'Utricht v. Melchoir, 679, 864
Dutton v. Gerish, 283
Duval v. Craig, 156, 282, 326, 339,
360
Duval 1 v. Parker, 709, 740, 743
Dwight v. Cutler, 20, 35, 145, 148.
150, 276, 594, 704, 749
Dwight's Case, 126
Dwinel v. Veazie, 153
Dworsky v, Arndstein, 746, 758
Dye v, Montague, 207, 208
Dye v. Thompson, 519
Dyer v. Britton, 371
Dyer v. Dorsey, 229, 231
Dyer v. Ladomus, 292
Dyer v. Wightman, 354
Dyett v. Pendleton, 352
Dyker, M. L. & I. Co. v. Cook, 706,
781
E.
Eads v. Murphy, 455, 615
Eames v. Der Germania Turn Verein.
185, 697
Eames v. Savage, 15
Earl v. Campbell, 589, 732, 781
Earle v. Bickford, 654
Earle v. De Witt, 649, 657, 676, 678
Earle v. Middleton, 399, 416
Early v. Douglas, 7o6
Early v. Garrett, 238,' 685
Easter v. Sever in, 561, 563
Easton v. Montgomery, 20, 163, 160,
592, 794, 795, 800, 805
East Tenn. Nat. Bank v. First Nat.
Bank, 438, 515, 684
Eaton v. Chesbrough, 294
Eaton v. Eaton, 575
Eaton v. Lyman, 265, 276, 315, 317,
321, 427
Eaton v. Tallmadge, 448
Eberhardt v. Miller, 741
Ebling v. Dwyer, 714, 722, 756
Eby v. Eby, 34, 35
Eby v. Elder, 671, 672
Eccles v. Timmons, 86
Edde v. Cowan, 141
Eddleman v. Carpenter, 521
Eddy v. Chace, 310
Eden v, Blake, 32
Edgerton v. Page, 353
Edmison v. Zaborowski, 795
Edmonds v. Cochran, 203
Edington v. Nix, 318, 4*6, 639
Edwards v. Bodine, 447, 459, 838
Edwards v. Clark, 291, 298, 299
Edwards v. Davenport, 525, 541
Edwards v. McLeay, 233, 238, 239,
680, 684
Edwards v. Morris, 447, 738
Edwards v. Roys, 259
Edwards v. Strode, 607
Edwards v. Van Bibber, 192, 733
Edwards v. Varick, 544
Edwards v. Wickwar, 28
Egan v. Yeaman, 315, 316, 844
Eggers v. Busch, 706, 810
Ela v. Card, 271, 409
Elam v. Donald, 14
Elder v. Chapman, 579, 793
Elder v. First Nat. Bank, 460
Elder v. McCloskey, 737
Elder v. True, 398
Elfenheim v. Von Hafen, 14, 594
Eller v. Moore, 301, 360
Elkin v. Timlin, 661
Elliot v. Boaz, 624, 625, 028, 696
Elliot v. Fiersol, 72, 98
Elliot v. Santtey, 424
Elliott v. Blair, 806
Elliott v. Osborn, 61
Elliott v. Sackett, 567
Elliott v. Thompson, 391, 404, 447
Ellis v. Anderton, 31, 86, 595, 601
Ellis v. Croselsy, 367, 406, 552, 675
Ellis v. Ellis, 138
XXXVI
TABLE OF CASES.
[REFEBENCES ABE TO PAGES.]
Ellis v. Hoskins, 612
Ellis v. Lockett, 73, 726
Ellis v. Welch, 351, 354, 355
Else v. Kennedy, 575
Ely v. Hergesell, 380, 386
Emerson v. Hfles, 826
Emerson v. Minot, 356
Emerson v. Hoof, 802
Emerson v. Samson, 520
Emerson v. Wash. Co., 648
Emery v. Grocock, 712, 714, 737
Emery v. Pickering, 818
Emmons v. Moore, 238
Engel v. Fitch, 210, 21^, 214, 229
England v. Clark, 112, 118, 122
England v. Garner, 90, 97, 107
Englander v. Rogers, 202, 795
English v. Benedict, 235, 855
English v. Thompson, 638, 848
Ennis v. Leach, 153
Ensign v. Colt, 301, 324, 362
Erdman v. Corse, 737
Erickson v. Bennett, 223, 224, 225
Ernst v. Parsons, 268, 312
Erwin v. Myers, 492, 702
Espy v. Anderson, 150, 163, 276, 748,
786, 787
Estabrook v. Smith, 287, 298, 370,
372, 402, 403
Estell v. Cole, 481, 619, 723, 732
Estep v. Estep, 444
Estep v. Watkins, 778
Evans v. Ashby, 98, 99
Evans v. Bicknell, 236
Evans v. Boiling, 795, 802, 865
Evans v. Gerry, 710, 749, 800
Evans v. Dendy, 86, 475
Evans v, Jones, 669
Evans v. Kingsberry, 492, 828
Evans v. McLucas, 333, 475, 477
Evans v. Saunders, 347
Evans v. Snyder, 138
Evans v. Taylor, 291, 725, 778, 780
Eveleth v. Crouch, 389
Everett v. Dilley, 295
Everett v. Marston, 295
Eversole v. Eversole, 827
Everson v. Kirtland, 36
Everts v. Brown, 338
Ewart v. Bowman, 601
Ewing v. Handley, 702
Ewing v. Thompson, 214
Eyre v. Woodfine, 127
Eyston v. Symond, 798, 799
Eyton v. Dicken, 712, 738
F.
Fagan v. Davidson, 161, 219, 726,
731, 786
Fagan v. McWhirter, 473
Fahy v. Cavanagh, 728
Faile v. Crawford, 765, 820
Failing v. Osborne, 447, 600
Fairbanks v. Williamson, 550
Fairbrother v. Griffin, 382
Fairchild v. Marshall, 714
Faircloth v. Isler, 148, 153
Faircloth v. Jordan, 531
Fairfax v. Lewis, 207
Falkner v. Eq. Kev. Society, 713
Falkner v. Guild, 36
Falkner v. Hackett, 460
Fant v. Wright, 738
Faries v. Smith, 432
Farley v. Bryant, 540, 568, 569, 573
Farley v. laler, 542
Farley v, Howard, 302
Farmers' & Mech. Bank v. Detroit,
569, 5/3
Farmers' Bank v. Galbraith, 667,673
Farmers' Bank v. Glenn, 404, 537
Farmers' Loan & Trust Co. v. Malt-
by, 532
Farmers' Bank v. Martin, 81
Farmers' Bank v. Peter, 81, 142
Farnham v. Hotchkiss, 447, 458, 462
Farnsworth v. Duffner, 664
Farnum v. Buffum, 69
Farnum v. Peterson, 527
Farrell v. Lloyd, 240, 684
Farrington v. Tennessee, 641
Farrington v. Tourtellot, 305
Farrow v. Mays, 475
Fash v. Blake, 50
Favill v. Roberts, 139
Feemster v. May, 35, 611, 616
Fehrle v. Turner, 445, 838
Feiner v. Reiss, 771
Felix v. Devlin, 492, 721
Fellows v. Evans, 447
Fenton v. Alsop, 854
Fenwick v. Buff, 574
Ferebee v. Hinton, 62
Ferguson v. Dent, 344
Ferguson v. Teel, 587
Fermor's Case, 105
Ferrell v. Alden, 428
Ferris v. Crawford, 286
Ferris v. Harshea, 356, 365
Ferris v. Plumber, 712
Ferry v. Sampson, 746
Person v, Sanger, 857
Fewster v. Turner, 481
Field v. Snell, 380, 389
Fields v. Clayton, 559, 854
Fields v. Hunter, 430
Fields v. Baum, 587
Fields v. Squires, 347, 379, 440, 547
Fierce v. Houghton, 305, 308, 564
Fife v. Clayton, 32
Fillingin v. Thornton, 842
Finch v. Edmondson, 115
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
xxxv ; i
Final v. Backus, 69
Findlay v. Toncray, 147, 334, 356
Findley v. Horner, 198
Finley v. Steele, 342
Finn v. Sleight, 552
Finton v. Eggleston, 366
First Af. Soc. v. Brown, 707
First Af. M. E. Church v. Brown, 743
Fist Nat. Bank v. Gough, 559, 560,
573
First Nat. Bank v. Wentworth, 569,
575
Fish v. Cleland, 250
Fish v. West, 589
Fishback v. Williams, 608, 797
Fisher v. Abney, 474
Fisher v. Dow, 472, 474
Fisher v. Kay, 488
Fisher v. Parry, 270
Fisher v. Salmon, 467
Fisher v. Wilcox, 721
Fisher v. Wood, 106
Fitch v. Baldwin, 261, 552, 855, 863
Fitch v. Casey, 34
Fitch v. Fitch, 540
Fitch v. Polke, 241, 834, 837
Fitch v. Seymour, 302
Fitch v. Wollard, 25, 37, 149
Fitts v. Hoitt, 300, 599, 778
Fitzer v. Fitzer, 285
Fitzgerald v. Peck, 871
Fitzhugh v. Croghan, 255, 260, 538
Fitzhugh v. Land Co., 698
Fitzpatrick v. Featherstone, 695
Fitzpatrick v. Fitzpatrick, 43
Fitzpatrick v. Hoffman, 424, 677
Fitzpatrick v. Leake, 773
Fitzpatrick v. Sweeny, 762
Flagg v. Eames, 54
Flanary v. Kane, 54, 520.
Flannagan v. Oberimer, 182
Flannagan v. Young, 73
Flannigan v. Fox, 727
Flanniken v. Neal, 377
Fleming v. Burnham, 721, 769
Fleming v. Harrison, 148
Fleming v. Holt, 133, 153
Fletcher v. Beck, 641
Fletcher v. Button, 17, 36, 211, 213,
223, 617
Fletcher v. Moore, 812
Fletcher v. Wilson, 538, 798
Flight v. Booth, 194
Flinn v. Barber, 20, 590
Flint v. Steadman, 415
Flint v. Woodin, 193
Floom v. Beard, 278
Florence Oil Co. v. McCandless, 492,
616, 626, 822
Florentine v. Barton, 98
Fluyder v. Cocker, 820
Fly v. Brooks, 572
Flureau v. Thornhill, 212, 215, 210
Flynn v. Bourneuf, 283
Flynn v. White Breast Coal Co., 308
Fogarty v. Finlay, 63
Foley v. City of Haverhill, 293
Foley v. Crow, 822, 820
Foley v. Keegan, 213
FO!K v. Varn, 50
Folliard v. Wallace, 351, 353, 431,
434, 726, 727
Follett v. Grant, 256
Folts v. Huntley, 355
Foot v. West, 205, 208, 595
Foote v. Burnett, 265, 269, 321, 384
Foote v. Clarke, 156, 257, 522
Force v. Butcher, 587
Ford v. Belmont, 760
Ford v. Schlosser, 737
Ford v. Walworth, 100, 377
Ford v. Wright, 742
Ford v. Yates, 32
Fordyce v. Ford, 187
Fore v. McKenzie, 88, 112
Foreman v. Wolf, 737
Forest v. Camp, 127
Forster v. Abraham, 714
Forster v. Hoggart, 28, 29
Forster v. Scott, 778
Forsyth v. Leslie, 187, 737, 747, 787
Forteblow v. Shirley, 819
Forthman v. Deters, 509
Fort Jeff. Imp. Co. v. DuPeyster, 625
Fort Payne Coal & I. Co. v. Webstvr.
807
Fosdick v. Burr, 121
Fosgate v. Herkimer Mfg. Co., 798
Foshay v. Shafer, 357
Foss v. btrachn, 539
Foster v. Dwinel, 552
Foster v. Foster, 301, 308, 320, 322
Foster v. Gillam; 683
Foster v. Gressett, 194, 244, 696, 85.*
Foster v. Herkimer Mfg. Co., 202,
506
Foster v. Jared, 612
Foster v. Kennedy, 235
Foster v. Lyons, 848
Foster v. Thompson, 415
Foster v. Woods, 287
Foster v. Young, 156, 157
Foute v. Elder, 603
Fowler v. Cravens, 696, 697
Fowler v. Johnson, 213
Fowler v. Mnnheimer, 746
Fowler v. Poling, 256, 356, 358, 363,
436
Fowler v. Shearer, 542
Fowler v. Smith, 365, 443
Fowler v. Ward, 694
Fox v. Birch, 486
XXXV111
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Fox v. Haughton, 2-t6
Fox v. Kitton, 041
Fox v. McGoodwiii, 78
Fox v. Mensch, 109, 674
Fox v. Widgery, 552
Foy v. Houghton, 342
Fraker v, Brazelton, 799
Franchot v. Leach, 682
Francis v. Hazelrig, 733
Franciscua v. Reigert, 409
Frank v. Riggs, 443, 838
Franklin v. Dorland, 520
Franz v. Orton, 480
Fraser v. Prather, 49
Fratt v. Fiske, 622
Frazer v. Robinson, 641
Frazer v. Supervisors, 256, 258, 271,
414
Frazier v. Boggs, 34
Frazier v. Tubb, 864
Frederick v. Campbell, 660, 673
Frederick v. Cox, 90
Freebody v. Perry, 486
Freedman v. Oppenheim, 739, 762,
763, 770
Freeland v, Pearson, 731
Freeligh v. Platt, 462, 609
Freeman v. Auld, 469
Freeman's Bank v. Vose, 574
Freeman v. Foster, 286, 288
Freeman v. Preston, 67
Freer v. Hesse, 713, 747, 748
Freetly v. Barnhart, 711, 769
Freize v. Chapin, 605
Freme v. Wright, 28, 724
French v. i'olsom, 306
French v. Howard, 851
French v. Genet, 513
French v. Pratt, 130
French v. Spencer, 549
Frenzel v. Miller, 248
Frey v. Rawson, 520
Freymoth v. Nelson, 368
Friedly v. Scheetz, 118, 157, 674
Friedman v. Dewees, 792
Frink v. Bellis, 314
Frink v. Darst, 343, 545
Frisbie v. Hoffnagle, 463
Frisby v. Ballance, 545
Frische v. Kramer, 138
Fristoe v. Latham, 680
Fritz v. Pusey, 290, 298, 300, 367, 407
Froman v. Froman, 483, 575
Frost v. Angier, 306
Frost v. Atwood, 95, 136, 138
Frost v. Bunson, 817
Frost v. Earnest, 355
Frost v. Knight, 19
Frost v. Raymond, 257
Frost v. Smith, 611
Frost v. Yonkers Sav. Bank, 120, 130
Fruhauf v. Bendheim, 777
Fryer v. Rockefeller, 63, 77, 762, 760
Fuchs v. Treat, 571
Fuhr v. Cronin, 742, 791
Fuhrman v. London, &7 r 670, 671
Fuller v. Savings Bank, 559
Fuller v. Hubbard, 150, 208, 591,777
Fuller v. Hovey, 803
Fuller v. Jillette, 292, 311
Fuller v. Williams, 208
Fulweiler v. Baugher, 418, 423
Funk v. Creswell, 333, 363, 367, 363
Funk v. Newcomer, 519
Funk v. Voneida, 281, 291, 308, 322
Furber v. Purdy, 597
Furman v. Caldwell, 141
Furman v. Elmore, 271, 374, 391, 39<J,
475
Furnas v. Durgin, 282, 359, 365
Furniss v. Williams, 256, 261
Furnold v. Bank, 512
Fuson v. Lambdin, 506
G.
Gage v. Cummings, 808
Gager v. Edwards, 470
Gaines v. Jones, 738
Gaines v. Kennedy, 138, 139
Gaines v. Merchants' Bank, 122
Gaither v. O'Doherty, 148, 150, 480,
798.
Galbraith v. Dilday, 563
Galbraith v. Reeves, 625
Gale v. Conn, 445, 638
Gale v. Dean, 214
Gale v. Edwards, 299
Gale v. Gale, 717
Gale y. Morris, 561, 574
Gale v. Nixon, 616
Gallagher v. Withinpton, 508, 696
Galloway v. Barr, 487
Galloway v. Bradshaw, 826
Galloway v. Finlay, 406, 508
Galvin v. Collins, 764
Galway v. Melchow, 573
Gamble v. Daugherty, 557
Gamble v. McClure, 344
Games v. Bonner, 737
Gammon v. Blaisdell, 16, 354
Gano v. Green, 433
Gans v. Renshaw, 189, 589, 621, 692,
709, 711, 716, 822
Gantly v. Ewing 130
Ganz's Appeal, 600
Garber v. Armentrout, 655
Garber v. Sutton, 793
Garden City L. Co. v. Miller, 765, 772
Gardner v. Dembinsky, 716
Gardner v. Keteltas, 355, 360
Gardner v. Mayo, 860
Gardner v. Moore, 576
TABLE OF CASES.
[REFERENCES ABB TO PAGES.]
XXXIX
Gardner v. Niles, 282
Garfield v. Williams, 237, 263, 273
Garlock v. Cross, 383, 385
Garner v. Leaverett, 443, 025, 694,
696
Garnett v. Garnett, 44
Garnett v. Macon, 108, 700, 782, 784,
804, 807
Garnett v, Yoe, 202
Garrard v. Lantz, 510, 512, 668
Garrett v. Christopher, 340
Garrett v. Crosson, 668
Garrett v. Lynch, 110, 194
Garrett v. McLain, 549
Garrett v. Stuart, 402
Garrison v. Moore, 409
Garrison v. Sandford, 263, 311
Gartman v. Jones, 453, 646
Gartrell v. Stafford, 492
Garvin v. Cohen, 467, 616
Gass v. Sanger, 411, 865
Gaston v. Frankum, 22
Gastry v. Perrin, 35
Gates v. McLean, 615, 618
Gates v. Parmly, 164, 298, 708, 773,
778
Gates v, Winslow, 648
Gault v. Van Zile, 146
Gaunt v. Wainman, 552
Gautreaux v. Boote, 37
Gay v. Hancock, 461, 847, 850, 851
Gayle v. Fattle, 848
Gazley v. Pierce, 33, 150
Gedye v. Duke of Montrose, 801
Gee v. Pharr, 343
Gee v. Moore, 332, 548
Gee v. Saunders, 609
Gehr v. Hegerman, 695. 696
Geiszzler v. DeGraaf, 311, 314
Gen. Finance Co. v. Liberator Society.
517, 540
Genner v. Hammond, 231
Gennings v. Norton, 282
Gentry v. Callahan, 551
Gentry v. Hamilton, 816
Geoghegan v. Conolly, 20, 184
Geoghegan v. Ditto, 138, 140
George v. Conhaim, 47, 762, 810
George v. Putney, 371
George v. Robinson, 376
George v. Stockton, 611, 615
Georgetown v. Smith, 120
Gerald v. Elley, 305
Gerault v. Anderson, 212, 490
Gerdes v. Moody, 563, 570
Gerhardt v. Spalding, 337
German Real Est. Co. v. Starke, 452
Gest v. Flock, 68
Getchell v. Chase, 446, 648
Getty v. Peters, 508, 579
Geyer v. Girard, 526
Gheen v. Harris, 297
Gibbs v. Champion, 489
Gibbs v. Jemison, 229
Gibbs v. Thayer, 332, 546
Gibert v. Peters, 702
Gibson v. Carreker, 214
Gibson v. Choteau, 540, 545, 548
Gibson v. Clarke, 486
Gibson v. Colt, 155
Gibson v. D Este, 855
Gibson v. Mussey, 158
Gibson v. Newman, 611, 792, 794
Gibson v. Patterson, 811
Gibson v. Richart, 444, 650
Gibson v. Spurrier, 720
Giddings v. Confield, 434
Giddings v. Holter, 336, 368
Gifford v. Ferguson, 445
Gifford v. Society, 447, 458
Gilbert v. Bulkley, 255, 263
Gilbert v. Cherry, 18
Gilbert v. Cooley, 137
Gilbert v. Hoffman, 141, 523
Gilbert v. James, 106
Gilbert v. Peteler, 223, 776
Gilbert v. Rushmer, 318, 319
Gilbert v. Wyman, 282
Gil breath v. Dilday, 571
Gilchrist v. Buie, 34, 35, 148, 149
Gilchrist v, Dilday, 70
Giles v. Dugro, 270, 298, 303, 375,
409
Giles v. Paxson, 725
Giles v. Peo. Nat. Bank, 597
Gilham v. Real Est. Co., 296
Gilham v. Walker, 838
Gill v. Corbin, 236
Gill v. Ferrin, 286
Gillam v. Briggs, 477
Gillespie v. Torrance, 593
Gillett v. Maynard, 584, 596,610,702
Gillette v. Hill, 137
Gills v. Wells, 722, 757
Gilpin v. Smith, 446, 684
Gilroy v. Alis, 858
Giltner v. Ruyl, 484
Gimell v. Adams, 49
Ginn v. Hancock, 302
Gish v. Moomaw, 725
Gittings v. Worth ington, 346
Given v. McCarroll, 102
Glass v. Brown, 855
Glass v. Richardson, 722
Glasscock v. Minor, 194, 249, 250
Glasscock v. Robinson. 693, 782
Glassman v. Condon, 597
Gleason v. Smith, 353
Glendenning v. Oil Co., 519
Glenn v. Allison, 156, 157
Glenn v. Clapp, 81, 82
Glenn v. Rossler, 203
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Glenn v. Thistle, 368, 463 467
Glover v. Shields, 52
Gobble v. Linden, 232
Oober v. Hart, 627
Gochenour v. Mowry, 534
Goddin v. Vaughn, 36, 149, 154, 185,
193, 195, 818
Godfrey v. Rosenthal, 788
Godley v. Taylor, 155
Godson v. Turner. 30, 196
Goelth v. White, 695
Goerlitz v. Malanistta, 767
Goettel v. Sage, 672, 860
Goetz v. Walters, 811, 814
Goff v. Hawkes, 213, 224, 226
Goff v. O'Connor, 121
Going v. Oakland, 722, 801
Golden v. Maupin, 640
Goldsmith v. Guild, 803
Gonzales v. Hukil, 541
Gooch v. Atkins, 140
Good v. Good, 225
Good v. Herr, 868
Goodbar v. Daniel, 118, 123
Goodbar v. Dunn, 573
Goode v. Smith, 67
Goodel v. Bennett, 389, 522
Goodell v. Sanford, 166
Goodenough v. Fellows, 541
Goodin v. Decker, 195, 622
Goodkind v. Bartlett, 236, 778
Goodman v. Randall, 572, 574
Goodman v. Rust, 69 1
Goodman v. Winter, 139
Goodwin v. Francis, 229
Goodwin v. Maxwell, 335
Goodyere v. Ince, 127
Gordon v. Champneys, 708
Gordon v. Goodman,, 864
Gordon v. Mahoney, 694
Gordon v. Phillips, 444
Gordon v. Sims, 78
Gore v. Brazier, 359, 365, 393, 393.
400
Goring v. Shreve, 137
Gorman v. Gorman, 740
Gorman v. Salisbury, 581
Gosbell v. Archer, 594, 596
Goss v. Lord Nugent, 31, 190, 581
Goss v. Singleton, 792
Gotthelf v. Stranahan, 480
Goucher v. Helmbold, 666
Goucher v. Martin, 581
Gough v. Bell, 519
Gould v. Sternberg, 89, 90
Gould .v. Woodward, 63
Gove v. Cather, 63
Governor v. West Imp. Commrs., 78
Gourdine v. Fludd, 477
Grace v. Regal, 209
Grady v. Ward, 739
Gragg v. Richardson, 37, 99, 420, 424,
428
Graham v. Anderson, 57
Graham v. Dyer, 398, 415, 424
Graham v. Gates, 492
Graham v. Graham, 214
Graham v. Hackwell, 483
Graham v. Hackwith, 483, 490
Graham v. Meek, 542
Graham v. Tankersley, 427, 430
Granger v. Olcott, 648, 860
Grannis v. Clark, 360, 434
Grant v. Hill, 410
Grant v. Law, 695
Grant v. Tallman, 321, 457
Grant v. Wasson, 738
Grantland v. Wight, 154, 477, 703,
841, 849, 851
Grapengether v. Ferjervary, 576
Crasser v. Black, 707
Graves v. Mattingly, 156
Graves v. Spier, 14
Graves v. Wilson, 30
Gray v. Briscoe, 412
Gray v. Handkisson, 476
Gray v. Hill, 735
Gray v. Jones, 182
Gray v. Mills, 18
Gray v. Smith, 760, 792
Gray v. Ward, 650
Grayson v. Weddle, 572
Great Falls Ice Co. v. Worster, 534
Great Western Stock Co. v. Saas, 265
Greaves v. Ashton, 32
Green v. Biddle, 223
Green v. Campbell, 839
Green v. Chandler. 20, 234, 253, 681,
805, 819
Green v. Collins, 375
Green v. Covilland, 33
Green v. Finucane. 197
Green v. Ditsch, 705
Green v. Edwards. 387
Green v. Green, 205, 512, 589. 612,
777
Green v. Hernz, 511, 598, 788
Green v. Irving, 146, 363, 367. 368,
371
Green v. McDonald, 638, 639
Green v. Pulsford. 715
Green v. Tidball, 296
Green v. Whipple, 838
Greenblatt v. Herrmann, 487. 759
Greenby v. Cheevers, 205, 510, 612,
804
Greenby v. Wilcocks, 262, 434
Greene* v. Allen. 13, 700
Greene v. Creighton. 301, 320, 323
Greene v. Tallman. 317
Greene v. Williams, 211, 424
Greenlaw v. Williams, 428, 429
TADLE OF CASES.
[INFERENCES ABE TO PAGES.]
xii
Greenleaf v. Cook, 198, 453, 462, C49,
091
Greenleaf v. Queen, 443, 039, 690, 732
Greenlee v. Gaines, 624, 090, 855
Greeno v. Munson, 371
Greenough v. Small, 116
Greenvault v. Davis, 356, 363, 368,
389, 403
Greenville N. B. v. Parkinson, 586
Greenwood v. Hoyt, 219
Greenwood v. Digon, 35
Gregory v. Christian, 812
Gregory v. Peoples, 524, 543, 544
(ircgory v. Scott, 589
Greville v. Da Costa, 11, 587
Grey son v. Kiddle, 811
Greyson v. Tuson, 110
Grice v. Scarborough, 284, 299
Grider v. Land Mtgo. Co., 72
Gridley v. Tucker, 461
Griel v. Lomax, 049
Griffin v. Cunningham, 704, 728, 730,
748, 783
Griffin v. Fairbrother, 256, 381
Griffin v. Reynolds, 363, 392, 410
Griffin v. Sheffield, 542
Griffith v. Bogert, 107
Griffith v. Depew, 625, 698, 702
Griffith v. Kempshall, 242, 245, 453,
657, 662
Griffith v. Maxfield, 757, 771, 778
Griffith v. Townley, 859
Griggs v. Landis, 193
Griggs v. Woodruff, 193, 203, 625
Grignon v. Astor, 98, 99, 100, 101, 114
G rimes v. Redman, 525
Grist v. Hodges, 203, 349
Griswold v. Allen, 375
Griswold v. Block, 73
Griswold v. Hazard, 868, 871
Griswold v. Hicks, 107
Groesbeck v, Harris, 357, 414, 421,
472
Groesbeck v. Seeley, 58
Groom v. Booth, 28
Gross Lumber Co. v. Leitner, 117
Grout v. Townsend, 541
Grove v. Bastard, 715
Grove v. Zumbro, 67
Grubb's Appeal, 564
Grubbs v. Barber, 444
Grundy v. Jackson, 507, 697
Grymes v. Saunders, 866
Gue v. Jones, 96
Guerin v. Smith, 289, 311
Guerrant v. Anderson, 534
Guerard v. Rivers, 399
Guest v. Horn fray, 804
Guice v. Sellers, 446
Guilmartin v. Urquhart, 564
Guinotte v. Choteau, 402
Gulick v. Railroad Co., 551
Gump v. Sibley, 737
Gunby v. Sluter, 249, 581
Gunn v. Moore, 337
Gunn v. Thornton, 842
Gunnison v. Blaisdell, 354
Gunnis v. Erhart, 32
Gunter v. Williams, 363, 381
Guthrie v. Pugsley, 409, 415
Guthrie v. Russell, 318, 321
Guthrie v. Thompson, 201, 205
Guttschlick v. Bank, 192, 57, 619,
656
Guynet v. Mantel, 827
Gwin v. Calegaris, 595, 741
Gwin v. McCarroll, 113, 115
Gwinther v. Gerding, 238, G61, 681,
687
Gvvynn v. Hamilton, 808
Gwynn v. Thomas, 440
H.
Haber v. Burke, 693
Habig v. Dodge, 340, 547, 549
Hacker v. Blake, 273
Hacker v. Storer, 263, 270, 388
Racket v. Glover, 3(50
Hackett v. Huson, 208
Haddock v. Taylor, 225
Hadlock v. Williams, 091, 822
Haff v. Price, 138
Haffey v. Birchetls, 370, 393, 515
Haffey v. Lynch, 782, 819
Hagan v. Drucker, 740
Hagensick v. Castor, 544, 549
Haggart v. Scott, 798, 799
Haggin v. Olivet, 837
Hagler v. Simpson, 254, 366
Haight v. Hayt, 2:5:5, 080
Haines v. Fort, 424
Haire v. Baker, 285
Halcombe v. Lovvdermilk, 123, 140
Haldane v. Sweet, 194, 299, 305, 446,
638
Hale v. Cravener, 503, 711, 732, 735
Hale v. Marquette, 109, 111
Hale v. New Orleans, 393, 799
Hale v. Wilkinson, 616
Hall v. Betty, 20, 22, 28
Hall v. Bray, 363
Hall v. Chuffee, 548
Hall v. Clountz, 805
Hall v. Dean, 291, 317
Hall v. Delaplnine, 214
Hall v. Gale. 259, 448
Hall v. McArtlmr. 589
Hall v. Nevill, 196
Hall v. Plaine, 378
Hall v. Priest, 847
Hall v. Scott, 737
Hall v. Scott Co., 265
xlii
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Hall v. Smith, 30
Hall v. York, 214
Halley v. Oldham, 121
Halliburton v. Slagle, 519
Halliek v. Guy, 112
Halls v. Thompson, 236, 238, 251
Halsey v. Jones, 128, 137
Ham v. Ham, 550
Hamar v. Medskar, 576
Hamilton v. Cutts, 363, 3C8
Hamilton v. Hamilton, 488
Hamilton v. Hulett, 809
Hamilton v. Lusk, 363
Hamilton v. Wilson, 256, 257, 262
Hamlon v. Sullivant, 568
Hammatt v. Emerson, 835
Hammers v. Hanrick, 244, 624
Hammerschlag v, Duryea, 737
Hammerslough v. Hackett, 273, 382
Hammersmith v. Espy, 123
Hammond v. Chamberlain, 78
Hammond v. Hamlin, 213, 216
Hampton v. Pool, 382
Hampton v. Specknagle, 20(5, 770
Hampton v. Webster, 433
Hancock v. Bramlett, 824
Hancock v. Carlton, 526
Hancock v. Cloud, 628
Hancock v. Wiggins, 653
Hand v. Grant, 80, 118
Handy v. Rice, 499
Handy v. Waxter, 80
Hanks v. Pickett, 507
Hanna v. Phillip, 496
Hanna v. Shields, 273, 444, 844
Hannah v, Henderson, 371
Hannan v. McMickle, (>Tr>
Hanrick v. Patrick, 548
Hanson v. Buckner, 370. 391. 396
Haralson v. Langford, 472. 473
Haran v. Stratton, 297, 348
Hardeman v. Cowan, 506
Harden v. Collins, 545
Hardigree v. Mitchum, 511, 874
Hardin v. Clark, 130
Hardin v. Harrington, 512
Hardin v. Kirk, 57
Harding v. Comm'l Loan Co.. 838
Harding v. Larkin, 363, 415, 417,
419, 421
Harding v. Nelthorpe, 244
Harding v. Olsen, 704, 811
Hardwick v. Forbes, 803
Hardy v. Nelson, 398, 430, 526
Hare v. Burges, 155
Hare v. Holloman, 107, 116
Harkreader v. Clayton, 506
Harland v. Eastland, 253
Harle v. McCoy, 618
Harlow v. Thomas, 301, 322
Harmer v. Morris, 529
Harn v. Smith, 521
Harnett v. Yielding, 500
Harpening v. Dutch Church, 737
Harper v. Dowdney, 296
Harper v. Jeffries, 510, 512, 668
Harper v. Perry, 378, 385
Harper v. Reno, 506
Harper v. Tidholm, 165
Harr v. Shaffer, 368
Harrass v. Edwards 765, 766
Harriman v. Gray, 550
Harrington v. Higgins, 205, 207, 790,
797
Harrington v. Murphy, 300, 315, 372
Harris v. Bolton, 201, 693
Harris v. Carter, 244, 792, 806
Harris v. Granger, 824, 829
Harris v. Newell, 273
Harris v. Rowan, 446
Harris v. Smith, 723
Harrison v. Boring, 546, 550
Harrison v. Deramus, 198
Harrison v. Harrison, lOo, 116
Harrison v. Palo Alto Co., 349
Harrison v. Platt, 789, 790
Harrison v. Shanks, 126
Harrison v. Soles, 512
Hart v. Bleight, 192
Hart v. Gregg, 547
Hart v. Handlin, 191, 691, 775
Hart v. Hannibal & St. J. R. Co.,
446, 630, 857
Hart v. Porter, 666, 670, 674
Hart v. Smith, 132
Hartford Co. v. Miller, 263, 273
Hartley v. Costa, 538
Hartley v. Gregory, 282
Hartley v. James, 205, 594, 610, 738
Hartley v. Smith, 715, 730
Harth v. Gibbs, 119, 141, 142
Hartshorn v. Cleveland, 294
Hartzell v. Crumb, 214
Harvey v. Doe, 259
Harvey v. Morris, 619
Harvie v. Hodge, 519
Harwood v. Benton, 309
Harwood v. Bland, 187, 188
Harwood v. Lee, 316, 319
i Haseltine v. Simmons, 711
1 Hastings v. Hastings, 317, 327
Hastings v. Land Imp. Co., 296
Hastings v. O'Donnell, 649
Hastings v. Vaughn, 69
Hatch v. Barr, 49
Hatch v. Cobb, 487, 813
Hatcher v. Andrews, 302, 838. 839
Hatcher v. Briggs, 139
Hatt v. Rich, 714, 771
Haug v. Primeau, 115
Haven v. Grand June. R. Co., 426
Havens v. Foster, 873
TABLE OF CASES.
xliii
[REFERENCES ABE TO PAGES.]
Havens v. Goudy, 613
Haverington's Case, 298
Hawes v. Rucker, 129
Hawes v. Swanzey, 193, 682
Hawkins v. Brown, 414
Hawkins v. Burruss, 66
Hawkins v. Johnson, 602
Hawn v. Norris, 618
Hawpe v. Smith, 110, 111
Hawralty v. Warren, 497
Hawthorn v. City Bank, 311, 321
Hayden v. Westcott, 60, 72
Hayes v. Bickerstaff, 361, 434
Hayes v. Bonner, 590, 664
Hayes v, Ferguson, 361
Hayes v. Nourse, 720, 788
Hayes v. Skidmore, 827
Hayes v. Tabor, 547
Raymond v. Camden, 107, 138
Hayner v. Smith, 353
Haynes v. Farley, 13, 18, 815
Haynes v. Lucas, 11
Haynes v. Seachrist, 574
Haynes v. Stevens, 386, 421, 526
Haynes v. White, 33, 34, 615
Haynes v. Young, 37 o
Hays.v. Bonner, 683
Hays v. Dalton, 138
Hays v. Griffith, 90
Hays v. Trible, 746, 755, 805, 814
Hayward v. Lomax, 511
Hazelrig v. Hutson, 497
Hazlett v. Woodruff, 417
Headley v. Shaw, 180, 207
Head's Trustees, In re, 809
Headrick v. Wisehart, 285
Heaarick v. Yount, 78, 114
Heard v. Hall, 157
Hearne v. Tomlin, 189, 586
Hearne v. Tenant, 812
Heath v. Black, 127
Heath v. Crealock, 440, 517, 540
Heath v. Newman, 365, 446, 693
Heath v. Whidden, 311
Heavner v. Morgan, 606
Hebler v. Brown, 281, 357, 559
Heck v. Remka, 556
Hecker v. Brown, 754
Hecker v. Sexton, 759
Hedderley v. Johnson, 707, 730, 731
Hedges v. Kerr, 149, 154
Hedrick v. Smith, 419
Heflin v. Phillips, 281, 343, 363, 443,
838
Heidenburg v. Jones, 207
Heimburg v. Ismay, 228, 497, 775,
778
Heisch v. Adams, 650
Heller v. Cohen, 740, 762, 789
Hellreigel v. Manning, 731, 764
Helvenstein v. Higginson, 443, 615
Hemmer v. Hustace, 720, 753, 756
Hempstead v. Easton, .)41
Henderson v. Brown, 843
Henderson v. Grewell, 64
Henderson v. Hay, 145
Henderson v. Henderson, 300, 321,
402, 831
Henderson v. Lacon, 236
Henderson v. Overton, 119, 122, 517,
520, 551, 759
Henderson v. Perkins, 745
Henderson v. Rice, 6/
Hendricks v. Gillespie, 189, 731, 748,
783, 785, 804
Hendricks v. Goodrich, 695
Hendricks v. Kesee, 262
Hendricks v. Stark, 303, 779
Hendricks v. Wisehart, 285
Hendrickson v. R. Co., 128
Henning v. Withers, 271, 391
Henry v. Elliott, 646, 848
Henry v. Liles, 148, 492
Henry v. McEntyre, 377
Henry v. McKerlie, 513
Hensley v. Baker, 125
Hepburn v. Auld, 763, 805, 822
Hepburn v. Dunlop, 691, 7!)8
Heppinstall v. O'Donnell, 779
Herb v. Met. Hosp. & Disp., 325
Herbemont v. Sharp, 477, 641
Herbert v. Smith, 715
Herbert v. Stanford, 613
Herington v. Clark, 368
Herman v. Sommers, 716, 733
Herndon v. Venable, 213, 222
Herrick v. Moore, 290, 300, 325
Herrick v. Moore, 290, 30G, 325
Herrin v. Mclntyre, 384
Herrod v. Blackburn, 38
Herron v. DeBard, 473
Herryford v. Turner, 148, 446, 471.
599
Hersey v. Turbett, 667
Hertzberg v. Irwin, 668, 718, 759
Hertzog v. Hertzog, 213, 223, 225
Hester v. Hunnicuft, 368
Hewitt v. Powers, 573, 576
Heyn v. Ohmann, 436
Hiatt v. Callaway, 558
Hibbert v. Shee, 586
Hicks v. Hicks, 181
Hicks v. Lovell, 615
Hickson v. Linggold, 112, 625, 80.1
Hickson v. Rucker, 78
Higgina v. Eagleton, 14, 193, 203, 507,
815
Higgins v. Johnson, 515
Higginson v. Clowes, 31, 32
Hightower v. Smith, 739
Higley v. Smith, 156, 649
Higley v. Whittaker, 613
xliv
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Hilary v. Waller, 737
Hile v. Davison, 838
Hileman v. Wright, 559
Hill v. Bacon, 292
Hill v. Billingsly, 138
Bill v. Buckley, 491
Hii. v. Butler, 447
Hill v. Fiske, 487
Hill v. Hobart, 14, 33, 207, 214
Hill v. Ressegieu, 36, 151, 152
Hill v. Samuel, 506, 616, 695
Hill v. West, 542
Hilmert v. Christian, 280
Hilton v. Duncan, 625
Hinckley v. Smith, 824
Hinds v. Allen, 424, 430
Hines v. Jenkins, 430
Hines v. Richter, 211
Hines v. Robinson, 521
II inkle v. Margerum, 241
Hipwell v. Knight, 795, 802
Hiss v. McCabe, 60
Hitchcock v. Caruthers, 138
Hitchcock v. Fortier, 526
Hitchcock v. Giddings, 252, 652, 859,
866
Hitchins v. Pettingill, 566
Hite v. Kier, 594
Hoag v. Rathbun, 458, 841
Hoback v. Kilgore, 148, 151
Hobbs v. King, 381, 541
Hobein v. Drewell, 467
Hobson v. Bell, 25
Hobson v. Buchanan, 799
Hochster v. De La Tour, 19
Hodges v. Fabian, 116
Hodges v. Latham, 358
Hodges v. Litchfield, 220
Hodges v. Saunders, 154, 381
Hodgson v. Farrell, 107
Hoe's Case, 127
Hoffman v, Bosch, 392
Hoffman v. Colyer, 726
Hoffman v. Kirby, 409, 459, 556
Hoffman v. i<ett, 41
Hogan v. McMurtry, 794
Kogan v. Weyer, 696
Hogg v. Odom, 45
Hogsett v. Ellis, 464
Hoke v. Jones, 843, 849
Holabird v. Burr, 574
Holbrook v. Debo, 548
Holden v. Curtis, 654
Holden v. Taylor, 361
Holeman v. Maupin, 848
Holin v. Wust, 165
Holladay v. Menifee, 273, 430, 435,
616
Holland v. Anderson, 248, 253, 691
Holland v. Holmes, 148
Holland v. Johnson, 95
Holland v. Moon, 576
Holland v, Rogers, 37
Hollenburgh v. Morrison, 591
Hollifield v. Landrum, 159, 614, 729,
741, 765
Hollingsworth v. Mexia, 401
Hollister v. Dillon, 141
Holley v. Younge, 455, (>82
Holloway v. Miller, 368. 400, 508
Holly v. Hirsh, 713, 728
Holman v. Creagmiles, 469
Holman v. Criswell, 11, 152
Holmes v. Holmes, 201, 220. 797, 831
Holmes v. Richards, 735, 744
Holmes v. Seaman, 402
Holmes v. Shaver, 80
Holmes v. Sinnickson, 391, 422
Holmes v. Wood, 756
Holt's Appeal, 762
Holtzinger v. Edwards, 118, 123
Holyoke v. Clarke, 156
Home Life Ins. Co. v. Sherman, 364
Homer v. Purser, 863
Honaker v. Shougli, 138
Hoock v. Bowman, 374, 810
Hood v. Clark, 281
Hood's Appeal, 418
Hood v. Huff, 616
Hooker v. Folsom, 366, 444
Hooper v. Armstrong, 458
Hooper v. Henry, 526
Hooper v. Jackson, 808
Hooper v. Sac. Co. Bank, 372
Hoot v. Spade, 410
Hoover v. Chamber, 808
Hope v. Blair, 97
Hope v. Stone, 340, 540, 548
Hopkins v. Delaney, 63
Hopkins v. Lane, 380, 383
Hopkins v. Lee, 14, 214, 217
Hopkins v. Mayzck, 871
Hopkins v. Yowell, 215
Hopper v. Hopper, 497
Hopper v. Smyser, 286
Hopp v. Lutkin, 836
Hoppes v. Cheek, 351, 443, 838, 840
Hoppin v. Hoppin, 519
Horbach v. Boyd, 521
Horbach v. Gray, 671
Horn v. Butler, 725
Hornbeck v. Building Assn., 71
Hornbeck v. Westorook, 45
Home v. Rogers. 34, 195, 197, 603,
757
Hooner Y. Lowe, 650
Horner v. State Bank, 9S)
Horrigan v. Rice, 261
Horrocks v. Rigby, 491
Horsford v. Wrfeht, 398
Horton v. Arnold, 448, 616
Hosford v. Nichols, 146
TABLE OF CASKS).
[REFERENCES ABE TO PAGES.]
xlv
Hough v. Rawson, 604
Hough taling v. Lewis, 657
House v. Kendall, 587, 769
House v. McCormick, 520
Houslay v. Lindsay, It
Houston v. Dickinson, 400
Houston v. Henley, 194, 834, 84J
Houston v. Randolph, 65
Houx v. Bates Co., 570
Howard v. Doolittle, 353
Howard v. ]Sorth, 137
Howard v. Randolph, 43, 456, 477
Howe v. Harrington, 155, 545
Howe v. Hunt, 712
Howe v. Hutehinson, 164
Howe v. Walker, 283
Howell v. Richards, 255, 338, 351
Howes v. Barker, 657
Howland v. Bradley, 502
Hoxie v. Finney, 548
Hoy v. Smythies, 2!)
Hoy v. Taliaferro, 367, 446
Hoyt v. Dimon, 529
Hoyt v. Ketcham, 776
Hoyt v. Tuxbury, 165, 786, 802
Hubbard v. Chappel, 458, 844
Hubbard v. Norton, 306, 322, 380,
410
Hubert v. Grady, 472
Hudgin v. Hudgin, 107, 138, 513
Hudson v. Max M. L, & I. Co., 492,
804
Hudson v. Steare, 300
Hudson v. Swift, 200, 612
Hudson v. Watson, 200, 208
Huff v. Chamberlain, 365
Huff v. Cumberland Val. Land Co.,
365
Huff v. Reilly, 357, 414
Huffman v. Gains, 131
Hughes v. McNider, 459, 537, 813
Hughes v. Parker, 20, 21
Huish's Charity, In re, 715
Hulett v. Hamilton, 650
Hulfish v. O'Brien, 435, 667
Hull v. Hull. 107, 138, 340
Hulse v. White, 391, 416
Hume v. Bentley, 29, 184, 817
Hume v. Dessar, 844
Hume v. Pocock, 29, 249, 724
Humphrey v. Clement, 300, 497, 409
Humphrey v. McClenachan, 410, 860
Humphrey v. Wade, 78
Humphreys v. Hurtt, 555
Humphreys v. Moses, 734
Humpkey v. Norris, 15
Hun v. Bourdon, 191
Hundley v. Tibbitts, 792
Hunt v. Amidon, 358, 381, 451, 676
Hunt v. Marsh, 446
Hunt v. Middlesworth, 383, 463
Hunt v. Moore, 243, 246
Hunt v. Orwig, 381, 389, 405
Hunt v. Rousmaniere, 868, 872, 874
Hunt v. Silk, 191, 697
Hunt v. Smith, 494
Hunt v. Stearns, 808
Hunt v. Weir, 769
Hunter, In re, 20
Hunter v. Bales, 481, 821
Hunter v. Goudy, 201
Hunter v. Graham, 475
Hunter v. Jameson, 155
Hunter v. O'Neill, 34
Hunter v. Watson, 45
Huntley v. Waddell, 337, 342
Huntsman v. Hendricks, 412
Hurd v. Hall, 858, 860
Kurd v. Smith, 444
Hurley v. Brown, 480, 807
Hurley v. Coleman, 458
Hurst v, Litligrow, 382
Hurst v. McNeil, 180
Hurst v. Means, 15, 16, 603, 616,628
Hurt v. Blackstown, 190
Hurt v. McReynolds, 190, 478, 601
Hussey v. Roqueniore, 578
Huston v. Noble, 704
Hutchins v. Brooks, 109
Hutchins v. Carleton, 50
Hutchins v. Moody, 300
Hutchins v. Rountree, 415
Hutchinsou v. A ins worth, 576
Hutchinson v. Crowley, 201
Hutchinson v. McNutt, 480, 797
Hutson v. Furnas, 557, 571
Huyck v. Andrews, 302, 304, 308
Hyatt v. Seeley, 151
Hyde v. Dallaway, 31, 737
Hyde v. Keller, 201, 692, 772
Hyde v. Kelly, 493
Hyde v. Redding, 103
Hyman v. Boston Chair Mfg. Co., 343,
364
Hymes v. Branch, 710, 720, 767
Hymes v. Esty, 304, 306, 310, 413
Hymes v. Van Cleef, 391
Hyne v. Campbell, 762, 766, 860
Hynes v. Oldham, 92
Hynes v. Packard, 409
Hyslip v. French, 695
Ice v. Ball, 657
Ikelheimer v. Chapman, 113
111. Land Co. v. Boomer, 385, 389, 525
Inderlied v. Honeywell, 356
Ingalls v. Cook, 293, 526
Ingalls v. Eaton, 275, 277, 279
Ingalls v. Hsilin. 12, 17, 719
Inge v. Lippingwell, 581
Ingraham v. Grigg, 63, 70
xlvi
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Ingraham v. Ward, 445
Ingram v. Little, 49
Ingram V. Morgan, 245, 833, 839
Inness v, Agnew, 205, 333
Innis v. Willis, 20, 587, G91
Ins. Co. v. Marshall, 650
Irbey v. Wilson, 103
Irick v. Fulton, 8G9
Irvin v. Askew, 214
Irvin v. Blackley, 201, 205, 539
Irvine v. Irvine, 5, 11, 539, 551
Irving v. Browuell, 68
Irving v. Campbell, 721, 728, 763
Isaacs v. Skrainka, 798, 829
Isele v. Arlington Sav. Bank, 302
Ishmael v. Parker, 200
Isler v. Eggers, 619
Ives v. Kimball, 62
Ives v. Niles, 336, 426, 671, 673
Ives v. Pierson, 112
Ivey v. McKennon, 106
J.
Jack v. McKee, 214
Jackson v. Ashtou, 692
Jackson v. Bradford, 534, 547
Jackson v. Brown, 137
Jackson v. Bull, 5, 16, 544
Jackson v. Cory, 45
Jackson v. Conlin, 164
Jackson v. Dermont, 259
Jackson v. Edwards, !)(), 498, 804, 830
Jackson v. Fosbender. 458
Jackson v. Green. 257. 339
Jackson v. Hoffman, 286, 341, 524
524
Jackson v. Hubbell, -183, 544
Jackson v. Knight, 607
Jackson v. Ligon, 187, 195, 800, 813,
817, 827
Jackson v. Littell, 52.'), 544
Jackson v. Marsh, 424
Jackson v. McCauley, 357, 371
Jackson v. McGinniss. 137
Jackson v. Mills, 524
Jackson v. Moncrief, 618
Jackson v. Murray, 544, 732, 769, 813
Jackson v. Norton, 635, 834, 847
Jackson v. Peck, 544
Jackson v. Rosevelt, 128, 129
Jackson v. Sassaman, L80
Jackson v. Schoonmaker, 44
Jackson v. Sellick, 362
Jackson v. Summerville, 523
Jackson v. Turner, 214, 391, 414
Jackson v. Vanderheyden, 541, 542
Jackson v. Waldron, 550
Jackson v. Walsh L. Co., 849
Jackson v. Whitehead, 28, 30
Jackson v. Winslow, 519, 544, 546
Jackson v. Wright, 483
Jacobs v. Locke, 494
Jacobs v. Morrison, 715
Jacocks v. Gillian, 330
Jacoway v. Gault, 64, 71
Jacques v. Vigo Co., 481
James v. Cutler, 566
James v. Hayes, 444, 657
James v. Jenkins, 307, 309
James v. Lamb, 404
James v. Lawrenceburgh Ins. Co., 463
James v. Lichfield, 491, 500
James v. McKennon, 857
James v. Myers, 91, 711, 734, 756
James v. Warehouse Co., 306, 413
James v. Shore, 826
Jandorf v. Patterson, 856
Jaques v. Esler, 453, 468, 640. 838
Jarboe v. McAtee, 744, 754, 797
Jarden v, Lafferty, 436
Jarman v. Davis, 704
Jarrett v. Jarrett, 568
Jarvis v. Aiken, 531
Jasper v. Hamilton, 249, 250
Jayne v. Boisgerard, 138
Jayne v. Brock, 608
Jefferson v. Curry, 129
Jeffery v. Underwood, 50
Jeffries v. Jeffries, 776
Jendvine v. Alcock, 819
Jenkins v. Buttrick, 298
Jenkins v. Fahig, 799, 820
Jenkins v. Hilcs, 816
Jenkins v. Hopkins, 269, 320, 351
Jenkins v. Whitehead, 798
Jenkinson v. Ewing, 478, 648
Jenks v. Quinn, 93, 381
Jenks v. Ward, 298, 300
Jenness v. Parker, 446, 455
Jenness v. Spraker, 588
Jennings v. Brizendine, 556, 560
Jennings v. Jenkins, 78
Jennings v. Jennings, 79
Jerald v, Elley, 326
Jerome v. Scudder, 483, 492, 494
Jervois v. Duke of Northumberland,
706
Jeter v. Glenn, 281, 312, 356, 417,
422, 475
Jett v. Farmers' Bank, 433
Jctt v. Locke, 626
Jewell v. Bannon, 451
Jewell v. Porter, 519
Jewett v. Fisher, 289, 421
John's Estate, 115
Johns v. Frick, 118
Johns v. Hardin, 347, 366, 424, 426
Johns v. Nixon, 475
Johnson's Appeal, 673
Johnson v. Branch, 519, 547
Johnson v. Burnside, 620, 624
Johnson v. Caldwell, 137
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
xlvii
Johnson v. Collins, 202, 291
Johnson v. Dorough, 603
Johnson v. Farlow, 521
Johnson v. Fuller, 484
Johnson v. Gere, 453, 637, 838
Johnson v. Hathorn, 657
Johnson v. Hollensworth, 280, 332
Johnson v. Houghton, 826, 864
Johnson v. Jarrett, 198
Johnson v. Jones, 446, 835, 848
Johnson v. Johnson, 524
Johnson v. Long, 472
Johnson v. McGhee, 62
Johnson v. Monell, 286
Johnson v. Nichols, 289
Johnson v. Nyce, 300, 359
Johnson v. Oppenheim, 353
Johnson v. Pryor, 244
Johnson v. Purvis, 476
Johnson v. Robertson, 137
Johnson v. Smock, 35
Johnson v. Sandhoff, 138
Johnson v. Silsfill, 609
Johnson v. Thweatt, 174
Johnson v. Tool, 38
Johnson v. Walton, 284
Johnson v. Williamson, 646
Johnson v. Wilson, 838
Johnson v. Wygant, 206, 207
Johnston v. Beard. 200, 208, 209
Johnston v. Gallery, 776
Johnston v. Haines, 58
Johnston v. Houghton, 22
Johnston v. Johnston, 206
Johnston v. Markle Paper Co., 284
Johnston v. Mendenhall, 38, 150
Johnston v. Piper, 148, 149
Johnston v. Powell, 472
Johnston v. Scott, 52
Jones v. Bland, 436
Jones v. Blumenstein, 123
Jones v. Coffey, 106
Jones v. Cohen, 655
Jones v. Cohitsett, 265
Jones v. Davis, 291, 293
Jones v. Fulghum, 458, 639
Jones v. Gardner, 1, 35, 49, 300, 778
Jones v. Haff, 731
Jones v. Hanna, 724
Jones v. Jones, 424, 434
Jones v. Keen, 240
Jones v. King, 519
Jones v. Manley, 138
Jones v. Noe, 444
Jones v. Phillips, 36, 148
Jones v. Richmond, 356, 382
Jones v. Robbins, 812
Jones v. Shackelford, 492
Jones v. Shay, 399
Jones v. Smith, 137
Jones v. Stanton, 838
Jones v. Sweet, 576
Jones v. Tarver, 48
Jones v. Taylor, 190, 602, 731, 793,
807, 815
Jones v. Waggoner, 424, 838
Jones v. Warner, 260, 263, 264
Jones v. Warnock, 109
Jones v. Wood, 657
Jopling v. Dooley, 826
Jordan v. Blackniore, 273
Jordan v. Denton, 480
Jordan v. Eve, 305
Jordan v. Poillon, 752, 760
Joslyn v. Schwend, 812
Joslyn v. Taylor, 36
Josselyn v. Edwards, 252
Jourdain v. Jourdaiu, 330
Joyce v. Ryan, 648, 676
Judd v. nandall, 280
Judice v. Kerr, 122
Judson v. Wass, 35, 587, 601, 777
Julian v. Beal, 140
Junk v. Barnard, 213
Juvenal v. Jackson, 671
K.
Kahn v. Mount, 737, 744, 780
Kaiser v. Earhart, 519
Kane v. Fisher, 419
Kane v. Hood, 206
Kane v. Rippey, 594
Kane v. Sanger, 379, 382, 384
Kans. Pae. If. Co. v. Dunmyer, 358,
368, 406
Kares v. Covell, 604
Karker v. Haverly, 204, 774
Katz v. Henig, 13
Katz v. Kaiser, 787, 791
Kauffelt v. Leber, 155, 157
Kauffman v. Walker, 88
Kavanagh v. Kingston. 386
Kearney v. Hogan, 776
Keating v. Guntlier, 195, 828
Keating v. Korfhage, 303
Keating v. Price, 822, 827, 829
Kebler v. Cureton, 477, 6U.1
Keeble v. Bank, 815
Keeler v. Wood, 398, 417, 423
Keep v. Simpson, 815
Keepfer v. Force, 571
Keifer v. Roger, 242
Keim v. Lindley, 4S5, 487
Keim v. Sachs, 789
Keitel v. Zimmerman. 772
Keith v. Silberberg, 72
Keller v. Ashford, 288
Kellogg v. Chapman, 559
Kellogg v. Ingersoll. 306
Kellogg v. Malin, 305, 31S, 322
Kellogg v. Robinson, 301
Kellogg v. Wood, 389, 526
xlviii
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Kellum v. Ins. Co., 260, 299
Kelly v. Allen, 628
Kelly v. Bibb, 490
Kelly v. Bradford, 149
Kelly v. Brower, 828
Kelly v. Calhouu, Gl, 63
Kelly v. Dutch Church, 351, 356, 394,
408, 431
Kelly v. Jenness, 524
Kelly v. Kershaw, 616
Kelly v. Lowe, 318, 372, 469
Kelly v. Price, 410
Kelly v. R. Co., 235
Kelly v. Riley, 681
Kelly v. Solari, 122
Kelly v. Turner, 560
Kelly v. Wiseman, 431
Kelsey v. Crowther, 166, 201
Kelsey v. Remer, 291, 321
Kelso v. Lorillard, 768
Kemp v. Penna. R. Co., 661
Kemp v. Porter, 60
Kemper v. Walker, 802, 822
Kempner v. Cohn, 214
Kempner v. Lumber Co., 340, 392,
410
Kempshall v. Stone, 487
Kendall v. Crawford, 760
Kennedy's Appeal, 674
Kennedy v. Embry, 474
Kennedy v. Gramling, 738
Kennedy v. Johnson, 244
Kennedy v. Koopman, 770, 820
Kennedy v. McCartney, 527
Kennedy v. Newman, 279, 292
Kennedy v. Price 64
Kennedy v. Wool folk, 193
Kennison v. Taylor, 422, 423
Kenniston v. Blakie, 73, 74
Kenny v. Gardner, 602
Kenny v. Hoffman, 148, 251, 783,
787, 806
Kenny v. Norton, 263
Kent v. Allen, 720
Kent v. Cantrall, 281, 326
Kent v. Chalfant, 156
Kent v. Hareourt, 520
Kent v. Watson, 545
Kent v. Welch, 356
Kentucky Dist., &c., Co. v. Warwick
Co., 164
Kercheval v. Triplett, 527
Kern v. Kloke, 357
Kerney v. Gardner, 602
Kerr v. Kitchen, 245, 671, 677
Kerr v. Purdy, 204
Kerr v. Shaw, 365, 371
Kerrigan v. Backus, 775
Kerst v. Ginder, 203
Kester v. Rockel, 820
Ketchum v. George, 116
Ketchum v. Evertson, 150, 579
Ketchum v. Stout, 494
Key v. Hanson, 443, 462, 464
Key v. Jennings, 446, 2:$, 841
Key v. Key, 227
Keyse v. Heydon, 29
Keyse v. Powell, 21
Keyton v. Bradford, 849
Kibler v. Cureton, 836
Kidder v. Bork, 359
Kiefer v. Roger, 233, 245, 249
Kieii v. Stukely, 806
Kilgore v. Pedin, 126
Kilpatrick v. Barron, 721, 767
Kilpatrick v. Stozier, 573
Kimball v. Bell, 598, 811
Kimball v. Blaisdell, 534
Kimball v. Bryant, 266, 412
Kimball v. Grand Lodge, 351, 352
Kimball v. Johnson, 58
Kimball v. Saguin, 371, 602, 687
Kimball v. Schaff, 525
Kimball v. Semple, 59, 6:5, 332, 340,
548
Kimball v. West, 443, 538, 633, 639
Kimball v. Tooke, 707
Kimbrough v. Burton, 122
Kime v. Kirne, 201
Kimmel v. Benna, 545
Kimmel v. Scott, 824
Kincaid v. Britain, 255, 256, 259, 271
Kindley v. Gray, 798
King v. Bressie, 338, 395, 451
King v. Doolittle, 873
King v. Gilson, 211, 537, 538, 540
King v. Gunnison, 109, 674
King v. Jones, 258, 438
King v. Kerr, 320, 334, 370. 384, 391,
410, 414, 429, 431
King v. Kilbride, 288, 366
King v. King, 190
King v. Knapp, 239, 732, 828
King v. Pyle, 225
King v. Rea, 542
King v. Savery, 188
King v. Thompson, 702
King v. Wilson, 822
Kingdon v. Nottle, 258, 2G5, 382
Kingsbury v. Milher, 837, 845
Kingsbury v. Smith, 420
Kingsbury v. Stoltz, 127
Kingston Bank v. Ettinge, 122
Kinney v. Knoebel, 136
Kinney v. McCulloch, 311
Kinney v. Norton, 372
Kinney v. Watts, 391, 408
Kinports v. Rawson, 849, 851
Kinsman v. Loomis, 529, 545
Kintrea v. Preston, 22
Kip v. Hirsh, 761, 787, 788
Kirby v. Estill, 366, 424
TABLE OF CASES.
zlix
[REFERENCES ARE TO PAGES.]
Kirk v. Zell, 558, 569
Kirkendall v. Mitchell, 145, 331
Kirkland v. Little, 206, 726, 727
Kirkland v. Wade, 110, 6C5
Kirkpatrick v. Downing, 214, 229,701
Kirkpatrick v. Pearce, 297, 326
Kirkpatrick v. Miller, 371
Kirkwood v. Lloyd, 737
Kirtland v. Pounsett, 189, 220
Kirtz v. Pet-K, 633
Kley v. Geiger, 292
Klopp v. Moore, 156, 157
Klumpki v. Baker, 519
Knadler v. Sharp, 265, 321
Knapp v. Lee, 36, 446, 461, 609
Knapp v. Marlboro, 431
Knatchbull v. Grueber, 188, 193, 692,
829
Knedler v. Lang, 741, 743
Knepper v. Kurtz, 365
Knight v. Coleman, 473
Knight v. Crockford, 202
Knight v, Maloney, 758
Knight v. Thayer, 531, 542
Knight v. Turner, 443
Knipe v. Palmer, 154, 156
Knowles v. Kennedy, 538
Knowlton v. Amy, 238
Koch v. Hustis, 341
Koepke v. Winterfield, 363
Roger v. Kane, 461, 468, 833, 849
Kohner v. Higgins, 39
Kolher v, Kolher, 82
Kopp v. Kopp, 734
Kornegay v. Everett, 562, 869
Kortz v. Carpenter, 361
Koshland v. Spring, 776
Kostenbader v. Spotts, 69, 731
Kostendader v. Pierce, 305, 323
Kountze v. Hellmuth, 191, 776
Kramer v. Carter, 370, 372, 375, 376
Kramer v. Ricke, 657
Kraemer v> Adelsberger, 720
Krause v. Krause, 20
Kreibich v. Martz, 188, 734
Kreitsch v. Mertz, 810
Krekeler v. Aulbach, 777, 782
Krewson v. Cloud, 248
Kruger v. Adams, 38
Krumm v. Boach. 13, 224, 234, 237
Kuchenbeiser v. Beckert, 107
Kuhn v. Freeman, 354, 824
Kuhner v. Parker, 447, 458
Kuhn's Appeal, 669
Kill I man v. Cox, 717
Kurtz v. Hollingshed, 44
Kutz v. McCune, 302, 304, 307
Kyle v. Fauntelroy, 415, 417, 420
Kyle v. Kavanaugh, 150, 865
Kyle v. Febley, 285, 868
Lacey v. Marman, 273
Lacey v. McMillan, 192
Ladd v. Blunt, 140
Ladd v. Montgomery, 312
Ladd v. Myers, 289
Ladd v. Noyes, 263, 301
Ladd v. Weiskopf, 714, 718, 722
Laderoute v. Chale, 288
Ladue v. Cooper, 310
Ladue, In re, 767
Lafarge v. Matthews, 444, 622
Lafferty v. Milligan, 294
Laidlaw v. Organ, 238
Lake v. Brutton, 241
Lake Erie, etc., R. Co. v. Whitbam,
69
Lallande v. West, 304
Lally v. Holland, 573
Lamb v. Baker, 359
Lamb v. Burbank, 439
Lamb v. Danforth, 259, 350, 375
Lamb v. James, 406, 609, 655
Lamb v. Kami, 547
Lamb v. Smith, 680
Lamb v. Wakefield, 340, 547
Lambden v. Sharp, 55
Lambert v. Kstes, 363, 368 ? 392
Lamerson v. Marvin, 447, 462
Lamkin v. Reese, 81, 114, 556, 865
Lammot v. Bowley, 869
Lamprey v. Whitehead, 736
Lampton v. Usher, 114, 609
Lancaster v. Wilson, 89, 105, 106
Lancoure v. Dupre, 225, 702, 703
Land Co. v. Hill, 633, 839
Land Co. v. North, 357
Landlord v. Dunkton, 115
Landsdowne v. Landsdowne, 869, 871,
874
Landt v. Mayor, 275
Lane v. Bommelman, 93
Lane v. Fury, 370, 374, 423
Lane v. Latimer, 695
Lane v. Patrick, 655
Lane v. Richardson, 291, 315
Lane v. Tidball, 461, 851
Lane v. Woodruff, 385
Lang v. Waring, 118
Lange v. Jones, 493, 849
Langford v. Pitt, 798
Langford v. Selmes, 21
Langlow v. Cox, 165
Langsdale v. Nicklaus, 295
Langton v. Marshall, 65
Lanier v. Foust, 474
Lanier v. Hill, 244, 252, 606, 855, 875
I Lanigan v. Kille, 407, 408
j Lanitz v. King, 191
Lansing v. Quackenbush, 123
I Lansing v. van Alstyne, 358, 369
TABLE OF OASES.
[REFERENCES ABE TO PAGES.]
Lant v. Norria, 332
I>anyon v. Chesney, 495
Large v. McLain, 281
Latham v. Morgan, 841
Lathers v. Keogh, 295, 296
Latimer v. Capay Val. Co,, 192
Latimer v. Wharton, 84
Lattin v. Vail, 447
Lauer v. Lee, 578, 581
Laughnian v. Thompson, 102, 113
Laughery v. McLean, 444, 477
Laurens v. Lucas, 708
Laurenson v. Butler, 495, 502
Lavender v. Lee, 556
Laverty v. Moore, 732
Law v. Grant, 236
Law v. Hyde, 572
Lawless v. Collier, 265, 274, 404, 633,
642
Lawless v. Evans, 274
Lawless v. Mansfield, 506
Lawrence v. Beaubein, 870, 871, 872
Lawrence v. Chase, 214
Lawrence v. Dale, 14, 36, 194
Lawrence v. Montgomery, 311
Lawrence v. Parker, 47
Lawrence v. Simonton, 207
Lawrence v. Sinter, 380, 383
Lawrence v. Taylor, 36, 202, 595
Lawton v. Howe, 404, 860
Leach v. Forney, 497
Leach v. Johnson, 187
Leach v. Leach, 777
Leach v. Pxowley, 610, 726
Leahy v. Hair, 710
Leal v. Terbush, 446, 463, 464
Leary v. Durham, 146, 350, 366, 444
Learned v. Eiley, 62
Leather v. Poulteny, 106, 428, 431
Lebanon Sav. Bank v. Hollenbeck, 575
Leddy v. Enos, 281, 357, 373
Lee v. Clary, 519
Lee v. Dean, 220, 225, 668, 687
Lee v. Foard, 35
Lee v. Gardiner, 138
Lee v. Lee, 752, 767
Lee v. Porter. 508
Lee v. Russell, 211
Leet v. Gratz, 370, 404, 406
Leffingwell v. Elliott, 370, 404, 422,
423
Leffingwell v. Warren, 737
Leflore Co. v. Allen, 524
Lt'ftwich v. Xeal, 67
Leggett v. McCarty, 459, 639, 838
Lcggett v. Mut. Ins. Co., 231
Leiker v. Henson, 493
Leinhardt v. Kalcheim, 776
Leird v. Abernethy, 833, 839
Lejeune v. Barrow, 414
Lejeune v. Herbert, 683
Leland v. Stone, 284, 397
Lemon v. Kogge, 768
Le Moyne v. Quimby, 112
Lenehan v. College, 755
Leonard v. Austin, 450, 468
Leonard v. Bates, 145, 206
Leonard v. Cary, 367
Leonard v. Mills, 567
Leonard v. Pitney, 661, 686
Leonard v. Woodruff, 735
Lerfing v. Seelig, 293
Lerman v. Hubner, 737
Le Roy v. Beard, 154
Lesesne v. Witte, 797
Leslie v. Slusher, 43
Lesley v. Morris, 711, 777, 815
Lessenich v. Sellers, 166, 189
Lessley v. Bowie, 475, 477
Letcher v. Woodson, 213
Lethbridge v. Kirkman, 28, 724
Lethbridge v. Mytton, 282
Lett v. Brown, 615, 622
Levitzky v. Canning, 353, 422
Levy v. Bond, 353
Levy v. Iroquois Bldg. Co., 748
Levy v. Hill, 779, 790
Levy v. Newman, 757
Levy v. Riley, 113, 138
Lewis v. Baird, 517
Lewis v. Bibb, 276
Lewis v. Bond, 30
Lewis v. Boskins, 506
Lewis v, Braithwaite, 21
Lewis v. Cook, 380, 382
Lewis v. Coxe, 769, 777
Lewis v. Davis, 443
Lewis v. Day, 38
Lewis v. Gale, 487
Lewis v. Herndon, 739
Lewis v. Jones, 250
Lewis v. Lee, 214
Lewis v. Lewis, 359, 572
Lewis v. McMillen, 464, 581, 593, 609.
616, 626
Lewis v. Morton, 445, 638, 645
Lewis v. Ridge, 263
Lewis v. Ross, 401
Lewis v. West, 450
Lewis v. White, 18, 39, 580, 591, 690
Ley v. Huber, 807
Libby v. Hutchinson, 377
Liber v. Parson, 399
Liddell v, Sims, 691
Life Association v. Siddall, 187
Lighty v. Shorb, 670, 672
Lillard v. Ruckers, 45
j^inderman v. Berg, 426
Lindley v. Dakin, 260, 299
Lindley v. Lukin, 224
Lindsay v. Eastwood, 294
Linkous v. Cooper, 757
TABLE OF CASES.
II
[CEFEBEXCI8 AEE TO PAGES.]
Linn v. Barkey, 145
Linn v. McLean, 732, 817
Linsey v. Ferguson, 622
Linsey v. Ramsey, 519
Linton v. Allen, 35, 288, 523, 610
Linton v. Hichborn, 781
Linton v. Porter, 112
Lister v. Batson, 213
j^ippincott v. Wikoff, 714
Little v. Allen, 331, 863
Little v. Dodge, 67
Little v. Paddleford, 595
Littlefield v. Getchell, 380
Littlefield v. Tinsley, 190, 602. 698,
703, 718. 731. 759
^ively v. Rice, 288
Livingston Bank v. Sailing, 286
Livingston v. Iron Works, 259
Livingston v. McDonald, 59
Livingston v. Short, 847
Lloyd v. Farrell, 150, 666, 684
Lloyd v. Griffiths, 147
Lioyd v. Jewell, 36, 461
Lloyd v. Kirkwood, 107
Lloyd v. Quimby, 152, 291, 31.3, 3S5,
399, 405
Lloyd v. Sandusky, 392, 403, 409
Locke v. Furze, 212, 408
Locke v. Hale, 298
Locke v. White, 545, 548
Lockhart v. Smith, 721
Lockman v. Reilly, 723. 759
Lockridge v. Foster, 194, 239, 68G
Lockwood v. Gilson, 155, 157
Lockwood v. Hannibal & St. J. R. Co.,
206, 815
Lockwood v. Sturtevant, 152, 25G, 257,
263, 385
Logan v. Bull, 744, 807
Logan v. Moore, 519, 521
Logan v. Neill, 519
Logan v. Steele, 519
Logansport v. Case, 132
Logue v. Atkinson, 525
Loiseau v. Threlstad, 410
London Bridge Acts, 154
Long v. Brown, 556, 865
Long v. Crews, 58, 62
Long v. Hartwell, 641
Long v. Howard, 424
Long v. Israel, 468, 639, 849
Long v. filler, 484
Long v. Moler, 284, 291. 295
Long v. Saunders, 615
Long v. Wheeler, 417, 423
Long v. Waring, SO
Long v. wellcr, 78
Longworth v. Taylor. 711
Loomis v. Bedell, 340. 363. 367, 370.
404, 422
Loomis v. Pingree, 546, 550
Loomis v. Wadhams, 214
Looney v. Reeves, 394, 397, 398
Loos, In re, 130
Lord v. Stephens, 726
Lot v. Thomas, 256, 259, 263, 526
Lothrop v. Snell, 356, 446
London v. Robertson, 110
Lougher v. Williams, 350
Loughran v. Ross, 260
Louisville, etc., R. Co. v. Stone Co.,
692
Lounsbery v. Locander, 35, 14t>, 492,
495
Lounsbery v. Snyder, 353
Lourance v. Robertson, 392, 304, 401
Love v. Berry, 112
Love v. Camp, 482, 500
Love v. Cobb, 482
Love v. Powell, 127
Lovelace v. Harrington, 843
Loveridge v. Coles, 612
Lovett v. Saw Mill Assn., 61
Lovingston v. Snort, 638, 69(5
Lowdermilk v. Corpenning, 130
Lowe v. Allen, 574
Lowe v. Lush, 707, 730
Lowell v. Daniels, 541
Lowndes v. Chishohn, 870
Lowery v. Nicols, 811
Lowery v. Yawn, 363
Lowery v. Tilleny, 258, 263, 266
Lowry v. Brown, 653
'Lowry v. Cox, 222
Lowry v. Hurd, 633
Lowry v. Muldrow, 767
Lowther v. Com'th, 391
Loyd v. Malone, 106
Lucas v. Chapeze, 607
Lucas v. Scott, 497, 500
Lucas v. Wilcox, 410
Luchetti v. Frost, 201
Luckett v. Triplett, 837, 847
Luckett v. Williamson, 35, 492, 743,
798, 819
Luckie v. McGlusson, 248, 252
Lucy v. Lexington, 257, 263
Ludlovv v. Gilman, 458
Ludlow v. O'Xeil, 764
Ludlow v. Van Jvess, 772
Ludwell v. Newman, 360
Ludwick v. Huntzinger, 657, 668, 670
Lukens v. Jones. 671
Lukens v. Nicolson. 433
Lull v. Stone, 34, 36, 38
Lundgren v. Kerkow, 367
Lunsford v. Turner, 371
Lurman v. Hubnor, 737
Luse v. Dietz. 807. 808
Lutweller v. Linnell, 208
Lutz v. Compton, 814
Lydall v. Weston, 169, 707, 713
lii
TABLE OF CASES.
[HEFEKEXCES ABE TO PAGES.]
Lyle v. Earl of Yarborough, 816
Lyles v. Kirkpatrick, 738, 797
layman v. Gedney, 747
Lyman v. Stroudburgh, 734
Lynch v. Baxter, 109, 117, 695
Lynch, Ex parte, 422
Lynch v. Livingston, 58
Lynch v. Merc. Trust Co., 13
Lyon v. Anable, 681
Lyon v. Day, 598
Lyon v. Karn, 46
Lyon v. McCurdy, 115
Lyon v. O'Kell, 598
Lyon v. Richmond, 868, 874
Lyons v. Fitzpatrick, 648
Lyons v. Pyatt, 578, 810
Lysney v. Selby, 686
M.
Mabie v. Matteson, 155
Maccaw v. Crawley, 738
Mack v. Patchin, 210, 213, 407
Mackey v. Ames, 501, 802. 812
Mackey v. Collins, 356, 475
Mackey v. Harmon, 303, 322
Madden v. Leak, 853
Madely v. Booth, 28
Maeder v. Carondelet, 343. 433
Magaw v. Lathrop, 190, 804
Magee v. Hallett, 543
Magee v. McMillan, 203, 62S. S38, 848
Maginess v. Fallon, 194, 715, 737
Maguire v. Marks, 124, 140
Maguire v. Riggin, 265
Mahoney v. Allen, 83, 786
Mahony v. Robbins, 444
Main, Sir Anthony's Case, 203
Major v. Dunnavant, 410
Majors v. Brush, 602, 648, 676
Malins v. Freeman, 31
Mallard v. Allred, 603
Maltby v. Thews, 706
Manahan v. Smith, 398
Mandigo v. Conway, 311
Maner v. Washington, 477, 639, 676
Maney v. Porter, 249
Manifee v. Morrison, 156
Manitoba Fish Co. v. Booth, 18
Mann v. Matthews, 425, 427
Mann v. Young, 519
Manser v. Buck, 28, 31
Manson v. Brimfield Manf'g Co., 831
Manf'g. Co. v. Zellner, 341
Marbury v. Thornton, 356
Marcus v, Clark, 195
Mardes v. Myers, 46
Margraf v. Muir, 228, 488
Maris v. lies, 285
Markham v. Todd, 607
Markland v. Crump, 383
Markley v. Swartzlander, 73
Marks v. Halligan, 768
Marlin v. Willink, 618
Marple v. Scott, 298
Marsh v. Fish, 281
Marsh v. Sheriff, 252, 538
Marsh v. Thompson, 444
Marsh v. Wyckoff, 799
Marshall v. Oilman, 195
Marshall v. Caldwell, 492
Marshall v. Haney, 213
Marshall v. Hopkins, 464
Marshall v. Weininger, 776
Marston v. Bradshaw, 69
Marston v. Hobbs, 256, 262. 270, 275,
279, 325
Martin v. Anderson, 702
Martin v. Atkinson, 224, :573, 507
Martin v. Baker, 265
Martin v. Chambers, 615
Martin v. Colby, 498
Martin v. Cotter, 713, 737
Martin v. Cowes, 425
Martin v. Dollar, 571
Martin v. D welly, 66, 541. 576, 655
Martin v. Foreman, 470
Martin v. Gordon, 387, 402
Martin v. Hamlin, 761
Martin v. Hammon, 275
Martin v. Long, 271, 392
Martin v. Martin, 358
Martin v, McCormick, 859. 860
Martin v. Merritt, 228, 497
Martin v. Nixon, 563, 573
Martin v. Porter, 755, 758
Martin v. Wharton, 455
Marvin v. Applegate, 633. 695
Marvin v. Bennett, 864
Maryland v. Const. Co. v. Kuper, 793,
798
Mason v. Bovet, 14
Mason v. Brock, 66, 69, 70
Mason v. Caldwell, 156
Mason v. Cooksey, 363, 435
Mason v. Ham, 157
Mason v. Kellogg, 367, 429
Mason v. Lawing, 703
Mason v. Moulder, 576
Mason v. Swan, 702
Mason v. Wait, 112
Massey, Succession of, 117
Massie v. Craine, 260
Massie v. Sebastian, 542. 847
Masson v. Bovet, 194, 695, 697
Mastin v. Halley, 74, 563
Matheny v. Stewart, 417. 422
Mather "v. Corliss, 336
Mather v. Leman, 755
Mather v. Tremty. 362
Matney v. Rat! iff, 773
Matta v. Henderson, 695
TABLE OF CASES.
liii
[REFERENCES ABE TO PAGES.]
Matteson v. Vaughn, 303, 367, 387,
636
Matthews v. Crowder, 839
Matthews v. Lightner, 722, 724
Mattock v. Kinglake, 200
Matthison v. Wilson, 204
Maule v. Ashmead, 354
Mawson v. Fletcher, 491, 503
Maxfield v, Bierbauer, 238, 602
Maxwell v. Gregory, 587
Maxwell v. Wilson, 337
May v. Adams, 570
May v. Arnold, 531
May v. Ivie, 473
May v. McKeenon, 59
May v. Wright, 391, 395
Mayer v. Adrian, 196
Mayes v. Blanton, 587
Maynard v. Moseley, 649
Mayo v. Babcock, 326
Mayo v. Purcell, 195
Mayor v. Baggatt, 343
Mayor v. Bulkley, 54
Mayor v. Mabie, 343, 352, 375
Mays v. Swope, 813
McAbee v. Cribbs, 287
McAleer v. McMullen, 575
McAllister v. Harmon, 740, 748, 804,
811
McAllister v. Landers, 408
McAlpine v. Reichenecker. 164, 588
MAlpin v. Woodruff, 392, 400, 408,
421
McAninch v. Laughlin, 868
Me Arthur v. Oliver, 551
McBride v. Greenwood, 545
McCabe v. Kenny, 740
McCaffrey v. Little, 80, 712, 713
McCahill v. Hamilton, 752, 788
McCall v. Wilkes, 335
McCann v. Edwards, 73S, 753, 763,
810, 813
McCartney v. King, 80, 123
McCarty v. Leggett, 262, 264, 315,
537
McCasland v. Life Ins. Co., 571, 562
McCasky v. Graff, 141
McCauley v, Moore, 189
McUaugherty v. Bennett, 360, 377,
379, 388
McClennan v. Prentice, 276, 635, 640
McClerkin v. Sutton, 273
McClure v. Campbell, 284. 295
McClure v. Gamble, 379, 391
McClure v. McClure. 269, 392
McClure v. Raben, 547
McConaughey v. Bennett, 360, 377.
379, 388
McComb v. Wright, 746, 816. 818
McConihe v. Fales, 637
McConnell v. Downs, 370
McConnell v. Dunlop, 225, 492
McConnell v. Little, 443
McConnell v. Smith, 109
McCool v. Jacobus, 36, 600
McCord v. Massey, 300, 509
McCorkle v. Rhea, 115
McCoy v. Bayley, 564
McCoy v. Lord, 373
McCracken v. Flanagan, 95
McCracken v. San Francisco, 188, 62S
McCracken v. Wright, 544
McCrady v. Brisbane, 265
MeCrath v. Myers, 459
McCraven v. McGuire, 60, 69
McCrillis v. Thomas, 368, 369
McCroskey v. Ladd, 166, 741
McCulloch v. Gregory, 715
McCullogh v. Boyd, 610
McCullogh v. Estis, 91
McCullough v. Cox, 464
McCusker v. McEvoy, 531
McDaniel v. Bryan, 633
McDaniel v. Evans, 184
McDaniel v. Grace, 443, 462, 464, 407
McDaniels v. Flower Brook Mfg. Co.,
49, 61
McDermott v. McDermott, 746, 772
McDill v. Gunn, 285
McDonald v. Bach, 789, 808
McDonald v. Beall, 233, 650
McDonald v. Green, 446, 638, 848
McDonald v. Hanson, 134
McDonald v. Morgan, 46
McDonald v. Vaughan, 440. 695
McDonnell v. Milholland, 561
McDonough v. Cross, 137
McDonough v. Martin, 342
McDougal v. Dixon, 770
McDowell v. Hunter, 365
McDowell v. McKesson, 194, 578
McDowell v. Milroy, 318, 471
McDunn v. Des Moines, 633, 840
McElya v. Hill, 815, 839, 845
McFadden v. Rogers, 571
McFerran v. Taylor, 488
McGary v. Hastings, 358, 363, 30S.
370, 373, 404
McGavock v. Bell, 79
McGarrahan v. Mining Co., 174
McGee v. Carrico, 698
McGee v. Wains, 138
McGhee v. Ellis, 126, 140
McGhee v. Jones, 444, 603. 638. 839
McGinnis v. Noble, 510, 512, 668
McGlynn v. Maynz, 776
McGoodwin v. Stephenson, 385
McGoon v. Scales, 90
McGowan v. Bailey, 061
McGowan v. Meyers, 302, 308
McGown v. Wilkins. 83, 88
AlcGrane v. Kennedy, 711
liv
TABLE OF CASES.
[ REFERENCES ABE TO PAGES.]
.ucGrew v. Harmon, 413
MeGuckin v. Milbank, 315, 317
McGuffey v. Humes, 391, 396, 414.
417
McGuire v. Bowman, 739
McGuire v. Jtly, 127
McHany v. Schenck, 137
McHenry v. Yokum, 463. 466
Melndoe v. Morman, 625, 698, 797
Mclnerny v. Beck, 45
Mclnnis v. Lyman, 351, 363, 535, 536
Mclntosh v. Smith, 122
Mclntyre v. Long, 650
Mclver v. Walker, 52
McKay v. Carrington, 698. 798, 804
McKee v. Bain, 404, 417, 423
McKee v. Brandon, 214
McKeen v. Beaupland, 620, 695
McKennan v. Doughman, 284, 292
McHenry v. Settles, 50
McKinney v. Jones, 798
McKinney v. Watts, 224, 826
...c-Kinzie v. Stafford, 61
McKleroy v. Tulare, 145
McKoy v. Chiles, 60S
McLain v. Coulter, 511
McLane v. Allison, 341
McLarin v. Irvin, 625, 699, 741
McLaughlin v. Daniel. 513
McLaughlin v. McDaniel. 140
McLaughlin v. Miller, 295, 296
McLaurin v. McLaurin, 106
McLaurin v. Parker, 605
McLean v. Connerton. 472
McLean v. Webster, 372
McLeery v. McLeery, 552
McLemore v. Mabson, 244, 443, 628,
843, 848
McLennan v. Prentice. 274, 362, 538,
856
McLeod v. Barnum, 458
McLeod v. Skiles, 284
McLeod v. Snyder, 206
AlcLogan v. Brown, 127
McLowry v. Croghan, 213, 343
McMahon v. Stewart, 286
McManus v. Blackmar, 37, 38
McManus v. Cook, 698
McManus v. Keith, 80
McMath v. Johnson, 611
McMichael v. Russell. 318, 319
McMillan v. Reeves, 117
McMullan v. Butler Co., 360, 363
McMullin v. Wooley, 302, 376
McMurray v. Fletcher. 46
McMurray v. Spicer, 193, 813
McMurray v. St. Louis Oil Co., 868
McNair v. Compton, 214
McNally v. Haynes, 116
McNamara v. Artnur, 19
McNamara v. Pengilly, 47, 201
McXeal v. Calkins. 650
McXear v. McCoinber, 340, 414
McXeill v. Fuller, 738, 799
McXew v. Walker, 448
McPherson v. Schade, 728. 789, 828
McPherson v. Smith, 716. 736
McPike v. Heaton, 295, 311
McQueen v. Choteau, 487
McQueen v. Farquhar, 715. 822
McQueen v. State Bank. 613
McRea v. Purmort, 402
McTucker v. Taggart, 5C8
McWhirter v. Swaffer, 448. 538, 640
McWilliams v. Jenkins, G25
McWilliams v. Long, 205
McWilliams v. Xisley, 519
Mead v. Altgeld, 710, 759, 764
Mead v. Fox, 35, 166, 858
Mead v. Johnson, 150, 155, 858
Mead v. Martens. 708, 779
Mead v. Stack-pole, 360
Meade v. Brown. 338, 377
Meade v. Jones, 338
Meadows v. Hopkins, 506
Meadows v. Meadows, 115
Means v. Brickell, 82, 477
Meason v. Kaine, 211, 225
Mech. Bank v. Cleland, 821
Mich. Sav. & B. L. Assn. v. O'Connor.
79
Mecklem v. Blake, 265, 277, 635
Medina v. Stoughton, 650
Medlar v. Hiatt. 302, 308, 320
Medlicot v. O'Donel. 191
Meek v. Sprachn, 856
Meeks v. Bowennan, 352
Meeks v. Garner. 235, 729, S05
Melick v. Cross, 302, 492, 776
Mellen v. Boarman. 113, 12.">, 155
Mellon v. Webster, 39
Mellon's Appeal, 510, 512, 668
Melton v. Coffelt, 205
Melton v. Smitn, 487
Memmert v. McKeen, 257, 307, 308
Menard v. Massey, 543
Menifee v. Marye, 96, 99. 507
Merc. Trust Co* v. So. Park Res. Co.,
96, 255. 271, 418, 422. 42.1
Merchants' Bank v. Harrison, 59
Merchants' Bank v. Thompson, 767,
805
Merges v. Ringler, 81, 789, 790, 822
Merriam v. Rauen, 132
Merrill v. Merrill. 204
Merrill v. Montgomery, 01
Merrill v. Suing, 356," 433
Merriman v. Xorman, 238, 839
Merritt v. Byers, 523
Merritt v. Gonley, 633
Merritt v. Harris, 545
Merritt v. Hunt, 155, 646, 846
TABLE OF CASES.
Iv
[BEFEBE.VCE8 ABE TO PAGES.]
Merritt v. Morse, 422, 426
Merritt v. Yates, 72
Mervin v. Vanlier, 87, 118
Mervin v. Smith, 107
Meservy v. Snell, 422
Meshew v. Southworth, 804
Meaaer v. Oestrich, 200, 333, 409,
414
Mesick v. Sunderland, 170, 171
Metcalf v. Dallam, 813
M. E. Church v. Robinson, 770
M. E. Church Home v. Thompson,
718, 720
Methvin v. Bixley, 118, llf)
Mette v. Dow, 401, 415, 417 .
Meyer v. Boyd, 737, 764
Meyer v. Madreperla, 74G
Meyers v. Markhain, 481
Mhoon v. Wilkinson, 208
Michael v. Michael, 566
Michael v. Mills, 633
Michel v. Tinsley, 563, 568
Mickel v. Hicks, 116
Middlebury College v. Cheney, ,">02,
529, 538
Middlokauff v. Barick, 446, 6.'5S, 050,
861
Middlemore v. Goodale, 380
Middleton v. Findla, 46, 764
Middleton v. Selby, 816, 818
Middleton v. Thompson, 424, 420,
430
Midgott v. Brooks, 331, 332
Mid Great West. R. Co. v, Johnson,
874
Miesell v. Ins. Co., 727
Miles v. Furnace Co., 488
Milkman v. Ordway, 489
Miller v. Argyle, 461, 851
Miller v. Duncan, 122
Miller v. Avery, 366, 447, 451, 637,
838, 848
Miller v. Bayless, 341
Miller v. Bentley, 337
Miller v. Cramer, 738, 741
Miller v. Ewing, 332, 551
Miller v. Feezor, 87
Miller v. Finn, 118
Miller v. Fraley, 653
Miller v. Halsey, 405
Miller v. Lamar, 446
Miller v. Long, 445, 603, 638
Miller v. Macomb, 731, 768
Miller v. Miller, 839
Miller v. Owens, 604, 847
Miller v. Parsons, 440
Miller v. Rhuman, 568
Miller v. Watson, 676
Miller v. Weinstein, 716
Milligan v. Cooke, 831
Millinger v. Daly, 73
Million v. Riley, 121
Mills v. Abraham, 447
Mills v. Bell, 391, 399
Mills v. Catlin, 255, 299, 324, 326,
340
Mills v. Herndon, 117
Mills v. Lockwood, 569, 570
Mills v. Rice, 433
Mills v. Saunders, 446, 470
Mills v. Seminary, 572
Mills v. Traylor, 473
Mills v. Van Voorhis, 195
Milmoe v. Furnace Co., 501
Milot v. Reed, 281, 292
Milward v. Earl of Thanet, 811
Mincey v. Foster, 793
Miner v. Beekman, 138
Miner v. Clark, 429
Miner v. Hilton, 47, 790
Minor v. Edwards, 190
Minor v. Natchez, 127
Mischke v. Baughn, 401, 413
Missouri Schnelle Lumber Co. v. Bar-
low, 257
Miss. R. Logging Co. v. Whelihan,
331
Missouri K. & T. R. Co. v. Pratt,
587, 598
Missouri Val. Land Co. v. Bushnell,
769
Mitchell v. Allen, 798
Mitchell v. Barry, 506
Mitchell v. Christopher, 650
Mitchell v. De Roche, 618
Mitchell v. Dibble, 470
Mitchell v, Hazen, 155, 271, 399, 416
Mitchell v. Kintzer, 105
Mitchell v. Mitchell, 576
Mitchell v. McMullen, 111, 446, 838
Mitchell v. Pinckney, 78, 82', 87, 157,
189
Mitchell v. Petty,' 519
Mitchell v. Pillsbury, 292, 297, 326
Mitchell v. Sherman, 608
Mitchell v. Stanley, 322
Mitchell v. Stinemitz, 706, 710
Mitchell v. Vaughan, 356
Mitchell v. Warner, 263, 302, 334,
377
Mitchell v. Woodson, 483, 545
Mitchell v. Zimmerman, 683
Mitchener v. Holmes, 758, 764
Mix v. Beach, 485
Moak v. Bryant, 73, 74
Moak v. Johnson, 408, 409
Mobile Co. v. Kimball, 488
Mobley v. Keys, 35, 589, 603
Mock v. Chalstrom, 798
Moggridge v. Jones, 455, 462, 609
Mohr v. Maniere, 117
Mohr v. Parmelee, 303, 320, 323, 409
Ivi
TABLE OF CASES.
[DEFERENCES ARE TO PAGES.]
Mohr v. Tulip, 117
Moliter v. Sheldon, 375
Molloy v. Egan. 812
Molloy v. Sterne, 28, 724
Monagan v. Small, 708, 767
Alonarque \v. Monarque, 757
Monell v. Colden, 661, 687
Monell v. Donglan, 289
Monroe v. Skelton, 566
Monson v. Stevens, 206, 611, 792
Monte v. Allegre, The, 118
Montgomery v. North Pac. R. Co.,
404, 406
Montgomery v. Pac. L. Co. Bureau,
710, 7il
Montgomery v. Reed, 259, 271, 276,
279
Moody v. Leavitt, 422
Moody v. Spokane R. Co., 36
Mooney v. Burchard, 370
Moore v. Allen, 125, 140
Moore v. Appleby, 38, 708, 720, 759
Moore v. Baker, 519
Moore v. Buckham, 73
Moore v. Cooke, 608, 841
Moore v. Ellsworth, 463, 835
Moore v. Frankenfield, 401
Moore v. Hazelwood, 866
Moore v. Hill, 605
Moore v. Hunter, 174
Moore v. Johnston, 260, 337
Moore v. Lanham, 356
Moore v. MeKie, 402
Moore v. Merrill, 263, 387
Moore v. Munn, 559, 567
Moore v. Neil, 109
Moore v. Rake. 519, 529
Moore v. Taylor, 772
Moore v. Vance, 59
Moore v. Vail, 356, 360, 362, 367
368
Moore v. Vogel, 473"
Moore v. Weber, 353, 437
Moore v. Williams, 708, 718 720
728, 736, 781
Moore v. Wingate, 563
Moot v. Bus. M. Asso., 167, 726, 752
793
Morange v. Morris, 15, 36, 204, 794,
812
More v. Smedburgh, 184, 186, 616,
695, 792, 794
Moredock v. W T illiams, 608, 841
Morehouse v. Heath, 286
Moreland v. Atchinson, 239, 683, 859,
873, 875
Moreland v. Metz, 323, 391, 414
Morenhout v. Barron, 402
Morgan's Appeal, 116
Morgan v. Boone, 506
Morgan v. Bouse, 120
Morgan v. Brast, 827
Morgan v. Famed, 115
Morgan v. Giendy, 852
Morgan v. Han. & St. J. R, Co., 36.3,
367, 373
Morgan v. Morgan, 492, 692, 716,
721
Morgan v. Muldoon, 424
Morgan v. Ramsey, 129
Morgan v. Scott, 787, 798
Morgan v. Shaw, 818
Morgan v. Smith, 34, 73, 302, 308,
326, 469
Morgan v. Stearns, 73
Morley v. Cook, 25
Morris v. Balkham, 129
Morris v. Coleman, 804
Morris v. Gentry, 106
Morris v. Goodwin, 793
Morris v. Ham, 443
Morris v. Kearsley, 28
Morris v, McMullen, 738, 747, 847
Morris v. McNull, 797
Morris v. Mowatt, 88, 731
Morris v. Phelps, 260, 410, 412, 538
Morris v. Rowan, 415, 417, 422, 420
Morris v. Terrell, 173
Morris v. Whitcher, 452
Morrison v. Arnold, 715
Morrison v. Beckwith, 838, 841, 847
Morrison v. Brand, 788
Morrison v. Collier, 557, 567
Morrison v. Caldwell, 652
Morrison v. Faulkner, 74
Morrison v. Lods, 235
Morrison v. McArthur, 258
Morrison v. Morrison, 339
Morrison v. Underwood, 537
Morrison v. Waggy, 732
Morrison v. Whitesides, 545
Morrison v. Wilson, 332. 545
Morrow v. Rees, 622, 680
Morrow v. Wessell, 83
Morse v. Elmendorf, 487, 492, 864
Morse v. Royal, 187, 191
Morse v. Shattuck, 402
Mortlock v. Butler, 491, 495. 692
Morton v. Ridgeway, 414. 698, 702,
703
Morton v. Willborn, 137
Moseley v. Hunter, 281, 289. 318
Moser v. Cochran, 707. 710. 749, 772
Moses v. McFerlan, 122, 653
Moses v. Wallace, 492, 494
Moskowitz v. Homberger, 771
Moss v. Davidson, 477, 703, 798
Moss v. Hanson. 672. 805
Mott v. Ackerman, 815
Mott v. Mott. 738, 767, 826
Mott v. Palmer, 259
Moulton v. Chaffee, 20
TABLE OF CASES.
Ivii
[REFERENCES ARK TO PAGES.]
Moulton v. Edmonds, 161
Mover v. Shoemaker, 034, 070
Mudd v. Green. 633
Muir v. Berkshire, 136, 137
Muir v. Craig, 140
Muller v. Palmer, 811
Mailings v. Trinder, 712
Mullin v. Atherton, 127
Mullin v. Boggs, 60
Mullins v. Aikin, 728, 762, 765
Mullins v. Bloomer, 613
Mullins v. Jones, 239, 605
Mullins v. Porter, 755
Mullreed v. Clark, 865
Mumford v. Pearce, 506, 756, 758
Munday v. Vail, 94, 97
Munro v. Long, 476, 477
Munroe v. Pritchett, 235, 251, 252,
253
Murdock v. Gilchrist, 452
Murphin v. Scoville, 20, 35
Murphree v. Dogan, 507
Murphy v. Jones, 444
Murphy v. Lockwood, 143, 145
Murphy v. Price. 157, 360
Murphy v. Richardson, 598, 668, 671
Murray v. Ellis, 668, 710, 718, 735
Murray v. Hanvay, 718, 720, 728,
731
Murray v. Palmer, 701
Murray v. Sells, 565
Murrell v. Goodyear, 506, 798
Muskingum Val. T'pike v. Ward, 45
Myers v. De Meier, 800. 802
Mvers v. Broadbeck, 323
Myers v. Markham, 47
Mygatt v. Coe, 262, 311, 38S
N.
Nabours v, Cocke, 859
Naglee v. Ingersoll, 434
Napier v. Elam, 244, 245
Nash v. Ash ton, 440
Nash v. Palmer, 351, 353
Nash v. Spofford, 542
Nathan v. Morris, 776
Nathans v. Steinmayer, 460
Nat. Fire Ins. Co. v. McKay, 455
Naylor v. Winch, 869, 871
Nebe, In re, 70
Needham v. Salt Lake City. 116
Neel v. Carson, 137
Neel v. Hughes, 49
Neel v. Prickett, 602, 604
Neeson v. Bray, 341
Negley v. Lindsay, 194, 614
Neher v. Brunckman, 789
Nelms v. Prewitt, 455, 836
Nelson v. Jacobs, 738
Nelson v. Hamilton Co., 683
Nelson v. Matthews, 20, 399
Nelson v. Harwood, 514
Nelson v. Owen, 842
Nelson v. Russell, 767
Nelthorp v. Howgate, 500
Nerhooth v. Althotise, 553
Nesbit v. Brown, 387, 394
Nesbit v. Campbell, 469
Nesbit v. Nesbit, 387
Nesbit v. Miller, 203
Newark Sav. Inst. v. Jones, 20, 21,
146, 196
New Barb. Bridge Co. v. Vreeland, 20
Newberry v. French, 36, 626, 731
Newberry v. Ruftin, 4
Newbold v. Peabody Heights, 196,
308. 452
New Brunswick R. Co. v. Conybeare.
236
Newcomb v. Bracket, 15
Newcomb v. Presbrey, 332
Newcomber v. Brooks, 107
Newell v. Turner, 193
Newman v. Samuels, 64
Newnan v. Maclin. 625, 759, 827
Newsom v. Davis, 764
Newsom v. Graham, 464
Newsom v. Harris, 214
Newsom v. Thompson, 45
Newton v. Foster. 456
N. Y. Life Ins. Co. v. Gilhooly. 728
N. Y. Life Ins. Co. v. Lord, 787
N. Y. Sec. & Tr. Co. v. Schomberj;,
759
N. Y. Steam Co. v. Stern, 742
Neyland v. Neyland. 473
Nichol v. Nichol, 199
Nicholas v. Jones, 156
Nichols v. Alexander, 535
Nichols v. Corbett, 29
Nichols v. Dissler, 130
Nichols v. Freeman, 215
Nichols v. Walters, 271, 272, 307
Nicholson v. Caress, 560. 563
Nicholson v. Condon, 715
Nicholson v. Sherard, 508
Nicholson v. Wadsworth, 483, 615,
694
Nickles v. Hastings, 121
Nicol v. Nicol, 244
Nicoll v. Carr, 622, 695, 707, 7^0 r
783
Nicoll v. Mason, 568
Nieto v. Carpenter, 543
Niles v. Harmon, 648
Nind v. Marshall, 339
Nixon v. Carco, 550
Nixon v. Hyserott, 155
Nodine v. Greenfield. 750. S04
Noell v. Gill. 557
Noke v. Awder, 386, 388
Nokes v. Lord Kilmorey, 813
Iviii
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Nolan v. Felton, 404
Noojin v. Carson, 626
Noonan v. Illsley, 535, 538, 634
Noonan v. Lee, 361, 443, 637, 649
Norgren v. Edson, 130
Norman v. Norman, 121 865, 867
Norris v. Evans, 472
Norris v. Kipp, 237, 434, 435
N. Pac. R. Co. v. Montgomery, 356,
357, 417
North ridge v. Moore, 220, 224
Norton v. Babcook, 291, 321, 405
Norton v. Colgrove, 315
Norton v. Herron, 156
Norton v. Jackson, 443, 471
Norton v. Marten, 873
Norton v. Neb. L. & Tr. Co., 86, 87
Norton v. Young, 697
Nosier v. Hunt, 273, 445
Nott v. Ricard, 29
Nouaille v. Flight, 30, 724, 825
Nowler v. Coit, 138
Nowlin v. Pyne, 561, 563
Noyes v. Johnson, 24, 740, 741
Noyes v. Phillips, 231
Nugent v. Priebatsch, 574
Nungesser v. Hart, 295
Nunnally v. White, 377, 521
Nutting v. Herbert, 271, 391, 402,
403
Nyce v. Obertz, 300, 321
0.
Cakes v. Buckley, 17, 207
Oakey v. Drummond, 446
O'Bannon v. Paremour, 519
O'Beirne v. Buller, 488
Obernyce v. Obertz, 831
Oberthier v. Stroud, 119, 120
O'Connell v. Duke, 337, 866
O'Connor v. Hudgins, 739, 744
O'Ferrall v. Simplot, 72
Officer v. Murphy, 695, 697, 700
Ogburn v. Whitlow, 474
Ogden v. Ball, 273. 274, 363, 412
Ogden v. Yoder, 853
Ogilvie v. Hall, 353
Ohio & Miss. R. Co. \. McCarthy,
694
Ohling v. Luitjens, 630, 638, 678,
855
O'Kane v. Kiser, 774
O'Kelly v. GhoLston, 137
Oldfield v. Stevonson. 444, 459, 844
Oliver v. Bush. 334, 356
Oliver v. Dix, 807
Oliver v. Hallam, 819
Oliver v. Love, 270
Oliver Min. Co. v. Clark, 653
Oliver v. Piatt, 653
O'Meara v. McDaniel, 273
Omerod v. Hardman, 817
O'Neill v. Douthett, 598, 788
O'Neill v. Vanderberg, 542
O'Neill v. Van Tassell, 303, 779
Onions v. Tyrer, 871
Ontario Bank v. Lansing, 121. 123
O'Reilly v. King, 709, 718, 724, 757
Orendorff v. Tallman, 687, 857
Ormsby v. Terry, 79, 81
Orme v. Boughton, 14, 258
Ormsby v. Graham, 480. 482
Osbaldiston v. Askew, 730, 732, 733
Osborn v. Dodd, 615, 695
Osborne v. Atkins, 311, 313
Osborne v. Breman, 820, 826
Osborne v. Harvey, 28
Osborne v. McMillan, 157
Osborne v. Nicholson, 354
Osborne v. Rowlett, 714, 722
Osburn v. Pritchard, 335, 356
Osgood v. Franklin, 692
Osterbury v. Union Trust Co., 142
Osterhout v. Shoemaker, 552
Osterman v. Baldwin, 120
Oswald v. Sproehlne, 564
Ott v. Sprague, 545
Ottinger v. Strasburger, - 738. 739,
740, 742
Outlaw v. Morris, 698
Overhiser v. McCollister, 271, 642
Overly v. Tipton, 205
Overstreet v. Dobson, 295
Owen v. Brookport, 519
Owen v. Norris, 206
Owen v. Pomona L. W. Co., 193
Owen v. Thomas, 356, 363, 436
Owens v. Cowan, 798
Owens v. Rector, 235, 633
Owens v. Salter, 469, 509
Owings v. Baldwin, 731, 732
Owings v. Thompson, 20
P.
Pack v. Gaither, 480
Packard v. Usher, 167
Page v. Adam, 31
Page v. Brown, 153
Page v. Greeloy, 24, 191, 724. 741
Page v. Lashley, 299
Paget v. Melch'ior. 760, 767, 787
Paine v. Miller, 161
Painter v. Henderson, 172
Palmer v. Chandler, 406
Palmer v, Locke, 714
Palmer v. Morrison, 769
Palmer v. Richardson, 185, 189, 817
Palmerton v. Hoop, 117
Pangborn v. Miles, 598, 774, 786, 787
Papin v. Goodrich, 41, 164
Parham v. Parham, 558
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
lix
Parham v. Randolph, 235, 246, 251,
827, 855
Paris!) v. Whitney, 301
Park v. Bates, 360, 366, 398, 428
Park v. Johnson, 693, 704, 732, 780
Parker v. Baker, 59
Parker v. Brown, 255, 256, 271
Parker v. Chadwick, 396
Parker v. Culbertson, 444
Parker v. Dunn, 364
Parker v. Goddard, 132
Parker v. Hart, 458
Parker v. Jones, 519
Parker v. Kane, 99
Parker v. McAllister, 34, 206,
Parker v. Parker, 281, 854
Parker v. Parmele, 33
Parker v. Porter, 725, 762
Parker v. Richardson, 350, 438
Parker v. Starr, 571
Parker v. Teas, 575
Parkins v. Williams, 847
Parkinson v. Sherman, 458, 462, 469,
637
Parks v. Brooks, 625, 690, 692, 696,
777, 789, 843
Parks v. Jackson, 732
Parlin v. Stone, 563
Parmly v. Head, 707, 710
Parr v. Lovegrove, 737
Parsons v. Gilbert, 801
Parsons v. Smith, 587
Partridge v. Hatch, 409
Partridge v. Patton, 550
Paslay v. Martin, 817
Pate v. Mitchell, 34, 261, 509
Pate v. McConnell, 794
Paterson v. Long, 30, 831
Paton v. Brebner, 495, 825, 830
Pa ton v. Rogers, 491
Patrick v. Leach, 392
Patrick v. Roach, 698, 702
Patten v. Fitz, 306
Patten v. Stewart, 194, 243, 650, 695
Patterson v. Arthur, 307, 309, 354
Patterson v. Carneal, 50
Patterson v. Dwinel, 552
Patterson v. Fisher, 553
Patterson v. Goodrich, 36
Patterson v. Long, 30, 831
Patterson v. Pease, 528
Patterson v. Stewart, 415
Patterson v. Sweet, 302
Patterson v. Taylor, 639
Patterson v. Yancey, 293, 327
Patton v. Camplin, 477
Patton v. England, 195, 462, 685
Patton v. Kennedy, 353, 430, 435
Patton v. McFarlane, 356, 364
Patton v. Schneider, 338
Patton v. Taylor, 443, 839, 857
Patton v. Thompson, 106
Paul v. Kenosha, 860
Paul v. Witman, 365, 379, 429
Payne v. Atterbury, 625
Payne v. Cabell, 645
Payne v. Echols, 150
Payne v. Markle, 741
Paxson v. Lefferts, 329
1'axton v. Sterne, 137
Peabody v. Brown, 45
Peabody v. Phelps, 661, 686, 687
Peak v. Gore, 784, 797
Pearsoll v. Chapin, 234, 622, 680, 683
Pearsoll v. Frazer, 208
Pearson v. Ford, 311, 318
Pearson v. Davis, 271
Pearson v. Seay, 589
Pease v. Christ, 298, 299
Feay v. Capps, 615, 715
Peay v. Wright, 686
Peck v. Hensley, 364
Peck v. Houghtaling, 275, 277, 432,
435
Peck v. Jones, 669
Peckham v. Stewart, 763
Peden v. Moore, 443, 463
Peebles v. Stephens, 616, 695, 699,
702, 855
Peeler v. Levy, 499, 500
Peers v. Barnett, 460, 606, 742, 852
Peers v. Lambert, 827
Peet v. Beers, 512
Pegler v. White, 711, 712
Pell v. Pell, 765
Pelletreau v. Jackson, 544
Pena v. Armstrong, 575
Pence v. Duval, 263, 353, 391, 434
Pence v. Gabbert, 357, 385, 415
Pendleton v. Button, 72
Penfield v. Clarke, 36
Penn v. Preston, 668
Pennington v. Clifton, 140
Pennsylvania v. Sims, 668
Penna. Min. Co. v. Thomas, 165
People v. Gilon, 295, 298
People v. Globe Ins. Co., 716
People v. Life Ins. Co., 767
People v. Open Board, etc., 716, 801,
810
People v. Sisson, 444
People v. Society, 543
People v. Stock Brokers' Building
Co., 722
People's Sav. Bank v. Alexander, 305
Peo. Sav. Bank v. Lewis, 525
Poo. Sav. Bank v. Parisette, 497, 498
Pepper v. Rowley, 444
Poqups v. Mosby, 589, 611
Poniful v. Hurd, 638
Perkins v. Bamford, 446
Perkins v. Dickinson, 558
Ix
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Perkins v. Ede, 827
Perkins v. Fairfield, 92
Perkins v. Hadley, 215, 379, 502, 625,
702
Perkins v. White, 78
Perkins v. Williams, 453
Perrot v. Perrot, 871
Perry v. Adams, 138
Perry v. Boyd, 695, 856
Perry v. William, 141
Perry v. Williamson, 301
Fershing v. Canfield, 205, 619
Personneau v. Blakely, 560
Peterman v. Laws, 132
Peters v. Anderson, 511
Peters v. Bouvien, 268, 458
Peters v. Delaplaine, 831
Peters v. Farnsworth, 155
Peters v. Grubbs, 339, 354, 376
Peters v. McKeon, 213, 216, 223, 224,
391
Peters v. Meyers, 294, 297
Peterson v. McCulloch, 445
Petrie v. Folz, 370, 371, 402
Pettys v. Marsh, 589
Pfirrman v. Wattles, 134, 446
Phelps v. Decker, 339 fc
Phelps v. Kellogg, 531
Phelps v. Phelps, 52
Phelps v. Sawyer, 361
Phillbrook v. Emswiler, 657
Phillips v. Coffee, 127
Phillips v. Cooper, 424
Phillips v. Day, 743, 749
Phillips v. Evans, 354
Phillips v. Herndon, 36, 148, 212
Phillips v. O'Neal, 624
Phillips v. People, 59
Phillips v. Reichert, 392, 397, 410
Phillips v. Ruble, 61
Phillips v. Scott, 673
Phillips v. Smith, 394, 401
Phillips v. Stanch, 497
Phillips v. W T alsh, 75, 76
Phillipson v. Gibbon, 819
Phipp v. Childs, 724
Pickitt v. Loggon, 147
Piedmont Coal Co. v. Green, 606
Pierce v. Johnston, 263
Pierce v. Milwaukee R. Co., 440, 517,
540
Pierce v. Nicol, 798, 821
Pierson v. Armstrong, 50
Pierson v. Doe, 50
Pike v. Galvin, 263, 550
Pike v. Goodnow, 526
Piland v. Taylor, 58
Pilcher v. Prewitt, 648, 650
Pilcher v. Smith, 625
Pillsbury v. Mitchell, 263, 311, 318,
322, 326
Pincke v, Curtis, 193
Pinkston v. Hine, 229, 274
Pino v. Beckwith, 587, 621
Pintard v. Martin, 649
Piper v. Elwood, 141
Pipkin v. James, 587, 807, 814
Pitcher v. Livingston, 150, 270, 271,
360
Pitkin v. Leavitt, 360, 421, 428, 431,
434
Pitman v. Connor, 284, 335
Planer v. Eq. Life Ins. Co., 501, 502
Platt v. Gilchrist, 449, 458, 637, 848
Platt v. Newman, 773
Platte Land Co. v. Hubbard, 588
Playter v. Cunningham, 351, 361
Plowman v. Shidler, 525
Plummer v. Rigdon, 214
Plummer v. Russell, 48
Point Street Iron Works v. Simmons,
151
Poke v. Kelly, 589, 667
Polk v. Stevenson, 167
Polk v. Sumter, 49, 778
Pollard v. Dwight, 256, 258, 259
Pollard v. Rogers, 194
Pollock v. Speidel, 519
Pollock v. Wilson, 704
Pomeroy v. Burnett, 315, 444, 469
Pomeroy v. Drury, 20, 36
Pomeroy v. Fullerton, 487
Pomeroy v. Partington, 417
Pool v. Ellis, 138, 139
Poole v. Hill, 200
Poole v. Shergold, 826
Pope v. Garland, 21, 30
Pope v. Simpson, 134
Pope v. Thrall, 727, 740, 791
Pope v. Wray, 613
Poor v. Boyce, 114, 117
Porter v. Bradley, 298, 323
Porter v. Cook, 652
Porter v. Hill, 538
Porter v. Noyes, 33, 35, 300, 362, 777
Porter v. Scobie, 608
Porter v. isullivan, 552
Porter v. Titcomb, 696
Porterfield v. Payne, 720
Portman v. Mill, 819
Post v. Bernheimer, 783
Post v. Campau, 298
Post v. Leet, 82, 121, 858
Post v. Weil, 776, 777
Potter v. Kitchers, 279
Potter v. Parry, 711
Potter v. Taylor, 287
Potter v. Tuttle, 151
Potwin v. Blasher, 370, 418, 459
Poulet v. Hood, 154
Poulson v. Ellis, 201
Pounsett v. Fuller, 212
TABLE OF CASES.
[INFERENCES AKE TO PAGES.]
Ixi
Powell v. Conant, 724
Powell v. Edmonds, 32
Powell v. Lyles, 337
Powell v. Matyr, 820, 821
Powell v. Morrissey, 575
Powell v. Munson, 300
Powell v. Powell, 733
Powell v. So. Wales R. Co., 830
Power v. Standish, 516
Powers v. Bryant, 69
Poyas v. Wilkins, 476
Poyntell v. Spencer, 364, 3G5, 667,
673
Pratt v. Campbell, 488, 822
Pratt v. Eby. 712, 739, 742
Pratt v. Pratt, 539, 540
Preiss v. Le Poidevin, 331, 383
Preissinger v. Sharp, 716
Presbrey v. Kline, 484. 726, 798, 803,
804
Prescott v. Hayes, 60
Prescott v. Hobbes, 267
Prescott v. Trueman, 257, 21)0, 315,
318, 322, 775, 831
Prescott v. Williams, 302
Presser v. Hildebrand, 497
Preston v. Breedlove, 472
Pfeston v. Fryer, 81, 84, 87
Preston v. Harrison, 140
Veston v. Walker, 603, 615
Veston v. Whitcomb, 36
'reston v. Williams, 574
'restwood v. McGovern, 360, 363, 434
>evost v. Gratz, 443, 639
'rewitt v. Graves, 723, 765
'rewitt v. Kenton, 424
Price v. Ayres. 845, 852
Price v. BJount, 472, 473
Price v. Boyd, 140
Price v. Browning, 185 ; 607
Price v. Hubbard, 447
Price v. Johnson, 257
Price v. Real Estate Assn., 117
Price v. Strange, 711
Primm v. Wise, 808
Pringle v. Spaulding, 211
Prinple v. Witton. 277, 356
Prior v. Loeb, 541
Pritchard v. Atkinson, 306
Pritcharcl v. bmith, 370
Pritchett v. Redick, 357, 370, 37S
Prosser v. Watts, 715, 737
Prothro v. Smith, 813
Prov. Life N. Co. v. Seide, 263
Prov. Loan & Tr. Co. v. Mclntoh. 686
Prout v. Gibson. 606
Prout v. Roberts, 244, 687, 855
Pry v. Pry, 51
Pryse v. McGuire. 242, 245, 252, 445
Puckett v. McDonald, 115, 589, 650
Pugh v. Brittain, 571
Pugh v. Chasseldine, 35, 148
Pugh v. Mayo, 525
Pumpelly v. Phelps, 217, 225, 227,228
Purcell v. Heeney, 447
Purvis v. Rayer, 20, 22, 710
Pusey v. Desbourne, 871
Puterbaugh v. Puterbaugh, 20, 213,
227, 228
Putnam v. Ritchie, 139
Putnam v. Westcott, 587
Pyle v. Gross, 345
Pyrke v. Wadding!) am, 708, 712, 714,
721, 722
Q.
Quarles v. Campbell, 115
Quick v. Taylor, 308
Quimby v. Lyon, 205
Quivey v. Baker, 519, 545, 547
Rebon v. Risnikoff. 597
Radcliff v. Ship, 363, 431
Rader v. Neal, 104, 152
Radford v. Willis, 713, 714
Raftery v. Easeley, 300
Ragan v. G^ither, 731
Raines v. Callaway, 433
Raines v. Walker. 519
Rainey v. Hines, 317
Ralston v. Miller, 461, 849
Ramirez v. Barton. 855
Ramsden v. Hurst, 30
Ramsey v. Smith, 564
Ramsour v. Shuler, 506, 564
Randall v. Albertis, 353
Randall v. Lower, 525, 526
Randall v. Mallett, 315
Randolph v. Kiriney, 263, 387
Randolph v. Meeks, 358, 360
Ranelagh v. Hayes, 516
Rankin v. Maxwell, 492
Ranney v. Smith, 564
Ranson v. Shuler, 835
Rantin v. Robertson, 351
Rash v. Jenne, 396
Rashall v. Ford, 250
Rathbun v. Rathbun, 522
Raudabaugh v. Hart. 200
Ravenel v. Ingram. 378, 381
Rawley v. Beaman. 69
Rawlings v. Adams, 213
Rawlins v. Timl>erlake, 445, 838, 847
Ray v. Detchon, 137
Ray v. Pease, 50
Ray v. Virgin, 113
Raymes v. Clarkson, 44
Raymond v. Holdon. 542
Raymond v. Raymond, 256, 283
Raymond v. Squire, 264
Raynor v. Lyon, 777
TABLE OF CASES,
[REFERENCES ARE TO PAGES.]
Rea v. Minkler, 335, 360, 375, 436
Read v. Fogg, 547, 550
Read v. Walker, 203, 625, 696, 855
Reading v. Gray, 315
Reagle v. Dennis, 284, 288
Real T. Hollister, 363
Real Est. Corp. v. Harper, 296
Ream v. Goslee, 299
Reardon v. Searcy, 127
Reasoner v. Edmundson. 260, 315,
363, 371
Reck v. Clapp, 182
Recohs v. Younglove, 255, 412
Rector T. Higgins. 315
Rector v. Price, 826
Redding v. Lamb, 347, 465
Reddington v. Henry, 595
Redman v. Williams, 598
Redmon v. Phenix Ins. Co., 292
Redwine v. Brown, 263, 350, 381, 383
Recce v. Haymaker, 759
Reed v. Crosthwaite, 140
Reed v. Hatch, 338
Reed v. Noe, 731, 826, 827
Reed v. Pierce, 318
Reed v. Reed, 758
Reed v. Root, 561 %
Reed v. Sycks, 452
Reed v. Tioga Mfg. Co., 45 ? 834
Reeder v. Craig, 519
Reese v. Gordon, 463, 649
Reese v. Kirk, 13
Reese v. McQuilkin, 392, 433
Reese v. Smith. 517, 537
Reeves v. Dickey, 607, 609, 800. 806
Reeves v. Downs, 616
Refeld v. Woolfolk, 651
Regney v. Coles, 727, 755
Regney v. Small, 131
Reid v. Sycks, 287
Reilly v. Burton, 137
Reilly v. Smith, 497
Reiner's Appeal, 112
Remillard v. Prescott, 564. 568
Remington v. Hornby, 148
Remington v. Palmer, 451, 453
Remy v. Olds, 205
Reniek v. Renick, 849
Renner v. Marshall, 845
Renshaw v. Gans, 506, 512. 667
Resser v. Carney, 526
Reswick v. Campbell, 810
Reuter v. Lane, 676
Revol v. Stroudback, 738, 771
Rex v. Creel, 346, 360
Rex v. Holland, 599
Reydell v. Reydell, 733
Reynolds v. Borel, 729
Reynolds v. Clark, 497
Reynolds v. Cleary, 730
Reynolds v. Harris, 127
Keynolds v. Nelson, 578
Reynolds v. Smith, 809
Reynolds v. Strong, 706, 718, 760,
810
Reynolds v. Vance, 827
Rhea v. Allison, 702
Rhea v. Swain, 416
Rheel v. Hicks, 122
Rhoads v. Selin, 105
Rhode v. Alley, 151, 474, 664, 683
Rhode v. Green, 430, 435
Rhodes v. Caswell, 716
Rhodes v. Ibbetson. 27
Rhodes v. Wilson, 589
Rhorer v. Bila, 615, 616
Rice v. Barrett, 768
Rice v. Burnett, 109, 113. 118
Rice v. Goddard, 446, 461
Rice v. Kelso, 525
Rice v. Poynton. 571
Rice v. Silverton, 855
Rich v. Johnson, 414
Richards v. Bent, 263, 292, 312
Richards v. Homestead Co., 370, 374,
404, 405
Richards v. Knight, 712. 714, 736,
768
Richards v. Mercer, 780
Richardson v. Bright, 242. 243, 246
Richardson v. Butler, 117
Richardson v. Dorr, 255. 315
Richardson v. Eyton, 30
Richardson v. Gosser, 66n. 67 3
Richardson v. Jones. 715
Richardson v. McDougall. 124. 141
Richardson v. McKinson. G!9, 701,
702
Richardson v. Tobey, 303
Richardson v. Williams, 8:>9
Richmond v. Ames, 301, 318, 322
Richmond v. Gray, 189, 748, 799,805
Richmond v. Koenig, 781
Richmond v. Marston, 1"0
Richmond v. Robinson, 496
Richmond v. Voorhees, Cl
Ricker v. Pratt, 836, 843
Rickert v. Snyder, 277, 323. 352. 362,
422, 433*
Ricketts v. Dickens, 330. 337, 360
Riddell v. Blake, 703
Riddle v. Bush, 128
Riddle v. Hill, 113
Riddleberger v. Mintzer. 497
Rider v. Powell, 566
Ridgeley v. Howard, 58
Ridgway v. Gray, 830, 831
Riesz's Appeal, 497
Rife v. Lybarger, 780, 785. 830
Rigg v. Cook. 529
Bugs v. Purse!!, 79, 81, 590, 708
Riley v. Kepler, 111 .
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Ixiii
Riley v. Million, 121
Rimer v. Dugan, 243, 251, 855
Rinaldo v. Houseman, 598
Rineer v. Collins, 211, 214
Rindskopf v. Trust Co., 361
Rinehart v. Rinehart, 318
Ripley v. Kepler, 109
Rippingall v. Loyd, 31
Ritter v. Henshaw, 123, 140
Ritter v. Phillips, 469
Roach v. Rutherford, 189, 192, 603
Roake v. Kidd, 709
Robards v. Cooper, 443
Robb v. Irwin, 95
Robb v. Montgomery, 35, 47; 611,804
Robbins v. Battlehouse Co., 556
Robbins v. Mayer, 560
Roberts v. Bassett, 35, 36
Roberts v. Levy, 262, 268, 296, 301,
308
Roberts v. Lovejoy, 492
Roberts v. McFadden, 17, 392, 719
Roberts v. Stowers, 95, 128
Roberts v. Taliaferro, 559
Roberts v. Wolbright, 444, 6:57
Roberts v. Wyatt, 31, 165, 4S2, 503
Robertson v. Bradford, 115, 138
Robertson v. Gaines, 519
Robertson v. Hogsheads, 605. 681
Robertson v. Lemon, 391, 417, 421
Robinson v. Bierce, 319
Robinson v. Brakewell, 221, 6GO
Robinson v. Douthit, 519
Robinson v. Galbreath, 858
Robinson v. Hardman, 229
Robinson v. Heard, 214
Robinson v. Maudlin, 61.
Robinson v. Murphy, 297
Robinson v. Page, 581
Robinson v. Redman, 93
Robinson v. Ryan, 137, 138
Hobison v. Robison, 641
Roche v. O'Brien, 187
Rockfellcr v. Donelly, 282
Rocksell v. Allen, 123
Rockwell v. Wells, 460
Rodgers v. Olshoffsky, 620, 667, 684
Rodman v. Williams, 598
Roebuck v. Dupuy, 364, 370
Roehl v. Haumesser, 864
Roehl v. Pleasants, 112, 113
Rogers v. Abbott, 570
Rogers v. Borchard, 36
Rogers v. Clemmans, 116
Rogers v. Colt, 682
Rogers v. Daily, 406
Rogers v. Golson, 401
Rogers v. Horn, 86, 475
Rogers v. Norton, 684
Rogers v. Place, 458, 844
Rogers v. Waterhouse, 712
Rohr v. Kindt, 36, 219. 492, 503
Roland v. Miller, 667, 668
Rolfes v. Russell, 253
Roller v. Ettinger, 182, 506, 798
Rollins v. Henry, 120
Rolph v. Crouch, 408
Romig v. Romig, 35
uomilly v. James, 717, 718
Rook v. Rook, 403
Rooney v. Koenig, 523
Roots v. Dormer, 826
Rose v. Calland, 782
Rose v. Neuman, 60
Rose v. Schaffner, 385
Roseman v. Conovan, 238
Rosenberger v. Keller, 324, 851
Rosenthal v. Griffin, 63
Ross v. Boards, 495, 831
Ross v. Davis, 335, 626
Ross v. Dysart, 343, 354
Ross's Appeal, 670
Roswall v. Vaughan, 649, 686
Roszell v. Roszell, 566, 573
Rotan v. Hays, 281
Rounds v. Baxter, 589, 613
Roussel v. Lux, 776
Rowland v. Dowe, 211
Rowe v. Heath, 339, 422
Rowe v. School Board, 213
Royal v. Dennison, 47, 73
Royce v. Burrell, 346
Royer v. Foster, 370, 372
Rucker v. Lowther. 148, 155
Rudd v. Savelli, 148
Ruess v. Ewen, 740
Ruff v. Gerhart, 737
Rufncr v. McConnell, 280
Ruffner v. McLenan, 67
Ruggles v. Barton, 539
Rundell v. Lakey, 296 467
Runge v. Sabin, 65
Runkle v. Johnson, 206
Runnels v. Webber, 300
Runyan v. Alersereau, 260
Ruppert v. Haske, 573
Rush v. Truby, 43
Russ v. Alpaugh, 522, 531
Russ v. Perry, 300, 346
Russ v. Steele, 375
Russ v. Wingate, 58, 69
Russell v. Copeland, 214
Russell v. Handy, 197
Russell v. Hudson, 132
Russell v. Shively, 796
Rutherford v. Haven, 207
Rutherford v. Montgomery. 349. 377
Rutherford v. Stamper, 106
Rutledge v. Lawrence. 213. 220. 490
Rutledge v. Smith, 563, 625, 820, 821
Ryan v. Dunlap, 488
Ryan v. Wilson, 50
Ixiv
TABLE OF CASES.
[BEFEBEXCES ABE TO FACES.]
Ryder v. Jenny, 150
Hverson v. Chapman, 421, 423. 430,
431
Ryerson v. Willis, 447, 453, 458, 462
S.
Sable v. Broekmeier, 273
Sable v. Maloney. 569
Sackett v. Twining, 109
Sage v. tiones, 311
Sage v. Rannev, 611, 612
Saint v. Taylor, 839
St. Anthony's F. W. P. Co. v. Merri-
man, 565. 568
St. Clair v. Williams, 350
St. Louis v. Bissell, 321
St. Louis Rei. Co. v. Langley. 543
St. John v. Palmer, 361. 363
St. Mary's Church v. Stockton, 766,
770, 783
Salisbury v. Hatcher, 806
Salle v. 'Light, 424
Salmon v. Hoffman, 443
Salmon v. Vallejo, 262, 264
Salmon v. Webb, 593
Salmond v. Price, 136, 141
Saltonstall v. Gordon, 238, 239
Hilton-stall v. Riley, 93
Sampeyrac v. U. S., 180
^-.inborn v. Gunter, 861
Sanborn v, Nockin, 496
Sandeman v. McKinsie, 187
Sanderlin v. Willis, 211, 604
Sanders v. Brown, 293
Sanders v. Hamilton, 124, 425
Sanders v. Lansing, 587
Sanders v. Wagner, 320, 404, 405
Sanford v. Travers, 695, 865
Sands v. Lynfaam, 137, 138
Sandwich Mfg. Co. v. Zellman, 288,
345, 523
Sanford v. Bulkley, 60
Sanford v. Justice, 252
Sanford v. Sanford, 548
Sanford v. Wheeler. 35
Sargent v. Guiterson, 285, 661
Satterfield v. Spier, 492
Saulters v. Victory, 214. 216
Saunders v. Flanniken, 376, 381
Saunders v. Guille, 771
Saunders v. Hamilton, 124, 425
Saunders v. Pate, 119
Savage v. Mason. 303
Savings Inst. v. Burdick, 566
savings & Loan Assoc. v. Meeks, 576
Sawyer v. Hovey. 568
Sawyer v. Kendall, 52
Sawyer v. Sledge, 594, 627
Sawyer v. Vaughan, 277
Sawyer v. Wiswall, .457
Sawyers v. Cator, 344
Sayre v. Mohney, 604, C16
Sayre v. Sheffield Land Co., 273
Scannell v. Am. Soda !'. Co., 738,
779, 791
Scantlin v. Anderson, 411, 445
Scates v. Fohn, 549
Schaatz v. Keener, 567
Schaefer v. Causey, 138
Schaefer v. Bluinentbal, 779
Schaeffer v. Bond, 133
Schaffer v, Grutzmachen, 542
Schamberg v. Leslie, 684
Scheible v. Slagle, 375
Schermerhorn v. Niblo, 707, 772
Schermerborn v. Vanderbeyden, 402
Scheu v. Lehning, 757, 828
Schiffer v. Dietz, 14, 235, 800, 805
Schley v. Baltimore, 92
Schmidt v. Reed, 805
Schnelle Lumber Co. v. Barlow, 275
Schofield v. Iowa Homestead Co., 265,
268, 276, 379
Scholle v. Scholle, 758, 760
Schoonover v. Daugherty, 565
Schott v. McFarland, 645
Schreck v. Pierce, 20, 34, 482
Schroeder v. Witham, 718
Schroeppel v. Hopper, 695
Schug's Appeal, 78
Schulenberg v. Harriman, 368
Schultze v. Rose, 739
Schumann v. Knoebel, 318, 469
Schuylkill. etc., 11. Co. v. Schmoele,
351, 354, 366
Schwartz v. Woodruff, 734, 799
Schwinger v. Hickock, 123
Scoffins v. Grandstaff, 263, 377, 381,
545
Scott v. Battle, 625, 655, 702
Scott v. Beutel, 775
Scott v. Bilgerry, 488
Scott v, Davis, 188
Scott v. Gallagher, 58
Scott v. Hanson, 822
Scott v. Morning, 271
Scott v. Nixon, 737
Scott v. Scott, 331, 432
Scott v. Sharp, 818
Scott v. Simpson, 732, 739
Scott v. Slaughter. 650
Scott v. Thorp, 808, 819
Scott v. Twiss, 256
Scribner v. Holmes, 304, 305
Scripture v. Morris, 775
Scriver v. Smith, 375
Scudder v. Andrews, 462, 650
Scudder v. Watt, 705, 777
Seaburn v. Sutherland, 695
Seaman v. Hicks, 82, 88, 736. 785
Seaman v. Vawdrey, 30, 711, 713
Seamore v. Harlan, 699, 703
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Searcy v. Kirkpatrick, 508
Sears v. Broady, 311, 433
Sears v. Stinson, 410
Seaton v. Barry, 667
Seaton v. Booth, 826
Seaton v. Mapp, 28, 30
Sebring v. Mersereau, 752
Second Univ. Soc. v. Dugan, 770
Second Univ. Soc. v. Hardy, 70S
Security Bank v. Holmes, 345
Sedgwick v. Hargrave, 707
Sedgwick v. Hollenbeck, 260, 279, 352
Seeley v. Howard, 207
Seibel v. Purchase, 587, 801
Seiberling v. Lewis, 794
Seitzinger v. Weaver, 657
Selden v. James, 820
Seldner v. McCreery, 715. 772
Selden v. Wilhans, 657, 661
Seller v. Lingerman, 137
Semple v. Wharton, 345, 409
Senning v. Bush, 772
Sessa v. Arthur, 452
Seton v. Slade, 189, 193, 798, 800,811
Settle v. Stephens, 681
Seventy- third St. Bldg. Co. v. Jencks,
318
Seward v. Willcock, 202
Sewell v. Wilkins, 201
Seymour v. Delancy, 692, 728, 730,
743, 806
Seymour v. Dennett, 613
Seymour v. Lewis, 309
Shackelford v. Hundly, 250, 252, 619,
855
Shackleton v. Sutcliffe, 30, 775
Shacklett v. Ransom, 156
Shadbolt v. Bassett, 469
Shafer v. Wiseman, 435
Shaffer v. Bolander, 127, 130
Shaffer v. Green, 281, 291, 292
Shaffer v. McCracken, 130
Shaffner v. Grutzmachen, 542
Shakespear v. Delaney, 12!)
Shankle v. Ingram, 357, 360
Shanks v. Whitney, 237
Shannon v. Marselis, 453, 838
Share v. Anderson, 657, 606
Sharland v. Leifschild, 20
Sharp v. Adcock, 711
Shattuck v. Cunningham, 486
Shattuck v. Lamb. 360
Shaw v. Bisbee, 337
Shaw v. Lord, 45
Shaw v. Vincent, 825
Shaw v. Wilkins, 215, 221. 228
Shaw v. Wright, 80
Slieard v. Willburn, 223
Shearer v. Fowler, 654
Shearer v. Ranger. 300, 831
Shears v. Dusenburv. 286. 426
Sheehy v. Miles, 724
Sheets v. Andrews, 200, 213, 216,392
Sheets v. Joyner, 339, 407, 428
Sheffey v. Gardner, 311, 360, 434
Shelby v. Marshall. 605
Shelby v. Williams, 847
Sheldon v. Newton, 95
Sheldon v. Stryker, 63
Shelley's Case, 767
Shelly v. Mikkleson, 507
Shelton v. Codman, 377
Shelton v. Livins, 32
Shelton v. Peas, 289, 326, 371
Shephard v. Carriel, 63
Shepherd v. ivahle, 519
Shephard v. Keatley, 29
Shephard v. Little/ 402
Shephard v. Mclntire. 513
Sherman v. Kane, 521
Sherman v. Ranger, 362
Sherman v. Savery, 597
Sherman v. Williams, 351, 352
Sherwin v. Shakespear, 164
Sherwood v. Johnson, 301
Sherwood v. Landon, 636
Sherwood v. \ amlenburgh, 552
Sherwood v. Wilkins, 287
Sheilds v. Allen, 86, 595
Shields v. Bogliolo. 699
Shiffer v. Deitz, 193, 238
Shiflett v. Orange Humane Soc., 617
Shipp v. Wheless, 134, 595, 605, 616,
695, 836
Shirley v. Shirley, 625
Shively v. Jones, 82
Shively v. Land Co., 579
Shober v. Dutton, 739. 742
Shober v. Robinson, 425
Shoemaker v. Johnson, 548
Shontz v. Brown, 154, 451, 657
Short v. Conlee, 63
Short v. Porter, 109, .138
Short v. Sears, 137
Shorthall v. Mitchell, 487
Shorthill v. Ferguson, 151
Shotwell v. Murray, 867
Shouse v. Doane, 34. 44, 201
Shriver v. Shriver, 700. 712, 730,
740, 742, 752, 826
Shrove v. Webb, 595
Shroycr v. Xickell. 138, 655
Shryer v. Morgan, 217
Shultz v. Moore. 58
Shultz v. Sanders, 127
Shurtz v. Thomas. 15, 497
Sibbald v. Lowrie, 189
Sibley v. Bullis. 144
Sibley v. Spring, 35
Sidders v. Riley, 284
Sidebotham, Ex parte, 188, 189
Sidwell v. Birney, 02
Ixvi
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Sikes v. Wild, 214, 226
Silbar v. Ryder, 564, 567
Silliman v. Gillespie, 493
Silverman v. Loomis, 389
Simanovich v. Wood, 283, 293
Simis v. McElroy, 743, <37, 767
Simmons v. Haseltine, 717, 720
Simmons v. North, 574
Simmons v. Zimmerman, 728
Simons v. Patchett, 213, 229
Simon v. Vandeveer, 734
Simpson v. Atkinson, 484
Simpson v. Belvin, 392, 417, 429
Simpson v. Greeley, 545
Simpson v. Hart, 837
Simpson v. Hawkins, 445, 631, 723,
830, 838, 840, 842
Sims v. Boaz, 204
Sims v. Gray, 138
Sims v. Lewis, 487
Sinclair v. Jackson, 524
Sine v. Fox, 337
Singletary v. Carter, 105
Sisk v. Woodruff, 370, 427, 430
Sisters, etc., v. Benzinger, 761
Sivoly v. Scott, 015
Sizemore v. Pinkston, 621
Skaaraas v. Finnegan, 214
Skally v. Shute, 353
Skerrett v. Presbyterian Society, 559
Skilleen v. May, 690
Skinner v. Fletcher, 64
Skinner v. Moore, 103
Skinner v. Starner, 286
Skull v. Clenister, 21
Slack v. McLagan, 467
Slack v. Thompson, 149
Slater v, Rawson. 256, 262, 388
Slaughter v. Tindle, 488
Slayback v. Jones, 353
Sloane v. Wells, 503
Slocum v. Bray, 47
Sloper v. Fish, 762
Small v. Atwood, 587
Small v. Jones, 523
Small v. Proctor, 552
Small v. Reeves, 273, 360, 445, 459,
469
Smeich v. Herbst, 620, 626
Smiley v. Fries, 522
Smith v. Abington Sav. Bk., 283,293
Smith v. Acker, 469
Smith v. Ackerman, 444, 459, 470
Smith v. Arnold, 110
Smith v. Babcock, 194, 684
Smith v. Brittain, 84
Smith v. Brittenham, 695
Smith v. Busby, 207, 695
Smith v, Cannell, 300, 526, 831
Smith v. Cansler, 805
Smith v. Carney, 210, 318
Smith v. Chancy, 650, 670
Smith v. Chapman, 563
Smith v. Compton, 404. 417, 431
Smith v. Davis, 299, 323
Smith v. Death, 730
Smith v. De Rusey, 545
Smith v. Detroit Min. Co., 191
Smith v. Dixon, 359
Smith v. Ellis, 30
Smith v. Fitting, 459
Smith v. Fly, 337, 866
Smith v. Haynes, 41, 633
Smith v. Henry, 200
Smith v. Hudson, 444, 633
Smith v. Hughes, 260, 304, 448, 634
Smith v. Hunt, 60
Smith v. Ingram, 350, 378, 527
Smith v. Jefts, 263, 311, 316
Smith v. Jones, 333, 445
Smith v. Kelly, 127, 128, 480, 487
Smith v. Kimball, 767
Smith v. Lamb, 584, 604
Smith v. Lewis, 202, 293. 604
Smith v. Lloyd, 280, 287, 291
Smith v. Mackin, 858
Smith v. McCluskey, 592
Smith v. McCool, 828
Smith v. Montes, 521
Smith v. Moreman, 770
Smith v. Munday, 129
Smith v. Newton, 444, 636
Smith v. Nolan, 474
Smith v. Painter, 118
Smith v. Parsons, 419, 459, 509
Smith v. Perry, 382
Smith v. Pettus, 509, 589
Smith v. Richards, 249, 311
Smith v. Robertson, 202, 203, 209,
624, 682, 690, 858
Smith v. Rogers, 203
Smith v. Schiele, 23
Smith v. Scribner, 360
Smith v. Shepard, 359
Smith v. Sillyman, 670, 671
Smith v. Smith, 202
Smith v. Sprague, 302, 420
Smith v. Strong, 272, 397. 403
Smith v. Taylor, 24, 25, 164, 724
Smith v. Turner, 762
Smith v. Williams, 519
Smith v. Winn, 80, 85, 868
Smith v. Wood, 575
Smith's Appeal, 509
Smithers v, Steiner, 828
Smithson v. Inman, 702
Smoot v. Coffin, 444, 639
Smyth v. Merc. Tr. Co., 235
Snelgrove v. Snelgrove, 180
Snell V. Mitchell, 480
Snevilly v. Egle, 275, 614
Snevely v. Lowe, 95
TABLE OF CASES.
[REFERENCES ABE TO PAGES. ]
bcvii
Snider v. Coleruan, 138
Snow v. Monk, 488, 789, 790
Snyder v. Jennings, 363, 368
Snyder v. Lane, 291, 318, 320
Snyder v. Spaulding, 754
Socum v. Haun, 277
Sohier v. Williams, 90, 721. 760, b20
Somerville v. Hamilton, 429
Somers v. Schmidt, 424, 427, 429
Somes v. Skinner, 528, 531
Sons of Temp. v. Brown, 203, 207, 209
Soper v, Arnold, 187, 592
Soper v. Kipp, 799
Soper v. Stevens, 648
Sorrels v. McHenry, 205, 443, 589,
680
Soule v. Dixon, 458
Souter v. Drake, 20, 28
Southall v. McKeand, 223
Southby v. Hutt, 163, 189
Southcomb v. Bishop, 694, 697
Southern Pac. R. Co. v. Choate, 192,
193
Southern Wood Mfg. Co. v. Daven-
port, 410
Southwest Va. Min. Co. v. Chase, 298
Sowler v. Day, 559
Sparrow v. Kingman, 544, 552
Sparrow v. Oxford R. Co., 21
Spaulding v. Fierle, 202, 805
Spaulding v. Hallenbeck, 777
Spaulding v. Thompson, 299
Speakman v. Forepaugh, 196, 711,
733, 747
Spear v. Allison, 351, 673
Spence v. Durein, 251
Spencer's Case, 381
Spencer v. Howe, 326
Spencer v. Sandusky, 774, 805
Spencer v. Topham, 713
Spero v. Shulz, 789
Spicer v. Jones, 798
Spier v. Laman, 406, 552
Spiller v. Westlake, 609
Spindler v. Atkinson, 137
Spitznagle v. Van Hesscli, 04, 70
Spoor v. Green, 265, 636
Spoor v. Phillips, 121
Spoor v. 'i'ilson, 681
Sprague v. Baker, 263, 312, 370, 37.1
Spratt v. Jeffrey, 29
Spray v. Rodman, 512
Spring v. Chase, 404, 416
Spring v. Sanford, 772
Spring v. Tongue, 293
Sprinkle v. Shields, 499
Springs v. Harven, 138, 563
Spruill v. Davenport, 231
Spurr v Andrews, 298
Spurr v. Benedict, 834, 865
Staata v. Ten Eyck, 214, 270, 400, 414
Stackpole v. Robbins, 137
Stacy v. Kemp, 457
Stahley v. Irvine, 409, 668
Staley v. Ivory, 622
Stambaugh v. Smith, 289, 298
Stanard v. Eldridge, 260, 293, 315
Standifer v. Davis, 200, 207
Stanley v. Goodrich, 280
Stansbury v. Taggart, 453
Stanton v. Button, 64, 71
Stanton v. Tattersall, 21
Stansbury v. Ingelhart, 95, 97
Staples v. Dean, 402
Staples v. Flint, 433
Stapylton v. Scott, 482, 706
Star v. Bennett, 250
Stark v. Hill, 462, 685
Stark v. Homuth, 337
Stark v. OIney, 392, 402, 419, 423
Stark v, Sigelow, 46
Starke v. Henderson, 606
Starkey v. Neese, 444, 477, 648
Starnes v. Allison, 767
State v. Crutchfield, 158
State v. Gaillard, 82
State v. Holloway, 238
State v. Paup, 869
State v. Salyers, 127
Stead v. Baker, 849
Steadman v. Handy, 496
Stearns v. Hendersass, 521
Stebbins v. Wolf, 392, 397, 414
Steele v. Adams, 402
Steele v. Kinkle, 199, 242
Steele v. Mitchell, 148
Stehley v. Irvin, 409, 668
Steiner v. Baughman, 337, 362, 364,
517
Steiner v. Presby. Ch., 820
Steiner v. Zwickey, 47
Steinhardt v. Baker, 758
Steinhauer v. Witman, 666, 672, 674
Stelzer v. La Rose, 454, 466
Step v. Alkire, 492
Stephen's Appeal, 669, 775
Stephens v. Black, 507
Stephens v. Ells, 77
Stephens v. Evans, 444
Stephenson v. Harrison, 225
Sterling v. Peet, 156, 157, 271, 364,
399
Sternberg v. McGovern, 498
Stevans v. Evans, 273
Stevens v. Austin, 717
Stevens v. Banta, 757
Stevens v. Guppy, 189
Stevens v. Hampton, 58
Stevens v. Jack, 430
Stevens v. Van Ness, 587
Stevenson v. Buxton, 488
Stevenson v. Fox, 790
Ixviii
TABLE OF CASES.
[REFERENCES ARE TO PACKS.]
Stevenson v. Loehr, 354, 510, 749,
755, 798, 803
Stevenson v. Mathers, 510
Stewart v. Anderson, 525, 544
Stewart v. Conyngham. 737
Stewart v. Devine, 752
Stewart v. Drake, 311, 320, 358, 372,
405
Stewart v. Insall, 684
Stewart v. Noble, 231
Stewart v. Stewart, 861
Stewart v. West, 146, 204, 330, 356,
364, 436
Stiger v. Bacon, 843, 845
Stiles v. Winder, 571
Stinchfield v. Little, 156
Stingle v. Hawkins, 200
Stinson v. Sumner, 313. 538
Stipe v. Stipe, 365, 372
Stitzel v, Copp, 804
Stobert v. Smith, 754, 709
Stock v. Aylward, 514
Stockett v. Goodman, 53
Stockham v. Cheney, 620
Stockton v. Cook, 196, 198, 839
Stockton v. George, 200
Stockton v. Union Oil Co., 825
Stockwell v. Couillard, 340
Stoddard v. Smith, 58'.), 822, 826
Stokely v. Trout, 277
Stokes v. Acklen, 815. 845
Stokes v. Johnson, 828
Stokes v. Jones, 527
Stone v. Buckner, 198, 447, 453, 481
Stone v. Darnell, 137
Stone v. Gover, 615, 619
Stone v. Hale, 561, 509
Stone v. Hooker, 364
Stone v. Lord, 207, 480
Stone v. Sprague, 205
Stone v. Young, 11
Stoney v, Shultz, 125, 131
Storrs v. Barker, 813
Story v. Conger, 36
Story v. Kemp, 648
Stout v. Gully, 90
Stout v. Jackson, 216, 329, 391
Stow v. Stevens, 36
Slowell v. Bernett, 267
Stowell v. Haslett, 563
Stowell v. Robinson, 792
Strain v. Huff, 444
Strange v. Watson, 485
Stratton v. Kennard, 648
Strauss v. Benheim, 716, 771
Strawn v. Strawn, 542
Strayn v. Stone, 568
Streaper v. Fisher, 382
Slreeper v. Abeln, 323
Streeter v. Henley, 444
Streeter v. Illsley, 755
Strickland v. Draughan, 52
Strike's Case, 702, 703
Strodes v. Patton, 83
Strohauer v. Voltz, 286
Strong v. Downing, 241, 445, 838
Strong v. Lord, 238, 620
Strong v. Strong, 235
Strong v. Smith, 257
Strong v. Waddell, 460, 506, 553, 603,
617, 649
Stroud v. Kasey, 127
Strouse v. Drennan, 101
Stryker v. Vanderbilt, 74
Stuart v. Dutton, 70
Stuart v. Nelson, 356
Stubbs v. Page, 271
Sturtevant v. Jaques, 748, 767
Stutt v. Bldg. Asson., 293
Stuuts v. Browne, 137
Stuyvesant v. Weil, 754
Styes v. Bobbins, 576
Styles v. Blume, 488
Sugg v. Stone, 490
Summerall v. Graham, 615
Summerfield v. White, 541, 542
Sumner v. Barnard, 526
Sumner v. Rhodes, 563
Sumner v. Sessions, 106
Sumner v. Williams, 153, 155, 271,
414, 417
Sumter v. Welch, 356, 475
Sunderland v. Bell, 445
Supervisors v. Bed High School, 777
Surget v. Arighi, 352
Susquehanna Coal Co. v. Quick, 377,
389
Sutherland v. DeLeon, 95
Sutton v. Baillie, 323, 348
Sutton v. Page, 214
Sutton v. Schonwald, 91, 106
Sutton v. Sutton, 37, 132, 845, 861
Suydam v. Jones, 283, 379, 383, ",S9,
* 403
Swafford v. Whipple, 275, 392, 402
Swaggerty v. Smith, 140, 141
Swain v. Burnett, 492, 725
Swain v. Burnley, 848
Swain v. Fidelity Ins. Co., 756, 757
Swaisland v. Dearsley, 30, 32
Swan v. Drury, 20, 33, 35, 195, 205
Swartz v. Ballou, 421
Swasey v. Brooks, 263, 377, 375, 431
Swayne v. Lyon, 754
Sweem v. Steele, 212, 213, 224, 231
Sweet v. Brown, 340, 548
Sweetser v. Lowell, 545
Sweetzer v. Hummel, 206, 209
Swenk v. Stout, 427, 433
Swepson v. Johnson. 482, 498
Swett v. Patrick, 398, 418, 421, 423
Swiggart v. Harber, 88, 96
TABLE OF CASES.
[REFERENCES AISE TO PAGES.)
Ixix
Swihart v. Cline, 587
Swindell v. Richey, GOO
Sykes v. Robbins, 503
Syme v. Johnston, 798
Syme v. Trice, 10G
Symms v. James, 28, 30
T.
Tabb v. Binford, 329, 348
Taber v. Shattuck, 570
Taft v. Kessel, 36, 620, 623, 625, 634
Taggart v. Risley, 519, 549
Taggart v. Stanbury, 154, 155
Taintor v. Hemmingway, 38
Talbot v. Bedford, 356, 431, 434
Talbot v. Hooser, 60
Talbot v. Sebree, 699
Tallmadge v. Wallis, 335, 447, 450,
462, 464, 695
Tallman v. Green, 242, 515, 516
Tankersly v. Graham, 443, 615
Tanner v. Levingston, 274, 412
Tapley v. Lebaume, 271
Tapp v. Beverley, 41
Tapp v. Nock, 164, 795, 805
Tarbell v. Tarbell, 421
Tarpley v. Poage, 472
Tarlton v. Daily, 475
Tarwater v, Davis, 34
Tate v. Anderson, 140
Taul v. Bradford, 478, 601
Tavener v. Barrett, 148, 153
Taylor v. Barnes, 229
Taylor v. Davis, 156
Taylor v. Debar, 439, 517
Tayior v. Fleet, 193
Taylor v. Gilman, 285, 302
Taylor v. Harrison, 144
Taylor v. Heitz, 298, 317, 324
Taylor v. Holter, 421
Taylor v. Johnston, 207, 796
Taylor v. Kelly, 490
Taylor v. Leith, 248
Taylor v. Lane, 311, 382
Taylor v. Longworth, 207, 803
Taylor v. Lyon, 445, 635, 838, 842
Taylor v. Martindale, 30, 724
Taylor v. Porter, 47, 222, 224, 698
Taylor v. Preston, 38
Tay!or v. Rowland, 488
Taylor v. Shuffold, 543
Taylor v. Stewart, 436
Taylor v. Wainman, 545
Taylor v. Wallace, 401
Taylor v. Williams, 25, 164, 192, 718,
725
Teague v. Wade, 806
Teague v. Whaley, 301, 308, 418
Teal v. Langdale* 202
Teal v. Wood worth. 541
Tcderall v. Bouknight, 103
Tefft v, Munson, 531
Templeton v. Falls Lumber Co.. 115
Templeton v. Jackson, 676
Templeton v. Kramer, 447
Ten Broeck v. Livingston, 822
Tendring v. London, 480, 809
Tennell v. Dcwilt, 698
Tennell v. Roberts, 698
Terrell v. Farrar, 827
Terrell v. Herron, 652
Terrett v. Imp. Co., 282
Territt v. Taylor, 528
Terry v. Cutter, 129, 130
Terry v. Drabenstadt, 409, 418 4*2
424
Terry v. George, 206
Terry v. Westing, 777
Terte v. Maynard, 503
Tevis v. Richardson, 738, 742, 7f>;}
Tewksbury v. Howard, 73$
Texas Lumber Mfg. Co. v. Branch
181
Tex. Ry. Co. v. Gentry, 448
Thacker v. Booth, 737
Thackeray, Re, 714
Thackeray v. Wood, 147
Tharin v. Ficklin, 20
Thayer v. Clemence, 313. 399
Thayer v. Palmer, 280, 332
Thayer v. Sheriff, 119
Thayer v. Torrey, 146
Thayer v. Wendell, 155
Thayer v. White, 34, 703
Thielen v. Richardson, 522
Thomas v. Bland, 381
Thomas v. Bartow, 22 -
Thomas v. Couitas, 234, 251
Thomas v. Davidson, 78, 81, 818
Thomas v. Dering, 500
Thomas v. Dockins, 571
Thomas v. Fleming, 727
Thomas v. Glazener, 118. 123
Thomas v. Harris, 668, 669, 670
Thomas v. Meier, 65
Thomas v. Perry, 259
Thomas v. Phillips, 835
Thomas v. Powell, 648
Thomas v. St. Paul's Ch., 496
Thomas v. Schee, 160
Thomas v. Stickle, 363, 368, 370, 374,
550
Thomas v. Wyatt, 45
Thompson v. Adams, 508
Thompson v. Avery, 726
Thompson v. Bra/ile, 433
Thompson v. Christian, 443, 657
Thompson v. Dallas, 189, 616. 771.
813
Thompson v. Doe. 99
Thompson v. Dullis, 616
Thompson v. Gould, 596
Ixx
TABLE OF CASKS.
[BEFEREXCF.S ARE TO PAGES.]
Thompson v. Guthrie, 214, 222, 391,
414
Thompson v. Hart, 99
Thompson v. Hawley, 33, 35
Thompson v. Jackson, 866
Thompson v. Kilcrease, 224
Thompson v. Lee, 699
Thompson v. Marshall, 558, 569
Thompson v. McCord, 475
Thompson v. Merrill, 541
Thompson v. Miles, 586
Thompson v. Milliken, 737
Thompson v. Morrow, 414
Thompson v. Munger, 110, 111
Thompson v. Noble, 597
Thompson v. Sanders, 382
Thompson v. Schenectadv, &c., Co.,
342
Thompson v. Shattuck, 380
Thompson v. Shepherd, 443
Thompson v. Shoemaker, 34, 461
Thompson v. Thompson, 44. 280
Thompson v. Tolmie, 98, 99, 101
Thorn v. Mayer, 766
Thorne v. Clark, 420
Thorndike v. Norris, 519
Thornton v. Mulquinne, 103
Thorp v. Keokuk Coal Co., 469, 648
Thrasher v. Finkard, 778
Thredgill v. Pintard, 406, 507, 508
Threlkeld v. Campbell, 78. 80, 141
Threlkeld v. Fitzhugh, 2i(i, 391, 394,
414
Thrift v. Fritz, 128
Thurgood v. Spring, 470
Thurman v. "Cameron, 62, 63
Thurmond v. Brownson, 136, 348
Thweatt v. McLeod, 661
Tibbetts v. Ayers, 462, 464, 467
Tibbetts v. Lesson, 292
Tiernan v. Roland, 774, 808
Tilley v. Bridges, 109
Tilley v. Land Co., 492
Tilley v. Thomas, 803
Tillotson v. Boyd, 262
Tillotson v. Gesner, 716, 817
Tillotson v. Grapes, 450, 461, 676
Tillotson v. Kennedy, 545
Tillotson v. Pritchard, 388, 397
Tilton v. Emery, 520
Timms v. Shannon, 446, 4.~>7. 609, 617
Tindall v. Cobham, 615, 694
Tindall v. Conover, 33, 34, 35
Tinney v. Ashley, 33, 208
Tinney v. Watson, 121
Tirnbey v. Kinsey, 228
Tison v. Smith, 793, 808
Tobin v. Bell, 33
Tobin v. Larkin, 492
Tod v. Gallaher, 512
Todd v. Down, 83
Todd v. Hoggart, 592
Todd v. McLaughlin, 698
Todd v. Union Dime Sav, Bank, 707,
764
Tollensen v. Gunderson, 679
Tompkins v. Hyatt, 189, 192, 610,
695, 811
Tomlin v. McChord, 763
Tomlinson v. Savage, 739, 827
Tone v. Brace, 836
Toney v. Toney, 588
Tong v. Matthews, C92
Toops v. Snyder, 566
Toole v. Toole, 77, 759, 812
Tooley v. Chase, 559
Tooley v. Kane, 88
Toplitf v. Atl. L. & Imp. Co., 779
Topp v. White, 245, 492, 587, 728
Torrance v, Bolton, 27, 28, 30
Tourville v. Naish, 453, 471
Towles v. Turner, 126
Town v. Needham, 132, 386
Towns v. Barrett, 584
Townsend v. Hubbard, 55
Townsend v. Lewis, 798
Townsend v. Morris, 329, 348, 433
Townsend v. Smith, 140
Townsend v. Tufts, 202
Townsend v. Ward, 286
Townsend v. Weld, 284, 291, 403
Townshend v. Goodfellow, 769, 808
Tracy v. Gunn, 224
Trapier v. Waldo, 77, 91
Trask v. Vinson, 214, 461, 483
Traver v. Halstead, 35, 205
Treat v. Orono, 683
Tremaine v. Lining, 148
Treptow v, Buse, 118
Trevino v. Cantu, 504, 580, 861
Trevivan v. Lawrence, 531
Trice v. Kayton, 305
Trinity Church v. Higgins, 282
Trigg v. Reade, 865
Trimmer v. Gorman, 746, 831
Troost v. Davis, 512
Troutman v. Cowing, 496
Troxell v. Johnson, 356
Troxell v. Stevens, 356, 381, 544
Trull v. Eastman, 526, 546, 550
Trulock v. Peeples, 62
Trumbo v. Lockridge, 445, 848
Trust Co. v. Muse, 80
Trustees v. Lynch, 596, 776
Trustees N. Y. Pub. School, In re,
746
Truster v. Snelson, 277
Trutt v. Spott, 332
Tryce v. Dittus, 804
Tubbs v. Gatewood, 67
Tucker v. Clarke, 536
Tucker v. Gordon, 126, 683, 684
TABLE OF CASES.
Ixxi
[HEFEBENfKS ARE TO PAGES.]
Tucker v. McArthui, 311, 377
Tucker v. Woods, 35, 777
Tudor v. Taylor, 140
Tufts v. Adams. 202. 292, 313, 322,
359, 399
Tuggle v. Hamilton, 3(>G
Tuite v. Miller, 260, 3C2, 515
Tull v. Royston, 294
Tully v. Davis, 63
Turk v. Sidles, 89, 127
Turnbull v. Gadsden, 685
Turner v. Beaurain, 30
Turner v. Goodrich, 370, 373, 40-1,
421
Turner v. Harvey, 242
Turner v. Howell, 195
Turner v. McDonald, 729, 741
Turner v. Miller, 422
Turner v. Nightingale, 586
Turner v. Reynolds, 776
Turner v. Turner, 869
Tinney v. East Warren Co., 61
Turney v. Hemminway, 600
Tustin v. Faught, 46
Twambly v. Henlev, 256
Tweddell v. Tweddell, 286
Tweed v. Mills, 22, 29, 38
Tu-ohig v. Brown, 198, 601
Tybee v. Webb, 648
Tyler v. Young, 34, 461
Tymason v. Bates, 337
Tyree v. Williams, 764
Tyson v. Belcher, 106
Tyson v. Brown, 115
Tyson v. Eyrick, 214, 223
Tyson v. Passmore, 483
U.
Uhl v. Langhran, 757
Uhl v. Ohio R. R. Co., 439
Uhler v. Hutchinson, 59
Underwood v. Birchard, 351
Underwood v. Parker, 622
Underwood v. West, 695
Union Mut. Life Ins. Co. v. Crowl, 73
Union Nat. Bank v. Pinner, 843, 845
Union Pac. R. Co. v. Barnes, 648, 855
Union Safe'Dep. Co. v. (Jhisholm, 1(!0
Union Stave Co. v. Smith. 615
United States v. Bank of Georgia, 648
United States v. Cal., etc., Land Co.,
53
United States v. Duncan, 122
University v. Joslyn, 352, 360
University v. Lassiter, 106
Updike v. Abel, 249
Upham v. Hamill, 119, 121
Upperton v. Nicholson, 163
Upshaw v. Debow, 246
Upson v. Howe, 92, 104
Upton v. Maurice, 748, 793
Upton v. Trebilcock, 250
Urmston v. Pate, 648, 861
Utica, etc., R. Co. v. Gates, 322
V.
Vail v. Nelson, 37, 193
Valle v. Clemens, 548
Valle v. Fleming, 136, 138, 513
Vanada v. Hopkins, 148, 154
Van Amringe v. Morton, 183
Van Benthuysen v. Crasper, 610
Vance v. Fore, 52
Vance v. House, 631, 638, 644, 738,
838
Vance v. Schuyler, 57, 60
Vance v. Shroyer, 622
Vancouver v. Bliss, 189
Vandever v. Baker, 31, 88
Vanderkarr v. Vanderkarr, 356
Van Epps v. Harrison, 695
Van Epps v. Schenectady, 35, 150,
155, 259, 826
Van Hoesen v. Benham, 259
Van Home v. Crain, 379
Van Lew v. Parr, 472, 475, 639, 680
Van Ness v. Bank, 58
Van Nest v. Kellum, 273
Van Nostraud v. Wright, 258
Vannoy v. Martin, 120
Van Rensselaer v. Kearney, 298, 439,
549
Van Rensselaer v. Van Rensselaer,
362
Van Riper v. Williams, 838
Van Riswick v. Wallach, 670
Van Schaick v. Lese, 736, 777
Vanscoyoc v. Kemler, 140, 141
Van Waggoner v. McEwen, 454, 838
Van Wagner v. Van Nostrand, 2.">8,
308, 333
Van Winkle v. Earl, 286
Van Wyck v. Richardson, 755
Vardaman v. Lawson, 23, 36, 148
Varick v. Briggs, 385
Varick v. Edwards, 547
Vather v. Hinds, 180
Vather v. Lytle, 118, 141
Vaughn v. Smith, 686
Vaughn v. Stuzaker, 260
Veeder v. Fonda, 88
Verdin v. Slocum, 128
Vernol v. Vernol, 195, 661
Vest v. Weir, 118, 602
Vick v. Percy, 446, 848
Viele v. R, Co., 190
Vielle v. Osgood, 44
Vincent v. Hicks, 3G7
Vivian v. Stevens, 445
Vining v. Leeman, 444, 622, 695
Volz v. Steiner, 755. 790
Voorhees v. Bank, 88, 94
Ixxii
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Voorhees v. De Meyer, 494, 550, 732,
798
Voorhis v. Bank, 90
Voorhis v. Forsyth, 297, 326
Vose v. Bradstreet, 51
Vought v. Williams, 721, 724, 746
Vreeland v. Blauvelt, 529, 707, 712,
768
Vrooman v. Phelps, 682
W.
Wachendorf v. Lancaster, 83, 402
Wacker v. Straub, 415, 447
VVaddell v. VVaddell, 768
Waddell v. Wolfe, 28, 29
Wade v. Comstock, 432
Wade v. Greenwood, 738
Wade v. Killough, 207, 615
Wade v. Lindsay, 527
Wade v. Percy, 844
Wade v. Thurman, 661, 681
Wadhams v. Inness, 409
Wadhams v. Swan, 259, 453
Wadleigh v. Glines, 541, 542
Wadsworth v. Wendell, 74
Wagenblast v. Washburn, 568
Waggle v. Worthy, 348
Waggoner v. Waggoner, 731
Wagner v. Finnegan, 363
Wagner v. Hodge, 747, 760, 766
Wagner v. Perry, 199, 239, 245, 778
Wailes v. Cooper, 446, 453, 847, 848
Wait v. Maxwell, 258
Wait v. Smith, 171
Wakeman v, Dutchess of Rutland.
147, 154, 861
Walbridge v. Day, 118, 120, 683
Walden v. Gridley, 118, 141, 142
Waldo v. Long, 320, 417
Waldron v. McCarty, 369, 371
Waldron v. Zollikoffer, 37
Wales v. Bogne, 92
Walke v. Moody, 120
Walker v. Arnold, 519
Walker v. Barnes, 831
Walker v. Constable, 594, 629
Walker v. Deane, 371
Walker v. Deaver, 265, 300, 311, 321,
346
Walker v. France., 660, 673
Walker v. Gilbert, 446, 638
Walker v. Oilman, 754
Walker v. Hall, 344, 540
Walker v. Johnson, 626
Walker v. Moore, 212, 215, 220
Walker v, Ogden, 507, 699
Walker v. Quigg, 195
Walker v. Ruffner, 107
Walker v. Towns, 613
Walker v. Wilson, 258, 448
Wall v. Mason, 512
Wallace v. Harmsted, 182
Wallace v. Maxwell, 543
Wallace v. McLaughlin, 485, 492,591
Wallace v. Minor, 528
Wallace v. Pereles, 387, 424
Wallace v. Talbot, 410
Walling v. Kinnaird, 20 /
Wallison v. Watkins, 460
Walsh v. Barton, 704, 783
Walsh v. Bayard, 488
Walsh v. Dunn, 418, 428
Walsh v. Hall, 236, 684
Walmsley v. Stalnaker, 849
Walter v, De Graaf, 46, 757
Walter v. Johnston, 449
Walters v. Miller, 201
Walther v. Briggs, 286, 523
Walton v. Bonham, 700, 838
Walton v. Campbell, 381, 421
Walton v. Cox, 137, 223, 424, 430
Walton v. Meeks, 718, 720, 729, 746
Walton v. Reager, 110, 112
Walton v. Wuterhouse, 520
Waltz v. Barroway, 99
Wamsley v. Hunter, 589
W T anner v. Sisson, 563
Ward v. Ashbrook, 274, 300, 363
Ward v. Bartholomew, 155
Ward v. Mclntosh, 436
Ward v. Packard, 242
Ward v. Williams, 110, 112
Ward v. Wiman, 65, 240, 684, 687
Warde v. Dixon, 713
Wardell v. Fosdick, 13, 661, 684, 687
Ware v. Houghton, 446
Ware v. Weatherall, 394, 400
Warfield v. &rdman, 295
Waring v. Ward, 286
Wark v. Willard. 534
Warner v. Hatfield, 34, 777
Warner v. Helm, 123
Warner v. Sisson, 561. 563
Warren v. Banning, 711, 718, 720, 769
Warren v. Carey, 241
Warren v. Richardson, 184
Warren v. nichmond, 195, 200
Warren v. Stoddart, 281, 317, 373,
471
Warren v. Wheeler, 214
Warwick v. Norvell, 842
Washer v. Brown, 509
Wash. City Bank v. Thornton, 147,
281, 311, 334
Waters v. Bagley, 311
Waters v. Mattin-ly, 858
Waters v. Thorn, 188
Waters v. Travis, 493. 826
Watkins v. Holman, 769
Watkins v. Hopkins, 617
Watkins v. Warsell, 519
Watkins v. Wimings, 132
TABLE OF CASES.
Ixxiii
[REFERENCES ARE TO PAGES.]
Watson v. Baker, 249
Watson v. Church, 755
Watson v. Hoy, 78
Watson v. Kemp, 624
Watson v. Reissig, 123
Watt v. Rogers, 192
Watts v. Fletcher, 308
Watts v. Holland, 725
Watts v. Parker, 256
Watts v. Waddle, 698, 769, 811
Watts v. Wellman, 287
Waugh v. Land, 153
Way v. Raymond, 203
Wead v. Larkin, 388
Weatherbee v. Bennett, 301,, 325
Weatherford v. James, 501
Weaver v. Wilson, 444, 636
Webb v. Alexander, 369, 434
Webb v. Chisholm, 707
Webb v. Coons, 137
Webb v. Holt, 345, 417
Webb v. Hutt, 68
Webb v. Hughes, 193, 801
Webb v. Kirby, 28
Webb v. Pond, 282
Webb v. Spicer, 593
Webb v. Stephenson, 194, 793, 807
Webber v. Cox, 127
Webber v. Webber, 264
Weber v. Anderson, 404, 409
Webster v. Conley, 154
Webster v. Hall, 65
Webster v. Haworth, 125, 682
Webster v. Kings Co. N. Co., 599,
715, 774, 790, 794, 828
Weddall v. Nixon, 715
Wedel v. Herman, 72
Weed Machine Co. v. Emerson, 545
Weeks v. Toms, 754
Weems v. Love Manf'g Co., 84
Weems v. McCaughan, 342
Weidler v. Bank, 118, 125, 674
Weightman v. Reynolds, 5.'59
Weightman v. Spofford, 648
Weil v. Radley, 716, 737, 789
Weinstock v. Levison, 694, 757
Weiss v. Binnian, 199
Welbon v. Welbon, 341
Welch v. Davis, 157
Welch v. Button, 25
Welch v. Hoyt, 112
Welch v. Lawson, 211
Welch v. Matthews, 811
Welch v. Sullivan, 63
Welch v. Watkins, 589
Weld v. Traip, 299
Wellborn v. Finley, 519
Wellborn v. Schist, 482
Weller v. Trust Co., 304
Welles v. Cole, 59
Wellman v. Dismukes, 446, 589
Wells v. Abernathy, 214, 219
Wells v. Day, 19, 202, 827
Wells v. Lewis, 807
Wells v. Ogden, 568
Wells v. Smith, 208
Wells v. Walker, 180
Wells v. Yates, 566
Welsh v. Bayard, 488
Welsh v. Dutton, 551
Walshbillig v. Drennart, 556
Wendell v. North, 424, 426
Wentworth v. Goodwin, 446
Wesco v. Kern, 377, 385, 390
Wesley v. Eels, 706, 712, 780
Wessel v. Cramer, 781
West v. Shaw, 589
West v. Spaulding, 281
West v. Stewart, 259, 352
West v. West, 396
Westall v. Austin, 798
West B'way Real Estate Co. v. Bay-
liss, 658
Westbrook v. McMillan, 476
West Coast Mfg. Co. v. Imp. Co.,
392, 410
Western Mining Co. v. Coal Co., 545,
546
Westervelt v. Mattheson, 492
Westfall v. Washlagel, 738
Westhafer v. Koons, 754
Westheimer v. Reed, 651
Westrope v. Chambers, 263, 368
Wetherbee v. Bennett, 301, 325
Wetherell v, Brobst, 492
Wetmore v. Bruce, 587, 594, 596, 776
Wetzel v. Richcreek, 256, 360, 407
Weyand v. Tipton, 770
Whallon v. Kauffman, 338
Whatley v. Patton, 397
Wheat v. Dotson, 443, 464, 620, 695
Wheatley v. Slade, 491
Wheaton v. Wheaton, 868
Wheeler v. Hatch, 256, 271, 410
Wheeler v. McBain, 519
Wheeler v. Sohier, 382, 383
Wheeler v. Standley, 446, 856
Wheeler v. Styles, 214, 406, 552
Wheeler v. Tracy, 20, V75
Wheeler v. Wayne Co., 332, 343
Wheelock v. Overshiner, 431
Wheelock v. Thayer, 388
Whisler v. Hicks, 444, 459, 469, 470
Whitbeck v. Cook, 260, 304
Whitbeck v. Waine, 452
White v. Brocaw, 340. 548
White v. Dobson. 492
White v. Ewing, 447, 448
White v. Foljambe, 134, 154, 744 t
White v. Furtzwangler, 450
White v. Graves. 181
White v. Hardin, 695
Ixxiv
TABLE OF CASES.
[REFEKENCES ABE TO PAGES.]
White v. Lowery, 6C8, 683
White v. Mooers, 481
White v. Park, 140
White v. Patton, 527, 531
White v. Presly, 382,
White v. Sayre, 54
White v. Seaver, 681
White v. Stevens, 269
White v. Stretch, 843
White v. Sutherland, 235
White v. Tucker, 222, 698
White v. Whitney, 359, 382, 386, 398
White v. Williams, 428
Whitehead v. Brown, 561
Whitehead v. Carr, 150
Whitehill v. Gotwalt, 343, 344
Whitehurst v. Boyd, 34, 589
Whiteman v. Castleburg, 618
Whitesides v. Cooper, 347
Whitesides v. Jennings, 214
Whitesides v. Magruder, 008, 323
Whitlock'v, Denlinger, 234, 444, 622,
635
Whitlock, Ex parte, 758
Whitman v. Westman, 573
Whitmore v. Parks, 122
Whitney v. Allaire, 14, 191, 661, 633,
686
Whitney v. Arnold, 70
Whitney v. Brooks, 141
Whitney v. Cochran, 619
Whitney v. Dewey, 156, 415
Whitney v. Dinsmore, 202, 313, 372,
377
Whitney v. Lewis, 447, 462
Whitney v. Railroad Co.. 301
Whitney v. Smith, 568
Whitson v. Grosvenor, 519, 522
Whittaker v. Kone, 259
Whittaker v. Miller, 44
Whittemore v. Whittemore, 491, 825
Whittemore v. Farrington, 560, 648,
657, 862
Whitten v. Krick, 291, 311, 346
Whittey v. Lide, 838
Whittington v. Corder, 21
Whitworth v. Stuckey, 477, 624, 639,
645
Whitzman v. Hirsh, 380, 401
Wickham v. Ernest, 615
Wickham v. Evered, 694
Wickliff v. Clay, 587, 698, 700
Wickliff v. Lee, 695, 742
Wicklow v. Lane, 521
Wickman v. Robinson, 625
Widmer v. Martin, 815
Wieland v. Renner, 737
Wiesner v. Zaun, 519
Wiggins v. McGimpsey, 35, 195, 199,
600, 611, 616
Wiggins v. Pender, 357, 369, 377,390,
422
Wight v. Gottschalk, 348
Wight v. Shaw, 548
Wightman v. Reside, 821
Wilburn v. McCalley, 115
Wilcox v. Latin, 187, 695
Wilcox v. Lucas, 571
Wilcox v. Musche, 315
Wilcoxon v. Galloway, 492
Wilde v. Fort, 184, 220
Wilder v. Ireland, 255, 259, 350, 425,
428, 437
Wilder v. Smith, 848
Wiley v. Fitzpatrick, 634, 841
Wiley v. Howard, 241, 615, 622, 79G
Wiley v. White, 134, 628, 650, 65(i
Wilgus v. Hughes, 505
Wilhelm v. Federgreen, 742, 743
Wilhelm v. Fimple, 203, 224, 599,
702
Wilkerson v. Allen, 79
Wilkerson v. Chadd, 444
Wilkins v. Hogue, 447, 848
Wilkins v. Irvine, 599
Wilkinson v. Green, 506
Wilkinson v. Roper, 51
Willan v. Willan, 853, 871
Willard v. Twitchell, 255
Wilier v. Weyand, 497
Willets v. Burgess, 315, 321
William Farrell Co. v. Deshon, 472
Williams v. Beeman, 377, 401, 415
Williams v. Baker, 459
Williams v. Burg, 382, 422, 426, 428
Williams v. Burrell, 408, 417
Williams v. Carter, 698, 734
Williams v. Cudd, 576
Williams v. Cummings, 127
Williams v. Daly, 164, 165
Williams v. Doolittle, 774
Williams v. Edwards, 492, 500, 726
Williams v. Fowle, 282
Williams v. Fryburger, 452
Williams v. Glenn, 78, 81, 87
Williams v. Glenton, 229
Williams v. Hathaway, 657
Williams v. Hogan, 256, 259
Williams v. Johnson, 117
Williams v. Lee, 837
Williams v. Mansell, 482
Williams v. Marx, 714
Williams v. McDonald, 109
Williams v. Mitchell, 700, 855
Williams v. Monk, 597
Williams v. Pendleton, 505
Williams v. Peters, 519
Williams v. Pope, 497
Williams v. Porter, 737, 815
Williams v. Potts, 35
Williams v. Reed, 654
TABLE OF CASES.
[REFERENCES ARE TO PAGES.]
Ixxv
Williams v. Rogers, 698, 700, 703
Williams v. Sax, 458
Williams v. Schembri, 757
Williams v. Seawell, 759
Williams v. Shaw, 363, 425
Williams v. Thomas, 245, 253, 405,
613
Williams v. Wetherbee, 263, 383, 390,
426, 431, 436
Williams v. Williams, 519
Williams v. Wilson, 699
Williamson v. Banning, 763
Williamson v. Field, 78, 752
Williamson v. Johnston, 121
Williamson v. Neeves, 595, 795
Williamson v. Raney, 607, 695
Williamson v. Test, 402
Williamson v. Williamson, 418, 433
Willis v. Saunders, 568, 570, 573
Willison v. Watkins, 507
Wills v. Porter, 187
Wills v. Primm, 433, 435
Wills v. Slade, 737
Wills v. Van Dyke, 119
Willson v. Willson, 271, 318, 391, 414
Wilmot v. Wilkinson, 202
Wilsey v. Dennis, 145, 732, 781, 782
Wilson v. Breyfogle, 688
Wilson v. Bumfield, 497, 826
Wilson v. Carey, 31
Wilson v. Cochran, 158, 301, 375, 388,
665, 668, 671, 675
Wilson v. Cox, 492
Wilson v. Deen, 863
Wilson v. Forbes, 258, 265, 271, 272
Wilson v. Getty, 35, 36, 595
Wilson v. Higbee, 245, 664
Wilson v. Holden, 16
Wilson v. Holt, 136, 138
Wilson v. Inloes, 51
Wilson v. Irish, 144, 350, 676
Wilson v. Jeffries, 730
Wilson v. Johnson, 52
Wilson v. Jordan, 443
Wilson v. King, 573
Wilson v. Mason, 180
Wilson v. McElwee, 426
Wilson v. McNeal, 73
Wilson v. McVeagh, 770
Wilson v. Moore, 472
Wilson v. Parshall, 277
Wilson v. Peele, 349, 416
Wilson v. Raben, 79
Wilson v. Riddick, 195
Wilson v. Robertson, 215
Wilson v. Shelton, 402
Wilson v. Smith, 90, 105
Wilson v. Spencer, 212, 215
\Vilson v. Stewart, 576
Wilson v. Tappan, 732, 766, 798
Wilson v. Taylor, 384
Wilson v. Traer, 58
Wilson v. Wetherly, 507
Wilson v. White, 111, 114, 752
Wilson v. Widenham, 256, 387
Wilson v. Williams, 496
Wilson v. Wood, 144, 145
Wilson v. Zajicek, 830
Wilson's Appeal, 067, 671, 673
Wilson's Case, 175
Wilt v. Franklin, 402
Wiltsie v. Shaw, 768
Wilty v. Hightower, 356, 3(50, 371,
638, 676, 848
Wimberg v, Schwegeman, 622, 838
Wimberly v. Collier, 423, 420
Winans v. Huyck, 566
Winch v. Bolton, 445
Windle v. Bonebrake, 511
Winfrey v. Drake, 535
Wing v. Dodge, 109
Wingate v. Hamilton, 493, 497
Wingo v. Brown, 119, 121, J25
Wingo v. Parker, 519
Winkler v. Higgins, 62
Winne v. Reynolds, 602, 776, 823
Winningham v. Pennock, 311, 321
Winnipiscogee Paper Co. v. Eaton
409, 418
Winnipiscogee Lake Mfg. Co. v Per-
ley, 559
Winslow v. Clark, 138
Winslow v. Cornell, 137
Winslow v. McCall, 360
Winstead v. Davis, 446
Winter v. Dent, 126
Winter v. Elliott, 703
Winter v. Stock, 710
Wintermute v. Snyder, 874
Winton v. Sherman, 207
Wise v. Postlewait, 60
Wisely v. Findlay, 53
Wiswall v. McGowan, 487, 500
Witbeck v. Waine, 661
Withers v. Baird, 58, 150, 589, 763
Withers v. Morel I, 841
Withers v. Powers, 360
Witherspoon v. McCalla, 702
Withey v. Munford, 383, 385
Withouse v. Schaack, 566
Wittbecker v. Waiters, 572
Witter v. Biscoe, 148
Wofford v. Ashcroft, 839. 843
Wohlforth v. Chamberlain, 226, 716
Wolbert v. Lucas, 670, 67 1
Wolcott v. Johns, 727
Wold v. Newguard, 829
Wolf v. Fogarty, 63
Wolford v. Phelps, 126
Wollenberg v. Rose, 721, 733
Wolverton v. Stevenson, 761
Wornack v. Coleman, 771
Ixxvi
TABLE OF CASES.
[REFERENCES ABE TO PAGES.]
Wood v. Bibbins, 392
Wood v. Colvin, 130
Wood v. Downes, 188
Wood 1 v. Forncrook, 362
Wood v. Griffith, 491
Wood v. Johnson, 252
Wood v. Lewis, 121
Wood v. Majoribanks, 774
Wood v. Mann, 78, 181
Wood v. Perry, 506
Wood v. Thornton, 412
Woodbury v. Luddy, 496
Woodcock v. Bennett, 21, 483, 489
Woodfolk v. Blount, 653
Woodhead v. Foulds, 737
Wooding v. Grain, 799, 805
Woodruff v. Bunce, 447, 639, 836,
838, 841
Woodruff v. Depue, 843
Woodward v. Brown, 311
Woods v. North, 239, 538, 806
Woodward v. Allen, 366, 426, 434
Woodward v. Rogers, 472, 473
Woodward v. Woodward, 173
Woodward's App., 38
Woodworth v. Jones, 447
Woolcot v. Peggie, 503
Wooley v. Hampton, 153
Wooley v. Hineman, 265. 270, 313
Wooley v. Newcombe, 275, 277, 279
Workman v. Mifflin, 354
Worley v. Northcott, 615, 618
Wortin v. Howard, 113
Worthington v. Curd, 198, 291, 841
Worthington v. Hylyer, 51
Worthington v. McRoberts, 81, 83, 109
Worthington v. Warrington, 28, 223
Worthy v. Johnson, 157
Wotton v, Hele, 351, 434
Wragg v. Meade, 324
Wray v. Furniss, 836, 838
Wright v. Blackley, 615, 796
Wright v. Carvillo, 13, 661, 662
Wright v. Delafield, 563, 616
Wright v. Dickson, 589, 696
Wright v. Edwards, 91
Wright v. Griffith, 189
Wright v. Lasselle, 265
Wright v. Mayer, 736
Wright v. Nipple, 265, 410, 416
Wright v. Phipps, 371, 372. 458
Wright v. Sperry, 386
Wright v. Swayne. 587
Wright v. Welis, 59
Wright v. Wright, 622
Wright v. Young, 496
Wnesthoff v. Seymour, 235
Wyant v. Tuthill, 79
Wyatt v. Garlington, 625
Wyatt v. Rambo, 113
Wyche v. Green, 561
Wyche v. Macklin, 682
Wyman v. Ballard, 315
Wyman v. Brigden, 359
Wyman v. Campbell, 116
Wyman v. Heald, 624
Wynn v. Harmon, 544, 548
Wynne v. Morgan, 799
Y.
Yancey v. Lewis, 849
Yancey v. Tatlock, 291
Yazel v. Palmer, 633
Yeates v. Prior, 47, 241
Yock v. Mann, 519
Yocum v. Foreman. 89, 90
Yoder v. Swearingen, 704
Yokum v. McBride, 229
Yokum v. Thomas, 420
York v. Allen, 458
York v. Gregg, 683, 826
Yost v. Devault, 496
Youmans v. Edgerton, 592
Young v. Bumpass, 238
Young v. Butler, 356, 447, 639
Young v. Clippenger, 340, 545
Young v. Collier, 798
Young v. Figg, 460
Young v. Gower, 301
Young v. Harris, 233, 621, 628, 680,
696, 700
Young v. Hervey, 782
Young v. Hopkins, 245, 246
Young v. Lillard, 732
Young v. Lofton, 468
Young v. Lorain. 101, 551
Young v. McCherry, 78, 195. 639
Young v. McCorniick, 838
Young v. Paul, 35, 495, 499, 830
Young v. Rathbone. 753
Young v. Sincombe, 615
Young v. Stevens, 695
Young v. Triplett, 381
Young v. Wright, 36
Youngman v. Linn, 667, 670
Younie v. Walrod, 195
Z.
Zent v. Picken, 256, 258
Zerfing v. Stelig, 644
Zibley v. Sears, 41)6, 497
Zimmerman v. Lynch, 342
Zimmerman v. Owen, 721
Zollman v. Moore, 869
Zorn v. McParland, 812
Zuenker v. Kuehn, 855, 866
MARKETABLE TITLE TO REAL ESTATE
AND
PURCHASERS OF DEFECTIVE TITLES.
BOOK I.
OF REMEDIES IN AFFIRMANCE OF THE CONTRACT OF SALE.
OF AFFIRMANCE BY PROCEEDINGS AT LAW.
OF PROCEEDINGS AT LAW WHILE THE CONTRACT IS EXECUTORY.
CHAPTER I.
INTRODUCTORY.
Title to real estate has been defined to be " the means whereby
the owner of lands hath the just possession of his property," l but
the expression is commonly used in a figurative sense to denote the
muniments of title of the owner, or that whole body of documents
or facts which evidence the just ownership of lands.
Titles are either (1) good; (2) doubtful; or (3) absolutely bad.
A good title consists in the rightful ownership of the property and
in the rightful possession thereof, together with the appropriate
legal evidence of rightful ownership. 2 The rightful owner of an
estate may be in the rightful possession thereof, but unless he is
supplied with documentary evidence of title, where he holds by
purchase, or can prove his right by the testimony of witnesses or
other instruments of evidence, where he holds as heir, that is, by
descent, his title cannot be said to be good. Sir William Black-
stone declares that a perfect title consists in the union of the posses-
1 1 Co. Inst.845.
8 In Jones v. Gardner, 10 Johns. (N. Y.) 269, it was said that title, as between
vendor and purchaser, means the legal estate in fee, free and clear of all valid
claims, liens or incumbrances whatever.
2 MARKETABLE TITLE TO KEAL ESTATE.
sion, the right of the possession and the right of property in one
and the same person. 1 This is true in a general sense, but the defi-
nition scarcely embraces all the elements of a good title, as that
term is employed between vendor and purchaser. A purchaser in
possession who has paid the whole purchase money, but who has
not received a conveyance, may be said to have the possession, the
right of possession and the right of property, but not having
received a deed, the indispensable evidence of legal title in such a
case, his title cannot be said to be good.
In our definition of a good title we have not considered as an ele-
ment the freedom of the estate from liens, charges or incumbrances
of any kind. Strictly speaking, an incumbrance, unless created by
deed, such as a mortgage or deed of trust, operates no change in the
title, though it is common, as between vendor and purchaser, to
speak of the title as bad when the estate is incumbered. And even
mortgages and deeds of trust, though there is in each case a nom-
inal transfer of the legal title, being mere securities for the pay-
ment of debts, are very generally held to create chattel interests
only in the mortgagee or grantee, the legal title really remaining in
the mortgagor or grantor. 2 But, while technically the title to an
incumbered estate may be good, in the sense that it would support
an action of ejectment, a purchaser, without notice of the incum-
brance, who by his contract is entitled to demand a good title, can
no more be required to accept the title if the estate is incumbered
than he could be if the paramount title were outstanding in a
stranger.
Doubtful titles are those which turn 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. A subsequent chapter of this work is devoted
to the equitable doctrine of doubtful titles ; it is, therefore, deemed
unnecessary to consider them further here. 8
Absolutely bad titles are those which lack not necessarily all, but
some one or more of the essentials of a good title, and, as between
vendor and purchaser, may be such though the paramount title be
1 1 Bl. Com. 195.
* 2 Warvelle Vend. 649.
Post, ch. 31.
INTRODUCTORY. 3
really in the vendor. Thus, if the vendor, being the rightful
owner, is out of possession, and an adverse claimant is wrongfully
in possession, the title will be bad so far as the purchaser is con-
cerned, though amply sufficient to enable the vendor to recover the
premises in ejectment. 1
When a purchaser of real property discovers that the title is bad
he must choose between a large variety of measures which may be
taken for his relief. The most important thing to be considered, in
the first place, is, whether the contract is executory or executed. A
contract for the sale of lands is said to be executory until the pur-
chaser has received a conveyance ; after a conveyance has been
made the contract is said to be executed, whether the purchase
money has or has not been paid. If the contract remains execu-
tory, he is next to determine whether he will adopt a remedy which
affirms the agreement or one which rescinds or disaffirms the con-
tract. If he elects to affirm, there are several courses open to him.
At law he may maintain an action to recover damages for a breach
of the vendor's express or implied contract to convey a good title ; 2
or, he may buy in the rights of one having the better title, or an
incumbrance on the premises, and set off the amount so expended
against the vendor's action for the purchase money, 3 or for damages
for breach of the contract. 4 Or, if the facts as to the title were
falsely and fraudulently represented to him, he may keep the estate,
agree with the rightful owner, or take the risk of eviction, and
maintain against the vendor the common-law action of trespass on
the case for deceit, or the equivalent of that action under modern
codes of practice. 5 And lastly, in the way of affirmance, instead
of adopting any one of these courses, he may file his bill in equity,
or bring his equitable action, praying that he be permitted to apply
the unpaid purchase money to the removal of objections to the
title, or that he be allowed compensation for defects, and that the
vendor be compelled to specifically perform the contract, and that, if
specific performance be impossible, damages in lieu thereof be
1 Post, 290, ch. 3L
*Ch. 2.
'Ch. 24.
4 Ch. 2.
* Ch. 11.
4 MARKETABLE TITLE TO SEAL ESTATE.
awarded the plaintiffs. 1 In all these cases the purchaser elects to
abide by the contract and keep the estate.
Bnt the contract being still executory, the purchaser, on dis-
covery that the title is bad, may determine upon rescission. To
rescind a contract is to annul or abrogate it, the consideration which
passed from either party being returned, and both parties being
placed in statu qua, that is, as nearly as possible in the same condi-
tion in which they were before they entered into the contract.
Rescission of an executory contract for the sale of lands may be
accomplished in three ways : First, by the act of the parties them-
selves. 2 The vendor may agree to take back the estate and to
permit the purchaser to keep the purchase money if it has not been
paid. This is frequently done. Secondly, by proceedings at law.
Of course a court of law proper is not competent to pronounce a
decree of rescission directing either party to restore what he has
received by virtue of the contract. But the purchaser may simply
abandon the possession of the premises and set up the want of title
as a defense when sued for the purchase money ; * or, if he has paid
a part or the whole of the purchase money, he may sue in a court of
law to recover it back, having in the meanwhile abandoned the
premises or restored them to the vendor. In this way rescission is
virtually accomplished at law. v Thirdly, the purchaser may tile his
bill in equity on failure of the title, praying that the contract be in
terms rescinded ; or to a bill filed by the vendor for specific per-
formance, he may set up as a defense the plaintiffs want of title,
provided he has restored, or offers to restore, the premises to the
vendor. 4 The rescission of executory contracts is peculiarly a ground
of equitable jurisdiction. Courts of equity possess all the machinery
for ascertaining what is necessary to put the parties in statu
quo, and to compel either party to do whatever is required to that
end.
So much for the remedies of the purchaser, either by way of
affirmance or rescission, while the contract is executory. They are
all co-exidtent, and his choice of the one or the other is to be con-
1 Chs. 17, 18 and 19.
* Ch. 28.
Ch. 24.
'Ch. 30. Newberry v. Ruffin, 102 Va. 73; 45 S. E. 73, citing the text.
INTRODUCTORY. 5
trolled by the particular circumstances of his case. He may con-
ceive it to be an advantage to him to keep the estate with damages
or compensation for defects, or he may deem it best to restore the
estate and have back his purchase money. But while the remedies
by way of action to recover back the purchase money and action to
recover damages for fraudulently imposing a bad title on the plain-
tiff are concurrent, they are not co-extensive in respect to the relief
that is to be afforded ; and this should be considered by the pur-
chaser in choosing his remedy. In the former action he recovers no
more than the consideration money and interest ; and the same may
be said of an action to recover damages for a breach of the contract
to convey a good title, in which there is no averment of fraud on
the part of the defendant. 1 But where the action for damages is
expressly grounded upon the defendant's fraudulent representations
as to the title or concealment of defects, and the plaintiff establishes
his case, he will be entitled to recover damages for the loss of his
bargain, that is, the value of the estate at the time when the con-
tract should have been completed by the conveyance of a good
title. 8 Therefore, in a case in which the value of the estate has
materially increased between the inception of the contract and the
time when it should have been completed, and the purchaser can
show that the defendant was guilty of fraud with respect to the
title, he should take care so to frame his declaration or complaint
that his action shall be the equivalent of the action of deceit at com-
mon law, so that he may recover as damages the increased value of
the estate.
The defenses or answers to the purchaser's application for relief
while the contract is executory, most frequently met with in the
reports, are that the purchaser in the first instance agreed to take
the title such as it was, or that he had since, by his conduct, waived
all objections to the title; 8 that the vendor has the right to perfect
the title, 4 or to require the purchaser to take the title, with compen-
sation for defects ; 5 that the purchaser has not placed the vendor
1 Ch. 10, 91.
Ch. 10, 97.
'Ch. 8.
Ch. 32.
Ch. 38.
6 MARKETABLE TITLE TO liEAI, ESTATE.
in statu quo, and that the positions of the parties with respect to
the subject-matter of the contract have so materially changed that
it will be impossible to place them in statu quo ; l and, where the
gravamen of the action or defense is the vendor's fraud in conceal-
ing the state of the title, that the defects complained of all appear
from the public records, and that the vendor is not bound to call
the attention of the purchaser to defects which are thus open to
his inspection. 2
We have now presented a brief outline of the courses open to the
purchaser, and the attitude of the vendor on failure of the title,
where the contract is executory. It remains to indicate, in a like
manner, their respective rights and remedies where the contract has
been executed by the delivery and acceptance of a conveyance.
First, it is to be observed that except in cases in which the pur-
chaser has been fraudulently induced to enter into the contract or to
accept a conveyance, or unless there has been some such mistake as
will entitle him to relief, his remedies are all necessarily in affirm-
ance of the contract, for, as a general rule, there can be no such
thing as the rescission of an executed contract for the sale of lands.
The reason is that the parties can seldom, if ever, be placed in statu
quo. We shall see hereafter, however, that there is a tendency in
some of the States to modify this rule. 8 And not only are the
remedies of the purchaser, in the absence of fraud or mistake, nec-
essarily in affirmance of the contract after a conveyance has been
accepted, but the existence of those remedies themselves depend
largely upon his own foresight and prudence. The law protects
the purchaser, at least where the vendor sells in his own right, by
its implication of a contract that a good title is to be conveyed, up
to the time when the parties are ready to complete the contract by
the payment of the purchase money, the delivery of possession, and
the execution and acceptance of a conveyance. But any implication
in his favor ceases at this point, and to protect himself against loss
in the future, in the event that the title shall prove bad, he must
see that covenants for title by the vendor, adequate for that pur-
pose, are inserted in the conveyance. The maxim caveat emptor
1 Chs. 25 and 30.
* Cb. 11, 104.
* Ch. 26.
INTRODUCTORY. 7
applies. 1 This is the rule which prevails in most of the American
States, though in some of them it is qualified to a certain extent, as
will be hereafter noted. It may be doubted whether a rigid applica-
tion of this rule will subserve the ends of justice in all cases,
particularly those in which the purchase money remains unpaid
when the purchaser is evicted, or when it is discovered that the title
is bad. The maxim or rule caveat emptor has no place in the civil
law. By that law the purchaser, whether he has or has not received
a conveyance, is always to be reimbursed if he loses the estate
through a defect in the title, unless, indeed, it was expressly under-
stood that the title was bad, and the purchaser bought only such
right or interest as the vendor might have. At common law, of
course, no hardship results in refusing relief to a purchaser who,
with knowledge that the title is bad, accepts a conveyance without
covenants for title. He simply gets what he buys, and he has no
ground for complaint if he loses the estate. But hardship does
often result in cases in which covenants for title were unintentionally
omitted, through the ignorance and inexperience of the parties and
their advisers, a circumstance likely to occur in rural districts, where
the village blacksmith frequently acts in the capacity of justice of
the peace and legal adviser for the community. Assuming, however,
that the conveyance contains the usual covenants for title, the
remedy of the purchaser is by action for breach of covenant if he be
evicted, or if the title prove to be bad or the estate incumbered, in
which action he will recover real or nominal damages, according to
whether he has suffered real or nominal injury from the breach. If,
however, he was fraudulently induced to accept a conveyance with
covenants for title, he is not obliged to bring his action for breach of
covenant, but may have his action on the case for deceit, just as if
the contract were executory, the better opinion being that the ven-
dor's fraud is not merged in his covenants for title. 2 And instead
of taking the initiative, and suing for breach of covenant, the pur-
chaser may, where the purchase money is still unpaid, detain the
same in his hands, and, when sued by the vendor, set up the breach
of covenant as a defense by way of recoupment or counterclaim, pro-
vided he has then a present right to recover substantial, and not merely
1 Ch. 27.
Ch. 27.
8 MABKETABLE TITLE TO REAL ESTATE.
nominal damages, for breach of the plaintiffs covenants. 1 These,
then, are the remedies of the purchaser at law by way of affirmance
of the executed contract. In equity he may file his bill, praying
that the grantor be compelled to perform specifically certain of the
covenants for title, for example, the covenant against incumbrances,
by removing an incumbrance from the estate ; and the covenant for
further assurance, by the execution of such further assurance as may
be reasonably required. 2 And where, through error or mistake, the
conveyance does not contain such covenants for title as the pur-
chaser may demand, he may file his bill praying that the conveyance
be reformed, so as to express the true intention of the parties. 3
We have already observed that an executed contract for the sale
of lands cannot, as a general rule, in the absence of fraud or mis-
take, be rescinded, either at law or in equity. There is, however, a
certain kind of relief contended for in some cases at law, which, if
conceded, amounts to a virtual rescission of the contract. The gen-
eral rule is that in an action for breach of the covenant of seisin the
plaintiff can recover nominal damages only, unless he has been
actually or constructively evicted from the premises. This rule,
however, has been modified in some of the States, and the pur-
chaser permitted to recover the whole consideration money, pro-
vided he has reconveyed the estate to the grantor. This of itself
practically amounts to a rescission of the contract. And if he may
thus recover the consideration money as damages in an action for
breach of the covenant of seisin, no reason is perceived why he
may not avail himself of that breach as a defense when sued for
the purchase money, provided, of course, that he reconveys or
offers to reconvey the premises to the plaintiff. The effect would
be merely to avoid circuity of action. 4 But the contrary rule,
namely, that a breach of the covenant of seisin is no defense to an
action for the purchase money unless the defendant has been actu-
ally or constructively evicted from the estate is undoubtedly estab-
lished in most of the American States. 5
1 Ch. 16.
Ch. 21.
Ch. 22.
Ch. 26.
Ch.16.
INTRODUCTOnY. 9
. As to the rescission of an executed contract on the ground of
fraud or mistake, it is only necessary to say that this is one of the
principal heads of equitable jurisdiction. 1 The vendor's fraud is
not merged in' his covenants for title. Equitable relief is also given
the purchaser by way of injunction against proceedings to collect
the purchase money where the grantor is insolvent or a non-
resident, in which case there is no adequate remedy upon the cove-
nants for title. 8 And in one or two of the States this relief is
afforded on a clear failure of the title without even a suggestion of
non-residence or insolvency of the grantor. 8 This, of course, is
equivalent to a rescission of the contract if the injunction is made
perpetual.
The defenses to the purchaser's measures for relief on failure of
the title, where the contract has been executed, most frequently met
with in the reports, are that the purchaser accepted a conveyance
without covenants for title, or that the covenants have not been
broken, or, at least, that there has been no such breach as will entitle
the purchaser to substantial damages ; or that the right to recover
for a breach of covenants executed by the defendant as a remote
grantor did not pass to the plaintiff, being a chose in action, and
incapable of assignment at common law; or that the paramount
title was acquired by the defendant after the conveyance was exe-
cuted, and had, by operation of law, inured to the benefit of the plain-
tiff and taken away his right of action ; or, in a case of alleged fraud,
that the plaintiff by his conduct had waived all ground of complaint,
or that there was in fact no fraud, the true state of the title being
apparent from the public records, which the purchaser will be r:
sumed to have examined.
From the foregoing outline of the remedies of the purchase*
and the defenses of the vendor on failure of the title, the utility
and convenience of the plan or analysis of this work, p.nd the ordei
in which those remedies and defenses are treated, will be perceived
The term " marketable " or " defective " title, as between vendoi
and purchaser, is relative as well as substantive, and has reference
alike to the remedies of the parties, the incidents of those remedies
1 Ch. 85.
Ch. 34.
Ch.34, 837.
10 MARKETABLE TITLE TO" SEAL ESTATE.
and the essential elements of a good title. Accordingly, it has been
deemed proper and convenient to consider, under that head, not only
the equitable doctrine of marketable title proper, but the law of
covenants for title, the nature and incidents of each of those cove-
nants, the extent to which they run with the land, the doctrine of
estoppel, or after-acquired title, and the specific performance of
covenants for title, as well as the specific performance of executory
contracts for the sale of lands. The subject of the work naturally
divides itself into the two principal heads of remedies in affirmance,
and remedies in rescission of the contract, together with their inci-
dents. One advantage anticipated from this classification is that it
will serve to impress upon the mind of the student the cardinal
principle that the purchaser cannot, because the title is bad or doubt-
ful, escape the obligation his contract, and at the same time retain
its benefits. Restitution of the consideration on one side, and of
the subject-matter of the contract on the other, is an invariable con-
dition precedent to rescission.
CHAPTER II.
ACTION FOR BREACH OF CONTRACT.
GENERAL PRINCIPLES. FORM OF ACTION. 1.
DOUBTFUL TITLE IN ACTION FOR DAMAGES. 2.
PURCHASER IN POSSESSION MAT SUE. 3.
DEFENSES TO THE VENDOR'S ACTION FOR BREACH OF CON-
TRACT. 4.
1. GENERAL PRINCIPLES. FORM OF ACTION. Usually a
contract for the sale of real estate allows time for the exami-
nation of the title, and fixes a day in the future for the pay-
ment of the purchase money and the execution of a conveyance. 1
If, when that day arrives, the purchaser shall have performed, or
offered to perform, everything on his part necessary to entitle him
to a conveyance, and the vendor be unable to convey such a title as
the purchaser may demand, the contract is broken, and the pur-
chaser iaa& much entitled to an action for damages as if the vendor,
being able to convey a good title, had willfully refused to perform
the contract. 2 If the contract was not under seal the proper action
for the breach will be trespass on the case in assumpsit ; 3 if the con-
tract was under seal, as in the case of a title bond, the proper action
will be covenant. 1
In most cases the purchaser may elect between his right to recover
1 In Bennet v. Fuller, 29 La. Ann. 663, a distinction was drawn between an
actual sale and a contract "to sell on a future day; " but the court held that if,
in the latter case, at the appointed day the vendor was unprepared to sell and
convey a clear title, he would be liable in damages.
8 1 Sudg. Vend. (8th Am. ed.) 357 (236).
Bac. Abr. Assumpsit (C).
*3 Bl. Com. 155; Haynes v. Lucas, 50 111. 436. But he may recover back the
purchase money under the common counts, though the contract was under seal.
Greville v. Da Costa, Peake Add. Cas. 113. In a suit on a title bond conditioned
to make title as soon as procured by the vendor, the complaint will be fatally
defective if it do not allege that the vendor had obtained the title. Stone v.
Young, 4 Kans. 11. In such a suit an averment that the defendant failed and
refused, and still fails and refuses to perform the stipulations and conditions of
the bond, is sufficient under the Code. Holman v. Criswell, 15 Tex. 895, the
court saying that the common-law rule, contra, in 1 Chitty PI. 863 does not apply
to the system of Code pleading in Texas.
12 MARKETABLE TITLE TO BEAL ESTATE.
damages for breach of the contract in failing to convey a good title
and his right to rescind the contract and recover back the purchase
money, or such part thereof as may have been paid ; and where the
contract is not under seal, the form of action is the same in either
cage trespass on the case in assumpsit. The two causes of action,
however, must not be confounded, as seems sometimes to have been
done. The action of assumpsit is adapted to the recovery of
moneys due by implied contract, and also to the recovery of dam-
ages for the breach of a contract, but the plaintiff must so frame his
declaration as to entitle him to the particular relief desired. Thus,
if he desires merely to recover back the purchase money, ignoring the
contract and treating the purchase money as so much money paid
out to the use and benefit of the vendor, he will employ the com-
mon money counts, while, if he intends to affirm the contract he
will set out the substance of it in his declaration, and claim dam-
ages for the breach. 1 He may, however, if he chooses, employ the
money counts and add a count upon the contract, so that if his
proof fails him upon the one count it may entitle him to recover
upon the other. 2 Thus proof that the title is merely doubtful and
not absolutely bad will entitle the purchaser to have back his pur-
chase money, but would give him no right to damages, 8 and, accord-
ing to the English decisions, he could not under the common counts
recover back the costs of examining the title. 4 The rule that the
'Chitty Cont. (10th Am. ed.) 339; 1 Sugd. Vend. (8th Am. ed.) 537 (358).
See Camfield v. Gilbert, 4 Esp. 221. In Doherty v. Dolan, 65 Me. 87; 20 Am.
Rep. 667, the purchaser, after paying $1,000 of the purchase money, brought an
action against the vendor for damages, alleging inability to convey a good title.
In Maine the measure of damages in such a case is the value of the land at the
time the conveyance should have been made, and where part of the purchase
money has been paid, the plaintiff is entitled to recover this value, less what
remains due on the contract price. The necessary consequence of this rule is
that where part payment has been made and the value of the land has decreased,
and is less at the time fixed for performance than the contract price, the plaintiff
will not be entitled to recover as damages as much as he has paid on the hind.
To obviate this difficulty, the plaintiff in this case was permitted to amend his
declaration by adding a count for money had and received, under which he might
recover all that he had paid on the contract.
* Ingaus v. Hahn, 47 Hun (N. Y.), 104,
* 1 Sugd. Vend. (8th Am. ed.) 547 (362); Chit. Cont. (10th Am. ed.) 339; Chit
PI. (2d ed.) 196, n.
ACTION FOR BREACH OF CONTRACT. 13
extent of the purchaser's recovery is to be governed by the nature
of the relief sought, that is, whether in affirmance or disaffirmance
of the contract, prevails, it is apprehended, as well under the Code
practice as at common law. The petition or complaint should be
so drawn as to indicate whether the plaintiff seeks merely to recover
back the purchase money or whether he claims damages for breach
of the contract.
The remedy by action for breach of contract is concurrent with
the action of deceit when fraud exists, 1 but is seldom resorted to in
such a case, the plaintiff being entitled to a greater measure of dam-
ages in the action of deceit. He may also elect between these
remedies and his remedy in equity by suit for rescission, 2 or for
specific performance, or damages in lieu thereof. 8 But the action
for damages is broader than the latter remedy, for the purchaser's
bill is frequently dismissed without prejudice to his remedy at law
on the contract. 4 Where the purchaser may elect between several
remedies he cannot, of course, be required to adopt one in prefer-
ence to another. 5 Nor, if the purchaser has a right to recover
damages for breach of the contract, can the vendor insist upon tak-
ing back the property and returning the consideration. It is with
the purchaser to say whether he will affirm or rescind the contract.'
1 2 Warvelle Vend. 955; Lynch v. Merc. Trust Co.. 18 Fed. Rep. 486.
3 Reese v. Kirk, 29 Ala. 406; Alvarez v. Brannan, 7 Gal. 503; 68 Am. Dec.
274; Wright v. Carillo, 22 Cal. 604.
'Haynes v. Farley, 4 Port. (Ala.) 528; Greene v. Allen, 32 Ala. 215.
4 Sugd. Vend. (8th Am. ed.) 357.
Barron v. Easton, 3 Iowa, 76; Katz v. Henig, 66 N. Y. Supp. 530; 32
Misc. 672.
Lynch v. Merc. Trust Co., 18 Fed. Re.p. 486 ; Kmmm v. Beach, 96 N. Y.
406, the court saying: "The contention of the vendors is that the defrauded
vendee has but one remedy, and that consisted of a rescission of the contract and
the recovery back of the consideration paid, after an offer to reconvey and a
tender of what had been received. Doubtless this remedy existed, but the vendee
was not compelled to adopt it. He had a right, instead of rescinding the con-
tract, to stand upon it and require of the vendor its complete performance, or
such damages as would be the equivalent of that complete performance. ' The
vendee, acting honestly on his own part, was entitled to the full fruit of his bar-
gain, and could not be deprived of it without his consent by the fraud of the
vendor. That such an action, proceeding upon an affirmance of the contract as
actually made, founded upon actual fraud, and asking damages in the room of
an impossible specific performance, can be maintained at law, has been sufficiently
adjudged. Wardell v. Fosdick, 13 Johns. (N. Y.) 335; 7 Am. Dec. 383; Culver
14 MARKETABLE TITLE TO REAL ESTATE.
But, having recovered a judgment for damages in an action for
breach of the contract to convey, he cannot afterward bring a se rt -
ond action or resort to any other means to enforce the contract. 1
If he elects to rescind he cannot afterwards affirm the contract and
vice versa? There can be but one satisfaction of the injury.
Under the English common-law system of pleading the pur-
chaser's expenses incurred in examining the title could not be recov-
ered by him if he disaffirmed the contract and brought his action to
recover back his deposit as such ; it was necessary for him to insert
a count in the declaration claiming damages for breach of the con-
tract. 8 The reason for this rule was that moneys so paid out could
not be regarded as paid out to the vendor's use, but were expended
for the purchaser's own satisfaction. Perhaps the same rule would
be applied in America in a case in which the pleadings demand only
a return of the purchase money and contain no demand for
images.*
If the purchaser accept a conveyance of the premises, he cannot
v. Avery, 7 Wend. (N. Y.) 386; 22 Am. Dec. 586; Whitney v. Allaire, 1 Comst.
(N. Y.) 305; Clark v. Baird, 9 N. Y. 197; Graves v. Spier, 58 Barb. (N. Y.) 385.
And that is so whether the representations relate to the title or to matters col-
lateral to the land. The measure of damages in such a case is full indemnity to
the injured party; the entire amount of his loss occasioned by the fraud."
1 1 Sudg. Vend. (8th Am. ed.) 357 (236); Orme v. Boughton, 10 Bing. 537; 25
E. C. L. 254; Hopkins v. Lee, 6 Wheat. (U. 8.) 109; Buckmaster v. Grundy, 3
Gil. (HI-) 626, 636; Hill v. Hobart, 16 Me. 169.
Schiffer v. Dietz, 83 N. Y. 300, 308, citing Mason v. Bovet, 1 Den. (N. Y.)
69; 43 Am. Dec. 651 ; Cobb v. Hatfield, 46 N. Y. 533; Lawrence v. Daie, 3
Johns. Ch. (N. Y.) 23. Remedies in affirmance and remedies in disafflrmance or
rescission of the contract are non-concurrent and inconsistent with each other.
Bowen v. Mandeville, 95 N. Y. 240.
3 Sugd. Vend. (8th Am. ed.) 547 (362); 1 Chit. Cxmt. (10th Am. ed.) 339 ; Cam-
field v. Gilbert, 4 Esp. 221.
4 In the State of New York the cases do not show that this distinction has been
observed. An action there for damages in failing to perform the contract to
convey a good title seems to be regarded as in effect the same as an action to
recover back the purchase money eo nomine, probably because in such an action
the damages are, as a general rule, limited to the purchase money paid, interest,
costs and expenses. There can be no question, however, as to the right to
recover the expenses of examining the title as a part of the damages. Higgins
v. Eagleton, 34 N. Y. Supp. 225. See post, 93. The expenses of examining
the title may be recovered in an action to recover back the deposit. Effen-
heim v. Von Hafen, 23 N. Y. Supp. 348 (N. Y. City Court).
ACTION FOR BREACH OF CONTRACT. 15
afterwards maintain an action to recover damages from the vendor
for breach of his contract to convey a good title. His remedy is
upon the covenants of his deed if any. If there are no covenants,
he is, in the absence of fraud or mistake, without remedy. 1
If the title fail, the purchaser by bringing an action for damages
affirms the contract, and will not be entitled to recover unless he
shows that he has performed his part of the contract by tender or
payment of the purchase money in full. If the purchase money
be not paid in full, he should bring an action for money had and
received to his use (trespass on the case in assumpsit), which dis-
affirms the agreement. 2 This distinction appears not to be observed
in those States in which the common-law system of pleading has
been abolished. Thus, in New York it has been held that if the
vendor be unable to make title at the time fixed for completing the
contract, the purchaser is not in default in failing to tender the pur-
chase money, and may maintain an action for damages though no
such tender has been made. 8 If the parties agree to rescind the
contract, and the vendor fails to return the purchase money, the
purchaser cannot maintain an action for breach of the contract and
recover back his purchase money in the form of damages. He
should sue in assumpsit for money had and received to his use, or
frame his complaint upon that hypothesis in States in which the
common-law system of pleading no longer exists. 4 If no time be
fixed by the contract in which the vendor must convey, he will be
entitled to a reasonable time, after the payment of the purchase
money, in which to execute the conveyance. 5 We will consider
1 Shurtz v. Thomas, 8 Barr (Pa.), 368; Carter v. Beck, 40 Ala. 599.
* Clarke v. Locke, 11 Humph. (Tenn.) 300; Hurst v. Means, 2 Swan (Tenn.),
594. But see 1 Sugd. Vend. (8th Am. ed.) 357 (236) where it is said that " if the
purchaser has paid any part of the purchase money " and the seller does not com-
plete his engagement, the former may have his action for damages. Humpkey
v. Norris, (Ky.) 7 S. W. Rep. 888.
1 Morange v. Morris, 34 Barb. (N. Y.) 311. This proposition, it is conceived,
must be strictly limited to those cases in which the contract expressly requires
the vendor to remove incumbrances or other objections to the title before the
time fixed for completing the contract, else it will conflict with that eminently
just and reasonable rule that the vendor may rely upon the unpaid purchase
money as a means with which to discharge incumbrances. Post, 308.
4 Conley v. Doyle, 50 Mo. 234.
1 Eames v. Savage, 14 Mass. 428; Newcomb v. Brackett, 16 Man. 166.
16 MARKETABLE TITLE TO REAL ESTATE.
elsewhere under what circumstances the vendor will be allowed time
in which to remove objections to the title. 1
In another part of this work it has been attempted to show that
wherever the purchaser seeks relief from the obligation of the con-
tract, or to assert a liability against the vendor, on the ground that
the title is bad, the duty devolves upon him to point out the par-
ticulars in which the title is wanting. 2 This rule especially applies
in an action for breach of contract to convey a good title. 3
In America actions to recover damages on the ground that the
vendor is unable to convey a good title, are comparatively infrequent,
while the reports teem with cases in which the purchaser seeks to
rescind the contract and recover back his purchase money. The
reasons for the comparative disuse of the action affirming the con-
tract and seeking damages for the breach, doubtless are that prac-
tically the same relief is obtained in the action to recover back the
purchase money, since, as a general rule, the purchaser could not
recover damages in excess of the purchase money ; and in the latter
action the purchaser is not obliged to show that he has fully per-
formed the contract on his part by payment of the entire purchase
money, 4 nor to show that the title is absolutely bad and not merely
doubtful, as he must do where he affirms the contract. 5 Where,
however, the contract provides for liquidated damages in excess of
the purchase money, or where by the law of the jurisdiction the
purchaser is entitled to recover damages in excess of the purchase
money, that is, damages for the loss of his bargain, he may find it
to his advantage to bring his action on the contract.
2. DOUBTFUL TITLE DT ACTION FOB, DAMAGES. A dis-
tinction is to be observed between the action to recover damages for
breach of the contract or failure of the title and an action to recover
back the purchase money in this respect, namely, that in the former
action the plaintiff cannot recover unless he shows that the title is
1 Post, ch. 32.
* Post, 117, 244, 281. There are many cases which sustain this view. But
see Wilson v. Hoiden, 16 Abb. Pr. (N. Y.) 133, where it is intimated that if the
defense of defective title is made in an action by the vendor for breach of the
contract, the burden devolves on him to show a good title.
* Gammon v. Blaisdell, 45 Kans. 221.
4 Hurst v. Meats, 2 Swan (Tenn.), 594. *
* Post, 2.
ACTION FOR BREACH OF CONTRACT. 17
Absolutely bad, while in the latter he will be entitled to a return of
the purchase money if there be a reasonable doubt about the title. 1
So far as the measure of relief is concerned, the distinction is unim-
portant except where, by express contract between the parties or
by the law of the jurisdiction, the purchaser would be entitled to
recover damages in excess of the purchase money, the general rule
being that the purchaser can recover, in the action for damages,
nothing beyond the purchase money and interest. But in respect
to the remedy and the pleadings the distinction is vitally important ;
for if he declares upon the contract and claims damages for the
breach, arid the evidence shows that the title is merely doubtful, he
-can recover nothing ; while, if he had counted for money had and
received to his use, he would have been entitled to judgment.
3. PURCHASER IN POSSESSION MAY MAINTAIN ACTION.
It will be seen hereafter that a purchaser cannot, on failure of the
title, disaffirm the contract and recover back the purchase money
unless he has been evicted or has surrendered the premises to the
vendor. 5 But no such rule applies when he affirms the contract
and brings an action to recover damages for the vendor's breach in
failing to convey a good title. By affirming the contract he elects
to hold himself answerable to the true owner. He is under no
obligation to rescind on failure of the title. He may rely on his
vendor's agreement to make a good title and take the chances of
eviction by an adverse claimant. 3 Hence it has been held that the
purchaser's possession of the premises is immaterial and cannot
affect his right to maintain his action for damages and to recover
.substantial and not merely nominal damages. 4
'In^nlls v. Hahn, 47 Hun (N. Y.), 104; Post, 286, "Doubtful Titles at
Law." Roberts v. McFadden, (Tex. Civ. App.) 74 S. W. 105, citing the text.
-Post, eh. 25.
3 Oakos v. Buckley, 49 Wis. 592.
1 Bedell v. Smith, 37 Ala. 619. The reasons for this rule were thus stated by
ALLEN, J., in Fletcher v. Button, 6 Barb. (N. Y.) 646, which was n action to
recover damages for the vendor's refusal to convey for want of title: "It is
insisted that the plaintiff, being in possession of the premises up to the time of
the commencement of the action, he can recover but nominal damages; that
Actual eviction was necessary to entitle him to recover the entire purchase money
by way of damages for the non-conveyance. I am unable to discover upon what
principle the possession of the premises by the plaintiff can affect his remedy in
this action. The contract, for the nou- performance of which this action is
3
18 MARKETABLE TITLE TO REAL ESTATE.
4. DEFENSES TO THE VENDOR'S ACTION FOB BREACH OF
CONTRACT. If the vendor should bring an action to recover dam-
ages for breach of the contract, the purchaser may, of course, set
up the defense that the plaintiff has no title, 1 or that the title is-
doubtful, 2 or that the estate is incumbered, 3 or that the plaintiff has
made fraudulent representations 4 in respect to the title. Inasmuch
as such an action is rarely, if ever, brought in cases in which the
contract has been partly performed by delivery of the possession to-
the purchaser, it seldom happens that the right of the latter to-
show a want of title in the vendor is complicated with any question
brought, was for the title to, and not the possession of, the premises. The
possession of the premises could not have been in part performance of such'
contract; and although it may have been beneficial to the plaintiff, it did not
at all mitigate the damages sustained by him by the inability or unwilling-
ness of the defendant to convey the premises. Again, if the defendant had
title to the premises and a right to convey them, and has willfxilly refused to
perform his contract, he has done so in his own wrong, and has voluntarily
placed himself in a position in which he may lose the use of the premises for
the time during which the plaintiff has occupied them ; but he cannot be per-
mitted by his own wrongful act to change the character of the possession of
the plaintiff and make him a tenant against his will instead of a vendee in
possession under a contract of purchase. If the defendant was not the owner,
but had the right to occupy, or permit the plaintiff to occupy the premises,,
then having contracted to convey them to the plaintiff and suffered him to go
into possession under the contract, although he may have acted under a mis-
take, still he must bear the consequences of that mistake. The plaintiff had
a right to suppose that the defendant was familiar with his own title, and
had the right to sell what he agreed to convey. If the defendant neither
owned the premises nor had the right to occupy them, or to suffer the plain-
tiff to occupy them, then it is very clear that he should not in any manner
have the benefit of the possession by the plaintiff. The plaintiff, by his occu-
pation, has made himself a trespasser, and is liable to the true owner for the
value of such occupation." See, also, Haynes v. Farley, 4 Port. (Ala.) 528;
Gray v. Mills, 83 Fed. 824.
'2 Warvelle Vend. 963; Lewis v. White, 16 Ohio St. 444.
2 Post, ch. 31.
3 Gilbert v. Cherry, 57 Ga. 129. If the purchaser rejects the title on the
ground that the property is incumbered, the fact that the seller had perfected
an arrangement to discharge the incumbrance out of the purchase-money,
does not support his action for damages, in the absence of anything to show
that the purchaser was advised of the arrangement and refused to permit
reasonable steps to be taken for its consummation. Manitoba Fish Co. v.
Booth, 109 Fed. 394 (C. C. A.).
4 Gilbert v. Cherry, 57 Ga. 129.
ACTION" FOR BREACH OF CONTRACT. 19
as to the restoration of the premises to the plaintiff, or as to diffi-
culty in placing him in statu quo. If, however, such an action
should be brought after possession delivered to the purchaser,
instead of an action to recover the purchase money or to compel
specific performance, it is apprehended that the defense of want of
title in the vendor, amounting in substance to an election to
rescind the contract, could not be made without surrendering, or
offering to surrender, the premises to the plaintiff.
The vendor can maintain no action against the purchaser for
breach of the contract to purchase, until after the expiration of the
time fixed for completing the contract, even though the purchaser
has absolutely refused to perform or accept performance of the
contract. 1 Until the time arrives when, by the terms of the agree-
ment, the vendor is or might be entitled to performance, he can
suffer no injury or deprivation which can form a ground of dam-
ages. 2 If a purchaser of lands, to be conveyed free of incum-
brances, absolutely refuse to take a deed or to accept performance
of the contract on grounds other than failure of the title, or the
existence of an incumbrance upon the premises, he cannot after-
wards, when sued for a breach of the contract, avail himself of
defects in the deed which was tendered to him, or of the fact that
the property was incumbered. His absolute refusal to perform is
a waiver of the right to require performance on the part of the
vendor. 3
The vendor will be restrained from bringing an action at law to
recover damages for breach of the contract, if his bill for specific
performance has been dismissed for want of title, unless dismissed
without prejudice to his remedy at law. 4
'Daniels v. Newton, 114 Mass. 530; 19 Am. Rep. 384, disapproving Frost
v. Knight, L. R. 7 Excli. Ill, and Hochster v. De la Tour, 2 E. & B. 678.
2 Language of WELLS, J., in Daniels v. Newton, supra.
"Carpenter v. Holcomb, 105 Mass. 280; Wells v. Day, 124 Mass. 38. In
this case the purchaser of three separate and distinct lots of land refused
absolutely to complete the contract on grounds which applied only to the first
two lots. The vendor resold the third lot at a considerable loss and brought
an action against the purchaser for breach of the contract, and it was held
that defects in a deed which had been tendered to him, and the existence of
a mortgage en the third lot constituted no defense to the action.
4 1 Sugd. Vend. (8th Am. ed.) 356; McNamara v. Arthur, 2 Bn' i Bent. 349.
CHAPTER III.
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE,
IMPLIED AGREEMENTS.
General Rule. 5.
EXPRESS AGREEMENTS.
General Principles. 6.
Terms and Conditions of Sale. 7.
Parol Evidence. Auctioneer's Declarations. 8.
English Rules as to Conditions. 9.
Agreement to make " Good and Sufficient Deed." 10.
Agreement to convey by Quit claim. 11.
Agreement to sell " Right, Title and Interest." 12.
Agreement to sell subject to Liens. 13.
5. IMPLIED AGREEMENTS General Rule. The purchaser M
entitled to require from the vendor, in the absence of any provision
in the contract, a good marketable title, free from all defects or
incumbrances. The right to a good title does not grow out of the
contract between the parties, but is given by law and is implied in
every contract of sale.' And the rule is general that a contract for
1 Dart Vend. & Purch. (4th ed.) 104; 1 Sugd. Vend. (8th Am. ed.) 24 (16), 456
(298), 510 (337); Rawle Cov. for Title (5th ed.), 32; Hall v. Betty, 4 M. & G.
410; Geoghegan v. Connolly, 8 Ir. Ch. 598; Souter v. Drake, 5 B. & Ad. 992;
Purvis v. Rayer, 9 Pri. 488; Doe v. Stanion, 1 M. & W. 701; Hughes v. Parker,
8 M. & W. 244; Sharland v. Leifchild, 10 Ad. & El. 529; Flinn v. Barber, 64 Ala.
193; Easton v. Montgomery, 90 Cal. 314; 27 Pac. Rep. 280; Krause v. Krause,
58 111. App. 559; Shreck v. Pierce, 3 Clarke (Iowa), 350; Puterbaugh Y.
Puterbaugh, (Ind.) 34 N. E. Rep. 611; Durham v. Hadley, (Kans.) 27 Pac.
Eep. 105; Swan v. Drury, 22 Pick. (Mass.) 485; Dwight v. Cutler, 3 Mich.
566; 34 Am. Dec. 105; Murphin v. Scoville, 41 Minn. 262; Drake Y. Barton,
18 Minn. 414 (462) : Donlon v. Evans, 40 Minn. 501; 42 N. W. Rep. 472; New
Barbadoes Toll Bridge Co. v. Vreeland, 3 Green Ch. (N. J.) 157; Newark
Sav. Inst. v. Jones, 37 N. J. Eq. 449 ; Burwell v. Jackson, 9 'N. Y. 535, 543, a
much cited case; Pomeroy v. Drury, 14 Barb. (N. Y.) 418; Innesa v. Willis,
48 N. Y. Super. Ct. 192: In re Hunter, 1 Edw. (N. Y.) 1; Wheeler v. Tracy,
49 N. Y. Super. Ct. 208; Tharin v. Frickling, 2 Rich. (S. C.) 361; Breit-
haupt v. Thurmond. 3 Rich. (S. C.) 216; Green v. Chandler, 25 Tex. 157; Nel-
v. Matthews, 2 H. & M. (Va.) 164; 3 Am. Dec. 620; Moulton v. Chaffee, 22
Fed. Rep. 26. The vendor in an executory contract for the sale of lands, in
the absence of express statements to the contrary, represents and warrants
that he ie the owner of the property which he assumes to sell, and that he
has a good title thereto. Innes v. Willis, 16 Jones & S. (N. Y.) 188. In
Owings v. Thompson, 3 Scam. (111.) 502, the broad rule is laid down that, in
the absence of any express contract as to what kind of title a purchaser in
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 21
the sale of lands which is silent as to the title or interest to l>e con-
veyed, implies an agreement to convey not only an unincumbered
and indefeasible estate, but such an estate in fee simple, that is, the
largest estate that can be had in the premises, 1 though of course it
may be shown that a less interest was sold. 2
An agreement to sell land which contains no restrictive expres-
sions is an ^agreement to sell the whole of the vendor's estate or
interest therein. 3 It will be presumed that the estate sold was to be
accompanied by all of its legal incidents, 4 such as a right of way, 5
and that which springs from the rule eujus est solum fjusest usque
ad coslum, 6 or the right to the undisturbed enjoyment of the space
above or the ground below the surface of the area of the estate.
But the implication that the purchaser was to receive a title free from
incumbrance may be rebutted by showing that he had notice of
the existence of the incumbrance. 7
If the vendor agree to convey by quit claim deed he merely con-
tracts to sell such interest as he then has, and cannot be required to
convey an interest subsequently acquired. 8
any case is to receive, he must take the title at his own risk; in other
words, that there is no implied contract that the title shall he indefeasible.
Aud such, the court adds, is the rule in England and in most of the Ameri-
can States. It is submitted with deference that such is not the rule either in
England or in America (see authorities, ante, this note), except in the case
of judicial and ministerial sales, and that the rule announced in this case
in which the purchase was made at a judicial sale, should have l>een limited
to sales of that kind, as indicated in the qualified concurrence by TREAT, J.,
in the opinion of the court. See post, " Caveat Emptor," ch. 5.
I Cases cited in last note. Hughes v. Parker, 8 M. & W. 244; Cattell r. Cor-
rall, 4 Yo. & C. 228.
* Cowley v. Watts, 17 Jur. 172; Cox v. Middleton, 2 Dru. 217.
I 1 Sudg. Vend. (8th Am. ed.) 24 (16); Bower v. Cooper, 2 Ha. 408.
4 Skull v. Clenister, 16 C. B. (N. S.) 81; 33 L. J. C. P. 185.
k Langford v. Selraes, 3 K. & Jo. 220; Denne v. Light, 3 Jur. (N. 8.) 627; Stan-
ton v. Tattersall, 1 Sm. & G. 529, where the purchaser was relieved for want of
proper access to a house.
Lewis v. Braithwaite, 2 B. & Ad. 437; Keyse v. Powell, 2 El. & Bl. 132;
Sparrow v. Oxford R. Co., 2 DeG., M. & G. 108; Pope v. Garland, 4 Y. &C. 403;
Whittington v. Corder, 16 Jur. 1034, where there was a failure of title to an
underground cellar.
7 Newark Sav. Inst. v. Jones, 37 N. J. Eq. 449.
Woodcock v. Bennet, 1 Cow. (N. Y.) 711; 13 Am. Dec. 568.
Zli MARKETABLE TITLE TO' REAL ESTATE.
The sale of a lease implies a contract on the part of the seller
that he will show a good title in the landlord. 1 A contract, how-
ever, to sell an agreement for a lease, does not imply a title in the
lessor to make the lease, and an action on the contract by the seller
cannot be defended on the ground that the lessor had no title. 2
Nor in an assignment of an executory contract for the sale of lands,
is there any implication of good title in the original vendor. 8 Nor
is there any such implied warranty in the assignment of a land-office
certificate. 4
Inasmuch as a contract to convey a clear title is implied in the
sale of lands, an agent of the vendor does not exceed his authority
by inserting such a provision in a written contract of sale. 5 If it
appear that the premises were sold at a fair price, the presumption
would be that the contract entitled the purchaser to an indefeasible
title. If, on the other hand, the price was merely nominal, the rea-
sonable presumption would be that the purchaser could require
from the vendor no more than a quit claim, or release of his rights,
and that he had agreed to take the title such as it might be.
The legal implication of an agreement on the part of the vendor
that the title he is to convey shall be clear, unincumbered and inde-
feasible, is to be limited strictly to cases in which the vendor sells
in his own right. Where the sale is made in a ministerial, repre-
sentative or official capacity the conclusive presumption of law is
that the vendor sells merely such interest as may happen to be
vested in him, be the same defeasible or indefeasible. The maxim
caveat emptor applies, and the purchaser can neither rescind the
contract nor maintain an action for damages if the title turns out
to be defective. This class of cases is considered at some length
hereafter. 6 If the vendor fails or is unable to convey at the time
fixed for the completion of the contract such a title as the pur-
1 Sugd. Vend. 368; Tweed v. Mills, L. R., 1 C. P. 39; Purvis v. Rayer, 9
Pri. 488; Gaston v. Frankum, 2 De G. & Sm. 561; Clive v. Beaumont, 1 De G.
& Sm. 397; Hall v. Betty, 4 Mann. & G. 410; Souter v. Drake, 5 B. & Ad. 992;
Drake v. Shiels, 7 N. Y. Supp. 209; Burwell v. Jackson, 9 N. Y. 539.
1 Kintrea v. Preston, 1 H. & N. 357.
1 Thomas v. Bartow, 48 N. Y. 193.
4 Johnston v. Houghton, 19 Ind. 309.
'Keirn v. Lindley, (N. J. Eq.) 30 Atl. Rep. 1083.
Post, ch. 5, " Caveat Emptor."
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 23
chaser may demand, there is a breach of the contract of sale, and
the latter may, if time was of the essence of the contract, have his
action for damages, unless the title is merely doubtful and not abso-
lutely bad. In that case, as we have seen, he may rescind the
contract and recover back his deposit, but is not entitled to
damages. 1
6. EXPRESS AGREEMENTS. General Principles. Upon the
sale of real property it is customary for the parties to enter
into a written contract containing their names, a description of the
property, the quantity of the estate sold, such as a fee simple or
life estate, and the terms or conditions of the sale, and fixing a time
when the contract shall be fully executed by payment of the pur-
chase money and a conveyance to the purchaser. 2 The contract
also usually specifies the kind of title the purchaser is to receive,
and sometimes it is in the form of a sealed obligation under pen-
alty on the part of the vendor to convey a good title, in which case
the instrument is known as a " title bond." 8
The contract usually also provides, especially when the sale is
made at public auction, that the purchaser shall have a specified
time within which to examine the title, and that if the title should
prove bad or unsatisfactory, the earnest money shall be refunded. 4
If the purchaser contract for a title deducible of record, he can-
1 '
'Ante, 2.
l Warvelle Vend. ch. III.
3 Vardamanv. Lawson, 17 Tex. 16. The court said in this case that a bond
for title is an instrument which evidences a contract for the sale of land, and is
substantially an agreement by the vendor to make to the vendee a title to the
land described. It seems scarcely necessary to say that many of the decisions
used in the following pages as illustrations of the rules of law governing express
contracts with respect to the title were not rendered in actions by the purchaser
for breach of the contract of sale. The principles are the same whether the
action be by or against the purchaser in affirmance or rescission of the contract.
In each of these cases the rights of the purchaser are, of course, governed by
the express terms of the contract, and no inconvenience, it is apprehended, can
result from considering the cases founded on express contracts under the head of
affirmance of the contract and action for breach, without regard to the nature of
the proceedings in which the decisions were made.
4 1 Warvelle Vend. 327. In Smith v. Schiele, 93 Cal. 150, the question was
raised whether an agent was competent to make the agreement, "title to prove
good or no sale," but was not decided.
24 MARKETABLE TITLE TO EEAL ESTATE.
not be compelled to accept a title resting altogether upon matters
in pats? such, for example, as a title by adverse possession. 8 A
stipulation in a contract of sale that the vendor shall furnish an
abstract showing title to the property has been said to be equivalent
to an agreement that the purchaser shall receive a good title of
record. 8 It has been held that an agreement to furnish a satisfac-
1 Page v. Greeley, 75 m. 400; Noyes v. Johnson, 139 Mass. 436.
Post, 292.
2 Warvelle Vend. 764. See upon this point 2 Sugd. Vend. (8th Am. ed.) 27
(427). In Smith v. Taylor, 82 Cal. 533, the contract contained the following pro-
vision: "The title to said above lands to prove good or no sale, five days being-
allowed to examine abstract or certificate, and pass upon title after abstract or
certificate is delivered." The court, after observing that this was not simply a
contract to make good title, continued: " The only fair interpretation of this con-
tract is that be (the vendor) was to furnish an abstract of title a paper pre-
pared by a skilled seacher of records, which should show an abstract of what-
ever appeared on the public records of the county affecting the title and that
the abstract must show good title, or there was no sale * * *. Under that
contract the plaintiff (purchaser) was not bound to make any investigation out-
side the abstract, or to take the chanees of any litigation which the abstract
showed to be either pending or probable." In Boas v. Parrington, 85 Cal. 535,
the provision of the contract was: "Title to be good or the money to be
refunded, party of the first part (vendor) to furnish an abstract of title to said
land." The abstract furnished did not show a good title, and in an action by the
purchaser to recover his deposit, judgment was rendered in his favor though the
court below found that as a matter of fact the vendor had a good title. This
judgment was affirmed on appeal, the court saying: "The appellant contends
that the contract did not require him to furnish an abstract showing a good title,
or at most that he was not bound to furnish it at the time the defective one was
furnished, or at any time before the time for the final payment of the purchase
money, and that as it appeared at the trial that he had a good title to the prop-
erty he was entitled to judgment. We cannot so construe the contract * * *
certainly when the abstract was furnished, the purchaser had the right to act
upon it, and as it failed to show a good title in the vendor, the vendee was not
bound to lay out of the use of his money, and pay the whole balance of the pur-
chase money before he could recover back any part of what he had paid. If the
vendor had a good title, as the court below found he had, he should have fur-
nished an abstract showing it, and upon it being called to his attention, either by
the demand for a rescission or otherwise, that it was defective, he should have at
once caused a perfect abstract to be furnished. He did neither, and in his answer
stands by the abstract furnished by him, and asserts that it was a good one. If
the abstract was a good one it shows that his title was bad. It is too late now
for him to assert that he was not bound to furnish an abstract at all, or
that he was not bound to furnish it at the time he did." As to when the
purchaser may be compelled to accept a title resting upon adverse posses-
sion. See post 292.
IMPLIED AND EXPBESS AGREEMENTS AS TO THE TITLE. 25
tory abstract of title referred only to the fullness or completeness of
the abstract, and not to the quality of the vendor's title. 1
If the vendor agrees to furnish an abstract showing a clear title,
and the abstract furnished shows a defective title, the vendor can-
not avoid a rescission on the part of the purchaser, with proof that
adverse claims appearing from the abstract are in fact groundless.
In such a case it has been held that the purchaser may rescind, not-
withstanding the sufficiency of the title. 2 It has been held, how-
ever, that if a contract provide for an abstract showing title, and
the abstract furnished did not show title, it might be supplemented
by written evidences of title. 8
7. Terms and conditions of sale. In the American practice
there seems to be nothing so elaborate as the English " particulars
and conditions of sale," or " common conditions," as they are some-
times called. 4 Auction sales of real estate are, with us, usually pre-
ceded by a newspaper advertisement or " hand bill " containing a
description of the property and the terms and conditions of the
sale, 5 and these are frequently supplemented, so far as the title is
concerned, by the verbal declarations of the auctioneer at the time
of the sale.'
8. Parol evidence Auctioneer's declarations. Whenever
specific performance of a contract of sale is sought in equity, parol
evidence of declarations by the auctioneer before the sale, adding to
or altering the terms of the sale, is admissible on behalf of the
defendant, whether vendor or purchaser. 7 In this particular the
law is the same in America as in England. 8
1 Fitch v. Willard. 73 111. 92. In England it is said that an agreement to fur-
nish a " perfect abstract " means a complete abstract, that is, the best that the
vendor can furnish through the title itself be defective. Dart. Vend. (5th ed.) 136,
citing Hobson v. Bell, 2 Beav. 17; Morley v. Cook, 2 Ha. 111.
* Smith v. Taylor, 82 Cal. 538; see extracts from this case, supra; Taylor v.
Williams, (Colo.) 81 Pac. Rep. 505.
Welch v. Button, 79 HI. 465.
4 Post, this chapter.
1 See King v. Knapp, 59 N. Y. 462.
Averett v. Lipscombe, 76 Va. 404, affords an illustration of this common
practice.
1 Averett v. Lipscombe, 76 Va. 404.
Post, 9.
26 MAKKETABLE TITLE TO KEAL ESTATE.
9. English rules respecting contracts as to the title.
Much of the learning that is found in the English treatises on the
law of vendor and purchaser will be found inapplicable in America,
owing to the diversity between the rules and practice of convey-
ancing in the two countries. At the same time much that is to be
found there would seem to be applicable here, especially the gen-
eral rules restricting or enlarging the liabilities and rights of the
parties with respect to the title to be conveyed or acquired under
the express terms of the contract of sale. 1
1 In England a highly artificial system of conveyancing prevails, a fact due to
the intricacies of landed settlements, and to the obscurity in which, from the
want of a general registration law, title to real estate is there involved. A glance
at the pages of Dart or Sugden, the principal English treatises on the law of
vendor and purchaser, will suffice to show the wide difference which exists
between the English and American practice in respect to the formalities and
preliminaries attending the execution of a contract for the sale of lands. In
America, where land in some sections changes owners with almost the rapidity
of personal property, the contract, particularly in rural districts, is usually
drawn by the parties themselves, and consequently often abounds with loose and
ambiguous expressions, or contains technical terms to which the law gives a force
and effect different perhaps from that which was intended by the parties. Even
in the large cities the terms and conditions upon which real property is sold are
usually brief and simple. In England, however, transfers of landed property,
especially of the fee simple, are comparatively rare occurrences, and, it would
seem, are seldom or never undertaken without the advice and assistance of a
skilled conveyancer. The " particulars and conditions of the sale," as they are
called, are carefully prepared and circulated before the sale, and incorporated in
the contract when the sale is made; and as a general rule they set forth explicitly
the character of title which the vendor will undertake to. convey. The same
degree of care and precaution is exercised in the case of private sales. If the
vendor intends to sell only such interest as he has, be what it may, the technical
expression employed is, " that he shall not be required to produce a title," appar-
ently a figure of speech, meaning that the vendor shall not be required to fur-
nish an abstract, or to produce deeds, affidavits, pedigrees or other documents
showing a marketable title in himself. In the absence of a general registry of
deeds and incumbrances, the purchaser can have, of course, no opportunity to
judge of the sufficiency of the vendor's title, unless the instruments by which it
is evidenced are produced, and to take a title without the exhibition of such evi-
dences necessarily means to take just such title as the vendor has. Perhaps the
most important point to be considered in determining the application of English
decisions, in American cases, affecting the rights of the parties with respect to
the title, as dependent on the express terms of their contract, is the fact that in
England the purchaser can only require covenants against defects of title arising
from the acts of the vendor himself, while in America, except in a few of the
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 27
" Particulars " or " conditions " of the intended sale are prepared
by the vendor's counsel and circulated in the auction room before
the sale as well as announced by the auctioneer at the time of sale. 1
These, it is presumed, while much more elaborate, correspond to
some extent with the " hand bill " or " advertisement " commonly
employed in America, containing a description of the property and
terms of the sale, and any other matter to which the attention of
prospective buyers is to be called. If the sale is by private con-
tract, the same rules apply as in the case of ordinary conditions of
sale by auction. 2 The particulars usually give a description of
States, the rule is that the purchaser may demand a conveyance with gen-
eral covenants, that is, against the acts of all persons whomsoever, no matter
how far back in the chain of title. As the intention of the parties must govern
in the construction of the contract, and as that intention must be largely affected
by the extent of the rights which they acquire or lose by the terms of the
contract, it is obvious that the difference is one of vital importance, and should
constantly be borne in mind. Of course the purchaser may in America, as in
England, agree to take the title of the vendor such as it is, good or bad, and
language sufficiently evidencing such an agreement in England may have the
same effect in America. But it by no means follows that language which in
England would require the purchaser to take such title as the vendor had, would
in all cases \c America be followed by the same consequences, and deprive the
purchaser of his right to maintain or defend an action for breach of contract, on
the ground of inability of the vendor to convey a marketable title, or to require
covenants adequate for his protection. For these reasons it has been deemed
best to separate in the following pages the English rules respecting contracts in
relation to the title from the American doctrine, except in those cases where the
rules in question have been approved or adopted by the American courts.
1 "The conditions of the sale should be printed and circulated some time pre-
viously to the sale or at any rate in the auction room, so as to give each person an
opportunity of ascertaining the terms on which the property is sold. The sys-
tem which is adopted by some of the provincial law societies of having printed
common form conditions, which are used on every sale, and to which are prefixed
the special conditions under which the particular property is sold, has much to
recommend it; the effect of the common form conditions is well understood, and
the attention of the purchaser and his solicitor is at once directed to the special
restrictive conditions. The practice, which still prevails in some parts of the
country, of having written conditions which are merely produced and read over,
but not circulated in the auction room, cannot be too strongly reprobated; and,
if the purchaser is thereby misled or not fully informed on a material point, may
result in the rescission of the contract." Dart V. & P. (5th ed.) 124, citing Tor-
ranee v. Bolton, L. R., 14 Eq. 124; 8 Ch. App. 118.
1 Rhodes v. Ibbetson, 4 De G.. M. & G. 787; Bulkley v. Hope, 1 Jur. (N. 8.)
864.
28 MARKETABLE TITLE TO- SEAL ESTATE.
the property and the nature and extent of the vendor's interest.
The conditions state the terms on which the property is sold,
including the undertakings of the vendor with respect to the title. 1
When the sale is made the auctioneer usually indorses the agree-
ment on a copy of the particulars and conditions, thereby embody-
ing them in the contract of sale. 2
Every condition intended to relieve the vendor from his prima
facie* liability to deduce a marketable title and verify the abstract
by proper evidence at his own expense must be expressed in plain
and unambiguous language. 4 The purchaser, however, will be bound
by a clear stipulation as to the title ; 5 for example, an agreement
by assignees in bankruptcy to sell the estate of the bankrupt " under
such title as he recently held the same, an abstract of which may be
seen ; " 6 or that the purchaser should only have the receipt and
conveyance of an equitable mortgagee and his assignees ; 7 an agree-
ment by the vendors that they should convey only " such title as
they had received from A.; " 8 that the purchaser should accept the
vendor's title " without dispute ; " 9 that he should accept " such
'Dart V. & P. (5th ed.) 114. In Torrance v. Bolton, L. R., 14 Eq. 130, it
appeared that the particulars erroneously described the quantity of the vendor's
estate, but that the conditions contained a correct description. It also appeared
that the conditions were read by the auctioneer at the sale, but it did not appear
that they had been distributed among the bystanders. The purchaser was
allowed to rescind.
Dart V. &P. (5th ed.) 114. Where the auctioneer read from an altered copy
the particulars and conditions, but inadvertently signed an agreement on an unal-
tered copy, it was held that the purchaser was bound, though it did not appear that
he had heard the auctioneer read the altered copy. Manser v. Buck, 6 Ha. 443.
Sugd. 17; Dart. V. & P. (5th ed.) 109; Rawle Cov. 32; Souter v. Drake, 5
B. & A. 992; Doe v. Stanion, 1 M. & W. 695; Hall v. Betty, 4 Mann. & G. 410;
Worthington v. Warrington, 5 C. B. 636.
4 Drysdale v. Mace, 2 Sm. & Giff. 225; Symons v. James, 1 Y. & C. (C. C.) 490;
Osborne v. Harvey, 7 Jur. 229; Clark v. Faux, 3 Russ. 320; Morris v. Keareley,
2 Y. & C. 139; Waddell v. Wolfe, L. R., 9 Q. B. 515; Blake v. Phinn, 3 C. B.
976; Madely v. Booth, 9 De G. & 8. 718; Webb v. Kirby, 7 De G., M. & G. 376;
Edwards v. Wickwar, L. R., 1 Eq. 68; Jackson v. Whitehead, 28 Beav. 154.
8 Seaton v. Mapp, 2 Coll. 556; Forster v. Hoggart, 15 Q. B. 155; Worthington
v. Warrington, 5 C. B. 636; Lethbridge v. Kirkman, 2 Jur. (N. 8.) 372.
Freme v. Wright, 4 Madd. 364.
1 Groom v. Booth, 1 Dre. 548.
8 Wilmot v. Wilkinson, 6 B. & C. 506; Ashworth v. Mounsey, 9 Exch. 176.
Duke v. Barnett, 2 Coll. 337; Molloy v. Sterne, 1 Dru. & Wai. 585.
IMPLIED AND EXPKESS AGREEMENTS AS TO THE TITLE. 29
title as the vendor has." l So where the agreement provided that
the title should " not be inquired into." * So, also, where the defect
of title was clearly stated in the conditions of sale. 1
It seems, however, to be by no means clear that in England a con-
dition of sale that the vendor should not be required to produce a title,
will prevent the purchaser from showing aliunde that the title is bad.
There have been, apparently, conflicting decisions upon the point. 4
But while the purchaser will be bound by a clear stipulation in
the conditions of sale respecting the title, the vendor will be strictly
held to any representations he lias made regarding the title. 5 And
1 Keyse v. Heydon, 20 L. T. 244; Tweed v. Mills, L. R., 1 C. P. 39.
* Hume v. Bentley, 5 De G. & 8. 520. Compare Darlington v. Hamilton, Kay,
550, and Waddell v. Wolfe, L. R., 9 Q. B. 515.
3 Nichols v. Corbett, 3 De G., J. & S. 18.
4 In Spratt v. Jeffery, 5 Mann. & Ry. 188; 10 B. & C. 249, the agreement wai
in the following words: "And the said (purchaser) doth hereby agree to accept a
proper assignment of the said two leases and premises, as above described, wth-
out requiring the lessor's title." BAYI.EY, J., for the court, said that "the fair and
reasonable construction of those words is the purchaser shall not be at liberty to
raise any objection to the lessor's title." In Shepherd v. Keatley, 1 Crompt., M.
& R. 117, the agreement was "that the vendors should deliver an abstract of the
lease, and of the subsequent title under which the leasehold lots are held, but
should not be obliged to produce the lessor's title." In this case the language italicised
was held distinguishable from that in Spratt v. Jeffery, supra, and that it did not
preclude the purchaser from taking any objections to the title which he might
discover. These cases are apparently in conflict, but have been held reconcilable
in Duke v. Barnett, 2 Coll. 337. Sugden says that Spratt v. Jeffery would prob-
ably not now be followed. Sugd. Vend. (8th Am. ed.) 26. See, also, Fry 8p.
Perf. (3d Am. ed.) 614, where that case is said to have been overruled. In Hume v.
Pocock, L. R. , lEq.428, Sir JOHN STUART, V. C., said: " There is no doubt that in
contracts for the sale and purchase of property the terms of the contract must be
clear, in order that the court may see how far the subject-matter of the purchase
can be given by the party who contracts to sell to him whb contracts to buy. But
the owner of a disputed title may make a valid contract for the sale of that title,
such as it may be. No doubt, with reference to the terms of a contract, it is
implied that the purchaser is to have an indefeasible title; and although the ven-
dor may have entered into a contract that he shall not be bound to produce a title,
yet the terms of the contract may be such that if it appears aliunde that he has
no title, and can, therefore, give the purchaser nothing, the court, in such a case,
would not make a decree for specific performance. The meaning of specific per-
formance is that there shall be conveyed what the vendor has contracted to sell to
the purchaser."
s Sugd. 17; Forster v. Hoggart, 15 Q. B. 155; Hume v. Bentley, 5DeG. ft
Sm. 520; Hoy T. Smythies, 22 Beav. 510; Nott v. Riciird, 22 Beav. 307.
30 MARKETABLE TITLE TO REAL ESTATE.
if there be any reasonable doubt or misapprehension as to the mean-
ing of the particulars and conditions, they will be construed in favor
of the purchaser. 1 It seems, also, that any undertaking on the part
of the vendor with respect to the title will, as a general rule, be
strictly construed in favor of the purchaser. 2
Independently of any express stipulation in the particulars and
conditions, there may be special circumstances showing that the
vendor's title was not to be called for, and that the purchaser was to
take the title such as it was. 3 But if the contract stipulate that the
vendor shall deduce and make a good title, he must do so, although
the purchaser be aware of objections to the title. 4
Charges upon the estate, or restrictions upon the purchaser's right
of absolute enjoyment, the release of which cannot be procured by the
vendors, or which do not fairly admit of compensation, 5 or of which
the purchaser has no notice, 6 should be stated in the particulars
of sale, otherwise the purchaser may, in many cases, avoid the
sale. 7
If the attention of the purchaser be drawn to objectionable con-
ditions of sale, he may be bound by them if he makes his bid without
objection. 8
1 Dart V. & P. (5th ed.) 109; Taylor v. Martindale, 1 Y. & C. (C. C.) 661; Symons
v. James, Id. 490; Seaton v. Mapp, 2 Coll. C. C. 562; Nouaille v. Flight, 7 Beav.
521; Smith v. Ellis, 14 Jur. 682; Graves v. Wilson, 25 Beav. 290; Brumflt v.
Morton, 3 Jur. (N. S.) 1198; Jacksoe v. Whitehead, 28 Beav. 154; Swaisland v.
Dearsley, 29 Beav. 430.
'Dart V. & P. (5th ed.) 110; Dawes v.Betts, 12 Jur. 412.
*Dart V. & P. (5th ed.) 151; Richardson v. Eyton, 2 De G., M. & G. 79;
Godson v. Turner, 15 Beav. 46.
4 1 Sugd. Vend. 337; Burnett v. Wheeler, 7 M. & W. 364.
B 8ugd. 5, 6, 311, 312; Dart. V. & P. (5th ed.) 116, 117; Torrance v. Bolton, L.
R, 14 Eq. 124; 8 Ch. App. 118. See " Compensation for Defects," post, 325.
Hall v. Smith, 14 Ves. 426; Pope v. Garland, 4 Y. & C. 394; Patterson v.
Long, 6 Beav. 590; Lewis v. Bond, 18 Beav. 85.
1 Turner v. Beaurain, Sugd. 312; Burwell v. Brown, 1 Jac. & W. 72; Seaman
v. Vawdrey, 16 Ves. 390; Ramsden v. Hirst, 6 W. R.-349; Shackletonv. Sutcliffe,
1 DeG. &Sm. 609; Coverly v. Burrell, Sug. 27; Ballard v. Way, 1 M. & W.
520.
Dart V. & P. 110. Thus, when the conditions were " catching" or decep-
tive, and the purchaser inquired whether a good marketable title could be made,
and the vendor's agents refused to insert any such statement in the contract, but
declared that a good title could be made under the existing conditions, the
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 31
A stipulation that the sale shall be void if the purchaser does not
pay the purchase money, or if the vendor cannot make a good title,
at a specified time, will not justify either party in arbitrarily defeat-
ing the sale by declaring that he cannot pay the purchase money in
the one case or make the title in the other at the appointed time.
Either party, upon the default of the other, may avoid the sale, but
cannot elect to avoid it by merely declaring his inability to perform
the contract. 1
Verbal declarations by the auctioneer, at the time of sale, will
not, as a general rule, be admitted for the purpose of contradicting,
explaining or adding to the particulars and conditions of the sale. 2
But, while such declarations are inadmissible at law on behalf of
purchaser was required to take the title. Hyde v. Dallaway, 6 Jur. 119; 4
Beav. 606.
1 1 Sugd. 23; Roberts v. Wyatt, 2 Taunt. 268; Rippingall v. Lloyd, 2 Nev.
& Man. 410; Page v. Adam, 4 Beav. 269; Malins v. Freeman, 4 Bing. N. C. 395;
Wilson v. Carey, 10 M. & W. 641. The following observations by Mr. Dart, on
the utility of unusual conditions of sale, may be of use in those localities where it
is the custom to pay particular attention to conditions respecting the title:
' ' Lastly, it may be remarked that those conditions which to an unprofessional
eye appear the simplest, are often the most dangerous, and those which appear
difficult and complex to the unlearned purchaser may not unfrequently produce
an impression favorable to the title upon the mind of his legal adviser. The con-
veyancer who, upon the purchase of a large estate, peruses a series of special
stipulations, which have evidently been framed with reference to points which
might be made matters of serious annoyance by litigious, but are of little
practical importance to the willing purchaser, is naturally disposed to believe
that no real difficulties exist where minor objections have been so carefully antici-
pated; and, on the other hand, nothing is more common than to see conditions
whose concise simplicity disarms the suspicion of the unprofessional reader, but
whose sweeping clauses reduce counsel to the dilemma of either advising a client
to complete, under serious uncertainty, whether he will acquire even a tolerably
safe holding title, or of involving him in inquiries which are almost sure to be
heavily expensive, and may probably prove wholly unsatisfactory. The writer
may also be allowed to add, as the result of a somewhat wide experience, that,
in his opinion, the number of seriously defective and dangerous titles, which, at
the present day, are brought into market and passed off upon purchasers under
the cover of special conditions of sale, is much larger than is commonly supposed."
Dart V. & P. (5th ed.) 176.
1 Sugd. Vend. 15, where such declarations are referred to as the " babble of the
auction room." Dart V. & P. (5th ed.) 110; 1 Jac. & W. 639; Higginson v.
Clowes, 15 Ves. 521; Manser v. Back, 6 Ha. 443; Goss v. Lord Nugent, 5 B. &
A. 58; 2 N. & M. 28; Vandever v. Baker, 13 Pa. St. 121.
32 MARKETABLE TITLE TO BEAL ESTATE.
either plaintiff or defendant, 1 they will in equity be admitted in
favor of the purchaser when sued for specific performance. 2 Parol
evidence of declarations at the time of sale is inadmissible in equity
in favor of the vendor-plaintiff, even though the purchaser expressly
agreed to abide by the declarations. 3 Nor can the purchaser avail
himself of such evidence as plaintiff in equity. 4 If statements be
made at the sale varying from the particulars and conditions, the
purchaser should require them to be put in writing, so as to preserve
his rights as plaintiff in equity. 5
Personal information given to the purchaser as to incumbrances
on the estate, or even declarations by the auctioneer on such points,
may be given in evidence, either by the vendor or the purchaser, as
a defense in a suit for specific performance, but, as a general rule,
has been held inadmissible on behalf of the plaintiff. 6
If there is a discrepancy between the particulars of sale and an
instrument of title to which they refer, and the instrument be the
more favorable to the purchaser, the vendor will be bound by the
instrument and must show a title in conformity thereto. 7
10. Agreements to make " good and sufficient deed."
Inasmuch as the law implies a contract that the purchaser shall
receive a good title to the land, free from all defects, charges and
incumbrances, it would seem unnecessary that the purchaser should
insert in the contract any provision assuring him such a title. Indeed,
the anxiety of the purchaser to protect himself by such a precaution
appears sometimes to have resulted in disaster, for there have
been several decisions that an agreement to give a sufficient
warranty deed referred only to the sufficiency of the instru-
1 Gunnis v. Erhart, 1 H. Bl. 289; Ford v. Yates, 2 Mann. & Q. 549; Eden v.
Blake, 13 M. & W. 614; Greaves v. Asblin, 3 Camp. 426; Powell v. Edmunds, 12
East, 6.
*Sugd. 15; Dart V. & P. (5th ed.) Ill; Swaisland v. Dearsley, 29 Beav. 430.
The same rules apply between original purchaser and sub-purchaser. Dart, Id.;
Shelton v. Ldvius, 2 Cr. & J. 411. The rule stated in the text has been applied in
America. See Averett v. Lipscombe, 76 Va. 409.
*Higginson v. Clowes, 15 Ves. 521; Clowes v. Higgingon, 1 Ves. & B. 524;
Fife v. Clayton, 1 C. P. C. N. R. 352; but see Swaisland v. Dearsley, supra.
Sugd. Vend. 15.
Dart V. &P. (5th ed.) 111.
Sugd. Vend. 15; Dart V. & P. (5th ed.) 112; 15 Ves. 523; 1 Ves. & B. 524.
'Dart V. &P. (5th ed.) 120.
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 33
ment tendered by the vendor, and that the contract was satis-
fied if the instrument was sufficient as a conveyance, though
the vendor's title was bad. 1 Unless the facts clearly showed
that the parties were contracting especially with reference to known
defects of title, it would be difficult to perceive any grounds upon
which such decisions could be rested, since no man in his senses
1 Brown v. Covilland, 6 Cal. 566. In this case it was said that if the contract
had called for a good and sufficient warranty deed, instead of a good and suffi-
cient deed merely, the vendors would have been compelled to convey a clear title,
and not merely such title as they had, whatever it might be, to the purchaser;
citing Tinny v. Ashley, infra. See, also, Green v. Covilland, 10 Cal. 332; 70
Am. Dec. 725. Haynes v. White, 55 Cal. 38, seems to be at variance with these
cases. Tinney v. Ashley, 15 Pick. (Mass.) 552; 26 Am. Dec. 620. Gazley v.
Price, 16 Johns. (N. Y.) 267; Parker v. Parmele, 20 Johns. (N. Y.) 132; 11 Am.
Dec. 253. Barrow v. Bispham, 6 Halst. L. (N. J.) 110. In Hill v. Hobart, 16
Me. 164, a distinction is drawn between an agreement to make a deed, or a
deed described, and an agreement " to make a good and sufficient deed to
convey the title " to the premises. In the first case it is said that the contract
is performed by giving such a deed or conveyance as the contract describes,
however deceptfve the title may be. See, also, Tobin T. Bell, 61 Ala. 125.
STKAHAN, J., in Thompson v. Hawley, 14 Oreg. 199: "It seems to me that
the more reasonable rule is that where the terms of the contract are such as to
bind the grantor to convey by good and sufficient deed, or to make a good
and sufficient conveyance, he can only perform his agreement by making
a deed that will pass a good title. But if it clearly appears from the
contract itself, or from the circumstances accompanying it, that the parties
had in view merely such conveyance as will pass the title which the
vendor had, whether defective or not, that is all the vendee can claim or
insist upon." Citing Porter v. Noyes, 2 Greenl. (Me.) 22; 11 Am. Dec. 30, and
cases cited there. It is hardly to be supposed, however, that if the vendor meant
to obligate himself only to convey such title as he had, he would describe it by
such an ambiguous expression as " good and sufficient deed." See extract from
Tindall v. Conover, 1 Spencer (N. J. L.) 214; 11 Am. Dec. 220, infra. In Aiken
v. Sanford, 5 Mass. 494, it was said that a contract to convey "by a good and
sufficient warranty deed " was satisfied by a conveyance in proper form and regu-
larly executed, if the grantor was seized so that the land passed by it. The
reporter adds: " But the court observed that they did not mean to determine that
in no case these words should be considered as applying to the title. If the
money was to be paid on receiving the deed, it might be a reasonable construc-
tion that a good and sufficient title should be conveyed; otherwise the purchaser
might part with his money, not merely for the land, but for a law suit also. In
the present case, however, the money was to be first paid, and the plaintiff might
as well sue on the covenants in his deed as on his bond. There was, therefore,
no reason for giving a construction to the words not naturally implied by them."
These observations were approved in Swan v. Drury, 22 Pick. (Mass.) 488.
5
34 MARKETABLE TITLE TO REAL ESTATE.
would bargain for a shadow when the substance was equally within
his reach. In the absence of any evidence to the contrary, it would
seem that in a contract to " give a good and sufficient deed," the
words " good and sufficient deed " are a mere figure of speech,
meaning a clear and unincumbered title, 1 especially where, as is
frequently the case, the contract was the work of an unskilled
draughtsman. 2 Accordingly the decisions mentioned have been
frequently overruled or disapproved, and the established doctrine
now is that an agreement to convey land by a good and sufficient
warranty deed is not performed by the mere execution of a war-
ranty deed sufficient in form, if the title of the grantor be open to
reasonable doubt. 3 Upon a like principle it has been decided that
1 Tindall v. Conover, 1 Spencer (N. J. L.), 214; 11 Am. Dec. 220, NORBIS, J.,
saying: " Now I undertake to say that in a written contract for the sale and pur-
chase of lands the phrase "a good and sufficient warranty deed" will be under-
stood by more than nine-tenths of mankind, not excepting the legal profession,
to mean a good and sufficient title. That if a person intended to sell and another
to buy, a doubtful or uncertain title, or anything less than a good and sufficient
legal title, in reducing their contract to writing, they would not use this phrase,
but would define the interest bargained for."
* In our rural districts and among laymen the term "lawful deed carries no
other idea than an unrestricted conveyance in fee, clear of incumbrances." Eby
v. Eby, 5 Pa. St. 466. In the same way the term " title " is sometimes vulgarly
used for " deed." Thus in Gilchrist v. Buie, 1 Dev. & B. Eq. (N. C.) 857, where
the contract was " to make a sufficient title as far as this claim extends " the court
said: " The term title is evidently used for deed. * * * To make a title, there-
fore, did not mean to make out one, but to make a deed and to pass the title."
In this case it appeared that the vendors contracted to sell and the purchaser
expected to get only such title as the vendors had.
'Whitehurst v. Boyd. 8 Ala. 375; Hunter v. O'Neill, 12 Ala. 39. Here the
agreement was merely " to make a deed." Tarwater v. Davis, 7 Ark. 153 ; 44
Am. Dec. 534; Pate v. Mitchell, 23 Ark. 590; 79 Am. Dec. 114. Thayer v.
White, 3 Cal. 229; Haynes v. White, 55 Cal. 38. (But see Brown v. Covil-
laud, 6 Cal. 566.) Abendroth v. Greenwood, 29 Conn. 356; Dodd v. Seymour,
21 Conn. 480; Shouse v. Doane, 39 Fla. 95; 21 So. 807. Frazier v. Boggs, 37
Fla. 307; 20 So. Rep. 245; Home v. Rodgers, 113 Ga. 224; Tyler v.
Young, 2 Scam. (111.) 444; 35 Am. Dec. 116; Brown v. Cannon, 5 Gilm.
(111.) 174; Morgan v. Smith, 11 111. 199; Conway v. Case, 22 111. 127; Lull
v. Stone, 37 111. 224; Thompson v. Shoemaker, 68 111. 256. Clark v.
Redman, 1 Bl. (Ind.) 379; Warner v. Hatfield, 4 Bl. (Ind.) 392; Parker v.
McAllister, 14 Ind. 12. Fitch v. Casey, 2 Green (Io.). 300; Shreck v.
Pierce. 3 Cl. (Io.) 360. In this case the court pertinently observed: "The
legal effect of contracts to make title, or to deliver a deed to land under
a contract of purchase, is generally that the vendor shall make a
good title. As a general rule it makes but little difference what the precise
terms of the contract are whether the vendor agrees to make title, or a
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 35
a conveyance with covenants for title is not a sufficient perform-
ance of a contract of sale if the title be defective, the covenants
being no such valuable consideration for the purchase money as to
deprive the purchaser of the right to detain the purchase money in
good title or to make a deed, or a warranty deed if it appears that he is nego-
tiating to sell at a sound price, to be paid or part paid at the conveyance. In
such cases, usually the vendor, without a nice examination of words, is under-
stood to agree for a good title, and the vendee cannot be put off with merely a
good deed. This rule, however, does not preclude those cases where the vendee
appears to be purchasing the vendor's title, such as it may be." Bodley v.
McChord, 4 J. J. Marsh. (Ky.)475; Williams v. Potts, 1 J. J. Marsh. (Ky.) 596;
Brown v. Starke, 3 Dana (Ky.), 318. Porter v. Noyes, 2 Gr. (Me.) 22; 11 Am.
Dec. 30; Brown v. Gammen, 14 Me. 276; Sibley v. Spring, 12 Me. 460; 28 Am.
Dec. 191, the court saying that an agreement to sell and convey is not performed
by tender of a sufficient deed in form if there is an incumbrance on the land.
Swan v. Drury, 22 Pick. (Mass.) 488; Mead v. Fox, 6 Cush. (Mass.) 202; Rob-
erts v. Bassett, 105 Mass. 409; Linton v. Allen, (Mass.) 17 N. E. Rep. 523.
Dwight v. Cutler, 3 Mich. 575; 64 Am. Dec. 105. Cogan v. Cook, 22 Minn. 137;
Murphin v. Scoville, 41 Minn. 262. Wiggins v. McGimpsey, 13 Sm. & M. (Miss.)
532; Feemster v. May, 13 Sm. & M. (Miss.) 275; 53 Am. Dec. 83; Mobley v. Keys,
13 Sm. & M. (Miss.) 677; Greenwood v. Ligon. 10 Sm. & M. (Miss.) 615; 48 Am.
Dec. 775. Luckett v. Williamson, 31 Mo. 54 and 37 Mo. 395. Beech v. Steele, 12
N. H. 88, dictum; Little v. Paddleford, 13 N. H. 167; Critchett v. Cooper,
(N. H.) 18 Atl. Rep. 778. Tindall v. Conover, 1 Zab. (N. J. L.) 654. In Tin-
dall v. Conover, 1 Spencer (N. J. L.), 214; 11 Am. Dec. 220, it was said that the
question what was meant by an agreement to deliver a good and sufficient deed
with covenants of warranty was to be determined by the terms of the contract
and by all the surrounding circumstances. Johnson v. Smock, 1 N. J. L. 106;
Young v. Paul, 10 N. J. Eq. 401; 64 Am. Dec. 456; Lounsbery v. Locander, 25
N. J. Eq. 557. Gilchrist v. Buie, 1 Dev. & B. Eq. (N. C.) 347, dictum; Lee v.
Foard, 1 Jones Eq. (N. C.) 127, tumble. Pugh v. Chasseldine, 11 Ohio, 109; 37
Am. Dec. 414. Thompson v. Hawley, 14 Oreg. 199; Collins v. Delashmutt, 6Oreg.
51; Sanford v. Wheeler, 12 Oreg. 301. Dearth v. Williamson, 2 S. & R. (Pa.) 498;
7 Am. Dec. 652, the court saying: " A lawful deed of conveyance may be fairly
understood a deed conveying a lawful or good title. Romig v. Romig, 2 Rawle
(Pa.), 249; Colwell v. Hamilton, 10 Watts (Pa.), 413; Eby v. Eby, 5 Pa. St. 466;
Wilson v. Getty, 57 Pa. St. 270. Cunningham v. Sharp, 11 Humph. (Tenn.) 120.
Clute v. Robinson, 2 Johns. (N. Y.) 595, a leading case; Jones v. Gardner, 10
Johns. (N. Y.) 266; Judson v. Wass, 11 Johns. (N. Y.) 528; 6 Am. Dec. 392;
Tucker v. Woods, 12 Johns. (N. Y.) 190; 7 Am. Dec. 305; Van Epps v. Schenec-
tady, 12 Johns. (N. Y.)442; 7 Am. Dec. 330; Gastry v. Perrin, 16 Johns. (N. Y.)
267; Robb v. Montgomery, 20 Johns. (N. Y.) 15; Carpenter v. Bailey, 17 Wend.
(N. Y.) 244; Traver v. Halstead, 23 Wend. (N. Y.) 66, the court saying: " It was
tho title to the premises which the purchaser stipulated for, not a piece of parch-
36 MARKETABLE TITLE TO KEAL ESTATE.
case of eviction by an adverse claimant. 1 An agreement to make
a " clear deed," when the purchaser knows that the vendor has only
a life estate, is fully performed by delivery of a deed conveying
such an estate as the vendor has. 2
11. Agreements to convey by " quit claim." It sometimes
happens that the purchaser proposes to buy, and the vendor pro-
ment, good in form but waste paper in effect for the purpose of transferring title."
Lawrence v. Taylor, 5 Hill (N. Y.), 107; Everson v. Kirtland, 4 Paige Ch. (N. Y.)
638; 27 Am. Dec. 91; McCool v. Jacobus, 7 Rob. (N. Y.) 115; Pomeroy v. Drury,
14 Barb. (N. Y.) 424; Hill v. Ressegien, 17 Barb. (N. Y.) 164; Atkins v. Bahrett,
19 Barb. (N. Y.)639; Morange v. Morris, 34 Barb. (N. Y.) 211; Penfield v. Clark,
62 Barb. (N. Y.) 584; Fletcher v. Button, 4 Comst. (N. Y.) 400; Story v. Conger,
36 N. Y. 673; 93 Am. Dec. 546; Burwell v. Jackson, 9 N. Y. 536. Pattersou
v. Goodrich, 3 Tex. 331; Vardeman v. Lawson, 17 Tex. 16; Phillips v. Hern-
don, 78 Tex. 378; Jones v. Phillips, 59 Tex. 610; Jones v. Huff, 36 Tex. 678.
Stow v. Stevens, 7 Vt. 27; 29 Am. Dec. 139, the court saying that it would be
trifling with the good sense of the law to hold that a good and sufficient deed
means only a deed to convey what title the grantor had. Lawrence v. Dole, 11 Vt.
549. In Joslyn v. Taylor, 33 Vt. 470, and Preston v. Whitcomb, 11 Vt. 47, it
was held, however, that an agreement " to give a good and sufficient warrantee
deed " referred only to the kind of deed to be executed, and not to the quality
of the title. It is difficult to perceive how such an inference can be drawn from
the language of the contract, unsupported by evidence aliunde of the intention of
the parties. In most of the States no distinction seems to have been made between
an agreement for a ' ' good and sufficient deed " and a ' ' good and sufficient war-
ranty deed." Goddin v. Vaughn, 14 Grat. (Va.) 117; Christian v. Cabell, 22
Grat. (Va.) 82. Newberry v. French, 98 Va. 471; 36 S. E. 519. Young v.
Wright, 14 Wis. 144; 65 Am. Dec. 303; Falkner v. Guild, 10 Wis. 506;
Bateman v. Johnson, 10 Wis. 1 ; Davidson v. Van Pelt, 15 Wis. 341 ; Taft v.
Kessel, 16 Wis. 273; Davis v. Henderson, 17 Wis. 106. Moody v. Spokane,
etc., R. Co. 5 Wash. 699. If the rule established by the foregoing casea
were not the correct one the vendor, after the execution of the contract,
might convey away the land to another, and yet, by delivering to the pur-
chaser a deed good and sufficient in form, escape the consequences of a breach
of the contract. Lull v. Stone, 37 111. 224. A contract to make a " lawful
deed of conveyance " means a deed conveying a lawful or good title. Wilson
v. Getty, 57 Pa. St. 266. A deed conveying " all the right, title and interest "
of the vendor is not a compliance with a contract to execute to the purchaser
" a good and sufficient deed of bargain and sale, free and clear of all incum-
brances, " if the property is incumbered. Rogers v. Borchard, 82 Cal. 347.
If the purchaser contract for " a deed conveying a clear title " he may reject
a warranty deed if there is an incumbrance on the premises. Roberts v.
Bassett, 105 Mass. 409.
*Knapp v. Lee, 3 Pick. (Mass.) 459, disapproving Lloyd v. Jewell, 1 Greenl.
(Me.) 352; 10 Am. Dec. 73.
*Rohr v. Kindt, 3 Watts & S. (Pa.) 563; 39 Am. Dec. 53.
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 37
poses to sell, only such title as the vendor actually has, without
regard to the goodness or the sufficiency of that title. In other
words, the purchaser makes a chancing bargain, and presumably is
compensated for the risk he takes in a diminished valuation of the
premises. Therefore, it is very generally held that if the vendor
contract only to convey or " quit claim " such interest as he may
have in the premises, the purchaser is without relief against him at
law or in equity. 1 But while the rule that the parties may stipulate
for the acceptance of the title, such as it is, is elementary, an agree-
ment to that effect will not be inferred from ambiguous expressions,
or from the purchaser's knowledge of the existence of objections to
the title. Every agreement by which the purchaser consents to
take a defective title without recourse upon the vendor should be
expressed in clear and unambiguous terms. 2 It seems that the pur-
chaser's consent to take a defective title does not necessarily deprive
him of the right to require a conveyance with covenants for title,
since it may be that the protection to be afforded him by those
covenants is the sole inducement to the consent, but it has been
said by the most eminent authority that if in fact the purchaser
consents to take a defective title, relying for his security on the
Tender's covenants, the agreement of the parties should be particu-
larly mentioned. 3
As an agreement to make a " good and sufficient deed" relates not
1 Holland v. Rogers, 38 Ark. 251. Fitch v. Willard, 73 111. 92. Vail v. Nelson,
4 Rand. (Va.) 124; Button v. Sutton, 7 Grat. (Va.) 204; 56 Am. Dec. 109; Bailey
T. James, 11 Grat. (Va.) 468; 62 Am. Dec. 659. Boyles v. Bee, 18 W. Va. 520.
McManus v. Blackmar, 47 Minn. 331. Waldron v. Zollikoffer, 3 Iowa, 108,
where it is said that the failure to give a full price for property is ordinarily a
strong circumstance, but not a conclusive one, to show that the parties contracted
in view of defects, or for the actual value of the thing sold. In Louisiana, by
statute, an express exclusion of warranty does not destroy the purchaser's right
to require security against eviction, unless he bought with knowledge of the
danger of eviction. Dufief v. Boykin, 9 La. Ann. 295; Gautreaux v. Boote,
10 La. Ann. 137. A purchaser who buys at a public sale under an announcement
that only an interest is to be sold, and that if there is no title the purchaser will
get none, is without remedy if the title fails. Such an announcement dampens
the sale, and the purchaser gets the property at a reduced price with a view to
speculation, and must be held to his bargain. Ellis v. Anderton, 88 X. Car. 478.
1 Sugd. Vend. (8th Am. ed.) 510, 511 (337); Rawle Cov. (5th ed.) 32.
S 2 Sugd. Vend. (8th Am. ed.) 230 (678).
38 MARKETABLE TITLE TO REAL ESTATE.
merely to the form of the deed, but to the sufficiency of the title, 1
so neither is an agreement to convey " by quit-claim deed," a stipu-
lation merely as to the form of the deed ; it is a condition which
requires the purchaser to take just such title as the vendor has. 2
12. Agreement to sell right, title and interest. An agree-
ment to sell all of the vendor's right, title and interest in the prem-
ises, is a sale of such interest only as the vendor may have, and
the contract is fully performed on his part by a conveyance of
such interest without regard to the goodness or sufficiency of the
title. 8
It has been held, however, that a vender so contracting must have
some title or some right, even though it consist of no more than a
naked possession ; otherwise the contract would be nudum pactum,
and the purchaser might rescind. 4 Whether he might affirm the
agreement and have damages for a breach of the contract is another
question.
It has been held that an agreement to convey all the vendor's
" right, title and interest, with full covenant of warranty," is not
satisfied, except by the conveyance of an indefeasible estate. 5
i i
13. Express agreement to purchase subject to liens or
defects. If the purchaser expressly agrees to assume the pay-
ment of an incumbrance on. the purchased premises, he not only
cannot thereafter object to the title because of the incumbrance,
but as between himself and the vendor, he makes tho debt his own,
and assumes to protect the vendor. 6 It has been held, however,
that a mere agreement to take " subject to " an incumbrance, does
not bind the purchaser to discharge the incumbrance. 7
1 Ante, p. 33.
s McManus v. Blackmar. 47 Minn. 331.
'Tweed v. Mills, L. R., 1 C. P. 39; Johnston v. Mendenhall. 9 W. Va. 112;
Babcock v. Wilson, 17 Me. 372; 35 Am. Dec. 263; Herrod v. Blackburn, 56 Pa.
St. 103; 94 Am. Dec. 49.
4 Johnson v. Tool, 1 Dana (Ky.) ( 479; 25 Am. Dec. 162.
5 Lull v. Stone, 37 111. 155.
See upon this subject Sheld. Subrogation (2d ed.) 85; Taylor v. Preston, 79
Pa. St. 436; Burke v. Gummey, 13 Wright (Pa.), 518; Campbell v. Shrum, 3
Watts (Pa.), 60; Woodward's Appeal, 2 Wright (Pa.), 322; Moore's Appeal, 88 Pa.
St. 450; 32 Am. Rep. 469; Taintor v. Hemraingway, 18 Hun (N. Y.), 458; Kruger
T. Adams, 13 Neb. 100.
1 Lewis v. Day, 53 Iowa, 575, and cases cited.
IMPLIED AND EXPRESS AGREEMENTS AS TO THE TITLE. 39
It has also been held that if the purchaser merely agreed to take
the property subject to a mortgage, he might reject a conveyance
containing a provision that he should assume the payment of the
mortgage, the effect of such provision being to render him person-
ally liable for any deficiency, in case the land should be insufficient
to satisfy the mortgage ; a state of affairs often found to exist after
a rapid decline of speculative values. 1
It has been held that if the vendor contract in express terms to
convey a " perfect title " to the purchaser, he will not be absolved
from his obligation by a further provision of the contract that if
the purchaser was compelled to pay any lien on the property the
amount so paid should be deducted from the purchase money. It
was considered that the provision in question was solely for the
benefit of the purchaser, and that if there was an incumbrance on
the property, he might abandon the contract notwithstanding his
power to apply the purchase money to the incumbrance. 2 The gen-
eral rule, however, is that the purchaser must apply the unpaid pur-
chase money to the satisfaction of valid incumbrances.*
When the purchaser binds himself to pay rent if the title fails,
he cannot, on failure of the title, recover damages from the
vendor. 4
* Kohner v. Higgins, 42 N. Y. Super. Ct. 4 ; Mellon r. Webster, 5 Mo. App.
449.
1 Lewis v. White, 16 Ohio St. 444. This was an action by the vendor against
the purchaser for breach of the contract. The case seems to be in conflict
with Devling v. Little, 26 Pa. St. 502.
*See post, 245.
4 Cross v. Freeman, 22 Tex. Civ. App. 209; 54 S. W. 246.
CHAPTER IV.
OF THE SUFFICIENCY OF THE CONVEYANCE TENDERED BY THE
VENDOR.
GENERAL OBSERVATIONS. 14.
ESSENTIAL REQUISITES OF THE CONVEYANCE. 15.
Material, printing, etc. 16.
Date. 17.
Parties. 18.
Word* of conveyance. 19.
Description of the premises. 20.
Description of estate or interest conveyed. 21.
Signature and seal. 22.
Attestation or acknowledgment. 23.
(a) Venue of the certificate. % 24.
(ft) Name and official designation of certifying officer. 25.
(c) Name of grantor. 26.
(d) Annexation of deed. 27.
() Jurisdiction of certifying officer. 28.
(/) Personal acquaintance with grantor. 29.
(g) Fact of acknowledgment. 80.
(A) Privy examination of wife. 81.
() Explanation of content* of deed. 32.
(fc) Voluntary act of wife. 33.
(0 Wish not to retract. 34.
(m) Reference to seal. 35.
(n) Date of certificate. % 36.
(o) Signature of officer. 37.
(p} Abbreviation of official designation. % 38.
(g) Seal of officer. 39.
(r) Surplusage and clerical mistakes. % 40.
(*) Amendment of certificate. % 41.
Reservations, restrictions and conditions. 42.
Waiver of objections to the conveyance. 43.
14. GENERAL OBSERVATIONS. When the vendor prepares
his conveyance and tenders it to the purchaser, the latter may
reject it and insist that there has been a breach of the contract,
either (1) Because the conveyance and its covenants are not such as
he is entitled to demand ; or, (2) Because the title is not such as the
vendor has contracted to convey. A defective conveyance, pre-
pared and tendered by the vendor, would not constitute, strictly
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 41
speaking, a defect in the vendor's title. But inasmuch as the pur-
chaser 's title would be incomplete without the execution of a suffi-
cient conveyance, it has been deemed proper to include that subject
in the scope of this work.
In England the purchaser is required to prepare and tender to
the vendor a conveyance to be executed by him, and the same rule
exists in some of the American States ; but the general rule in those
States is that the vendor shall prepare and deliver to the purchaser
a proper conveyance of the premises. 1
The conveyance musfy of course, be sufficient in form to pass the
interest to which the purchaser is entitled under the contract. 2 We
have already seen that a conveyance sufficient in form as a mere
medium for transferring title cannot be held a performance of a
contract to make a " good and sufficient deed," if the vendor has
not such title as the purchaser may require. 8
An agreement " to sell " lands obliges the vendor to make a
proper conveyance. 4 The conveyance must be witnessed or
acknowledged by all the parties, and have the necessary certificates
attached, so that it may be admitted to record at once. 8
The conveyance must also contain all the covenants to which the
purchaser is entitled. 6 Too much importance cannot be attached to
this requisite, since upon these depends his right to relief in case he
loses the estate after the conveyance has been accepted. 7 It has
been held that the purchaser has no right to inspect the deed pre-
pared by the vendor before paying the purchase money unless the
contract so provides. 8
1 Post, 88.
1 But a conveyance sufficient to pass all of the vendor's interest need not follow
the language of the contract and purport to convey " all the right, title and inter-
est " of the vendor. Brown v. Bellows, 4 Pick. (Mass.) 178.
Ante, 10.
4 Hoffman v. Fett, 39 Cal. 109; Smith v. Haynes, 9 Greenl. (Me.) 128; Dart
V. & P. (5th ed.) 130. And, e converse, an agreement to "execute and deliver a
deed " is an agreement to sell the land. Martin v. Colby, 42 Hun (N. Y.), 1.
Tapp v. Beverley, 1 Leigh (Va.), 80; Botto v. Berges, 47 La. Ann. 959; 17 So.
Rep. 428.
Post, 67, 68.
Rawle Cov. for Title (5th ed.), 320; post, chap. 27.
Papin v. Goodrich, 103 111. 86.
6
42 MARKETABLE TITLE TO BEAL ESTATE.
15. ESSENTIAL REQUISITES OF THE CONVEYANCE. The
principal points to which the attention of the purchaser is to be
directed in determining the sufficiency of the conveyance tendered
to him by the, vendor are : That it be written or printed upon paper,
parchment or other equally convenient or substantial material ; that
there be one or more correctly designated grantors and grantees ;
that the grantors are competent to convey, and, when they act in an
official capacity, have employed all necessary formalities in the exe-
cution of the deed ; that proper and necessary words of conveyance
have been employed ; that the granted premises have been accu-
rately and properly described, and, in some of the States, that the
conveyance be under seal, attested by subscribing witnesses and
acknowledged before some officer competent to take and certify
acknowledgments. The foregoing essential requisites of a convey-
ance, as between vendor and purchaser, are further considered in
the following pages. It should be observed here, however, that a
deed may be sufficient to support a title in ejectment, and yet not
such a conveyance as the purchaser may require. For example, in
those States in which the common law prevails, a deed without a
signature, as has been already observed, is valid. But it is appre-
hended that no purchaser could be compelled to accept such an
instrument as a sufficient deed ; for if he should offer to resell the
premises, the want of a signature to the deed under which he holds
would, beyond question, be made the ground of objection to his
title. And while the objection might, after litigation, be adjudged
untenable, he should not be required to accept a conveyance so
irregular in form as to render his title unsatisfactory to a purchaser.
So, also, where the description is so vague and uncertain as to make
necessary a resort to parol evidence to identify the premises. And,
generally, it may be said that the purchaser may reject the convey-
ance whenever its sufficiency is in any degree a matter of legal
doubt, upon the same principle which permits him to reject a title
concerning which there is a reasonable doubt. 1 No hardship can
result to the vendor from these requirements, since he may always
remove the objection at a trifling expense.
The vendor has a right to prepare and tender, and the purchaser
is bound to accept, a conveyance correcting errors or misdescriptions
1 Post, chap. 31.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 43
contained in a former conveyance. If the vendor be dead, his heirs,
or a commissioner of the court, should make and tender the
amended conveyance. 1 By consent of parties, a deed defectively
executed may be corrected by interlineations, reacknowledged and
recorded anew, and may be presumed to be redelivered as of the
new date, so as to take effect therefrom. 2 In some of- the States a
deed of bargain and sale must be supported by a valuable considera-
tion, pecuniary or otherwise. 3 Wherever this rule exists, the pur-
chaser should see that the consideration is expressed in the deed
which is tendered to him by the vendor. It is true that the exist-
ence of the consideration, if not recited in the deed, may be shown
by evidence aliunde y 4 but the conveyance which the purchaser is
to receive should, if possible, afford no occasion for a query as to its
sufficiency, if he should desire to resell the estate.
16. Material, printing, erasures, etc. Deeds have always
been written or printed upon paper or parchment, and the extreme
improbability of a departure from this custom makes the question
of the validity of a deed written or engraved upon other materials
practically unimportant. If, however, a deed should be written or
printed upon some material similar to and forming a convenient sub-
stitute for paper or parchment, it is apprehended that a purchaser
could not decline to receive it. A deed engraved, written or printed
upon stone, metal, wood or other bulky and inconvenient material
might perhaps be received as evidence of title in ejectment. 5 But
there can be no doubt that a purchaser would be justified in rejecting
such an instrument if tendered by the vendor. Deeds are usually
written with ink, but they are not liable to objection because wholly
or partly in print. Even the signature of a deed may, it is appre-
hended, be in print, all danger of fraud being removed by the
acknowledgment of the deed before attesting witnesses or a certifying
officer. 6 For the same reason it is apprehended that a deed written
1 Leslie v. Slusher, 15 Ind. 166; Rush v. Truby, 11 Ind. 462.
1 Fitzpatrick v. Fitzpatrick, 6 R. I. 64; 75 Am. Dec. 681.
3 Washb. Real Prop. 368 (618).
4 Id.
5 In 2 Bouvier's Inst. 389, it is said that an instrument written or printed on
" wood, linen, bark, stone, or the like," would be invalid as a deed.
'Such a signature has been held a sufficient compliance with the Statute of
Frauds. Browne Stat. Frauds, 356 (4th ed.), p. 441; Devlin on Deeds, 185,
44 MARKETABLE TITLE TO KEAL ESTATE.
with a lead pencil would be held valid. 1 But it may be doubted
whether a purchaser might not lawfully refuse to accept a deed so
written, and insist upon one prepared in the usual manner.
A contract to convey by good and sufficient deed obliges the
vendor to tender a deed so drawn and executed as to leave no
reasonable doubt of its legal sufficiency to convey the land. It
must be free from all such interlineations and erasures as are
reasonably calculated to throw doubt upon the paper as a valid
conveyance. 2
17. Date. Regularly, a deed should be dated, but the fact that
it has no date, or has an impossible date, will not render it void.
The true date may be shown. 3 A deed being an executed contract,
it is immaterial that it bears date on a Sunday ; the parties being
in pari deliclo. the courts will not interfere to declare the instru-
ment void, as it sometimes does where the contract is executory. 4
The date may be inserted either at the beginning of the deed, or at
the close, in the testimonium clause; that in the testimonium clause
is to be treated as the true date, if it be later than the one expressed
at the beginning of the deed. 5 Inasmuch as it is usual and cus-
tomary to insert a date in conveyances of real estate, and the want
of it may be easily supplied, the purchaser should require that the
instrument tendered shall be complete in this particular.
18. Parties to the conveyance. It seems unnecessary to say
that every deed must contain the names or description of parties
grantor and grantee. 6 Yet instances exist in which instruments,
from which the name of the grantee, through carelessness or inatten-
and cases there cited. But where a statute required the memorandum to be
" subscribed " by the party to be bound, it was held that a printed signature
was insufficient. Vielle v. Osgood, 8 Barb. (N. Y.) 130; Davis v. Shields, 2
Wend. (N. Y.) 351.
1 Contracts for the sale of land written in lead pencil are valid. Clason Y.
Bailey, 14 Johns. (N. Y.) 484. So also, a will or codicil to a will. Raymes r.
Clarkson, 1 Phillim. 22.
'Shouse v. Doane, 39 Fla. 95; 21 So. 807.
8 Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230. The date is no part of the
substance of a deed, and not necessary to be inserted. The real date of a deed
is the time of its delivery. Thompson v. Thompson, 9 Ind. 323: 68 Am. Dec.
638. It is no objection to a deed that it bears date prior lo the vendor's
acquisition of title. Bledsoe v. Doe, 4 How. (Miss.) 13.
* See cases cited 24 Am. & Eng. Encyc. of L. 555.
Kurtz v. Hollingshed, 4 Cranch C. C. (U. S.) 180.
Chase v. Palmer, 29 111. 306 ; Whittaker v. Miller, 83 111. 381. In both the*e
cases the deed had been executed in blank, and the name of a grantee after-
wards inserted by a third person. Garnett v. Garnett, 7 T. B. Mon. (Ky.) 545.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 45
tiop, has been omitted, have been tendered to and accepted by the
purchaser. The parties should be correctly described by their Chris-
tian names as well as surnames. And while an incorrect or imperfect
description of the grantee does not destroy the validity of a deed
as a muniment of title, there can scarcely be any doubt that a pur-
chaser would not be required to accept such a conveyance. 1 There
must not only be a grantee in every deed, but such grantee must
be a person or corporation who can take and hold the premises.
Deeds have sometimes been held void because of uncertainty or
vagueness in the description of the grantee. 3 Thus, a grant to the
people of a county is void for uncertainty. 3 But it is not necessary
that a grant to a person shall describe him by name, if he be other-
wise so described that he may be identified. 4 Hence, a grant to the
" children of A." is valid. 5 So, also, a deed " to the heirs at law of
a deceased person." 6 But a deed to " A. and his heirs," A. being
dead at the time of the grant, is void. In such a case, the words
" his heirs " are words of limitation and not words of purchase. 7
The grantee, unless such by way of remainder, must, of course, be
in existence at the time of the grant. 8 It has been held that a con-
veyance to a fictitious person is void. 9 It is not absolutely indis-
pensable that the name of the grantee shall be set forth in the grant-
ing clause of the deed ; if his name appear in the habendum, it will
suffice. 10 Nor will a deed be avoided by the fact that the grantor's
1 Thus, in Peabody v. Brown, 10 Gray (Mass.) , 45, a deed to "Hiram Gowing"
was held valid as a conveyance to "Hiram G. Gowing," though there was such
a person as " Hiram Gowing," he being the son of the person intended as grantee.
And many cases may be found in which incorrect, uncertain and doubful
descriptions of the grantee have been aided by parol evidence, and the descrip-
tion held sufficient, according to the maxim id cerium est quod reddi potest.
But obviously this doctrine has no application to a case in which the purchaser
stands insisting that the vendor shall tender a deed free from misdescription.
2 Jackson v. Cory, 8 Johns. (N. Y.) 385. So, also, a deed to the " estate " of
a certain person deceased. Mclnerny v. Beck, 10 Wash. 515; 39 Pac. Rep. 130.
Jackson v. Cory, 8 Johns. (N. Y.) 385; Hornbeck v. Westbrook, 9 Johns.
(N. Y.) 73.
4 1 Devlin on Deeds, 184.
Hogg v. Odom, Dudley, (Ga.) 185.
4 Shaw v. Loud, 12 Mass. 447.
7 Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543.
Newsom v. Thompson, 2 Ired. (N. C.) L. 277; Lillard v. Ruckere, 6 Yerg.
i Trim.) 64.
Muskingum Val. Turnpike v. Ward, 13 Ohio, 120. But see Thoraaa Y.
Wyatt, 31 Mo. 188; 77 Am. Dec. 640.
"Berry v. Billings, 44 Me. 416; 69 Am. Dec. 107.
46 MARKETABLE TITLE TO' REAL ESTATE.
name does not appear in the granting clause, if it can be supplied
from the rest of the instrument. 1 The full names of the parties
should be correctly set forth in the conveyance. But the omission
of a middle name will not invalidate the deed. 2 2s"or will a differ-
ence in the spelling of the name of the grantor, as recited in the
deed and as signed thereto, be material, if it can be shown that they
are one and the same person, 3 and it has been held that a convey-
ance to a person by a wrong baptismal or Christian name is not for
that reason void. 4 But, of course, a purchaser should reject a deed
containing such an irregularity. The burden of removing or explain-
ing apparent or seeming defects should not be imposed upon him.
Where the purchaser is a partnership, the conveyance must be
made to the individual partners jointly as tenants in common, and
the partnership may reject a deed in which the grantee is the firm
itself, e, g., a deed to A. B. & Co. 5 A conveyance to A. B. & Co.
passes the legal title to A. B. alone. 6 A deed made by "A. B.,
Executor," without specifying the estate of the testator, and signed
by the executor in the same way, is sufficient as a deed executed by
him in a representative and not in his individual capacity. 7
The purchaser is also entitled to require a conveyance from the
person appearing of record to be the owner, though he be in fact the
mere nominal owner. 8 A contract, by several to convey with war-
ranty is not performed by tendering a conveyance signed only by
one of the vendors, and the purchaser may reject such a conveyance.
He has a right to have the warranties of all those with whom he
1 Mards v. Meyers, (Tex.) 28 S. W. Rep. 693.
"McDonald v. Morgan, 27 Tex. 503; James v. Stiles, 14 Pet. (U. S.) 322,
A variance in the middle initial letter of the name of the grantor, as written
in the signature and in the body of the deed, will not avoid the deed.
Erskine v. Davis, 25 111. 251.
8 Lyon v. Karn, 36 111. 362; Tustin v. Faught, 23 Cal. 237; Middleton v.
Findla, 25 Cal. 76.
4 Stark v. Sigelow, 12 Wis. 234.
5 1 Washb. Real Prop. (3d ed.) 573; McMurray v. Fletcher, 24 Kans. 574.
Arthur v. Weston, 22 Mo. 378; Beauman v. Whitney, 20 Me. 413.
'Bobeock v. Collins, (Minn.) 61 N. W. Rep. 1020.
Walter v. De Graaf, 19 Abb. N. C. (N. Y.) 406. In this case the apparent
owner contracted to give a warranty deed with full covenants. The convey-
ance under which the apparent owner held was absolute in form, but in fact
a mortgage. He reconveyed to the mortgagor, and a warranty deed from the
latter was tendered to the purchaser. It was held that the purchaser was
entitled to the benefit of the covenants of the apparent owner, and that the
deed tendered was insufficient.
SUFFICIENCY OF CONVEYANCE TENDEBED BY THE VENDOB. 47
contracted. 1 It has been held that a contract to make a good and
sufficient deed, entered into by a vendor having no title, would be
satisfied by a tender of a conveyance from the real owner. 2 It
Avould seem, however, that if the contract entitled the purchaser to
covenants of warranty, the vendor should be required to join in the
conveyance so tendered.
In every case in which the purchaser is entitled to demand a con-
veyance with covenants for title by the vendor, the duty devolves
on the vendor to make and deliver his own deed, and the purchaser
may reject the deed of a third person. He is entitled to the cove-
nants of his vendor. 3
But a deed from a third party is a substantial compliance with a
covenant to convey, unless the purchaser is entitled to covenants of
warranty from the vendor. 4 Such a deed, however, not being
within the terms of the contract of sale, the burden devolves on
the vendor to show that the purchaser accepted the same in full
performance of the agreement. 5
The purchaser should not only see that the parties to the convey-
ance are properly named, designated or described, but he should
insist upon the execution of the conveyance by all parties whose
concurrence in the deed is necessary to perfect the title. If the
deed be that of the husband, he should see that the wife joins, and
vice versa. If the conveyance be by one who has an equitable
estate only, as frequently happens, he should insist that the party
having the legal title shall join as a party grantor. Regularly, the
names of all parties executing the deed should be set out therein,
but it sometimes happens that a deed poll is executed by a person
'Lawrence v. Parker, 1 Mass. 191; 2 Am. Dec. 10; Clark v. Redman, 1
Blackf. (Ind.) 379.
2 13a.teman v. Johnson, 10 Wia. 1.
3 Steiner v. Zwickey, 41 Minn. 448; 43 N. W. Rep. 376; Crabtree v. Levinga,
53 111. 526; Yates v. Prior, 11 Ark. 76; Taylor v. Porter, 1 Dana (Ky.) 422;
25 Am. Dec. 165; Royal v. Dennison, (Cal.) 38 Pac. Rep. 39; George v.
Conhaim, 38 Minn. 338 ; 37 N. W. Rep. 391 ; McNamara v. Pengilly, 64 Minn.
543; 59 N. W. 1055; Meyers v. Markham, 90 Minn. 230; 96 N. W. 787;
Miner v. Hilton, 44 N. Y. Supp. 155; 15 App. Div. 55.
4 Bigler v. Morgan, 77 N. Y. 312; Robb v. Montgomery, 20 Johns. (N. Y.)
15. The vendee cannot be required to accept a deed from a third person, to
whom the vendor conveyed, without proof that no dower interest, nor tax,
nor assessment lien had attached since such conveyance. Bonsinger r.
Erhardt, 77 N. Y. Supp. 577; 74 App. Div. 1(10.
Slocum v. Bray, S3 Minn. 240: '0 N. W. Rep. 826.
48 MARKETABLE TITLE TO REAL ESTATE.
not mentioned as one of the grantors. Whether the deed will be
operative as to such person, it is unnecessary to consider here ; it
suffices to say that the purchaser should reject such an irregular
instrument, and require the name to be inserted in the proper place.
If the conveyance is made in an official or representative capacity,
that fact should appear in the description of the grantor ; it is insuffi-
cient that the deed be signed by the party in the capacity in which
he acts. 1
It is a general rule that the purchaser cannot be compelled to
accept a conveyance executed by an attorney in pursuance of a
power, unless an actual necessity for the execution of the convey-
ance in that form appears. 2 There has been some conflict of
opinion as to the validity of a deed purporting on its face to be the
act of a principal, but executed and signed by an attorney in fact in
his individual capacity, that is, without the name of the principal or
the addition of words after the signature of the attorney to show
that the deed is not his individual act, but the act of the principal.
It is deemed unnecessary to discuss this question here, or to refer
to the decisions either way upon the points. 3 It suffices to say that
the purchaser should insist that the recitals in the body of the deed
shall show that it is the act of the principal, and that the deed shall
be signed as well with the name of the principal as with that of the
attorney, thus, "John Smith, by his attorney in fact, William
Brown."
The purchaser should also be careful to see that the deed is exe-
cuted by a person having power and authority to convey. If the
grantor be an executor, administrator, trustee, attorney in fact, pub-
lic official, officer of a court, officer of a corporation, or, indeed, any
person acting en auter droit, the nature and extent of his powers
should be examined, and the observance of all required formalities
exacted. 4 Particular attention should be paid to conveyances of
1 Bobb v. Barnum, 59 Mo. 394.
2 Sudg. Vend. (8th Am. ed.) 214 (563).
3 The cases will be found collected in 1 Devlin on Deeds, 377, et seq.
4 A power of attorney to convey land must be under seal. Plummer v. Rus-
sell, 2 Bibb (Ky.), 174. A misrecital of a valid power of attorney in a deed, exe-
cuted in pursuance thereof, is no objection to the validity of the deed. Jones v.
Tarver, 19 Ga. 279. A deed executed by an attorney in fact, with provisions in
excess of his authority, will be void as to such provisions, but valid in other
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOE. 49
corporate property, and all statutory or charter provisions as to the
authority of the officers to convey, and as to the mode of convey-
ance, should be literally and rigidly followed. ' A conveyance of
firm property should be signed by all the partners. One partner
has no right to execute a deed in the name of the partnership unless
the other partners are standing by and give their consent or confer
power upon him by an instrument under seal. 1
If the purchaser be entitled, under the contract, to call for a con-
veyance of a clear and un in cumbered title, he may reject a convey-
ance which doos not contain a relinquishment of any contingent
right of dower existing in the premises. 2
19. Words of conveyance. The granting clause of a deed
requires the careful attention of the purchaser. Of course the use
of a form prescribed by statute will be sufficient, but the purchaser
should see that the deed contains the operative words of conveyance
found in the form or their equivalents. Such forms are usually
brief, being intended to furnish a simple and convenient mode of
conveyance, but it is generally provided that they shall not invali-
date a deed in the " common law " or lengthy form. Where, how-
ever, by statute or common law, certain technical words are made
necessary in a conveyance, equivalents will not answer. 3 Thus, in
some of the States, the words " grant, bargain and sell " are by
statute made to imply certain covenants for title, and in others the
common-law rule that the word " heirs " is necessary in the creation
respects. Qimell v. Adams, 11 Humph. (Tenn.) 283. A deed with blanks filled
by an agent in the absence of the grantor, but with verbal authority from him, is
roid. Ingram v. Little, 14 Ga. 173; 58 Am. Dec. 549. If the deed is made in
pursuance of a judicial sale, the purchaser should see that the sale has been con-
firmed. Fraser v. Prather, 1 McArth. (D. C.) 206; 2 Dan. Ch. Pr. 1454. A com-
missioner acting under a decree of court can convey no more than he is author-
ized by the decree to convey. Neel v. Hughes, 10 Gill & J. (Md.) 7. A
conveyance by a corporation must be executed in the corporate name and under
the corporate seal. Hatch v. Barr, 1 Ohio, 390. It is not necessary that the
deed of a corporation shall recite the vote authorizing the execution of the deed.
McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274.
1 Story on Partnership, 120.
5 Polk v. Sumter, 2 Strobh. L. (S. Car.) 81; Jones v. Gardner, 10 Johna. (N.
T.)26.
1 Washb. Real Prop. m. p. 56 (3d ed.) 671.
7
50 MAKKETABLE TITLE TO REAL ESTATE.
of an estate of inheritance still exists. Wherever thig is the case,
the purchaser should see that these precise words are employed and
should reject a deed which does not contain them. Where the
statutory form of conveyance is not employed, attention should be
given to the operative words of conveyance in the deed. A paper
containing no words of conveyance can never operate as a deed, 1
and yet instruments amounting to nothing more than executory con-
tracts for the sale of lands have been tendered and accepted as con-
veyances by persons acting without competent advice. An instru-
ment in which the only words of grant are " sell " or " sign over," *
cannot take effect as a deed. No estate can pass by deed unless it
is plainly embraced within the words of grant. 8 But a deed with-
out sufficient words of conveyance in the granting clause will pass a
fee if words sufficient for that purpose appear in other parts of the
deed. 4
20. Description of the premises. A vast number of cases in
which deeds have been held inoperative for want of a sufficient
description of the premises may be found in the reports. The
general rule is that a description from which it is possible to ascer-
tain and identify the land intended to be conveyed is sufficient. 6
We need not inquire here whether parol evidence will be received
in aid of an unintelligible description. The purchaser may avoid
1 Brown v. Manter, 21 N. H. 528; 53 Am. Dec. 223. An instrument under
seal'acknowledging receipt of the consideration for the sale of real estate, but
containing no words of conveyance, passes no title. Pierson v. Doe, 2 Ind. 123.
1 McKenney v. Settles, 31 Mo. 541. But see Hutchins v. Carleton, 19 N. H.
487, where the words " assign and make over'' were held to pass a fee, and Fash
v. Blake, 38 111. 363, where a similar decision was rendered. The words " to go
to" are sufficient as words of grant (Folk v. Yarn, 9 Rich. [S. C.] Eq. 303); so,
also, the word "convey" (Patterson v. Carneal, 3 A. K. Marsh. [Ky.] 618; 13
Am. Dec. 208), and the -word "give" in a deed of gift. Pierson v. Armstrong, 1
Iowa, 282; 63 Am. Dec. 440.
1 Ryan v. Wilson, 9 Mich. 262.
4 Bridge v. Wellington, 1 Mass. 219.
1 Devlin on Deeds, 1012. Where a purchaser takes possession of a rectangu-
lar piece of ground under a deed which gives the boundaries of three sides only
of the rectangle, the court will supply the fourth side; and it is no defense to an
action for the purchase money that the error in the description leaves an out-
standing interest in the grantor or his heirs. Ray v. Pease, (Ga.) 22 S. E.
Rep. 190.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 51
trouble of that kind by insisting upon a full and accurate description
of the premises. It is simply a matter to which his attention should
be particularly drawn. The deed should set out the names of the
State and county in which the land lies, and also the range, town-
ship, section and quarter section of which it forms a part, 1 where
those subdivisions are in use, the name of the nearest town, village
or other public place in the county, and the direction therefrom in
which the land lies ; then follow metes and bounds, courses and dis-
tances, references to known monuments and natural objects, lands
of adjacent proprietors, public highways, water courses and the like,
and an estimate of the quantity of land conveyed. It is better
that a deed should contain all of these items of description, but of
course they are not all indispensable, if from a part of them the land
can be located and identified. A description as the " S. of the
N. E. ^ of S. E. " of a section was held fatally bad, there being
no such thing as the " southeast half " of a section, though of course
there might be a southeast quarter. 2 A description of the land con-
veyed as " ten acres, more or less," of a certain other piece of land,
without showing how the ten acres are to be cut off, makes the deed
void for uncertainty. 3 Land described in a deed must be suscepti-
ble of location, that is, the survey must be made to close as to the
whole tract, or some definite portion thereof, otherwise the deed will
be void and inoperative. 4 It is a general rule, however, that if the
description of the premises given in a deed furnishes a sufficient
means of locating and identifying the land to be conveyed, the con-
veyance will be sustained, though some of the particulars of
description may be erroneous or inconsistent. 5 But if the descrip-
tion of the estate include several particulars, all of which are neces-
sary to ascertain the estate intended, no estate will pass except such
as answers to every particular. 6 If a deed contain conflicting
descriptions of equal authority, that which is most favorable to the
1 In the description of lands in ejectment or in a conveyance, it suffices to give
the number of the section, township and range according to the public surveys.
Bledsoe v. Little, 4 How. (Miss.) 13.
Pry v. Pry, 109 111. 466.
Wilkinson v. Roper, 74 Ala. 140.
'Wilson v. Inloes, 6 Gill (Md.), 121.
Vose v. Bradstreet, 27 Me. 166; Bell v. Woodward, 46 N. H. 315.
Worthington v. Hylyer, 4 Mass. 196, per PARSONS, C. J.
52
MARKETABLE TITLE TO REAL ESTATE.
grantee will be taken. 1 If there be any doubt about what property
a deed conveys, it must be construed most strongly against the
grantor. 2 A deed which contains no other description of the
premises than a reference to another deed containing a full descrip-
tion is sufficient. 3 And an uncertain description may be cured by
a reference in the deed to other conveyances. 4 A general descrip-
tion in a deed will govern where the particular description by metes
and bounds as given is uncertain or impossible. 5 If the actual
boundaries of land, as marked by a surveyor, can be shown, the
grantor, in a conveyance of the land, will hold accordingly, though
the description by courses and distances be incorrect.' And it has
been held that a conveyance by metes and bounds, accompanied by
transfer of possession and marking the boundaries by natural
objects, will pass the title, though no particular locality be set forth
in the deed. 7
But while a defective or ambiguous description may be, in many
instances, cured by parol evidence, a purchaser should never be
required to accept a conveyance open to that objection, for two
reasons : First, because the want of an adequate and precise descrip-
tion of the premises tends to render his title unmarketable and
objectionable to future purchasers ; and, secondly, because a con-
veyance, though admitted to record, is not notice to subsequent
purchasers, unless the granted premises be therein so plainly and
clearly described that a person reading the deed may locate and
identify the property therefrom. 8
If it be intended by the deed to convey lands, they must be
referred to or described in the deed. Thus it has been held that a con-
veyance of the " assets " of a bank would not pass real property belong-
ing to the bank but not specifically described in the conveyance. 9
1 Vance v. Fore, 24 Cal. 435.
* Black v. Grant, 50 Me. 364.
3 Glover v. Shields, 32 Barb. (N. Y.) 374; Phelps v. Phelps, 17 Md. 120; John-
ston v. Scott, 11 Mich. 232.
4 Bowman v. Wettig, 39 111. 416.
* Sawyer v. Kendall, 10 Cush. (Mass.) 241.
Mclver v. Walker, 9 Cranch (U. S.), 173; Strickland v. Draughan, 88 N. C. 315.
' Banks v. Ammon, 27 Pa. St. 172.
8 Banks v. Ammon, 27 Pa. St. 172.
* Wilson v. Johnson, (lud.) 38 N. E. Rep. 38.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 53
21. Description of estate or interest. The purchaser should
also see that the instrument tendered conveys the quantity of estate
to which, by the contract, he is entitled. If, by the contract, he is
entitled to demand a conveyance of an absolute and indefeasible
estate of a particular description in fee simple, he should promptly
reject an instrument which conveys only the " right, title or inter-
est" of the grantor in the premises, for such a paper, as a general
rule, amounts to no more than a quit claim or release, and would
not estop the grantor from setting up an after-acquired title to the
estate. 1 If, however, there be an express conveyance of an estate
of a particular description, the additition of the words " and all the
estate, right, title, interest and demand whatever " of the grantor,
would not convert the deed into a mere release. 2 The general
rule is that a deed shall be construed to pass the largest estate
which the grantor may have in the premises, unless an intention
to convey a lesser estate appears from the instrument. 3 It fol-
lows, then, that the purchaser cannot reject a conveyance, when
tendered to him, on the ground that the quantity of estate or interest
which he is to receive is not therein specifically described. He is
only interested to see that the instrument does not convey a lesser
estate than that to which he is entitled. A grant of " all the prop-
erty I possess " will pass an estate in remainder. And a conveyance
" of all right, title, interest or claim to any land descended to one
from A." passes any equitable, as well as legal, estate so descended.*
The purchaser, of course, cannot object to the deed tendered him,
on the ground that it conveys a greater right or interest than the
grantor may lawfully pass or assume, assuming that the purchase
was of the lesser estate. The conveyance will operate as an alien-
ation of just such interest in the premises as the grantor actually
had. 5 Thus, a deed by a joint tenant, or tenant in common, pur-^
porting to convey the whole estate, is not, for that reason, void, but
'Post, "Estoppel," 218. But a conveyance of a "right, title and interest"
will not be construed to be a mere quit claim, if an intent to convey an estate of
a particular description appear. United States v. Cal. & Oreg. Land Co., 49 Fed.
Rep. 496; 1 G. C. A. 330.
Dennison v. Ely, 1 Barb. (N. Y.) 810.
*1 Shep. Touch. 85, ante, 5; Stockett v. Goodman. 47 Md. 54.
*Brantley v. Kee, 5 Jones Eq. (N. C.) 332; Barton v. Morris, 15 Ohio, 408.
3 Bl. Com. 171; Wisely v. Findlay. 3 Rand. (Va.) 361.
54 MARKETABLE TITLE TO REAL ESTATE.
passes the individual interest of the grantor. 1 The quantity of
estate or interest intended to be conveyed was expressed usually in
that part of the common-law deed or feoffment known as the hdben-
dum thus, " to have and to hold to him the said A. and his
heirs forever," etc., " to have and to hold for and during the term of
his natural life," etc. This clause is still sometimes found in modern
deeds, but in most of the States has fallen into disuse. 2 When
employed it may be looked to for the purpose of determining the
true construction of the deed, with this limitation, however, that if
it be inconsistent with or repugnant to the granting clause of the
deed, the latter shall prevail. 3
22. Signing and sealing. We have already seen that a deed
without a signature might be valid at common law, the authenticity
of the instrument being established by the seal of the grantor. 4 But
now by statute, in most of the American States, the signature of the
grantor is an indispensable part of a deed. And even in those States
in which there has been no statutory change of the common law, it
is apprehended that no purchaser would be compelled to accept a
conveyance not signed by the grantor, so strongly has use and cus-
tom impressed upon the masses the necessity of that act. The pur-
chaser is entitled to a conveyance authenticated in such a manner as
not to excite distrust and doubt in the minds of those to whom he
desires to sell. In some of the States sealing remains, as at common
law, an indispensable formality in the execution of a deed. Origi-
nally a seal consisted of an impression upon wax or some similar
material, adhering to the surface of the paper or parchment, or an
impression upon a waxen disc attached to the paper by ribbons or
strings. But now, in perhaps every State of the Union, a direct
impression upon the paper itself, or a simple scroll, is by statute
. made sufficient as a seal. 5 And the public have become so accus-
tomed to their use that the ancient mode of sealing, if resorted to
1 White v. Sayre, 2 Ohio, 110.
3 Washb. Real Prop. 466 (642).
Flagg v. Eames, 40 Vt. 23; 94 Am. Dec. 363; Mayor v. Bulkley, 51 Mo. 227;
4 Kent Com. 468.
4 Shep. Touchstone (Preston's ed.), 56; 3 Washb. Real Prop. 270; Jeffery T.
Underwood, 1 Ark. 108.
* See, generally, upon the subject of seals, 3 Washb. Real. Prop. 271; 1 Devlin
on Deeds, 242.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 55
in any case, would probably be unsatisfactory to the purchaser.
It is to be remembered that in certain of the States a scroll, to be
sufficient as a seal, must be recognized as such in the body of the
instrument. This is usually the office of the testinwnium clause :
" In testimony whereof, I have hereunto set my hand and seal," or,
" Witness the following signatures and seal," or other similar phrase
immediately preceding the signature. If not so recognized, the
scroll will be disregarded and the paper held to be unsealed and inop-
erative as a deed. 1 But an exception to this rule exists in those
cases in which the instrument acknowledged is such as is by statute
required to be under seal, e. g., a deed. In such a case the acknowl-
edgment of the instrument as a deed supplies the failure of the
grantor to recognize the seal in the body of the instrument. 2 The
purchaser should see that there are as many scrolls or seals as there
are signatures to the instrument. It has been held that several
grantors or signers may adopt the seal of one of their number as
the seal of all, 8 but to remove any doubt or difficulty upon that
point, it is better that a scroll be attached to each of the signatures.
23. Attestation or acknowledgment. If by the law of the
place where the granted premises lie deeds are required to be exe-
cuted or acknowledged before subscribing witnesses, either as a
mere authentication for registry or as a necessary part of the execu-
tion of the instrument, the purchaser should see that the requirement
has been precisely fulfilled. He should also see that the witness is
competent, being neither the husband or wife of a party in interest, 4
nor a party in interest himself, nor otherwise disqualified to testify.
The ordinary mode in which deeds are authenticated for record is
by acknowledgment before certain designated officers, who attach a
certificate of acknowledgment to the deed. In a few of the States
this acknowledgment is an essential element in the execution of the
deed, but in most of the States the only object of the acknowledg-
ment is to furnish the recording officer with proof that the deed is
1 Clegg v. Lemessurier, 15 Grat. (Va.) 108; Jenkins v. Hunt, 2 Rand. (Va.) 446.
'Cosner v. McCrum, (W. Va.) 21 S. E. Rep. 739; Ashwell v. Ayres, 4 Grat.
(Va.) 283.
Townsend v. Hubbard, 4 Hill (N. Y.), 351; Burnett v. McCluey, 78 Mo. 676;
Lambden v. Sharp, 9 Humph. (Tenn.)224.
4 Corbett v. Norcross, 35 N. H. 99.
56 MARKETABLE TITLE TO KEAL ESTATE.
genuine, while as between the parties, except where one of the
grantors is a married woman, the deed is valid without the acknowl-
edgment. The laws of nearly every State in the Union provide that
the deed of a married woman shall not be valid unless she acknowl-
edges it, and, after the deed has been explained to her privily and
apart from her husband, declares that she had willingly executed it
and wished not to retract it. But while, as a general rule, deeds
are valid as between the parties without acknowledgment, that
formality is of vital importance to the purchaser. For unless the
acknowledgment be duly taken and all the requirements of the law
in respect to the certificate be complied with, the deed, though
admitted to record, will not be notice to subsequent purchasers and
creditors of the grantor, who might, in consequence, deprive the
purchaser of the estate. Besides, a defective certificate of acknowl-
edgment is regarded as a defect in the purchaser's title, and should
he afterwards sell the estate, would justify the vendee in refusing
to accept the title. For this latter reason alone it is important that
the purchaser should exact a literal compliance with every provision
of law relating to acknowledgment and to the certificate. There
has been no more prolific source of objections to title than irregular
or informal certificates of acknowledgment. The eye of the marti-
net instantly detects a slight departure from statutory forms, and
large transactions in real property are sometimes suspended, or even
abandoned, on account of real or supposed difficulties thus sug-
gested. It, therefore, behooves the purchaser to subject the deed
which he receives to the closest scrutiny, in order that the certifi-
cate of acknowledgment shall afford no ground for captious objec-
tions to his title in the future. He should insist upon a rigid and
literal adherence to the prescribed forms, no matter how trivial and
unimportant the departures may seem. It is proposed now to
invite attention to the essential parts of a certificate of acknowledg-
ment, and for that purpose a form such as in general use is added
here. Like the Statute of Frauds, every clause and every important
word in it has been the subject of repeated adjudications.
V to-wit(d) :
STATE OF
County of
I, William Smith, a notary public in and for the county and State
aforesaid(J), do certify that A. B.(c) whose name is
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOB. 57
signed to the foregoing writing(<2), bearing date on the day of
, , personally appeared before me in the county afore-
said^), the said A. B. being well known to me to be the person who
executed the said writing(y), and acknowledged the same to be his
act(^). And I further certify that C. B., wife of the said A. B.,
whose names are signed to said writing bearing date as aforesaid,
the said C. B. being well known to me as one of the persons who
executed said writing, and being by me examined privily and apart
from her husband(A), and having the writing aforesaid fully explained
to her(*), she, the said C. B., acknowledged the same to be her act
and deed, and declared that she had willingly executed thesame(yfc),
and wished not to retract it(). Given under my hand and seal(m),
this day of(?i) - .
WILLIAM SMITH(o), N. P.(p] |>EAL](?).
24. (a) Venue of certificate. Regularly, a certificate of
acknowledgment should state in the caption or margin, as in the
foregoing form, the name of the State and of the city or county
for which the officer was appointed, and in which the acknowledg-
ment was taken. This is called the " venue " of the certificate, but
its absence from the paper will not be fatal if it otherwise suffi-
ciently appears from the body of the certificate or from the deed
itself read in connection with the certificate where the acknowledg-
ment was taken. 1 But if the place of acknowledgment cannot be
determined from any of these sources, the certificate will be
rejected. 2 The purchaser should avoid all difficulty upon this point
by insisting that the paper tendered shall literally follow the pre-
scribed form.
25. (b) Name, official designation, and authority of officer.
The name of the certifying officer should appear in the body of the
certificate. But this, it is apprehended, is not indispensable if the
certificate be duly signed by the officer. If the statute provides
that the acknowledgment shall be made before two officers instead
1 Graham v. Anderson, 42 111. 514; 92 Am. Dec. 89; Dunlap v. Dougherty, 20
HI. 397; Fuhrman v. Loudon, 13 Serg. & R. (Pa.) 386; 15 Am. Dec. 608; Brooks
T. Chaplin, 3 Vt. 281; 23 Am. Dec. 209.
Vance v. Schuyler, 1 Gilm. (111.) 160; Haidin v. Kirk, 49 111. 153; 95 Am.
Dec. 581.
8
58 MARKETABLE TITLE TO HEAL ESTATE.
of one, the names of both should be set out in the certificate. 1
The purchaser, of course, whether as grantee in his own right or in
a representative capacity, 2 should not take the acknowledgment of
the grantor. The court will reject a certificate by an interested
party. 3 The fact that an officer taking an acknowledgment is
related to one of the parties does not bring him within this rule.*
One who owns an interest in a tract of laud is not thereby
prevented from taking an acknowledgment of a deed con-
veying the interest of another person in the same land. 5
If, by statute, a recital in the body of the certificate showing the
official character of the person taking the acknowledgment is made
necessary, and there be no such recital and no addition of the official
character after the signature of the officer, the certificate will be insuf-
ficient. 6 In the absence of any statutory provision upon the subject, it
is not absolutely necessary to recite the official character in the certifi-
cate. 7 If the statute requires that the certificate shall show that the
officer is one of those authorized by law to take acknowledgments,
evidence aliunde will not be received to supply a defect in that par-
ticular ; otherwise, if the statute does not so require. 8 A variance
between the recital of official character in the body of the certifi-
cate, and that appended to the signature of the officer, is not
1 Ridgely v. Howard, 3 Harr. & McH. (Md.) 321.
s Beaman v. Whitney, 20 Me. 413; Brown v. Moore, 38 Tex. 645, trustee;
Black v. Gregg, 58 Mo. 565, trustee; Stevens v. Hampton, 46 Mo. 404; Dail T.
Moore, 51 Mo. 589; Clinch River Veneer Co. v. Kurth, 90 Va. 737, a case in
which the trustee in a deed took an acknowledgment thereof.
1 Withers v. Baird, 7 Watts (Pa.), 227; 32 Am. Dec. 754; Groesbeck v. Seeley,
13 Mich. 329; Davis v. Beazley, 75 Va. 491; Clinch River Veneer Co. v. Kurth,
(Va.) 19 8. E. Rep. 878; Wilson v. Traer, 20 Iowa, 231. Compare Kimball v.
Johnson, 14 Wis. 674.
4 Lynch v. Livingston, 6 N. Y. 422.
Dussaume v. Burnett, 5 Iowa, 95; Long v. Crews, 113 N. C. 256; 18 8. E.
Rep. 499, when the officer was a preferred creditor in the deed; so, also, in Baxter
v. Howell, (Tex. Civ. App.) 26 8. W. Rep. 453. Acknowledgment of a clerk is
not invalid because taken by his deputy. Piland v. Taylor, 113 N. C. 1; 18 8.
E. Rep. 70.
8 Johnston v. Haines, 2 Ohio, 55; 15 Am. Dec. 538. See, also, Van Ness r.
Bank, 13 Pet. (U. 8.) 17.
i Russ v. Wingate, 30 Miss. 440; Shultz v. Moore, 1 McLean (U. S.), 520.
Van Ness v. Bank, 13 Pet. (U. S.) 17; Scott v. Gallagher. 11 Serg. & R, (Pa.)
347; 16 Am. Dec. 508.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 59
material. 1 And a variance between the statutory description of the
officer and that contained in the certificate is immaterial. 2 The pur-
chaser should be careful to see that the certifying officer is one of
the class authorized by statute to take acknowledgments. A certifi-
cate by an officer not named in the statute will be insufficient. 3 It
is not necessary that an officer shall certify that he was authorized
to take acknowledgments ; the fact that he describes himself as a
particular officer is sufficient, and his authority may be shown
aliunde* If the competency and authority of the certifying officer
be unknown to the purchaser, he should insist upon evidence of those
particulars, which, when supplied, usually consists of a certificate of
the judge or clerk of the court in which the officer qualified, setting
forth the fact of such qualification, and the vitality of the officer's
commission. 5 It is customary also for the certifying officer to
append to his certificate a statement of the time when his commis-
sion will expire.
But while a purchaser would doubtless be justified in declining to
accept a deed which had been acknowledged before an officer whose
commission had expired, or before one who had usurped the office,
by virtue of which he acted, it seems that the certificate would in
neither case be held invalid, if the person making it assumed to act
in an official capacity, and had color of title to the office in ques-
1 Merchants' Bank v. Harrison, 39 Mo. 433; 93 Am. Dec. 285, semble.
'May v. McKeenon, 6 Humph. (Tenn.) 207; Welles v. Cole, 6 Grat. (Va.)'645.
*Dundy v. Chambers, 23 111. 369 (312). Here the statute authorized an
acknowledgment before mayors of cities. ' It was held that an acknowledgment
before a mayor of a town was invalid. Kimball v. Semple, 10 Cal. 441. See, also,
Wright v. Wells, 12 N. J. L. 131; Uhlerv. Hutchinson, 23 Pa. St. 110. In North
Carolina it has been held that the authority of commissioners appointed by the State
government to take acknowledgments to deeds is confined to deeds made by non-
residents of the State. De Courcey v. Barr, 1 Busb. Eq. (N. C.) 181. A judge of the
United States court, authorized to take an acknowledgment, may take it anywhere
in his jurisdiction. Moore v. Vance, 1 Ohio, 14. A statute authorizing the
appointment of commissioners of deeds in the cities of the State does not extend
to cities incorporated after the act took effect. Parker v. Baker, 1 Clark (N. Y.),
223.
4 Livingston v. McDonald, 9 Ohio, 168.
' It must appear from the certificate of the judge that the officer taking the
acknowledgment was qualified to act as such at the time the acknowledgment was
taken. Phillips v. People, 11 HI. App. 340. As to doubts about the title arising
from these particulars, see post, ch. 31, 300.
60
MARKETABLE TITLE TO REAL ESTATE.
tion. 1 In such a case the act of a de facto officer cannot be
questioned in a collateral proceeding.
"Where a certifying officer has power to appoint a deputy, an
acknowledgment taken and certified by such deputy will be suffi-
cient. 2 The better practice is that the certificate shall read as if
the acknowledgment had been taken before the principal himself,
and be subscribed with his name, by "A. B., Deputy," etc.* But
a certificate by the deputy in which the name of the principal
nowhere appeared has been held valid. 4 The body of the certifi-
cate should show, either by express recital or by reference to the
caption or the margin of the certificate, the State, county, city or
other municipality in which, and as an officer of which, the person
signing the certificate professes to act. If this cannot be collected
from the whole instrument, read in connection with the deed, the
certificate will be rejected. 5
26 (c) Name of grantor. The name of the grantor or person
acknowledging the deed must be stated in the recital of acknowl-
edgment in the certificate, and if not so stated, the certificate will
be worthless,' unless he be so described therein that he may be
identified as the person who signed the deed. 7 The purchaser
should avoid any future question or doubt which may arise from
this source by insisting that the name of the grantor recited in the
certificate shall correspond precisely with the name signed to the
deed. 8 But where a deed has been acknowledged in open court, a
1 Brown v. Lunt. 37 Me. 423; Prescott v. Hayes, 42 N. H. 56; Crutchfield v.
Hewett, 2 App. Cas. (D. C.) 373.
'Mullerv. Boggs, 25 Cal. 175; Rose v. Neuman, 26 Tex. 131; 80 Am. Dec.
646; Kemp v. Porter, 7 Ala. 138.
1 Talbot v. Hooser, 12 Bush (Ky.), 408; McCraven v. McGuire, 23 Miss. 100.
4 Beaumont v. Yeatman, 8 Humph. (Tenn.) 542.
Vance v. Schuyler, 1 Gilm. (111.) 160.
Smith v. Hunt, 13 Ohio, 260; 42 Am. Dec. 201; Hiss v. McCabe, 45 Md. 84;
Hayden v. Westcott, 11 Conn. 129.
* Sanford v. Bulkley, 30 Conn. 344, where the person acknowledging the
deed was referred to in the certificate as ' ' Signer and sealer of the foregoing
instrument." Wise v. Postlewait, 3 W. Va. 452.
8 The danger of inattention to this feature of the certificate is illustrated by
the case of Boothroyd v. Engles, 23 Mich. 19. There the deed was signed by
Harmon Sherman, but the certificate recited an acknowledgment by Hiram Sher-
man, and this the court held insufficient as proof of execution and acknowledg-
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 61
certificate of that fact which fails to state by whom the deed was
acknowledged is, nevertheless, sufficient, it being presumed that the
acknowledgment was by the grantor. 1
If the deed be that of a corporation, the proper person to acknowl-
edge it is the officer who affixed the corporate seal. 2 If the deed
be signed by two or more officers of the corporation, an acknowl-
edgment by one of them will suffice. 8 The instrument should be
acknowledged to be the act and deed of the corporation, and not of
the subscribing officer. 4
It is the better practice that the official or representative capacity
of a party acknowledging a deed, such as a sheriff, trustee, commis-
sioner, etc., be stated in the certificate, but this is not essential, and
a mere description of the grantor by his name will be sufficient. 5
An authority to execute a deed of trust as attorney gives the power
by implication to acknowledge it for registration. 6 It seems that a
grantor, executing a deed in his own proper person, may acknowl-
edge it through an attorney in fact. 7 A certificate that "A.
duly acknowledged to me that he subscribed the name of B.
to said deed as principal and his own name as attorney in fact," is
sufficient. 8
27. (d) Annexation of deed and reference thereto. In some
of the States a certificate of acknowledgment is by statute required
to be written or printed upon the same paper on which the deed is
drawn. Under such a statute it has been held that a certificate
ment of the deed by Harmon Sherman. A deed was signed "F. M. McKinzie,"
and the certificate stated an acknowledgment by " F. M. McKezie." Held, insuf-
ficient. McKinzie v. Stafford, (Tex.) 27 S. W. Rep. 790. But see Chandler v.
Spear, 22 Vt. 388, where it was held that an incorrect recital of the grantor's
name in the certificate was not fatal, if it appeared with reasonable certainty from
the whole instrument that it was in facb acknowledged by him.
1 Phillips v. Ruble, Litt. Sel. Cas. (Ky.) 221.
'Kelly v. Calhoun, 95 U. S. 710; Lovett v. Saw Mill Assn., 6 Paige (N.
Y.), 54.
Merrill v. Montgomery, 25 Mich. 73.
4 McDaniels v. Flower Brook Mfg. Co., 22 Vt. 274. But see Tenney v. East
Warren, etc., Co., 43 N. H. 343.
'Dail v. Moore, 51 Mo. 589; Robinson v. Mauldin, 11 Ala. 977.
6 Robinson v. Mauldin, 11 Ala. 977.
T Elliott v. Osborn, 1 Harr. & McH. (Md.) 146.
Richmond v. Voorhees, 10 Wash. 316; 38 Pac. Rep. 1014.
62 MARKETABLE TITLE TO REAL ESTATK.
written upon a separate piece of paper, but firmly attached to the
deed, was not in compliance with the law and was insufficient, 1 a
decision that savors somewhat of excessive refinement. Ordinarily,
it suffices to attach the certificate to the deed with mucilage or other
adhesive substances. And, in the absence of any statutory provision
bearing upon the point, it is apprehended that the certificate would
not be open to objection even if it were detachable from the deed.
The fact that the certificate of acknowledgment refers to the deed
to which it is attached as the " foregoing mortgage," the same not
being a mortgage, is immaterial. 2
28. (e) Jurisdiction of officer. The rule that an officer has no
power to take an acknowledgment without the limits of the county,
city or other municipality in and for which he was appointed, pre-
vails, it is believed, in most of the States. 8 It has been held, how-
ever, that if the certificate does not show that the acknowledgment
was taken within the jurisdiction of the officer, that fact will be pre-
sumed, 4 the legal presumption being in favor of the validity of the
acts of public officers, where nothing to the contrary appears. But
inasmuch as the form of certificate generally prescribed recites the
county for which the officer was appointed, and that the grantor per-
sonally appeared before the officer in that county, and acknowledged
the deed, the purchaser, it is apprehended, may well reject a cer-
tificate which does not contain those recitals. Of course, the officer
may always take an acknowledgment within his jurisdiction, regard-
less of the location of the premises conveyed. 5
29. (f) Personal acquaintance with grantor. The recital in
the certificate that the party acknowledging the deed was well known
1 Winkler v. Higgins, 9 Ohio St. 599.
J Ives v. Kimball, 1 Mich. 308.
Long v. Crews, 118 N. C. 256; 18 S. E. Rep. 499; Dixon v. Bobbins, 114 N.
C. 102; Ferebee v. Hinton, 102 N. C. 99; 8 S. E. Rep. 922. The jurisdiction of
the officer depends upon the statute which confers his authority. Thus, when
it was provided that an acknowledgment might be taken by "any justice in
this State," it was held that a justice might take an acknowledgment any where
in the State. Learned v. Riley, 14 Allen (Mass.), 109.
4 Sidwell v. Birney, 69 Mo. 144; Thurman v. Cameron, 24 Wend. (N. Y.) 87.
In both these cases the venue of the certificate showed the State and county in
which it was made. Of course, it does not necessarily follow that the acknowledg-
ment was taken in such county. Trulock v. Peeples, 1 Ga. 3.
* Johnson v. McGhee, 1 Ala. 168; Colton v. Seavey, 22 Cal. 496.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 63
to the officer, or that his identity was proved to the officer by the
oaths of credible witnesses, is indispensable. 1 Equivocal phrases,
such as that the officer is satisfied as to the identity of the party, will
not suffice. 8 But where the statute provided that the officer should
certify that he was " personally acquainted with " the grantor, a cer-
tificate that the grantor was " personally known " to the officer was
held sufficient. 8 The omission of the word " known " in the clause
" personally known to me " will be fatal. 4 But it has been held
that the omission of the word " personally " from the same clause
is immaterial. 5
30. (g) Fact of acknowledgment. The recital that the grantor
appeared before the certifying officer and acknowledged the deed is
the gist of the whole certificate. The word " acknowledged " is not
indispensable,' but unless the fact of acknowledgment be made to
appear by the use of that word or its equivalents, the certificate will
be fatally defective. 7 A recital that the grantor made oath that
he signed, sealed and delivered the deed has been held equivalent to a
statement that he acknowledged the deed. 8 But a recital that the
grantor " stated " that he had executed the deed was held insuf-
1 Fogarty v. Finlay, 10 Cal. 239; 70 Am. Dec. 714; Wolf v. Fogarty, 6 Cal.
224; 65 Am. Dec. 509; Gove v. Gather, 23 111. 634 (585); 76 Am. Dec. 711; Fryer
v. Rockefeller, 63 N. Y. 268. This was a case which arose between vendor and
purchaser. The purchaser rejected the title because a certificate of acknowl-
edgment in the chain of title did not show personal acquaintance with the
grantor.
'Klmball v. Simple, 25 Cal. 440; Shepherd v. Carriel, 19 111. 313; Short v.
Conlee, 28 111. 219.
Kelly v. Calhoun, 95 U. S. 710. See, also, Sheldon v. Stryker, 42 Barb. (N.
Y.) 284; Thurman v. Cameron, 24 Wend. (N. Y.) 87.
4 Tully v. Davis, 30 111. 103; 83 Am. Dec. 179. Even though the omission be
apparently inadvertent. Wolf v. Fogarty, 6 Cal. 224; 65 Am. Dec. 509; Gould
T. Woodward, 4 Green (Iowa), 82. But see Rosenthal v. Griffin, 23 Iowa, 268.
Hopkins v. Delaney, 8 Cal. 85; Welch v. Sullivan, 8 Cal. 511; Alexander v.
Merry, 9 Mo. 514.
Chouteau v. Allen, 70 Mo. 290. Here the certificate recited that the grantor,
being duly sworn, "deposes and says," etc.
1 Cabell v. Grubbs, 48 Mo. 353; Short v. Conlee, 28 111. 219. In Bryan v.
Ramirez, 8 Cal. 461; 68 Am. Dec. 340, the certificate aecited that the grantor was
known to the officer to be such, but did not show, an acknowledgment.
' Ingraham v. Grigg, 13 Sm. & M. (Miss.) 22. An acknowledgment that he
"signed, sealed and delivered" the deed is also equivalent to an acknowl-
64 MARKETABLE TITLE TO REAL ESTATE.
ficient. 1 It seems that an inadvertent or clerical omission of the
word " acknowledged " from the certificate will render it invalid.*
And where a statute provides that the grantor shall acknowledge
the instrument to be his " voluntary " act and deed, the omission of
the word "voluntary," or its equivalent, makes the certificate
worthless. 8
31. (A) Privy examination of wife. A certificate of acknowl-
edgment of a deed executed by a married woman requires the
closest scrutiny of the purchaser. The formalities prescribed by
statute in this behalf are intended to supersede the ancient common-
law mode of conveying the lands of a married woman by fine and
recovery. They are, therefore, necessary, not only as an authenti-
cation of the deed for record, but as a part of the execution of the
deed itself, without which it would be invalid between the parties,
as well as to subsequent purchasers without notice. 4 For this
reason, and because of the jealous care with which the courts guard
the rights of those who act principally under the direction or per-
suasion of others, the most rigid compliance with all the require-
ments of the law relating to the acknowledgments of married women
has been exacted. It is, therefore, indispensable that the certificate
shall show that the woman was examined by the officer privily and
apart from her husband. But it is not necessary that these precise
words shall be employed in the certificate if others of the same
import are used. Thus, a certificate that the officer took " the pri-
vate examination" of the wife, and that she acknowledged that
" she executed the deed without any compulsion from her husband,"
was held sufficient. 5 So, where the language was " after a private
examination, separate and apart from her said husband."' And
where the statute required that the woman should be examined " out
of the presence " of the husband, a certificate that she was " pri-
edgment that he executed the deed. Jacoway v. Gault, 20 Ark. 190; 73 Am.
Dec. 484.
1 Dewey v. Carnpau, 4 Mich. 565. This was a great refinement.
* Stanton v. Button, 2 Conn. 527.
'Newman v. Samuels, 17 Iowa, 528; Spitznaglc T. Van Heasch, Neb. 338.
But see Henderson v. Gre^ell, 8 Cal. 581.
'Barnett v. Shackleford, 6 J. J. Marsh. (Ky.) 532; 22 Am. Dec. 100.
* Skinner v. Fletcher, 1 Ired. L. (N. C.) 313.
Kennedy v. Price, 57 Miss. 771.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 65
vately examined, apart from and out of the hearing of her husband,"
was accepted. 1 But where the statute required that the officer
should examine the wife " separately and apart " from her husband,
a certificate that she had been examined "apart" from him was
held insufficient. 2
32. (i] Explanation of contents of deed. The recital that the
officer explained to the woman the contents of the deed is also abso-
lutely indispensable. 8 The intent of the law is to protect her from
deception, as well as coercion, in the execution of the instrument.
Where a statute provided that the officer should make known and
explain the contents of the deed to the woman, a certificate which
set forth that she was made acquainted with the contents of the
deed, but did not state that they were explained to her, was deemed
sufficient. 4 So, also, where the certificate recited that the woman
" acknowledged and declared that she was well acquainted with the
contents of the deed, v 3 a decision open to grave doubt, since she
may have been falsely advised as to the said contents. But a certifi-
cate that the woman " declared that she fully understood the con-
tents of said deed," without stating that the contents were explained
to her, is invalid. 6
We have aiready seen that a recital of acknowledgment in the
certificate, or what amounts to such a recital, is necessary, and can-
not be supplied by intendment. 7 Also, that, as a general rule, the
deed of a married woman, whetner a mere relinquishment of her
contingent right of dower, or a conveyance of her separate estate,
1 Deery v. Cray, 5 Wall. (U. 8.) 795. So, also, where the statute provided that
the officer "shall examine her privately, out of the hearing of her husband," and
the certificate was "being by us privately examined," omitting the words "out
of the hearing of her husband." Webster v. Hall, 2 Hair. & McH. (Md.) 19; 1
Am. Dec. 870.
Dewey v. Campau, 4 Mich. 565. But see the remarks of MILLRR, J., in
Deery v. Cray, 6 Wall. (U. 8.) 795, to the effect that "separate" and "apart," M
used in the form, are synonymous terms.
Houston v. Randolph, 12 Leigh (Va.,, 445; Boiling v. Teel, 76 Va. 498.
4 Chauvln T. Wagner, 18 Mo. 541, a doubtfu. decision.
Thomas v. Meier, 18 Mo. 578.
Langton v. Marshall, 59 Tex. 296; Runge v. Sabin, (Tex.) 30 8. W. Rep.
568.
'Ante, 30.
9
66 MARKETABLE TITLE TO BEAL ESTATE.
is void as between the parties, unless acknowledged and certified in.
strict conformity with the requirements of the law. 1
33. (fc) Voluntary act of wife. Another indispensable requisite
of the certificate is that it shall contain a recital, either in terms or
in substance, that the woman declared that she had signed, sealed
and delivered the deed willingly. An officer should never undertake
to draw the certificate unless he has the statutory form before him.
If he relies upon his memory he is apt to use expressions deemed by
him the equivalent of those contained in the statute, or to omit words
which appear to him immaterial. A vast number of cases are to be
found in the reports in which the courts have been called upon
to decide the correctness of his judgment in these particulars.
Expressions which the courts in one State have deemed sufficient
substitutes for the language of the statute above quoted, have been
rejected in others. 2 A certificate of acknowledgment by a married
woman which departs from the statutory form, may always be relied
upon to create such a reasonable doubt concerning the title as would
justify a purchaser from the grantee in refusing to complete the
contract, for there is no rule by which the sufficiency of the certifi-
cate can be tested, and while one judge might deem it a substantial
compliance with the law, he could have no assurance that another
judge, if the title should be afterwards attacked, in ejectment or
otherwise, would not entertain a contrary opinion. And if a pur-
chaser from the grantee might reject the title as unmarketable upon
this ground, a fortiori might the grantee himself reject the convey-
ance until a certificate free from doubt should be tendered. All
possibility of doubt or question as to the validity of the certificate
should be removed by insisting upon a strict and literal conformity
with the language of the statutory form or requirement. 3
1 Mason v. Brock, 12 111. 273; 52 Am. Dec. 490; Martin v. Dwelly, 6 Wend.
(N. Y.) 9; 21 Am. Dec. 245.
* Clinch River Veneer Co. v. Kurth, 90 Va. 737, and cases cited below.
* Gases in which tlie certificate was held insufficient. Where the statute provided
that the certificate should show that the woman acknowledged that she had not been
induced to execute the deed through " ill-usage," and the certificate was that she
acknowledged that she executed the deed "of her own free will, and not through
any threats of her said husband, or fear of his displeasure." Hawkins v. Burress,
1 Harr. & J. (Md.) 513. Language of statute, "signed, sealed and delivered the
deed as her voluntary act and deed, freely, without any fear, threats or compul-
sion of her said husband; " language of certificate, " signed, sealed and delivered
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 67
34. (Z) Wish not to retract. If the statute provides that the
wife, in addition to acknowledging the deed, shall state that she does
not wish to retract it, a certificate will be fatally defective if it does
not recite that fact. 1 It is not absolutely necessary that the certifi-
cate shall follow the precise language of the statute, 3 and the
employment of a wrong word, but one obviously intended for that
used in the statute, will not vitiate the instrument. 8 But inasmuch
the above instrument of her own free will and accord, and without any force, per-
suasion or threats from her said husband." Boykin v. Rain, 28 Ala. 332,- 65 Am.
Dec. 349. See, also, Alabama Life Ins. & Tr. Co. v. Boykin, 38 Ala. 510. Lan-
guage of statute, " freely, voluntarily, without compulsion, constraint or coercion
by her husband;" language of certificate, "had willingly signed, sealed and
delivered the same, and that she wished not to retract it." Henderson v. Rice, 1
Coldw. (Tenn.) 223. Language of statute, "had willingly executed the same,
and does not wish to retract it; " the certificate omitted the words "had willingly
executed the same." Leftwich v. Neal, 7 W. Va. 569. Language of statute,
"voluntary act and deed;" language of certificate, "of her own free will."
Freeman v. Preston, (Tex.) 20 8. W. Rep. 495.
Cases in which the certificate was held sufficient. Where the statute provided that
the certificate should show thnt the woman acknowledged the deed " without
undue influence," and the certificate was that she acknowledged "that she exe-
cuted' the same freely and voluntarily * * * without fear or compulsion."
Goode v. Smith, 13 Cal. 81. Language of statute, "of her own free will
* * * without undue influence or compulsion of her husband;" language of
certificate, " without undue influence or compulsion of her husband." Tubbsv.
Gatewood, 26 Ark. 128. Language of statute, " voluntarily and of her own free
will and accord, without any fear or coercion of her husband; " language of cer-
tificate, "acknowledged the above indenture to be (her) voluntary act and deed."
Ruffner v. McLenan, 16 Ohio, 639. Language of statute, "signed, sealed and
delivered the same as her voluntary act and deed, freely, without any fear,
threats or compulsion of her husband;" language of certificate, "that she signed,
sealed and delivered the same, freely and voluntarily, and without any threats or
compulsion from her said husband." Den v. Geiger, 9 N. J. L. 225. Language
of statute, "as her voluntary act and deed;" language of certificate, "freely
and of her own accord." Dundas v. Hitchcock, 12 How. (U. 8.) 256. Language
of statute, " that she had freely and voluntarily executed the same;" language of
certificate, "without any fear, threats or compulsion." Allen v. Denoir, 53 Miss.
321. Language of statute, " that she had of her own free will executed the
deed, without compulsion or undue influence of her husband; " language of cer-
tificate, " freely and of her own consent, but not by the persuasion or compulsion
of her said husband." Little v. Dodge, 32 Ark. 453.
'Grove v. Zumbro, 14 Grat. (Va.) 501; Churchill v. Moore, 1 R. I. 209.
* Bateman's Petition, 11 R. I. 585, 588.
'Belcher v. Weaver, 46 Tex. 293; 26 Am. Rep. 267.
68 MARKETABLE TITLE TO REAL ESTATE.
as variances and departures from the statutory form excite doubt
and distrust in the minds of timid buyers, the purchaser should insist
that the precise language of the statute be used.
35 (m) Reference to seal. The laws of some of the States
require that the certificate of acknowledgment shall be authenticated
by the seal as well as the signature of the certifying officer. There
seems to be some conflict of opinion in these States as to whether it is
necessary that the officer shall acknowledge or recognize the seal,
either in the body of the instrument or in the attestation clause. 1
Without pausing to consider the cases either way, it suffices to saj
that wherever by the lex rei sites a seal is required, the safer course
is for the purchaser to see that there is a recognition of the seal by
the officer, in the usual form, " Given under my hand and seal," etc.
36. (n) Date of certificate. It is customary, and the better
practice, for the officer to insert the date of the certificate in the
attestation clause. But a date is not indispensable to the validity of
the certificate, unless made so by statute. 2 And the fact that the
certificate bears date before the deed itself is immaterial. 3 Inas-
much, however, as the custom of dating the certificate universally
prevails, and the absence of a date might raise a doubt in the mind
of a timid purchaser respecting the title, 4 the grantee would prob-
ably be justified in rejecting a certificate which was deficient in that
particular.
37. (o) Signature of officer. It is absolutely essential that the
certificate shall be signed by the officer by whom it is made. The
recital of the name of the officer in the body of the certificate will
not suffice. 8 The certificate is often printed or prepared by a third
person, and presented to the officer complete, with the exception of
his signature, consequently the subscription of his name is an
important step in the authentication of the paper. But even thougk
the name were inserted in the form by the officer himself, or the
paper were wholly in his handwriting, the omission of the signature
1 The cases may be seen in Mr. Devlin's work on Deeds, 491.
Webb v. Iluff, 61 Tex. 677; Irving v. Brownell, 11 El. 402.
Gest v. Flock, 2 N. J. Eq. 108.
4 It will be seen hereafter that in some cases it has been held that a purchaser
may reject a title if "unsatisfactory " to him, though his objections to the title
are really captious and untenable. Post, 288.
Carlisle v. Carlisle, 78 Ala. 542.
SUFFICIENCY OF CONVEYANCE TENDEBED BY THE VENDOR. 69
would be fatal, the actual subscription of his name being required
as a promulgation of the instrument. 1 If the certificate be by a
deputy, the name of the principal should be subscribed " by A. B.,
deputy," etc. 2
38. (p) Abbreviation "J. P." etc. It is not absolutely neces-
sary that the officer shall add to his signature his official designation,
if the capacity in which he acts elsewhere appears in the certifi-
cate. 3 We have already seen that, as a general rule, his official
capacity must somewhere appear, either from the body of the cer-
tificate or from the attestation clause, as the instrument, must, on
its face, appear to be the act of a competent person. As it is cus-
tomary to follow the signature of the officer with his official title,
the purchaser should see that this is done in order that his title papers
may present no appearance of irregularity. An abbreviation of the
official title in common use, such as " J. P." or " K. P.," will suffice. 4
39 (q) Seal of officer. Where by statute it is provided that the
certificate shall be under the signature and seal of the certifying
officer, the omission of the seal will be fatal. 5 This formality, how-
ever is not required in all the States, and where not required the
absence of the seal is immaterial. 6 It has been held that if by the
law of a State in which an acknowledgment is taken a seal by the cer-
tifying officer is unnecessary, the want of such a seal will be no
objection to the title in another State in which the land lies. In
'Marston v. Bradshaw, 18 Mich. 81; 100 Am. Dec. 152.
8 McCraven v. McGuire, 23 Miss. 100.
3 Brown v. Farrar, 3 Ohio, 140. The omission of the letters "N. P." after the
signature of a notary public does not affect the validity of the certificate. Lake
Brie & W. R. Co. v. Whitham, 155 HI. 514; 40 N. E. Rep. 1014.
4 Final v. Backus, 18 Mich. 218; Russ v. Wingate, 30 Miss. 440; Rawley v.
Beman, 12 111. 198.
8 Mason v. Brock, 12111. 278; 52 Am. Dec. 490; Hastings v. Vaughn, 5 Oal.
315; Booth v. Cook, 20 111. 129. The notary's seal must appear, when his certifi-
cate declares that he has affixed it; otherwise the certificate is invalid. Bullard
v. Perry, 28 Tex. 347. An abstract of title contained a memorandum of a cer-
tificate of acknowledgment as follows: "Certif. of acknt. by notary public for
said county is signed 'B. R. Randall, L. 8.. Notary Public."' Held, that the
abstract sufficiently showed a certificate under official seal. Bucklen v. Hasterlik,
155 111. 423; 40 N. E. Rep. 561.
Farnum v. Buffum, 4 Cush. (Mass.) 260; Baze v. Arper, 6 Minn. 220. None
is required in Virginia; the court takes judicial notice of the acts of domestic
notaries public. See, also, Powers v. Bryant, 7 Port. (Ala.) 9.
70 MARKETABLE TITLE TO REAL ESTATE.
other words, that the validity of the certificate in this respect is to
be governed by the law of the place where the acknowledgment was
taken. 1 Where by statute the officer is required to have a seal, it
must be an instrument capable of making a durable impression upon
paper or some tenacious material attached to the paper. 2 If the
officer be one who is not required by statute to have a seal, it is
apprehended that a scroll or scrawl, recognized by him in the instru-
ment as a seal, will suffice. If the form of the officer's seal be pre-
scribed by statute, it must of course conform to the requirement.
If there be no provision upon the subject, any device that he chooses
to adopt will suffice. It is better, of course, that the seal should
state the name and office of the officer, but the better opinion seems
to be that these particulars are not indispensable. 1 The fact that
the seal precedes instead of follows the signature of the officer is
immaterial. 4
40. (r) Surplusage, clerical mistakes. If a certificate of
acknowledgment is in all other respects sufficient, the fact that it con-
tains statements or recitals not required by law is immaterial. Mere
surplusage or redundancy leaves the certificate unimpaired.* If the
instrument contains all that the law requires, the fact that it is in
the form of a jurat is of no consequence. 6 Nor will an obviously
clerical mistake, such as the substitution of a word which does not
make sense for the one used in the statute, 7 nor the omission of an
immaterial word, especially where the omission is a plain oversight
or inadvertence, such as the failure to insert a pronoun in a blank
left for the purpose, 8 make the certificate worthless. But with
respect to clerical mistakes and omissions there has been much ques-
1 Bucklen v. Hasterlik, 155 111. 423; 41 N. W. Rep. 561.
* Mason v. Brock, 12 111. 273; 52 Am. Dec. 490.
Mason v. Brock, 12 111. 278; 52 Am. Dec. 490. But see In re Neb, 11 Nat.
Bankruptcy Reg. 289.
'Gilchrist v. Dilday, 152 111. 207; 38 N. E. Rep. 572.
* Chester v. Rumsey, 26 111. 97; Stuart v. Dutton, 39 111. 91; Whitney r.
Arnold, 10 Cal. 531.
* Ingraham v. Grigg, 13 8m. & M. (Miss.) 22.
7 Calumet & Chicago Canal Co. v. Russell, 68 111. 426.
8 Dickerson v. Davis, 12 Iowa, 353. In Spitznagle v. Van Hessch, 13 Neb. 333,
the omission of the words "and deed" from the clause "voluntary act and
deed" was held immaterial. So, also, where the word "deed" was inserted and
tbe word "act" omitted. Stuart v. Dutton, 39 111. 91. The omission of the
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDO'B. 71
tion and doubt as to what of them are and what are not material.
The omission of the word " acknowledged," l though obviously
inadvertent, has been held fatal to the certificate, and, on the other
hand, the absence of the word " known " from the clause " fully
made known to her," 2 has been held a mere clerical omission. And
in other cases omissions which one court has treated as immaterial
have been by other courts regarded as of vital importance. Under
these circumstances there can be no doubt that a purchaser would
be justified in refusing to accept the conveyance if the certificate of
acknowledgment attached thereto contained either clerical errors or
inadvertent omissions. The vendor cannot force upon him a deed
which, though it may be finally adjudged sufficient, is executed or
acknowledged in such a manner as to cast a doubt upon the title.
Generally the statutes of the different States prescribe the several
elements of the acknowledgment and the duties of the certifying
officer, and give a form in which the certificate may be made by the
officer. Where this is done, and the form given omits some phrase
or expression used in the statute, the form governs, and a certificate
which literally follows the latter will be sufficient. 3 The body of
the deed may sometimes be referred to for the purpose of supplying
omissions from the certificate. 4 Thus, where the statute required
that the certificate should show that the grantor acknowledged that
he signed, sealed and delivered the deed " on the day therein men-
tioned, and the certificate contained no such recital, it was held that
the omission was cured by reference to the deed, which bore the
same date as the certificate. 5
words ' ' for the consideration and purposes therein set forth " is fatal. Jacoway
T. Gault, 20 Ark. 190; 83 Am. Dec. 494. A certificate that the grantors acknowl-
edged a paper "to be their act and deed " instead of following the statutory
form, that they "signed, sealed and delivered," etc., is sufficient. Den v. Ham-
ilton, 12 N. J. L. 109.
1 Stanton v. Button, 2 Conn. 527.
1 Hornbeck v. Building Assn., 88 Pa. St. 64.
* Belcher v. Weaver, 46 Tex. 293; 26 Am. Rep. 267. Here the statute pro-
vided that the wife should acknowledge that she did "freely and willingly sign,"
etc., while the form was that "she had willingly signed," etc., omitting the word
" freely." The court held that the word fully might be omitted in the certificate,
because it was omitted in the form.
4 Bradford v. Dawson, 2 Ala. 203.
1 Bradford v. Dawson, 2 Ala. 203; Carter v. Chandron, 21 Ala. 72.
72 MARKETABLE TITLE TO REAL, ESTATE.
41. () Amendment of the certificate. It will doubtless occur
to the reader that in most cases objections to the sufficiency of a certifi-
cate of acknowledgment are capable of easy removal by the tender
of a new certificate. It may be, also, that before the deed has been
delivered by the grantor the officer may legally amend his certifi-
cate, 1 though it has been held in some cases that after the paper
has been signed and delivered by the latter his powers over it have
ceased, and that he cannot fill up blanks, add to, nor change the
instrument so as to make it conform to the law. 2 That he may not
do this scarcely admits of doubt in a case in which the deed has
been admitted to record. 3 But it is not easy to perceive any
grounds upon which an amendment of the certificate made by the
officer at the request of the grantor before the deed was delivered
and accepted could be deemed insufficient or invalid, since the
rights of no third person would be thereby affected, and such a
request would be itself substantially a reacknowledgment of the
deed. However this may be, the better course for the purchaser is
to insist upon a reacknowledgment of the deed. 4 This, in most
cases, would be as feasible as an amendment of the certificate, and
would leave no pretext for an objection to the title on the part of
future purchasers. It is hardly necessary to say that the acknowl-
edgment of a deed must be a matter of record and cannot be proved
by parol testimony. 5 Nor can a certificate which is defective in a
material particular be cured by evidence aliunde.* Neither is
parol evidence admissible to contradict a certificate of acknowledg-
ment in a collateral proceeding. 7 But of course the certificate may
be attacked in a direct proceeding on the ground that the acknowl-
edgment was procured by duress or fraud. 8 The certificate must
'There is a dictum to this effect in Elliot v. Piersol.. 1 Pet. (U. S.) 328.
* Wedelv. Herman, 59 Cal. 507; Merritt v. Yates, 71 111. 639; 23 Am. Rep. 128.
Elliot v. Piersol, 1 Pet. (U. S.) 328; Bours v. Zachariah, 11 Cal. 281; 70 Am.
Dec. 779, dictum, the deed in that case having been recorded before the amend-
ment was made.
4 In Merritt v. Yates, 71 111. 636; 23 Am. Rep. 128, it is said that the only way
in which the defective certificate can be remedied is by reacknowledgment.
* Pendleton v. Button, 3 Conn. 406; Hayden v. Westcott, 11 Conn. 129.
O'Ferrall v. Simplot. 4 Iowa, 381.
1 This principle is recognized by statute in Kentucky. Keith v. Silberberg r
(Ky.) 29 S. W. Rep. 316.
Grider v. Land Mortgage Co., 99 Ala. 281; 12 So. Rep. 775.
SUFFICIENCY OF CONVEYANCE TENDERED BY THE VENDOR. 73
set out in terms or in substance all that the statute requires. An
acknowledgment certified to have been made " according to the act
of the assembly in that case made and provided " is insufficient. l
42. Unauthorized reservations or restrictions. The pur-
chaser may reject a conveyance which contains reservations, restric-
tions or conditions, not authorized by the contract under which the
conveyance was drawn. 2 Thus, under an agreement by which he is
to receive a " good and sufficient warranty deed," the purchaser may
reject a deed which reserves an easement in the land to a third per-
son, though he knew of the existence of the easement at the time
the contract was made. 3
The conveyance may be rejected if it does not include any ease-
ment or servitude to which the purchaser maybe entitled under the
contract in other lands of the vendor. 4
The purchaser is not bound to accept a deed containing erasures, 5
or one containing a blank, left for the consideration money. 6
A purchaser entitled to the covenants implied from the use of
the words " grant and convey," cannot be required to accept a
deed in which the grantor limits the effect of those covenants by
a clause that he warrants the title " against the lawful claims of
all persons claiming by, through, or under him, but no other." 7
In a case in which the vendor leased the premises to a stranger
after the sale, and the purchaser, by the terms of the contract,
was entitled to a warranty deed, it was held that he might reject
a deed purporting to be made subject to the lease, or describing
the property as "being the same now occupied by" the lessee,
since those clauses might possibly be construed as excepting tho
lease from the operation of the warranty. 8
43. Waiver of objections. The purchaser should make his
objections to the deed, either in respect to form or substance, when
^lannagan v. Young, 2 Harr. & McH. (Md.) 38.
'Millinger v. Daly, 5>6 Pa. St. 245. See 3 Washb. Real Prop. 431 (639).
"Morgan v. Smith, 11 111. 194.
4 Wilson v. McNeal, 10 Watts (Pa.), 422.
Markley v. Swartzlander, 8 W. & S. (Pa.) 172.
Moore v. Beckham, 4 Binn. (Pa.) 1.
'Union Mut. Life Ins. Co. v. Crowl, (Tex. Civ. App.) 67 S. W. 901.
Bruner v. Diamond, 65 111. App. 476.
10
74 MARKETABLE TITLE TO BEAL, ESTATE.
tendered. If lie fail in this respect it has been held that he thereby
waives all objections. 1 And when the duty devolves upon the pur-
chaser to tender a deed it has been held that the grantor must make
his objection to the deed, if any, within a reasonable time. He
cannot set up an objection to the deed for the first time when
sued for a breach of contract or for specific performance. 2 If the
purchaser takes possession and accepts a conveyance as satisfac-
tory he cannot afterwards object that it is insufficient. 3 And if a
deed be valid, but objectionable to the purchaser in form, he must,
if he have an opportunity for inspection, make his objection at
the time of the tender, or it will be waived. 4 In a case in which
the purchaser took possession under a deed to which he made no
objection, and afterwards refused to return the deed, it was held
that he could not thereafter abandon the contract and recover
back his deposit. 5 If the purchaser makes no objection to the
deed when tendered, but merely says that he is unable to pay the
purchase price, he will be held to have waived all objection to the
deed, even though not drawn in conformity to the contract. 6 In
such a case he will also be deemed to have waived any objection
to specific performance, based upon the existence of an incum-
brance on the property at the time the deed was tendered. 7 If he
retains the deed without objection to its sufficiency he cannot
afterwards defend a suit for the purchase money, on the ground
that the deed was not properly acknowledged. 8
1 Moak v. Bryant, 51 Miss. 560; Dresel v. Jordan, 104 Mass. 407; Kenniston
v. Blakie, 121 Mass. 552; Bigler v. Morgan, 77 N. Y. 312; Royal v. Dennison,
109 Cal. 558; 42 Pac. 39; Ellis v. Lockett, 100 Ga. 719; 28 S. E. 452.
'Morgan v. Stearns, 40 Cal. 434.
'Grisvvold v. Brock, 43 111. App. 203.
4 Stryker v. Vanderbilt, 25 N. J. L. 68.
" Kenniston v. Blakie, 121 Mass. 552.
Moak v. Bryant, 51 Miss. 560.
T Ashbaugh v. Murphy, 90 111. 182.
'Morrison v. Faulkner, (Tex.) 21 S. W. Rep. 984. If a deed is defective for
want of a seal or other necessary formality it will be reformed, even as against
a purchaser for valuable consideration, if he had notice of the plaintiff's rights.
Mastin v. Halley, 61 Mo. 196 ; Wadsworth v. Wendell, 5 Johns. Ch. (N. Y.) 224.
CHAPTER V.
CAVEAT EMPTOR.
GENERAL OBSERVATIONS. 44.
APPLICATION OF THE TvrATmvr TO JUDICIAL SALES.
Inherent defects of title. 45.
Effect of confirmation of tJie sale. 46.
Exceptions to the rule. 47.
Fraud as it affects rights of purchasers at judicial sales. 48.
Errors and irregularities in the proceedings. Collateral attack. 40.
Want of jurisdiction. 50.
Matters occurring after jurisdiction has attached. 51.
Fraud a# ground for collateral attack. 52.
SALES BY EXECUTORS AND ADMINISTRATORS.
Sales in pursuance of testamentary powers. 53.
Sales in pursuance of judicial license. 54.
Fraud on the part of personal representative. 55.
Want of jurisdiction. Errors and irregularities. 56.
SHERIFF'S SALES.
Want of title in execution defendant.
General rules. 57.
Exceptions. 58.
Fraudulent representation*. 59.
Rights of purchase?- from purchaser under execution. 80.
Title under void judgment. 61.
Title under void sale. 62.
TAX SALES. 63.
SALES BY TRUSTEES, ASSIGNEES, ETC. 64.
SUBROGATION OF PURCHASER AT JUDICIAL AND MINISTE-
RIAL SALES.
Where the sale is void. 65.
Where the sale is valid. 66.
44. GENERAL OBSERVATIONS. The maxim caveat emptor (let
the buyer beware), as it respects titles to land, is peculiar to the
common law. It is unknown to the civil law. 1 The principal appli-
cations of the maxim are : (1) In the denial of relief to a purchaser
of lands who has accepted a conveyance of a defective title without
covenants of indemnity from the grantor ; 2 (2) In charging a pur-
chaser with laches or negligence in failing to avail himself of means
Co. Litt. 102a; Brown Leg. Max. 768.
1 Phillips v. Walsh, 66 N. C. 283.
76 MARKETABLE TITLE TO REAL ESTATE.
for ascertaining the validity of the title ; l (3) To designate a class of
cases in which it is conclusively presumed that the purchaser agreed
to take just such title as the vendor had, and in which he is required
to pay the purchase money, though the title which he is to receive
will be utterly worthless, and though the contract still remains
executory. As a consequence of this doctrine, in the latter class of
cases no contract on the part of the vendor that his title is good
and indefeasible will be implied from the mere relations of the par-
ties, contrary, as we have seen, to the general rule when the vendor
contracts in his own right. It is to this class of cases that our atten-
tion will be directed. Of the two first-mentioned class of cases
there is nothing to be observed here, the obligation of the purchaser
to protect himself by covenants for title, or by searches for defects,
being elsewhere considered in this work.
The cases to which the rule caveat emptor applies, in the sense
that the purchaser will be deemed to have entered into the contract
with the understanding that he is to take the title, such as it is, with-
out an express contract to that effect, are those in which the pur-
chase was made at (1) judicial sales ; or (2) ministerial or fiduciary
sales ; that is, sales by executors, administrators or other personal
representatives under judicial license ; sales by executors and admin-
istrators under powers conferred by the will ; sales by trustees and
mortgagees ; sales by tax collectors, and generally any sale in which
the vendor acts not in his own right, but in a fiduciary or ministerial
character, and from whom the purchaser has no right to require
general covenants for title.
45. APPLICATION OF THE MAXIM TO JUDICIAL SALES.
Inherent defects in the title. A judicial sale may be described to be
a sale made by an officer of a court of justice in pursuance of an
order or decree of such court, and which remains incomplete until
ratified or confirmed by the court. 2 The commissioner or other
officer making the sale is the mere agent of the court to receive and
report the purchaser's bid. 8 Objections to the title by a purchaser
at a judicial sale are either such as are founded upon want of
jurisdiction, or errors and irregularities in the proceedings resulting
1 Phillips v. Walsh, 66 N. C. 233.
9 Dresbach v. Stein, 41 Ohio St. 70.
Bolgiano v. Cook, 19 Md. 375.
CAVEAT EMPTOR. 77
in the decree under which the purchase is made, or such as are
founded upon inherent defects in the title independent of such pro-
ceedings, for example, the existence of a better title in a stranger
than that which the court undertakes to sell. In either case objec-
tions to the title must be made before the sale is confirmed.
46. Effect of confirmation of the sale. It has been said that
the doctrine caveat emptor applies in all its force to judicial sales,
that is, that it will be conclusively presumed that the purchaser con-
tracts to take the title, such as it may be. 1 This presumption, how-
ever, does not apply until the sale has been confirmed. The pur-
chaser may always resist the confirmation of the sale on the ground
that the title is bad, 2 and he may have a reference to a master to
1 Rorer Jud. Sales (2d ed.), 150, 174, 476, 528, 602, 694, 923.
Corwin v. Benham, 2 Ohio St. 36.
Hously v. Lindsay, 10 Heisk. (Term.) 651.
Brown v. Wallace, 4 Gill & J. (Md.) 479.
Cashon v. Faina, 47 Mo. 133; Stephens v. Ells, 65 Mo. 456.
The reasons for this rule are set forth in the following extract from the
opinion of the court in Bishop v. O'Conner, 69 111. 431: " In all judicial sales the
presumption is that as the rule caveat emptor applies, the purchaser will examine
the title with the same care that a person does who receives a conveyance of land
by a simple quit-claim deed. When he knows there are no covenants to resort to
in case he acquires no title, the most careless, saying nothing of the prudent,
would look to the title and see that it was good before becoming a purchaser at
such sale. Or if not, he must expect to procure it on such terms as he might
sell the claim for a profit. As well might a person purchasing by quit-claim
deed file a bill to be reimbursed on the failure of title as where the purchase is
made at a sale by an administrator. Both kinds of purchase depend upon the
game rule. It is the policy of the law only to invest a sheriff, master in chancery,
or administrator in making sales of real estate with a mere naked power to sell
such title as the debtor or deceased had, without warranty, or any terms except
those imposed by law. They are the mere instruments of the law to pass such,
and only such, title as was held by the debtor or intestate. Then, if the pur-
chaser in this case observed but ordinary prudence, he had the title, and, as a
part of it, the proceedings under which he purchased, examined, and whether so
or not, we must presume that he determined to take the risk of the title upon
himself. We have no hesitation in saying that the rule of caveat emptor applies
in this case in full force."
Sugd. Vend. (8th Am. ed.) 152; Freeman Void Jud. Sales, 48; Rorer Jud.
Sales (2d ed.), 165; Fryer v. Rockefeller, 63 N. Y. 268; Trapier v. Waldo, II
So. Car. 276; Toole v. Toole, 112 N. Y. 333; Bird r. Smith, 101 Ky. 205; 40
S. W. 571.
This proposition appears to have been limited, in Pennsylvania, to cases in
which the purchaser has been deceived or misled. De Haven's Appeal, 106 Pa.
78 MARKETABLE TITLE TO BEAL ESTATE.
determine whether a good title can be made. 1 But if he permits
the sale to be confirmed without objection, he cannot afterwards
refuse to pay the purchase money because of imperfections in the
title, 2 or irregularities in the proceedings under which he pur-
St. 612, citing Schug's Appeal, 14 W. N. C. (Pa.) 49; Binford's Appeal, 164 Pa.
St. 435; 30 Atl. Rep. 298.
At a judicial sale the purchaser buys at his peril, as in ordinary sales under
execution, the only difference being that in sales by the chancellor through hig
commissioner the purchaser may have relief for defective title before the sale is
confirmed, but not after. Humphrey v. Wade, 84 Ky. 391; 1 8. W. Rep. 648.
A purchaser at a judicial sale cannot, in case of the existence of judgment
creditors not before the court, be required to complete his purchase without their
concurrence. Governor of Hospital v. West. Imp. Cominrs., 1 De G. & J. 531. He
must see that all judgment creditors have come in under the decree, for those
who have not done so may subject the land in his hands to the payment of their
judgment. 2 Sugd. Vend. (8th. Am. ed.) 156 (521).
Rule caveat emptor does not apply at judicial sale as at execution sale, until
after confirmation. Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690.
1 2 Jones Mortgages, 1648; Rorer on Jud. Sales (2d ed.), 150; Gordon v.
Sims, 2 McCord Ch. (S. C.) 151. In England the title is directed to be investi-
gated before a sale in chancery is made. 1 Sugd. Vend. (8th Am. ed.) 13. The
court confirms judicial sales, and in so doing exercises large powers in correcting
errors. Reasonable time is always given for the examination of title, and, if
necessary, a reference will be ordered. Mitchell v. Pinckney, 13 So. Car. 203,
212.
The right of the purchaser to have a reference of the title is denied in Anderson
T. Foulke, 2 Harr. & G. (Md.) 346, 358. In re Browning, 2 Paige Ch. (N. Y.) 64,
a reference of title was directed on the application of the purchaser after con-
firmation of the sale.
*2 Jones on Mortgages, 1647; Freeman Void Jud. Sales, 48; Wood v. Mason,
3 Sumn. (U. S.) 318.
Threlkeld v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384; Thomas v. David-
gon, 76 Va. 338; Hickson v. Rucker, 77 Va. 135; Long v. Weller, 29 Grat. (Va.)
347; Watson v. Hoy, 28 Grat. (Va.) 698; Young v. McClung, 9 Grat. (Va.) 336;
Daniel v. Leitch, 13 Grat. (Va.) 195.
Jennings v. Jenkins, 9 Ala. 285; Perkins v. White. 7 Ala. 855.
Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610; Fox v. McGoDdwin, 21
Ky. L. R. 1776; 56 S. W. 515.
Hedrick v. Yount, 22 Kans. 344.
Barron v. Mullin, 21 Minn. 374.
Dresbach v. Stein, 41 Ohio St. 70.
Capehart v. Dowery, 10 W. Va. 130.
Williamson v. Field, 2 Sandf. Ch. (N. Y.) 583; Hammond v. Chamberlain,
58 Neb. 445; 78 N. W. 718.
In Rorer on Judicial Sales (2d ed. 150) it is said that " although the rule
caveat emptor applies after the (judicial) sale is closed by payment of the pur-
chase money and delivery of the deed, if there be no fraud; yet the buyer, if he
CAVEAT EMPTOB. 79
chased. 1 In this respect his failure to make seasonable objection to
the title has the same effect as would his acceptance of a conveyance
without covenants for title. It has also been held that if the pur-
chaser bid with notice of defects in the title, he cannot set up those
defects as a ground for resisting a confirmation of the sale. 2 We
shall see that the same rule prevails in cases of private sale. 8 It
seems to be the better opinion that confirmation of the sale is con-
clusive upon the purchaser, whether he had or had not notice of the
defective title. It is certainly so where he had notice of the defect, 4
or wherever, by reasonable diligence, he might have obtained notice,
discover the defect beforehand, will not be compelled to complete the sale, "citing
Ormsby v. Terry, 6 Bush (Ky.), 553, a case which seems to decide no more than
that the court will not confirm the sale and compel the purchaser to execute his
bonds for the deferred payments of the purchase money if the title be bad and
the purchaser object. It is not probable that more than this last proposition is
intended by the author referred to, since the rule is almost universal, as has been
seen, that the maxim caveat emptor applies in its fullest extent after the confirma-
tion of a judicial sale, whether the purchase money has or has not been paid,
except in certain cases where the decree or j udgment under which the sale was
made was void on the ground of fraud or want of jurisdiction, or where the sale
itself was tainted with fraud; and except, perhaps, in some of the States, where
the purchaser has been evicted and the fraud arising from the sale remains undis-
turbed in the hands of the court, or in the hands of the purchaser.
After confirmation of a judicial sale it cannot be avoided in a collateral pro-
ceeding by showing defects in the notice of sale (Wyant v. Tuthill, 17 Neb. 495;
23 N. W. Rep. 342), or that security for the payment of the purchase money
was not required (Wilkerson v. Allen, 67 Mo. 502); or that the officer who
made the sale had no authority for that purpose (Core v. Strieker, 24 W. Va. 689);
or that he departed from the prescribed order of sale (McGavock v. Bell, 3 Coldw.
[Tenn.] 512); or that the appointment, of the selling jfficer was invalid. Mech.
Sav. & B. L. Assn. v. O'Conner, 29 Ohio St. 651.
It cannot be denied that the rule stated in the text may produce hardship in
some cases, especially where by statute a confirmation of the sale is permitted to
be made by a judge at chambers or during vacation of the court, on motion of a
party, and notice to those interested, in which case the interval between the sale
and the confirmation is usually short. Of course, however, if the motion be
made by the purchaser, and the title should turn out to be defective, he has no
one but himself to blame, as common prudence would dictate that he satisfy
himself about the title before moving to confirm the sale.
1 Jennings v. Jennings, 9 Ala. 285; Wilson v. Raben, 24 Neb. 368; 38 N. W.
Rep. 844.
1 Riggs v. Pursell, 66 N. Y. 193; 74 N. Y. 371. In Carneal v. Lynch, 91 Va.
114; 20 S. E. 959, the purchaser objected to confirmation of the sale on the
ground that the property encroached 2% inches on a street. But as a map
was exhibited before the sale showing the encroachment, which map he saw
but did not examine closely, he was required to take the property.
Post, "Waiver of Objections," 85.
'Jennings v. Jenkins, 9 Ala. 285, 291.
80 MARKETABLE TITLE TO REAL, ESTATE.
as where the defect appears from records or documents accessible
to him. 1 A purchaser at a judicial sale is presumed to have notice
of a want of jurisdiction appearing from the record of the proceed-
ings under which he purchased. 2 It is to be observed that the
maxim caveat emptor applies as well in equity as at law. Failure
of title under judicial or ministerial sales, apart from any question
of fraud, mistake or surprise in the procuration or rendition of the
judgment under which the sale was made, or fraud or mistake in
the sale itself, affords, after confirmation of the sale, no ground for
relief in equity against the obligation of the contract. 3 A pur-
chaser at a judicial sale may, before confirmation, raise the objec-
tion that the title is unmarketable ; he is not bound to show that
it is absoutely bad. 4 He cannot be required to take a title which
he must support by bill of injunction against a third person. 6
Generally, a purchaser by private contract cannot be compelled
to take an equitable title, 6 , but the rule is otherwise, at least in
England, in case of purchases under decree in chancery. 7 A
purchaser at a judicial sale cannot, of course, object, after confir-
mation of the sale, that the title is unmarketable or doubtful. 8 The
rule caveat emptor applies as well to incumbrances as to defects of
title proper. After confirmation of the sale the existence of an
incumbrance upon the premises is no ground for detaining the
purchase money, nor for recovering it back from the plaintiff in
1 Smith v. Winn, 38 S. Car. 188; 17 S. E. Rep. 717.
8 Campbell v. McCahan, 41 111. 445. It is the business of a purchaser at a
judicial sale to see that all the persons who are necessary to convey the title
are before the court, and that the sale is made according to the decree. 2 Dan.
Ch. Pr. 1456; Daniel v. Leitch, 13 Grat. (Va.) 195.
'Long v. Waring, 25 Ala. 625; McCartney v. King, 25 Ala. 681; Holmes T.
Shaver, 78 111. 578; Hand v. Grant, 10 Sm. & M. (Miss.) 514; 43 Am. Dec.
528. A purchaser at a judicial sale cannot enjoin the collection of the pur-
chase money on the ground that the title has failed. McManus v. Keith, 4
111. 388; Threlkeld v. Campbell, 2 Grat. (Va.) 198; 44 Am. Dec. 384.
4 See post, chapter 31, where, also, is considered what matters render a
title doubtful. Handy v. Waxter, (Md.) 23 Atl. Rep. 1035; McCafferj T.
Little, 20 App. D. C. 116; Trust Co. v. Muse, 4 App. D. C. 12.
1 Sugd. Vend. (8th Am. ed.) 593; Shaw v. Wright, 3 Ves. 22.
Post, ch. 30.
T 1 Sugd. Vend. (8th Am. ed.) 152. The rule that a purchaser will not b
compelled to take an equitable title does not extend to estates sold under the
decree of a court of equity, where the legal title is vested in an infant.
1 Sugd. Vend. 592, at p. 594, it is said that this " anomaly " is removed by
etatute, enabling the court to make a good title. In Bryan v. Read, 1 Dev.
& Bat. Eq. (N. C.) 78, 86, it was held that a purchaser at a judicial sale
under decree against an infant could not be compelled to complete the contract,
because the infant might show cause against the decree when of age.
Boorum v. Tucker, (N. J. Eq.) 26 Atl. Rep. 456.
CAVEAT EMPTOB. 81
the suit in which the sale was made, 1 though, as will hereafter
be seen, the purchaser will in some cases be subrogated to the
rights of such plaintiff against the property purchased, or to the
benefit of the lien, claim or incumbrance that he has been com-
pelled to pay to perfect his title, or to the satisfaction of which
the purchase money paid by him has been applied. 2 While the
purchaser may resist the confirmation of the sale on the ground
that the title is defective, he will not be relieved from his Lid if
the title can be perfected within a reasonable time. 3 The rule
that the vendor may perfect the title where time is not of the es-
sence of the contract especially applies in cases of judicial sale. 4
He may also be required to take the title, with compensation
or abatement of the purchase money, in case of failure of title
to a small portion of the property not material to the enjoyment
of the rest. 6
The objection that there are liens on the property cannot be
made where the lienb.olders are parties to the suit in which the
property was sold, with a right to have the proceeds applied to
the satisfaction of their liens. 6
47. Exceptions to the rule caveat emptor. It is true, as a gen-
eral rule, that a purchaser at a judicial sale cannot detain or have
restitution of the purchase money on the ground that the title is
defective, after the sale has been confirmed. But exceptions have
been made to this rule in cases of mistaken or fraudulent represen-
tations as to the title by the officer making the sale, and where the
fund arising from the sale remains under the control of the court.
Thus, where an officer of the court, selling under a decree, adver-
tised the title to be indisputable, and the purchaser afterwards
discovered that there was in fact no title, it was held that the court
must, even after confirmation of the sale, the purchase money not
having been distributed, vacate the sale on petition of the purchaser,
and direct that the purchase money he refunded to him. 7 And it
1 Farmers' Bank v. Martin, 7 Md. 342; Farmers' Bank v. Peter, 13 Bush
(Ky.), 594; Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610; Worthington T.
McRoberts, 9 Ala. 297.
8 Post, this chapter, "Subrogation," 65, 66.'
'Ormsby v. Terry, 6 Bush (Ky.), 553.
* Thomas v. Davison, 76 Va. 342. In Lamkin v. Reese, 7 Ala. 170, it was held
that though the court had no jurisdiction to order a sale of the land, yet, if the
purchaser went into possession he could not, after the lapse of two years,
rescind the contract if the heirs were then able and willing to make him a title.
'Riggs v. Pursell, 66 N. Y. 193; Merges v. Ringler, 54 N. Y. Supp. 280;
34 App. Div. 415.
Blanton v. Ky. Distilleries, etc., Co., 120 Fed. 318.
7 Preston v. Fryer, 38 Md. 221. In this case it appeared that a married woman
had conveyed her separate estate to her husband, and afterward died before her
11
82 MARKETABLE TITLE TO KEAL ESTATE.
has even been held, irrespective of the question of fraud or mistake,
that if, while the fund is yet in court, the purchaser should be dis-
turbed in his possession, or exposed to disturbance by one having a
clear paramount title to the estate, which was unknown to the pur-
chaser at the time of the sale, the sale should rescinded, and the
purchase money restored to the purchaser. 1 The same case decides
that if the purchase money has been distributed by the court, the
purchaser can have no relief.
It has been held that the rule caveat emptor does not apply to
eases in which the court had no jurisdiction to direct the sale at
which the purchaser bid, and that in such a case the purchaser
might have restitution of the purchase money even after confirma-
tion of the sale. 2 And, generally, it has been held that a purchaser
husband. On the death of the husband suit was brought for sale of the land and
distribution of the proceeds among his heirs. The deed to the husband was a
nullity, but the officer of the court advertised the title to be good, and the pur-
chaser bought under that impression. But for the fact that the proceeds of sale
remained undistributed in the cause when restitution was made, and but for the
unnecessary declaration by the officer that the title was good, it would be difficult
to reconcile this case with the rule caveat emptor, as applied to judicial sales in
other jurisdictions. While there is no warranty at a judicial sale, yet, if the
purchaser when sued for the purchase money can show that at the sale there were
misrepresentations as to the thing sold, whether willful or not, he may set up
such misrepresentations as a defense to the action. Charleston v. Blohme, 15 So.
Car. 124; 40 Am. Rep. 690, citing State v. Gaillard, 2 Bay (S. C.), 11; 1 Am. Dec.
628; Means v. Brickell, 2 Hill (S. C.), 657; Adams v. Kibler, 7 So. Car. 58; Mitch-
ell v. Pinckney, 13 S. Car. 203.
1 Glenn v. Clapp, 11 Gill & J. (Md.) 1. This holding is largely obiter dictum, as
the purchase money in the case had not been paid, and the case itself was an
appeal from an order confirming the sale as against the purchaser's objections ta
the title. The rule announced seems eminently just and equitable, but it cannot
be easily reconciled with the general rule that a purchaser at a judicial sale cannot
be relieved from his bargain after confirmation of the sale, on the ground that the
title has failed.
8 Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561, citing Darvin v. Hillfield,
4 Sandf. Sup. Ct. (N. Y.) 468; Kolher v. Kolher, 2 Edw. Ch. (N. Y.) 69; Post v.
Leet, 8 Paige (N. Y.), 337; Seaman v. Hicks, 8 Paige (N. Y.), 655; Brown v.
Frost, 10 Paige (N. Y.), 243; Shively v. Jones, 6 B. Mon. (Ky.) 275. This is
doubtless true in any case in which the court was without jurisdiction of the
person of the defendant, or in which the suit was of a kind of which the court
could not take cognizance. But in the principal case the objection to the juris-
diction was that the defendant had no title to the property; that the title waa
outstanding in one who had not been made a party, and the objection was sus
CAVEAT EMPTOB. 83
at a judicial sale which is void for want of jurisdiction in the court
to order the sale, or for other cause, may resist the payment of the
purchase money, even after the purchaser's bid had been accepted
by the court. 1 There can be no confirmation of that which is void.
We have elsewhere attempted to show that this eminently just and
equitable doctrine is inconsistent with the rule caveat emptor, as the
purchaser may inform himself of the want of jurisdiction by exam-
ining the proceedings in the cause. 2 Nor does the rule apply where
there was no such land in existence as the officers of the court
undertook to sell. 8 Nor where the premises were in the possession
of one claiming adversely at the time of the sale, the purchaser and
the parties being ignorant of such person's claim, or that he intended
to retain possession. 4 The purchaser will not be deprived of his
right to reject a defective title, and enjoin the collection of the pur-
chase money, where he has been led by the conduct of the parties
to postpone a motion to set aside an order confirming the sale, until
after the close of the term at which the order was made. 5
The rule that a purchaser at a judicial sale cannot, after the
sale has been confirmed, refuse to pay the purchase money on
the ground that the title is defective, is salutary where the
objection is merely that the title is unmarketable, 6 or where there
tained, and the purchaser permitted to recover back the purchase money. Such
a principle goes far towards destroying altogether the application of the maxim
caveat emptw to judicial sales that have been confirmed, since in most instances
the purchaser seeks relief on the ground that the title is outstanding in a stranger.
'Freeman Void Jud. Sales, 48; Todd v. Dowd, 1 Mete. (Ky.) 281; Carpenter
v. Strother, 16 B. Mon. (Ky.) 389; Barrett v. Churchill, 18 B. Mon. (Ky.) 387.
* Post, this chapter, 61.
8 Strodes v. Patton, 1 Brock. (U. S.) 228, per MARSHALL, C. J. A decree
directed the sale of the lands whereof H. died "seized and possessed." The offi-
cers of the court at the time of the sale exhibited certain conveyances to H., but
disclaimed any responsibility for quantity or title, and declared that the pur-
chaser must buy at his risk. It appeared that H. had never been seized of one of
the tracts so conveyed, and was not entitled to anything by virtue of the con-
veyance thereof. The sale was treated as having been made without authority,
or by mistake, and the purchasers were relieved, even after confirmation.
McGown v. Wilkins, 1 Paige Ch. (N. Y.) 120, the court saying: "This is not
like the case of a sale by the sheriff on execution. There the court never give*
possession to the purchaser, even as against the party to the suit."
Morrow v. Wessell, (Ky.) 1 S. W. Rep. 439.
Worthington v. McRoberts, 9 Ala. 297. In Mahoney v. Allen, 42 N. Y,
Supp. 11, the purchaser was permitted to make objections of that kind after
the sale Avas confirmed.
84 MARKETABLE TITLE TO HEAL ESTATE.
is no probability that the purchaser will ever be disturbed in his
possession, and the alleged imperfections have been ferreted out as
an excuse for the detention of the purchase money. But where
there is a clear and palpable failure of the title, as where the pur-
chaser has been evicted by an adverse claimant, or where the rights
of the holder of the paramount title are being asserted, or will
inevitably be asserted, by hostile proceedings, it would seem that
neither the ends of justice nor of legal policy or convenience can
be subserved by compelling the purchaser to pay his money into
court, when the court can give him nothing in return. Accordingly,
in several such cases, not only has the purchaser been permitted to
detain the unpaid purchase money, but restitution thereof has been
made to him where the fund accruing from the sale remained undis-
tributed in the hands of the court. 1 In other cases, a distinction has
been made between sales in partition, or other voluntary sales, and
those in which the sale is to compel the payment of a debt, holding
in the former case that the purchaser may detain the purchase
money, and in the latter that he must pay it though evicted by title
paramount. 2 The proposition that a purchaser at a judicial sale, who,
Preston v. Fryer, 38 Md. 221. Boggs v. Hargrave, 16 Cal. 559; 76 Am.
Dec. 561. Weems v. Love Mfg. Co., 74 Miss. 831; 21 So. 915. See, also,
Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690. The case of Glenn v.
Clapp, 11 Gill. & J. (Md.) 1, has been cited to this point, but an examination
of that case shows that the purchaser's objections to the title were made
before continuation of the sale. See Rorer on Jud. Sales (2d ed.), 78.
* Latimer v. Wharton, (So. Car.) 19 S. E. Rep. 855. Here the purchaser in a
suit for the administration of the assets of a deceased debtor's estate, sought to
enjoin a judgment for the purchase money on the ground that he had been
evicted by an adverse claimant, and it was held that the sale of the land having
been compulsory, he must pay the purchase money; the court observing: "It
is well known that the reason of the rule of caveat emptor at sheriff's sales is
because such sales are forced and are made under compulsory process. There is
not the same reason for holding that the rule should prevail where the officer
selling the property is regarded as the agent of the parties, such as sales for par-
tition and those made by executors and administrators." This case contains an
interesting review of the South Carolina authorities upon the right of the pur-
chaser at a judicia\ sale to detain the purchase money on failure of the title. As
to such right in this State in case of a private sale, see post, 190. In Smith
v. Brittain, 3 Ired. Eq. (N. C.) 347, 351; 42 Am. Dec. 175, which was a suit for
partition, it was said by RUFFIN, C. J.: "A sale by the master in a case
of this kind, is but a mode of sale by the parties themselves. It is not
CAVEAT EMPTOK. 85
after confirmation of the sale, has been evicted by title paramount,
will not be compelled to pay the unpaid purchase money when the
facts avoiding the title were not such as he could have discovered
by the exercise of reasonable prudence, care and diligence, com-
mends itself to the mind as equitable and just. It is believed that
no serious inconvenience could result from such a rule, while a bene-
fit consequent thereon is obvious. Judicial sales are usually made
upon an extended credit, and if purchasers could be assured that
they would not be compelled to pay the unpaid purchase money if
they should be evicted by some one having a better title, it is fair to
assume that better prices for property thus sold would be realized.
We cannot refrain from expressing here a regret that the rule caveat
emptor, as applicable to judicial and ministerial sales, has not been
universally so qualified as to permit the purchaser to detain the pur-
chase money if, before it is paid, he discovers that the title is abso-
lutely bad, and not merely doubtful or suspicious. If he bids under
the impression that he will not be compelled to pay the purchase
money should he get no title and the vast number of decisions
enforcing the rule caveat emptor attest the fact that many such bids
are made the rule is to him a snare and a pitfall. If, on the other
hand, he bids knowing that he must pay the purchase money, though
he be evicted from the premises, the property is sold for a merely
nominal sum, thus entailing loss and sacrifice upon the owners, and
often upon creditors at whose instance the sale was made.
But the generally prevalent rule and the weight of authority
undoubtedly is that a purchaser at a judicial sale proper will not be
permitted to have restitution of the purchase money after it has
passed beyond the control of the court, without regard to the nature
or extent of the defect of title, 1 except, perhaps, where the judg-
ment or decree under which the purchase was made was void for
merely a sale by the law, in. tnvitum, of such interest as the party has or may
have, in which the rule is caveat emptor, but professes to be a sale of a particular
estate, stated in the pleadings to be vested in the parties, and to be disposed of
for the purpose of partition only. Thereupon, if there be no such title, the
purchaser has the same equity against being compelled to go on with his
purchase as if the contract had been made without the intervention of the
court, for, in truth, the title has never been passed on between persons con-
testing it."
1 Smith v. Winn, 38 So. Car. 188; 17 S. E. Rep. 717.
86 MARKETABLE TITLE TO REAL ESTATE.
want of jurisdiction ; * nor, after the sale has been confirmed, to
detain the purchase money upon mere suggestions of doubts and dif-
ficulties as to title, nor even where the title has absolutely and pal-
pably failed, if the pleading in the case in which he purchased show
the true state of the title. 2 And in no case, apart from questions
of fraud or deceit, can a purchaser at a sale made by one in a minis-
terial or fiduciary capacity, maintain an action against the seller to
recover damages for inability to convey a clear title. Inasmuch as
there is no contract in such a case that the purchaser shall receive a
good title, there can be no cause of action against the vendor if the
title fails. 8 We have seen, however, that if the person making the
sale choose to execute a conveyance with general warranty to the
purchaser, he will be personally liable on the covenant. 4
It has been held, with respect to the maxim caveat emptor, as
applicable to judicial sales, that a distinction is to be observed
between cases in which the decree directs a sale of the " land " itself,
and those in which only an " estate " or interest in the land is
directed to be sold, and that in the former case, if the purchaser
acquires no title, he may, even after confirmation of the sale, hare
the contract rescinded and the purchase money returned, but that in
the latter case he must take the title at his risk. 5 This distinction
does not appear to have been generally observed.
4:8. Fraud as it affects rights of purchaser at judicial sale.
Fraud, as it respects the rights of a purchaser at a judicial sale or
J See Boggs v. Hargrave, 16 Cal. 559; 76 Am. Dec. 561.
1 Eccles v. Timmons, 95 N. Car. 540. Even t hough the purchaser was fraudu-
lently induced to bid. Norton v. Neb. Loan & Tr. Co.. 35 Neb. 466: 53 N. W.
Rep. 481; 58 N. W. Rep 953.
'A rigorous application of the doctrine caveat tmptor to judicinl sales is found
in Evans T. Dendy. 2 Spear (S. Car.), 9; 43 Am. Dec. 356, where it was held that
a purchaser under a decree in partition between heirs who has been evicted by
title paramouut, cannot recover back the purchase money, though it remains
undistributed in the hands of the officer making the sale. RICHARDSON. J.. dis-
sented upon the ground that the officer making the sale is the mere agent of the
heirs, and that such a sale does not stand upon the same footing as a sale under
execution. See, also, Rogers v. Horn, 6 Rich. L. (S. C.) 361. It is to be observed
that in Evans v. Dendy. supra, a conveyance without covenants for title had been
made to the purchaser.
4 Po*t, 69.
* Shields v. Allen, 77 N. Car. 375, criticised but not overruled in Ellis v. Ander-
ton, 88 N. Car. 476. This case holds that when a court decrees the sale of land it
CAVEAT EMPTOT?. 87
of one claiming under such purchaser, is either: (1) Fraud antece-
dent to the sale, such as fraud in the procuration or rendition of the
judgment or decree in pursuance of which the sale is made ; (2)
Fraud in the sale itself, such as collusion between the officer selling
sind the purchaser, by which the property is sacrificed ; and (3)
Fraud on the part of the officer selling or parties in interest in
falsely stating the condition of the title, with intent to deceive. In
the first two instances the sale is open to collateral attack by the
party injured and by the purchaser himself ; fraud in these respects
is considered in a subsequent section of this work. 1 In the last
instance there are cases which hold that if the purchaser at a judi-
cial sale has been induced to bid by the fraudulent representations
or concealment of facts respecting the title on the part of the officer
or of others interested in making the sale, he will be relieved in
equity from his bid, after confirmation of the sale. 2 But even in a,
case of misrepresentation as to the title, the purchaser cannot avoid
the sale unless he can show that he could not have discovered the
fraud with reasonable diligence. 3 Thus, where the pleadings in a
suit to foreclose a junior mortgage showed the existence of the prior
mortgage, and the purchaser at foreclosure sale in the suit was induced
to bid by the representations of the officer making the sale and by
the clerk of the court, that there was no prior lien on the property,
it was held that he could not be relieved from the contract, as he
might easily have informed himself of the true state of the title by
examining the pleadings. 4
is the duty of the officer selling to offer a good title to the land. In Miller v. Fee-
zor, 82 N. C. 192, citing Shields v. Allen, supra, it was said that the maxim caveat
tmptor did not apply to judicial sales in North Carolina.
1 Post, this chapter, 52.
J Rorer on Jud. Sales (2d ed.), 175; Preston v. Fryer, 38 Md. 221; Merrine
v. Vaulier, 3 Halst. Ch. (N. J.) 34, semble ; Bishop v. O'Connor 69 HI. 431,
dictum. While there is no warranty at a judicial sale, the purchaser when sued
lor the purchase money may set up misrepresentations as to the title as a defense.
Charleston v. Blohme, 15 So. Car. 124; 40 Am. Rep. 690; Mitchell v. Pinckney, 13
So. Car. 203. Statements in a bill for partition that complainants are the owners
of the property, are no such fraudulent representations as to the title by those
interested in a sale of the property as will entitle the purchaser to relief.
McManus v. Keith, 49 111. 388.
1 Williams v. Glenn, 87 Ky. 87; 7 S. W. Rep. 610.
Norton v. Neb. Loan & Tr. Co.. 35 Neb. 466; 53 N. W. Rep. 481: 58 id. 95a
88 MARKETABLE TITLE TO REAL ESTATE.
Nor will the purchaser be relieved if with knowledge of the
fraud he permits the sale to be confirmed without objection. 1 There
are cases also which hold that the officer making the sale has no
right to make representations concerning the title, and that, there-
fore, the purchaser has no right to rely on them, and will not be
entitled to relief if he should. 2
The purchaser may of course resist confirmation of the sale on
the ground that he was induced to bid by fraudulent or mistaken
representations as to the state of the title. 3
49. Errors and irregularities in the proceedings. Collat-
eral attack. Errors and irregularities in judicial proceedings are
either such as render the judgment or decree therein pronounced
absolutely null and void, or such as render them voidable only. A
judgment rendered against one who has not been brought before
the court by due process of law is absolutely void. 4 A judgment
founded upon a misconception of the law of the case, the court
having acquired jurisdiction of the parties, is voidable only. 5 A
void judgment is open to collateral attack. A voidable judgment-
can be vacated or annulled only upon appeal or writ of error, or in
some direct proceeding between the parties. 6 It seems to be settled
1 Fore v. McKenzie, 58 Ala. 115.
* Vandever v. Baker, 13 Pa. St. 126; Slowthower v. Gordon, 23 Md. 1, where
it was said that there is no relation of trust and confidence between the officer
making a judicial sale and the purchaser.
J Veeder v. Fonda, 3 Paige (N. Y.), 94; Seaman v. Hicks, 8 Paige (N. Y.), 656;
McGown v. Wilkins, 1 Paige (N. Y.), 120; Morris v. Mowatt, 2 Paige (N. Y.),
586; 22 Am. Dec. 661; Kauffman v. Walker, 9 Md. 229. In Tooley v. Kane, 1
Sm. & M. Ch. (Miss.) 518, it was said that the court would set aside a sale in case
of fraud, even after confirmation.
4 Black on Judgments (1st ed.), 245, et seq.
'Freeman on Judgments (4th ed.), 117, et seq.; Cox v. Davis, 17 Ala. 714; 52
Am. Dec. 199.
* Freeman Void Jud. Sales, 20; Black on Judgments, 261, et seq.; Rorer on
Jud. Sales (2d ed.), 171. Swiggart v. Harber, 4 Scam. (111.) 364; 39 Am. Dec.
418. The opinion of the court in the leading case of Voorhees v. Bank of the U.
S., 10 Pet. (U. S.) 449, 475, contains a clear exposition of this doctrine: " The line
which separates error in judgment from the usurpation of power is very definite,
and is precisely that which denotes the cases where a judgment or decree is
reversible only by an appellate court, or may be declared a nullity collaterally,
when it is offered in evidence in an action concerning the matter adjudicated, or
purporting to have been so. In the one case it is a record importing absolute
CAVEAT EMPTOR. 89
everywhere, either by statute or judicial declaration, that the
reversal of a judgment or decree on error or appeal cannot disturb
the title of a purchaser at a judicial sale under such judgment or
decree, 1 except in a case in which the land sold was not the prop-
erty of the defendant in the cause, and the alleged debt for which
the land was sold was found not to exist. 2 And, except, also,
in some of the States, that if the plaintiff in the reversed judgment
be himself the purchaser of the land, the defendant may recover it
back. 3 There may be a restitution of the proceeds of the sale to
verity; in the other mere waste paper. There can be no middle character assigned
to judicial proceedings which are irreversible for error. Such is their effect
between the parties to the suit, and such are the immunities which the law affords
to a plaintiff who has obtained an erroneous judgment or execution. It would
be a well-merited reproach to our jurisprudence if an innocent purchaser, no
party to the suit, who had paid his money on the faith of an order of a coiirt,
should not have the same protection under an erroneous proceeding as the party
who derived the benefit accruing from it. A purchaser under judicial process
pays the plaintiff his demand on the property sold; to the extent of the purchase
money he discharges the defendant from his adjudged obligation. Time has
given an inviolable sanctity to every act of the court preceding the sale, which
precludes the defendant from controverting the absolute right of the plaintiff to
the full benefit of his judgment, and it shall not be permitted that the purchaser
shall be answerable for defects in the record, from the consequence of which the
plaintiff is absolved. Such flagrant injustice is imputable neither to the common
nor statute law of the land." In Lancaster v. Wilson, 27 Grat. (Va.) 624, 629, the
court, deciding that the title of a purchaser under an invalid and irregular attach-
ment sale could not be collaterally drawn in question, observed: "If, after
the rendition of a judgment by a court of competent jurisdiction, and after
the period elapses when it becomes irreversible for error, another court may,
in another suit, inquire into the irregularities or errors in such judgments,
there would be no end to litigation, and no fixed established rights. A judg-
ment, though unre versed and irreversible, would no longer be a final adjudi-
cation of the rights of litigants, but the starting point from which a new litiga-
tion would spring up. Acts of limitation would become useless and nuga-
tory. Purchasers on the faith of judicial powers would find no protection.
Every right established by a judgment would be insecure and uncertain, and a
cloud would rest upon every title."
1 Rorer Jud. Sales, 130.
'Baker v. Baker, 87 Ky. 461; 9 8. W. Rep. 382.
1 Post, " Sheriff's Sales," this chapter; Gould v. Sternberg, 128 111. 510; 21 N. E.
Rep. 628; Turk v. Skiles, 38 W. Va. 404. This exception does not appear to
have been admitted in Baker v. Baker, 87 Ky. 461; 9 S. W. Rep. 382, and was
denied in Yocum v. Foreman, 14 Bush (Ky.), 494.
12
90 MARKETABLE TITLE TO REAL ESTATE.
the party injured by the error, but the purchaser's title remains in-
tact, 1 unless, indeed, it is apprehended the judgment was reversed
upon grounds that would have rendered it void had no appeal been
taken. It would seem then to follow from these elementary prin-
ciples that, if a purchaser at a judicial sale resists a confirmation of
the sale on the ground of errors and irregularities in the proceed-
ings, it would only be necessary to consider whether such errors and
irregularities were of a kind that would render the judgment or
decree under which the sale was made absolutely void, or voidable
'Voorhis v. Bank of U. S., 10 Pet. (U. S.) 449. Freeman on Judgments,
484 (3d ed.) ; Freeman on Void Jud. Sales, p. 45 (3d ed.) : Black on Judp-
ments, p. 320; Rorer Jud. Sales (2d ed.), 132; Burnett v. Hamill, 2 Sell. A
Lef. 577. Voorhees v. Bank, 10 Pet. (U. S.) 449; McGoon v. Scales, 9 Wall.
(U. S.) 23, 31. Jackson v. Edwards, 22 Wend. (X. Y.) 493, 518. Cockey v.
Cole, 28 Md. 276; 92 Am. Dec. 684; Benson v. Yellott, (Md.) 24 Atl. Rep.
451. Capehart v. Dowery, 10 W. Va. 130. Frederick v. Cox, 47 W. Va. 14;
34 S. E. Rep. 958. Yocum v. Foreman, 14 Bush (Ky.), 494; Bailey v. Fanning
Orphan School, (Ky.) 14 S. W. Rep. 908. Stout v. Gully. (Colo.) 22 Par.
Rep. 954; Cheever v. Minton, (Colo.) 21 Pac. Rep. 710. Gould v. Sternberg,
128 111. 510; 21 N. E. Rep. 628. England v. Garner, 90 N. Car. 197. If juris-
diction of a cause has been acquired by the court the title of a purchaser at a
sale therein cannot be affected by the fact that the decree in pursuance of which
the sale was made was founded on insufficient proof. Bolgiano v. Cook, 19
Md. 375. A purchaser under a judgment merely erroneous acquires good title ;
otherwise, if the judgment be void. Bowers v. Chancy, 21 Tex. 363. Mere
errors and irregularities in the proceedings make no grounds for collateral
attack. Wilson v. Smith, 22 Grat. (Va.) 493. The remedy of the person
injured by the passing of title under a judgment that has been reversed for
error is an action for damages against those at whose instance the sale was
made, alleging such facts as will show that the plaintiff is entitled, by reason
of the reversal, to what he has been deprived of by the erroneous judgment.
Hays v. Griffith, 85 Ky. 375; 11 S. W. Rep. 306; 3 S. W. Rep. 431. The case
of Sohier v. Williams, 1 Curt. (C. C.) 479, affords an illustration of this
principle. The sale in that case was by a trustee under a power in a will,
which authorized him to sell when a majority of the testatrix's children
should advise a sale. The court was of opinion that the consent of the
major part of the children living when the power was to be exercised was
sufficient, but considered the question so doubtful that but for the fact that
all parties in interest were before the court, and would be bound by a decree,
the purchaser would not have been compelled to complete the contract. Had
the court pronounced an erroneous decree, having all parties in interest
before it, the decree would, indeed, have been subject to reversal by a higher
court, but the title of the purchaser would have remained undisturbed. In
Dunfee v. Childs, 45 W. Va. 155; 30 S. E. 102, it was said that the title of
the purchaser falls with the reversal of a decree, 1st, where he is a party to
the suit with an interest in the cause; 2nd, where the decree was reversed
for want of necessary parties: and 3rd, where the decree reversed is that
which confirmed the sale whether he was a party to the suit or not.
CAVEAT EMPTOE. 91
only. In the former event it is conceived that the purchaser would
be excused from completing the purchase, and that in the latter
ovent he would be required to pay the purchase money and accept
a conveyance. 1 Thus, if the court decree a sale of testator's lands
in pursuance of an erroneous construction of his will, all parties in
interest being before the court, it is apprehended that the error
would be no objection to the title wherever the rule that the rever-
sal of a judgment does not affect the rights of a purchaser under
the judgment is observed. On the other hand, if infants, having an
interest under the will, have not been brought before the court in
the manner provided by law, the judgment of the court is absolutely
void as to them, and the land in the hands of the purchaser being
subject to their demands upon their arrival at majority, it would
seem clear that the purchaser would be relieved from his bid. 8 It
Las been frequently said that a purchaser at a judicial sale cannot
question the regularity of the proceedings prior to the decree under
which he purchased. 3 This, it is obvious, means only errors and
irregularities prior to the sale that would make the decree voidable ;
that is, reversible on appeal or in some direct proceeding, and not
errors or other matters, such as want of jurisdiction or fraud, that
would make the decree absolutely void and open to collateral attack,
for it is clear that the purchaser showing such want of jurisdiction
'2 Jonea on Mortgages, 1647; Freeman Void Jud. Sales, p. 45 (3d ed.) ;
L'orer Jud. Sales, p. 65. Trapier v. Waldo, 16 S. C. 276; Bulow v. Witte, :J
S. C. 323. Wright v. Edwards, 10 Oreg. 307 ; McCulloch v. Estes, 20 Oreg.
349; 25 Pac. 724.
In Cline v. Catron, 22 Grat. ( Va. ) 378, the curator of an idiot's estate and
lands brought a suit for a sale of the lands and reinvestment of the proceeds,
and at a sale under decree in the cause, himself purchased the lands. The
sale was confirmed, in violation of a statute which provided in express terms
that the plaintiff, the curator, should not be admitted as a purchaser. It was-
afterwards objected that title derived through such purchaser was, by reason
of the premises, insufficient; but it was held that the court, having had juris-
diction to make the sale, the confirmation thereof was mere error, for which
the decree might have been reversed, but could not be attacked in a collateral
proceeding.
3 Cox v. Cox, 18 D. C. 1. A more accurate expression of the rule is found in
Sutton v.' Schonwald, 86 N. Car. 198, 204; 41 Am. Rep. 455. whore it is said
tliat a purchaser who is no party to the proceeding is not bound to look
beyond the decree, if the facts necessary to give the court jurisdiction appear
on the face of the proceedings. And in James v. Meyers, 41 La. Ann. 1100.
it was said that while the purchaser is not, as a general rule, bound to look
bevond the decree, he is still bound to see that the court had jurisdiction.
92 MARKETABLE TITLE TO BEAL ESTATE.
before confirmation of the sale could not be compelled to complete
the contract.
The cases illustrating the proposition that a judgment merely erro-
neous cannot be made the subject of collateral attack, are almost
endless. A number of instances have been given in the notes below,
in which the title of a purchaser, immediately or derivatively, under
a judicial sale, has been called in question on the ground of errors
and irregularities in the proceedings, and in which the objection has
been held untenable. 1 It must suffice to say here, generally, that
insufficiency of the evidence to sustain the judgment ; error of the
court in applying the law to the facts ; want of parties, where the
objection is made by one bound by the judgment ; defects or irregu-
larities in the process or service of process, other than absolute want
1 In Perkins v. Fairfield, 11 Mass. 227, a title under a sale by administrators by
virtue of a license from the court, was held good against the heirs of the intestate,
although the license was granted upon a certificate from the judge of probate, not
authorized by the circumstances of the case. A purchaser at a judicial sale-can-
not object to the title on the ground that more of an estate was sold than was
necessary to satisfy the decree, " the decree being a sufficient security to him, as
it cannot appear but that it was right to sell the whole." 1 Sugd. Vend. 68;
Daniel v. Leitch, 13 Grat. (Va.) 195, 210. Irregular service of summons does not
affect the title of a purchaser at a judicial sale. Upson v. Horn, 3 Strobh. Eq.
(8. C.) 108; 49 Am. Dec. 633. Failure to revive a suit for partition in the name
of the heirs of one of the complainants who died after decree for, but before date
of sale of the lands, will not render the sale void, nor impair the title of a purchaser
thereunder. Schley v. Baltimore, 29 Md. 34. In Derr v. Wilson, 84 Ky. 14, it
was contended that a court had no power to order a sale of a homestead, subject
to the life interest of the debtor, and that such a judgment was void for want of
jurisdiction, but it was held that while the court erred in making the order, it
had jurisdiction of the parties and subject-matter, and that, therefore, the judg-
ment and the title of the purchaser thereunder could not be collaterally attacked.
Where judgment was entered for the full amount of a penal bond instead of
the damages for a breach of the bond, awarded by the jury, it was held error, but
not such as could affect the title of a purchaser under the judgment. Wales v.
Bogue, 31 111. 464. A decree in chancery against unknown heirs is not void
because no affidavit was filed that they were unknown. It is voidable only on
appeal. Hynes v. Oldham, 3 T. B. Mon. (Ky.) 266; Benningfield v. Reed, 9 B.
Mon. (Ky.) 102. If a guardian ad litem be appointed for an infant and he actually
answers, a decree based thereon will not be absolutely void, though there was no
actual judicial notice of the suit given the infant. Bustard v. Gates, 4 Dana (Ky.),
429; Bank U. 8. v. Cochran, 9 Dana (Ky.), 395; Benningfield v. Reed, 8 B. Mon.
(Ky.) 100. A statute providing that before a sale is ordered in partition the court
CAVEAT EMPTOR. 93
of service ; legal disability of a party, according to the preponder-
ance of authority; judgment for an excessive amount; mistakes
and clerical errors in the rendition or entry or judgment, or other
like matters, cannot be availed of, in a collateral proceeding, to
invalidate a title held under a judicial sale. 1
50. Want of jurisdiction. The only grounds, it seems, upon
which a judgment of a court of record can be attacked in a collat-
eral proceeding are want of jurisdiction in the court to render the
judgment, and fraud, mistake or surprise in the procuration of the
judgment. 2 Jurisdiction is either : (1) Of the person of the defend-
shall appoint some one to represent infant parceners, is directory only, and a
failure to appoint such a person does not deprive the court of jurisdiction and
render its judgment void. Robinson v. Redman, 2 Duv. (Ky.) 82. The fact
that a mortgagee, before proceeding to foreclose, executes a bond whose con-
dition does not conform to the statute, will not avoid the jurisdiction of the court
to confirm the foreclosure sale nor affect the title of a purchaser thereat. Cockey
v. Cole, 28 Md. 276; 92 Am. Dec. 684. The fact that commissioners in partition
do not make their report under seal, as required by statute, will not invalidate a
title thereunder upon collateral attack; such an irregularity could be taken advan-
tage of only, if at all, by proceedings in error. Lane v. Bommelmann, 17 111. 95.
Failure to direct a sale in inverse order of alienation is not such error as affects the
jurisdiction and avoids the sale. Jenks v. Quinn, 137 K Y. 223; 33 N. E. Rep. 376.
Where the record in a proceeding by an administrator to sell decedent's lands
for the payment of his debts, affirmatively shows that the court has jurisdiction
to order the sale, that the land was sold under order of, and was approved by the
court, and that a deed under like order was executed to the purchaser, it was held
that the action of the court, being in the nature of a proceeding in rem, could
not, though abounding with errors and irregularities, be collaterally impeached.
The failure to give the statutory notice by citation to the heirs, and the absence
of proof by the record that the guardian ad litem of the minor heirs accepted the
appointment, or that he filed an answer denying the allegation of the petition, or
that the commissioner of sale gave proper notice of the time and place of sale
are mere irregularities, which might furnish good grounds of reversal on error,
but which could not invalidate the sale, when collaterally attacked, if the record
affirmatively showed that the coxirt had jurisdiction. Saltonstall v. Riley, 28 Ala.
164; 65 Am. Dec. 334.
1 See Black on Judgments, 261 et seq.
*Post, 52. The court must have jurisdiction of the subject-matter and of
the parties to render its judgment valid on collateral attack. Commercial Bank
v. Martin, 9 Sm. & M. (Miss.) 613. " Jurisdiction may be defined to be the right
to adjudicate concerning the subject-matter in a given case. To constitute this
there are three essentials: First, the court must have cognizance of the class of
cases to which the one adjudged belongs; second, the proper parties must be
94 MARKETABLE TITLE TO REAL ESTATE.
ant ; J (2) of the subject-matter of the suit ; (3) of the res, or prop-
erty in contest. 2 Want of jurisdiction in one or more of these
respects is not necessarily fatal to the judgment of the court if it
have jurisdiction upon other grounds. Thus, a proceeding against
a non-resident defendant by which it is sought to attach his lands
within the territorial jurisdiction of the court is essentially a pro-
ceeding in rem, and the fact that proceedings by publication to
bring the defendant before the court are too defective for that pur-
pose will not affect the validity of a judgment or decree for the sale
of the land and the title of a purchaser thereunder. 3 The converse
of the foregoing proposition, that is, that the existence of jurisdic-
tion upon one or more grounds does not necessarily validate a judg-
ment if jurisdiction upon another ground be wanting, is also true.
Thus, in a suit for the administration of a trust, the court may have
jurisdiction of the cause of action and of the persons of the defend-
ants, but if jurisdiction of the res be wanting, for example, if the
present; and, third, the point decided must be, in substance and effect, within
the issue." Munday v. Vail, 34 N. J. Law, 422.
'Cooper v. Reynolds, 10 Wall. (U. S.) 308, 316. The text is grounded upon
the distinctions formulated by Mr. Justice MILLER in this case, as follows: " It is
as easy to give a general and comprehensive definition of the word jurisdiction
as it is difficult to determine in special cases the precise conditions on which the
right to exercise it depends. This right has reference to the power of the court
over the parties, over the subject-matter, over the res or property in contest, and
to the authority of the court to render the judgment or decree which it assumes
to make. By jurisdiction over the subject-matter is meant the nature of the
cause of action and of the relief sought; and this is conferred by the sovereign
authority which organizes the court, and is to be sought for in the general nature
of its powers, or in authority specially conferred. Jurisdiction of the person is
obtained by the service of process, or by the voluntary appearance of the party
in the progress of the cause. Jurisdiction of the res is obtained by a seizure
under process of the court, whereby it is held to abide such order as the court
may make concerning it. The power to render the decree or j udgment which
the court may undertake to make in the particular cause, depends upon the
nature and extent of the authority vested in it by law in regard to the subject-
matter of the cause."
* Black Judgmts, 240.
1 Cooper v. Reynolds, 10 Wall. (U. S.) 308; Voorhees v. Bank of U. S., 10 Pet.
(TJ. S.) 449. These are leading cases, and in them it was held that defects and
irregularities in the affidavit and publication of notice in proceedings by attach-
ments against non-residents, and the fact that the record does not show compli-
ance with all the statutory requisites in such cases, did not go to the jurisdiction
of the court, and did not, therefore, render the judgment in the cause absolutely
CAVEAT EMPTOB. 95
trust subject consist of lands lying in another State and consequently
beyond the jurisdiction of the court, a decree of the court directing
a sale of those lands will be absolutely void. 1 And, generally, it
may be laid down as a rule that if from any cause or in any respect,
the court have not jurisdiction to render the judgment or decree
under which a judicial sale is made, a purchaser at such sale will not
acquire a title that will be safe from the attacks of parties to such
judgment or of those 'claiming under them. 2 Collateral attack in the
sense in which it is here used means, of course, attack in a collateral
proceeding by some one who is bound by the judgment, either as
party or privy, such as the defendant himself, his heirs and assigns.
These cannot maintain ejectment against the purchaser or his assigns
unless the proceedings were absolutely void for want of jurisdic-
tion. 8 But the title of a purchaser at a judicial sale may always be
void, though they were errors for which the judgment might be reversed. Such
proceedings are essentially in rem ; the judgment or decree binds nothing but
the property levied upon, and the court acquires jurisdiction by an actual levy,
notwithstanding the defective service of process on the defendant. In Ohio
several cases decide that a statutory proceeding for the sale of a decedent's
lands for the payment of his debts is essentially in rem, and that, though the
heir was required to be made a party to the proceeding, the failure to serve
process on him did not oust the court of its jurisdiction and invalidate the title of
a purchaser. Sheldon v. Newton, 3 Ohio St. 494, 506, citing Robb v. Irwin, 15
Ohio, 689; Snevely v. Lowe, 18 Ohio, 368. An attachment against a non-resi-
dent is a proceeding in rem, and after the return of the officer "levied on
the property of the defendant" the jurisdiction has fully attached, and it
becomes a cause in court. Sutherland v. De Leon, 1 Tex. 250; 46 Am. Dec. 100.
The principle established by the case of Cooper v. Reynolds, 10 Wall. (U. S.)
308, and stated in the text does not seem to have been recognized in all of the
States. Thus in New York it has been held that a judgment founded on an affi-
davit for an order of publication against a non-resident which fails to state that
the defendant could not be found within the State "after due diligence" is void
for want of jurisdiction, and that a purchaser thereunder acquires no title.
McCracken v. Flanagan. 127 N. Y. 493; 141 N. Y. 174; 36 N. E. Rep. 10.
1 As was held in Contee v.. Lyons, 19 D. C. 207.
'See cases cited post, "Doubtful Title," ch. 31, 297, notes; Stansbury v.
Inglehart, 20 Dist. Col. 134; Frost v. Atwood, 51 Mich. 360; Calvert v. Ash.
47 W. Va. 480; 35 S. E. 887. A sheriff's deed under a judgment void on its
face for want of jurisdiction does not even make a cloud on the title which
will sustain a bill quia timet. Holland v. Johnson, 80 Mo. 34. A purchaser
at an execution sale under a void judgment for want of service of process
acquires no title. Roberts v. Stowers, 7 Bush (Ky.), 295.
" It is hardly necessary to say here that an independent action or proceeding by
a party to a judgement, which has for its sole object the vacation of the judgment.
96
MARKETABLE TITLE TO REAL ESTATE.
overthrown by one not a party or privy to such proceedings, who
can show a better title in himself ; that is, a title paramount to that
which passed under the judgment or decree of the court. A
stranger to the record, however, cannot, of course, avail himself of
want of jurisdiction on the part of the court, or of any error or
irregularity in the proceedings, whether they render the judgment
absolutely void or voidable only. 1
Jurisdiction of the person consists in power over the person of
the defendant, obtained by the service of process or by the volun-
tary appearance of the defendant in the progress of the cause. If
the court have not jurisdiction of the cause upon other grounds, a
judgment founded upon process, insufficient of itself, or insufficiently
executed, to bring the defendant into court, is absolutely void. 2
upon the ground of fraud, surprise or mistake, is not a "collateral attack " in the
sense in which that expression is generally used. That is a direct attack, and is
always admissible; otherwise every defendant would be at the mercy of fraudu-
lent officers of the court colluding with the plaintiff to deprive him of his prop-
erty. Thus an officer's return of service of process may be impeached in a
direct proceeding after judgment. Black on Judgments, 288, and cases there
cited. The writer does not remember to have seen in any of the books a definition
of the terms "direct " and " collateral " attack as used in reference to the validity
of judgments, probably because they have been considered too plain to require
definition. " Direct attack " would seem to consist in some proceeding, either
by motion, petition, appeal or writ of error in the suit in which the judgment
was rendered, or to consist in a separate suit, usually in equity, between the
original parties or their privies, having for its sole object the reversal or vacation
of such judgment either for error, fraud, mistake or like fatality in the rendition
or procuration of the judgment. " Collateral attack " would seem to consist in
an attempt to show the invalidity of the judgment in any proceeding between
the parties or their privies, which does not have for its sole object the vacation of
the judgment, such, for example, as an action against the purchaser for the pur-
chase money, ejectment against the purchaser, trespass to try title and the like;
or an action by the purchaser to recover the possession, or to recover back the
purchase money or the like. This seems sufficiently clear. It has been held,
however, that ejectment by the execution debtor against a purchaser under the
execution upon the ground that the sale and proceedings thereafter are void is a
direct and not a collateral attack. Gue v. Jones, 25 Neb. 634; 41 N. W. Rep. 555.
If this decision be sound, the question what is and what is not "direct" or " col-
lateral " attack will be involved in much obscurity and doubt.
1 Swiggart v. Harber, 4 Scam. (111.) 364; 39 Am. Dec. 418.
'Mercantile Trust Co. v. So. Park Res. Co., (Ky.) 22 S. W. Rep. 314. An
invalid order of publication against a non-resident heir is a fatal objection to a
title obtained through proceedings in which such order was made. Menifee v.
CAVEAT EMPTOR. 97
Jurisdiction of the subject-matter consists in the right to enter-
tain the suit, having regard to the nature of the cause of action and
of the relief sought. Thus, if the court should take jurisdiction of
a cause in plain violation of a statute which prescribes and limits its
jurisdiction, it is conceived that a judgment therein rendered would
be absolutely void, and a title dependent thereon, such as a pur-
chaser could not be required to take. 1 A court may be said to have
jurisdiction of the subject-matter of a suit when it has the right to
proceed to determine the controversy or question in issue between
the parties, or grant the relief prayed. 2 If the judgment or decree
be entirely aside from the issue raised in the record, it will be abso-
lutely void and treated as a nullity in a collateral proceeding. 3 To
this subdivision, namely, want of jurisdiction of the subject-matter
must, for want of a more precise classification, be referred those
cases in which a court has transcended its powers in any respect
other than a mere misconception of the law, or misapplication of
the law to the facts. Thus, where the clerk of a County Court has
Jiarye, (Va.) 4 S. E. Rep. 726. If the court take jurisdiction of a party to the
suit as being of age, he cannot attack the proceedings collaterally and show that
he was an infant. He must assert his rights in some direct proceeding to vacate
the judgment or decree that has been rendered against him. England v. Garner,
90 N. Car. 197.
1 An example of a title under a judicial sale void for want of jurisdiction of the
subject-matter is found in the case of Stansbury v. Inglehart, 20 D. C. 134. The
statute law of the District of Columbia permits a Chancery Court to sell the lands
of an infant held jointly or in common with another. It was held that this did
not extend to a case in which the interest of the adult tenant was in possession
and that of the infant in expectancy, and that, therefore, the court had no juris-
diction to decree the sale of an infant's estate in remainder, and that a purchaser
thereunder acquired no title.
* Language of the court in Hope v. Blair, 105 Mo. 85; 16 S. W. Rep. 595.
*This rule is illustrated by the case of Munday v. Vail, 34 N. J. Law, 418.
This was a suit in ejectment against a purchaser at a judicial sale, in a suit to set
aside a voluntary conveyance. The only relief prayed in the last-named suit was
that the conveyance should be declared void as to the plaintiff, but the decree-
went further and declared the deed to be void even as between the parties thereto.
This decree was declared a nullity and judgment was entered for the plaintiff in
ejectment. So, also, in Corwith v. Grifflng, 21 Barb. (N. Y.) 9, where a decree
confirming a report of commissioners in partition, who had in their allotment
embraced lands not embraced in the pleadings, was held null and void as to such
lands.
13
98 MABKETABLE TITLE TO REAL ESTATE.
made a defective certificate of acknowledgment of a deed by a mar-
ried woman, it was held that the court had no power or jurisdiction
to make an order directing the clerk to execute a second certificate,
properly setting forth the facts, and that a title depending upon
such certificate could not be sustained. 1 Care must be taken, how-
ever, to distinguish between cases in which the court errs in assum-
ing jurisdiction, and those in which the error consists in a misappli-
cation of the law to the facts of the case.
Jurisdiction of the res consists of power over property, real or
personal, sought to be disposed of by judgment or decree in the
cause. If the proceeding is essentially in rem, jurisdiction is
obtained by a seizure under process of the court, whereby the prop-
erty is held to abide such order as the court may make concerning
it. 8 It is also necessary that property sought to be made the sub-
ject of a decree or judgment of the court shall lie within the terri-
torial jurisdiction of the court. A court of one State has no power
to decree a sale of lands lying in another State, and the title of a
purchaser derived through such a sale is bad. 3 In some cases it has
been said that upon collateral attack of a judgment, if the record
does not show the necessary jurisdictional facts, their existence will
be presumed, in the absence of evidence to the contrary.* It may
be doubted whether this is an accurate statement of the rule ; the
admission of extraneous evidence to show the non-existence of
1 Elliott v. Piersol, 1 Pet. (U. 8.) 328. The proceeding in which the court
directed the amended certificate to be made appears to have been altogether
ex parte. The order was made on the motion of the purchaser about ten years
after the original certificate was made. If the proceeding had been inter partet
and the power of the court to make the order had been disputed, it would be
difficult to distinguish the case from one in which the court errs in compelling a
married woman to execute a deed, or from any other case in which it errs in
decreeing that a particular thing be done. To the principle stated in the text is
to be referred also the case of Driggers v. Cassaday, 71 Ala. 529, where it was
held that a probate court had no jurisdiction to order a sale of lands for delin-
quent taxes.
1 Black on Judgments, 271, 273, 276; Thompson v. Tolmie, 2 Pet. (U. 8.)
157; Grignon v. Astor, 2 How. (U. 8.) 319; Florentine v. Barton, 2 Wall. (U. 8.)
308.
Rorer Jud. Sales, 58; Contee v. Lyons, 19 D. C. 207.
4 Evans v. Ashby, 22 Ind. 15. The leading case of Thompson v. Tolmie, 2
Pet. (U. 8.) 157, decides, as we have seen, that extraneous evidence cannot be
received to show want of jurisdiction.
CAVEAT EMPTOK. 99
jurisdictional facts would in effect neutralize the rule that where
the record is silent as to such facts their existence will be conclu-
sively presumed. Evidence dehors the record cannot be admitted
to show want of jurisdiction.
Objections to title founded upon want of jurisdiction in a court
to enter a judgment or decree under which the title is derived are
materially limited and restricted by two rules of law, which it
is important to bear in mind. The first rule is, that if jurisdiction
do not affirmatively appear from the record itself, evidence dehors
the record, that is, extraneous evidence, will not be received to show
that in fact the court had no jurisdiction. It will be conclusively
presumed, except where the record itself shows the contrary, that
there was a concurrence of all things necessary to give the court
jurisdiction according to the maxim omnia praemmuntur rite et
solenniter esse acta. 1 Especially will such a presumption be made
'Black on Judgments, 271, 273, 276. Thompson v. Tolmie, 2 Pet. (U. 8.)
157; Grignon v. Astor, 2 How. (U. S.) 319; Parker v. Kane, 22 How. (U. 8.) 1;
4 Wis. 1; 65 Am. Dec. 483. Duncanson v. Hanson, 3 App. Cas. (D. C.) 361.
Menefee v. Marye, (Va.) 4 S. E. Rep. 726. Where a statute required that
notice of levy of an execution on land should be served on the execution
defendant five days before the term of court to which the execution must be
returned, it was held that it will be conclusively presumed from rendition of the
judgment that such notice had been given. Burke v. Elliot, 4 Ired. L. (N.
C.) 355; 43 Am. Dec. 142. Where the record shows that process was ordered
against infant defendants, and that at a following term a guardian ad litem
was appointed, it will be presumed, on collateral attack, that such defend-
ants were brought regularly into court, though no actual service of pro-
cess on them appears. Thompson v. Doe, 8 Blackf. (Ind.) 336; Brack-
enridge v. Dawson, 7 Ind. 383. See, also, Homer v. State Bank, 1 Ind. 130: 48
Am. Dec. 355. A title under a decree in a suit for specific performance against
infant defendants will not be declared invalid in a collateral proceeding on the
ground that the record does not show notice to the infants, they having been rep-
resented by guardian ad litem. Horner v. State Bank, 1 Ind. 130; 48 Am. Dec. 355.
If the record shows that a guardian ad litem was appointed for infant defendants
"on motion," but does not show on whose motion, it will be presumed that the
infants were present in court when the motion was made, and that they had
notice of the proceeding. Thompson v. Hart, 8 Blackf. (Ind.) 336; Horner v.
State Bank, 1 Ind. 180; 48 Am. Dec. 355; Waltz v. Barroway, 25 Ind. 383. The
fact that the record of a sci.fa. against infant heirs to revive a judgment against
the ancestor does not show the appointment of a guardian ad litem will not invali-
date the title of a purchaser under the judgment. Evans v. Ashby. 23 Ind. 15.
But where it affirmatively appears from the record, as by the statement con-
300 MARKETABLE TITLE TO REAL ESTATE.
when the record is very ancient. 1 The second rule is that the
recitals of fact in the record from which the jurisdiction of the court
is seen, or a recital of jurisdictional facts contained in the judgment
itself, cannot be contradicted or shown to be untrue in any collat-
eral proceeding. The record imports absolute verity.* Thus, to
illustrate the first rule, in a case in which the law provided that the
lands of a decedent should not be sold for partition until the eldest
child had arrived at majority, the court refused to permit one who
tained in an agreed case, that the infants were not served with process, had BO
notice of the proceedings, and were not in court during their pendency, the
judgment will be held void on collateral attack. Doe v. Anderson, 5 Ind. 38.
In Ford v. Walsworth, 15 Wend. (N. Y.) 449 ? it was held that a title under a
sale, in pursuance of a surrogate's order, might be collaterally attacked for want
of jurisdiction if it did not appear that an account of the personal estate and of
the debts of the decedent was presented to the surrogate, showing a necessity for
the eale, even though the presentment of the account is recited in the order of
sale. Regarding a Surrogate's Court as a court of general and unlimited juris-
diction in probate matters, it is not easy to reconcile this decision with the rule
that, except where the record shows the contrary, it will be presumed that every-
thing necessary to give the court jurisdiction had transpired at the time the order,
judgment or decree was made.
1 Shackelford v. Miller, 9 Dana (Ky.), 273; Baker v. Coe. 20 Tex. 428.
* Black on Judgments (2d ed.), 276; Grignon v. Astor, 2 How. (U. S.) tit,
340, leading case. In Dorsey v. Kendall, 8 Bush (Ky.), 294. 298, it was held that
n judgment, upon service by publication, could not be collaterally attacked upo
the ground that the order of publication had been obtained upon a false affidavit
or a false return of the sheriff. A judgment subjecting the lands of a non-resi-
dent to the payment of delinquent taxes, which, following the form prescribed
by statute, recites that " notice has been given as required by law," cannot be
attacked in a collateral proceeding, though the statute expressly provides that
the taxpayer shall be notified by publication in a newspaper in the county where
the land lies. Driggs v. Cassaday. 71 Ala. 529. It is to be borne in mind that
while recitals ia the record cannot be contradicted in a collateral proceeding, they
are net conclusive upon the parties if founded in fraud or mistake. Thus, if the
officer return process as " executed on the defendant A.," and such return be
fraudulent, in that service was never made, or erroneous, in that the officer mis-
took another person for A., the defendant A. cannot show these facts in a col-
lateral proceeding, such as ejectment by or against a purchaser at a sale conse-
quent upon such return ; but he can by some direct proceeding, either by motion,
petition or other proceeding in the cause in which the sale was made, if still pend-
ing, or, if not pending, then by an independent action or suit on his part against all
persons interested, vacate the judgment, orders and subsequent proceedings in
the cause by which he is deprived of his rights.
CAVEAT EMPTOI?. 101
was bound by a decree for sale in a suit for partition, to show that
the eldest child had not reached full age when the decree was
entered. 1 To illustrate the second rule, if the return indorsed by
an officer on original process in a suit show service thereof on the
defendant, evidence will not be received in a collateral proceeding
to show that in fact the return is false and that process was never
served on the defendant, nor that the process was not served at the
time stated in the return, nor that the person making the return
was not the proper person to serve the process. 2
It should be remarked here that the rule as to presumption of
jurisdictional facts, where the records do not disclose them, applies
only to the judgments of a court of original, general jurisdiction.
No such presumption arises in favor of the judgment of a court of
special or limited jurisdiction ; the proceedings of such a court must
set forth the facts and evidence on which the judgment is rendered. 3
What is and what is not a court of general jurisdiction is a question
which cannot be inquired into here. It must suffice to say that, as
a general rule, the Superior Courts in each State, as distinguished
from those courts in which the pleadings are oral, such as a Justice's
Court, are courts of general or unlimited jurisdiction ; in other
words, courts in which the great mass of civil rights are enforceable
in the first instance. 4
1 Thompson v. Tolmie, 2 Pet. (U. 8.) 157.
1 Burke v. Elliot, 4 Ired. L. (N. C.) 355, 359; 43 Am. Dec. 142.
'Grignon v. Astor, 2 How. Pr. (U. S.) 319, 341, a leading case. In Young v.
Lorain, 11 111. 624, 636; 52 Am. Dec. 463, it was held that the Circuit Court in
that State, while a court of general common-law and chancery jurisdiction, was
a court of special or limited j urisdiction in respect to its statutory power to order
the sale of infant's lands, and that a proceeding for such sale which did not show
upon its face that all the personal estate of the infant had been exhausted, that
being by statute a condition precedent to the power to order the sale, was abso-
lutely void and afforded no protection to the purchaser. And in Strouse v. Dreu-
nan, 41 Mo. 289, it was held that the statutory jurisdiction of a County Court to
order the sale of an infant's lands for his education and support was special and
limited, and that, where the record in such a case failed to show that the sale was
made upon due appraisement, and that other statutory requisites had been com-
plied with, an order confirming the sale was absolutely void.
4 In this connection the following observation from Mr. Black's excellent work
on Judgments will be found useful ( 283): " In all the States there are courts
having original jurisdiction of every (or nearly every) species of action or pro-
ceeding known to the common law, unlimited in respect to the amount or the
102
MARKETABLE TITLE TO REAL ESTATE.
The question, " When does the fact that the court had no juris-
diction appear upon the face of the record ? " naturally arises here,
and presents some difficulty when considered in connection with
the rule that in a case in which jurisdictional facts do not appear
from the record, it will be presumed that the court was satisfied of
the existence of those facts before entering a judgment or decree.
Suppose a plaintiff in partition sets out A., B. and himself as
owners of the property to be divided, but fails to make B. a party
defendant, and process issues only against A. It is plain that a
decree in the cause directing a sale of the premises would be abso-
lutely void as to B., and a purchaser would acquire no title to his
interest. Suppose, however, that B. was made a party and that
process issued against him, but the record failed to show whether or
not the process was ever served. Will it be presumed upon collat-
eral attack that B. was served with process, and that such fact was
made to appear to the court before judgment was entered ? Does
such a case stand upon the same footing as one in which the court
having no jurisdiction over the subject-matter, except upon a certain
contingency, such, for example, as the arrival of a party in interest
at majority, a court in which the judgment is attacked will presume
that such contingency had transpired and that the court of first
instance was advised thereof before judgment was entered ? It is
conceived that no such presumption would be made in favor of the
judgment or decree, and that the rule that the existence of juris-
dictional facts will be presumed does not apply in cases in which it
is the practice of the courts to enter judgment only upon docu-
mentary evidence, such as becomes a part of the record, that juris-
diction had been acquired ;* nor in any case in which it is provided
character of the controversy. And these are unquestionably 'superior' courts
within the meaning of the rule. And the same is true of courts possessing gen-
eral equity powers. In most of the States there are certain tribunals whose
authority is wholly derived from statutes, who are authorized to take cognizance
only of a particular class of actions or proceedings, or to act only in certain speci-
fied circumstances, whose course of procedure is precisely marked out, and whose
minutes or memorials are not dignified with the character of a record. And these
are undoubtedly 'inferior' courts within the meaning of the rule."
1 See Given v. McCarroll, 1 Sm. & M. (Miss.) 351. Laughman v. Thompson, 6
Sm. & M. (Miss.) 259. Burke v. Elliott, 4 Ired. L. (N. C.) 355, 358; 42 Am. Dec.
142, where it was said that a judgment against one not a party is void, and that
CAVEAT EMPTOR. 103
by statute that the judgment roll shall show service on the defend-
ant where judgment by default is rendered, 1 nor, generally, where,
ever it is provided that the record shall show certain jurisdictional
facts. 2
It follows from the foregoing principles that the only case, apart
from fraud, mistake or surprise, in which a judgment or decree can
be declared void in a collateral proceeding is one in which the fact
that the court had no jurisdiction of the cause appears upon the face
of the proceedings in which the judgment or decree was rendered.
In other words, a judgment will be void on its face only where the
record discloses the jurisdictional facts, and the facts so disclosed
are plainly insufficient to have conferred jurisdiction. 8 If this rule
be sound, it is plain that the cases in which objection to the title
may be successfully made on the ground of defective judicial pro-
ceedings through which the title is derived, will be reduced to a
very narrow compass. This result is not to be regretted. The
security of titles to real estate under judgments and decrees of court
is a matter of the gravest importance to the public. Besides, the
it can appear that he is a party only when the record states an appearance, or the
official service of process on the person or his property. Citing Armstrong v.
Harsham, 1 Dev. (N. C.) 187; Irbey v. Wilson, 1 Dev. & Bat. Eq. (N. C.) 568,
and Skinner v. Moore, 2 Dev. & Bat. (N. C.) 138. In Campbell v. McCahan,
41 111. 45, it was held that a deeree against a non-resident, founded upon an
affidavit for an order of publication which failed to show upon its face that
defendant was a non-resident, was absolutely void and open to collateral attack.
Where it was provided by statute that an order for the sale of an infant's lands
should not be void for irregularity in the proceedings provided certain sub-
stantial facts appeared, it was held that these facts must, on collateral attack,
appear from the record or be shown by extraneous proof to exist, and that the
court could not presume that they had been made to appear to the court granting
the order. Cooper v. Sunderland, 3 Iowa, 114; 66 Am. Dec. 52. In Bannister
y. Higginson, 15 Me. 73, it was held that if an officer's return of a levy of an attach-
ment on land do not show by whom the appraisers of the land were chosen, the
proceedings would be insufficient to pass the title. In Tederall v. Bouknight, 25
So. Car. 275, it was intimated that that if the record showed that a " summons"
had been issued against an infant defendant the court, on collateral attack, might
presume that it had been served, though actual service did not appear from the
record.
1 Hyde v. Redding, 74 Cal. 493, 501; 16 Pac. Rep. 380.
* Thornton v. Mulquinne, 12 lo. 549; Babbitt v. Doe, 4 Ind. 355, temble.
1 Black on Judgments, 278.
104 MARKETABLE TITLE TO REAL ESTATE.
rule destroys a great source of frivolous objections to title, and
materially lessens the labors of those whose duty it is to examine
and pass upon the validity of titles. The foregoing rules may be
regarded as established by the preponderance of judicial decision in
America. But they have not passed without dissent, and decisions
in conflict with the principles upon which they have been rested
may be found in several of the States. An exhaustive considera-
tion of this subject is beyond the scope of this work. The student
will find the numerous cases in point collected in a recent work
upon judgments, in which the whole subject of collateral attack is
philosophically and perspicuously treated. 1
The importance of these rules cannot be overestimated. If a title
derived through a judicial sale may be overturned by matters in
pais affecting the jurisdiction of the court, concerning which the
most cautious purchaser cannot inform himself, there would be no
safety in purchasing under a judgment or decree, and such titles
would be held in as slight estimation as those dependent upon tax
sales. If the record shows affirmatively want of jurisdiction in the
court to render the judgment or decree, the purchaser can, by
examination of the record, advise himself of that fact. But if it
should be required of the purchaser to pursue his inquiries outside
of the record, and satisfy himself as to the truth and adequacy
thereof by the statements of witnesses, it is plain that the examina-
tion of a title under a judicial sale would involve a great outlay of
time and money, with little assurance of safety in the result, and
would probably prevent the acceptance of such titles, unless the
consideration should be substantially reduced.
51. Title as affected by matters and things occurring
after jurisdiction has attached. It is obvious that a title under a
judicial sale may be declared insufficient upon grounds other than
want of jurisdiction to render the judgment or decree under which
the sale was made. There may be proceedings in a cause which are
no part of the original res judicata, and which are never passed
upon until drawn in question in some subsequent proceeding involv-
ing the title of the purchaser. 2 Such, it is conceived, would be a
conveyance to the purchaser, the sale not having, as yet, been con-
1 1 Black Judgments, ch. 12, p. 297.
'Upson v. Howe, 3 Strobh. (8. C.) 108; 49 Am. Dec. 633.
CAVEAT EMPTOR. 105
firmed. 1 The judgment too may be voidable because the result of
fraud or mistake. And the sale itself and a conveyance in pursu-
ance thereof may confer no rights upon the purchaser because
effected by fraudulent collusion with the officer of the court or in
other ways tainted with fraud. 2 With respect to sales that are void
for want of confirmation, it is to be observed that it is not neces-
sary, according to the weight of authority, that the record shall
show a confirmation of the sale in express terms in order to validate
the title of the purchaser. 8 A decree directing the distribution of
the purchase money arising from the sale or directing that a deed be
made to the purchaser is in effect a confirmation of the sale. 4 Nor
is a report of sale by the officer of the court indispensable to the
validity of the title if it otherwise appears from the record that a
sale was made and that it was confirmed by the court. 5
52. traud as ground for collateral attack. The rights of the
purchaser at a judicial sale, where fraudulent misrepresentations
respecting the title were made, have been already considered in this
work. 6 Fraud which exposes the title of the purchaser to collateral
attack is either fraud in the procuration or rendition of the judg-
ment or decree under which the sale is made, or fraud in the sale
itself. Fraud in the procuration of a judgment always opens the
judgment to collateral attack by a party to the suit. The rule that
fraud vitiates everything applies to judicial records as well as to
private contracts. 7 An illustration of this principle is afforded by
the case of Mitchell v. Kintzer. 8 This was an action of ejectment
against a married woman by one who purchased the premises in dis-
1 See Freeman Void Jud. Sales, 43.
In Singletary v. Carter, 1 Bailey L. (8. C.) 467; 21 Am. Dec. 480, a levy made
by a deputy sheriff under an execution, in which he himself was plaintiff, waa
held void, and a sale and deed in pursuance thereof inoperative to vest title in
the purchaser.
Freeman Void Jud. Sales, 44; Rorer Jud. Sales, 3, 16, 107, 129.
4 Agun v. Shannon, (Mo.) 15 S. W. Rep. 757.
Harrison v. Harrison, 1 Md. Ch. 831.
Ante, 48.
T Fennors Case. Co. Rep. pt. 8. p. 77; Vandever v. Baker, 18 Pa. St. 121, Mtor;
Wilson v. Smith, 22 Grat. (Va.) 493; Lancaster v. Wilson, 27 Qrat. (Va.) 624.
5 Pa. St. 216; 47 Am. Dec. 408. See, also, Rhoads v. Selin, 4 Wash. C. C. (U.
8.) 715.
U
106 MARKETABLE TITLE TO REAL ESTATE.
pute at an execution sale against the husband. The premises con-
sisted of the share of the wife in her deceased father's estate, which
the administrator of that estate, fraudulently colluding with the
husband, returned as having been sold to the husband, there having
been in fact no sale, and no purchase money paid by the husband.
There was nothing on the face of the records of the Orphans'
Court, ordering and confirming the sale, to impeach the validity
thereof ; but, upon the principle that fraud vitiates all acts, judicial
as well as others, judgment was rendered for the wife, the defend-
ant. Generally, it may be said that if a purchaser at a judicial sale
buy with knowledge of fraud in the proceedings anterior to the sale,
he cannot hold the property as against the claims of a party to the
suit who was injured by the fraud. 1 But, of course, a purchaser,
without notice from a purchaser with notice of the fraud, would be
protected.
Fraud in making a judicial sale, other than fraudulent representa-
tions as to the title, exposes it to collateral attack at the suit of the
party injured. 2 It sometimes happens that the officer making the
sale either directly purchases the property himself, or indirectly
through some one whom he has procured to bid. Such a sale is
prima facie fraudulent and conveys no title as against those in
whose behalf the sale was made. So, also, where the officer fraudu-
lently colludes with the purchaser in conducting the sale in such a
manner that the property is sold for less than its value, or the par-
ties in interest otherwise deprived of their rights. 3 It is a fraud
'Morris v. Gentry, 89 N. Car. 248, 252, where the point was obiter; citing,
however, University v. Lassiter, 83 N. Car. 38; Ivey v. McKinnon, 84 N. Car.
651; Sulton v. Schonnald, 86 N. Car. 198; 41 Am. Rep. 455; Gilbert v. James, 86
N. Car. 244.
* Freeman Void Jud. Sales, 40. In Sumner v. Sessions, 94 N. Car. 371, a
distinction was drawn between cases in which the officer selling purchased
directly at his own sale, and those in which he purchased from a purchaser at
his own sale, holding that in the former case the sale is a nullity and open to
collateral attack, and in the latter case that the sale could only be vacated by
some direct proceeding instituted for that purpose. See, also, Rutherford v.
Stamper, 60 Tex. 447; Dodd v. Templeman, 76 Tex. 57; 13 S. W. Rep. 187;
Fisher v. Wood, 65 Tex. 200. McLaurin v. McLaurin, 106 N. C. 331; 10 S. E.
Rep. 1056.
1 Freeman Void Jud. Sales, 40. Patton v. Thompson, 2 Jones (N. Car.), 285;
67 Am, Dec. 222. Even though the purchaser gives a fair price. Lancaster v.
CAVEAT EMPTOR. 107
also if the commissioner or officer making the sale himself purchases
the land ; but a party to the suit, having it in his power to resist the
confirmation of such a sale and failing to do so, will not, after the
lapse of a considerable time, be permitted to file a bill attacking
the sale. 1 It is common to except cases of fraud, mistake and surprise
in laying down the rule that the title of a purchaser at a judicial
sale cannot be overturned by attacking in a collateral proceeding
the judgment under which the sale was made. It is clear that a
judgment founded in fraud or mistake is not conclusive upon the
injured party. But if land be purchased by a party to fraudulent
proceedings under which the sale was had, or by a party to a judg-
ment or decree founded upon mistake, it seems that the sale should
be vacated in some direct proceeding between the parties rather
than by way of collateral attack. 2 It has been so held in a case in
which certain lands were embraced in a decree for sale by mistake. 8
The right of a purchaser at a void judicial sale in a proceeding to
enforce a lien or incumbrance, or to subject property to the pay-
ment of a debt or charge, to be substituted or subrogated to the
benefit of such debt or lien that has been satisfied from the fund
arising from such sale has been frequently declared. 4
Wilson, 27 Grat. (Va.) 624. Merwin v. Smith, 1 Gr. Ch. (N. J.) 182; Hodgson v.
Farrell, 2 McCart. (N. J.) 788. If a purchaser at a judicial sale participates in a
fraud in making the sale that fact may, in a collateral proceeding, be shown in
avoidance of the sale. Griffith v. Bogert. 18 How. (U. S.) 158.
1 Walker v. Ruffner, 32 W. Va. 297; 9 S. E. Rep. 265; Newcomber v. Brooks,
16 W. Va. 32.
England v. Garner, 90 N. Car. 197; Hare v. Holloman, 94 N. Car. 14; Sumner
v. Sessions, 94 N. Car. 871; Syme v. Trice, 96 N. Car. 243; 1 S. E. Rep. 480;
Tyson v. Belcher, 102 N. Car. 112; 9 S. E. Rep. 634.
Jones v. Coffey, 97 N. Car. 347; 2 S. E. Rep. 165. This was an action to
recover lands sold by mistake under decree in a cause to which the now plaintiffs
were parties. The court said: "The plaintiffs contend that if the land they seek
to recover by this action was embraced by and sold under the decree in the action
mentioned, it was so by mistake and misapprehension. It appears that that
action is not yet determined. If so, the plaintiffs ought to seek their remedy if
they have any in it; if it is determined, then by an independent action." Loyd
v. Malone, 23 111. 43; 74 Am. Dec. 179; Keuchenbeiser v. Beckert, 41 111. 172;
Lloyd v. Kirkwood, 112 111. 829, 338; Griswold v. Hicka, (111.) 24 N. E. Rep. 68.
Hudgin v. Hudgin, 6 Grat. (Va.) 320; 52 Am. Dec. 124; Haymond v. Cam-
den, 22 W. Va. 180; Hull v. Hull, (W. Va.) 18 S. E. Rep. 49. In this case the
court, by BRANNON, J., after declaring the rule stated in the text, continued:
108 MARKETABLE TTTT.E TO RFAL ESTATE.
53. SATYRS BY EXECUTOBS AND A DMTTTISTRATOBS. Sale
in pursuance of power in wilL Sales by executors and adminis-
trators are of two kinds : (1) Sales under a power contained
in a decedent's will, and (2) Sales under judicial authority for
the payment of the decedent's debts. Sales of the first kind,
that is, sales in pursuance of a power, do not require judicial
sanction in the first instance, nor confirmation after they have been
made ; the legal title is vested in the executor or administrator by
the will, and his authority to sell is complete as soon as the formal-
ities of the law in respect to probate of the will and qualification of
the personal representative have been complied with, and the con-
tingencies provided for in the will have transpired. 1
It has been broadly stated that the maxim caveat emptor applies
in all of its strictness to sales bv executors and administrators. 8 This
w
is true enough in respect to the validity of legal proceedings whence
the power is derived, and, perhaps, in respect to restrictions or limi-
tations upon the power in the testator's will. But no reason is per-
ceived why, in case the testator himself had no title to the lands, a
purchaser under a power contained in the will, should, while the
contract is executory, be compelled to pay the purchase money with
the certainty of eviction before him. At least, it would seem, that
in such a case the maxim caveat emptor should be confined to cases
in which the defects of title were such as the purchaser might have
discovered by the exercise of ordinary diligence, and that in this
respect a distinction may be made between cases in which the sale
is made under a power and those in which it is made under a judicial
license. This view is supported by the leading case of Garnett v.
Macon, 8 in which a sale of lands was made by an executor under a
power in the will for the payment of debts. It was held that the execu-
tor could not compel specific performance of the contract unless he
"Principles of jtrstice demand this, and courts of equity have raised up this
principle, a being of their creation called ' substitution,' unknown to the common-
law forums, to accomplish the ends of justice, and I know of no more signal
instance to exemplify the disposition as well as the power of equity to adopt
means to accomplish right than this of substitution accorded purchasers under
void proceedings whose money has gone to satisfy liens good against the debtor."
1 Woerner Law of Administration, 464 ; Freeman Void Jud. Sales, 9.
*Woerner Law of Administration 484.
1 2 Brock. (C. C.) 213. Also the case of Altgelt v. Mernitz (Tex. Civ. App.) ,
83 S. W. 891.
CAVEAT EMI'TOR. 109
was able to convey a clear title. The opinion was by Chief Justice
MARSHALL, and there was no adversion to the maxim caveat emptor.
A sale by an administrator or executor, directly or indirectly to
himself, acting under a power in the will, is void. 1 But, of course,
the sale must be vacated by some appropriate proceeding for that
purpose. It has been seen that* such a sale under judicial license is
in some of the States a nullity, absolutely void, and open to col-
lateral attack, while in others a sale by the officer indirectly to him-
self, though fraudulent, must be vacated in some direct proceeding
and cannot be shown in a possessory action by or against the
purchaser. 2 The distinction, for the purposes of this work, is com-
paratively unimportant, for we are here considering defects for
which a purchaser may reject a title ; and, to a purchaser from an
administrator who has made a fraudulent sale to himself, it is imma-
terial whether the title is liable to be attacked in a collateral pro-
ceeding or in a direct proceeding, since in either case, if charged
with notice of the fraud, he would lose the estate.
54. Sales in pursuance of judicial license. The maxim
caveat em/ptor has been rigorously applied in most of the American
States to sales by executors and administrators under judicial
authority, whether in respect to inherent defects in the title or to
those which result from errors and irregularities in the proceedings
whence the authority to sell is derived. The sale, like a tax sale,
is of the title such as it is, good or bad, and the purchaser is conclu-
sively presumed to have purchased with that understanding. 8 This
1 Daviea v. Hughes, (Va.) 11 8. E. Rep. 488.
'Ante, 52.
Woerner Law of Adm. 484; Rorer on Jud. Sales (2d ed.), 476; Freeman
Void Jud. Sales, 48; Schouler on Eire. (2d ed.) 515. Worthington v.
McRoberts, 9 Ala. 297; Corbett v. Dawkins, 54 Ala. 282; Burns v. Hamilton,
33 Ala. 210; 70 Ara. Dec. 570; Boiling v. Jones, 67 Ala. 508. Probate sales,
however, are subject to confirmation by the court in this State. See above cases.
Colbert v. Moore, 64 Ga. 502; Jones v. Warnock, 67 Ga. 484. Bingham v.
Maxey, 15 111. 295; Moore v. Neil, 39 111. 256; 89 Am. Dec. 303; McConnell v.
Smith, 39 111. 279; Wing v. Dodge, 80 111. 564; Tilley v. Bridges, 105 111. 336.
Ripley v. Kepler, 94 Ind. 308. Hale v. Marquette, 69 Iowa. 376. Short v.
Porter. 44 Miss. 533; Hutchins v. Brooks, 31 Miss. 430. Bashore v. Whisler. 3
Watts (Pa.), 490; Fox v. Mensch, 3 W. & 8. (Pa.) 444; King v. Gunnison, 4 Pa.
St. 172; Sackett v. Twining, 18 Pa. St. 199; 57 Am. Dec. 599. Lynch v. Baxter,
4 Tex. 431; 51 Am. Dec. 735; Williams v. McDonald. 13 Tex. 322; Rice v. Burnett,
110 MARKETABLE TITLE TO KEAL ESTATE.
rale has been carried so far that it has even been held that the
administrator is under no obligation to disclose incumbrances on the
estate or defects in the title that are known to him, 1 unless it be a
want of title resulting from his own act or that of the intestate.*
In most of the States it seems that probate sales are not reported
to the court for confirmation, and, therefore, cannot be regarded as
judicial sales. The authority to sell is granted by the court, but
thereafter the court, with respect to the sale, \s,functus ojficii.* But
in other States it seems that such sales are reported to court for
confirmation. 4 Where that is the case, no reason is perceived why
the purchaser should not be permitted to resist confirmation on the
ground that the title is defective, as he may do in the case of an
ordinary judicial sale. A proceeding on behalf of an administrator
to sell the lands of his intestate for distribution on the ground that
it cannot be equitably divided among the heirs, is a proceeding in
rem, and a sale made under a decree in such a case is a judicial sale
to which the doctrine caveat emptor applies. The purchaser buys
at his peril, and if there be no fraud or mistake or ignorance of any
material fact he must pay the purchase money after confirmation of
the sale, even though he gets no title. 5 If the purchaser from an
39 Tex. 177. A harsh application of the rule stated in the text will be found in the
case of Boiling v. Jones, 67 Ala. 508, where a widow, who purchased the lands
of her deceased husband at a sale by his administrator, was compelled to pay for
a part to which she was entitled as a homestead. STONE, J. , dissenting. The
rule applies whether the sale by the administrator be public or private. Kirk-
land v. Wade, 61 Ga. 478.
1 Thompson v. Hunger, 15 Tex. 523; 65 Am. Dec. 176; Hawpe v. Smith, 25
Tex. Supp. 448. See, also, Loudon v. Robertson, 5 Bl. (Ind.) 276.
*In Walton v. Reager, 20 Tex. 103, 110, it was said that if the administrator
should sell the land a second time without disclosing the prior sale it would be a
fraud 'upon the purchaser and would vitiate the second sale. The court added
that it would be equally a fraud upon a purchaser from the administrator if there
had been a prior sale by the intestate, whether the same was known or unknown
to the administrator, if the purchaser had no knowledge of it, thus withholding
application of the maxim caveat emptor from these cases in which the want of
title springs from the fault or wrongful act of the administrator, and distinguish-
ing between such cases and those in which the title was originally defective.
But see Ward v. Williams, 45 Tex. 617, where this dictum is overruled.
Smith v. Arnold, 5 Mason (U. S.), 414, 420.
4 See Rorer on Jud. Sales, 362; 2 Woerner Am. Law of Admn. 1059.
Qarrettv. Lynch, 45 Ala. 204; Bums v. Hamilton, 83 Ala. 210; 70 Am. Dec. 570.
CAVEAT EMPTOR. Ill
administrator or executor has received a conveyance it is immaterial,
with respect to his asserted right to detain the purchase money on
failure of the title, whether the conveyance was with or without
covenants for title. If the conveyance was with covenants they do
not bind the estate, and consequently the breach of them affords no
counterclaim to an action for the purchase money. 1 And if the
conveyance was without covenants for title the purchaser would, on
general principles, be without relief.
55. Fraud on the part of the representative. Fraud in a
sale by a fiduciary or ministerial officer in representing that the title
is good, or that there are no incumbrances on the property, when he
knows the contrary, has been distinguished from fraudulent collu-
sion by which the sale is effected, or any other fraud, not in respect
to the title, which avoids the sale. Fraudulent misrepresentations
as to the title or as to incumbrances cannot, it has been held in some
cases, entitle the purchaser to detain or recover back the purchase
money from the estate ; they merely give the purchaser a right of
action against the fraudulent vendor in his individual capacity. 2
Other cases hold that the administrator's representations as to the
title are immaterial and irrelevant, and that if the purchaser chooses
to allow himself to be influenced by them, he has no remedy against
the estate, either by way of recovery back or detention of the pur-
chase money. 3 A. fortiori, the purchaser cannot be relieved if the
representation was made in good faith. 4 Nor is the administrator
in any case, it seems, bound to disclose imperfections in the title
and incumbrances upon the estate. Mere silence on the part of the
administrator in these respects will not be construed to be a fraud
on the purchaser. 5 An administrator has no right to agree that the
1 Hale v. Marquette, 69 Iowa, 376; Mitchell v. McMullen, 59 Mo. 252.
1 Colbert v. Moore, 64 Ga. 502; Ga. Code, 2622. Riley v. Kepler, 94 Ind. 308.
Hutchins v. Roberts, 31 Miss. 430. But see Hawpe v. Smith, 25 Tex. Supp. 448,
and Walton v. Reager, 20 Tex. 103.
3 Fox v. Mensch, 3 W. & 8. (Pa.) 444. Even though the representation by the
administrator was fraudulently made. Ripley v. Kepler, 94 Ind. 308.
4 Coombs v. Lane, 17 Tex. 280.
Woerner Am. Law of Admn. 484; Wilson v. White, 2 Dev. Eq. (N. Car.)
29. It seems, however, that the purchaser in this case knew of the objection to
the title, which was an outstanding right of dower. Thompson v. Munger, 15
Tex. 523; 65 Am. Dec. 176; Hawpe v. Smith, 25 Tex. Supp. 448.
112 MARKETABLE TITLE TO HEAL ESTATE.
sale shall be free from incumbrances, 1 and if an incumbrance exist,
the purchaser must take subject thereto. Nor can he refuse to pay
the purchase money on the ground that the title was advertised to
be good. 2 Nor has the administrator a right to represent that the
title is good. He should offer for sale merely such right, title or
interest in the estate as his testator or intestate may have had. 8 If
there is a cloud upon the title he cannot even apply to a court of
equity to remove it. 4 But the better opinion seems to be that if the
administrator fraudulently represent that the title is good f 
