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Full text of "Titles to real property acquired originally and by transfer inter vivos"


U.S. <^ ^<^ l.«>sAn^le.,^i^. 




THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 
GIFT OF 

Harold E. Ives 



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CASES ON THE LAW OF PROPERTY 


VOL. I. 


PERSONAL PROPERTY. 




By Harry A. Bigelow, Professor of Law in the 
University of Chicago. 


VOL. IL 


RIGHTS IN LAND. 




F.y Harry A. Bigelow. 


VOL. in. 


TITLES TO REAL PROPERTY. 




By Italph W. Aigler, Professor of Law in the 

University of Michigan. 


VOL. IV. 


FUTURE INTERESTS. 




By Albert M. Kales, of the Chicago Bar, former- 
ly Professor of Law in Harvard University. 


VOL. V. 


WILLS, DESCENT, AND ADMINISTRA- 




TION. 




By George P. Costigan, Jr., Professor of Law in 
Northwestern University. 



Aig.Prop. (ii) 



CASES ON THE LAW OF PROPERTY 

VOLUME 3 

TITLES TO REAL PROPERTY 

ACQUIRED ORIGINALLY AND BY 
TRANSFER INTER VIVOS 



By RALPH W. AIGLER 

PEOl- ESSOR OF LAW IN THE UNIVEBSITT OF MICHIGAN LAW SCHOOL 



AMERICAN CASEBOOK SERIES 

WILLIAM R. VANCE 

GENERAL EDITOR 



ST. PAUL 

WEST PUBLISHING COMPANY 
1916 






X 



/ 



COPTBIGHT, 1916 
BY 

WEST PUBLISHING COMPANY 
(Aig.Prop.) 



^~ C^^^-* -i'^ J 






To Dean Henry M. Bates 

in Appreciation of His Kindly Interest and Sympathy 

this Book is Dedicated. 



(v)< 



THE AMERICAN CASEBOOK SERIES 



Thk first of the American Casebook Series, Mikell's Cases on Crim- 
inal Law, issued in December, 1908, contained in its preface an able 
argument by Mr. James Brown Scott, the General Editor of the Se- 
ries, in favor of the case method of law teaching. Until 1915 this 
preface appeared in each of the volumes published in the series. 
But the teachers of law have moved onward, and the argument 
that was necessary in 1908 has now become needless. That such 
is the case becomes strikingly manifest to one examining three im- 
portant documents that fittingly mark the progress of legal education 
in America. In 1893 the United States Bureau of Education pub- 
lished a report on Legal Education prepared by the American Bar As- 
sociation's Committee on Legal Education, and manifestly the work 
of that Committee's accomplished chairman, William G. Hammond, 
in which the three methods of teaching law then in vogue — that is, by 
lectures, by text-book, and by selected cases — were described and com- 
mented upon, but without indication of preference. The next report 
of the Bureau of Education dealing with legal education, published 
in 1914, contains these unequivocal statements: 

"To-day the case method forms the principal, if not ithe exclusive, 
method of teaching in nearly all of the stronger law schools of the 
country. Lectures on special subjects are of course still delivered in 
all law schools, and this doubtless always will be the case. But for 
staple instruction in the important branches of common law the case 
has proved itself as the best available material for use practically ev- 
erywhere. * * * The case method is to-day the principal method 
of instruction in the great majority of the schools of this country." 

But the most striking evidence of the present stage of development 
of legal instruction in American Law Schools is to be found in the 
special report, made by Professor Redlich to the Carnegie Foundation 
for the Advancement of Teaching, on "The Case Method in American 
Law Schools." Professor Redlich, of the Faculty of Law in the Uni- 
versity of Vienna, was brought to this country to make a special study 
of methods of legal instruction in the United States from the stand- 
point of one free from those prejudices necessarily engendered in 
American teachers through their relation to the struggle for supremacy 
so long, and at one time so vehemently, waged among the rival sys- 
tems. From this masterly report, so replete with brilliant analysis 
and discriminating comment, the following brief extracts are taken. 
Speaking of the text-book method Professor Redlich says : 

"The principles are laid down in the text-book and in the profes- 
sor's lectures, ready made and neatly rounded, the predigested essence 

(vii) 



VIU PREFACE 

of many Judicial decisions. The pupil has simply to accept them and 
to inscribe them so far as possible in his memory. In this way the 
scientific element of instruction is apparently excluded from the very 
first. Even though the representatives of this instruction certainly do 
regard law as a science — that is to say, as a system of thought, a group- 
ing of concepts to be satisfactorily explained by historical research and 
logical deduction — they are not willing to teach this science, but only 
its results. The inevitable danger which appears to accompany this 
method of teaching is that of developing a mechanical, superficial in- 
struction in abstract maxims, instead of a genuine intellectual probing 
of the subject-matter of the law, fulfilling the requirements of a 
science." 

Turning to the case method Professor Redlich comments as follows : 

"It emphasizes the scientific character of legal thought ; it goes now 
a step further, however, and demands that law, just because it is a 
science, must also be taught scientifically. From this point of view it 
very properly rejects the elementary school* type of existing legal edu- 
cation as inadequate to develop the specific legal mode of thinking, as 
inadequate to make the basis, the logical foundation, of the separate 
legal principles really intelligible to the students. Consequently, as the 
method was developed, it laid the main emphasis upon precisely that 
aspect of the training which the older text-book school entirely neg- 
lected — the training of the student in intellectual independence, in in- 
dividual thinking, in digging out the principles through penetrating 
analysis of the material found within separate cases ; material which 
contains, all mixed in with one another, both the facts, as life creates 
them, which generate the law, and at the same time rules of the law 
itself, component parts of the general system. In the fact that, as has 
been said before, it has actually accomplished this purpose, lies the 
great success of the case method. For it really teaches the pupil to 
think in the way that any practical lawyer — whether dealing with writ- 
ten or with unwritten law — ought to and has to think. It prepares the 
student in precisely the way which, in a country of case law, leads to 
full powers of legal understanding and legal acumen; that is to say, 
by making the law pupil familiar with the law through incessant prac- 
tice in the analysis of law cases, where the concepts, principles, and 
rules of Anglo-American law are recorded, not as dry abstractions, but 
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating, 
social and economic life of man. Thus in the modern American law 
school professional practice is preceded by a genuine course of study, 
the methods of which are perfectly adapted to the nature of the com- 
mon law." 

The general purpose and scope of this series were clearly stated in 
the original announcement: 

"The General Editor takes pleasure in announcing a series of schol- 
arly casebooks, prepared with special reference to the needs and limi- 



PREFACE IX 

tations of the classroom, on the fundamental subjects of legal educa- 
tion, which, through a judicious rearrangement of emphasis, shall pro- 
vide adequate training combined with a thorough knowledge of the 
general principles of the subject. The collection will develop the law 
historically and scientifically; English cases will give the origin and 
development of the law in England; American cases will trace its ex- 
pansion and modification in America ; notes and annotations will sug- 
gest phases omitted in the printed case. Cumulative references will be 
avoided, for the footnote may not hope to rival the digest. The law 
will thus be presented as an organic growth, and the necessary con- 
nection between the past and the present will be obvious. 

"The importance and difficulty of the subject as well as the time that 
can properly be devoted to it will be carefully considered so that each 
book may be completed within the time allotted to the particular sub- 
ject. * * * If it be granted that all, or nearly all, the studies re- 
quired for admission to the bar should be studied in course by every 
student — and the soundness of this contention can hardly be seriously 
doubted — it follows necessarily that the preparation and publication of 
collections of cases exactly adapted to the purpose would be a genuine, 
and by no means unimportant service to the cause of legal education. 
And this result can best be obtained by the preparation of a systematic 
series of casebooks constructed upon a uniform plan under the super- 
vision of an editor in chief. * * * 

"The following subjects are deemed essential in that a knowledge of 
them (with the exception of International Law and General Juris- 
prudence) is almost universally required for admission to the bar: 

Administrative Eaw, Equity Pleading. 

Agency. Evidence. 

Bailments. Insurance. 

Bills and Notes. International Law. 

Carriers. Jurisprudence. 

Code Pleading. Legal Ethics. 

Common-Law Pleading. Partnership. 

Conflict of Laws. Personal Property. 

Constitutional Law. Public Corporations. 

Contracts. Quasi Contracts. 

Corporations. Real Property. 

Criminal Law. Sales. 

Criminal Procedure. Suretyship. 

Damages. Torts. 

Domestic Relations. Trusts. 

Equity. Wills and Administration, 

"International Law is included in the list of essentials from its in- 
trinsic importance in our system of law. As its principles are simple 
in comparison with municipal law, as their application is less technical, 



X pul:facb 

and as the cases are g-enerally interesting, it is thought that the book 
may be larger than otherwise would be the case. 

"The preparation of the casebooks has been intrusted to experienced 
and well-known teachers of the various subjects included, so that the 
experience of the classroom and the needs of the students will furnish 
a sound basis of selection." 

Since this announcement of the Series was first made there have 
been published books on the following subjects: 

Administrative Laiv. By Ernst Freund, Professor of Law in the 
University of Chicago. 

Agency. By Edwin C. Goddard, Professor of Law in the University 
of Michigan. 

Bills and Notes. By Howard L. Smith, Professor of Law in the Uni- 
versity of Wisconsin, and Underbill Moore, Professor of Law in 
Columbia University. 

Carriers. By Frederick Green, Professor of Law in the University of 
Illinois. 

Conflict of Lazvs. By Ernest G. Lorenzen, Professor of Law in 
Yale University. 

Constitutional Law. By James Parker Hall, Dean of the Faculty of 
Law in the University of Chicago. 

Contracts. By Arthur L. Corbin, Professor of Law in Yale University. 

Corporations. By Harry S. Richards, Dean of the Faculty of Law in 
the University of Wisconsin. 

Criminal Law. By William E. Mikcll, Dean of the Faculty of Law in 
the University of Pennsylvania. 

Criminal Procedure. By William E. Mikell, Pean of the Faculty of 
Law in the University of Pennsylvania. 

Damages. By Floyd R. Mechem, Professor of Law in the University 
of Chicago, and Barry Gilbert, of the Chicago Bar. 

Equity. By George H. Boke, Professor of Law in the University of 
Oklahoma. 

Evidence. By Edward W. Hinton, Professor of Law in the Universi- 
ty of Chicago. 

Insurance. By William R. Vance, Professor of Law in Yale Uni- 
versity. 

International Law. By James Brown Scott, Professor of International 
Law in Johns Hopkins University. 

Legal Ethics, Cases and Other Authorities on. By George P. Costigan,. 
Jr., Professor of Law in Northwestern University. 

Partnership. By Eugene A. Gilmore, Professor of Law in the Uni- 
versity of Wisconsin, 



PREFACB XI 

Persons (including Marriage and Divorce). By Albert M. Kales, of 

the Chicago Bar, and Chester G. \'ernier, Professor of Law in 

Stanford University. 
Pleading (Common Law). By Clarke B. Whittier, Professor of Law 

in Stanford University, and Edmund M. Morgan, Professor of 

Law in Yale University. 
Property (Titles to Real Property). By Ralph W. Aigler, Professor 

of Law in the University of Michigan. 
Property (Personal). By Harry A. Bigelow, Professor of Law in the 

University of Chicago. 
Property (Rights in Land). By Harry A. Bigelow, Professor of 

Law in the University of Chicago. 
Property (Wills, Descent, and Administration). By George P. Costi- 

gan, Jr., Professor of Law in Xorthwestern University. 
Property (Future Interests). By Albert M. Kales, of the Chicago 

Bar. 
Quasi Contracts. By Edward S. Thurston, Professor of I^aw in Yale 

University. 
Sales. By Frederic C. Woodward, Professor of Law in the University 

of Chicago. 
Suretyship. By Crawford D. Hening, formerly Professor of Law 

in the University of Pennsylvania. 
Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the 

University of Indiana. 
Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer- 
sity of New York. 

It is earnestly hoped and believed that the books thus far published 
in this series, with the sincere purpose of furthering scientific training 
in the law, have not been without their influence in bringing about a 
fuller understanding and a wider use of the case method. 

William R. Vance, 

General Editor. 
June, 1921, 



AUTHOR'S PREFATORY NOTE 



Many law teachers have felt that Titles should be the basis of the 
beginning course in Property. Although this volume appears as num- 
ber tliree in a series of casebooks covering the law of Property, it is 
believed that the subject-matter of the volume, with possibly some 
shifts in order of the topics, is such that it may well be used in that 
way. 

That most of the topics taken up in this volume are appropriately 
considered under the head of Titles there cannot be much question. 
A word of explanation as to the editor's plan may perhaps dispose of 
any question that may arise as to why certain matters were included 
here. It may be suggested, for instance, that the matter of Estates 
should not be gone into to the extent to which it is herein considered. 
It would be expected, however, that in a book on Titles there would 
be a treatment of the important and troublesome matter of the extent 
of the interest acquired or transferred. It has seemed wise not to 
limit here the discussion of Estates to their creation, but to take up 
the entire subject in the one connection and dispose of it, excluding, 
of course, the detailed consideration of Future Estates and kindred 
topics, treated elsewhere. In fact, throughout, the plan has been to 
place a topic where primarily it would seem to belong, for pedagogic 
or other reasons, and then dispose of it once for all. 

In the treatment of Uses before the Statute of Uses the editor has 
frankly abandoned the case method as being unsuited to the accom- 
plishment of the desired end, and has printed a very brief statement, 
which may serve as an introduction to a more complete discussion 
by the instructor. The e ditor has vet to find a student who can gathe r 
an y coherent ideas as to Uses before the Statute from the fragmentary 
extract s._fr om secondary authorities printed in volume 1 of Gray 's 
Cases., And this seems quite commonly to have been the experience 
of other teachers of the law of Real Property. 

The editor desires, however, upon this occasion, to express his ap- 
preciation of and admiration for Gray's Cases on Property. Probably 
no man in the United States had so large an influence upon our law 
of Property as has Professor Gray, and the collection of cases which 
bears his name has played no inconsiderable part in exerting that in- 
fluence. 

The editor acknowledges his indebtedness to Mr. Grover C. Gris- 
more, Instructor in Law in the University of Michigan Law School, 
for assistance in the preparation of this volume. 

Ralph W. Aigler. 

Ann Arbor, Mich., May 1, 1916. 

(xiii)* 



TABLE OF CONTENTS 



PART I 
Original Titles 

CHAPTER I 

Section PossBSSORT Titles Page 

1. Seisin and Disseisin 1 

Effects of Possession H 

Lapse of Time W 

Adverse Possession 43 

Constructive Adverse Possession 81 

6. Disabilities , i 91 

CHAPTER II 
Peescbiption .... .^5rf:i.'. .<V^. .-^vt/'v -"^^-f^ • ^'Pf-r^^v^ 9^ 

' CHAPTER III 
Accretion 140 



PART II 
Derivative Titles 

ch.apter i 

Mode of Conveyance 

1. At Common Law ■. 156 

I. Feoffment 156 

II. Fine 160 

III, Common Recovery 160 

IV. Lease 161 

V. Exchange 161 

VI. Partition 162 

VII. Grant 162 

VIIL Dedication 163 

IX. Release 187 

X. Confirmation IBS 

XL Surrender 188 

XII. Assignment 231 

XIII. Defeasance 231 

XIV. Devise 232 

2. Under Statute of Uses 232 

I. Uses Before Statute of Uses 232 

11. Statute of Uses 236 

III. Uses after Statute of Uses 239 

Aig.Prop. (xv) 



7t 



XVI TABLE OF CONTENTS 

Section Page 

2. Under Statute of Uses (Continued) 

(A) Uses Raised in Connection with Common Law Con- 

veyance 239 

(B) Uses Raised Independently of a Common Law Con- 

veyance 247 

(C) Limitations Upon the Operation of the Statute of Uses 261 

3. Under Modern Statutes 268 

CHAPTER II 
Execution or Deeds 

1. Siffiiiug 275 

2. Sealing 275 

3. Attestation ^ 279 

4. Aclinowledgment 279 

5. Delivery , 279 

CHAPTER III 

The Property Conveyed . w-Cf-^ c -^ / ^'^<- v^ J 

1. Boundaries ' -294 

2. Exceptions and Reservations 449 

CHAPTER IV 
Creation of Easements by Implication 466 

CH.VPTER V 

Estates Created 

1. Estates in Fee Simple 547 

2. Estates in Fee Tail 556 

3. Life Estates 570 

I. Conventional 570 

II. Legal 579 

(A) In Tail after Possibility of Issue Extinct 579 

(B) Husband's Interest in Wife's Realty 5S0 

(C) Wife's Interest in Husband's Realty 597 

4. Estates for Years 628 

5. Estates at Will and from Year to Year 634 

6. Concurrent Estates 685 

7. Reversions and Remainders 731 



CHAPTER Vl 
Covenants fob Title /?f7v/."ffaC^ 734 



/?r7v/."^J, 



CHAPTER VII 
Estoppel by Deed 779 

CHAPTER VIII 

Peiobities 

1. Fraudulent Conveyances , 810 

2. Recording 826 

I. In England 826 

II. In United States 834 

(A) Statutes 834 

(B) Scope of Operation and Effect of Statutes 837 

(C) Effectiveness of Recotd 914 



TABLE OF CASES 

[cases cited in footnotes are indicated by italics, where small capitals 
abe used, the case is befekeed to in the text] 



Page 

Abbott V. Holway 268 

Adams v. Gordon 529 

Agency Co. v. Short 28 

Allen V. Jaquish 191 

Amos, In re 573 

Anderson, In re 71 

Andrew v. Pearce 746 

Angus v. Dalton 116 

Ann Arbor Fruit <& Vinegar Co. u 

Ann Arbor R. Co 128 

Anon. 195 

Arbenz v. E'xley, Watkins & Co. . . 680 

Armstrong v. Wolsey 241 

Asher v. Wbitlock 11 

Auer V. Pennsylvania 220 

A VETiNE V. WnissoN 275 

Ayer v. Philadelphia & B. Face 

Brick Co 790 



Bailey v. Agawam Nat. Bank . . . . 

Bailey v. Carleton 

Baker v. Mather 

Baker v. Rice 

Baker v. Snavely 

Bangor House Proprietarj' v. 

Brown 

Banks v. Ogden 

Barber v. Bailey 

Barker v. Keete 

Barloic v. Rhodes 

Barlow v. Waimvright 

Barnes v. Barnes 

Bates V. Bates 

Baxter v. Taylor 

Bayley v. McCoy 

Beardsley v. Knight 

Beatty v. Kurtz 

Beckicith's Case 

Beddoe's Ex'r v. Wadsworth 

Bedford v. Bacchus 

Belden v. Carter 

Bellamy v. Sahine 

Bleivitt V. Boorum 

Blight v. Schenck 

Board v. Board 

Bond V. O'Gara 

Borland's Lessee v. Marshall 

Boyd V. Slayback 

Boynton v. Haggart. 

Bradley v. Missouri Pac. R. Co.. . 

Braythwayte v. Hitchcock 

Brigham v. Smith 

Bromley v. Stanley 

Broughton v. Randall 

Brown v. Alabaster 



458 
84 
893 
529 
370 

426 
436 
125 
236 
466 
665 
300 
602 
109 
781 
749 
168 
235 
736 
827 
316 
914 
314 
354 
70 
61 
588 
280 
887 
278 
657 
494 
195 
597 
478 



Page 

Brown v. Brown 616 

Broivn V. Cairns 221 

Brown v. Fuller 511 

Bryan v. Atwater 52 

Btickworth v. TMrkell 595 

Burkholder v. Markley 408 

Burnett v. Burnett 305 

Buss V. Dyer 518 

Bussmeyer v. Jablonsky 521 

Butler V. Butler 624 

Butterworth v. Crawford 535 

Calvert v. Aldrich 716 

Campbell v. Thomas 357 

Canby v. Porter 583 

Carllee v. EUsberry 550 

Carrier v. Price 573 

Carter v, Barnard 26 

Cassidy v. Sullivan 182 

Caswell V. Districh 630 

Catlin' V. Ware 622 

Cheney v. Watkins 258 

Chicago. & B. I. R. Co. v. Willard 436 

Child v. Starr 423 

Christmas v. Oliver 793 

Cincinnati v. White 165 

City of Battle Creek v. Goguac 

Resort Ass'n 541 

Clayton v. Blakey 66i 

Collard v. Collard 236 

Cook V. Brown 316 

Cooke V. Kell 820 

Coppy V. I. De B 466 

Coudert v. Cohn 662 

Cover V. James 549 

Crenshaw v. Moore 016 

Cressey v. Cressey 725 

Crossley & Sons v. Lightowleb 483 

Croxall V. Shererd 262 

Curry v. Colburn 281 

Curtis V. Galvin 641 

Dabney v. Child 495 

navies v. Bear 471 

Davison ex dem. Bromley v. Stan- 
ley 195 

Dean v. Goddard 72 

Dee V. King 455 

Dodd V. W^itt 44ff 

Doe V. Jesson 91 

Doe d. Murrell v. Mihcard 194 

Doe d. Newman v. Rushain 819 

Doe d. Rigge v. Bell 661 

Doe d. Robinson v. Allsop 834 

Doe d. Souter v. Hull 68 



Aiq.Pbop.— b 



(xvii) 



XVIU 



TABLE OF CASES 



Page 

Doe d. Thomson v. Amey 660 

Doe ex dem. Carter v. Barnard . . 26 
Doe ex dem. Christmas v. Oliver 793 
Dow ex dem. Garnons v. Knight. . 28S 

Doe ex dem. Goody v. Cartec 24 

Doe ex dem. Harlan v. Brown... 32 
Doe ex dem. Lloyd v. Passingham 262 
Doe ex dem. Otley v. Mianning. .. 812 
Doe ex dem. Parker v. Gregory. . 66 

Dorrell v. Collins 449 

Dow V. Whit7iey 892 

Downing v. Coatesville Borough. . 183 

Driiry v. Holden 792 

Dungan v. Kline 566 

Edwards v. Bibb 603 

Edicick V. Hawkes 655 

Ega7i V. Horrigan 300 

Egerton's Case 239 

Ellwtt V. Murray 283 

Ellis V. Kyger 60S 

EUis V. Paige 665 

Elston V. Piggott 703 

Emerson v. Mooney 450 

Everts v. Agnes 347 

Ewing V. Nesbitt 560 

Fancy v. Scott 452 

Farley v. Palmer 362 

First Universalist Soc. v. Boland 552 

Fitch V. Bunch 360 

Fitzgerald v. Lihhy 892 

Flower v. Darby 670 

Flynn v. Flynn 612 

Ford v. Metropolitan R, Cos 477 

Fortier v. Ballance 65 

Foster v. Marshall 584 

French v. Pearce 51 

Frost V. Beekman 926 

Frost V. Beekman 374 

Fryer v. Fryer 295 

Galley v. Ward 898 

Garnons v. Knight 288 

Geddes Coarse Salt Co. v. Ni- 
agara, Lockport & Ontario Pow- 
er Co 434 

Gee V. Hatley 66 

German Savings & Loan Co. v. 

Gordon 529 

Gifford V. Tarboroiigh 140 

Gilliland V. Woodruff 81 

Goldsborough v. Gable 075 

Goody V. Carter 24 

Gouch V. AVood 275 

0ould V. Wagner 432 

Grady v. McCorkle 620 

Gray v. Kaufman Dairy & Ice 

Cream Co 211 

Green v. Wiseman 239 

Grey & Edwards' Case 248 

Griswold v. Branf ord 665 



Page 

Griswold v. Johnson 723 

Plall V. Eaton 411 

Hall V. Harris 362 

Halsey v. McCormiek 145 

Ilamerton v. Stead 197 

Hannon v. Christopher 783 

Hanson v. Johnson 68 

Hardin v. Jordan 426 

Hare v. Celey 629 

Harlan v. Brown 32 

Harris v. Woodard 39i 

Havens v. Sea Shore Land Co.. .. 258 
Haverhill Sav. Bank v. Griffin. . 4a3 

Hawksland v. Gatchel 335 

Herter v. Mullen 672 

Hildreth v. Googins 495 

Hillary v. Gay 638 

Hi/)ie V. Dodd 834 

Hoban v. Cable 402 

Holbrook v. Finney 598 

Holden v. Garrett 868 

Holmes v. Beixingham 431 

Htihbard v. Greeley 352 

Hubbard v. Town 117 

Hudson V. Alexander 248 

Hughes V. Graves 21 

Hull V. Sangamon River Drainage 

Dist 361 

Hunter's ^^ssee v. Durrell 588 

Hurley v. Hurley 706 

Ingram v. Morris 619 

Ive's Case 195 

Jackson v. Baird .' 709 

Jackson ex dem. ' Gilliland v. 

Woodruff 81 

Jackson ex dem. Gouch v. Wood. . 275 
Jackson ex dem. Hudson v. Alex- 
ander 248 

Jackson ex dem. McCrackin v. 

Wright 780 

Jarvis v. Aikens 801 

Jefferys v. Bucknell 789 

Johnson v. Johnson 314 

Johnson v. Thomas 56 

JoxES V. Smith 896 

Jordan v. Chambers 797 

Kay V. Oxley 466 

Kelsey, Appeal of 722 

Kennedy v. De Trafford 702 

King V. Durkee-Atwood Co 677 

King v. Leake 184 

Kingdon v. IS'ottle 755, 757 

Kirkpatrick v. Mathiot 706 

Kister v. Reeser 452 

Ladd V. Ladd 331 

Lade v. Shepherd 163 

Lamb v. Crosland 104 



TABLE OF CASES 



XIX 



Langley v. "Hammond 466 

Layton v. Field 657 

Leach v. Jay 7 

rjectmian v. Mills 128 

Tx'e V. Richmond 344 

Lego V. Medley 395 

Lehigh Valley R. Co. v. McFarlan 132 

Leighton v. Theed 636 

Le Neve v. Le Neve 829 

Leonard v. Leonard 139 

Lerued v. Morrill 407 

Lessee of White v. Sayre 728 

Lewes v. Ridge 754 

Letvis V. Cook 749 

Liford's Case 18 

Liquid Carbonic Co. v. Wallace. . . 527 

Lloyd V. Passingham 262 

London Freehold & Leasehold 

Property Co. v. Suffield 336 

Loomis V. Loomis 322 

Lord Ward v. Lninley 190 

Losey v. Simpson 843 

LoiHngston v. St. Clair County . . . . 147 

Low V. Elwell 652 

Low V. Tibbetts 438 

Lucy V. Levirniton 754 

Lutwich V. Mitton 248 

Lyon V. Reed 221 

Lyons V. Philadelphia & R. R. Co. 669 

McCrackin v. Wright 780 

McCullock V. Holmes 548 

McKenzie v. Gleason 440 

McNeely v. Langan 36 

Mallott V. Wilson 383 

Mancuso v. Riddlemoser Co. of 

Baltimore City 509 

Mangold v. Barlow 929 

Manning v. N. J. Short Line R. R. 

Co 494 

Markland v. Crump 770 

Marshall v. Roberts 882 

Masvn v. Wierengo's Estate 680 

Mather v. Ministers of Tr-inity 

Church 18 

Matson v. Johnson 303 

Mattocks V. Stearns 582 

May v. Emerson 365 

Maynard v. Esher ^ . . . 491 

Mildmay's Case 251 

Mitchell V. Mc Shane Lumber Co. 79 

Mitchell V. Ryan 297 

Mitchell V. Rydn 385 

Mitchell V. Seipel 504 

Mitchell V. Warner 759 

MoELLE V. Sherwood 889 

MOLLET V. Beyne 206 

Montgomery v. Tate 580 

Moore v. Bennett 892 

Moore v. Trott 316 

Morecock v. Dickins 827 

Morehead v. Hall 401 



Page 

Morrison v. Marqnardt 494 

Morse v. Curtis 852 

MUREAY V. Earl of Stair 341 

Murray v. Kerney 258 ' 

Murray v. Stair (Earl) 341 

Miirrell v. Milward 194 

Mustain v. Gardner 690 

Mutual L. Ins. Co. v. Dake 937 

Newman v. Rusham , . 819 

Neicton v. Harland 639 

Nicholas v. Chamberlain. ..... 479 

Nichols V. Luce 495 

Nickclls V. Atherstone 231 

Noke V. Awder 734 

NorcToss V. Oriffiths 426 

Nordman v. Rau 909 

Ogle V. City of Cumberland 184 

Oldewurtel v. Wiesenfeld 217 

Oliver V. Hedderly 706 

Oliver v. Piatt 889 

Oregon Laws 837 

Otley V. Manning 812 

Owings V. First Nat. Bank 320 

Paine^s Case 595 

Palmer v. Cook 549 

Palmer v. Ekins 736 

Palmer v. Fletcher 469 

Parker v. Gregoi^y 60 

Parrott v. Avery 28G 

Parry v. Carwardcn 819 

Patman v. Haiiund S'.M 

Paul v. Carver 441 

Pavey v. Vance 121 

Pearson v. Spencer 477 

Pegg v. Pegg 69S 

Perkins v. Coleman 796 

Perry v. Clissold 13 

Peters v. Cartier 884 

Pettingill v. Porter 495 

Phillips v. Low 487 

Pickering v. Pickering 720 

Pico V. Columbet 711 

Pinnington v. Galland 469 

Polden V. Bastard 474 

Pollen and Wife v. Brewer 639 

Preble v. Mkaine Cent. R. Co 56 

Pringle v. Dunn 916 

Prouty V. Marshall 932 

Pyer v. Carter 472 

R. Co. V. Walker 455 

Ralph V. Bayley 89 

Rankin v. Miller 845' 

Rathmell v. Shirey 331 

Ray V. Hazeldine 491 

Reader v. Purdy 645 

Resser v. Carney 804 

Rex V. Hudson 163 

Rex V. Lloyd 164 



XX 



TABLE OF CASES 



Ricard v. Williams 

liich V. NafCziger 

RicHAEDs V. Rose 

Rigge V. Bell 

Right d. Flower v. Darby 

Right d. Jefferys v. Bucknell 

Robbins v. Barnes 

Robinson v. Allsop 

Robinson v. Bates 

RoMnsan v. Lowe 

Roe ex dem. Wilkinson v. Ti-an 



mer 

RoUo V. Nelson 

Rosse's Case 

Ruggles V. Lawson 

Saccone v. West End Trust Co. . . 

St. Clair v. Williams 

Salter v. Jonas 

Sambach v. Dalton 

Say V. Stoddard 

Ftchaubvch v. Dillemuth 

Schieffelin v. Carpenter 

Sehotield v. Iowa Homestead Co.. . 

fiehool Trustees v. Schroll 

Schurtz V. Colvin 

Scott V. Stone 

Seibert v. Levan 

Shannon v. Kinny 

Sharington v. Strotton 

Sherin v. Brackett 

Shoemaker v. Walker 

Short ridge v. Lamphigh 

SiNcy V. Eolden 

Sigourney v. Larned 

Simmons v. Paterson 

Simonson v. Wenzel 

Sizer v. -Devereux 

Sleeper v. Lacouia 

Smiley v. Smiley 

Smith V. Bnrtis 

Smith V. Detroit L. & B. Ass'n. . . 

Smith V. Garland 

Smith's Ex'r v. Jones 

Smith's Heirs v. Branch Bank at 

Jlobile 

Sohier v. CoflSn 

Solberg v. Robinson 

Souter V. Hull 

Stanton v. Chamberlain 

Starr v. Child 

Steel V. Frick 

Stein V. Hyman^Lewis Co 

Steml>erger & Willard v. Ragland 

Stone V. Duvall 

Stonehill v. Hastings.' 

Strong V. Whybark 

Sturgeon v. Wing field 

Sttirges V. Bridgman 

SuFFiELD V. Brown 



Page 

43 

39 

486 

661 

670 

789 

467 

8.^4 

624 

91 

255 
52Q 
573 
312 

429 
758 
440 
262 
642 

56 
200 
767 
426 
3.52 
368 
497 

31 
236 

34 
600 
240 
4.39 
914 
443 
837 
421 
443 
329 
7 
656 
819 
461 



885 
17 
740 
68 
279 
443 
631 
221 
872 
322 
325 



«77 

796 

114 

483 

Taunton v. Costae 637 



Pape 

Tefft V. Mhinson 858 

Temple v. Benson 416 

Terrell v. Andrew County 927 

Thomas v. Cook 207 

Tliomas v. Stone & Graham SSO 

Thompson v. Baxter 575 

Thompson v. Leach 375 

Thomson v. Amey 660 

Thorn v. Neusom 884 

Thomburg v. Wiggins 692 

Tichhorne v. Weir 24 

Tisher v. Beckwith 283 

Toothe V. Bryce 521 

Trowbridge v. Ehrich 444 

Turner v. Meymott 636 

Tyrrel's Case 261 

Ure V. Ure 266 

Van Der Volgon v. Yates 241 

Van Home v. Fonda 700 

Van Rensselaer v. Kearney... 786 

Volcanic Oil & Gas Co. v. Cluiplin 147 

Wallace v. Fletcher 94 

Wallis V. Doe ex dem. Smith's 

Heirs 610 

Walls V. Atcheson 209 

Walter v. Greennood 720 

Ward (Lord) v. Lumloy 190 

Waters v. Philadelphia 174 

Watson V. Watson 595 

Webb V. Bird 112 

Weeks v. New York, W. & B. R. 

Co 538 

Welch V. Sackett 384 

West V. Weyev 715 

Whalley v. Thompswi 406 

Wheeldon v. Burrows 478 

Wheeler v. Young 862 

Wheelwright v. Wheelwright 308 

\STiitaker r. Brown 449 

Whitehead v. Clifford 206 

Whitehead v. Ragan 405 

Whiting v. Whiting 616 

Whittier v. Montpclier Ice Co 443 

Whyddon's Case 3.34 

Wilkinson v. Tranmer 255 

Williams v. Burrell 748 

Williams v. Green 336 

Williamson v. Brown 902 

Wilson v. Hart 896 

Wilson V. Taylor's Ex'rs 776 

Wipfler V. Wipfler 342 

Woods V. Garnett 854 

Wormley v. Wormley 177 

Wyman v. Brown 270 

Yard v. Ford Ill 

Youngblood v. Vastine 849 

Zick V. London United Tramways, 

Limited 197 



CASES ON PROPERTY 



TITLES TO REAL PROPERTY 



PART I 

ORIGINAL TITLES 



CHAPTER I 
POSSESSORY TITLES 



SECTION 1.— SEISIN AND DISSEISIN 



MAITLAND, THE MYSTERY OF SEISIN. 

Any one who came to the study of Coke upon Littleton with some 
store of modern legal ideas but no knowledge of English Real Prop- 
erty Law would, it may be guessed, at some stage or another in his 
course find himself saying words such as these: "Evidently the main 
clue to this elaborate labyrinth is the n otion of seisin . But what pre- 
cisely this seisin is I cannot tell. Ownership I know, and possession 
I know, but this tertium quid, this seisin, eludes me. On the one hand, 
when Coke has to explain what is meant by the word he can only say 
that it signifies possession, with this qualification, however, that it is 
not to be used of movables, and that one who claims no more than a 
chattel interest in land cannot be seised, though he may be possessed. 
But, on the other hand, if I turn from .definitions to rules, then cer- 
tainly seisin does look very like ownership, insomuch that the owner - 
s hip of land, w hen not united with the seisin, seems no true ownership ." 

The perplexities of this imaginary student would at first be rather 
increased than diminished if he convinced himself, as I have convinced 
myself and tried to convince others, that the further back we trace our 
legal history the more perfectly equivalent do the two word s seisi n and 
possession_become ; that it is the fifteenth century before English law- 
yers have ceased to speak and to plead about the seisin (thereby be- 
Aig.Pbop. — 1 



2 ORIGINAL TITLES (Part 1 

ing meant the possession) of chattels. Certainly as we make our way 
from the later to tlie older books we do not seem to be moving towards 
an age when there was some primeval confusion between possession 
and ownership. We find ourselves debarred from the hypothesis that 
within time of memory these two modern notions have been gradually 
extricated from a vague ambiguous seisin in which once they were 
blent. In Bracton's book the two ideas are as distinct from each other 
as they can possibly be. He is never tired of contrasting them. In 
season, and (as the printed book stands) out of season also, he insists 
that seisina or possessio is quite one thing, dominium or proprietas 
quite another. He can say with Ulpian, "Nihil commune habet pos- 
sessio cum proprietate." 
2 Law Quarterly Rev. 481. 



POLLOCK & MAITLAND, HIST. ENG. LAW. 

On the whole we may say that the possession of land which the law 
protects under the name of a "seisin of freehold" is t he occupation o f 
land b y one who has come to it otherwise than as tenant in villeinag e, 
te nant at _will^ t enant for term of vears or guardiaa : that occupation 
being exercised by himself, his servants, guardians, tenants in villein- 
age, tenants at will or tenants for term of years. This seems the best 
statement of the matter : Occupation of land is seisin of free tenement 
unless it has been obtained in one of certain particular ways. If, how- 
ever, we prefer to look at the other side of the principle, we may sav 
that the animus required of the person who is "seised of free tenement" 
is the intent to hold that land as though he were tenant for life or ten- 
ant in fee holding bv some free tenure. 

2 P. & M. Hist. Eng. Law (2d Ed.) 40. 



MAITLAND, THE MYSTERY OF SEISIN. 

There is another side to the picture we have here drawn. He who 
is seised, though he has no title to the seisin, can alienate the land ; 
he can make a feoffment and he can make a will (for he who has land 
is enabled to devise it b}' statute), and his heir shall inherit, shall inherit 
from him, for he is a stock of descent; and there shall be dower and 
there shall be curtesy, and the lord shall have an escheat and the king 
a forfeiture, for such a one has land "to give and to forfeit." This 
may make seisin look very much like ownership, and in truth our old 
law seems this (and has it ever been changed?) that seisin does give 
ownership good against all save those who have better because oldei' 
title. Nevertheless we err if we begin to think of seisin as ownership 
or any modification of ownership ; after all it is but possession . A term- 
or was not seised, but certainly he could make a feoffment in fee and 



Ch. 1) POSSESSORY TITLES 3 

his feoffee would be seised. This seems to have puzzled Lord Mans- 
field, and puzzling enough it is if we regard seisin itself as a proprie- 
tary right, for then the termor seems to convey to another a right that 
he never had. But when it is remembered that s ubstantially seisin is 
possession, n o more, no less, then the old law becomes explicable. My 
butler has not possession of my plate, he has but a charge or custody 
of it ; fraudulently he sells it to a silversmith ; the silversmith now has 
possession : so with the termor, who has no seisin, but who by a wrong- 
ful act enables another to acquire seisin. 
2 Law Quarterly Rev. 488. 



BRACTON, DE LEGIBUS ANGLL^. 

Likewise a disseisin takes place, not only if any one ejects the true 
owner when present, or his agent, or his family, or does not admi t 
him, or repels him on his return f rom market or from a journey, but 
lie also effects a disseisin, if he shall not permit the owner or his 
agent or his family being in possession to make use of it, or at least 
hinders him from making a convenient use of it. And in which case, 
although he does not altogether expel [the owner J, nevertheless he 
inflicts upon him a disseisin, since he t akes away from him altogeth er 
t he convenience of using it^or hinders him from using it conveniently , 
q uietly, and in peace, by disquietmg and disturbing his possession . 
Likewise a disseisin takes place not only according to what has been 
said above, but also if any person of greater power wishes to make use 
of the tenement of another against the will of the tenant, by plough- 
ing, or by digging, by reaping and carrying away, contending that the 
tenement, which is another's, is his own ; but if he has made no claim 
t o the tenement, it will be another thing. ^ because then there will be a, 
t respass. and not a disseisin from a freehold , or by turning in sheep, 
or in some other manner imposing a servitude upon land, which was 
free beforehand. 

Bracton, fol. 161b; Twiss' Translation, 3 Tw. Br. 17. 



LITTLETON'S TENURES. 

And note that disseisin is properly, where a man entreth into any 
lands or tenements where his entry is not congeable, and ousteth him 
which hath the freehold, etc. 

Section 279.^ 

1 "Disseisin was t j^e wrongful takin cr ^^ny ,frnm fhp rp^il nwnPi' nt tus 
a ctual seisin . 'Disseisin was formerly a notorious act, when the disseisor 
put himself in the place of the disseisee as tenant of the freehold and per- 
formed the acts of the freeholder and appeared in that character in the 
lord's cdurt' Lord Ellenborough, in William v. Thomas, 12 East, 141, 155 
(1810). Or, as Lord Mansfield put it: 'Disseisin, therefore, must mean some 



ORIGINAL TITLES (Part 1 



LEAKE, LAW OF PROPERTY IN LAND. 

Disseisin was a wrongful entry upon the land and ouster or dispo s- 
session of the freeholdej . An entry, or perception of rents and profits, 
under colour of an adverse J itle, although evidence of an ouster, might 
be explained by the circumstances, and not amount to a disseisin. 
The disseisor acquired, by his wrongful act, an e state in fee simpl e, as 
against all but the real owner, and upon this title he might maintain 
an a ction of ejectmen t against a stranger to tlie title who had ousted 
him. The disseissee retained a mere right of entry which, if exer- 
cised within the limits of ti me which were periodically fixed by law, 
revested the estate in him. 

Di sseisin of the tenant of a particular estate disseised or divest ed 
a ll tlie estate s in remainde r or reversion, and converted them into m^ re 
rights ot entry, exerciseable in their order of succession . 

The tenant himself of the particular estate whether for life, or for 
years, having the actual seisin, had it in his power to make a feoffmen t 
t o another by livery , which effectually conveyed the fee, if it in terms 
imported to do so, irrespectively of his own estate or interest; and such 
feoffment disseised all the estates in remainder or in reversion de- 
pendent upon his seisin and converted them into rights of entry. Feoff - 
ment by tenant in tail operated rightfully at common law, but was 
provided against by the statute De donis, giving a writ of formedo n 
to the issue or reversioner or remainderman. It tlierefore took away 
the right of entry and left only the right of action under the stat- 
ute. * * * 

An entry on the land within the time allowed by law restored th e 
seisin , and, if made by the tenant of a particular estate, it restored or 
revested the estates in remainder or reversion, which were dependent 
upon the same title. H ence a right of e.ntrv was sufficient to preser^ ^e 
a contingent remainder. It is to be observed that the entry of the dis- 
seisee before his right is barred by lapse of time restores him to his 
former title by r elation back. He may therefore maintain an action 

wa/ or other turning the tenant o n t ^f ^i^ l-pnnrp anrl iisurpiDg his pla ce 
and feudal relation .' Taylor v. Horde, 1 Burr. 60, 107 (1757). How this 
was accomplished originall.v, unless the lord conspired with the disseisor, 
we do not know. It is sufficient for our purpose that disseisin was early 
possible, and that every wrongful taking of seisin from the real owner was 
not necessarily a disseisin. Thati only was disseisin where some one en - 
tered upon and ousted one who had taken actiial possession under claim o f 
t reenold.' Certainly this was true of actual disseisin, though there was a 
disseisin by election, where persons, to avail themselves of the remedy by 
assize, frequently were allowed to suppose or admit themselves to be dis- 
seised when they were not. Whatever may be true of the law of to-day, 
there was in the early common law a clear distinction between disseisin an d 
o ther forms of adverse possession ; for unless actual seisin was interfered 
with, or could be regarded as interfered with for the purposes of the action, 
there was no disseisin, though there might perhaps be an abatement or some 
other form of adverse possession." Geo. P. Costigan, Jr., "Conveyance of 
Lands by Disseisee," 19 Harv. Law Rev, 268, 260. 



Ch. 1) POSSESSORY TITLES 5 

against a trespasser for a wrong done between tlie date of disseisin 
and entry. And even before a change in the law enabled after-acquired 
freehold estates to be devised, the entry of the disseisee validated a 
devise of lands made while he -was out of possession. 

The ri.qht of entry , arising upon a disseisin, was lost in certa in 
event^ : as by the seisin being cast by descent upon the heir of th e 
disseisor ; which was technically called a descent cast ; also by an alien- 
ation of the fee by the disseisor to another, which was called a disco n- 
t inuance of the possession. On the other hand, the right of entry 
might be kept alive against a descent cast by the process of continua l 
claim. 

Where the right of entry was lost there remained a mere right of 
action, to be prosecuted within certain limits of time in the form of 
real action provided for the circumstances of the case. 

The doctrines concerning rights of entry and of action and the pro- 
ceedings in real actions were highly technical and elaborate, and formed 
a large and complicated branch of the law of real property, until the 
amendments of the law made by the Real Property Limitation Act. 
1833.^ By that statute, section 36, real actions were put an end to with 
three exceptions, which were subsequently abolished, and the action 
of ejectmenj;^ or as it is now known, an a ction for the recovery of land , 
is the appropriate remedy at law for the recovery of the possession of 
land. By the same statute the right of entry or action is no longer 
defeated by a descent cast or a discontinuance (section 39) ; and it is 
exempted from all other casualties e xcept lapse of time . But it mus t 
be prosecuted within twelve years next after the accrual of the right , 
u nless the person entitled is under disabili ty. 

Law ofi Property in Land (Randall's Ed.) p. 40 et seq. 



BUTLER & HARGRAVE'S NOTE TO COKE UPON 
LITTLETON. 

The different degrees of title which a person dispossessing another 
of his lands acquires in them in the eye of the law (independently of 
any anterior right), according to the length of time and other circum- 
stances which intervene from the time such dispossession is made, 
form different degrees of presumption in favour of the title of the dis- 
possessor; and in proportion as that presumption increases, his title 
is strengthened ; the modes by which the possession may be recovered 
vary; and more, or rather different proof is required from the person 
dispossessed, to establish his title to recover. 

Thus, if A. is disseised by B. while the possession continues in B. 
it is a mere naked possession, unsupported by any right, and A. may 
restore his possession, and put a total end to the possession of B. by 
an entry on the lands, without any previous action. 

If B. dies, the possession descends on the heir by act of law. In this 



6 OHIGESTAL TITLES (Part 1 

case, the heix„,cpjue5-lCLlhe.laud^ a lawful ..title, and acquires, in the 
eye of the law, an apparent right of possession; which is so far good 
against the person disseised, that he has lost his right to recover the 
possession by entry, and can only recover it by an action at law. The 
actions used in these cases are calle d Possessory Actions, and the 
original writs by which the proceedings upon them are instituted, are 
_ca ned Writs of . Entry -^ 

But if A. permits the possession to be ivithheld from him, beyond a 
certain period of time, without claiming it, or suffers judgment in a 
possessory action to be given against him by default, or upon the mer- 
its ; in all these cases, B.'s title in the eye of the law is strengthened, 
and A. can no longer recover by a possessory action, and his only 
remedy then is by an action on the right. These last actions are called 
Droiturel Actions, in contradistinction to Possessory Actions. They 
are the u ltimate resource of Jthe person disseised.; so that, if he fails to 
bring his writ of right within the time limited for the bringing of such 
writs, he is remediless, and the title of the dispossessor is complete. 
The original writs by which droiturel actions are instituted are called 
Writs of Right. 

The dilatoriness and niceties in these processes, introduced the Writ 
of Assize. The invention of this proceeding is attributed to Glanville, 
Chief Justice to Henry 11. (See Mr. Reeves's History of the English 
Law, Part I, ch. 3.) It was found so convenient a remedy, that per- 
sons, to avail themselves of it, frequently supposed or admitted them- 
selves to be disseised, by acts which did not in strictness amount to a 
disseisin. This disseisin, being such only by the will of the party, is 
called a disseisin by election, in opposition to an actual disseisin : it is 
only a disseisin as between the disseisor and the disseisee, the person, 
thus propounding himself to be disseised, still continuing the freeholder 
as to all persons but the disseisor. The old books particularly the Re- 
ports of Assize, when they mention disseisins, generally relate to those 
cases where the owner admits himself disseised. (See 1 Burr. Ill; 
and see Bract, lib. 4, cap. 3.) 

As the processes upon writs of entry were superseded by the assize, 
so th e assize and all.jQlher _real acti ons have been since supersed ed by:, 
thejnodern process of ejectment. This was introduced as a mode of 
trying titles to lands in the reign of Henry VH. From the ease and 
expedition, with which the proceedings in it are conducted, it is now 
become the general remedy in these cases. Booth, who wrote about 
the end of the last century, mentions real actions as then worn out of 
use. It is rather singular that this should be the case, as many cases 
must frequently have occurred, in which a writ of ejectment was not 
a sufficient remedy. Within these few years past, some attempts have 
been made to revive real actions ; the most remarkable of these are the 
case of Tissen v. Clarke, reported in 3 Wils. 419, 541, and that of 
Carlos and Shuttlewood v. Lord Dormer. The writ of summons in this 
last case is dated the 1st day of December, 1775. The summons to the 



Ch. 1) POSSESSOKY TITLES 7 

four knights to proceed to the election of the grand assize, is dated the 
22d day of May, 1'780. To this summons the sheriff made his return; 
and there the matter rested. The last instance in which a real action 
was used, is the case of Sidney v. Perry. In this case, it was adjudged 
by De Grey, Chief Justice, and all the other judges, that the defendant, 
in a writ of right, by proving his actual possession, without any evi- 
dence of his title, put the demandant to the necessity of producing and 
proving his title, a point, of which, till that decision, some doubts were 
entertained. That part of Sir William Blackstone's Commentary 
which treats upon real actions is not the least valuable part of that ex- 
cellent work. 

Note (1) to Coke upon Littleton, § 239a.2 



SMITH v. BURTIS. 
(Supreme Court of New York, 1810. 6 Johns. 197, 5 Am. Dec. 218.) 
This was an a,ction of eject ment, brought to recover the possession 
of a^house and lot of land, in the city of New York. The cause was 
tiied at the sittings, held in the city of New York, the 12th' of June, 
1809, before Mr. Justice Spencer. 
The plaintiff proved, that Isaac Teller entered into possession of the. 

2 In Leach v. Jay, L. R. 9 Ch. D. 42 (1S78), a devisee sought to recover 
possession of certain lands. The will provided: "I also bequeath and de- 
vise to him" (the plaintiff) "all real estate (if any) of' which I may die 
seised." For some time prior to the death of the testatrix, the lands in ques- 
tion had been in possession of others who claimed to own same. The court 
held that the testatrix was not "seised" and that therefore the plaintiff did 
not succeed to the lands. James, L. J., said: "This lady, for some reason 
or motive of her own, or for no reason, chose to use one of the most tech- 
nical words in our law. The word has acquired no other meaning than its 
technical meaning ; it has never got into ordinary use ; therefore we are 
not at liberty to attribute to it any other meaning merely because we sup- 
pose that the testatrix did not know the true meaning of the word. It 
has been argued in favor of the appellant that seisin now has lost its dis- 
tinctive meaning, that all its consequences have long ceased to exist, and 
therefore that you cannot predicate of anything that a testator died seised 
of it in any other sense than that it was part of his real estate. I ,am of 
opinion that there are such things as seisin and disseisin still. Mr. Joshua 
Williams says in his late book on Seisin: 'If a person wrongfully gets pos- 
session of the land of another, he becomes wrongfully entitled to an estate 
In fee simple, and to no less estate in that land; thus, if a squatter wrong- 
fully incloses a bit of waste land and builds a hut on it and lives there, he 
acquires an estate in fee simple by his outi wrong in the land which he has 
inclosed. He is seised, and the owner of the waste is disseised. It is true 
that, until by length of time the statute of limitations shall have confirmed 
his title, he may be turned out by legal process. But as long as he remains 
he is not a mere tenant at will, nor for years, nor for life, nor in tail; but 
he has an estate in fee simple. He has seisin of the freehold to him and his 
heirs. The rightful owner in the meantime has but a right of entry, a 
right in many respects equivalent to seisin; but he is not actually seised, for 
if one person is seised another person cannot be so.' " 

As to the meaning of seisin in connection with covenants for title, com- 
pare Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61 (1807), and Mercantile 
Trust Co. V. South Park Co., 94 Ky. 271, 22 S. W. 314 (1893). 



•8 ORIGINAL TITLES (Part 1 

premises in question, about the year 1765, and erected a house thereon, 
in which he Hved, with his family, from 1765 to 1775, when he died in 
possession. At the time of his death, he left five children, John, his 
eldest son, and heir at law, Henry, his second son, one of the lessors, 
Mary, (who intermarried with Peter Thalkimer,) Remsen, and Isaac, 
other lessors of the plaintiff. The widow and children remained on 
the premises until the British army took possession of New York, when 
they left the place, and went to Hudson. John the eldest son, died in 
1777, aged about 14 years; and Henry was about 8 years old when his 
father died. After the British troops entered the city of New York, 
(in 1776,) they took possession of, and occupied the buildings and prem- 
ises, and on application of one of the creditors of Isaac Teller, permit- 
ted him, for thirty guineas, to take possession of, and appropriate to 
his own use, the materials of the buildings, which were sold by him; 
out of the proceeds thereof he retained the amount due to him; and, 
a few years since, paid the residue to Henry, one of the lessors. The 
possession of the premises remained vacant during the war, and until 
1'795, when they were taken possession of by the defendants, or the 
persons under whom they claim. 

The defendants offered to prove, that Isaac Teller, under whom the 
lessors claimed, had no title to the premises in question ; and that the 
defendants had a good and complete title to the premises, which was 
not derived from Isaac Teller, or his children. 

This evidence was objected to, by the plaintiff's counsel, on the 
ground that there having been a descent cast upon the immediate heirs 
of Isaac Teller, who died in possession ; and that the possessory title 
being the only question in an action of ejectment, the plaintiff must re- 
cover. 

The judge overruled the evidence offered by the defendants ; and a 
verdict was thereupon found for the plaintiff'. 

A motion was made to set aside the verdict, for the misdirection of 
the judge, in overruling the evidence offered by the defendant, on the 
ground of a descent being cast ; and aleo on account of newly discov- 
ered evidence. 

Affidavits were read, stating the evidence discovered since the trial ; 
but as the opinion of the court related only to the other ground, it is 
unnecessary to state it. 

Kent, C. J., delivered the opinion of the court. The first and most 

^ impo rtant question raised in this case is, whether a descent was cast,^ 

upon the death of Isaac Teller, so as to toll the entry of the true owner. 

The counsel, upon the argument, entered into a discussion of the 
general doctrine of disseisin ; but I do not think it will be necessary to 
pursue at large that inquiry. All the books seem to agree that the an- 
cient learning on this subject has become abstruse. Disseisin, in the 
age of Bracton, was considered in an extensive sense, and far beyond 
the idea which was first applied to it. Disseisin, by election, in opposi- 
tion to actual disseisin, was introduced very early, and became very 



Ch. 1) POSSESSORY TITLES 9 

prevalent, in order to extend the remedy by writ of assise, which was 
devised by Glanville, in the reign of Henry II. It must, therefore, be 
difficult, in many cases, to know what species of disseisin was intended, 
though it is said that the old books, and particularly the book of assise, 
when they mention disseisins, generally relate to disseisins by election. 
The present question appears, however, to lie in a narrower compass ; 
and by confining ourselves to a few plain and familiar authomies_, we 
shall discover the principle, that the doctrine of descent cas t applies 
onl y to a seisin^_commenc ing by wro ng, a nd f ounded on an ouster of 
the_tru e owner. Whatever may be the meaning of disseisin, in other 
cases, its meaning, when applied to the subject before us, embr a ces a 
tortious ouster. There must be a disseisin in fact. The rightful owner 



must have been expelled, either by violence, or by some act which the 
law regards as equivalent in its effects. 

"Descents in fee, which toll entries," says Littleton, (section 385,) 
"are, as if a man seised of certain lands, is by another disseised, and 
the disseisor hath issue and dieth of such estate seised ; now the lands 
descend to the issue of the disseisor, by course of law, as heir unto him. 
And because the law casts the lands upon the issue, by force of the de- 
scent, the entry of the disseisee is taken away." And in the next sec- 
tion, Littleton gives a like definition of a descent in tail, which tolls an 
entry. Both he and Gilbert have a chapter devoted to the subject, and 
they always speak or refer to a descent founded on a seisin commenc- 
ing by wrong. "In descents which toll entries, it behoveth," says Little- 
ton, (section 387,) "that the man die seised in his demesne as of fee." 
A seisin in his demesne as of fee, is the strongest and highest estate 
which the subject can enjoy. It wo uld then be very idle to talk of a 
descent cast, in the case of a rightful seisin in fee^ for there would be 
no ri^t of entrj to be tolled in such a case. The doctrine can only 
exist and apply in the case of a tortious seisin. 

At the common law, if the disseisor, abator, or intruder, (and these 
are mentioned by Coke, as the only wrongful acts of seisin, which will 
cast a descent,) had died seised soon after the wrong done, the dis- 
seisee and his heirs were barred of their entry. Co. Litt. 238, a. This 
was deemed too harsh a rule, and the statute of 32 Hen. VI II-, c. 33, 
was passed, saving the right of entry to the disseisee, unless the dis- 
seisor had been in peaceable possession for five years next after the 
disseisin by him committed. This statute shows pretty plainly, what 
species of disseisin was then understood as applicable to this subject. 
It is entitled, "An act that wrongful disseisin is no descent in law ;" 
and it recites that whereas "divers persons have heretofore, by strength, 
and without title, entered into lands, and wrongfully disseised the 
rightful owner, and so being seised by disseisin, have thereof died seis- 
ed, by reason of which dying seised, the disseisee or such other persons, 
as before such descent might have lawfully entered, were thereby ex- 
cluded of their entry and put to their action." It is therefore enacted, 
"that the dying seised of any such disseisor of any lands, having no 



10 ORIGINAL TITLES (Part 1 

right or title therein, should not be taken or deemed any such descent 
in the law, for to toll or take away the entry of any person, which, at 
the time of the descent, had good and lawful title of entry, except," etc. 

The disseisin intended by this act, was one founded on a tortious ex- 
pulsion of the true owner. This is giving the term its primitive and 
genuine meaning; and in this sense it is also used, when applied to a 
descent cast. A mere entry upon another is .no, disseisin, unless it be, 
accompanied with expulsion, or ouster from the freehold.. Disse isin 
jS^ is"an estate gained by wrong and injury ;. and therein it differs froni_ 

dispossession, which may be by right or wrong. This is the uniform 
language of the best authorities, from the time of Littleton. Litt. § 
279; Co. Litt. 3, b, 18, b, 153, b, 181, a; Cro. Jac. 685; 1 Salk. 246, 
n. 2 ; 1 Burr. 109. 

This tortious seisin, the lessors of the plaintiff were bound to show 
affirmatively, if they would put themselves upon the strict and ungra- 
cious right of a descent cast. A_i)eaceable entry upon land, apparently, 
\^cant, furnishes, per se, no presumption of wrong. The benign and 
legal intendment is otherwise. According to Lord Holt, (1 Salk. 246,) 
a bare entry on another, without an expulsion, makes such a seisin 
only, that the law will adjudge him in possession that has the right. 
This court has frequently recognized the same rule, tjiat an entry not 
appearing to be hostile, was to be considered an entry under the_ ti tl e ^ 
"3^ "of the true owner. It lay, then, with the plaintiff to show his entry 

not congeabie, or to show a subsequent disseisin ; for he entered upon 
vacant lands. We may infer title, from his ten years' possession, suffi- 
cient to put the tenant upon his defence ; but we ought not to infer a 
tortious entry, or an actual ouster, sufficient to bar every defence. This 
would be a most rigorous conclusion, for it makes tlie ancestor or the 
plaintiff" a disseisor ; it tolls the entry of the true owner ; it shuts out 
his defence, and drives him to his writ of right, which final remedy is 
now subject to the limitation of 1rv\'enty-five years. 

The subsequent use of the land by Teller was no disseisin. The case 
of Matheson v. Trot, 1 Leon. 209, is a strong authority on this point. 
In that case, Henry Denny, the heir at law, when he came of age, 
claimed and sued out livery, or restitution of lands, out of the hands 
of the feudal lord, who had seised them as guardian for the infant. 
He then leased them for years, reserving a rent, and for years received 
the rents and profits from his tenant, and died so seised. This was 
held not to be a requisite seisin to cast a descent, though the court ad- 
mitted, that his lessee had gained a wrongful possession in fee. If here 
was not, during all this time, an actual pedis possessio by the heir, 
(though the case says, he once walked over the lands with his tenant,) 
yet he held and enjoyed the lands by his tenant; and the case showed 
conclusively, that he held them without title, for the lands had been 
devised in fee to his younger brother. This case, I think is, in every 
view, much stronger in favor of a descent cast, than the one before us. 

As it was, therefore, ruled, at the trial, that a descent was cast, and 



Ch. 1) 



POSSESSORY TITLES 



11 



the evidence offered by way of defence, inadmissible, the court are of 
opinion, that there ought to be a new trial, with costs to abide the event 
of the suit. 

New trial granted.* 



SECTION 2.— EFFECTS OF POSSESSION 




ASHER V. WHITLOCK. 

(Court of Queen's Bench, 1865. L. R. 1 Q. B. 

Ejectment for a cottage, garden, and premises, situate at Keysoe 
Row, in the parish of Keysoe, in the county of Bedford; the writ 
stated that the female plaintiff claimed possession as heir-at-law of 
Mary Ann Williamson, an infant deceased. 

The defendant defended for the whole. 

At the trial before Cockburn, C. J., at the last Bedfordshire Spring 
Assizes, the following facts appeared in evidence : About Michaelmas, 
in the ye§x— LS42, Thomas Williamson enclosed from the waste of a 
manor a piece of land by the side of the highway ; and in 1850 he en- 
closed more land adjoining, and built a cottage; the whole being the 
land as described and claimed in the writ. He occupied the whole till 
his d eath in I860 . By his will he devised the whole property, describ- 
ing it as "a cottage and garden, in Keysoe Row, in which I now dwell," 
to his wife Lucy Williamson, for and during so much only of her 
natural life as she might remain his widow anH nnmnrnVfl ; and from 
and after her decease, or second marriage, whichever event might first 
happen, to his only child JM arv Ann Williamson, m fee . After the 
death of Thomas Williamson, his widow remained in possession with 
the daughter, and in April 1861 married the defendant; and from that 
time they all three resided on the property till the death of the daugh- 
ter, aged eighteen years, in February 1863. On her death, the defendant 
and his wife, the widow of the testator, continued to reside on the prem- 
ises ; the widow died in May 1863, and the defendant still continued to 
occupy. 

The f emak pla intiff is the heir-at-la w of the testator's daught er, 
Mary Ann Williamson. The writ was issued 11th of April 1865. 

These facts being undisputed, the Chief Justice directed a verdict for 
the plaintiff for the whole of the property claimed ; with leave to move 



3 See. too. Slater v. Rawson. 6 Mete. (Mass.) 439 (1843). 

Section 374 of the New York Code of Civil Procedure provides that '^the, 

jrjghLjQjLa person to the possession oi real property is not impaired. or al.-." 

fected, by a descent being cast, in consequence of the death of a person in 

possession of the property." Legislation to the same effect is found in a 

number of states. See 1 Stimson's Am. St. Law, § 1404. 



^ 



12 ORIGINAL TITLES (Part 1 

to enter the verdict for the defendant, on the ground that the testa- 
tor had no devisable interest in any part of the property. 

A rule nisi was afterwards obtained to enter the verdict for the de- 
fendant, on the ground that no title in tlie plaintiffs was shown to 
either portion of the land enclosed. 

CocKBURN, C. J. I am of opinion that this rule should be discharg- 
ed. The defendant, on the facts, is in this dilemma ; either his poss es- 
sion was adverse, or it was not . If it was not adverse to tlie devisee 
of the person who enclosed the land, and it may be treated as a contin- 
uance of the possession which the widow had and ought to have given 
up on her marriage with the defendant, then, as she and the defendant 
came in under the will, both would be estopped from 'denying the title 
of the devisee and her heir-at-law. But assuming the defendant's pos- 
session to have been adverse, we have then to consider how far it 
operated to destroy the right of the devisee and her heir-at-law. Mr. 
Merewether was obliged to contend that possession acquired, as this 
was, against a rightful owner, would not be sufficient to keep out every 
other person but the rightful owner. But I take it a<; rlearly e^tah- 
l ished that possession is ^ood against all the world except the pers on 
who can show a good title ; and it would be mischievous to change this 
established doctrine. In Doe v. Dyeball, Mood. & M. 346 (E. C. L. R. 
vol. 22), one year's possession by the plaintiff was held good against a 
person who came and turned him out; and there are other authorities 
to the same eft'ect. Suppose the person who originally enclosed the 
land had been expelled by the defendant, or the defendant had obtained 
possession without force, by simply walking in at the open door in the 
absence of the then possessor, and were to say to him, "You have no 
more title than I have, my possession is as good as yours," surely eject- 
ment could have been maintained by the original possessor against the 
defendant. All the old law on the doctrine of disseisin was founded 
on the p rinciple that the_ disseisor's title was good against all but the 
disseisee. It is too clea r to admit of doubt tliat, if the devisor had bee n 
t urned out of po s session he could_bavp_ m aintained ejectment.^ What 
is the position ot the devisee .'' There can be no doubt that a man has 
a right to devise that estate which the law gives him against all the 
world but the true owner. Here the widow was a prior devisee, but 
durante viduitate only, and as soon as the testator died the estate be- 
came vested in the widow; and immediately on the widow's marriage 
the daughter had a right to possession; the defendant, however, an- 
ticipates her, and with the widow takes possession. But just as he had 
no right to interfere with the testator, so he had no right against the 
daughter, and ha A she lived she could have brought ejectment: . al- 
t hough she died without asserting her right, the same right belongs to 
h er heir. Therefore I think the action can be maintained, inasmuch 
as the defe ndant had not acquired any title by l ength of posses sion. 
The devisor rmghT have brought ejectment, his right of possession 
being passed by will to his daughter, she could have maintained eject- 



Ch. 1) POSSESSORY TITLES 13 

ment, and so there fore can her heir, the female plaintiff . We know 
to what extent encroachments on waste lands have taken place; and 
if the lord has acquiesced and does not interfere, can it be at the mere 
will of any stranger to disturb the person in possession ? I do not know 
what equity may say to the rights of different claimants who have come 
in at different times without title; but at law I think the right of i he 
ori ginal posse ssor is clear. On the simple ground that possession is 
good title agamst all but the true owner, I tliink the plaintiffs entitled 
to succeed, and that the rule should be discharged. 

Mellor, J. I am of the same opinion. It is necessary to distinguish 
between the case of the true owner and that of a person having no 
title. T he fact of possession is prima facie evidence of seisin in fee. 
The law gives credit to possession unless explained ; and Mr. Mere- 
wether, in order to succeed, ought to have gone on and shown the tes- 
tator's title to be bad, as that he was only tenant at will, but this he did 
not do. In Doe v. Dyeball, Mood. & M. 346 (E. C. L. R. vol. 22), pos- 
session for a vear only was held sufficient against a person having no 
title. In Doe'v. Barnard, 13 Q. B. 945 (E. C. L. R. vol. 66), 18 L. 
J. (O. B.) 306, the plaintiff did not rely on her own possession merely, 
but showed a prior possession in her husband, with whom she was 
unconnected in point of title. Here the first possessor is connected in 
title with the plaintiffs ; for there can be no doubt that the testator's 
interest was devisable. I n the common case of proving a claim t o 
landed estate under a will, proof of the will and of possession or re - 
ceipt oi rent s by the testator is alwavs prima facie sufficient, wit hout 
going on to show possession for more than twenty year s. I agree with 
the Lord Chief Justice in the importance of maintaining that possession 
is good against all but the rightful owner. 

Lush, J., concurred. -74^ ffU^^^U^ O^^. 

Rule discharged.* ^ ^i-^~f 

PERRY V. CLISSOLD. 

(Privy Council. [1907] App. Cas. 73.) 

Lord Macnaghten.-'^ This was an appeal from a judgment of the 
High Court of Australia^ dated June 20, 1904, reversing a judgment 
of the Supreme Court of New South Wales. It raised a question 
under the Lands for Public Purposes Acquisition Act, 1880 (44 Vict. 
No. 160), now superseded by the Public Works Ac t, 1900, which con- 
solidates the law on the subject. 

The act of 1880 in its preamble recites that it is expedient to make 
provision for the acquisition on behalf of the Crown of lands required 

* See, also, Hubbard v. Little, 9 Cush. (Mass.) 475 (1S52); Illinois & St. 
Louis Railroad & Coal Co. v. Cobb, 94 111. 55 (1879). 

5 The statement of facts is omitted. The case sufficiently appears from 
the opinion. 



ecu {XMaha^i fO^r>9XA^Q/0x 






/ ■■ -j-it. 



14 ORIGINAL TITLES (Part 1 

for certain purposes, including, among others, "sites for public 
schools," and "to provide compensation for lands so acquired." 

The following are the m aterial provisions of the Ac t. 

When the Governor sanctions the acquisition of any land for a 
school site he may, by notification in the Gazette, declare that such 
land, if private property, has been resumed for such purposes. 

Upon such publication the land is forthwith v ested in the Minister of 
P ublic Instruction and his successors on behalf of the Crown^ for t he 
p urposes of the Act, fo r an estate of inheritance in fee simple in pos - 
s ession freed and discha rged fro m all other estates and interests. 

The owners of the land or the persons who, but for the provisions 
thereinbefore contained, would have been such owners are entitled to 
receive such sum of money by way of compensation . for the land of 
which they have been deprived under the Act as may be agreed upon 
or otherwise ascertained under the provisions thereinafter contained. 

The estate and interest of every person entitled to land so resumed, 
or any portion thereof, and whether to the legal or equitable estate 
therein, is by virtue of the Act deemed to have been as fully and 
effectually conveyed to the Minister as if the same had been conveyed 
by means of the most perfect assurances in the law. Every such esta te 
a nd interest uponthe publication _of such notification as aforesaid js 
t aken to have been converted intoa claim for compensation in pursu - 
ance of the provisions thereinafter co n taine d, and every person upon 
asserting his claim as thereinafter provided, and making out his title 
in respect of any portion of the resumed land, is entitled to compensa- 
tion on account of such resumption in manner thereinafter provided. 

Every person claiming compensation in respect of any land so re- 
sumed is, within ni nety da ys_froni the publication of such notification 
or at any time afterwards, within such time as a judge of the Supreme 
Court appoints in that behalf, to s erve a notice in writing upon th e 
Minister and a like notice upon the Crown solicitor, "which notice," j t 
i s declared, "shall seTTorth the nature of the estate or interest of the 
c laimant in such land together with anj^bstrart of hk titip " 

Section 13 is in the following terms : "Within sixty days after the 
receipt of every such notice of claim by the Crown solicitor he shall 
f orward the same , together with his report thereon, to the Minister, 
who shall thereupon (unless no prima facie case for compensation shall 
have been disclosed) c ause a valuation of t he land. or of t)-) ^ p';fai-p- nr 
int erest of the cl a imant therei n to be rnade in accordance with the pro- 
visions of this A ct, and shall inform the claimant, as soon as practica- 
ble, of the amount of such valuation by notice in the form of the Sec- 
ond Schedule hereto." 

By notification published in the Gazette of July 17, 1891, a piece of 
y^ . . land containing two acres and three perches at Canterbury, in the 

AJ^^ I county of Cumberland, was re sumed for ajpublic sch ool site- The land 
^ I \ was at the time in the possession of one Fredrick Clissold. Notice 

of the resumption was given to Clissold on July 22, 1891 ; but nothing 



/. 



Ch. 1) POSSESSORY TITLES 15 

further was done then. Cl issold died shortly afterwards, and his wi ll 
was proved on May 5, 1892. 

In May, 1902, under an order of the Supreme Court, the responden ts 
who are the pre sent trustees of Clissold's will , and of whom three are 
his surviving executors, served notice of their claim to compensation 
in respect of the land resumed by the notification of July 17, 1891, 
stating that the claimants were the executors of Frederick Clissold, 
"who at the date of resumption was in possession of such land as the 
owner thereof, and in receipt of the rents of such lands, and had a 
t itle thereto bv possess ion." 

It appeared from the papers which were forwarded with the claim 
that in the year 1881 Frederick Clissold entered into possession of the 
land, which was then open and vacant, and enclosed it by a substantial 
fencing, and that ever since the enclosure, up to the time of resump- 
tion, Clissold held exclusive possession of the land without notic£ -Qf 
a ny adverse claim , and let it to diflFerent tenants and received the ren ts 
f or his own use and benefit, and d ul y paid all rates and taxes in respect 
o f the land which stood in his~riatTie in t he rate-books of the municipa l- 
i ty of Canterbury. 

The Minister refused to entertain the claim to compensation. 

The Supreme Court upheld the view of the Minister. The High 
Court reversed this decision, and g^r anted a mandamus requiring the 
Minister to cause a valuation to be made. 

The only question on this appeal was whether or not a prima facie 
case for compensation had been disclosed. 

On the part of the Minister it was contended that, upon the plain- 
tiffs' own showing, Clissold was a mere trespasser, without any estate 
or interest in the land. 

Their Lordships are unable to agree with this contention. 

It cannot be disputed that a person in possession of land in the 
assumed character of owner and exercising peaceably the ordinary 
rights of ownership has a perfectly good title against all the world 
but the rightful owner. And if the rightful owner does not come for- 
ward and assert his title by process of law within_ the period prescr ibed 
by the provisions of the Statute of Limitations applicable to the case, 
hjs ri ght is forever extinguishe d, amL th^ po^^pssnry owner arq^J^'P'^ 
a n absolute title. 

On behalf of the Minister reliance was placed on the case of Doe v. 
Barnard, 13 O. B. 945, which seems to lay down this proposition, that 
if a person having only a possessory title to land be supplanted in the 
possession by another who has himself no better title, and afterwards 
bring's an action to recover the land, he must fail in case he shows in 
the course of the proceedings that the title on which he seeks to re- 
cover was merely possessory. It is, however, difficult, if not impos- 
sible, to reconcile this case with the later case of Asher v . Whitlock, 
L. R. 1 Q. B. 1, in which Doe v. Barnard was citeHl The judgment 
of Cockburn, C. J., is clear on the point. The rest of the Court con- 



16 ORIGINAL TITLES (Part 1 

curred, and It may be observed that one of the members of the Court 
in Asher v. Whitlock (Lush, J.) had been of counsel for the successful 
party in Doe v. Barnard. The conclusion at which the Court arrived 
in Doe v. Barnard is hardly consistent with the views of such eminent 
authorities on real property law as Mr. Preston and Mr. Joshua Wil- 
liams. It is opposed to the opinion of modern text-writers of such 
weight and authority as Professor Maitland and Holmes, J., of the 
■ Supreme Court of the United States. 

T heir Lordships are of opinion that it is impossible t p say that no 
pr ima facie case for compensation has been disclose d . 

They do not think that a case for compensation is necessarily ex- 
cluded by the circumstance that under the provisions of the Act of 1900 
the Minister acquired not merely the title of the person in possession as 
owner, but also the title, whatever it may have been, of the rightful 
owner out of possession, who never came forward to claim the land or 
the compensation payable in respect of it, and who is, as the Chief 
Justice says, "unknown to this day." 

The Act throughout from the very preamble has it apparently in 
contemplation t hat compensation would be pavable to every per gon 
deprived of the land resumed for public purposes . It could hardly 
have been intended or contemplated that the Act should have the effect 
^ of shaking titles which but for the Act would have been secure, and 

would in process of time have become absolute and indisputable, or 
that the Governor, or responsible Ministers acting under his instruc- 
tions, should take advantage of the infirmity of anybody's title in order^ 
to_ acquire his land for nothing. Even where the true owner, after 
d iligent inquiry, cannot be found the Act contemplates payment of th e 
c ompensation into Court to be dealt with bv a Court of Equit y. 

It only remains for their Lordships to express their opinion that 
the valuation to be made should be a valua tion of the land as at the 
d ate of the notification of resumption. 

When the valuation is made it will be for the claimants to take such 
proceedings as they may be advised to recover the amount, unless the 
Minister thinks fit to pay them or to pay the money into Court. 

Eor these reasons their Lordships humbly advised His Majesty that 
the appeal should be dismis sed, and ordered the appellant to pay the 
costs of the appeal.^ 

6 See Ex parte Winder, 6 Ch. D. 696 (1S77). See, also, People v. Shearer, 
30 Cal. 645 (1866), where the state claimed the power to tax the possessory 
interest of an occupant of public land of the United States. 



'f,^%^^''» 



Ch. 1) POSSESSORY TITLES IT 

SOHIER V. COFFIN. 

(Supreme Judicial Court of Massachusetts, 1S69. 101 Mass. 179.) 

Writ of entry against John T. Coffin and tlie heirs of John C. 
Parkinson, to recover a lot of land in Brighton. Coffin was defaulted. 
Trial in this court, before Foster, J., who reported the case substantial- 
ly as follows : 

To show title, the demandants, among other evidence, put in and 
proved a deed of the demanded premises from William F. Otis to John 
T. Coffin, dated May 9, 1857, and a m.ortgage deed fr om said Coffin 
to themselves, dated September 12, 1857, to secure the payment of 
$5000; both duly acknowledged and recorded. The heirs of Parkin- 
son offered no evidence of any title by deed, or any conveyance of the 
premises, but c laimed title by adverse possessio n. 

There was evidence tending to show that John C. Parkinson was 
in po ssession and occupation of the premises for many years prior to 
his death in January, 1857, claiming title, and that in 1842 Coffin knew 
that he claimed title ; that a few days after John C. Parkinson's death, 
Co ffin's agent called upon Parkinson's hpirc; anri desired them to leave 
t he premises , and they insisted that the premises were theirs ; that 
afterwards and sometime before giving the deed under which the de- 
mandants claimed, Coffin himself called upon Parkinson's heirs, and 
wanted them to leave the premises , and they told him personally that 
they owned the land; that Coffin e ndeavored to buy them off, and 
they refused his overtures; and that the mortgage deed of September 
12, 1857, from Coffin to the demandants, under which they claimed, 
was executed, acknowledged and delivered in Boston. 

At the close of the evidence, the presiding judge proposed to instruct 
the jury on the effect of disseisin as follows: "If, after the death of 
John C. Parkinson while Coffin owned the fee, the heirs of Parkinson 
were in actual possession of the demanded premises claiming a fee, and 
this was known to Coffin ; and they continued in such possession at the 
date of the mortgage deed from him to the demandants; then Coffin 
was disseised so that no tjiing pa ssed by his deed, and the demandant s 
cannot recove r." Thereupon the demandants declined to go to the jury, 
and submitted to a verdict for the heirs of Parkinson, and the jury 
found specially for the latter upon the sole ground that the deed to the 
demandants pas sed no ti tle. To this ruling the demandants excepted, 
and the presiding judge reserved for the full court the question wheth- 
er the ruling was correct. 

Chapman, C. J. The demandants cl aim title unde r a mortgage from I / 
Coffin, and therefore they have joined Coffjn in the suit, as they are 
permitted to do by the Gen. St. 1860, c. 140, § 8, though Coffin is not 
a tenant in possession. The t enants in possession are the h eirs of 
J olin C. Parkinson, who died in Tanuary. 1857 . A few days after- 
Aig.Peop. — 2 



4 



s^ 



18 



ORIGINAL TITLES 



(Part I 




wards the agent of Coffin called upon them and desired them to leave 
the premises. They refused to quit, and claimed title. Afterwards 
Coffin himself called upon them and wanted them to leave the prem- 
ises. They again refused, claiming title. He endeavored to buy them 
off, and they refused his overtures. T hey were thus in possession of 
t he demanded premises, and claiming title adversely to him. There is 
nothing to show that they entered under him or by his permission. In- 
deed it is stated that their father was in possession for many years, 
claiming title, and that this was known to Coffin in 1842. While they 
were thus in possession, namely, on September 12, 1857, Coffin made 
the mortgage to the demandants. I f he had a right of entry, he mi^ ht 
h ave entered upon the land and there delivered the deed, ^^f^ \}\'^ title 
would have passed . But as he didjiot,_enter, but delivered the deed 
while he was out of possession, and the tenants were holding the land 
adversely, his deed wasjjioperatwe to pass the_ _title. Warner v. Bull, 
13 Mete. 1. All the grantees could acquire was a right to bring a n 
a ction for possession in the name of their granto r.!. Cleav eland v. 
Flagg, 4 Cush. 76. The ruling is based upon the assifrfi^iSh that the 
title of Coffin was good, and that the tenants were mere disseisors; 
and upon that assumption it was correct. Much more would the deg d 
of Coffin to the demandants be inoperative if no title had ever passed 
to Coffin ; for in such case no action would lie even in Coffin's name. 
It would be necessary to sue in the name of Otis or some other person 
who had good title. 

The facts stated in the report do not present a case of mere disseisin 

at the election of Coffin; but this was an actual advers e occupation 

. and holding him out. See Washb. Real Prop. (3d Ed.) bk. 3, c. 2, § 7. 

Judgme nt for the ten ants on the verdict.^ 

7 A., the paper title own er of certain lands, sues B. in an action o f Jrover 
for the conversion ol stone and gravel dug out of and taken from said lands. 
On the trial it develops that B. has bee n in adverse possession of the tract 
from which the stone and gravel were taken, thou"gB lor ~a' period less than 
that of the statute of limitations. Can the action be maintained? Mather v. 
Ministers of Trinity Church, 3 Serg. & R. (Pa.) 509, 8 Am. Dec. 663 (1817). 

S uppose it had >^^ " ^i ^yhn ^^""^ tnirt^n thc> stone and gravel. Could A. h ave 
s ued hi)? in trespasg q uare clausum f regit? See "Wheeler v. Hotchkiss, 10 
Connr22o' (1834). 
-A very interesting question is presented when the ousted owner recove rs 
ossession an d sues to re cover speci fically for crops and other things severed 
fronfthe land by tile "adV«n^"t5^§essorr"See Liford's Case, 11 Co. 46b, 51b 
(161.5); Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462 (1870); Hooser v. Hays, 
10 B. Mon. 72, 50 Am. Dec. 540 (1849). 

^y^lOAJ, /\j»^<,jgn>*^ 4-^rO ^u^u. ^s^ />-t<^w2/5-6t^n^ Cr*-^ ) 



Ch. 1) POSSESSORY TITLES 19 



SECTION 3.— LAPSE OF TIME 



STAT. 3 EDW. I, c. 39 (1275). 

And forasmuch as it is long time passed since the writs undernamed 
were limited; it is provided, T hat in conveying a descent in a writ o f 
right^ none shall presume to declare of the seisin of his ancestor fur- 
ther, or beyond the ti me of King Richard,..u ncle to King Henry, father 
to the King that now is; and that a writ of Novel disseisin, of Parti- 
tion, which is called Nuper obiit, have their limitation since the first 
voyage of King Henry, father to the King that now is, into Gascoin. 
And that writs of Mortdancestor, of Cosinage, of Aiel, of Entry, and 
of Nativis, have their limitation from the coronation of the same King 
Henry, and not before. Nevertheless all writs purchased now by 
themselves, or to be purchased between this and the Feast of St. John, 
for one year complete, shall be pleaded from as long time, as hereto- 
fore they have been used to be pleaded. 



STAT. 21 JAC. I, c. 16, §§ 1, 2 (1623). 

I. For quieting of men's estates, and avoiding of suits, be it 
enacted by the King's most excellent majesty, the lords spiritual 
and temporal, and commons, in this present Parliament assembled, 
That all writs of formedon in descender, fo rmcdon in remaind er, and 
f ormedon in reverfor, at any time hereafter to be sued or bought, of or 
for any manors, lands, tenements or hereditaments, whereunto any 
person or persons now hath or have any title, or cause to have or pur- 
sue any such writ, shall__be sued and takeii ^vithin twejity years next 
after the end of this present session of Parliament; and after the said 
twenty years expired, no such person or persons, or any of their heirs, 
shall have or maintain any such writ, of or for any of the said manors, 
lands, tenements or hereditaments ; (2) and that all writs of formedon 
in descender, formedon in remainder, and formedon in reverter, of any 
manors, lands, tenements, or other hereditaments whatsoever, at any 
time hereafter to be sued or brought by occasion or means of any title 
or cause hereafter happening, shall be sued and taken within twenty 
years next after the title and cause of action first descended or fallen, 
and at no time after tlie said twenty years ; (3) and that no person or 
persons that now hath any right or title of entry into any manors, 
lands, tenements or hereditaments now held from him or them, shall 
thereinto enter, but within twenty years next after the end of this 
present session of Parliament, or within twenty years next after any 
other title of entrv^ accrued : (4) and that no person or persons shall 



20 



ORIGINAL TITLES 



(Part 1 



C^nr^K i 



4 -,»^ ^^^^^ 



-.^^-V-t-'*-^ 



at any time hereafter make any entry into any lands, tenements or 
hereditaments, but within twenty years next after his or their right 
or title which shall hereafter first descend or accrue to the same ; and 
in default thereof, such persons so not entering, and their heirs, shall 
be utterly excluded and disabled from such entry after to be made; 
any former law or Statute to the contrary notwithstanding. 

II. Provided nevertheless, That if any person or persons, that is or 
shall be entitled to such writ or writs, or that hath or shall have silch 
right or title of entry, be or shall be at the time of the said right or 
title first descended, accrued, come or fallen, within the age of one and 
twenty years, feme covert, non compos mentis, imprisoned or beyond 
the seas, that then such person or persons, and his or their heir and 
heirs, shall or may, notwithstanding the said twenty years be expired, 
bring his action, or make his entry, as he might have done before this 
Act ; (2) so as such person and persons, or his or their heir and heirs, 
shall within ten years next after his and their full age, discoverture, 
coming of sound mind, enlargement out of prison, or coming into this 
realm, or death, take benefit of and sue forth the same, and at no time 
after the said ten years. 




HOW. ANN. ST. MICH. 1913, c. 383. 

Sec. 1. After the thirty-first day of December, in the year of our 
Lord eighteen hundred sixty-three, no person shall bring or maintain 
any action for the recovery of any lands, or the possession thereof, or 
make any entry thereupon, unless suclLaction is commenced or entry 
made within the time herein limited therefor, after the right to make 
such entry or to bring such action shall have first accrued to the plain- 
tiff, or to some person through whom he claims, to-wit: 

First. Within five years, where the defendant claims title to the land 
in question, by or through some deed made upon a sale thereof by an 
executor, administrator or guardian, or by a sheriff, or other proper 
ministerial officer, under the order, judgment, decree or process of a 
court, or legal tribunal of competent jurisdiction within this state, or 
by a sheriff upon a mortgage foreclosure sale ; or through a devise in 
any will which shall have been probated in this state for fifteen years, 
during which period no suit in chancery has been brought to test the 
validity of such devise : Provided, that in_cases whe re such fifteen year 
period has already elapsed such rights of entry or action shall be barred 
after two years from the passage hereof, or in case such right has not 
accrued, then after two years from the accruing thereof ; 

Second. Within ten years, where the defendant claims title under a 
deed made by some officer of this state, or of the United States, au- 
thorized to make deeds upon the sale of lands for taxes assessed and 
levied within this State ; 

Third. Within fifteen years in all other cases. 



Ch. 1) 



POSSESSORY TITLES 



21 



Sec. 5. If at the time when any right of entry, or of action, as 
aforesaid, shall first accrue or have accrued, the person entitled to such 
entry or action shall be, or shall have been, within the age of twenty- 
one years, or a married woman, insane, or imprisoned, or absent from 
the United States, unless within one of the British provinces of North 
America, such person, or any one claiming from, by or under him, 
may make such entry, or bring such action, at any time within five 
years after such disability shall be or shall have been removed, al- 
though the time limited therefor in the first section of this chapter may 
have expired. 



HUGHES v. GRAVES. 

(Supreme Court of Vermont, 1867. 39 Vt. 359, 94 Am. Dec. 331.) 

This cause was an a ct of trespass quare clausum freg it. with counts 
in trespass on the case joined agreeably to the statute. The action, by 
the agreement of the parties, was referred, to be decided according to 
law, and the defen dant filed except ions to the report of the referees. 
On the hearing upon the said report and exceptions at the March 
Term, 1866, Kellogg, J., presiding, the court, pro forma, decided that 
the plaintiff was entitled to recover of the defendant the sum of ten 
dollars for his damages, as stated in the report, and rendered judgment 
in favor of the plaintiff on the report accordingly,— to this decision and 
judgment the defendant excepted. 

The referees reported as follows : "The plaintiff and defendant, are 
severally the owners and occupiers of adjacent lots of land in the vil- 
lage of Fairhaven, both lots being originally parcels of an entire lot 
and e ach party deriving title to his lot from a common source. The 
west line of the plaintiff's lot, as shown by his title deeds, runs from 
the northwest corner of his dwelling house, southerly to the northwest 
corner of the Whipple lot. This line formed the eastern boundary of 
ancient highway, discontinued more than fifty years since, running over 
the lot of the defendant. Joshua Quenton an intermediate grantgr of 
the plaintiff, obtained his title to the lot in 1806, and he and his heirs / | 
owned and occupied it until May, 1847. During this period, the Quen- | ^ 
tons enclosed with a fence a strip of land about ten feet wide at the j '^ 
north end, which extended southerly and adjoining the plaintiff's west • 
line from the said northwest corner of the plaintiff's dwelling house, to 
and beyond the south line of the defendant's lot taken from said 
ancient highway, making a portion of their door yard, and continued t o j 
occupy peaceably and adversely claiming it as their own for mnrp th-a n j 
fifteen years . In the fall of 1847 an intermediate grantor of the de-^ 
fendant, claims this strip of land, sawed the fence in two where the_^ 
south line of the defendant's lot would strike it. But the fence after' 
two or three months was rebuilt by the plaintiff's grantor and the occu- 
pation in them continued till March, 1861, as the fence was still stand- 



f^-^' 






-'A. /C-V 



yl 



22 ORIGINAL TITLES (Part 1 

ing when the plaintiff took possession under his deed, and when the 
defendant purchased his lot in April, 1862, he claimed it and in the 
summer of 1862 erected a store which extended eastward within about 
eight inches of the plaintiff's dwelling house and covered not only a 
portion of the strip of land so enclosed by the Quentons taken from 
the old highway and the plaintiff's lot, but also a small portion of land 
included within the boundaries of the plaintiff's lot. None of the deeds 
prior to the deed of Olive Kelsey to I. Davey, of March 23d, 1860, by 
and through which the plaintiff claims title to his lot, in their bound- 
aries included the piece of land enclosed by Quenton and taken from 
said old highway, and which actually formed part of the door yard to 
the plaintiff's house. If the court shall be of opinion that the plaintiff 
takes nothing by Quenton's possessory title be cause the land so claim ed 
w as not included in the boundaries of his dee d, then we only find for 
the plaintiff to recover of the defendant seven dollars damages and 
his costs, otherwise we find for the plaintiff to recover of the defend- 
ant ten dollars damages and his cost." 

fi Steele, J. The plaintiff is in actual possession and by his deed from 
'Plive Kelsey, is entitled to the benefit of her possession. Her posses- 
sion was prior to any possession by the defendant or his grantors. The 
plaintiff" will therefore maintain this action of trespass as against the de- 
fendant by virtuej)f mer e prior possession, unless the defendant has 
a right to the possession. It is then the defendant's right and not the 
plaintiff's which we are required to examine. The defendant shows a 
faultless chain of title on paper, but it turns out he does not own the 
land. One Quenton acquired the ownership by fifteen years possession 
adverse to the defendant's grantors. The defendant's chain of deeds 
represents nothing in the disputed l&nd except what his grantors lost 
and Quenton gained. If Quenton's title had been by deed from the 
defendant or his grantors, it is clear the defendant could not lawfully 
have disturbed the plaintiff's prior possession. Quenton had no deed, 
but his adverse possession for the statutory period gave him an abso- 
lute indefeasible title to the land against the whole world on which 
he could either sue or defend as against the former owner. That being 
the case is there sufficient virtue left in the defendant's paper title to 
warrant him in disturbing the plaintiff's possession. Under the present 
English statute of limitations it is settled there would not be. The case 
would stand precisely as if the defendant or his grantors had conveyed 
to Quenton. The plaintiff would be liable to be interrupted in his pos- 
session only by Quenton or some person under him. Holmes v. New- 
lands, 39 E. C. L. 48, (11 A. & E. 44.) In Jukes v. Sumner, 14 Mees. 
& Welsby, 41, Parke, B., remarking upon the present English statute 
3 and 4 W. IV, ch. 27, says the effect of the act is to make a parlia- 
mentary conveyance of the land to the person in possession after the 
period of twenty years has elapsed. The several English statutes, and 
their supposed points of difference, are commented upon in 2 Smith's 



Ch. 1) POSSESSORY TITLES 23 

Lead. Cases, 469, 559, et passim, and the case Fenner v. Fisher, Cro. 
Eliz. 288, is cited in Holmes v. Newlands, ubi supra, as an authority 
under the previous statutes against the apphcation to these statutes of 
the full extent of the rule applied to the statute of William IV. 

Any extended discussion of these English statutes would be unprof- 
itable here for our statute, though mainly borrowed at the outset from 
the statute of James, was somewhat modified when transferred to Ver- 
mont, and has been materially altered in form in passing through the 
several revisions to which our laws have been subjected. It now pro- '^t^j^^^^v-JS^ 
vides after the section relating to actions that, "no person having right 'i^Cc-^K^.^^Cc 
or title of entry into houses or lands shall thereinto enter but within 
fifteen years next after such right of entry shall accrue." The first 
section takes away the remedy, and the second the right. G. S. p. 442, 
§.§ 1 and 2. The title is vested in the adverse holder for the statu- 
tory period, or as is often said, "the adverse possession ripens into 
title." As a natural consequence the former owner is divested of all 
the new owner acquires. This interpretation giving to adverse pos- 
session for fifteen years the effect of a conveyance best accords with 
the other well settled doctrines upon the subject of limitations as ap- 
plied to real property. A covenant to convey perfect title is satis- ,. 
fied by conveying a title acquired under the statute. In this country, 
as in England, an agreement made after the lapse of the statutory 
period to waive the benefit of the statute is not eft'ective, but the title 
remains in the party who has acquired it under the statute, notwith- 
standing his waiver, until he conveys it back with all the solemnities 
required in any deed of land. In language of the books, "by analog}' 
to the statute of limitations we presume a grant of incorporeal rights^ -^ 
after adverse uses for fifteen years." It would certainly be an artifi- _ I 
cial construction of the statute which would make it a mere bar to the -^ * 
owner's right against the person only who occupied adversely. It re- -^ "pc^^ 
lates to the rights of the party to the land. It makes no reference to .x^^^A/f 
persons. 

In this case, if the plaintiff's enjoyment of the land subjects him 
to an action or entry by Ouenton, on the ground that Quenton and not 
the defendant is the true owner, it ought not at the same time so sub- 
ject him to action or entry by the defendant, on the ground that the 
defendant is the true owner of the land. We are satisfied that no title 
remains in the defendant, and that under our statute, he has no right 
to the possessioa. It has been held that a plaintiff in possession with- 
out right could maintain trespass against even the true owner for a 
disturbance, while the right of possession was in a third person by 
lease from the owner. Phillips v. Kent & Miller, 23 N. J. Law, 155. 
Here neither the right of possession nor the ownership was in the de- 
fendant. 

The plaintiff claims that upon a correct construction of the deeds he 
has Quenton's title. This point we have not decided. The plaintiff's 




l/'/f 



u^ 



24 ORIGINAL TITLES (Part 1 

prior possession will enable him to recover as against the defendant 
whose grantors suffered Quenton to acquire the land by adverse pos- 
session for the statutory, period. Judgment affirmed.* 

1 — 

DOE ex dem. GOODY v. CARTER. 
(Court of Queen's Bench, 1847. 9 Q. B. 863.) 

Ejectment for a cottage, garden, &c., in Essex. Demise, 8th Janu- 
ary, 1845. 

On the trial, before Coleridge, J., at the Essex Summer Assizes, 
1845, it appeared that the defendant was the widow of John Carter, 
who died in 1834, being then occupier of the premises, which he had 
held, as after mentioned, for a period short of twenty-one years; and 
t he defendant had occupied thern ever sni gg. The otner material~facts 
(as stated in the judgment of the Court delivered this day) were as 
follows. Robert Carter, the father of John, purchased the premises 
(amongst others) from one Havens, and was let into possession; but, 
as he did not pay all the purchase money, no conveyance was executed 
till the 14tli December, 1824, some years after the purchase. In the 
meantime the father had let his son John, the husband of the defend- 
ant, into possession of part of the premises as tenant at will witho ut 
p aying any rent._ T he father afterwards mortgaged the whole, on 23 d 
March, 1829, for a term of years, now vested in the lessor of the plain - 
tiff. The learned Judge directed the jury that, if they believed John 
Carter, the son, to have entered as tenant at will more than twenty-one 
years before the day of the demise laid in the declaration, this action 
was barred by Stat. 3 & 4 W. IV, c. 27 (sections 2, 7).« Verdict for de- 
fendant. Lush in the ensuing term obtained a rule nisi for a new trial 

8 Premises were l eased to A. for 89 years . Shortly after the lease was 
made, G. e ntered into possession and continued therein a dversel y to A. for 40 
years, when G^as_signed the term to defendant. The rent was regularly paTcl 
by^. during the 40 years. In an action by the present owner of the rever- 
sion for breach of a covenant to repair contained in the original lease to A., 
it was held that defendant was not liable upon covenants in said lease. 
Tichborne v. Weir. 4 R. 26, 67 L. T. 735 (1S9.3). Compare Re Nisbet and 
Potts' Contract, [1905] 1 Ch. 391, where a restriction under the doctrine of 
Tulk V. Moxhay, 2 Phillips, 774 (1848), was held enforceable against one who 
had acquired ownership by adverse possession. 

As to „an adverse possessor acquiring a right of way by necessity where 
the property held adversely was surrounded by other lands of the paper title 
owner, see Wilkes v. Greenway, 6 T. L. R.'449 (1890).^ 

8 Those sections provided as follows: 

"II. And be it further enacted, that after the 31st day of December, 1833, 
no person shall make an entry or distress, or bring an action to recover any 
land or rent but within twenty years next after the time at which the right 
to make such entry or distress, or to bring such action, shall have first ac- 
crued to some person through whom he claims ; or if such right shall not 
ha>.e accrued to any person through whom he claims, then within twenty 
yea:.'s next after the time at which the right to make such entry or distress 



Ch. 1) POSSESSORY TITLES 25 

on the grounds of misdirection, and that the verdict was against the 
weight of evidence. Cur. adv. vult. 

Lord Denman, C. J., now dehvered the judgment of the Court. 

This rule was moved for on two grounds ; misdirection, and that the 
verdict was against evidence. As to the latter, we think that there was 
abundant evidence to show that t he defendant's husband John Carte r 
e ntered into posses sion of all the premises sought to be recovered, a s 
t enant at will to his tatlier, more than twenty-one years before the 
bringing of this ejectmen t, which in truth was the only question for 
the jury. 

The case, therefore, depends on the question whether the learned 
Judge misdirected the jury. The facts were: [His Lordship here 
stated them as they appear ante.] Under these circumstances, it was 
contended for the lessor of the plaintiff that, as the father was him- 
self tenant at will to Havens till 14th December, 1824, when that ten- 
ancy w^as determined by the execution of the conveyance, the ten- 
ancy at will subsisting between the father and son was determined at 
the same time. We do not think that consequence followed, but are 
of opinion that t he conveyance to the father had no operation on th e 
t enancy at will between him and the son.. Again, it was contended 
that the mortgage by the father in 1829 operated as a determination of 
the will. Assuming this to be so, still the son would thereby become 
te nant by sufferan ce, and the twenty years under the late statute 3 & 4 
W. IV, c. 27, having begun to run long before, would continue to run 
unless a new tenancy at will or for some other term were created ; Doe 
dem. Bennett v. Turner, 7 M. & W. 226, Turner v. Doe dem. Bennett, 
9 M. & W. 643; and, indeed, the same observation would apply if the 
conveyance in 1824 were treated as a determination of the will. Now 
there was no evidence in this case from which the jury could .d jaw 
t he conclusion tliat a new tenancy between the father. and the son ha d 
b een created at any time within twenty years before the bringing of 
t his ejectment : and, therefore, the determination of the will of the 
. father either in 1824 or in 1829 is not, in truth, material. 

Upon the whole, we are of opinion that the learned Judge was right 
in telling the jury that, if they believed the son to have entered as ten- 
ant at will more than twenty-one years before the 8th of January 1845 
(the day of the demise in the declaration of ejectment), the statute 3 

or to bring such action shall have first accrued to the person making or 
bringing the same. 

"VII. And be it further enacted, that when any person shall be in pos- 
session or in receipt of the profits of any land, or in the receipt of any rent, 
as tenant at will, the right of the person entitled subject thereto, or of the 
person through whom he claims, to make an entry or distress or bring an 
action to recover such land or rent, shall be deemed to have first accrued, 
either at the determination of such tenancy or at the expiration of one year 
next after the commencement of such tenancj;^ at which time such tenancy 
shall be deemed to have determined; provided always, that no mortgagor or 
cestui que trust shall be deemed to be a tenant at will, within the meaning 
of this clause, to his mortgagee or trustee." 



CX^^fu^ i2--i.»A pv^^Ji^ r: X^C/fM-.A-v^^c*^ 



26 ORIGINAL TITLES (Part 1 

& 4 W. IV, c. 27, was a bar to the actio n ; and that the jur>^ were right 
in finding- that he did so enter. The rule for a new trial must, there- 
fore, be discharged. 
Rule discharged.^" 



DOE ex dem. CARTER v. BARNARD. 
(Court of Queen's Bench, 1849. 13 Q. B. 945.) 

Ejectment for a cottage in Essex. Demise, 13th May, 1848. 

On the trial, before Coltman, J., at the Essex Summer Assizes, 1848, 
it appeared, from the evidence given for the lessor of the plaintiff, that 
in 1815 one Robert Carter purchased the premises, and was let into 
possession ; but, as he did not pay all the purchase money until 1824, 
no conveyance was executed till that time. Robert Carter, immediately 
after his purchase in 1815, allowed his son John to occupy the prem - 
i ses rent free as tenant at will ; and he continued so to occupy until 
1834, when he died, leaving a widow, who was the lessor of the plain- 
tiff, and a son and other children. Robert Carter, the father, was at 
that .time still living. T he lessor of the plaintiff had occupied fro m 
t he time of her husband's death, until a short time before the presen t 
action wa s broug ht The defendant claimed under a mortgage made 
by Robert Carter in 1829. For the defendant it was contended, that, 
assuming a title to have been shewn in John Carter, the lessor of the 
plaintiff could not recover. The learned Judge directed a verdict for 
the plaintiff, and reserved leave to the defendant to move to enter a 
nonsuit. 

Cur. adv. vult. 

Patteson, J., now delivered the judgment of the Court. 

The lessor of the plaintiff proved no title, but relied on long posses- 
sion ; viz. her own for thirteen years, and her husband's before her for 
eighteen years ; but, in so doing, she shewed that her husband left sev- 
eral children, one of whom was called as a witness. If the husban d's 
p ossession raised a presumption that he was seised in f ee^ that fee mus t 
h ave descended on his c hild, and, of c our se, the lessor of the plaint iff 
f r nust tail. But she contends that, because the husband's possession 

^ k-^ was for less than twenty years, no presumption of a seisin in fee arises ; 
Jifif^ ^ that she is entitled to tack on her own possession to his ; and then that 
7^ the 34th section of Stat. 3 & 4 W. IV, c. 27, which enacts "that at the 

^ determination of the period limited by this Act to any person for mak- 

^ ing an entry or distress, or bringing any writ of quare impedit or other 

action or suit, the right and title of such person to the land, rent, or 
advowson for the recovery whereof such entry, distress, action, or 
suit respectively might have been made or brought within such period, 

10 Willis V. Earl Howe [1S93] 2 Cli. 545, 553; Kipp v. The Inc. Synod, 
etc., 33 U. C. Q. B. 220 (1873), ace. Compare Dixon v. Gayfere, 17 Beav. 421 
(1853) ; Ryerse v. Teeter, 44 U. C. Q. B. 8 (1S7S). 



Ch. 1) POSSESSORY TITLES 27 

shall be extinguished," has put an end to the right and title of all per- 
sons, and transferred the estate to her. If she had been defendant in 
an action of ejectment, no doubt the non-possession of the lessor of the 
plaintiff, evidenced by her husband's and her own consecutive posses- 
sion for more than twenty years, would have entitled her to the ver- 
dict on the words of the 2d section of the Act, without the aid of the 
34th section. Therefore it is said that the 34th section must have some 
further meaning, and must transfer the right. Probably that would 
be so, if the same person, or several persons, claiming one from the 
other by descent, will or conveyance, had been in possession for the 
twenty years. But this lessor of the plaintiff showed nothing- tn c on- 
n ect her possession with that of her husband by right of any sort : and, 
if she be right m her construction of the 34th section, the same conse- 
quence would follow if twenty persons unconnected with each other 
had been in possession, each for one year, consecutively for twenty 
years : yet it would be impossible to say to which of the twenty per- 
sons the 34th section has transferred the title. Without the aid of this 
statute twenty years' possession gave a prima facie title against every 
one, and a complete title against a wrongdoer who could not shew any 
right, even if such wrongdoer had been in possession many years ; pro- 
vided they were less than twenty ; Doe dem. Harding v. Cooke, 7 Bing. 
346; and t he effect of the 34th section would probab l y be to givejt he 
right to the possessor for twenty years, even against the party in wh o m 
t he legal estate formerly was , and, but for the Act, would still be, 
where he had not obtained the possession till after the twenty years ; 
but then we apprehend, as before stated, that such twenty years' pos - 
s ession must be either by the same person or several persons claimin g 
o ne from the othe r, whic h is not the case here . 

The lessor of the plaintiff must therefore rely on her own possession 
for thirteen years as sufficient against the defendant who has turned 
her out and shews no title himself. According to the case of Doe dem. 
Hughes v. Dyball, Moo. & M. 346, that possession for thirteen years 
would be sufficient; for in that case the lessor of the plaintiff shewed 
only one year's possession, and yet Lord Tenterden said, "That does 
not signify; tliere is ample proof ; the plaintiff" is in possession, and yo u 
c ome and turn him out : .you must shew your title ." See also Doe 
dem. Humphrey v. Martin, Car. & Marsh. 32. These cases would 
have warranted us in saying that the l essor of the plaintiff had esta b- 
l ished her case, if she had shewn nothing but her own possession fo r 
t hirteen years. The ground however of so saying would not be that 
possession alone is sufficient in ejectment (as it is in trespass) to main- ^^^^ 
tain the action ; but that such possession is prima facie evidence o f ^^^•'^ 
title, and, no other interest appearin g i n proof, evidence of seisin in fe^ . 
Here, however, the lessor of the plaintiff' did more, for she proved the 
possession of her husband before her for eighteen years, which was 
prima facie evidence of his seisin in fee ; and, as he died in possession 
and left children, it was prima facie evidence of the title of his heir. 



28 ORIGINAL TITLES (Part 1 

a gainst which the lessor of the plaintiff's possession for thirteen ye ars 
c ould not prevail ; and, therefore, she has by her own shewing proved 
the title to be in another, of which the defendant is entitled to take ad- 
vantage.^^ On this ground we tliink that the rule for a nonsuit must 
be made absolute. 

Rule absolute for a nonsuit. 



AGENCY CO. V. SHORT. 

(Privy Council, 1SS8. 13 App. Cas. 793.) 

Appeal from a judgment of the Supreme Court (Oct. 27, 1886) re- 
fusing a rule nisi for a new trial in an action of ejectment to recover 
fifty acres of land situate in Botany Bay, in the Colony of New South 
Wales. 

The facts of the case are stated in the judgment of their Lordships. 
The proceedings in the Court below are reported in N. S. Wales Rep. 
vol. 8 (N. S.) p. 365. 

' Chief Justice Martin t old the iurv at t he trial that when any person 
went into possession of another person's land, and exercised dominion 
over it with the intention of claiming it, and the Statute of Limitations 
thereupon began to run as against the owner of the land, such runnin g 
was never stopped, notwithstanding that the intruder entirely aban - 
d oned the land long before thp expiration of twenty years from Jj is 
first entry , and no other person took possession of such land, and that 
the right of the true owner of the land would not again arise without 
an entry by such true owner with the intention of repossessing himself 
of such land ; that at the expiration of twenty years after such taking 
possession of the land as against the true owner his right of action was 
defeated, notwithstanding that there may not have been twenty years' 
possession as against him ; th at if Meredith, through whose possessio n 
th e defendant cl aimed, abandoned the land in the year 1853, and afte r- 
w ards, un til the detendant came there, no person was in possession o f 
the lan d, still the statute continued to run as against the plaintiff: an d 
t hat the st atute barred the plaintiff's ri^ht of action herg in. 

The Supreme Court (Martin, C. J., Faucett and Windeyer, JJ.) af- 
firmed this ruling. 

The judgment of their Lordships was delivered by 

Lord Macnaghten. On the 3rd of December, 1885, the appellants, 
as plaintiffs, brought an action against the respondent as defendant, to 
recover fifty acres of land situated in the district of Botany Bay, in the 
county of Cumberland, in the colony of New South Wales. 

The defencfi^was the Statute of Limitations (3 & 4 Will. IV, c. 27), 
which was adopted in the Colony by the Act No. 3 of 1837. 

The action camie on for trial in September, 1886, before the late 
Chief Justice Martin and a jury. 

11 See Christy v. Scott, 14 How. 282, 292, 14 L. Ed. 422 (1852), contra. 



Ch.l) 



POSSESSORY TITLES 



29 



For the present purpose the facts of the case may be stated very 
shortly. The land in dispute was, until recently, waste open bush. 
The plaintiffs at the trial proved a complete documentary title deduce d 
from a Crown gr ant in 1810. But they failed to prove to the satisfac- 
tion of the learned judge at the trial that they or any person through 
whom they claimed had been in a ctual occupation of the land at any 
time during the period of twenty years immediately preceding the 
commencement of the action. On the other hand the defendant, who 
claimed to have purchased the land within the last few years, did not 
prove to the satisfaction of the learned judge that he and the person 
or persons through whom he claimed had been in c ontinuous possession 
during the statutory period. ' ~ 

The Chief Justice told the jury that when any person went into pos- 
session of another person's land, and exercised dominion over it, with 
the intention of claiming it, and the Statute of Limitations thereupon 
began to run as against the owner of the land, such running was never 
stopped, notwithstanding that the intruder abandoned the land long 
before the expiration of twenty years from his first entry, and no other 
person took possession of such land, a nd the right of the true owner to_ 
t he land would not again arise without an entry by such true owne r 
with the intention of repossessing himself of such land_^ The Chief 
Justice also told the jury that at the expiration of the twenty years 
after such taking possession of the land, as against the true owner, his 
right of action was defeated, notwithstanding there may not have been 
twenty years' possession as against him. 

A ve rdict was found for the defen dant. 

On the 27th of October, 1886, the plaintiffs applied for a rule nisi 
for a new trial on the ground of misdirection. The application was 
heard before the late Chief Justice, Faucett, J., and Windeyer, J., who 
refused the rule. The Chief Justice is reported to have said : "There 
is no doubt that there was evidence sufficient to justify the verdict of 
the jury as to the occupation of the land more than forty years ago, 
which caused the statute to run against the legal owner. That being 
so, there was no evidence whatever that the legal owner during that 
time ever retook possession, or even walked over the land. The stat- 
ute having been set running there was nothing to stop it." 

To this report Faucett, J., has been good enough to append the fol- 
lowing memorandum for the information of their Lordships : 

"This is substantially a correct note of the reasons given by the late 
Piief Justice for refusing the rule in this case. His judgment was 
given in very few words. 

"I may add that it has been before held by this Court that when the 
rightful owner of land has been dispossessed, and the statute has once 
begun to run against him, the statute does not cease to run ; in other 
words, the operation of the statute is not suspended until the rightful 
owner has exercised some act of ownership on the land ; and that if the 
rightful owner allows twenty years to elapse, frorh the time when the 



La^cZ^ 






^.^^-ijL^^ t^A-<rvv*-- 






30 ORIGINAL TITLES (Part 1 

statute so first began to run, without exercising any such act of owner- 
ship, he cannot recover in ejectment against any person who may hap- 
pen to be in possession at the end of the twenty years, although there 
rnay have been an interval in the twenty years during which no one 
was in possession. 

"To stop or suspend the operation of the statute there must be some 
new act of ownership on the part of the rightful owner. There must 
be, as it were, a new departure." 

The doctrine appears to have had its origin in the case of Laing v. 
Bain, which was before the Supreme Court on a motion for a new trial 
in March, 1876. Their Lordships were referred to a note of the case 
in Oliver's Real Property Statutes, p. 79. Martin, C. J., is there re- 
ported to have said that "it was clear law that if the statute once com- 
menced to run it would not stop except by the owner going into pos- 
session and so getting, as it were, a new departure." 

Their Lordships are unable to concur in this view. They are of 
opinion that if a person enters upon the land of another and holds pos- 
session for a time, and then, without having acquired title under the 
statute, abandons possession, tlie riglitful owner, on the abandonment, 
i s i n Jhe same position in all respects as he was before the intrusion 
took place. There is no one against whom he can bring an action. He 
cannot make an entry upon himself. There is no positive enactment, 
nor is there any principle of law, which requires him to do any act, to 
issue any notice, or to perform any ceremony in order to rehabilitate 
himself. No, new de partur e is necessary^. The pwDSsession of the in- 
truder, ineffectual for the purpose of transferring title, ceases- upon 
its abandonment to be effectual for any purpose. It does not leave be- 
hind it any cloud on the title of the rightful owner, or any secret pro- 
cess at work for the possible benefit in time to come of some casual in- 
terloper or lucky vagrant. 

There is not, in their Lordships' opinion, any analogy between the 
case supposed and the case of successive disabilities mentioned in the 
statute. There the statute "continues to run" because there is a per- 
son in possession in whose favour it is running. 

There is no direct authority on the point in this country. But such 
authority as there is seems to be opposed to the doctrine laid down by 
the Supreme Court. It is sufficient to refer to McDonnell v. McKinty, 
10 Ir. L, R. 514, Lord St. Leonards' Real Property Statutes, p. 31, and 
Smith V. Lloyd, 9 Exch. (Welsby, H. & Gor.) 562. In the latter case, 
which was decided in 1854, Parke, B., giving the judgment of the 
Court, says: "We are clearly of opinion that the statute applies, not 
to want of actual possession by the plaintiff, but to cases where he has 
been out of, and another in, possession for the prescribed time. There 
must be both absence of possession by the person who has the right, 
and actual possession by another, whether adverse or not, to be pro- 
tected, to bring the case within the statute. We entirely concur in the 



Ch. 1) POSSESSORY TITLES 31 

judgment of Blackburne, C. J., in McDonnell v. McKinty, and the 
principle on which it is founded." 

Their Lordships have only to add that, in their opinion, there is no 
difference in principle as regards the application of the statute between 
the case of mines and the case of other land where tlie fact of posses- 
sion is more open and notorious. It is obvious that, in the case of 
mines, the doctrine contended for might lead to startling results and 
produce great injustice. 

In the result, therefore, their Lordships have come to the conclusion 
that the direction given to the jury by the learned Chief Justice was 
not law, and they think that_ there was substantial miscarriage in the 
trial. " 



They will, therefore, humbly advise Her Majesty that the judgment 
of the Supreme Court refusing the rule nisi ought to be reversed, that 
a new trial ought to be directed, and that the costs in the former trial 
and of the application for the rule ought to be costs in the action. 

The respondent will pay the costs of the appeal. 



-^jP*^^ 



SHANNON V. KINNY et al. 
(Court of Appeals of Kentucky, 1S17. 1 A. K. Marsh. 3, 10 Am. Dec. 705.) 

Boyle, C. J.^^ This was an action of eiectment. On the trial, after 
the plaintiff had exhibited th e patent of the com monw^nlth to William 
Shannon for the land in controversy, and had produced evidence con- 
ducing to prove that William Shannon, the patentee, was the son of 
William Shannon, senior; that the plaintiff', John Shannon, was the 
eldest brother of the patentee ; that the patentee was killed by the In- 
dians in 1782; that William Shannon, his father, died in a year or two 
thereafter, leaving John Shannon, the plaintiff, his eldest son ; and after 
it had also appeared in evidence, that Hugh Shannon, a younger broth- 
er, had, in the year 1784, settled upon the land in controversy, claim- 
ing it as his own, and had used and sold part thereof, that for twe nty 
y ears or upwards, John Shannon had been in habits of intimacy wit h 
h is brother Hugh Shannon, and was fully apprised of his claiming_ and 
s ellino' said land ; the attorney for the defendant asked a witness wheth- 
er said Hugh Shannon had not latterly become insolvent, avowing his 
object to be to prove by that and other circumstances, a collusive de- 
struction of a writing evidencing a transfer of said land, betwixt the 
plaintiff and Hugh Shannon; to the asking and answering of which 
question, the plaintiff" objected; but the court overruled the objection 
and instructed the witness to answer the question, to which the plain- 
tiff excepted. 

Whether the court below erred in their decision of this point, is the 
first question which is necessary to be determined. * * * 

12 The part of the opinion relating to the first question is omitted. 



32 



ORIGINAL TITLES 



(Part 1 




The only other question. presented by the case is, whether the stat- 
ute of Hmitation was a bar to tlie plaintiff's recovery. It appears that 
t here was a continual adverse possession for more than twenty yea rs, 
but that Hugh Shannon, who first took the possession of the land in 
controversy, before h e^ had remained in possession twenty years, sur- 
render ed the possession to the defendants or those under whom th ey 
held, i n pursuance of a decree entered upon an award giving them the 
l and m virtu e o t an adverse claim, and that they had not had the land 
i n possession twen t y years prior to the commencement of this suit . 

This circumstance, it is urged on the part of the plaintiff, prevents 
the statute from operating as a bar to his recovery. But we cannot 
perceive any principle upon which it can have such an effect. Accord - 
i ng to the literal import of the statute, the plaintiff could only ente r 
upon t he land with in tw enty 3^ears after his right of entry accrued, a nd, 
conseq uently, an adverse possession for that length of time, will to ll 
Nor can it, in the reason and nature of the thing, produce 
ifference, whether the possession be held uniformly under one 
title, or at different times under different titles, provided the claim o f 
i tle be always adverse to that of the plaintiff, nor whether the posse s- 
s ion be held by the same or a succession of individuals, provided the 
possession be a continued and uninterrupted one. 

Judgment must be affirmed with costs. ^' 



N^ 



DOE ex dem. HARLAN v. BROWN. 
(Supreme Court of Indiana, 1853. 4 Ind. 143.) 

Error to the Fayette Circuit Court. 

RoACHE, J. Ejectment^by the heirs of Joshua Harlan for a lot in 
the town of Connersville. Verdict and judgment for the defendant. 
Motion for a new trial overruled. The evidence is all set out in a bill 
of exceptions. 

The pla intiffs were admitted at the trial to be the heirs of Tosh ua 
Harlan . They then gave in evidence a deed of conveyan.c e from John 
Conner to their ancestor, dated the 30th day of November, 1818. It 
was further admitted by the defendant that Joshua .Harlan, in his life- 
time, laid out a portion of the land embraced in the deed, into town lots, 
as a part of the town of Connersville, and that the lot No. 87, in con- 
troversy in the suit, was one of those lots. 

The defen(je set up by Brown, who was admittedly defendant under 
the rule, was an adverse possession by himself and one Solomon Clay- 



is Accord: Fanning v. Wilcox, 3 Day (Conn.) 258 (1808); Smith v. Chapin, 
31 Conn. 530 (1863); Wisliart v. McKniglit, 178 Mass. 356, 59 N. E. 1028, 86 
Am. St. Rep. 486 (1901), explaining Sawyer v. Kendall, 10 Cush. (Mass.) 241 
(1852), though the point perhaps was not necessarily involved. See, also, 
Scales V. Cockrill, 3 Head (Tenn.) 432 (1859); Davis v. McArthur, 78 N. C. 
-357 (1878). 



Ch. 1) POSSESSORY TITLES 33 

pool, of t wenty years . The evidence introduced by him showed that 
Joshua Harlan died about the year 1827; that some time between 1826 
and 1828, Solomon Clay pool, c laiming to be the owner of the lo t, 
l eased it for a term of years to be fenced and cleared ; that it was ac- 
cordingly fenced and cleared by the lessee, in one of those years, most 
probably in 1827; that at tlie expiration of that lease, he rented it to 
a tenant to make brick upon it. Shortly afterward, the fence was 
removed, it does not appear by whom, and the l ot remained vacan t 
and unenclosed up to 1843, a period of not less than ten years ; but 
d uring all that period Claypool continuously claime d, and was gen- 
erally understood, in the neighborhood, to be the owner ; that from 
1830 to 1845, both inclusive, the taxes on the lot were annually charg- 
ed to and paid by Claypool, in which latter year he died. The tax du- 
plicates, which were in evidence, showed that i n 1827. the lot was no t 
a ssessed to any on e ; that in 1828 and 1829, it w\is placed on the dupli- 
cate, but was included in the list under the heading of " unknown own - 
ers^ ' ; and that in neither of those years were the taxes upon it paid by 
either Harlan or Claypool. 

The defendant also proved by one Bundrant, that he had known 
lot No. 87 since 1837; that it was then unenclosed, and was called the 
property of Solomon Claypool ; that i n 1843,. the defendant, (Brown ,) 
went into possess i on of the lo t , fenced it and built a house , and has oc- 
cupied it ever since. 

This was all the evidence. 

The plaintiffs asked for several instructions to the jury, all of which 
the Court refused to give. It is unnecessary, however, to examine 
whether these instructions should have been given, as they were all 
substantially embraced in the charge which the Court gave. The jury 
were fully and correctly instructed as to the law of the case. It only 
remains to examine whether their verdict was sustained by the evi- 
dence. 

In their instructions, the Court below charged the jury that a con - 
tinuous, uninterrupted, peaceable possession of twenty years, under a 
claim of title , was necessary to make out the defence relied on by the 
defendant, and th at if it was necessary to add the possession of Brown 
t o that of Claypool. to make up the twenty years, he. the defendan t, 
r nust show that he was in possession under Claypool . This is the law. 
To defeat the recovery of a plaintiff who produces a regular legal ti- 
tle, by a title founded on possession, strict proof must be made not only 
that the possession was, from its inception, under a public claim of t i- 
t le adverse t o that of the real owner, but that both such claim an d pos- 
session have been continuous and uninterrupted . And this continuity 
m ust be kept unbro ken through the full period of twenty years. If the 
chain is broken at any point within that period, no title is acquired. 
In the case where several tenants have, during the time, successively 
occupied Jhe..pranises, J:Q_m.aks_their possession available it must be ^«^ 

Aiq.Prop. — 3 



34 ORIGINAL TITLES (Part 1 

shown that each one claimed to hold, and was in possession, under his 
predecessor. Brandt v. Ogden, 1 Johns. (N. Y.) 156; Doe v. Campbell, 
10 Johns. (N. Y.) 475; Hawk v. Senseman, 6 Serg. & R. (Pa.) 21; 
Coburn v. Hollis, 3 Mete. (Mass.) 125. 

In the case under consideration, B rown could not make nut t he 
t wenty years without connecting his possession with that of CInvpoo l, 
by showing that he was in under hi m. If there was any evidence on 
this point, we should not be disposed to disturb the verdict of the jury. 
But if the bill of exceptions contains all the evidence, as it purports to 
do, tliere is no proof tending to connect the possession of Brown with 
that of Claypool. N either one of them was in possession for a perio d 
of twenty years . Claypool was occupying and claiming title for some 
sixteen years, from about 1827 to 1843. Then, it is in proof. Brown 
went into possession; but, how, or under what circumstances, is not 
shown. From aught that appears, he may have gone in as a mere 
trespasser, against the consent of Claypool. Having totally failed to 
establish that his possession of the premises was a continuation of that 
of Claypool, by showing that he was in under the latter, he has left a 
c hasm in his title which is fatal to the defence he relies on. 

The Court should have granted the motion of the plaintiffs for a new 
trial. 

Per Curiam. The judgment is reversed with costs. Cause remand- 
ed, etc. ~~ ~ 

SHERIN et al. v. BRACKETT. 
(Supreme Court of Minnesota, 1SS6. 3G Rlinn. 152, 30 N. W. 551.) 

The plaintiffs brought this action in the district court for Hennepin 
county, to recover the possession of a strip of land in Minneapolis. 
Upon the trial before Young, J., and a jury, the plaintiffs having rested 
their case, the action was dismissed, on defendant's motion, for plain- 
tiff's failure to make out a case. Plaintiffs appeal from an order re- 
fusing a new trial. 

Berry, J. This is an action injhe nature of ejectrnent, in which the 
plaintiffs, seeking to recover possession of a strip of land, alleged that 
on October 1, 1885, and long before, they were and now are owners 
thereof; and further that they and their ancestors, from whom they 
derive title, have been in the actual, peaceable, open, notorious, adverse, 
and continuous possession thereof for more than 25 years prior and 
up to October 8, 1885, that on that day, while they were in such actual 
possession, defendant unlawfully entered upon said strip of land and 
wrongfully ejected them therefrom, and ever since wrongfully detains 
possession thereof. 

Doubtless the intent of the pleader was to set up title in fee based 
upon what is called adverse possession. But as the greater includes 
the less, th^ complaint sufificientlj' pleaded actual possession at the time 
of the defendant's alleged entry, so that if upon the trial the plaintiffs 



Ch. 1) POSSESSOEY TITLES 35 

failed to make out adverse possession, such as would give them title 
as against the holder of the paper title, still, if they proved actual pos- 
session, they might properly insist that they were within the allegations 
of their complaint, and had made out a case as against a mere tres- 
passer. For as a gainst one showing no title in himself, possession is 
title. Wild^FVTCity of St. Paul, 12 Minn. 192 (Gil. 116) ; Rau v. Minne- 
sota Vallev R. Co., 13 Minn. 442 (Gil. 407) ; Sedg. & W. Tr. Title Land, 
§§ 717, 718. 

The evidence upon the trial below in the case at bar showed that 
{plaintiffs were in possession of the strip of land in controversy at the 
time of defendant's entry upon it, and de fendant gave no evidence of 
any right o r title in himself. In this state of the evidence the plaintiffs 
were entitled to judgment, and hence the trial court erred in dismissing 
the action at the close of the plaintiffs' testimony. As this point is in- 
sisted upon by plaintiffs it cannot be disregarded, and so there must be 
a new trial. 

This disposes of the present appeal, but (as we surmise) not of the 
real merits of the controversy, and therefore, with reference to a new 
trial, we deem it expedient to determine certain other questions raised 
upon the argument. 

And, _first^ though there are a few cases which hold that the statu- 
tory period of adverse possession, which will bar an action for the re- 
covery of land, may be made up by tacking together the periods of the 
adverse possession of several successive holders between whom there 
is no privity, (see Scales v. Cockrill, 3 Head [Tenn.] 432; Smith v. 
Chapin, 31 Conn. 530; Davis v. McArthur, 78 N. C. 357,) the rule laid 
down by the great majority of courts and by the text-v/riters, and sup- 
ported by the weight of authority, and which must be regarded as the 
true rule, is that privity between successive adverse holders is indis- -jat- 

pensable. And this upon the principle that unless the successive ad- 
verse possessions are connected by privity, the disseizin of the real 
owner resulting from the adverse possession is interrupted, and dur- 
mg t he interruption, though but for a moment, the title of the real 
owner d raws to it the seizin or possession. Melvin v. Proprietors, etc., 

5 Mete. Olass.) 15, 38 Am. Dec. 384; Ha'ynes v. Boardman, 119 Mass. 
414; McEntire v. Brown, 28 Ind. 347; Jackson v. Leonard, 9 Cow. 
(N. Y.) 653 ; Wood, Lim. sec. 271 ; San Francisco v. Fulde, Z7 Cal. 349, 
99 Am. Dec. 278; Crispen v. liannavan, 50 Mo. 536; Shuffleton v. Nel- 
son, 2 Sawy. 540, Fed. Cas. No. 12,822; Ang. Lim. §§ 413, 414; Sedg. 

6 W. Tr. Title Land, §§ 740, 745-747; Riggs v. Fuller, 54 Ala. 141.^* 

14 Lessee of Potts v. Gilbert, 3 Wash. C. C. 475, Fed. Cas. No. 11,347 (1819); 
Ely V. Brown, 183 111. 575, 5G N. E. 181 (1900); Sheldon v. Michiiian Cent. 
R. Co., 161 Mich. 503, 126 N. W. 1056 (1910) ; Moore v. Collishaw, 10 Pa. 224 
(1849) ; Illinois Steel Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550 (1909), ace. 

Lnder the statute in North Daliota successive adverse possessions could 
noclje' taclced even thoufi;h there was privitv. Streeter Co. v, Fredrickson, 
II N. D. 300, 91 N. W. G92"119a2);"~Tii"Souif!r' Carolina tacking is allowed be- 
tween heir and ancestor, but not between grantee and grantor, Epperson v. 
Stansill, 64 S, C. 485, 42 S. E, 426 (1902). 



36 ORIGINAL TITLES (Part 1 

Second. The privity spoken of exists between two successive holders 
when the later takes under the earlier, as by descent, (for instance, a 
widow under her husband, or a child under its parent,) or by will or 
grant, or by a voluntary ^^ transfer of possession. Leonard v. Leon- 
ard, '7 Allen (Mass.) 277; Hamilton v. Wright, 30 Iowa, 480; Jackson 
V. Moore, 13 Johns. (N. Y.) 513, 7 Am. Dec. 398; McEntire v. Brown, 
supra; Weber v. Anderson, 73 111. 439; Wood, Lim. ,§ 271 ; Sedg. & 
W. Tr. Title Land, §§ 747, 748. 

Third. While to operate as a bar, adverse possession must be con- 
tinuous, continuity will not be interrupted by the possession, during 
any part of its period, of one who occupies the premises as a tenant of 
the alleged adverse possessor. In such cases the tenant's posgession is 
jdiat of his landlorxL- San Francisco v. Fulde, supra; Rayner v. Lee, 
20 Mich. 384 ; Sedg. & W. Tr. Title Land, § 747. 

Fourth. Possession, to be adverse, so as to bar an owner's right of 
action, must be actual, open^ continuous, hostile, exclusive, and accom- 
panied by an intention to claim adversely,. Sedg. & W. Tr. Title Land^ 
sec. 731 et seq. 

This is all which we deem it necessary to say in this case; for, as 
there is to be a new trial, we forbear to comment upon the evidence. 

Order reversed, and new trial awarded. 



Tr 



\ 

McNEELY et ux. v. LANGAN. 

(Supreme Court of Ohio, 1871. 22 Ohio St. 32.) 

Error to the Court of Common Pleas of Hamilton county, reserved 
in the District Court. 

The original action was brqug]itJ>xth6J?!lailltiffs_^. error to recover 
a strip of ground three feet wide, fronting on Longworth street, in the 
city of Cincinnati. 

The defense relied on was the statute of limitations. The case was 
submitted to the court upon the following agreed statement of facts : 

Jane McNeely et al. v. Thomas Langan. No. 32,026. Hamilton 

Common Pleas. 

It is hereby agreed between the parties that Stephen Burrows, on the 
1st day of January, 1842, lease d perpetually to R. G. Masterson the 
following described premises, to which the said Burrows had a good 
title in fee simple, viz. : beginning at a point in the south line of Long- 
worth street as continued, and the east line of a lot of ground lately 
belonging to tlie estate of Samuel Still, deceased, extending thence 
south with said east line eighty feet, more or less, to the north line of a 

15 See Memphis & L. R. Co. v. Organ, 67 Ark. 84, 55 S. W. 952 (1S99); 
Kendric-k v. Latham, 25 Fla. 819, 6 South. 871 (1889) ; Mortenson v. Murphy^ 
153 Wis. 3S9, 141 N. W. 273 (1913). 



Ch. 1) POSSESSORY TITLES 3T 

ten foot alley; thence east along the north line of said alley twenty- L.' 
three feet; thence north parallel with said Still's east line aforesaid ■ . 
eighty feet, more or less, to the south line of Longworth street as afore- 
said ; thence west along the south line of Longworth street twenty- 
three feet to the beginning. That R. G. Masterson conveyed said lot 
and leasehold to" Joseph More, May 20, 1850; said More to E. P. 
Cranch, April 10, 1854; and said Cranch to the defendant, Thomas 
Langan, August 29, 1860. It is hereby further agreed that said Mas- 
terson, on or about May, 1842, built a frame cottage on the west line 
of said lot and on the land described in the petition. It is further ~ 

agreed that the plaintiffs are the owners of said land described in their 
said petition, if the same does not belong to the defendant by occu- 
pancy. It is further agreed between the parties that the land described 
in their petition was not conveyed by deed to Masterson, nor by Mas- 
terson to More, nor from More to Cranch, nor from Cranch to the 
defendant. Langa n. That the said Masterson, at the time of taking 
possession under his lease from Burrows, entered into the possession 
of the premises described in the petition, fenced it in with the other 
property, built his house partly thereon, so as to occupy these three 
feet as above stated ; and the said Masterson, More, Cranch, and the 
defendant, Langan, have, by transfer of possession made at the time 
of the several conveyances above mentioned, remained in continuous 
possession and actual occupancy of said premises and cottage, including 
said three feet, from May, 1842, to the present time. That neither 
the plaintiffs, nor those under whom they claim, nor_t_he_defaTidant, nor 
those under whom he claims, were aware of any question as to the 
title to this strip of three feet, nor as to any error made in the original 
location of said cottage and fencing, until October, 1860, when, by a 
survey then made, it was discovered by the plaintiff's that these three 
TeeiTwere noTmcTiKled in the perpetual lease made to Masterson ; and 
thereupon the plaintiffs, in the year 1865, made, for the first time, a 
demand upon the defendant for the possession thereof, which was re- 
fused tlien as it is now, and hence this suit. 

Wm. Disney, Attorney for Defendant. 
S. Clark, Plaintiffs' Attorney. 

The court found in favor of the defendant, and rendered judgment 
accordingly. 

The plaintiffs filed a petition in error in the District Court, asking 
a reversal of the judgment on the general grounds that the court erred 
in allowing the defendant the benefit of the statute of limitation. 

The case was reserved by the District Court for decision by this 
court. 

White, J. By the agreed statement, the court below was warranted 
in finding the possession to have been sufficiently open, notorious, and 
adverse to bring it within the operation of the statute of limitations. 
The quesji^n is, whether it was, in a legal sensCj continuous. 

For the plaintiff in error, it is contended that the continuity of pos- 



38 ORIGINAL TITLES (Part 1 

session was broken by each successive transfer of the premises in con- 
troversy ; and, consequently, that as neither the defendant nor any one 
occupier under whom he claims held possession for the period of lim- 
itation, the statute is not available as a bar to the action. 

There are authorities supporting this view, but we think the better 
reason, as well as the weight of authority, is against the position. Fan- 
ning V. Willcox, 3 Day (Conn.) 258; Smith v. Chapin, 31 Conn. 531; 
Shannon v. Kinny, 1 A. K. Marsh. (Ky.) 3, 10 Am. Dec. 705 ; Chilton 
V. Wilson's Heirs, 9 Humph. (Tenn.) 399; Cunningham v. Patton, 6 
Pa. 355; Scheetz v. Fitzwater, 5 Pa. 126; Overfield v. Christy, 7 
Serg. & R. (Pa.) 173; Johnson v. Nash's Heirs, 15 Tex. 419; Alex- 
ander V. Pendleton, 8 Cranch (U. S.) 462, 3 L. Ed. 624. 

Possession itself is a species of title, of the lowest grade, it is t rue. 
yet it is good against all who can not show a better, and by lapse of 
time may become, under the statute, perfect and indefeasible. 

In considering the question before us, it should be observed that, in 
this state, it is not necessary to the running of the statute, that posses- 
sion be held under color of title. Where there is possession of the 
requisite character, the question, whether there is color of title or not, 
is wholly immaterial. Lessee of Paine v. Skinner, 8 Ohio, 167; Yetzer 
V. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122. 

The possession must be connected and continuous. But it is admit- 
ted~tBat~tHe possession will descend to the heir without interrupting 
the running of the statute ; and we see no good reason why the ancestor 
may not voluntarily dispose of a possessory interest, which the law, in 
the absence of such disposition, will transmit to the heir. 

The mode adopted for the transfer of the possession may give rise 
to questions between the parties to the transfer; but, as respects the 
rights of third persons against whom the possession is held adversely, 
it seems to us to be immaterial, if successive transfers of possession 
were in fact made, whether such transfers were effected by will, by 
deed, or by mere agreement either written or verbal. Judgment af- 
firmed. ^^ j^ jt /' 

16 Vikin? Mfg. Co. v. Crawford, 84 Kan. 203, 114 Pac. 240, 35 L. R. A. (N. 
S.) 498 (1911) ; Wishart v. McKnight, ITS Mass. 356, 59 N. E. 1028, 86 Am. 
St. Rep. 486 (1901); Vance v. Wood, 22 Or. 77, 29 Pac. 73 (1S92); Gildea v. 
Warren, 173 Mich. 28, 138 N. W. 232 (1912) (but see Lake Shore & M. S. Ry. 
Co. V. Sterling [Mich.] 155 N. W. 383 [1915]); Rembert v. Edmondson, 99 
Tenn. 15, 41 S. W. 935, 63 Am. St. Rep. 819 (1897); Illinois Steel Co. v. 
Paczocha, 139 Wis. 23, 119 N. W. 550 (1909), ace. Vicksburg, S. & P. Ry. Co. 
V. Le Rosen, 52 La. Ann. 192, 26 South. 854 (1899) ; Evans v. Welch, 29 Colo. 
355, 68 Pac. 776 (1902) ; Messer v. Hibernia Sav. Soc, 149 Cal. 122, 84 Pac. 
8.35 (1906), contra. See Erck v. Church, 87 Tenn. 575, 11 S. W. 794, 4 L. R. A. 
641 (1889), a case which probably was not well tried. 

"If the possessions join by delivery from predecessor to successor, there 
is no opportunity for the true owner to become seised, and, after twenty 
years' submission to such inability, he becomes barred. * * * Possession 
and voluntary transfer thereof are physical facts provable by the testimony 
of an eye or ear witness or any other evidentiary fact or conduct. The only 
qualification to the possession is that it must be such as to exclude the true 
owner, not derived from or in subordination to him. The only essential of 



Ch. 1) POSSESSORY TITLES 39 

RICH V. NAFFZIGER et al. 
(Supreme Court of Illinois, 1912. 255 111. 98, 99 N. E. 341.) 

Appeal from the Circuit Court of Tazewell county ; the Hon. T. N. 
Green, Judge, presiding. 

Farmer, J. This case was before us at a former term and the 
opinion then delivered will be found at page 455 of volume 248 of the 
Illinois Reports, 94 N. E. 1. We reversed the judgment and remanded 
the case for error in an instruction given for appellees, which, in effect, 
placed the burden upon appellant of proving that appellees did not 
have title to the disputed premises by a dversejposs^ssion. Another 
trial in the circuit court resulted in a verdict and judgment for de- 
fendants, and plaintiff' has again brought the case to this court by ap- 
peal. 

Our former opinion contains a statement of the case and a history 
of the controversy out of which this litigation arose. We will not re- 
peat that statement here in full, but will briefly say the action was 
quare clausum freg it brought by appellant, and the issues made by the 
pleadings im;olved the title to a narrow strip of land off the west side 
of the north half of the soudi-east quarter of section 5, township 25 
north, range 2 west of the third principal meridian, in Tazewell county. 
The strip of land inv olved is nine feet wide at th e sou th end, fifteen 
feet wide at the north end, and extends from the south line of the north 
half of the south-cast quarter of section 5 to the north line of said 
tract. Appellant has title of record to the whole of the south-east 
quarter of said section 5. Christian Naffziger owns tlie north half of 
the south-west quarter of said section, and his son, Peter Naffziger, is 
his tenant.- Before Christian Naffziger became the owner of said tract 
the whole of the south-west quarter of said section 5, belonged to 
Christian Schwarzentraub, who died in November, 1888. By virtue 
of a decree in a partition suit between the heirs of Schwarzentraub the 
north half of the south-west quarter of section 5 was sold to Christian 
Naffziger on June 5, 1889, and a deed therefor executed to him by the 
master in chancery. At the time of said sale Fred Schwarzentraub was 
in possession of said eighty-acre tract as tenant, and the decree pro- 
vided the purchaser should have the rents for the year 1889 and the 
possession of the premises on March 1, 1890. While the strip of land 
in controversy was a part of the eighty acres to which appellant had 
paper title, it was in the enclosure with the north half of the south- 
west quarter from 1885 until April, 1909, when appellant, without 
leave of or notice to appellees, removed the south forty rods of fence 
from the line Icnown in this record as the Oswald line, west to the line 

the transfer is that the predecessor passes it to the successor by mutual con- 
sent, as distinguished from the case where a possessor abandons possession 
^nerally^ and another, finding the premises unoccupied enters without con- 
tact or reTalion with the former. * * *" Dodge, J., in Illinois Steel Co. 
V. Paczocha, supra. 



J^ 



40 ORIGINAL TITLES (Part 1 

of the commission survey established in March, 1909. The fence was 
built on the Oswald line as early as 1885, and thereafter Schwarzen- 
traub and his heirs had possession of and cultivated all the land on the 
west side of the fence until the sale to Christian Naftziger, and from 
March 1, 1890, he has continued in possession and cultivated all the 
land on the west side of the fence. Appellant and his predecessor in 
title have during- all that time possessed and cultivated the land on the 
east side of the fence. 

It will be seen Christian Naffziger himself had not been in possession 
of_the disputed premises quite twenty years, but if the possession of 
Schwarzentraub be tacked to his, the period of adverse possession is 
more than twenty years. The proposition principally relied upon by 
appellant for reversal of the judgment is that there was no privity be- 
tween Christian Schwarzentraub and Christian Nafifziger, and there- 
fore the possession of the former cannot be tacked to the latter. The 
rule of law as laid down by the decisions of this and other States is, 
that j privity of estate or title is necessary between successive disseizor^ 
to authorize joining together the several possessions so as to make a 
continuous possession. Acts of possession at different times, by dif- 
ferent persons between whom there is no privity, cannot be joined. 
Ely v. Brown, 183 111. 575, 56 N. E. 181. 

It is conceded by appellant that if Christian Schwarzentraub or his 
heirs, if adults, had conveyed the north half of the south-west quarter 
of section 5 to Christian Naffziger and had delivered to him possession 
of the entire enclosure up to the division fence, the possession of 
Schwarzentraub could be tacked to that of Naffziger and form a con- 
tinuous possession, but it is insisted that as the conveyance of the 
eighty acres to Naffziger was made„by tliejnaster in chancer}^ under 
the decree in tlie partition suit there could be no privity of estate or 
title between Naffziger andSchwarzentraub and that the two posses- 
sions could not be joined. ' Where a person having title, by deed, to a 
lot or tract of land described in the deed also has enclosed with it and 
is in possession of adjoining land to which he has no record title, and 
conveys the land by the description in the deed and delivers with it 
the possession of the entire enclosure, the continuity of possession will 
not be broken and the two possessions will be joined and considered 
as one continuous possession. This result, however, does not neces- 
sarily follow the making of the deed describing the land to which the 
grantor had paper title. The title to premises in possession but not 
described in the deed to the claimant does not depend upon a deed but 
upon possession alone, and for that reason will not pass by a convey- 
ance describing only the land to which the grantor has record title, but 
possession of the land not described in the deed must be delivered. 
The privity between two disseisors which will authorize tacking their 
possessions is not, therefore, established by a deed from one to the 
other. Illinois Central Railroad Co. v. Hatter, 207 111. 88, 69 N. E. 
751. The deed is proper to be considered in determining whether pos- 



Ch. 1) POSSESSORY TITLES 41 

session of the land in the enclosure not described in the deed was taken 
at the same time as the possession of the land described therein, and 
where the deed is followed by the delivery of possession of the entire 
enclosure it is sufficient evidence of a transfer of possession to raise 
the requisite privity between tlie parties. But a paper transfer is tiot 
necessary to connect adverse possessions. It may be a means in es- 
tablishing the fact of privity but is not the only means. Illinois Steel 
Co. v. Budzisz, 106 Wis. 499, 81 N. W. 1027, 82 N. W. 534, 48 L. R. A. 
830, 80 Am. St. Rep. 54. In discussing the circumstances under which 
the possession of disseizors may be joined, the Wisconsin Supreme 
Court said in Illinois Steel Co. v. Paczocha. 139 Wis. 23. 119 N. W. 
550: " The on ly essential of the transfer is that the predecessor passes 
k^ to the successor by mutual consent, as distinguished from the case 
where a possessor abandons possession generally, and another, finding 
the premises unoccup ied, enters without contract or relation with the 
J^ormer." 

In Weber v. Anderson, 7Z ^1. 439, the owner of a lot conveyed all 
of it but a ten-foot strip off one side to the president of a plank-road 
company. The grantee took possession of the entire lot and enclosed 
it with a fence, claiming tide to the whole of it, and remained in pos- 
session from 1849 to 1863. It then sold the premises, and in the con- 
veyance described them as they were described in the deed made to it 
but delivered to the purcliaser possession of the entire lot. The 
purchaser held possession until May, 1870, and then conveyed 
the entire lot to another. One of the questions in the case when 
it was before this court w^as whether the possession of the plank- 
road company and its grantee could be joined and considered as 
a continuous possession for twenty years. It was contended by the 
appellant that the transfer of possession could not be proved, by parol 
but must be proved by deed. I 'ihisTourt held that po deed is necessary 
to support title by adverse possession, but that it is sufficient for a 
party to take possession under a claim of ownership and hold the prem- 
ises for the time required by the statute to complete the bar; that a 
deed^ isnot necessary to prove the transfer of the possession but such 
traiisfer may_ be shown by parol. The court referred to and quoted 
from decisions of other States, as follows : "In the case of Smith v. 
Chapin, 31 Conn. 531, the Supreme Court of Connecticut, in deciding 
a question similar to the one in this case, says : 'Doubtless the posses- 
sion must be connected and continuous, so that the possession of the 
true owner shall not constructively intervene between them; but such 
continuity and connection may be effected by any conveyance, agree- 
ment or understanding which has for its object a transfer of the rights 
of the possessor or of his possession, and is accompanied by a transfer 
of possession in fact.' In Menkens v. Blumenthal, 27 Mo. 203, it was 
held whether one occupant receives his possession from a prior one or 
is a mere intruder upon an abandoned lot is a question of fact, which 
may be determined by any testimony which is legitimate and pertinent. 



^ 



42 ORIGINAL TITLES (Part 1 

We know of no rule of evidence which confines the proof to a deed or 
written instrument. In Crispen v. Hannavan, 50 Mo. 544, the doc- 
trine announced in the last case cited is approved, and the court adds : 
'Not even a writing is necessary if it appear that the holding is con- 
tinuous and under the first entry.' In AIcNeely v. Langan, 22 Ohio St. 
32, the same question arose, and it was there held : 'The mode adopted 
forthe transfer of the possession may give rise to questions between 
the parties to the transfer, but as respects the rights of third persons, 
against wliom the possession is held adversely, it seems to us to be im- 
material, if successive transfers of possession were, in fact, made, 
whether such transfers were effected by will, by deed or by mere agree- 
ment, either written or verbal.' " 

In Faloon v. Simshauser, 130 111. 649, 22 N. E. 835, it was contended 
by the appellant that in order to avail of the bar under the Statute 
of Limitations, privity of estate with the prior disseizors must be 
shown by purchase and conveyance of disseizin. Upon this question 
the court said : "It is a sufficient answer to this claim, and to the au- 
thorities cited to show it is essential to establish by a deed that appellees 
are connected with the adverse possessions of Allen and Sarah B. 
Withers, to say that the question is not an open one in this State, and 
that, the rule having been years ago determined otherwise by this court 
and it being a rule of property upon which many titles may depend, 
such former ruling will be adhered to without any re-examination of 
the conflicting authorities in respect thereto." 

The privity required is that there must be a continuous possession by 
mutual consent, so that the possession of the true owner shall not con- 
structively intervene. The possession of one who had abandoned the 
premises could not be joined with the possession of one who found 
them unoccupied, and, without any connection with the former pos- 
session, entered upon the land. In the case before us Christian 
Schwarzentraub was at the time of his death, and had been for some 
years, in the possession of tlie land in controversy. He was prima 
facie the owner of it, and upon his death his estate in it was cast upon 
his heirs, to whom his possession was transferred by operation of law. 
Gosselin v. Smith, 154 111. 74, 39 N. E. 980. They remained in posses- 
sion until after the partition, when they surrendered their possession 
to Christian Naffziger. The title he acquired by the master's deed did 
not describe or embrace the strip of land in controversy, but the proof 
shows' he succeeded the Schwarzentraubs in the possession of it, and 
we are of opinion it must be held the two possessions are lawfully 
joined. 

The proof of appellees was abundant to the eft"ect that their posses- 
sion was adverse, and it was not sufficiently weakened by the testimony 
on behalf of appellant that we can say the jury were not justified in 
finding the evidence established title in appellees by adverse possession, 
and in our opinion there was no error in the rulings of the court in the 
admission of testimony that unduly prejudiced appellant. We have 



Ch. 1) POSSESSORY TITLES 43 

read the evidence and are satisfied the verdict was v^^arranted by it. 
We can see no reason to suppose that a different result might obtain 
on another trial. The proof of appellees met the requirements of the 
rule stated in Zirngibl v. Calumet Dock Co., 157 111. 430, 42 N. E. 431, 
and other decisions of this court, upon the degree of proof necessary 
to establish title by adverse possession. 

No substantial error was committed by the trial court in giving and 
refusing instructions. Judgment affirmed. 






SECTION 4.— ADVERSE POSSESSION 



RICARD v. WILLIAMS. 
(Supreme Court of the United States, 1822. 7 Wheat. 59, 5 L. Ed. 398.) 

Error to the circuit court of the United States for the district of 
Connecticut. 

This was a suit instituted by the defendants in error against the 
plaintiff in error, in the court below. The original action is commonly 
known in Connecticut by the name of an a ction of disseisin, and is a 
real action, final upon the rights of the parties, and in the nature of a 
real action at the common law. The cause was tried upon the general 
issue, nul tort nul disseisin, and a verdict being found for the demand- 
ants, a bill of exceptions was taken to the opinion of the court upon 
matters of law at the trial. 

The^ demandants claimed the estate in controversy by purchase from 
the adm inistrator of William Dudley, at a sale made by him for the 
payment of the debts of his intestate, pursuant to the laws of Connecti- 
cut, which authorize a sale of the real estate of any person deceased, 
for the payment of his debts, when the personal assets are insufficient 
for that purpose. In order to establish the title of William Dudley 
in the premises, the demandants proved that Thomas Dudley, the fa- 
ther of William, was, in his lifetime, possessed of the premises, as par- 
cel of what were called the Dudley lands, and died possessed of the 
same in 1769, leaving seven children, of whom William was the eldest, 
being of about the age of fourteen years, and Joseph Gerriel, the 
youngest, being about four years of age. Upon the death of Thomas 
Dudley, Joseph Mayhew, the guardian of William, entered into posses- 
sion of the Dudley lands, and of the demanded premises as parcel, tak- 
ing the rents and profits in his behalf during his minority ; and upon his 
arrival at full age William entered and occupied the same, taking the 
rents and profits to his own use, until his death, which happened in the 
year 1786, all his brothers and sisters being then living. During the- 



44 ORIGINAL TITLES (Part 1 

life of William, no other person claimed any right to enter or occupy 
the premises, except that his mother received one third of the rents and 
profits, until she died in the year 1783. During his life, and while in 
possession of the premises, William always declared that he held the 
same only for life, and tlierefore would not allow any improvements 
on them at his expense ; no leases were made by him except for short 
periods ; and no attempt was made by him to sell or convey the prem- 
ises ; and he declared that he had no right to sell them, and that upon 
his death they would descend to his son Joseph Dudley, under whom 
the tenant derived his title, in the manner hereafter stated. No ad- 
ministration was ever taken in Connecticut upon the estate of William 
Dudley, until 1814, and his estate was then declared insolvent; and in 
1817, the lands in controversy were sold by the administrator, by order 
of the court of probates, for the payment of tlie debts found due under 
the commission of insolvency. 

To rebut the title of the demandants, and to establish his own, the 
tenant proved that William Dudley died intestate, leaving seven chil- 
dren, the eldest of whom was Joseph Dudley. Upon the death of his 
father, the guardian of Joseph (the latter being within age,) entered 
into possession of the Dudley lands, and of the demanded premises as 
parcel, and used and occupied the same, receiving the rents and profits 
in behalf of Joseph, until his arrival at full age, when Joseph himself 
entered into possession, claiming them as his own, and taking the rents 
and profits to his own use, and holding all other persons out of pos- 
session, until the year 18irand 1812, when he sold the demanded prem- 
ises, and the tenant, either by direct or mesne conveyances under Jos- 
eph, came into possession, and has ever since held the premises in his 
own right. In the year 1811, Samuel Dudley, the brother of Joseph, 
claimed title to some of the Dudley lands possessed by Joseph, and 
brought an action of ejectment for the recovery of them, but the suit 
was compromised by Joseph's paying him about $2,000, and about the 
same time Joseph settled with another of his brothers, but did not pay 
him any thing. But Joseph never admitted that his brothers or sister 
had any interest in the lands; and said he could hold them, and did 
hold them, in the same manner as he held the lands in Massachusetts. 

The will of Governor Dudley, which was admitted to probate in 
Massachusetts in 1720, was also in evidence, but neither party estab- 
lished any privity or derivation of title under it. 

Upon these facts, the tenant prayed the court to instruct the jury, 
that the demandants had not made out a title in themselves, nor in 
William Dudley. Not in themselves, because the sale by the adminis- 
trator to the demandant was void, by force of the statute regarding 
the sale of disputed titles, the tenant being in possession of the prop- 
erty at the time of the sale, claiming it as his own, and that William 
Dudley had acquired no title to the property in question by possession, 
as he claimed to hold the same only during his life, and could therefore 
acquire no title, except for life by any length of possession, and that 



Ch. 1) POSSESSORY TITLES 45 

if he could acquire title by possession, if this estate descended from 
Thomas Dudley, said William could not in seventeen years, acquire a 
title against his brothers and sisters, or at least against those of them 
who had not been of full age for five years before the death of said 
William ; and if the demandants could recover at all, it could only be 
for that proportion of the estate which descended from William as one 
of the heirs of Thomas Dudley. 

The tenant further prayed the^ gomt to instruct the jury that if they 
found that Joseph Dudley had, for more than fifteen years before he 
sold the land in controversy, been in possession of the same, exclusively 
claiming them as his own, and holding out all others, he had gained a 
complete title to the property. 

The tena nt further claimed that the court ought to have instructed 
the jury, that under the circumstances attending the possession of said 
lands by William Dudley, the father, and by Joseph Dudley, and the 
length of time which had elapsed since the death of said William, with- 
out any claim on the part of the creditors of said William, the jury 
might presume a grant from some owner of the land to William for life, 
with remainder to his eldest son. But the court did charge and instruct 
the jury that the sale by the administrator under an order of court was 
not within the statute regarding disputed titles, and was not therefore 
void. That William Dudley, by mistaken constructions of the will of 
Governor Dudley, might have claimed an estate for life in the premises, 
and that such mistake would not operate to defeat his title by posses- 
sion. That the length of time in which this estate had been occupied 
by WilHam and Joseph Dudley, would bar any claims by the other chil- 
dren of Thomas Dudley, deceased, and that the jury were authorized 
to presume a grant by said Children to their brother William Dudley, 
deceased, and therefore, if the demandants recovered, they must re- 
cover the whole of the premises. 

The court also charged the jury that, as against the creditors of 
William Dudley, neither Joseph Dudley nor the tenant had gained title 
to the lands in controversy by possession, and that tlie jury were not 
authorized to presume a grant to Joseph. 

To which several opinions of the court the tenant, by his counsel, 
excepted. 

Story, J.^^ The j^rincipal questions which have arisen, and have ''^ 

been argued here, upon the instructions given by the circuit court, and 
to which alone the court deem it necessary to direct their attention, 
are: 1. Whether upon the facts stated, a legal presumption exists, 
that William Dudley died seised of an estate of inheritance in the de- 
manded premises ; and, if so, 2. Whether an exclusive possession of 
the demanded premises, by Joseph Dudley and his grantees, after the 
death of William, under an adversary claim, for thirty years, is a bar to 
the entry and title of the demandants under the administration sale. 

17 Part of the opinion is omitted. 



46 OKIGINAL TITLES (Part 1 

It is to be considered, that no paper title of any sort, is shown in Wil- 
liam Dudley or his son Joseph. Their title, whatever it may be, rests 
upon possession ; and the nature and extent of that possession must be 
judged of by the acts and circjumstances which accompany it, anijquali— 
fy, explain, or control it. (Undoubtedly, if a person be found in pos- 
session of land, claiming it as his own, in fee, it is prima facie evidence 
of his ownership, and seisin of the inheritance. But,_it_is not the pos- 
session alone, but the possession accompanied with tlie ^aii^_fii_liie 
fee, that gives this effect, by construction of law to the acts of the 
party. Possession, per se, evidences no more than the mere fact of 
present occupation, by right; for the law will not presume a wrong; 
and that possession is just as consistent with a present interest, under 
a lease for years or for life, as in fee. From the very nature of the 
case, therefore, it must depend upon the collateral circumstance^^ what 
is the quality and extent of the interest claimed by the party; and to 
that extent, and that only, will the presumption of law go in his favor. 
And the declarations of the party, while in possession, equally with his 
acts, must be good evidence for this purpose. If he claims only an 
estate for life, and that is consistent with his possession, the law will 
not, upon the mere fact of possession, adjudge him to be in under a 
higher right, or a larger estate. If, indeed, the party be in under title, 
and, by mistake of law, he supposes himself possessed of a less estate 
in the land than really belongs to him, the law will adjudge him in pos-^ 
session of, and remit him to, his full right and title. rFor a mistake of | 
law shall not, in such case, prejudice the right of the party; and his- 
possession, therefore, must be held coextensive with his right. This is " 
the doctrine in Littleton, section 695, cited at the bar; and better au- 
thority could not be given, if indeed so obvious a principle of justice 
required any authority to support it. But there the party establishes a 
title in point of law greater than his claim ; whereas, in the case now 
supposed, the party establishes nothing independent of his possession, 
and that qualified by his own acts and declarations. This is the dis- 
tinction between the cases, and accounts at once for the different prin- 
ciples of law applicable to them. 

It has also been argued at the bar that a person who commits a dis- 
seisin cannot qualify his own wrong, but must be considered as a dis- 
seisor in fee. This is generally true ; but it is a rule introduced for the 
benefit of the disseisee, for the sake of electing his remedy. For if a 
man enter into possession, under a supposition of a lawful limited right, 
as under a lease, which turns out to be void, or as a special occupant, 
where he is not entitled so to claim, if he be a disseisor at all, it is only 
at the election of the disseisee. Com. Dig. Seisin, F. 2, & F. 3 ; 1 Roll. 
Abrid. 662, L. 45; Id. 661, L. 45. There is nothing in the law which 
prevents the disseisee from considering such a person as a mere tres- 
passer, at his election ; or which makes such an entry, under mistake 
for a limited estate, a disseisin in fee absolutely, and at all events, so 
that a descent cast would toll the entry of the disseisee. But were it 



Ch. 1) POSSESSORY TITLES 47 

Otherwise, in order to apply the doctrine at all, it must appear that the 
party f ovmd in possession entered without right, and was, in fact, a dis- 
seisor; for if his entry were congeable, or his possession lawful, his 
entry and possession will be considered as limited by his right. For 
the law will never construe a possession tortious unless from necessity. 
On the ofher hand, it will consider every possession lawful, the com- 
mencement and continuance of which is not proved to be wrongful. 
And this upon the plain principle, that every man shall be presumed 
to act in obedience to his duty, until the contrary appears. When, 
therefore, a naked possession is_m_proof, unaccompanied by evidence 
as t o its origin, it will be deemed lawful and coextensive with thS right 
set up by the party. If the party claim only a limited estate, and not a 
fee, the law will not, contrary to his intentions, enlarge it to a fee. 
And it is only when the party is proved to be in by disseisin, that the 
law will construe it a disseisin of the fee, and abridge the party of his 
right to qualify his wrong. 

Now, in the cas e^at bar, it is not proved of what estate Thomas Dud- 
ley died seised in the premises. His possession does not appear to 
have been accompanied with any claim of right to the inheritance. It 
might have been an estate for life only, and as such have had a lawful 
commencement. If it were intended to be argued that he had a fee in 
the premises, it should have been established by competent proof that 
he was in possession, claiming a fee by right or by wrong. No such 
fact appears. The only fact, leading even to a slight presumption of 
that nature is, that his widow took one third of the rents and profits 
during her life. But whether this was under a claim of dower, or any 
other right, is not proved. The circumstance is equivocal in its charac- 
ter, and is unexplained ; and the inference to be deduced from it, of a 
descendible estate in her husband, is rebutted by the fact that immedi- 
ately on his death his son WiUiam entered into the premises, claiming 
a life estate, and held them during his life as his own, without any 
claim on the part of the co-heirs of his father to share in the estate. 
There i s then nothing^in the case, from which it can be judicially infer- 
redtjhat Thomas was ever seised of an estate of inheritance in the 
premises, and, of course, none of a descent from him to his heirs. 

Then, as to the estate of his son William, in the premises. It is ar- 
gued that William had an estate in fee, by right or by wrong. That if 
his entry, either in person or by his guardian, was without right, it was 
a disseisin, and invested him with a wrongful estate in fee. If with 
right, then it must have been as a co-heir of his father, and a grant 
ought to be presumed from the other co-heirs to him, releasing their 
title and confirming his. 

The doctrine, as to presumptions of grants, has been gone into 
largely on the argument, and the general correctness of the reasoning 
is not denied. There is no difference in the doctrine, whether the grant 
relate to corporeal or incorporeal hereditaments. A grant of land may 
as well be presumed as a grant of a fishery, or of common, or of a way. 



48 ORIGINAL TITLES (Part 1 

Presumptions of this nature are adopted from the general infirmity of 
human nature, the difficulty of preserving muniments of title, and the 
public policy of supporting long and uninterrupted possessions. They 
are founded upon the consideration that the facts are such as could 
not, according to the ordinary course of human affairs occur, unless 
there was a transmutation of title to, or an admission of an existing 
adverse title in, the party in possession. They may, therefore, be en- 
countered and rebutted by contrary presumptions ; and can never fairly 
arise where all the circumstances are perfectly consistent with the non- 
existence of a grant; a fortiori, they cannot arise where the claim is of 
such a nature as is at variance with the supposition of a grant. In 
general, it is the policy of courts of law to limit the presumption of 
grants to periods analogous to those of the statute of limitations, in 
cases where the statute does not apply. But where the statute applies 
it constitutes, ordinarily, a sufficient title or defence, independently of 
any presumption of a grant, and therefore it is not generally resorted 
to. But if the circumstances of the case justify it, a presumption of a^ 
^rant may as well be made in the one case as in the other ; and where . 
the other circumstances are very cogent and full, there is no absolute 
bar against the presumption of a grant, within a period short of the 
statute of limitations. See Phillips on Evidence, ch. 7, § 2, p. 126; 
Foley V. Wilson, 11 East, 56. 

If we apply the doctrines here asserted to the case at bar, we may 
ask, in the first place, what ground there is to presume any grant of 
the premises to William Dudley, and if any, what was the quantity or 
quahty of his estate? It has been already stated that there is no suffi- 
cient proof that his father died seised of a descendible estate in the 
premises ; and if so, the entry of William by his guardian, or in person, 
cannot be deemed to have been under color of title as heir; and in 
point of fact he never asserted any such title. For the same reason, 
no estate can be presumed to have descended to his co-heirs; and if so, 
the very foundation fails upon which the presumption of a grant from 
them to William can be built ; for if they had no title, and asserted no 
title, there is no reason to presume that he or they sought to make or 
receive an inoperative conveyance. There is no pretence of any pre- 
sumption of a grant in fee from any other person to William ; and as 
there is no evidence of any connection with the will of Governor Dud- 
ley, or of any claim of title under it by William, there does not seem 
any room to presume that he was in under that will, upon mistaken 
constructions of his title derived from it. There is this further diffi- 
culty in presuming a grant from the co-heirs to William, that at the 
time of his own entry, as well as that of his guardian, all of them were 
under age, and incapable of making a valid conveyance. During this 
period, therefore, no such conveyance can be presumed ; and yet Wil- 
liam, during all this period, claimed an exclusive right, and had an ex- 
clusive possession of the whole to his own use; and his subsequent 
possession was but a continuation of the same claim without any inter- 



Cll.- 1) POSSESSORY TITLES 49^ 

ference on the part of the co-heirs. In point of fact the youngest 
brother arrived at age about the time of WilHam's death ; and as to two 
others of the co-heirs, the statute of Hmitations of Connecticut, as to 
rights of entry, would not then run against them. The pr esumption of 
a grant from them is therefore, in this view, also, affected with an in- 
trinsic infirmity. 

in addition to all this, William nev er .claimed. .any estate in fee in 
thejpremises. His declaration uniformly was that he had a life estate 
only, and that upon his death they would descend to his son Joseph. 
Of the competency of this evidence to explain the nature of his pos- 
session and title, no doubt can reasonably be entertained. His ti tle 
being^ eviden ced only by po ssessio n, it must be limite d in , itsextentjQ 
the claim which he asserted. If, indeed, it had appeared that he was 
in under a written title which gave him a larger estate, his mistake of 
the law could not prejudice him; but his seisin would be coextensive 
with, and a remitter to, that title. But there is no evidence of any 
written title, or of any mistake of law in the construction of it. JFor 
aught that appears, William's estate was exactly what he claihied, a 
fife-estat e only, and the inheritance belonged to his son Joseph. It is 
material also to observe that the acts of the parties, and the possession 
of the estates during the period of nearly fifty years, are in conformity 
with this supposition, and at war with any other. Why should Wil- 
liam's brothers and sisters have acquiesced in his exclusive possession 
during his whole life, if the inheritance descended from their father ? 
Why should Joseph's brothers and sisters have acquiesced in his exclu- 
sive possession during a period of twenty-five years without claim, if 
their father William was seised of the inheritance? Why should the 
guardians of William and Joseph have successively . entered into the 
premises, claiming the whole in right of their respective wards, if their 
title was not deemed clearly and indisputably an exclusive title, or if 
they were in by descent under the title of their fathers? If, indeed, a 
presumption of a grant is to be made, it should be of a grant con- 
forming to the declarations and acts of possession of the parties during 
the whole period; and if any grant is to be presumed from the facts 
of this case, it is a grant of a particular estate to William, with a re- 
mainder of the inheritance to Joseph, or in the most favorable view of 
an estate tail to William, upon whose death the estate would descend 
to Joseph, as his eldest son per formam doni. If Thomas, the grand- 
father, were proved to have been the owner of the fee, there is nothing 
in the other circumstances which forbids the presumption of such a 
grant from him ; but as the cause now stands, it may as well have been 
derived from some other ancestor, or from a stranger. It is therefore 



the opinion of this court that the circuit court erred in directing the 
jury that William, by mistaken constructions of the will of Governor 
Dudley, might have claimed an estate for life in the premises, and that 
such mistake would not operate to defeat his title by possession, for 
Aig.Prop. — 4 



50 ORIGINAL TITLES (Part 1 

there was no evidence that William ever claimed under that will ; and 
also erred in instructing the jury that they were authorized to pre- 
sume a grant by the children of Thomas to William. The compromise 
entered into by Joseph with two of his brothers is not thought to 
change the posture of the case, because that compromise was made 
with an explicit denial of their right; and is therefore to be considered 
as an agreement for a family peace. * * * 

The remaining consideration under this head is, whether the posses- 
sion of Joseph Dudley can be considered as an adverse possession so 
as to toll the right of entry of the heirs, and, consequently, extinguish, 
by the lapse of time, their right of action for the land, as well as ex- 
tinguish by analogy of principle the power of the administrator to sell 
the land. It is said that the entry of Joseph into the premises is con- 
sistent with the potential right of the creditors ; that he had a right to 
enter as a co-heir of his father, and jf he_entered as co-heir, hi s pos- 
session was not adverse, but was a possession for the other heirs and 
creditors, and he could not afterwards hold adversely, or change the 
nature of his possession, for the creditors might always elect to con- 
sider him their trustee. There is no doubt that in general, the entry o f 
one heir will enure to the benefit of all, and that if the entry is made 
as heir, and without claim of an exclusive title, it will be deemed an 
entry not adverse to, but in consonance with, the rights of the other 
heirs. But it is as clear that one heir may disseise his co-heirs, and 
hold an adverse possession against them, as well as a stranger. And, 
notwithstanding an entry as heir, the party may, afterwards, by dis- 
seisin of his co-heirs, acquire an exclusive possession upon which the 
statute will run. An ouster, or disseisin, is not, indeed, to be presume;d 
from the mere fact of sole possession ; but it may be proved by such 
possession, accompanied with a notorious claim of an exclusive right. 
And if such exclusive possession will run against the heirs, it will, by 
parity of reason, run against the creditors. For the heirs, qua heirs, 
are in no accurate sense in the estate as trustees of the creditors. They 
hold in their own right by descent from their ancestor, and take the 
profits to their own use during their possession ; and the most that can 
be said is, that they hold consistently with the right of the creditors. 
The creditors, in short, have but a lien on the land which may be en- 
forced through the instrumentality of the administrator acting under 
the order of the court of probates. 

But in order to apply the argument itself, it is necessary to prove 
that th e ancestor had an estate of inheritance, and that the party 
entered_as _hein Now, inthe c^e^ at bar, all the circumstances point 
the other__wa3:. There is not, as has been already intimated, any 
proof that William Dudley died seised of an inheritance in the land; 
and there is direct proof that he asserted the inheritance to be in his 
son Joseph ; and the entry of the guardian of Joseph, as well as his 
own entry, after his arrival of age, was under an exclusive claim to 
the whole, not by descent, but by title distinct or paramount There 



Ch. 1) POSSESSORY TITLES 51 

is certainly no incapacity in an heir to claim an estate by title dis- 
tinct or paramount to that of his ancestor ; and if his possession is 
exclusive under such claim, and he holds all other persons out until 
the statute period has run, he is entitled to the full benefit and pro- 
tection of. the bar. It appears to us, therefore, that the jury ought 
to have been instructed, that if they were satisfied that Joseph's 
possession was adverse to that of the other heirs, and under a claim 
of title distinct from, or paramount to that of his father, during his 
twenty-five years of exclusive possession, the entry of the purchaser, 
under the administrator's sale, was not congeable, and that the pow- 
er of the creditor over the estate was extinguished. There was there- 
fore error in the opinion of the court to the jury, that. js_aga inst the 
creditors of William Dudley ^ neither Jo seph nor _th e^ tenant had 
gained any t itle tq^the land in controve r sy by possess ion^ 

For these reasons the judgment of the circuit court must be j;e- 
_ yersed j and the cause remanded, with directions to the court to order 
a venire facias de novo.^® / '^/■^ 

FRENCH V. PEARCE. ^-A.>^.^.. ^a.. 

(Supreme Court of Errors of Connecticut, 1831. 8 Conn. 439, 21 Am. Dec. 680.) 

This was an action of trespass quare clausurn Jregit^; tried at Litch- 
field, February term, 1831, before Williams, J. 

The plaintiff and defendant were adjoining proprietors of land; and 
the land in controversy was the border between them, which was 
wood-land, unfenced. Both parties claimed under William French, 
the fa ther of the plaintiff' and of the defendant's wife. The plaintiff's 
title was admitted, unless the land was conveyed to the defendant's 
wife, by a deed dated the 11th of May, 1809; in which the line on the 
side adjoining the plaintiff was particularly described. A part of the 
description was "from a butternut tree a straight line to Piatt's corner 
— said piece being the same land v/hich the grantor bought of Rev. Mr. 
Benedict." The defendant contended, that as the deed to his wife re- 
ferred to the land purchased of Mr. Benedict, he might shew where 
were the bounds of that lot ; and claimed, that by those bounds, there 
was not a straight line from the butternut tree to Piatt's corner. This 
was accompanied with evidence, by which he claimed to have shewn, 

18 See Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624 (1837). 

The posse ssion npr] occupancy of vacant land by a mere squatter is not 
adverse, so as to ripen into a title by adverse possession . See Jll«lJ(ii'feou v" 
Schamikow, IbO i'ed. bU, SO U. (J. A. 3*3, 15 L. K. A (N. S.) 1178 (1907) 
Mattson v. Warner, 115 Minn. 520, 132 N. W. 1127 (1911). 

W hether the possession \yas under a cTnim o f tii-lp, nr not, is a question of 
fact, to be baSdled as such on the Trial, and conclusions thereon are ordi 
narily not disturbed by reviewing courts. Mattson v. Warner, supra. 

T here is no reouirement that th <^ oinin^: nP fiflp be bona fld e. Rupley v 
Eraser (Minn.) 156 N. W. 3^0 (1916); Kamapo Mt'g. Co. v. Mapes, 216 N. Y 
362, 110 N. E. 772 (1915). 



J52 ORIGINAL TITLES (Part 1 

that he had occupied and possessed the land in question for more than 
fifteen years, although not included in the straight line mentioned in 
the deed. The plaintiff denied the occupation of the defendant; and 
denied also any difference in bounds in consequence of the reference 
to Mr. Benedict's deed, and any adverse possession by tlie defendant. 

The judge charged the jury, tliat in considering where were the 
boundaries of this lot of the defendant's wife, if the description in the 
deed was doubtful, they might take into consideration the possession 
or occupation of the defendant, for the purpose of determining those 
bounds. But if they should find, that the defendant had possessed the 
land in question, for more than fifteen years, claiming and intending 
only to occupy to the true line, as described in his deed and no fur- 
ther, then his possession must be referred to his deed, and it would 
not be adverse to the plaintiff; and the jury, notwithstanding such 
possession, must look to the deed, to determine the line of division. 

The jury returned a verdict for tlie plaintiff; and the defendant 
moved for a new trial for a misdirection. 
Q HosMER, C. J. Whether the line of occupancy was the dividing line_ 

between them, was the point of controversy between the parties. The 
jury were charged, so far as relates to the deed, that if the line de- 
scribed in it was doubtful, they might take into consideration the pos- 
session and occupation of the defendant, for the purpose of deter- 
mining it. This opinion seems not to be questioned ; nor is it question- 
able. An occupation of land by the defendant as his own, under the 
plaintiff's eye, to what he supposed to be the dividing line between 
him and the plaintiff, and which, for many years, the plaintiff' permit- 
ted without a question, from the mutual assent of the parties is strong 
presumptive evidence of the true place of the line. 1 Phill. Ev. 
"420-422. 

On the point of title by fifteen years possession, as the only objec- 
tion made at the trial, was, that the possession of the defendant was 
not adverse, it must be assumed, that none other existed. Of conse- 
quence, the controversy is confined to that single point. 

By a dverse poss^ssiori_is meant a possession hostile to the title of 
another ; or, In other words, a disseisin of the premises ; and by dis- 
seisin is understood an unwarrantable entry, putting the true owner 
out of his seisin. Co. Litt. 153, b. 181. 

The enqujry, then, is precisely tliis ; what must be the character of 
the act, which constitutes an adverse possession? 

This question was directly answered, in Bryan v. Atwater, 5 Day, 
181, 5 Am. Dec. 136, and by this Court. A clear and unquestionable 
rule was intended to be given. The court commenced the expression 
of their opinion, by saying: "It will be necessary to ascertain pre- 
cisely the meaning of the terms, 'adverse holding' or 'adverse posses- 
sion.' " The first principle asserted in that case is, that to render a 
possession adverse, it is not necessary that it should be accompanied 
with a claim of title and with the denial of tlie opposing title. The case 



Ch. 1) POSSESSORY TITLES 53 

next affirms that possession is never adverse, if it be under the legal 
proprietor and derived from him. After these preliminaries, it is en-, 
quired: "But more particularly, what, in point of law, is an adyei'se.^ 
jossession ? It is," say the court, "a possession, not under the legal 
proprietor, but entered into without his consent, either, directly or 
indirectly given. It is a possession, by which he is disseised and ousted > 
of the lands so possessed." That there should remain no doubt, they ■ 
next enquire, what constitutes a disseisin? After shewing negatively, i 
that it is not requisite to enter claiming title, or denying the title of 
the legal owner, they remark affirmatively, that it is only necessary 
for a person to enter and take possession of land as his own ; to take | 
the rents and profits to himself ; and to manage with the property as ', 
an owner manages with his own property; that is, tlie person thus • 
possessing must act as if he were the true owner and accountable to 
no person for the land or its avails. A criterion is then given to de- 
termine whether a possession is adverse. "It is only necessary to 
find out," say the court, "whether it can be considered as the con- 
structive possession of the legal proprietor." ; 
I have been thus particular in analyzing tliis case, in which the rea--* 
sons were drawn up, by a very able and eminent jurist; as it presents, 
in the plainest language, a sure and most intelligible land-mark, to ascer- 
tain when a possession is adverse. It is peculiarly observable, that by 
the reasons given, anxiously laboured as they were, it was intended 
to put the question at rest for the future. The possession alone, and 
the qualities immediately attached to it, are regarded. No intimation 
is there as to the motive of the possessor. If he intends a wrongful 
disseisin, his actual possession for fifteen years, gives him a title; or 
if he occupies what he believes to be his own, a similar possession gives 
him a title. Into the recesses of his mind, his motives or purposes, 
his guilt or innocence, no enquiry is made. It is for this obvious rea- 
sonjlthat it is the visible and adverse possession, with an intention 



to possess, that constitutes its adverse character, and not the remote 
views or belief of the possessor. 

— It" is not necessary that I should proceed further, as the point of 
decision, in the case before us, has been settled, by this Court, and 
with great precision. At the same time, it may be the more satisfac- 
tory to shew, that the determination here is in harmony with the deci- 
sions of other courts. 

In Westminster-Hall, the character of an adverse possession is well 
established. The possession of a person denying the title of the owner, 
or claiming the premises, or taking the whole rents and profits with- 
out accounting, is held sufficient evidence of actual ouster. Doe d. 
Fisher & al. v. Prosser, Cowp. 217; Doe d. Hellings & ux. v. Bird, 
11 East, 49; Stocker v. Berny, 1 Ld. Raym. 741; s. c. by the name 
of Stokes V. Berry, 2 Salk. 421. The extent of the doctrine is defined 
by the following considerations. The possession of a tenant in com- 
mon is held not to be adverse, without actual disseisin or its equiva- 



54 ORIGINAL TITLES (Part 1 

lent, as he is presumed to possess for his fellow commoner ; but the 
possession of an individual entering not under another, is adverse, by 
a perception of the profits only to his own use. 

In the state of New York, the entering on land under pretence of 
title, or under a claim hostile to the title of the true owner, constitutes 
an adverse possession. Brandt d. Walton v. Ogden, 1 Johns. (N. Y.) 
156; Jackson d. Griswold v. Bard, 4 Johns. (N. Y.) 230, 4 Am. Dec. 
267; Jackson d. Bonnell & al. v. Sharp, 9 Johns. (N. Y.) 163, 6 Am. 
Etec. 267. 

To the same effect is the law of Massachusetts. "To constitute an 
actual ouster," said Parsons, Ch. J., "of him who was seised, the dis- 
seisor must have the actual exclusive occupation of the land, claiming 
i:o hold it against him who was seised, or he must actually turn him 
out of possession." Kennebeck Purchase v. Springer, 4 Mass. 416, 
418, 3 Am. Dec. 227. Boston Mill Corporation v. Bulfinch, 6 Mass. 
129, 4 Am. Dec. 120. It is obvious, that a person who takes posses- 
sion, does not the less claim to hold it against him who before was 
seised, because he conscientiously believes, that he has right to possess. 

The law of Maine, so far as it is expressed in the case of Kenne- 
uec Purchase v. Laboree & al, 2 Greenl. (Me.) 275, 11 Am. Dec. 79, 
1^ in perfect harmony with that of the states already mentioned. "The 
doctrine on this^ subject," said Mellen, Ch. J., "seems to be plain jind 
well-settled. A possession must be adverse to the true owner, in or- 
der to constitute a disseisin. The possessor must claim to hold and 
improve the land for his own use, and exclusive of others." He next 
states, that in a count on the demandant's seisin, it was never incum- 
bent on the tenant to prove more than his continued possession and 
occupancy for thirt}' years next before the commencement of the ac- 
tion, using and improving the premises after the manner of the 
owner of the fee ; and he then subjoins, that such possession, unless 
explained, affords satisfactory evidence to the jury, that such tenant 
claimed to hold the land as his own. 

In the case of Brown v. Gay, 3 Greenl. (Me.) 126, the question was, 
whether the tenant was in possession of certain land by disseisin. He 
owned a lot denominated No. 3, and was in possession of lot No. 4, 
claiming that it was part of the former lot. He was, therefore, in 
possession through mistake. This principle was advanced, by the court, 
to wit: "If the owner of a parcel of land, through inadvertency or 
ignorance of the dividing line, includes a part of an adjoining tract 
within his enclosure, this does not operate a disseisin, so as to prevent 
the true owner from conveying or passing the same by deed." 

If the learned court meant to lay down the position, that although 
the possession was adverse and a disseisin, yet that it was of such a 
character as not to prevent the owner from transferring the land by 
deed, the case has no bearing on the one before us. But if it was in- 
tended to declare, that there was no disseisin at all, by reason of the 
before mentioned mistake, I cannot accede to the proposition. There 



Ch. 1) POSSESSORY TITLES 55 

was a possession, it was not under the true owner, but it was under a 
claim of right; and the rents and profits (if any) were received and 
appropriated to the possessor's use,, without any supposed or assumed 
accountabiHty. This is a disseisin, by all the cases on the subject, with 
every mark or indicium of one upon its face. If the possession were 
incidental to the taking of something off the property, it would be a 
trespass only. But when the possession [s a permanent object, under 
a claim of right, however mistaken, what can be a disseisin, if this is 
not? That the possessor meant no wrong, might be very important, 
if he were prosecuted for a crime ; for nemo fit reus, nisi mens sit 
rea. But the motive, which induced the taking possession, is remotely 
distant from the possession in fact under a claim of right, and in no 
respect tends to qualify or give character to the act. It was adverse 
possession and disseisin (innocently happening) with the full intention 
of the mind to possess exclusively ; and by necessary consequence, a 
seclusion of the owner from the seisin of his property. 

I agree with the learned court, that the intention of the possessor 
to claim adversely, is an essential ingredient. But the person who en- 
_ters on land belie ving and claiming it to b e hls^wn, dqes^ tlius enter^ 
and poss ess. The very nature of the act is an assertion of his own 
title, and the denial of the title of all others. ^t_"iatters not, that the 
possessor was mistaken, and had he be en better informed, would not 
have entered on th e land.. This /bears on another subject — the moral 
nature of the action ; but it does not point to the enquiry of adverse 
possession. Of whatconse^uence is it to the person disseised, that 
the disseisor is a n honest man ? His property is held, by another, 
under a claim of right; and he is subjected to the same privation, as 
if the entry were made with full knowledge of its being unjustifiable. 

In the case of Ross v. Gould, 5 Greenl. (Me.) 204, it is said, "a dis- 
seisin cannot be committed by mistake, because the intention of the 
possessor to claim adversely, is an essential ingredient in disseisin." 
.1 do not admit the p rinciple. It is as certain that a disseisin may be 
committed by rnistake, as that a man may by mistake take possession 
of land, claiming title and believing it to be his own. The possession 
is not the less adverse, because the person possessed intentionally, 
though innocently. But in the moral nature of the act, there is un- 
doubtedly a difference, when the possessor knowingly enters by wrong. 

I have been the more particular in my observations, for two reasons. 
The first is, that the evidence of adverse possession, which is of very 
frequent occurrence, might be placed on grounds clear and stable : 
The next, from a serious apprehension that in the law of disseisin, an 
important change is inadvertently attempted. Adopt the rule, that 
an entry and 'possession under a claim of right, if through mistake, 
does not constitute an adverse possession, and a new principle is sub- 
stituted. The enquiry no longer is, whether visible possession, with 
the intent to possess, under a claim of right, and to use and enjoy as 
one's own, is a disseisin; but from this plain and easy standard of 



56 ORIGINAL TITLES (Part 1 

proof we are to depart, and invisible motives of the mind are to be 
explored ; and the enquiry is to be had whether the possessor of land 
acted in conformity with his best knowledge and belief. 

Inthe case before us, the plaintiff adduced evidence to show, that 
he entered on the land in question, and possessed it more than fifteen 
years, uninterruptedly and exclusively, under a claim and belief of 
right, and appropriating to his own use, without account, all the rents 
and profits. This was^^adyerse possession and disseisin, and gave him, 
title under the law of the state. 

Upon this principle, the charge was incorrect, and a new trial is ad- 
vised. 

ihe other judges were of the same opinion, except Peteirs, J., who 
was absent. 

New trial to be granted.^' 

PREBLE V. MAINE CENT. R. CO. 

(Supreme Judicial Court of Maine, 1893. 85 Me. 260, 27 Atl. 149, 21 L. R. A. 
829, 35 Am. St. Rep. 366.) 

This was a real action brought to deterrriine_ the_di vidin g Hne^ be- 
tween adjoining .owner s.. 

The case is stated in the opinion. 

A principal issue between tlie parties was that of adve rse occupatjon, 
the plaintiff claiming that thereby he had acquired a title to the dis- 
puted premises. The testimony bearing upon this issue and coming 
from the plaintiff's cross-examination, is as follows : 

"O. Previous to your deed to the railroad of the two rod strip be- 
tween you and them, was there anything to mark the western bound- 
ary of their location? A. Yes, there was a fence on their western 
boundary. Then they took two rods more and moved the fence. I 
deeded it to them. 

19 A. conveyed fifty acres of his land to B. In building a Jiue_fen£e be- 
tween the two properties A., b y mistake, inclosed seventeen acres of B.'s 
land, and occnpipd samp for thp nprjori of the f^t'^^"^^' "f limi tatlO B^." In 
ejectment by B. against A. to recover possession of the seventeen acres, A. 
c laimed bv adve y;-ip nnsst^ssinn. B. offered to prove that after the fence 
was built A. said that "he thought the fence was on the con-ect line, but 
if it left B. with less than fifty acres, the fence would have to be moved." 
Was the evidence offered materia l? See King v. Brigham, 23 Or. 2G2, 31 Pac. 
601, 18 L. H. A. 361 (1892); Schaubuch v. Dillemuth, 108 Va. 86, 60 S. E. 
745, 15 Ann. Cas. 825 (1908); Searles v. De Ladson, 81 Conn. 133, 70 Atl. 
589 (1908). 

An ignorant woman, a devisee of certain lands, inclosed 'more than she 
was entitled to, and occupied same for more than the period of the statute of 
limitations. In ejectment against her by the paper title owner, she set up 
the statute. Qn examination during the trial g^i<^ g?^iV^ si^^ "b ad never wan t- 
ed more than tbe will gav^ Her, Put sne knew the will gave her what"she 
luid In closed," Was her possession adverse? Johnson v. Thomas, Zo App. L>. 
L'. 141 (1904). ^ 



Ch. 1) POSSESSORY TITLES 57 

"Q. It was your understanding and also the understanding of the 
railroad company that the fence was moved back to correspond with 
the new line? A. Yes, sir. 

"Q. Your occupation ever since has been based upon that under- 
standing and supposition, has it not? A. I always supposed that was 
the line. 

"Q. When you made your deed to the railroad company of the two- 
rod strip, and then occupied afterwards up to this fence, you did 
not intend thereby to encroach on the land which you had just deeded 
to the railroad? A, I supposed I was using my own land. I moved 
the fence in at one time two feet. 

"Q. D'own to the time when you moved it in yourself, the fence 
was kept as it was put up shortly after the deed of the two-rod strip? 
A. They told me they had taken two rods. 

"Q. How long after you delivered to the railroad company your 
deed of the two-rod strip was the fence moved back to correspond 
to the new line? A. The fence was moved back before I gave the 
deed ; it was witliin that year. I was away at sea ; when I came home 
they told me they had taken it. 

"O. From that time since you have regarded the fence line as the 
true line? A. I have. 

"O. And occupied up to it on that account and on that ground? A. 
Occupied it on account I thought it was my own land." 

Whitehouse, J. In this writ of entry the plaintiffs seek to recover 
a small piece of land, triangular in shape, now covered by a portion 
of the defendant's freight platform at the Richmond station. The case 
is presented on report and discloses no material controversy respecting 
the facts. The rights of the parties must, therefore, be determined 
by applying the established principles of law to the fair and reasona- 
ble inferences drawn from the facts proved or admitted. 

The original location of the defendant's railroad in 1848 was made 
four rods in width at the point in question, its westerly boundary be- 
ing the easterly line of the premises then owned by the plaintiff's fa- 
ther. But in 1852 the company purchased of the plaintiffs, who had 
in the meantime acquired title to the property, an additional strip two 
rods in width, extending across their lot, and adjoining the original 
location on the westerly side. At the same time the fence which had 
been erected on the supposed boundary line in 1848, was moved west- 
erly by the defendant's servants for the purpose of enclosing the two 
rods then purchased ; but the plaintiff, Israel Preble, testifies that in 
re-building the fence in "1864 or 1866" he moved it two feet further 
on to his own land. Prior to 1889 the defendants had used only a 
part of this additional strip, and hence there had been no occasion for 
an accurate survey of the land. But when at the last named date, it 
became necessary to enlarge the freight platform, measures were taken 
to have the boundary line between the parties definitely ascertained 
and fixed. It was then discovered from the record of the orisfinal lo- 



,/ 



58 ORIGINAL TITLES (Part 1 

cation that the "central or directing line" of the railroad was not in 
the centre of the four rods of land taken for the construction of the 
road, but was twenty-eight feet from the easterly line and thirty- 
eight feet from the westerly line of the location. It accordingly ap- 
peared that the true boundary of the defendant's land on the west was 
thirty-eight feet and two rods or seventy-one feet from the centre of 
the main track of the railroad. By this measurement the boundary 
line was found to be west of the existing fence a distance of two feet 
and eight-tenths at the southerly end and eight feet and ten inches 
at the northerly end. Whether the mistake made by the defendant's 
servants respecting the distance tlie fence should have been moved in 
1848, arose in part from an erroneous assumption that the central line 
of the track was the centre of the location, or otherwise, does not ap- 
pear, and it is not material to inquire. There is not only no evidence 
that the main track has been moved at this point since tlie original 
location but it is satisfactorily shown tliat it has not been moved ; and 
the simple process of drawing a line seventy-one feet westerly from 
the centre of the main track and parallel with it now establishes be- 
yond a doubt the location of the westerly line of the two-rod strip. 
The triangular piece in controversy is thus conclusively shown to be 
wholly on the east side of the true line, and hence a part of the land 
purchased of the plaintiffs in 1852. 

But Israel Preble, the surviving plaintiff, claims that he cannot at 
this date satisfactorily locate his easterly line by measurement; and 
says that he has continually occupied the land to the fence as it existed 
in 1889 upon the understanding and belief that it marked the true line, 
and he now claims title to the disputed piece by adverse possession. 
And the question is, can this claim on the part of the plaintiff be sus- 
tained on the facts here presented? Clearly not, unless the rule es- 
tablished by an unbroken line of the decisions of this court covering a, 
period of nearly seventy years, is now to be overturned. That rule isl 
that one who by mistake occupies for twenty years, or mbre, land not' 
covered by his deed with no intention to claim title beyond his actual' 
boundary wherever that may be, does not thereby acquire title by ad- 
verse possession to land beyond the true line. Brown v. Gay, 3 Me. 
(Greenl.) 126; Ross v. Gould, 5 Me. (Greenl.) 204; Lincoln v. Edge- 
comb, 31 Me. 345; Worcester v. Lord, 56 Me. 266, 96 Am. Dec. 456; 
Dow v. McKenney, 64 Me. 138. 

We are aware that the soundness of this doctrine has been question- 
ed in other jurisdictions. It has been said that the possession is not the 
less adverse because the person possessed intentionally though innocent- 
ly; and the further objection has been made that it introduces a new 
principle by means of which the stable evidence of visible possession 
under a claim of right, is complicated with an inquiry into the invisible 
motives and intentions of the occupant. French v. Pearce, 8 Conn. 
439, 21 Am. Dec. 680; Wood on Limitati6ns, § 263, and authorities 



Ch. 1) POSSESSORY TITLES 59 

cited. It is manifest, however, that those holding these views have not 
critically distinguished the decisions of our court upon the subject, and 
hence have failed to apprehend their true import and exact limitations. 
A frequent recurrence to elementary truths in any science jsthe 
greatest safeguard against error, and in the ultimate analysis of the 
doctrine of adverse possession the distinctive element which supports 
the rule above stated at once becomes apparent. Indeed it is aptly 
suggested in the familiar test imposed by Bracton: "Ouaerendum est 
a judice quo animo hoc fecerit." Co. Littl. 153 b; 8 Mod. Rep. 55. 
The inquiry must be quo animo is the possession taken and held. 

There is every presumption that the occupancy is in subordination to 
the true title, and if the possession is claimed to be adverse the act of 
the wrong-doer must be strictly construed, and the character of the 
possession clearly shown. Roberts v. Richards, 84 Me. 1, 24 Atl. 425, 
and authorities cited. "The intention of the possessor to claim ad- 
versely," says Mellen, C. J., in Ross v. Gould, supra, "is an' essential 
ingredient in disseizin." And in Worcester v. Lord, supra, the court 
says : "To make a disseizin in fact there must be an intention on the 
part of the party assuming possession to assert title in himself." In- 
deed the authorities all agree that this intention of the occupant to 
claim the ownership of land not embraced in his title, is a necessary 
element of adverse possession. And in case of occupancy by mistake 
beyond a line capable of being ascertained, this intention to claim title 
to the extent of the occupancy must appear to be absolute and not con- 
ditional ; otherwise the possession will not be deemed adverse to the 
true owner. It must be an intention to claim title to all land within a 
certain boundary on the face of the earth, whether it shall eventually 
be found to be the correct one or not. If for instance one in ignorance 
of his actual boundaries takes and holds possession by mistake up to a 
certain fence beyond his limits, upon the claim and in the belief that it 
is the true line, with the intention to claim title, and thus if necessary, 
to acquire "title by possession" up to that fence, such possession having 
the requisite duration and continuity, will ripen into title. Hitchings v. 
Morrison, 72 Me. 331, is a pertinent illustration of this principle. See, 
also^ Abbott v. Abbott, 51 Me. 575; Ricker v. Hibbard, 7Z Me. 105. 
-"^i on the other hand a party through ignorance, inadvertence or 
mistake, occupies up to a given fence beyond his actual boundary, be- 
: cause he believes it to be the true line, butjias no intention to claim 
! title to that extent if it should be ascertained that the fence was on his 
neighbor's land, ah indispensable element of adverse possession is 
wanting. In such a case the intent to claim title exists only upon the 
condition that the fence is on the true line. The intention is not abso- 
lute^ut pro vision al, and the possession is not adverse. Dow v. Mc- 
Kenney, 64 Me. 138, is an exceTTeht illustration of this rule. In that 
case a fence had been maintained on a wrong divisional line by mistake, 
and it was found by the court as a matter of fact that "none of the 



ih 



^ 



60 OEIGINAL TITLES (Part 1 

parties had any idea of maintaining any line but the true divisional 
line and that they occupied according to the fence only because they 
supposed it was on the true divisional line between them." Upon this 
finding it was held as a matter of law that such possession was not ad- 
verse to the right of the true owner. The unconditional intent to 
claim title to the extent of the occupancy was wanting. See, also, 
Worcester v. Lord, 56 Me. 266, 96 Am. Dec. 456. 

Thus it is perceived that possession by mistake as above described 
may or may not work a disseizin. Itjsjnot merely the existence, o.f_a_ 
mistake, but the presence or_absence of the requisite intention to claim 
title that fixes the character of the entry and determines the question 
of disseizin, ^he two rules are expressly recognized and carefully dis- 
tinguished in our recent decisions. The distinction between them is 
neither subtle, recondite or refined, but simple, practical and substan- 
tial. It involves sources of evidence and means of proof no more 
difficult or complex than many other inquiries of a similar character 
constantly arising in our courts. 

The conclusions of fact which are fairly warranted by the evidence 
leave no room for doubt that the case at bar falls within the principle 
last stated. It has already been seen that, prior to 1889, both parties 
were ignorant of the fact that the fence erected by the plaintiff in 
"1864 or 1866" was not on the true line. The plaintiff, Israel Preble, 
himself testifies that after he moved the fence he had always regarded 
it as the true line ; that he had occupied the land up to the fence upon 
the supposition and belief that it was the true line and that he had so 
occupied it because he thought it was his own land. This testimony, 
viewed in the light of the circumstances and situation of the parties, 
emphatically negatives the idea that during this time the plaintiff had 
any intention to claim title to land which did not belong to him. We 
are warranted in believing that it would do injustice to the plaintiff 
himself, as well as violence to all the probabilities in the case, to as- 
sume that immediately after the plaintiff had conveyed the land to the 
defendant for a satisfactory consideration, he formed the intention 
of depriving the company of a portion of the same land by disseizin in 
case the fence should not prove to be on the true line. 

The conclusion is irresistible that the plaintiff held possession of the 
locus by mistake in ignorance of the true line, with an intention to 
claim title only on condition that the fence was on the true line. His 
possession was, therefore, not adverse to the true owner, and cannot 
prevail against the valid record title of the defendant. JLudgment for 
the defendant.-'' 

Peters, C. J., Walton, Virgin and Haskell, JJ., concurred. Em- 
ery, T., did not concur. , , , 

20 See Richardson v. Watts, 94 Me. 476/487, 48 Atl. ISO (1901) ; Doolittle 
V. Bailey, S."> Ii)\va. .^98, 52 N. W. 337 (1892) (but see Grube v. Wells, 3-1 
Iowa, 148 [1871]) ; JNIiller v. Mills County, 111 Iowa, 654, 82 N. W. 1038 (190O) ^ 



Ch. 1) POSSESSORY TITLES 61" 



BOND V. O'GARA. 

(Supreme Judicial Court of Massachusetts, 1900. 177 Mass. 139, 58 N. E. 275, 

83 Am. St. Rep. 265.) 

Writ of entry, to recover a tract of land situated in Leicester. Plea, 
general issue. Trial in the Superior Court, before Gaskill, J., who 
allowed a bill of exceptions, in substance as follows. 

The d emandant claimed^tit^e through a deed to him on the premises, 
by one Lanphear, dated March 11, 1899. Lanphear's title came from 
a deed dated January 5, 1899, also delivered on.Jka.lan.d, to him, by 
Kate Hanlon and her children, being the children and heirs of her de- 
ceased husband, John Hanlon. The, tenant claimeii tjtlp thrnngh a 
lease fromjhe heirs of one Olney, decease d,, dated December 9, 1898o 
The paper title was shown to be in the heirs of Olney by a series of 
conveyances beginning with the deed of one Burr to Buchanan, June 
4, 1863. The demandant claimed that John Hanlon or his widow, Kate 
Hanlon, or his heirs who signed the deed to Lanphear, had acquired a 
title to the premises by possession^ for twenty years. 

There was evidence tending to show that John Hanlon entered upon 
the premises about the year 1864, cut the wood and timber, and there- 
after occupied the same for a garden and for pasturing his cow and 
for other purposes, the evidence tending to show that this occupation 
was exclusive and continuous. There was evidence tending to show 
that John Hanlon entered upon the premises either in pursuance of a 
verbal gift of the land to him by Samuel L. Hodges, or by a permis- 
sion to occupy the same granted to him by Hodges, who became 
owner of the premises by a deed from Patrick Hanover, dated October 
30, 1865, and Hodges conveyed the same to one Gilbert and others on 
October 19, 1866. John Hanlon died in 1873, and thereupon his wid- 
ow continued to occupy the premises in the way in which her husband 
had done, and in the way in which she occupied the adjoining farm, 
the title to which was in John Hanlon at the time of his death. Some 
of her children, the heirs of John Hanlon, lived with her and worked 
on the premises in question. The evidence tended to show that this 
occupation of John Hanlon during his life and that of Kate Hanlon 
was ope n and continuous and exclusive, and the pr incipal question in r""^ 

controv ersy was whether the occupation was under a claim of right or 
under a l icense or permission from Jjodges.- Kate Hanlon testified, 
and some of her children testified, and there was evidence tending to 
show that the occupation was under the claim that Samuel L. Hodges 
had given the land to John Hanlon, and that Kate claimed to occupy 
it as her own because Hodges had given it to her husband. 

Helmick v. Railway Co. (Iowa) 156 N. W. 736 (1916) ; Edwards v. Fleming, 83 
Kan. 653, 112 Pac. 836, 33 L. R. A. (N. S.) 923 (1911); Skansi v. Novak, 84 
Wash. 39, 146 Pac. 160 (1915). 



62 ORIGINAL TITLES (Part 1 

This evidence was controverted by the tenant, who put in evidence 
that said Kate Hanlon had stated that Hodges had given to her hus- 
band and herself the right to occupy the premises and the right to cut 
the grass, etc. The deeds from Burr to Buchanan, from Buchanan to 
Hanover, and from Hanover to Hodges, reserved a right to the Leices- 
ter Reservoir Company, whose pond bordered on the premises, to take 
material for its dam from the premises ; and there was evidence that 
an employee of the Leicester Reservoir Company had crossed the 
premises and had torn down a fence witliin twenty years, which had 
been put up by Kate Hanlon, and tliat tliereupon Kate Hanlon had 
restored the fence. After the employee had torn it down the second 
time she left an opening where he could go through, and thereafter the 
fence was left undisturbed. 

There was no evidence, except such as may be inferred from the 
evidence herein stated, that any of the owners of the paper title of the 
land, except Hodges, had ever given any license or permission, or had 
any knowledge of any license or permission to John Hanlon or Kate 
Hanlon, or the heirs of John Hanlon, to occupy the premises. 

The demandant asked the judge to instruct the jury as follows: L 
If the owner of the land verbally gave the land to John Hanlon, and 
thereupon Hanlon entered on the premises and occupied them continu- 
ously till his 'death, claiming to own them, and was not interfered with 
in said occupation, and immediately upon his death his widow con- 
tinued to occupy the same continuously in the same way, and the whole 
period of such continuous occupation amounted to twenty years, the 
jury would be authorized to find that the title was in Mrs. Hanlon, or 
in her and the heirs at law of said John Hanlon, and that the title 
passed to the demandant by virtue of deeds which were annexed as 
Exhibits A and B. 2. If the occupation of Mrs. Hanlon has been suffi- 
cient to give a title, under the rules of law given you, but for some li- 
cense or permission which might qualify such occupation, then the said 
license or permission must appear to be a license or permission granted 
by the owner before or at the time the occupation is going on, or in 
force during the time of such occupation. 3. Any license or permis- 
sion given by Hodges during his ownership is, in itself, of no legal im- 
portance, as affecting occupancy by Mrs. Hanlon subsequent to the 
date when he parted with his title, and it could have no farce in this 
case, unless there is evidence that the grantees of Hodges, while own- 
ers, renewed or adopted, or in some way intentionally continued or 
revived, such license or permission. 4. If the occupation of Mrs. Han- 
lon of the premises in question for twenty years was such that the real 
owner of the premises could have sued her for trespass for such occu- 
pation, then said occupation was adverse within the meaning of the 
law. 5. On the evidence in tlie present case the occupation by Mrs. 
Hanlon of the premises in question, cultivating the same, cutting the 
hay and grass on the same, and pasturing her cow thereon, was such 



Ch. 1) POSSESSORY TITLES 63 

occupation as would support an action of trespass on the part of the 
owner of the estate, in tne absence of any Hcense or permission given 
by the person who owned the premises at the time of said occupation. 

The ju dge refused to give_ the instnictions in the form requested^ 
but after generalmstructions as to adverse possession _ins^truc_ted_the 
jury, in substance, that if Hanlon's occupancy was not by gift,-^ but 
by permission only, he did not acquire any right against the owner of 
the land; that the right of Hodges to continue that permission 
ceased, as matter of law, with the deed given by him on October 
19, 1866; that if Hanlon, wife or children, continued to occupy on 
the belief that the permission continued, no right could be acquired, 
but tha t if_ die occupancy was on the belief that the land was theirs, 
and continued twentj^jears uninterruptedly, being adverse and open, a 
title_would_be-ac<iuired. He further instructed them that, if the first 
occupation by the father was adverse and the children continued their 
occupation, they could add the time of their occupation, if they claim- 
ed title, to that of their father, but, if not, then, if the mother's belief 
was that Hodges had given the land to her husband, her uninterrupted 
occupation for twenty years, if adverse and open, would give a good 
title; and that if the occupation by Mrs. Hanlon or the heirs was ex- 
clusive, except as to tlie right reserved to the Leicester Reservoir Com- 
pany, it was sufficient, because that right was reserved by the deed and 
exercised thereunder. 

The demandant excepted to the refusal to give the instructions pray- 
ed for, and to the actual instructions given so far as they differed from 
the instructions prayed for. 

The jiary returned a verdict for the tenant ; and the demandant al- 
leged ^x_cep±tQns. 

Holmes, C. J. This is a writ of entry. The demandant claims title 
under £f deed from the widow and heirs of one John Hanlon, setting n y^ 

up a title in them by the running of the statute of limitations. There 
was evidence that the holding of John Hanlon and his widow and heirs 
had been under a claim of right adverse to all the world. There was 
also evidence that their occupancy had been under a license from one 
Hodges, who owned the land after October, 1865, and conveyed it in 
October, 1866. The question raised by the demandant's bill of excep- v^^, 

tions is whether the fact that the license was ended in 1866 by the 
conveyance of Hodges necessarily made the occupation by the Hanlons 
adverse, if they supposed the license still to be in operation and pur- 
ported to occupy under it, but were in such relations to the land that 
they would have been liable to an action of trespass, or, better to test 
the matter, to a writ of entry at the election of the true owner. 

The answer is pl ain. "If a man enter into possession, under a sup- 
position of a lawful Hmited right, as under a lease, which turns out to 

21 As to the possession of a donee under a parol gift being adverse or not, 
see Jolins v. Johns, 24i Pa. 48, 90 Atl. 535 (1914). 



^4 ORIGINAL TITLES (Part 1 

be void, * * * if he be a disseisor at all, it is only at the election 
of the disseisee. * * * If the party claim only a limited estate^ 
^ and not_a fee, the law will not, contrary to his intentions, enlarg e it to 

iifie^' Ricard V. Williams, 7 Wheat. 59, 107, 108, 5 L. Ed. 398 ; Blun- 
den V. Baugh, Cro. Car. 302, 303 ; Stearns, Real Actions, (2d Ed.) 
6, 17. 

It is true, of course, that a man's belief may be immaterial as such. 
Probably, although the courts have not been unanimous upon the 
point, he will not be the less a disseisor or be prevented from acquiring 
a title by lapse of time because his occupation of a strip of land is un- 
der the belief that it is embraced in his deed. His claim is not limited 
_by^Jiis belief . Or, to put it in another way, the direction of the claim 
to an object identified by the senses as the thing claimed overrides the 
inconsistent attempt to direct it also in conformity to tlie deed, just as 
a similar identification when a pistol shot is fired or a conveyance is 
made overrides the inconsistent belief that the person aimed at or the 
grantee is some one else. Hathaway v. Evans, 108 Mass. 267; Beck- 
man V. Davidson, 162 Mass. 347, 350, 39 N. E. 38. See Sedgwick & 
Wait, Trial of Title to Land (2d Ed.) § 757. So, knowledge that a 
man's title is bad will not prevent his getting a good one in twenty 
years. Warren v. Bowdran, 156 Mass. 280, 282, 31 N. E. 300. 

In the cases supposed the mistaken belief does not interfere with the 
claim of a fee. But when the belief carries with it a corresponding 
liniitation of claim tlie statute cannot run, because there is no disseisin 
exc ept the fictitious one which the owner may be entitled to force upon_ 
the occupant for the sake of a remedy. Hoban v. Cable, 102 Mich. 
206, 213, 60 N. W. 466. Liability to a writ of entry and disseisin are 
not convertible terms in any other sense. It is elementary law that ad- 
verse possession which will ripen into a title must be under a claim of 
right. (Harvey v. Tyler, 2 Wall. 328, 349, 17'L. Ed. 871,) or,^s it has" 
been thought more accurate to say, "with an intention to appropriate 
and hold the same as owner, and to the exclusion, rightfully or wrong- 
fully, of every one else." Sedgwick & Wait, Trial of Title to Land 
(2d Ed.) § 576. "As Co. Lit. 153b, defines, 'a disseisin is when one 
enters, intending to usurp the possession, and to oust another of his 
freehold;' and tlierefore quserendum est a judice, quo animo hoc 
fecerit, why he entered and intruded." Blunden v. Baugh, Cro. Car. 
302, 303. 

The other matters apparent on the bill of exceptions were sufficient- 
ly dealt with by the judge. Exceptions overruled.^ ^ 

22 An administrator takes possession of land which belonged to the de- 
ceased under the supposed authority of his office as administrator, though 
in fact he had no such right to possession. Is his possession adverse to the 
heirs, who were entitled to possession? Suppose the administrator purports 
to convey the land to his wife, but continues to reside upon the premises. Is 
the possession adverse? See Ashford v. Ashford, 136 Ala. 631, 34 South. 10, 
^96 Am. St. Kep. 82 (1902). 



Jy^^ JLil/ ( ytC^^* — ^ 



Ch. 1) POSSESSORY TITLES 65 

FORTIER V. BALLANCE. 

(Supreme Court of Illinois, 1848. 5 Gilman 41.) 

Fo rcible detai ner, brought by the appellee against the appellants, and 
originally heard before a justice of the peace of Peoria county, when 
a verdict was rendered in favor of the plaintilf. The defendants ap- 
pealed to the Circuit Court, and the cause was tried at the October 
term, 1848, before the Hon. John D. Caton and a jury, when a verd ict 
was again rend e red in favor . ofj he original plaintili". 

Trumbull, J. This was an action of forcible detainer, brought by 
Ballance against Fortier & Blumb. Verdict and judgment of restitution 
in favor of Ballance. 

The evidence shows tliat Ballance leased the premises for the term 
of six years from January 1, 1842, at the rate of ten dollars to be paid 
every four months ; that he reserved by the lease the right to re-enter 
and take possession of the premises in case of failure to pay rent as it 
became due ; that the lessees occupied the premises for some time, and 
afterwards assigned to Blumb, one of the defendants below, who en- 
tered into possession and paid rent for a time to Ballance ; that about 
the month of February, 1846, Blumb made arrangements for the oc- 
cupation of the premises with his co-defendant Fortier, to whom he 
gave possession, and whose tenant he became, disclaiming to have any- 
thing more to do with Ballance, and alleging that Fortier was the own- 
er of the land. Ballance, after having given notice and made demand 
in writing for the possession of the premises, on the second day of 
March, 1846, and before the expiration of the six years for which the 
premises had been let, commenced this action. 

The defendants below set up title to the premises in Fortier. 

Two principal causes have been assigned for the reversal of the 
judgment. First, that the action was prematurely brought, the time 
for which the premises were let not having expired. It is clear that 
Ballance could not maintain this action till he was entitled to the pos- 
session of the premises, and it may be true, as insisted by the appel- 
lants, that he was not entitled to the possession under the clause in the 
lease authorizing him to re-enter in case of failure to pay rent, for the 
reason that there is no evidence to show either that a demand had 
been made for the rent due, or any of those acts done which are neces- 
sary in the first instance to create a forfeiture for the nonpayment of 
rent; but be this as it may, the evidence shows that Blumb was the 
tenant of Ballance, that Fortier got into possession by arrangement 
with Blumb, who thereupon disclaimed holding under Ballance, and 
attorned to Fortier, as the owner of the premises. Thejnoment_that_ 
Blumb disavowed the title^of Ballance and claimed to set up a hostile 
titJeJn^P ^rtier, the lease became forfeited, a nd Ballance's.right of entr-" 
Aig.Pbop. — 5 



56 ORIGINAL TITLES (Part 1 

complete. Adams on Ej. 199. "A tenant cannot make his disclaimer 
ancTadverse ciami so as to protect hmiseit dunng tne unexpired term 
of the lease; he is a trespasser on hmi who has the legal title. The 
relation of landlord and tenant is dissolved^ and each party is to stand, 
uponTiisTight. If the tenant disclaims the tenure, claims the fee ad- 
versely in right of a third person or his own, or attorns to another, his 
possession then becomes a tortious one, by the forfeiture of his right." 
VVillison v. Watkins, 3 Pet. 43, 7 L. Ed. 596. 

Notwithstanding Blumb had a lease for a term not then expired, the 
monient he disclaimed to hold under the lease, and set up title to the 
premises, his possession became adverse to his landlord, and it would 
be s trange jf.whjlejii s title w as maturing by adverse possession, he 
could claim the protection of the lease to prevent his being turned out. 
"A tenant disclaiming his landlord's title, is not entitled to notic£_lQ. 
^ quit ; but is liable instantly to a warrant of forcible detainer." Bates 

'v. Austin, 2 A. K. Marsh. (Ky.) 270, 12 Am. Dec. 395. Blumb, in 
setting up a title adverse to that of Ballance by his own act terminated 
the lease, and put an end to the time for which the premises had been 
let, just as effectually as if the full term of six years had expired. 

The judgment of the Circuit Court is affirmed with costs. Judgment 

DOE ex dem. PARKER v. GREGORY. 
(Court of King's Bench, 1834. 2 Adol. & E. 14.) 
Ejectment for lands in Gloucestershire. On the trial before Alder- 
son, B., at the last Gloucester Summer Assizes, the following facts 
were proved. Thomas Rogers, being seised in fee of the lands in 
question, devised them to his son Thomas Rogers for life, remainder 
to William Rogers in tail male, remainder to the devisor's right heirs 
in fee. The will gave a power to the tenant for life to settle a certain 
portion of the lands upon his wife for life, by way of jointure. After 
the death of the devisor, the son Thomas Rogers, being then tenant 
for life, settled the lands in question, being not more than the portion 
defined, upon his wife for life. He died in 1798, leaving his wif.e 
surviving, who afterwards married a person of the name of Vale. 
In 1810, Mr. and Mrs. Vale levied a fine of the lands to their own 
use in fee. In 1812, Mrs. Vale died, more than twenty years before 

23 In England, except in cases of periodic tenancies and of course ten- 
ancies at will, the disclaimer, in order to effect a forfeiture, must be by 
record. Doe d. Graves v. Wells, 10 A. & E. 427 (1889). A tortious alienation by 
the tenant was also effective under the older law to bring about a forfei- 
ture. Litt. § 415. As to the situation to-day, where the tenant makes a 
•conveyance in fee, see Gee v. Hatley, 114 Ark. .376, 170 S. W. 72 (1914). In 
this country a few early cases announced the same doctrine as Doe d. Graves 
V. Wells, supra. De Lancey v. Ganong, 9 N. Y. 9 (18.53) ; Rosseel v. Jarvis, 15 
Wis. 571 (1862). 

See Newman v. Rutter, 8 Watts (Pa.) 51 (1839); Dahm v. Barlow, 93 Ala. 
120, 9 South. 598 (1890). 



Ch. 1) POSSESSORY TITLES 67 

the commencement of this action. Mr. and Mrs. Vale had continued 
in possession of the lands until Mrs. Vale's death, and Mr. Vale from 
thenceforward continued in possession till his own death, which oc- 
curred in 1832. William Rogers died, leaving several children, all 
of whom died before Mrs. Vale ; and of whom none left issue, except 
one daughter, who died one month before Mrs. Vale, leaving issue a 
son, who died without issue in 1814, within twenty years of the bring- 
ing of this action. The lessor of the plaintiff was heir at law to the 
devisor, Thomas Rogers. It did not appear how the defendant got 
into possession. On these facts, the learned judge nonsuited the plain- 
tiff, on the ground that the right of entry was barred by the Statute 
of Limitations, but he reserved leave to move to set the nonsuit aside, 
and enter a verdict for the plaintiff. 

Per Curiam. The fine will make no difference ; but, as to the 
question of the husband's adverse possession, we will take time to con- 
sider. 

On a subsequent day Lord Denman, C. J., delivered the judgment 
of the court. 

The other points moved by my Brother Talfourd were disposed of 
by the court, but we wished to consider whether he was entitled to a 
rule on the ground that there had been no adverse possession for 
twenty years. The fact was, that the defendant had been in possession 
for a longer period, from his wife's death, but he came in originally 
in her right, and had not directly ousted tlie rightful owner, but merely 
continued where he was, to his exclusion. A case of Reading v. Raw- 
sterne, reported by Lord Raymond and Salkeld, (2 Ld. Raym. 830; 
s. c. 2 Salk. 423,) was mentioned ; but in that case, though an actual 
disseisin is declared necessary, those words must be taken with refer- 
ence to the subject-matter, and are there contra-distmguished from 
the mere perception of rents and profits, in the case of jomt-tenants. 
But in Doe dem. Burrell v. Perkins, 3 M. & S. 271, the court was of 
opinion that a fine levied by a person who was in possession under the 
same circumstances as the defendant here, operated nothing, because 
he came in by title, and had no freehold by disseisin ; and it was ar- 
gued, that the defendant here was also to be considered as having en- 
tered rightfully, and committed no disseisin. We are, however, of 
opinion, that though this may be so for the purpose of avoiding a 
fine, it cannot prevent the defendant's p ossessjon_from being_ wron^;:_ 
ful, from the very hour when his interest expired by h i s wif e's death. 
It is clear that he might have been immed iately turned out by._ilect^ 
ment. 

We think, therefore, fliat his continuing the same possession for 
twenty years entitles him to the protection of the Statute of Limita- 
tions, and that this ac tion has been brought too late. Rule refused.-* 

2^* Henry Souter, the owner of premises, devised them to his wife for life. 
The testator died in 1790, leaving John Sovflier. who cr ainied to be the eldes t 
son and heir at law, and his said wife, him survivingr In ITUi. the widow 



68 , OBiGiNAL TITLES (Part 1 

HANSON et al. v. JOHNSON. 
(Court of Appeals of Maryland, 1884. 62 Md. 25, 50 Am, Rep. 199.) 

Appeal from the Circuit Court for Kent County. 

This was an action of ejectment, instituted on the 11th of April, 
1882, by the appellants against the appellee. The case was tried upon 
an agreed statement of facts, which are sufficiently set forth in the 
opinion' of the Court. By consent a pro forma judgment was entered 
in tlie Court below in favor of the defendant, with the right of appeal 
by the plaintiffs. 

Robinson, J. This i s an ^ action ^f _ejectme nt^ brought by;Jhe ap- 
pellants, as, heir g-at- l aw of Cat herine H^ Wroth, to recover an undi- 
vided half interest in a tract of land, of which she died seized. 

The facts are these : Mrs. Wroth died in December, 1854, leaving 
a paper purporting to be a will, by which she devised the farm in con- 
troversy to her husband. Peregrine Wroth, for life, with remainder in 
fee to her nephew, George A. Hanson. 

The will was not executed in due form to pass real estate, as re- 
quired by the Act of 1842, chapter 293, then in force, because the con- 
sent of her husband, in writing, was not annexed thereto, and also 
because it was not executed sixty days before her death. It was ad- 
mitted, however, to probate by the Orphans' Court of Kent County, 
,and under it her husband, on the 1st of January, 1855, entered into 
possession of the property, claiming title as tenant for life, and so con- 
tinued in possession until the 5th of February, 1868, when he united 
with the remainderman, George A. Hanson, in a sale and conveyance 
of the same to the appellee, and who thereupon entered upon said prop- 
erty, and has continued in possession up to the institution of this suit. 

Mrs. Wroth never had any children, and the ^pellantSj._as_heirs- 
aMgvv, are entitled to recover, unless their right is barred by the ad- 
verse possession of the appellee and of those under whom he claims. 

A great deal has been said, as to what constitutes adverse posses- 
sion, and it would be a wearisome task to examine at length the many 
cases in which this question has been considered. Prior to the Stat- 
ute of 3 and 4 Will. IV, chapter 27, it was an ever-recurring and trou- 
blesome question in England, but by th at S tatute, passed in 1833, the 
doctrin e of adver se possession was .virtually^aBoIished, and by it pos- 

and John Souter iniripfl iri q p/^r^-■~<:^,rqJ^r,p pf {-i^^ nrpmisps to Hnl l^ wliri j^nnk 
nnsspmsion nnfL-pmriinprl nnr1i^f]]rl)P(1 Hu-ipin till 1.S14^ ^ vlleD he Tlio'd, leavin g 
a _y(^^\. whprehv he "devised the nieiuises to defeudaut s. Jn tact wniclier 
Souter was the eldest sou and heir at law of Henry Souter, whom he sur- 
vived. I n ISIO. AV^hicher made his will, wherebv he devised all his realt y 
to trustees A Vhicher tSouter diecL sliortiv after makiug lus w_iil . in 18 16 
t Ee piamtin: as lessee of the said trustees commenced an acfiou of ei j e ct- 
men t against the cietendants to recover possessio n, jt was held thafil ie 
t'il?lllMlll snould recover , the indues vprpri-ing to Hull as a tenant at suf- 
ferance of VVhicher Souter. Doe d. Souter v. Hull, 2 Dowl. & R. 3S (1822). 



Ch. 1) POSSESSORY TITLES 69^ 

session of any kind for twenty years was made a bar, unless there was 
eitlier a payment of rent or an acknowledgment of some kind by the 
party in possession. The effect of the Statute, says Lord Denman, in 
CuUey V. Doe dem. Taylerson, 3 Per. & Dav. 539, is to put an end 
to all questions and discussions whether the possession of lands be ad- 
verse or not ; and if one party has been in possession for twenty years, 
whether adversely or not, the claimant whose original right of entry 
occurred above twenty years before bringing the ejectment is barred. 
Nepean v. Doe dem. Knight, 2 M. & W. 911; Doe dem. Pritchard 
V. Jauncey, 8 C. & P. 99. 

This Statute is not, however, in force in this State, and the question 
of possession in this case, is one to be determined by Stat. 21 Jas. I, 
chap. 16, which provides that no one shall make an entry into any land 
but' within twenty years after his right shall accrue. 

Now when the question arose whether one was barred by twenty 
years possession, it was determined by considering whether he had 
been out of possession under such circumstances as had reduced his 
interest to a right of entry; for if he had, then as tliat right of en- 
try would be barred by the Statute at the end of twenty years, the pos- 
session during the intermediate time was adverse to him. And in 
order to determine whether he had been out of possession under such 
circumstances as reduced his estate to a right of entry, it was neces- 
sary to inquire in what manner the person who had been in possession 
during the time held. If he held in a character inconsistent with and 
hostile to the title of the claimant to the freehold, the possession was 
adverse. 2 Smith's Leading Cases, 531 ; Nepean v. Doe dem. Knight, 
2 M. & W. 910; Taylor ex dem. Atkyns v. Harde, 1 Burr. 60. 

"Twenty years adverse possession," says Lord Mansfield, in Taylor 
V. Horde, "is a positive title to the defendant ; it is not a bar to the 
action or remedy of the plaintiff only, but takes away his right of pos- 
session." 

The question then of adversary possession in this case, resolves it- 
self into this, was the possession of Doctor Wroth, under whom the 
appellee claims, inconsistent with and hostile to the title of the appel- 
lants as heirs-at-law ? And in regard to this question there ought not, 
it seems to us, to be any doubt. During the life-time of his wife he 
received, it is admitted, the rents and profits of the farm in contro- 
versy. To these he was entitled by virtue of his marital rights. Upon 
her death, this right ceased. He was not tenant by th e curtesy, be- 
caus ejii.s^yi,f.e never jiad any children. He was not a tenant by suffer- 
ance, because an estate at sufferance Is where one comes into posses- 
sion by lawful title, but keeps it afterwards without any title at all. 
Or, as Lord Coke says, "one who originally comes in by right, but 
continues by wrong." It is a tenancy founded originally on contract 
and agreement, as a lessee for years, who continues in possession after 
the expiration of his term, and without a renewal of the lease, or a 
tenant at will, who holds over after the death or alienation of the 



70 ORIGINAL TITLES (Part 1 

lessor, or a tenant per autre vie, who remains in possession after the 
death of the cestui que vie. Coke on Little. 57b. 

After the death of his wife. Doctor Wroth took possession, claim- 
ing a life estate under her will. His claim of title was inconsistent 
with and hostile to the title of the appellants as heirs-at-law. The 
property was a farm, under enclosure and under cultivation; his pos- 
session was actual, visible, and, according to all the authorities, ad- 
verse to the title of the lawful owner. 

But then it is argued, to constitute adverse possession, one must 
claim the entire estate, or claim to the exclusion of all other rights. 
In one sense this is true. Possession will not be adverse if it be held 
under or subservient to a higher title, nor if it be consistent with the 
interest or estate of the claimant, for instance, where the possession 
of one is the possession of the other, or where the estate of one in 
possession and that of the claimant form different parts of one and 
the same estate. The mere entry and possession of one tenant in com- 
mon, or joint tenant, or coparcener, will not be adverse to the co-ten- 
ant, because the possession of one, is the possession of the other. To 
constitute adverse possession in such cases, there must be an ouster, 
an entry and possession, hostile to the title of the co-tenant. Nor 
will the possession of a tenant for years, or tenant for life, be adverse 
to the reversioner or heir in remainder. 

The decisions in Smith v. Burtis,'9 Johns. (N. Y.) 180; Howard v. 
Howard, 17 Barb. (N. Y.) 667; Doe dem. Human v. Pettett, 5 Barn. & 
Aid. 223; Dean et al. v. Brown, 23 Md. 16, 87 Am. Dec. 555 ; Bedell 
V. Shaw et al., 59 N. Y. 46, were decided upon these well settled prin- 
ciples. 

In this case, however. Doctor Wroth entered into possession, claim- 
ing a life estate under the will, the remainder being devised to another 
person. The estate claimed by him was a freehold, and as there could 
only be one possession or seizin of the same estate at the same time, 
his possession enured to the benefit of the remainder-man. His pos- 
session was in law the possession of the remainder-man, and as such 
it represented the entire estate, his own estate for life, and the estate 
of George A. Hanson in remainder. And his claim of title and pos- 
session being hostile to the title of the appellants as heirs-at-law, his 
possession was as against them, adverse and exclusive. The will was 
it_is__true_ invalid, but Doctor Wroth having enteredinto possession^ 
clain iingtit:le_ under it, he would be estopped from denying the title_ 
of the remainder-man claiming under the same instrument. This was 
decidfed in Board v. Board, Law Rep. 9 Q. B. 48. In that case, a 
tenant by the curtesy undertook to devise the curtesy estate to his 
daughter for life, with remainder to his grandson. Upon the death of 
the testator, the daughter entered into possession, and having been in 
possession for twenty years sold and conveyed the property in fee to 
the defendant. In the meantime the grandson sold his reversionary 
right to the plaintiff, and upon the death of the daughter, he brought 



Ch. 1) POSSESSORY TITLES 71 

an action of ejectment, and it was held, that the daughter having_ eri:_ 

tered u nder the will, the defenda_nt claiminig under her,, was estopped w^ 

as against all those in remainder,_ f rom disputing the validity of tlie 

\vill, and that the plain tiff wa s entitled to re cover. 

Mellor, J., said, "The only person who could dispute the possession 
of Rebecca, under the will, was the heir-at-law. He never disputed 
the possession, and his title to the estate is barred by the operation 
of the Statute of Limitations. A person cannot say, that a will is _ 
valid to enable him to take a benefit u nder it^ but invalid so far as 
regards th e interests pf those in remainder^wh o claim under, th^ s ame 

This case was decided, it is true, after the passage of the Stat, of 3 
& 4 Will. IV, but the claim of title and possession by the daughter, 
being hostile and inconsistent with the title of the heir-at-law, her pos- 
session was adverse under the Stat. 21 Jas. I, as against the lawful 
title. And being adverse, the heir-at-law must bring his action with- 
in twenty years, or his title will be barred by the Statute of Limitations. 
It is better, says the law, that the negligent owner who has omitted to 
assert his right within the time prescribed by the Statute, should lose 
his rights than one should be disturbed in his possession, and harassed 
by stale demands after the proof on which his title rests may have 
been lost or destroyed. But whatever may be the reasons or th e pol- 
icy of the law, twenty years adverse posS£SsiQli_is_a bar to the title, 
without regard to the „Qlii;inal right of the parties. 

The possession being adverse and exclusive in tliis case, the only re^ 
maining question_is, whether it has been continuous for twenty years? 
And this depends upon whether the possession of Doctor Wroth can 
be united, or in other words tacked to the possession of the appellee. 

,Now the possession .Qi§e]^rttL.disJtincJ;_occupa^ of land between 
whom no privity exists ^ cannot , it is tr ue^ be united to make up the 
statutory period, for the reason, if one quits or abandons the posses- 
sion, the owner will be deemed to be in the constructive possession of 
the property by reason of his title. The separate successive disseisins 
in such cases do not aid each other, and their several possessions can- 
not therefore be tacked, so as to make a continuity of possession. 

But we take it to be well settled that where there is a privity of 
estate between the successive parties in possession, then the posses- 
sion of such parties may be united so as to make the twenty years re- 
quired by the Statute. And it is equally well settled that such privity 
may be created by a sale and conveyance and possession under it, as 
well as by descent. As was said by Tilghman, C. J., in Overfield v. 

2 5 In England the rule of Board v. Board is not considered as applicable 
in facts such as appeared here. In re Anderson, [1905] 2 Ch. 70. 

O n th e inte resting question as between the life tenant and the remaind er- 
manT^r lliusu claiming 'under them, the rights of the true owner aamu t^tlij 
being oarred oy rne aa verse possession of tiie lite tenant, see, lurtner. Eialton 
V? I' ILZgerald, [iSUVJ 1 (Jh. 440. ' ■ 



72 ORIGINAL TITLES (Part 1 

Christie, 7 Serg. & R. (Pa.) 177, "One who enters upon the land of 
another and continues to reside on it, acquires something which he 
may transfer by deed as well as by descent, and if the possession of 
such person, and others claiming under him, added together, amounts 
to the time limited by the Act of Limitations, and was adverse to him 
who had the legal title, the Act is a bar to a recovery." Angell on 
Limitations, 414, 420; Wood on Limitations, § 271; Tyler on Eject- 
ment, 910. 

In this case there was an adverse and exclusive possession of ihs 
farm in question by Doctor Wroth for thirteen years. He then united 
with George A. Hanson, the remainder-man, in a sale and convey- 
ance to the appellee, who immediately entered and has continued in 
possession up to the present time ; the possession of the appellee, thus 
added or tacked to the possession of Doctor Wroth, makes a continu- 
ous adverse possession of twenty-seven years. The possession un- 
der such circumst'ahces"!^ By the Statute of Limitations a flat bar to 
the right of the appellants as heirs-at-law. 

The judgment below must therefore be a ffirmed . Judgment af- 
firmed.^* /- > 

DEAN V. GODDARD et al. 
(Supreme Court of Minnesota, 1893. 55 Minn. 290, 56 N. W. lOGO.) 

Appeal by defendant, Fred E. Goddard, from an order of the Dis- 
trict Court of Hennepin County, Thomas Canty, J., made December 
3, 1892, denying his motion for a new trial. 

The plainli fi^. Alfred J. Dean, brought this action September 2, 1891, 
under G. S. 1878, ch. 75, § 2, t o determine the adverse cl aims of God- 
dard, an d all other persons or parties unknown claimmg any rig ht, 
t itle, estate lien or interest in the real estate described i n th e opmio n. 
G oddard alone answered. He claimed to have the title in^fee derived 
from the United States. Plaintiff replied that neither Goddard his 
ancestor, predecessor or grantor was seized or possessed of the lot 
witliin fifteen years next before the commencement of the action. 
That Alfred H. Lindley owned the lot in 1866 and he and wife on 
August 28, 1866, conveyed it to William D. Washburn, that on or 
about June 1, 1866, Washburn entered into actual possession of the 
lot under such deed and he and his grantees have ever since and for 
more than fifteen years prior to the commencement of this action, 

2 6 Premises are owned by A., tenant for life, remainder in fee to B. X. 
enters into adverse possession, and continues therein for more than the statu- 
tory period. What effect, if any, does such possession have upon the rights 
of A.? Of B.? See Moore v. Luce, 29 Pa. 2G0, 72 Am. Dec. 629 (1857) ; Bald- 
ridge V. McFarland, 26 Pa. 338 (1855), where the remainder may have been 
contingent. 

Suppose, in the above case, A. should make a deed purporting to convey 
the premises to X. in fee, who takes possession, and continues therein for the 
statutory period. See Cassem v. Prindle, 258 111. 11, 101 N. E. 241 (1913); 
Hooper v. Leavitt, 109 Me. 70, 82 Atl. 547 (1912). 



Ch. 1) POSSESSORY TITLES 73 

been in actual, exclusive, open, hostile and adverse possession thereof, 
under claim and color of title and that plaintiff is the remote grantee 
of Washburn. 

A jury was waived and the issues were tried before the Court on 
August 2, 1892. Plaintiff submitted evidence of the possession of the 
lot by himself and his grantors and read in evidence the several instru- 
ments under which such possession had been held and rested. The 
defendant Goddard then proved his paper title from the Federal Gov- 
ernment down and rested. Th e Court fou ji d plaintiff to be sole own er 
in fee and in_possession of th e lot and jhat he and his_grantors and 
predece ssors in interest had been in open, continuous, exclu sive and 
adverse poss ession thereof, with color of title and paying taxes tHere- 
on, for a period of twenty years and ordered judgment for plainti ff 
as pr ayed in his compLaint. 

The defendant moved the Court to amend its findings so as to show 
that Washburn's adverse possession commenced on or about August 
28, 1866, the date of his deed from Lindley and wife and not prior 
thereto. This motion was denied. Defendant then moved for a new 
trial, but was denied and he appeals, claiming the evidence does not 
show actual, continuous hostile occupation of the lot by plaintiff and 
his grantors for an uninterrupted period of fifteen years at any time 
since Washburn obtained his deed from Lindley. The discussion here 
was upon this evidence, whether it sustained the finding of adverse pos- 
session. 

Buck, J. The jC|^uesti_on_raised in this case is whether the plaintiff 
has acquired title by adverse possession to the premises described 
in the complaint, viz. the front half of lots one (1) and two (2) in 
block sixty-seven (67) in the city of Minneapolis. 

The action was commenced in August, 1891. In his complaint the 
plaintiff alleges that he is in possession, and is the owner in fee sim- 
ple, of the premises above described, and that the defendants claim 
some estate or interest in the premises adverse to the plaintiff, and 
prays that the claims of the respective parties be adjudged and de- 
termined, and that title to said premises be decreed to be in the plain- 
tiff'. The defendant Goddard answered, and alleged the title in fee 
to be in himself. The plaintiff replied, and such reply will be refer- 
red to hereafter. Plaintiff's contention is that he acquired titlQ by 
possession held ad versely for such a length of time as to create a. title 
in himself. 

Under G. S. 1878, ch. 66, § 4, the time limited for commencing ac- 
tions for the recovery of real property was fixed at twenty years ; but 
on April 24, 1889, the law was changed to fifteen years, not to take 
effect, however, until January 1, 1891. The law, as amended, would 
be applicable to actions commenced after January 1, 1891, and prior to 
the time of the- commencement of this action, in September, 1891 ; but 
this would not render the law existing prior to the amendment inap- 
plicable to causes of action, when there was twenty years' adverse 



74 ORIGINAL TITLES (Part 1 

possession before the time when the change took effect. The period, 
however, rehed upon, need not be the twenty years immediately pre- 
ceding the 1st day of January, 1891, It would be sufiicient if the pos- 
session relied upon was continuous for twenty years up to any certain 
or definite time. Of course, the twenty years would have to be com- 
plete before the bringing of the action; but such twenty years need 
not, necessarily, be those next before the time when the action is com- 
menced. In this case, if the inception of the plaintiff's adverse pos- 
session was in the months of June or August, 1866, and became per- 
fect by continued adverse possession until the month of June or August, 
1886, then the title thereby created would not be lost or forfeited by 
any subsequent interruption of the possession, unless by some other 
adverse possession for such a length of time as would create title in 
the possessor. 

The court below found the allegations in the plaintiff's complaint 
to be true, and that he was, at the time of the commencement of this 
action, the sole owner, in fee, and in the lawful possession, of the 
premises described in the complaint, and that he and his grantors and 
predecessors in interest had been in the open, continuous, exclusive, 
and adverse possession of the premises, with color of title, and paying 
taxes thereon, for a period of twenty years, and that he was entitled 
to the decree and judgment of the court declaring him to be the abso- 
lute owner of the premises. We think a title acquired by adverse 
possession is a title in fee simple, and is as perfect as a title by deed. 
The legal eft'ect not only bars the remedy of the owner of the paper 
title, but divests his estate, and vests it in the party holding adversely 
for the required period of time, and is conclusive evidence of such 
title. To say that the statutes upon this subject only bar the remedy, 
as some authorities do, is only to leave the fee in the owner of the pa- 
per title ; thus leaving the owner with a title, but without a remedy. 
We think the better and more logical rule is to hold that the occu- 
pier of the premises by adverse possession acquires title by that pos- 
session, predicated upon the presumption or proven fact that the prior 
owner has abandoned the premises. Adverse possession ripens into a 
perfect title. This title the adverse possessor can transfer by con- 
veyance, and when he does so he is conveying his own title, and not 
a piece of land where the title is in some other person, who is simply 
barred of any remedy from recovering it. See Campbell v. Holt, 
115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483; Baker v. Oakwood, 123 
N. Y. 16, 25 N. E. 312, 10 L. R. A. 387, and cases there cited. Now, 
if there is any cloud resting upon such title, he has a legal right to 
apply to the court, and have his rights adjudicated, and the title per- 
fected by judgment record, if the evidence sustains his claim. Con- 
siderations of public policy demand that this should be so, for the claim 
of title to lands can thus be found of record, instead of resting in 
parol, with all of its incidental dangers and trouble in establishing 
title. 



Ch. 1) POSSESSORY TITLES 75 

Now let us consider the question raised by the defendant, as to 
whether one of the plaintiff's predecessors, Washburn, entered into the 
adverse possession of the premises June 1, 1866, or August 28, 1866. 
The plaintiff claims such entry was on the 1st day of June, and the 
defendant insists that the true date, if there was any such adverse 
entry at all, is shown by plaintiff himself, in his reply, to be August 
28, 1866. The importance of these dates arises from the fact tliat 
there is evidence tending to show an adverse possession of the prem- 
ises by the predecessors of plaintiff' until the middle of July, 1886; 
and if the period of twenty years commenced June 1, 1866, of course, 
the expiration of that period would be June 1, 1886, and if the period 
commenced August 28, 1866, the twenty year period would expire 
August 2^, 1886. Thus, the true date becomes material. The plain- 
tiff", in his amended reply, inserted the following allegation, viz. : 
"That on or about the 1st day of June, 1866, and more than fifteen 
years prior to the commencement of this action, said William D. 
Washburn, under the deed hereinbefore recited, executed to him by said 
Lindley, and claiming thereby to be the owner of said premises, en- 
tered into possession and actual occupation of the same." The deed 
referred to bears date August 28, 1866. It may be that there is suffi- 
cient undisputed evidence to show an adverse possession during this 
particular time, but we think that, under the circumstances, the par- 
ties are entitled to the opinion of this court upon this phase of the 
case. The fa ult of the^defendant's position is this : That he allowed 
the plaintiff to introduce and prove beyond dispute, by parol evidence, 
without objection, that Washburn entered upo n these premises June 
1, 1866 . 

The rule, therefore, that the written allegations of the pleadings 
should control, does not apply. The defendant did not move to have 
the pleadings made certain and definite, nor to compel the plaintiff' to 
elect upon which of the dates he would rely as the time of W^ash- 
burn's entry upon the premises, but remained silent, and allowed the 
date of June 1, 1866, to be undisputably proven by the plaintiff. The 
allegations in the reply were repugnant as to the dates of Washburn's 
entry, but the defendant, by his conduct, waived his right to insist 
now that the date of such entry should be determined as of August 
28, 1866. He is esj opped by the admitted parol evidence from in- 
sisting that the written pleadings should be construed in his favor, 
and against the plaintiff. 

There is no dispute, however, that Washburn did procure a deed of 
the premises from Lindley dated August 28, 1866; and the defend- 
ant therefore contends that Washburn's entry, if adverse at all, 
should only be considered as having commenced on the date of the 
deed. To support this contention, he invokes the doctrine that one 
who enters upon land under a mere agreement to purchase does not 
hold adversely, as against his vendor, until his agreement has been 
fully performed, so that he has become entitled to a conveyance. This 



76 ORIGINAL TITLES (Part 1 

doctrine is not applicable to this case. Washburn's entry and holding 
was not under this defendant, nor any of his predecessors holding 
paper title. As we have already stated, it appears that he was in 
possession on the 1st day of June, 1866; and whether by permission 
of Lindley, or by his own voluntary entry, is immaterial, as to his 
rights against parties other than Lindley, and Lindley is not complain- 
ing, or questioning his rights, or time of entry. Nor is defendant 
claiming title under Lindley. If permissive possession, with parol 
executory conditions attached, would not constitute adverse possession 
as between the parties, yet it might constitute adverse possession as 
against third persons or strangers. 'Washburn's entry was adverse 
as against those under whom defendant claim's by paper title. If, 
therefore, Washburn's entry, of June 1, 1866, was his own adverse 
act, and he so continued in possession of the premises until long after 
August 28, 1866, tliere is no need of considering the doctrine of tack- 
ing, or the necessity of the continuity of possession. Obtaining a deed 
to the premises from Lindley would not destroy Washburn's previous 
adverse possession, nor break its continuity. He ha d a right to 
strengthen_his_ adverse claim to the premises, if possible, by as niany 
written conveyances from other parties claiming any interest therein 
as he saw fit, and thus give him color of title, and perhaps define the 
boundaries of the premises claimed by him. 

The essential ingredients necessary to create title by adverse pos- 
session are now so well defined and understood that we shall not enter 
into any argument or discussion to show what they are. We merely 
state them in this connection that we may the more conveniently ap- 
ply them to the undisputed facts in this case. "To je ad verse, posses- 
sion mustbe actual, open, continuous, hostile, exclusive, and accom- 
-^ panFed by an intention to claim adversely." Sherin v. Brackett, 36 

llinn. 152, 30 N. W. 551. 

This leads us to the question raised by defendant, that the court 
below did not find, specifically, that plaintiff's possession, or the pos- 
session of his predecessors, was hostile. But it did find that such 
possession was open, continuous, exclusive, and adverse during the 
requisite period. The greater includes the le^s. If it \yas adverse, it 
was h ostile. In Sedg."& W7 Tr." Title Land, § 749, it is said that "it is 
tautology to say that adverse possession must be 'hostile.' " Such hos- 
tility may be manifested by acts of possession and use of the prem- 
ises, plainly visible, actual, open,, and continuous, such as appeared in 
this case, by using the premises for many years as a lumber yard, 
building a barn and shed thereon in 1866 or 1867, and keeping the 
same on the premises until they burned down, in March, 1884, and 
keeping a large number of horses on the premises and in the stables 
for many years. Also, storing machinery, lamp posts, castings, and 
other personal property, putting a large sign on the lot, with notice 
thereon that it was for rent, for a long term of years, were acts of 
hostility, as tending to show very strongly that someone was assuni- 



Ch. 1) POSSESSORY TITLKS 77 

ing dominion over the premises, and had intended to, or was usurping 
the possession. 

If, as was said by the Court in Stephens v. Leach, 19 Pa. 263, the 
adverse possessor "must keep his flag flying," yet it is no less essen- 
tial that the actual owner should reasonably keep his own banner 
unfurled. The law, which he is presumed to know, is a continual warn- 
ing to him that if he shall allow his lands to remain unoccupied, un- 
used, unimproved, and uncultivated, he may by adverse possession 
for a long period of time, fixed by law, be disseised thereof, and be 
deemed to have acquiesced in the possession of his adversary. In 
this case, the actual owners by paper title have never occupied tlie 
premisessince the first owner obtained his title from the. government, 
in 1855 or 1856. Considerations of public policy, demand that our 
lands should not remain for long periods of time unused, unimproved, 
and unproductive. Taxes should be promptly paid. It nowhere ap- 
pears that the owners by paper title have ever paid any taxes, but 
they have allowed the adverse occupants, during a period of many 
years, to pay n early ^5,000 taxes upon the premises. Payment of taxes 
sho wg claim of title. Paine v. Hutchins, 49 Vt. 314. We can readily 
understand how these statutes are called "statutes of repose." The 
burdens of government must be met; its educational interests pro- 
vided for; its judicial, legislative, and executive functions main- 
tained ; and to do this our real property must be made productive, to 
the end, among other things, that taxes may be raised and paid from 
land not subject to continual litigation, but the titles thereto quieted. 
If the selfish, the indolent, and the negligent will not do this, there is 
no more merit in their claim than that of the adverse possessor, who 
does so, whatever may be said of the harshness of the statute of limi- 
tation. The settlement and improvement of the country, with its con- 
segiient prosperity, should be superior and paramount to the specu- 
lative rights of the land grabber, or selfish greed of those who seek_ 
large gains through the toil, labor, and improvements of others. 

The hostile possession of the adverse claimants in this case fully 
appears. The possession has been open, visible, hostile, and notorious, 
as appears from the evidence. It has been exclusive, for no one else 
has made any claim to it. Those who have been on the premises, oth- 
er than plaintiff or his predecessors, have made no claim of right, but 
have paid rent to the adverse claimant, or were there simply as tres- 
passers, which would not break the continuity of possession. The 
intent to claim may be inferred from the nature of the occupancy. 
Oral declarations are not necessary. Possessory acts, to constitute 
adverse possession, must necessarily depend upon the character of 
the property, its location, and the purposes for which it is ordinarily 
fitted or adapted. If a person should take possession of farm land, 
build a barn and shed thereon, and allow them to remain there for 
years, plow and cultivate the land and harvest the crops, pay taxes 
on the premises, and actually occupy them, for such a period of time, 



78 ORIGINAL TITLES (Part 1 

as is usually done by the actual owner of such farm land, with such 
open, notorious, visible, hostile, and exclusive acts as would destroy 
the actual or constructive possession of the true owner, if continued 
long enough, it would ripen into a complete title, although there might 
not be actual residence upon the premises by the adverse claimant 
or possessor. The acts necessary for such purpose might be different 
with a city lot. The question is to what purpose may it be ordinarily 
fit and adapted, and reasonably used. In a large manufacturing city, 
with vast lumber interest, the use of a lot for piling lumber thereon, 
and there storing it or keeping it for sale, might be the best use to 
which such lot could possibly be adapted. And, as part of such busi- 
ness, the building of a barn and shed thereon, for keeping and stabling 
horses used in procuring logs, as a part of such lumber business, would 
constitute a very strong ingredient of adverse possession. 

Tlie jii ere fact that time may intervene between successive _acts of 
occupancy^ while a party is engaged in such lumber business, as^By 
taking his teams from such stable and shed, and using them in pro- 
curing logs to be sawed into lumber to be by him piled and stored up- 
on such premises, does not necessarily destroy the continuity of pos-_ 
session. During such time, the lumber left upon the lot, the barn and 
shed there remaining, and various_i mplements connected with such lum- 
ber business used upon the premises, would indic ate that s ome one 
was ex ercising acts of dominion over the lot, even though the party 
was occasionally and temporarily absent upon the business for which 
he was using such lot. 

We think the whole record herein presents such a state of facts 
that the court below was justified in its finding and decision. If there 
was error in admitting testimony showing that sand was removed 
from the premises after the commencement of this action, it certainly 
could not have prejudiced the defendant. 

We find no prejudicial error, and the order of the court below, de- 
nying a motion for a new trial, is affirmed. ^^ 

2 7 See Skipwith v. Martin, 50 Ark. 141. 6 S. W. 514 (1SS7). See, also, 
Rupley V. Fraser (Minn.) 156 N. W. 350 (1916). 

A. entered into the possess io n of land, snnpo^iing it belonged to the Un ited 
SJates, and intending to ac(^T1it'e same unaer the United Stn tes i.nnrt Jaws. 
I n tact thp innrt had already been acquiretl from^ the government by B. ILttei- 
A. has been- in possession for the period of the statute of Umitatlons, ne seeks 
to have his title quieted, or B. sues to recover possession. See Io\va Rail- 
road Co. v. Blumer, 206 U. S. 482. 27 Sup. Ct. 769, 51 L. Ed. 1148 (1906); 
Maas V. Burdetzke. 93 Minn. 295, 101 N. W. 182, 106 Am. St. Rep. 436 (1904) ; 
Boe V. Arnold, 54 Or. 52, 102 Pac. 290. 20 Ann. Cas. 533 (1909); Doe ex dem. 
Alabama State Land Co. v. Beck, 108 Ala. 71, 19 South. 802 (1895); Heck- 
eseher v. Cooper, 203 Mo. 278. 101 S. W. 658 (1907); Smith v. Jones, 103 
Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153 (1910). 



t-^fV-v 



f3^. 



Ch. 1) POSSESSORY TITLES 79 

MITCHELL V. McSHANE LUMBER CO. 

(Circuit Court of Appeals, Fifth Circuit, 1915. 220 Fed. 878, 1.36 C. C. A. 444.) 

Walker, Circuit Judge. The testimony of the plaintiff B. D./>^ 
Mitchell was to the effect t hat he had lived on the land in question (p*^' 
since 1889 and had been asserting claim to it since that tim e. He did 
not deny the making of the contract with the Beaumont Lumber Com- 
pany, which showed a lease by that company to him of the league 
of land which embraces the 160 acres sued for, but explicitly stated 
t hat he never relinquished his claim to the 160 acres, but claimed it 
all the time. The tendency of this evidence to prove adverse posses- 
sion of the land in question by the plaintiffs for the length of time 
required to confer upon them the legal title was not as a matter of law 
destroyed by the proof of the execution by one of them of the lease 
contract above mentioned. 'That contract evidenced an admission by 
B. D. Mitchell that he held the land, not as his own, but as the tenant ^^ — 
of another : but t hat admission was not conclusive against him in fa -^^^tlr 
v or of the defendant in this suit. In this suit it was permissible for the 
plaintiff B. U. Mitchell to contradict or explain away the statement or 
admission shown by his signing the lease contract, which embraced 
a league of land, and to prove that he in fact claimed the land sued 
for as his own all the time. That instrument did not five- rise to a n 
e stoppel upon him in favor of the defendant to the suit, which is a 
stranger to that instrument, or debar him from proving^ that the fact 
was other than wdiat the instrument indicated that it wa s. 

"The rule against varying or contradicting writings by parol ob- 
tains only in suits between, and is confined to parties to the writings 
and their privies, and has no operation with respect to tllird p^rcnng^ 
nor even upon the parties tKemselves in controversies with third per - 
s ons. * * * But this rule is confined in its operation to the parties . 
to the written instrument. W hen it comes in question collaterally, in 'irjjCvt%4t^ 
a suit to which a third party, a stranger tO t^""^ -nrj-ihinprc I'g a jp'-^y, '^ ^i/v 
neithe r party is estopped from contradicting it, or from proving fac ts *j£k '^^ ij 



inconsistent with it." Robinson v. Moseley, 93 Ala. 70, 9 South. 372 ; 
Myrick v. Wallace, 5 Ala. App. 398, 59 South. 704 ; Johnson v. Port- 
wood, 89 Tex. 235, 34 S. W. 596, 787; Barreda v. Silsbee, 21 How. 
146, 169, 16 L. Ed. 86; Sigua Iron Co. v. Greene, 88 Fed. 207, 31 C. 
C. A. 477; 17 Cyc. 750; Jones on Evidence, § 296. 

The case of Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585, which 
is much relied on by the counsel for the defendants in error, was one 
between the parties to a written contract relating to the land which was 
the subject of the suit. The rule there applied was the familiar one 
which forbids either party to such a contract in a suit between him 
and another party to it by parol evidence to contradict or vary the 
terms or effect of the contract. In the opinion rendered in that case 



so OEIGINAL TITLES (Part 1 

it was recosTiized that that rule would not have applied in favor of 
the plaintiff if he had been a stranger to the contract.made by the de- 
fendants; the court saying of the case with which it was deahng: 

"It is not like the case of Portis v. Hill, 14 Tex. 69, 65 Am. Dec. 
99, in which it was held t hat the mere ackn owledgrnpn^- r,f Htip jn a 
t hird party did not preclud e the defendant^; from claiming- that their 
p ossession was adverse to the plaintiff ." 

The situation developed by the evidence was that some of it — that 
showing the making of the lease contract — tended to prove that- the 
p laintiff's adverse holding was inter rupted on the 4fh dny nf ^Tay, 
1 898, while some of it tended to prove that the plaintiffs' adverseJ aoId- 
i ng was not terminated or interrupted bv that inciden t. This state of 
the evidence made the question in issue one for the jury ; and the 
court erred in its ruling to the effect that there was no evidence to 
support a finding in favor of the plaintiffs. 

The j udgment of the court below is reversed, and the cause is re- 
manded, -^ 

28 Adverse Possession in Case of Minerals. — When the minerals and 
surface are owned by the same party, as is ordinarily true, an adverse po s- 
s essiou of the surface is al-so an adverse possession of the minerals. But 
when the ownership or possession is divicfed, tne situation presents possi- 
bilities of serious difficulty. In the latter case possession of the surface by 
the one entitled thereto, no matter how long continued, can have no effec t 
upon the rights of the party entitled to the minerals ; and no lenstE^of non- 
usage"(Wi atfect his rights. Wallace v. Elm Grove Coal Co., 5S W. Va. 449, 
52 S. E. 4S5. 6 Ann. Cas. 140 (1905). 

B. entered into adverse possession of land owned by A. Before the statu- 
tory bar was complete, B. sold and conveyed by warranty deed the minerals 
to P., who until later made' no entry thereunder. B. remained in posses sion 
of the surface beyond the statutorv period, and then died. P. then entered 
into actual possession of the minerals and, learning that A. made some claim 
thereto, sued to quiet title. Should he maintain his suit ? Black Warrior 
Coal Co. V. West. 170 Ala. 346' b4 South. 200 (1910), commented upon in 24 
Harv. Law Eev. 5S2. 

B. entered into adverse possession of land owned by A. After being in 
possession for a period sliort of the statutory period, B. ponvpyed the land 
t o X.. resei'ving the minerals. X. went into possession ~of the pu-TtiPi;^, nnd 
c ontinued therein until the tull running of the sfntute n f 11j;|^^|;a tions' . _^n 



g 



,. meantime no nnp wfj? nnPTj]_fni<r/ti]p minpv^^ j; fh^r.^ f.r.nvpYp|^] j-tjp min- 
'als to P.. who si^f^ to nnipt fiMe._ What result? Moore v. Empire Land 
''c, 181 lla.'Wi, 61 isouth. 940 (1913) . 



Ch, 1) POSSESSORY TITLES BI- 

SECTION 5.— CONSTRUCTIVE ADVERSE POSSESSION 



JACKSON ex dem. GILLILAND v. WOODRUFF. 
(Supreme Court of New York, 1S23. 1 Cow. 276, 13 Am. Dec. 525.) 

Ejectment, f or one acre of land, at Salmon River, in Plattsburgh, 
Clinton county, called the Fairman lot, and for one half acre of land 
adjoining the same, on the north; tried before his honor, Mr. J us- 
ti ce Woodworth. at the Clinton Cir cuit. June, 1821. Defendant relie d 
u pon plaintiff's claim being barred by the Statute of Limitatio ns, 

Woodworth, J.-" ^ ^ ^ The remaining question is — ^have the 
defendants made out an ad verse possession ? The actual occupation 
of the premises, by the defendants, is less than twenty years, as ap- 
pears by the testimony of Winchell. He says that Moses Soper had 
qlje^pQ(,L.aJ^i^ t^aacres. not including the premises, at Salmon River 
Village, i n 1797 ; that_he. and Nathaniel Piatt, claimed the whole pro p- 
e rtv. while it was in woods. The validity of this claim will next be 
considered. 

I n September. 1794. Z. Piatt executed a quit-claim deed to Nathan- 
i el Piatt, for 7(66 acfes~<Tfiand^ purporting to convey, thereby, lands 
lytng^befween the east and south lines of allotted lands in Plattsburgh, 
and the line of Friswell's Patent. On examining the boundaries, and 
the map annexed to the case, it will be found not to include any land ; 
for there is no gore between the two patents. The description follows : 
"Beginning at the distance of 7 chains, 8 links, north from the south 
east comer of lot No. 99, in the second division of Plattsburgh ; thence 
east, 27 chains and 50 links, to John Friswell's patent." Now, as it has 
been shown, that Friswell's Patent joins on Plattsburgh, the line can- 
not be extended easterly. If it was so extended, it would run on 
lands included in that patent, which is not admissible, under the 
words of the deed. The next course is to the north-west corner of 
the patent, which must be understood the true north-west corner of 
Friswell, as proved by the plaintiffs ; thence east, in the east bounds 
of Friswell's Patent, until the north line, to the lotted land in Platts- 
burgh, will include 783 acres, between that line and lot No. 101, in 
the second division of Plattsburgh. By tracing these liv p'^, nn the n^^p. 
i t will be seen, that a line, only, is given. No land is includ_ed: coa - 
sequently, the deed is a numty, ma'smuch as nothing is granted . The >->v 
question, then, is, whether "a^cTaiiTi Of ' title, under such an Tristrument. /-^ j 
and an actual occupancy of part, can constitute a good adverse posses-/ ^ / 
sion, beyond the parcel so occupied. \.S^ 

2 9 The statement of facts is abbreviated, and a portion of the opinion 
omitted. 

Aig.Pkop. — 6 



i; 



82 ORIGINAL TITLES (Part 1 

It is well settled, t hat a continued possession, for 20 years, und er 
p retence or claim of right, ripens into a right of possession, wh ich 
will toll an entry It has never been considered necessary, to con- 
stitute an adverse possession, that there should be a rightful title. 
Jackson v. Wheat, 18 Johns. 44; Smith v. Lorillard, 10 Johns. 356; 
Smith V. Burtis, 9 Johns. 180; Jackson v. ElHs, 13 Johns. 120; Jack- 
son V. Todd., 2 Caines, 183. The party who relies on an adverse pos- 
session, must, in the language of Kent, Chief Justice, in Jackson v. 
Schoonmaker, 2 Johns. 234, show " a. substantial inclosure , an actu al 
o ccupancy, a pedis possessio. which is definite, positive an d rjniprinnc;^ 
when that is the only defence to countervail a legal title ;" and in Doe 
V. Campbell, 10 Johns. 477, it is said, "adverse possession must be 
marked by definite boundaries and be regularly continued down, to 
render it availing." Brandt v. Ogden, 1 Johns. 156. Tjiere is no dou bt- 
t hat actual occupancy, and a claim of title, whether such claim be b y 
d eed or Otherwise,'' constitute a valid adverse possession^ to that ex- 
tent. B ut, when a party claims to hold, adversely, a lot of land, b y 
p roving actual occupancy of a part only^_ his claini must be under a 
d eed or paper title . This distinction has been uniformly recognized, 
^nd acted upon in this Court. 

It is on this latter ground, the defendants must rest, if their posses- 
sion can avail. \Theii" tlefence is, that Z. Piatt, in 1794, conveyed 
783 acres to N. Piatt, including the premises ; that the first improve- 
ment was made in 1794, under Piatt, being a small parcel, not exceed- 
ing 2 acres, which, together with the premises in question, afterwards 
taken under him, have been continued to the time of commencing this 
action. This proof does not make out an adverse possession to the 
premises. Col or of title, under a deed, and occupancy of part, is su ffi- 
cient proof as to a single lot; vet it follows, from the doctrine laid 
down, that the deed, or paper title, under which the claim is ma de. 
must, in the description, include the premises. If the title is bad, it 
is of no moment ; b ut_if no^aixds jire ^escribec;!, n othino- can p ass. 
The deed is a nullity, and never can lay the foundation of a good ad- 
verse possession, beyond the actual improvement. There is no evi- 
dence here, to show how far Piatt's claim extended, unless resort is 
had to the deed. Boundaries, therefore, including the premises, were 
indispensable, in order to give this defence the semblance of plausibility. 
The defendants stand on the same ground as if no deed had been pro- 
duced ; and, then, the possession cannot extend beyond the place actu- 
ally occupied.'" 

3 "The courts have concurred, it is believed, without an exception, in de- 
fining '59l2£9^ title' to be t hat which in appearance Is title, but which in 
i ieality ?sTT?TTtfer '*'^Ir. Justic^e baulel, in Wright v. Mattisou, IS How. 50, 56, 
15 L. Eel. 280 (1S55) . 

While there is a decided conflict of authority the general rule seems clearly 
to be that "color of'tifIe"" reauires some sort' of Avriting! See the many 
cases collected in 1 Cyc. 10S3; 2 C. J. 170. t^eeT also, l«-eolv-LTrw' Rev. 59. 
So, also, the cases do not agree as to color of title being provided by an in- 



Ch. 1) POSSESSORY TITLES 83 

In Jackson ex dem. Dervient v. Loyd, decided October term, 1820, 
but not reported, it appeared that the defendant had a deed for lot No. 
4, but took possession of lot No. 5, adjoining, believing it to be his lot, 
and claiming it as such. It was held, that the defendant could not 
establish an adverse possession, to the whole lot, by the actual im- 
provement of a part, because no part of No. 5, was included in 
the deed. 

But, if the deed had been perfect in the description, and included 783 
acres of Friswell's Patent, the occupancy of a part would not make out 
an adverse possession to the whole quantity conveyed. The doctrine 
o f adverse possession^ applied to a farm, or sing^le lot of land, is, i n 
i tself, reasonable and ji^s t. In the first place, the quantity of land 
is^small. "Possessions, thus taken, under a claim of title, are, general- 
ly, for the purpose of cultivation and permanent improvement. It is, 
generally, necessary to reserve a part for wood land. Good husbandry 
forbids the actual improvement of the whole. The possessions are, 
usually, in the neighborhood of others; the boundaries are marked 
and defined. Frequent acts of ownership, in parts not cultivated, give 
notoriety to the possession. Under such circumstances there is but 
l ittle danger that a possession of twenty year'; will he mature d ap-ainst 
the right owner ; if it occasionally happens, it will arise from a want 
of vigilance and care, in him who has title. It is believed, that no well 
founded complaint can be urged against the operation of the principle ; 
but the attempt to apply the same rule to cases where a large tract is 
conveyed, would be mischievous indeed. Suppose a patent granted 
to A, for 2000 acres; B, without title, conveys 1000 of the tract to 
C, who enters under the deed, claiming title, and improves one acre 
only ; this inconsiderable improvement may not be Icnown to the pro- 
prietor, or if known, is disregarded for twenty years. Could it be 
gravely urged, that here was a good adverse possession to the one 
thousand acres? If it could, I perceive no reason why the deed from 
B to C might not include the whole patent, and after the lapse of twen- 
ty years, equally divest the patentee's title to the whole; for there 
would exist an actual possession of one acre, with a claim of title 
to all the land comprised in the patent. No such doctrine was ever 
intended to be sanctioned by the Court. It may, therefore, be safely 
affirmed, [t hat a small possessi on, taken under the deed to N. Pia tt, 

strument voifl on its face. G eBerally, where thp Inst.rnment. though void o n 
its face, would seem to the ordinary layman to be good there is color^ See 
the cases collected in 1 Cyc. 1087; 2 C. J. ITtj, 177. As to the necessity that 
the claimant under the color of title shall have acted in good faith in tak- 
ing the deed or other instrument, see Gregg v. Sayre, 8 Pet. 253, 8 L. Ed. 932 
(1834) ; Foulke v. Bond, 41 N. J. Law, 527 (1879) ; Lampman v. Van Alstyne, 
94 Wis. 417, 69 N. W. 171 (1896) : State v. King (W. Va.) 87 S. E. 170 (1915). 
Color of title may also be of importance in other respects than construc- 
tive adverse possession. St atutes of limitat ions nnt nncnmmonly nrnviflp fnr 
a different pprinri ^here there is ad verse po ssession under color of titl e. 
T'he state statutes should De consuiiea: ~ 



■84 



ORIGINAL TITLES 



(Part 1 



cannot, under any circumstances, be a valid possession of the who le 
783 acres , but is limited to the parcel improved. If the doctrine con- 
tended for, prevails, it would sanction this manifest absurdity, that a 
possession under Piatt's deed, which conveyed no title, would, as to 
its legal effect, be more beneficial, than a possession taken under the 
proprietors of Friswell's Patent, where there is not only title, but a 
good constructive possession, in consequence of the grant, and actual 
occupancy and improvement of a part. It cannot be useful to pur- 
sue the subject farther.^^ 

I am of opinion that the plaintiff js entitl ed ^^ jurlprmpnt, fpr_anjin- 
d ivided fou rth part of the prerni sgiT 




BAILEY v. CARLETON. 
(Supreme Court of New Hampshire, 1841. 12 N. H. 9, 37 Am. Dec. 190.) 

Writ of entry, to recover two tracts of land in the lower village in 
Bath, one of said tracts being ten rods in length, and the other being 
f our square rods of land, situated immed iately gnnt]-] ^f ^ r\c\ adjninln pr 
t h^ fir . st tract ; both constituting a narrow strip of land, situated be- 
twixt the main road through Bath village, and the xA.nionoosuck river. 

The tract of land first described, and a house lot opposite to the 
same, on the other side of the road, were c onveyed to Amp f^ To'^'^^" hv 
Moses P. Payson, by two several, deeds, executed on the 27th o f 
March, 1807 : and the tract containing four square rods was conveyed 
by said Payson, in November, 1807, to Buxton & Blake, who sold to 
one Morrison, and, in 1810, Morrison sold to said Town. 

In February. 181.3. Amos Town sold the t hre e tracts of land to h is 
b rother, Solomon Tow n, and in April, 1^1^, Solomon Town r e-con - 
veved the house lot opposite the demanded premises, to Amos Town, 
but did not include, in the description, the strip of land opposite, and 
now in controversy. 

October 19th, 1815, Amos Town convpvpd the aforesaid three se v- 
eral tracts. g;-iving- separate descriptions of each tract, to Eben ezer 
Carleton. _and subsequently Carleton's title was conveyed to the se 

Sol c^mon Town, in Tune 1830. conveved the demanded premises t o 
one John Welsh . Welsh, in February, 1837. conveyed to the plaj^ ff, 

31 Chandler v. Spear, 22 Vt. 388 (1850); Thompson v. Burhans, 61 N. Y. 
52 (1874) ; Louisville & N. R. Co. v. Gulf of Mexico Land & Improvement 
Co., 82 Miss. ISO, 33 South. 845, 100 Am. St. Rop. 627 (1903), ace. Hick^ v. 
yf,^gr,,nr, ;>fL ^ni TOO !^^ Am. Dec. 103 (1864); Marietta Fertilizer Co. v. lilair. 
iii Am. f>\>i, Sff'^outh. 131 (1911), contra. See, also, Ellicott v. Pearl, 10 
Pet. 412, 9 L. Ed. 475 ri836); Kentucky Coal, etc., Co. v. Kentuckv Union Co. 
(D. C.) 214 Fed. 590, 629 (1914). The matter mav be affected bv statute. See 
Stevens v. Martin, 168 Mo. 407, 68 S. W. 347 (1902). The state statutes 
should be consulted. 



Ch. 1) POSSESSORY TITLES 85 

and this suit was brought for the recovery of the demanded prem- 
ises, the 15th of April, 1837. 

. It appeared that Ebenezer Carleton, on his purchase of Amos Town 
in October, 1815, entered into possession of th e house lot named in his 
deed, and lived on an d o ccupied the same for'many years , until it wa s 
conveyed to the defendant^ E. Carleton. Jr. 

In 1821, Ebenezer Car leton caused a small building to be removed 
on to the land in controversy, and from that time to the present it has 
remained there, occupied by tenants under him and these defendants. 

The defendants claimed to hold the land by virtue of peaceable a nd 
undistQrbed possession, by themselves and their grantor, for a peri od 
of twenty years, It appeared that until 1821 no building had been; 
placed upon the premises, and that the premises had not been inclosed 
in any manner; that from 1815 to 1821, and since, Ebenezer Carleton 
had been in the habit, occasionally, of leaving carts, ploughs and farm- 
ing utensils upon this land, and also of leaving lumber upon it. Evi- 
dence was offered to show that it had been a common practice, by 
teamsters and owners of lumber, for thirty or forty years, to lay lum- 
ber upon that side of the road, in Bath village, upon this tract, and 
above and below it, and that said Carleton and other individuals had 
been in the habit of laying lumber along the river bank in this man- 
ner. 

It was c ontended, by the defendants' rnnnse l that Ebenezer Carleton 
having entered upon the house lot, claiming title to and occupying the 
same, s uch entry extended tn the rnnti^nnns tmrtc Hpsrn'hpr^ I'n fhf^ 
same deed._and that entry and occupation of one of the tracts extende d 
to the whole, in the same manner as though they had been conveyed 
in one description — that the defendants' grantor having entered upon 
and disseized the plaintiff's grantor, October 19th, 1815, and the 
plaintiff never having reentered before action brought, he had no legal 
seizin in the demanded premises within twenty years next before the 
commencement of his action, and his suit, therefore, could not be 
maintained — and that the laying of lumber on the demanded premises, 
by persons claiming no right thereto, would not affect the exclusive 
character of the defendant's adverse possession. 

The c ourt instructed the jury that an entry upon, and o mi patinn jdj 
one of the tracts conveyed, would not extend to the other tracts de - 
scribed in the deed, so^as to give a title to them bv possession — that 
entry upon, and occupation of, any portion of the demanded premises 
would extend to the whole tract entered upon — that it was not essen- 
tial that any portion of the land should be inclosed, in order to con- 
stitute an adverse possession — t hat such possession might be acquire d 
b y the laying of lumber upon said tract, or otherwise occupying it a s 
a place of deposit for farming utensils, &c ., but that such possession 
must be a n open, ^ vi sible possessi on, such as would give r easonable no- 
tice of such adverse possession, to the owner. 





86 ORIGINAL TITLES (Part 1 

A ver dict was rendered for the plaint iff, and the defendants moved 
to set the same aside, for misdirection. 

Parker, C. J. The ge nera[ rule^ that where a party having- color of 
title enters into the land conveyed, he is presumed to enter according 
to his title, and thereby gains a c onstructive possession of the whole 
land embraced in his deed, seems to be settled by the current of author- 
ities. Riley v. Jameson, 3 N. H. 27, 14 Am. Dec. 325 ; Lund v. Parker, 
3 N. H, 49, and cases cited. 

And such entry may operate as a disseizin of the whole tract ; and 
the possession under it, continued for the term of twenty years, may 
be deemed an adverse possession, which will bar the entry of the own- 
er after that lapse of time. 3 N. H. 49; Jackson v. Ellis, 13 Johns. 
(N. Y.) 118; Jackson v. Smith, 13 Johns. (N. Y.) 406; Jackson v. 
Newton, 18 Johns. (N. Y.) 355. 

Exceptions h ave been suggested to the rule in some cases. One is, 
vhere a large tract of land is embraced in the deed, and a small part 
only has been improved. Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 
Am. Dec. 525 ; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677. Another, 
where the deed under which the claim is made includes a tract greater 
than is necessary for the purpose of cultivation, or ordinary occupan- 
cy. Jackson v. Oltz, 8 Wend. (N. Y.) 440. 

These exceptions seem not to be very definite in their application, 
for lots, like other things, are large or small by comparison, and a 
tract which would be much too large for cultivation by one, would not 
suffice for another. But they serve to show the principle upon which 
the rule is founded. It is, t hat the entrv an ri pn<;c;p<; c;inn of the part y 
i s notice to the owner of a claim asserted to the land: that the limit s 
of such claim appear from the deed ; and that if the owner for twenty 
years after such entry, and after notice, by means of the possession, 
that an adverse claim exists, asserts no rights^ he mav w pH b"" prp<^nmpd 
t o have made some jQ-rant or convevance. co-extensive with the limi ts 
of the claim set up ; or that, after such lapse of time, a possession u n- 
d er such circumstances, ought to be quieted,. 

There should be something more than the deed itself, and a mere 
entry under it — something from which a presumption of actual notice 
may reasonably arise. It is not necessary to sh ow actna] Irnnw1pr1crp_r>f 
the j]eed. Acts of Ownership, raising a reasonable. presuni2tii)n that 
the owner, with knowledge of them, must have understood that there 
was a claim of title, may be held to be constructive notice , that is, con- 
clusive evidence of notice. Rogers v. Jones, 8 N. H. 264. The owner 
may well be charged with knowledge of what is openly done on his 
land, and of a character to attract his attention. The presumptio n of 
notice ad se-s. from the ncrupation, long continued: and the notice of 
the claim may well be presumed, as far as the occupation indicates that 



Ch. 1) POSSESSOEY TITLES 87 

a claim exists, and the deed, or color of title, serve to define specifically 
the boundaries of the claim or possession, j f the o ccupation is not oi. 
a character to indicate a claim which may be co-extensive witli the., 
limits of t lic deed, llien the principle that the party is presumed to 
^nter adversely according to his title, has no sound application, and 
the advers e possession may be limited to the actual occupation. 

Thus cutting wood and timber, connected with permanent improve- 
ments, may well furnish evidence of notice that the claim of title ex- 
tends beyond the permanent improvements, and the deed be admitted 
to define the precise limits of the claim and possession, provided the 
cutting was of a character to indicate that the claim extended, or might 
extend, to the lines of the deed. It might, at least, well indicate a 
claim to the whole of a tract allotted for sale and settlement, of which 
the party was improving part, unless there was something to limit the 
presumption.] But no presumption of a claim, and of color of titl e 
b eyond the actual occupation, could arise respecting other lots than 
t hat of which the party was in possessio n. And where the possession 
was in a township, or other large tract of land, which had never been 
divided into lots for settlement, no particular claim, beyond the actual 
occupation, would be indicated, and of course no notice of any such 
claim of title should be presumed. Jackson v. Richards, 6 Cow. (N. 
Y.) 617; Sharp v. Brandow, 15 Wend. (N. Y.) 597. 

I f the possession was not of a character to indicate ownership, a nd 
to give notice to the owners of an adverse claim, although the grantee 
might be held to be in possession according to his title, in a contro- 
versy with one who should make a subsequent entry without right, his 
possession ought not to be held adverse to the true owner, to the ex- 
tent of his deed, merely by reason of the deed itself, even if recorded, 
nor by any entry under it. There are several cases which tend to sus- 
tain this view of the principle. Poignard v. Smith, 6 Pick. (Mass.) 172, 
176; Alden V. Gilmore, 13 Me. 178; Prop'rs of Kennebeck Purchase 
V. Springer, 4 Mass. 416, 3 Am. Dec. 227; Hapgood v. Burt, 4 Vt. 
155; Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624; Little v. Megquier, 2 
Greenl. (Me.) 176. 

We are of opinion that the rule cannot apply to a case where a party, 
having a deed which embraces land to which his grantor had good 
title, and other land to which he had no right, enters into and posses- 
ses that portion of the land which his grantor ow^ned, but makes no 
entry into that part which he could not lawfully convey. There is no 
notice in such case to the owner of the land thus embraced in the deed, 
and no possession which can be deemed adverse to him. . If it may be 
said that the color of title gives such a constructive seizin and po sses- 
sio n that the grantee could maintain trespass against any person who 
d id not show a better right, (that is, a title, or prior possession,) the re 
is nothmg in the nature of it which can give it the character of a dis- 



v 



88 ORIGINAL, TITLES (Part 1 

seizin, or possession adverse to the true owner, so as to bind him . JEox 
t hat purpose, there must b eactualoo^s^OiL of some portion oM he 
l and of such owner , and that of a natu re to give notice of an adve rse 
claim* ,,. 

It is not necessary to settle whether an entry into an enclosed lot, 
under a deed purporting to convey unenclosed lands adjoining, belong- 
ing to the same person, would operate as a disseizin of the latter. 
Where two separate lots inr.lyded in thp <;pj7i^ de^d. belong to differe nt 
owners, a n entry into on e can in no way operate as a disseizin in re la- 
tion to the other. ~ "" 

The entry into the house lot, therefore, to which Amos Town, who 
'^conveyed, had title, was no disseizin of Solomon Town, who had title 
to the lot unenclosed, on the other side of the road, 
y^-j ^ The next question is, w hat en tryjnto th e land itself is s_ufficient. 

Here was an entry in 1821, upon the tract in dispute, and a posses- 
sion, by placing a building on it, by Ebenezer Carleton, the grantor of 
the defendants. This was, without doubt, an act of ownership. The 
character of it was adverse to the title of Solomon Town, and it was 
of a nature to give notice that Carleton claimed title to that land. 

But the possession before that time was of a more ambiguous char- 
acter. 

Eb enezer Carleton. to whom the convevance was made in 1815.J 3iade 
n o entry or use of the lot up tn 1821, e xcept bv I pyi^S ^'^^bpr upon \f 
or placing farming utensils there . Those acts by one having a deed, 
if nothing further was shown, might be held to be a sufficient entry, 
and possession to operate as a disseizin of Solomon Town. But it ap- 
peared that s o far as the laying of lumber on the lot was concer ned, 
t his was no more than Carleton, and divers other persons, had bee n 
i n the habit of doino- hefor ^, and thf|<- nfhpr<; rnntiTinff] to do the sam e 
afterwards. T hose acts, prior to 1815, were do ne by him, and otli ers. 
without claim of title, and of course in subservience to. thetitleofTTie 



true owner. IT not acknowledged trespasses, they must have been 
under a license from Solomon Town. The same acts continued afte r 
x/ . a _ deed of other lands, by a person having good title to thn-^e lands 

c ould not operate as any notice to the owner of this tract, that a deed 
had been ma de covering his land also , and that there was an occupation 
under that deed, or under any claim of right to occupy adversely to 
him. The additional act of leaving farming tools on the lands does not 
seem to change the character of the possession. 

It was not, therefore, until 1821, when the building was removed o n 
t o the land, that any entry was made upon it by Carleton, from which 
Solomon Town, with knowledge of the entry, should have understoo d 
t hat CarTeton made any claim to the ownersnip of the lot : and until 
that time, therefore, there was nothing from which an ouster can be 
inferred, and no possession by him that can be deemed adverse, except 



€h. 1) POSSESSORY TITLES 89 

at the election of the owner. Magoun v. Lapham, 21 Pick. (Mass.) 
140; Thomas v. Patten, 13 Me. 336. 
Judgment for the plaintiff.^^ 



RALPH V. BAYLEY. 

(Supreme Court of Vermont, 1839. 11 Vt. 521.) 

Tr espass for breaking and entering plaintiff's clos e, being lot No. 
62, in the first division of lands in Warren, and cutting timber thereon. 

Plea, not guilty, with notice of special matter. Issue to the country. 

Upon the trial in the county court, the plaintifi^ gave in evidence a 
d eed of the lot in question from Smith, Booth & Ufford to the plain- 
tiff, dated June 10th, 1836, and recorded in September, 1836. 

The plaintiff also introduced testimony tending to prove that in July, 
1837, he cor nmenced clearing ten acres of said lot : that in the summer 
of that year he ch opped down the trees growin p; ' on about three acres 
of the land, and that defendant, i n January, 1838. entered upon the l ot 
a rid cut down and carried away a spruce tre e. 

The d efend ai^t. ^ on his part, gave in evidence a deed of the lot in 
q uestion, together with two other l ots of land lying in Warren, from 
o ne Daniel Spencer to Araunah Spear, dated July 18th, 1836, and r e- 
c orded in August, 1836, and introduced testimony tending to prov e 
that {^ppar. immediately after the recording of his deed and in the same 
month, comme nced choj )ping on__said_lot, and c ut down t he timber 
gro wing on about one acre of land : that in August or September, 
1837, he caused the acre last mentioned to be cleared, and that the de- 
fendant entered upon the lot, by the direction of Spear, and cut the 
spruce tree before mentioned. 

The p laintiff then introduced testimony tending to prove that th e 
la nd cleared by Spear was not a part of lot No. 62 . 

It was conceded that the tree cut by the defendant, was not upon 
tliat portion of the lot enclosed by, or in the actual possession of Spear. 

The county court instructed the jury, that, if the plaintiff held a deed 
of lot No. 62, made an entry upon, and took possession of the lot, in 
the manner attempted to be proved, and the defendant entered thereon 
and cut the tree in the manner complained of, the plaintiff Aynnid be 
ent itled to recover against the def endant^ if he y^as a mere strang er, 
ai fd did not act by the direction or consent of Spear^ altho ugh , in fa ct. 
Spear made the first entry on the lot. 



3 2 Kentucky Coal & Timber Development Co. v. Kentucky Union Co. (D. C.) 
214 Fed. 590 (1914), ace. 

5ee Hornblower v. Banton, 103 Me. 375, 69 Atl. 568, 125 Am. St. Rep. 30<^ 
(1907). 



90 ORIGINAL TITLES (Part 1 

The jury returned their ve rdict for the p laintiff. The defendant 
excepted to the charge of the court. 

Other questions were presented in the bill of exceptions, but, as 
they were not decided by this court, they are here omitted. 

The opinion of the court was delivered by 

Bennett, J. We think there was error in the charge of the court, 
as applied to this case. The case shows that Araunah Spear received 
a deed of the lot in question from Daniel Spencer, in July, 1836, and 
the deed was put on record in August following, and that the said 
Araunah immediately entered into possession, claiming title to the 
whole lot under his deed, and commenced a clearing and chopped over 
about one acre, and that, in August or September, 1837, he caused the 
clearing of this acre to be completed. It appears, also, that evide nce 
w as given to the jury tending to prove the defendant's acts tn h ave 
been i-.n np iniHer Sppar 

The effect of this evidence is to extend the possession of Spear, by 
CO nist ruction, to the whole lot, as described in his deed. The charge 
of the court assumes, that if the jury do not find that the defendant act- 
ed under Spear, the plaintiff is entitled to recover, though they should 
find Spear's possession prior to any possession of the plaintiff, it being 
an admitted point that the chopping of the defendant was not on that 
portion of the lot cleared by Spear. 

The plaintiff is a stranger as to the title, and his possession to a ny 
pa rt of the lot is subsequent to the possession of Spear, an d it does no t 
appear that the alleged trespass of the defendant was co mmitted upon 
any part of the lot in the actual possession of the plamtitt. Spear hav- 
ing had the hrst actual possession of a part, and constructive possession 
of the whole lot, there can be no subsequent conflicting possession ex- 
tended by construction beyond the limits of the actual adverse posses- 
sion. Crowell V. Beebe, 10 Vt. 33, 33 Am. Dec. 172; Barr v. Gratz, 
4 Wheat. 213, 4 L. Ed. 553. 

I t is, then, clear that the plaintiffs cou ld not maintain this action 
a gamst Spear, and can he against a stranger .^ .We thmk j iot. The 
doctrine is well settled, that, in ejectment, the defendant may set up, 
as a defense, an outstanding title still subsisting in a stranger, though 
he in no way connects himself with such title. In the present case, as 
between the plaintiff' and Spe ar, the latter has^fhe better title, tha^is, 
the first av ailable possession of that ^art of the Idf'wiiere the trespass 
was committed, and all ac^jof the plaintiff there~wo HId be a trespass 
agamst Spear, If the"" plaintiff is permitted to recover against "a' slran- 
ger, for tlie'trespass, it can be no bar to a second recovery, by Spear 
for the same trespass, and we see no good reason why a stranger, when 
sued by the plaintiff, may not set up a prior possession in Spear. It, 
in effect, is the same principle that permits a defendant in ejectment to 
set up an outstanding title in a third person. There is no occasion for 



Ch. 1) POSSESSORY TITLES 91 

deciding any other question, reserved by the bill of exceptions, as the 
judgment below must, on this point, be reversed . A new trial is, there- 
fore, granted.^ ^ 



SECTION 6.— DISABILITIES 



DOE V. JESSON. 

(Court of King's Bench, 1805. 6 East, 80.) 

This was an ejectment for a house and a small parcel of land, which 
was tried betore Rooke, J., at the last assizes at Northampton; and 
the principal question was, whether the action were brougnt in time 
withm the 2d cla use_of_exceptions in the statute of limitations, 21 Jac^ 
I, c. 16. The person last seised of the premises, from whom the les- 
sors of the plaintiff claimed, was one Thomas Jesson, on whose death 
in the year 1777, David, his elder brother, took possession of them, and 
transmitted the possession to the defendant his grandson. Thomas 
Jesson left a son John and a daughter Frances him surviving. John 
was baptized in 1767, and after the death of his father, being then 
about 10 years of age, was put out apprentice to the sea service by the 
parish, and was seen by a witness- on his return from his first voyage 

33 "The complaint Is made that instruction 8 was refused plaintiffs. It 
reads as follows: 'If the jury l»elieve from the evidence thsit S. I. Robinson 
under his patent entered upon the land embraced therein and took possession 
of the same by himself or his tenant, then he was in possession of the whole 
of said tract of hmd not actually in the possession of some otber party; and 
if you believe that sucli possession has continued for more than ten years by 
the said Robinson or his tenants, then his possession under his patent gave 
him a perfect title to the land actually in his possession, notwithstanding you 
may believe some part of his survey may have been overlapped by an older 
patent.' This would suggest to the jury the question of an interlock of the 
defendant's older patent with plaintiffs' younger patent, and, if there was, 
then plaintiffs would have the benefit of possession extending over on the 
defendant's land. But there could not be such interlock when the plaintiffs' 
patent called for defendant's older patent, and to run with its lines. Robin- 
sou V. Sheets* 63 W. Va. .394, 61 S. E. 347 (190S). This tended to give Robin- 
son the benefit of possession over his bounds. But there is other objection 
to the instruction. Suppose an interlock between senior and junior grants. 
This instruction would say that a possession anywhere on the land of the 
junior grant would take in land of the interlock, if possession under the 
senior is not within the interlock. The junior, though in possession within 
his bounds, cannot be accounted in possession of the interlock, unless he 
has actual physical possession in it. Constructive actual possession arising 
from possession elsewhere will not do. Wilson v. Braden, 48 W. Va. 193, 36 
S. E. 367 (1900). I see that it was discussed and disapproved in former de- 
cision. Robinson v. Lowe, 50 W. Va. 79, 40 S. E. 454 (1901)." Brannon, J., in 
Robinson v. Lovs-e, 66 W. Va. 665, 66 S. E. 1001 (1910). 

As to tacking successive constructive adverse possessions, see Simpson v. 
Downing 23 Wend. (N. Y.) 316 (TS40).~ ' ' "~ " "^ 



92 ORIGINAL TITLES (Part 1 

about a year after the father's death ; soon after which he went to sea 
again, and had not been heard of since, and was beheved to be dead. 
Frances the daughter, one of the lessors of the plaintiff, was baptized 
on the 21st of May, 1771, and afterwards married George the other 
lessor. 

It was contended at the trial by the defendant's counsel that the 
ejectment was out of time; for it was uncertain when John, the son of 
Thomas the ancestor last seised, died, and that the 20 years given by 
the statute began to run immediately on the death of Thomas in 1777, 
and consequently expired in 1797; or that if the statute favoured 
Frances the daughter till 10 years after the disability of her infancy 
was removed, at any rate as she was of full age in 1792, she ought to 
have brought her ejectment in 1802, and consequently this ejectment 
brought in 1804 was too late. On the other hand, it was contended by 
the plaintiff's counsel that supposing John to have died abroad, the 
presumption of his death could not arise till seven years after he v/as 
last seen in England previous to his going to sea, which would not be 
till 1785 or 1786, till when the right of entry of the lessor Frances did 
not accrue; and that she had 20 years in which to bring her ejectment 
after that time; the statute having never begun to run by reason of 
the continuing di^'ability, and consequently that this action was well 
brought. 

The learned Judge left it to the jury to say when and where John 
died ; and observed, that it was fair to presume he had not died in 
England, as none of his family ever" heard of his death. And as to the 
time, that it was incumbent on the jury to find the fact as well as they 
could under the doubt and difficulty of the case; that at any time be- 
yond the first seven years they might fairly presume him dead, but the 
not hearing of him within that period was hardly sufficient to afford 
such a presumption. The jury found a verdict for the plaintiff, and 
that John died als'road about the years 1785, 1786, or 1787, but not 
before. In the last term it was moved to set aside the verdict and 
grant a new trial, on the ground that Frances, the daughter, was at 
most only entitled to 10 years for bringing her ejectment after she 
came of age, which was in 1792, even if she were not bound to have 
made her entry within 10 years from the death of her brother, from 
whom she claimed. 

Lord Ellenborough, C. J. The time allov/ed by the statute for 
making an entry might be indefinitely extended if the construction 
contended for by the plaintiff \vere to be admitted. There is no cal- 
culating how^far it might be carried l)y parents and children dying 
under age, or continuing under other disabilities in succession. The 
brother, John, through whom the lessor of the plaintiff, Frances, 
claimc, being under the disability of nonage at the time of his father's 
death, when his title first accrued, and dying under that disability, it 
appears to me that the proviso in the second clause of tlie statute 



Ch. 1) POSSESSORY TITLES 93- 

(where resort is to be had to it to extend the period for making an 
entry beyond the 20 years,) required the lessor trances, as heir to her 
brother, to make her entry within 10 years after his death : and that 
not leaving done so, this ejectment was brought too late. The_word 
"de ath" in t hat clause must mean and refer to the death of the person 
to w hom the right first accrued^ and_whose heir the claimantjsj and 
the statute meant that the heir of every person, to which person a right 
of entry had accrued during any of the disabilities there stated, should 
have 10 years from the death of his ancestor, to whom the right first 
accrued during the period of disability, and who died under such a dis- 
ability, (notwithstanding the 20 years from the first accruing of the 
title to the ancestor should have before expired.) As to the period 
when the brother might be supposed to have died, according to the 
statute 19 Car. II, c. 6. with respect to leases dependent on lives, and 
also according to the statute of bigamy, (1 Jac. I, c. 11.) the presump- 
tion of the duration of life, with respect to persons of whom no ac- 
count can be given, ends at the expiration of seven years from the 
time when they were last known to be living. Therefore in the absence 
of all other evidence to shew that he was living at a later period there 
was fair ground for the jury to presume that he was dead at the end 
of seven years from the time when he went to sea on his second voy- 
age, which seems to be the last account of him. That was about the 
year 1778, which would carry his death to about 1785. 

Lawrencij, J. Upon the death of the father Thomas Jesson, in 
1777, the right descended to John, the son, tnen under age, who died 
under that disability. The^ lessor Frances„is,..the_heir_oi_Jpl^^ 
the statute gives to the party to whom a right of entry accrues, and who 
is„mider a disability, at the time, 10 years after: the disability removedj 
notwithstanding the 20 years should have elapsed after his title first 
accrued; and to his heir the statute gives 10 years after thejdeath..oL 
such party dying und er the disability. Her e more than 10 years had 
elaps ed after the de ath of the brothe r before this ejectment wa s 
bro ught It appears probable enougiritpon looking into the case of 
Stawell V. Lord Zouch (Plowd. 355), that the word death was introduc- 
ed into the statute of James in order to obviate the difficulty which 
had arisen in that case upon the construction of the statute of fines, 4 
H. VII, c. 24, for want of that word. 

Grose and Ls Blanc, Justices, assenting. 

Rule absolute.^* 

3 4 The construction of the American statutes of limitation generally has 
been the same. See '2 C. J. 117 et seq. 



All 



94 ' ORIGINAL TITLES (P^lt 1 

CHAPTER II 
PRESCRIPTION 



WALLACE V. FLETCHER. 

(Supreme Court of New Hampshire, 1855, 30 N. H, 434.) 

This is an action on the case, for diverting the water from the plain- 
tiff's mill, in New Boston, from May 1, 1848, to the date of the writ, 
April 26, 1850. 

The plaintiff's evidence tended to show that one L. Lincoln, under 
whom he claimed, purchased the land on the south side of the Piscata- 
quog river, in New Boston, bounded by the river, and in 1804 or 1805 
erected thereon the gristmill now owned^ by the plaintiff, and extended 
his dam across the ri^ver to the northJ)aiik. J. McLaughlin then owned 
the land upon the north side of the rfver; and there was no evidence 
tending to show that any consent was asked of McLaughlin, or given 
by him, for the building of the dam, or that he, or any person in his 
behalf, or in his right, made any objection to its being built. 

McLaughlin died in the spring of 1807, and in September of that 
year, one John Kelso applied to Abner Dodge, who had become the 
owner and occupant of tte gristmill and its appurtenances, through two 
or three intermediate conveyances from Lincoln, and asked him if he 
had any objection that said Kejso should move his fulling mill, then 
standing about half a mile above upon the river, a nd s et it at the north 
end of his mill dam, if he would give Dodge an adequate compensa- 
tion. Dodge told him that he had no objection, and Kelso moved his 
mill, but the compensation was not fixed, though Dodge objected to his 
cutting away the dam till it was done. Kelso cut away a part of the 
dam and constructed a flume, and put his fulling mill in operation, and 
continued to occupy the mill till his death, in 1822. It did not appear 
that any other agreement was made by Kelso with the owners of the 
gristmill, or that any compensation was paid by him, or any rate of 
compensation agreed on. 

It appeared that the owners of the gristmill repaired and rebuilt the 
entire dam, when there was occasion, and that Kelso and his heirs, so . 
long as they retained'the property, did nothing and contributed nothing 
towards the repairs of the dam, except to their own flume, and a few 
feet of planking between the flume and the north bank of the river, 
except that on one occasion when the dam was destroyed by a freshet, 
said Kelso entertained at his house some of the neighbors who volun- 
teered to assist in rebuilding it. 

It appeared that at one time said Kelso, being asked why he did not_____ 
assist in repairing the dam, said he expected to have to pay rent for jt^ 



Ch. 2) PRESCRIPTION 95 

In 1816, Kelso obtained of John McLaughlin, Jr., and a sister of his, 
two of the five children and heirs of J. McLaughlin before mentioned, 
a quitclaim deed of the land on the north side of the river, on which 
the fulling mill stood, and his administrator, in 1828, obtained of an- 
other daughter of said J. McLaughlin, Sen., a similar deed, and there 
was evidence tending to show that two others of said J. McLaughlin, 
Senior's, sons enlisted in the army in the War of 1812, and have never 
since been heard from. 

It did not appear that said Kelso made any different claims, or made 
any change of any kind in his relations to the owners of the gristmill, 
after he obtained his deed of J. McLaughlin, Jr., so long as he lived. 

The evidence tended to prove that during the life of said Kelso, and 
ever afterwards, the ow ners of the gristmill claimed that they were en- 
titled to the exclusive use and control of the entire water power cre- 
ated by their mill dam, on the ground that they acquired such right by 
first building a dam there and setting up a mill, and that it was consid- 
ered in the neighborhood a disputable matter whether the owners of 
the north side of the river had any privilege there, but it did not appear 
that^said Kelso ever disputed the claim in this respect made by the 
owners of the gristmill; on the contrary, the evidence tended to prove 
that during said Kelso's life, and until the sale of the interest of his 
heirs, in 1826, the owners of the gristmill were in the habit of calling 
on the occupants of the fulling mill, either personally or by rapping on 
the side of the gristmill, to shut down their gates, and they were ac- 
cordingly closed when the river was low, and the water was needed to 
carry the gristmill, and that in such dry times the gates of the fulling 
mill were sometimes closed by the occupants, of their own accord, and 
sometimes by the o wners of the gristmill, and that said Kelso, at such 
times, sometimes fulled his cloth in the night, when the gristmill was 
not in operation, and sometimes took his cloth to be fulled at mills in 
other towns. 

The evidence also tended to prove that the owners of the gristmill 
also claimed that the gristmill, as such, had a prior right to the use of 
the water, when necessary, before any other mill or machinery on the 
dam, and it did not appear that this right was denied or disputed by 
Kelso, or his heirs or representatives. 

It appeared that at Kelso's decease his children were minors, and 
they so continued, except the eldest, for a short time, until their inter- 
est in the fulling mill and lot was sold by the eldest son, and by the 
guardian of the others, by license of the court of probate. 

The fulling mill was leased by the administrator of Kelso's estate 
for two years, fill 18Z4, and by the guardian of the children for two 
years more, to 1826, in March or April. These leases conveyed the 
fulling mill and water privilege for the clothing business, "except when 
there was not sufficient water for the gristmill," and it appeared that 
during those leases, the owners of the gristmill, when the water was 



96 ORIGINAL TITLES (Part 1 

low, drew all the water, and the gates of the fulling mill were shut 
down at such times. 

A witness for the plaintiff testified tliat he was a referee with two 
others, now deceased, to settle a claim made by A. Dodge against the 
estate of Kelso, for compensation for the use of the water by the full- 
ing mill. The parties stated to them that the owners of the gristmill 
had built the dam, and had done all that had been done to keep it in 
repair; that Kelso came in under an agreement to pay a reasonable 
compensation for the use of the water, though it had never been agreed 
what that compensation should be, and that Kelso had used the water 
for a number of years under that agreement; that the most of the year 
there was water enough for both, and when there was not water enough 
for both, the gristmill had the preference, and when the water was low, 
was to have all the water. The question submitted to them was, what 
the estate of Kelso should pay towards the expense of supporting the 
dam, or what should be paid for the use of the water, when there was 
water enough for both mills. He could not say what was said by 
Dodge or the administrator, but what was said by either was assented 
to by tlie other. There was no dispute between thern. The award was 
produced and verified by him. It recited a submission by bonds, and 
among other things, had an award of "forty dollars to be paid to Dodge 
for the use of the water privilege," and was dated March 26, 1823. At 
the foot of it was written, "We agree to the above award," which was 
signed by Dodge and the administrator. 

To all this evidence of the acts and admissions of the administrator 
of Kelso's estate, and of the guardian of his minor children, it was ob- 
jected that neither an administrator nor guardian has any power, di- 
rectly or otherwise, to create an easement on the minors' estate, or by 
his acts or admissions to furnish or make any evidence of such an ease- 
ment, to affect any other persons than themselves, and the whole evi- 
dence was therefore inadmissible against the grantees of the minors' 
estate ; but the evidence was admitted, subject to exception. 

It was objected that tlie award was not evidence of the submission 
by bond, without the production of the bonds, or an account of their 
absence, but it was admitted on the proof of the agreement of the par- 
ties, written upon it, subject to the exception as to its admission and 
effect. 

It appeared by deeds produced by the defendants, that one of the 
heirs of Kelso, then of age, and the guardian of the minor children, 
under a license from the court of probate, sold and conveyed the full- 
ing mill to D. Smith, on the 5th of August, 1826. Smith soon after 
made a contract with the defendant, Fletcher, and gave him a bond that 
he would convey the property, upon the payment of an agreed price, 
within a certain time ; that in the meantime Fletcher should occupy the 
premises, paying' a certain rent, and that when he paid $200 toward the 
purchase, the rent should cease, and after that he was to pay only the 
interest on the balance of the purchase money. 



Ch. 2) 



PRESCRIPTION 



97 



Fletcher occupied, paying rent for two years,, till 1828, and then paid 
them $200, and afterwards occupied^ as_^ owner, paying interest only. 
During the time from August, 1826, to the fall of 1828, while Fletcher 
occupied as tenant, Smith paid to the owner of the gristmill half a dol- 
lar a month for the use of the water. He testified he paid it because 
it was unsettled and considered disputable, whether there was any priv- 
ilege on the north side. He said he was offered a higher price, if he 
would warrant the water, but he considered it disputable, and declined 
to do it. In April, 1830, he conveyed to one Austin, under whom the 
defendants claim. While he owned the fulling mill, and paid rent, the 
owners of the gristmill claimed they had the first right to the water, 
and it was generally understood they had such right. 

After. the payment of the $200 by Fletcher to Smith, the right of the 
plaintiff to a preference in the use of the water, or to any rent or com- 
pensation for the use of it, was denied by Fletcher, and he ceased to 
shut his gates when the owners of the gristmill requested it, but it did 
not appear, howearly this resistance to the plaintiff's claim was first 
made. ""~ 

The court instructed the jury that if the owner of the mill privilege, 
under a claim of right, used and exercised the rights he claimed, without 
interruption or opposition, for a period of twenty years, this gave him 
a perp etual right, and that it was not material whether his claim of 
right was^welFf ounded in law, if it was so exercised and submitted to. 
That if a party had once acquired a right by such twenty years enjoy- 
ment, he would not lose it by any interruption afterwards, unless that 
interruption continued for twenty years, and the burden was on the 
party who asserted such interruption, to prove it. That if the jury 
should find that the plaintifi', under a claim of right, had used the wa- 
ter to the exclusion of the fulling mill, in the dry season, when there 
was only enough for the grist mill, or had permitted the owners of the 
fulling mill to draw water from the dam for the use of that mill, only 
on payment of a reasonable compensation, for the term of twenty years, 
without interruption, they should find their verdict in his favor, not- 
withstanding they should find that during a part of that time the title 
to the fulling mill was, by descent, in the hands of minors. 

The jury found a verdict for the plaintiff,- which the defendants 
moved to set aside, by reason of the said rulings and instructions of 
the court. 

Bell, J. At common law, a title acquired by possession during the 
period and in the manner prescribed by the law, was called a title by 
pre scription. By the lapse of the requisite time, what was at first a 
bare possession, becomes a right of property, perfect and indefeasible. 
Gale & What, on Easements, 62. 

The doctrine of the common law, as cited by Coke, (Coke's Litt. 
113, b,) from Bracton, (Lib. 2, fol. 51,) substantially agrees with the 
civil law. "Both to customs and prescriptions, these two things are in- 
Aig.Peop. — 7 



98 ORIGINAL TITLES (Part 1 

■^1^ cidents inseparable, viz. : possession or usage and time. Possession 

must have three quahties, it must be long, continual, peaceable ; longa, 
continua, et pacifica, for it is said, transferuntur dominia sine tituo et 
traditione, per usucapionem ; sed, per longam, continuam, et pacificam 
possessionem. Longa, i. e., per spatium temporis per legam definitam ; 
continua, dico, ita quod non sit legitime interrupta; pacificam, dico, 
quia si contentiosa fuerit, idem erit, quod prius, si contentio fuerit 
justa." "Longus usus, nee per vim, nee clam, nee precario," &c. G. 
& W. 122. 

By the civil law, the rule was "ut prescriptione longi temporis, id 
est decem annorum inler presentes, et viginti inter absentes, servitutes 
adquirantur." 1 Hei. ad Pan. part 2, § 158; 2 lb. part 6, §§ 122- 
125; Domat's Civil Law, § 2190. But by the common law, the time 
was not fixed to a certain number of years, but as it was expressed 
by Littleton, (Ten. § 170) it was "de temps dont memorie des homes 
ne curt a le contrarie," or as Coke (Coke's Litt. 115, a) quotes from 
Bracton, "Docere oportet longum tempus et longum usum ilium; viz. 
qui excedit memoriam hominum, tale enim tempus sufficit pro jure." 

In 1275, by statute 3 Ed. I, writs of right were limited to rights 
actually enjoyed after the first year of Richard I, (1189,) and by anal- 
ogy to the period fixed by tliat statute, it was held that time of legal 
memory reached to that date, and not beyond it. Being a fixed date, 
it was of course continually receding, until it became absurd, since it 
was practically impossible to prove any fact of so ancient date. 

The courts might have held, when difficulties were found to result 
from this arbitrary rule, that the ancient law, which fixed the period 
beyond which actual memory did not reach, was still in force, or they 
might have availed tliemselves of the passage of the statute of 32 
Henry VIII, which reduced the limitation of writs of right to three 
score years, to decide by analogy to that statute, as was done in tlie 
time of Edward I, that the time of legal memory was reduced sixty 
years. It appears by Littleton, sec. 170, that in his time it was seri- 
ously contended that the time of legal memory was not changed by 
the statute of Edward I. And Rolle, C. J., was of that opinion, though 
he admits the practice was otherwise. 2 RoUe's Ab. Prescription, P. 
And many respectable authorities maintained, after the statute of 32 
Henry VIII, that time oMegal memory was sixty years, as Rolle, C. 
J., Sergeant Williams, 2 Wms. Saund. 175, n. a.. Lord Mansfield, 2 
Ev. Poth, 136, Blackstone, J., 2 Com. 31, Abbott, C. J., 5 B. & A. 
215, and Dallas, C. J., C. B. Moore, 558. 
r From causes which are not now apparent, neither of these views 
J prevailed, and the consequence was that no title to any easement could 
I be supported upon proof of occupation and enjoyment, however long 
V^ontinued, if its origin could be shown. 

The natural and, indeed, necessary consequence of a rule so ab- 
surd, and one necessarily productive of so unjust consequences, was 
that tlie courts were driven to evade it by refinements and fictions. 



Ch. 2) PRESCRIPTION 99 

It seems by the case of Guernsey v. Rodbridge, Gil. Eq. Cases 4, s. c. 
2 Vern. 390, under the name of Finch v. Resbridger, in 1707, that the 
court of chancery first adopted the principle of presuming the former 
existence and loss of a deed, where a long and uninterrupted posses- 
sion of an easement was shown. I t was not until 1761 that this prin- 
c iple was adopted in the courts of common law in England. Some 
of the judges there were, at times, inclined to give to this presumption 
the effect of a presumptio juris et de jure, a legal presumption binding 
on both courts and juries, as a rule from which neither had a right 
to depart, a presumption of a right constituting a perfect title or bar, 
as the case might be. Wilmot, J., in Lewis v. Price and Dougal v. 
Wilson, Saund. 175, a; Eyre, C. J., in Hed v. Holcroft, 1 B. & P. 
400; Lord Ellenborough, in Balston v. Benstead, 1 Camp. 163, and 
in Bealey v. Shaw, 6 East, 214; and Lord Mansfield in Darwin v. 
Upton, 2 Wms. Saund. 175, a, and Mayor v. Horner, Cowp. 102. 

B ut tlie current ^f__ English decisions has gone no further_ than to 
hol d that lon gjcontinued and uninterrupted possession is evi dence fro m 
w hich a jury mav_ p rp'^nmp a (] ppc\ Keymer v. Summers, B. N. P, 
74; Campbell v. Willson, 3 East, 294; Gray v. Bond, 5 Moore, 327, 
s. c. 2 B. & B. 627; Cross v. Lewis, 2 B. & C. 686; Darwin v. Up- 
ton, 2 Wms, Saund. 175, a; Livitt v. Wilson, 3 Bing. 115. 

The instruction given to the jury that such proof is competent evi- 
dence, from which they may infer the existence and loss of a deed, is 
understood to be accompanied by a recommendation so to find the 
fact, whatever may be their individual impression of its truth, and it 
seems that verdicts rendered in conflict with such recommendations 
would be set aside. Bealey v. Shaw, 6 East, 214, per Ld. Ellenborough, 
C. J.; Bright v. Walker, 1 Cr., M. & R. 217, per Parke, B.; Jenkins 
V. Harvey, 1 Cr., M. & R. 894, per Alderson, B.^ 

Many cases, in this country, have followed in the tracks of the 
English decisions, though it is apparent that, in a newly settled country 
like ours, where to a great extent every thing is of recent date, and 
the history of our towns, of our roads, farms, mills and dwellings are 
known, a rule like that adopted in England is in no respect adapted to 
our situation. On other subjects, the common law has been every 
where modified, to adapt it to the wants of our community. Tjie Eng- 
lish^decis ions on thi s_subjert ha ve been but mr)d es_of_ey ading th e^ffect 
of^^ear jy decisions of their court s ^which have been found inco nsistent 
with the ^)rin ciples of justic ei and it is clearly as much within the le- 
gitimate sphere and customary action of the courts to disregard or 
to overrule such decisions, as it can be to evade them by nice presump- 
tions, either of fact or of law. Itwas the wise course, prescrib ed by 
p rinciple as we ll as by public convenience, to o verrule the a bsurd d e- 
ci sions which sanctioned a fixed_2oi rit in the e a rly history of England , 

1 See, also, Cockburn, C. J., in Angus & Co. v. Dalton, 3 Q. B. D. 85, 103- 
113 (1S77); Thesiger, L. J., in same case on appeal, 4 Q. B. D. 1G2, 170-175 
(1S7S). 



100 OEIGINAL TITLES (Part 1 

as the Hmlt ^of legal m gmory, and at the same time to restore the prin- 
ciple upon which tliat decision appears to be made, that in cases where 
the Legislature have not fixed a precise rule of limitation, rightS-shall 
beacquired and barred by a pre scription- of such length of tirn ejis has 
been fixed_by_the JLegislature as the proper limitation _Jn__analogous 
cases^_Ricard v. \ViIIiams, 7 Wheat. 110, 5 L. EOOSTlSunt vTSunt, 
3 Mete. (Mass.) 185, Z7 Am. Dec. 130. • 

I \X was to adopt here as the law, the strong view of Wilmot, J., in 
Lewis V. Price, that if a possession of twenty years is sufficient to give 
1 a man title to a house, there can be no reason why it should not be 
[ sufficient to give title to any easement belonging to the house. 

Upon these views, we take the law to be here settled, as is laid down 
by Prof. Greenleaf, 2 Greenl. Ev. § 539: "By the weight of authority, 
as well as the preponderance of opinion, it may be stated as the_gen- 

ieral rule oL A merican law , tliat an adverse, exclusive and uninterrupted 
enjoyment for twenty years of an incorporeal hereditament affords a 
conclusive presumption of_ a ^ran_tj or a right, as the case may be, 
which is to be applied as a presumptio juris et de jure, wherever by 
possibility a right can be acquired in any manner known to the law. 
In order, however, that the enjoyment of an easement in another's land 
may be conclusive of the right, it must have been adverse , that is, un- 
der a claim of title, with the knowledge and acquiescence of the owner 
of tlie land, and uninterrupted ; and the" burden of proving this is on 
|;he party claiming the easement." In support of this position, he cites 
Tyler v. Wilkinson, 4 Mason, 402, Fed_Cas. No. 14,31 2 ; Ingraham v. 
Hutchinson, 2 Conn. 584; Strickler v. Todd, 10 Serg. & R, (Pa.) 63, 
69, 13 Am. Dec. 649; Sherwood v. Burr, 4 Day (Conn.) 244, 4 Am. 
Dec. 211; Tinkham v. Arnold, 3 Greenl. (Me.) 120; Hill v. Crosby, 
2 Pick. (Mass.) 466, 13 Am. Dec. 448; Ricard v. Williams, 7 Wheat. 
109, 5 L. Ed. 398; Coolidge v. Learned, 8 Pick. (Mass.) 504; Sargent 
V. Ballard, 9 Pick. (Mass.) 251; Melvin v. Whiting, 10 Pick. (Mass.) 
295, 20 Am. Dec. 524; Bolivar M. Co. v. Neponset M. Co., 16 Pick. 
241 ; Morgan v. Banta, 1 Bibb (Ky.) 582 ; Simpson v. Hawkins, 1 
Dana (Ky.) 306; Shaw v. Crawford, 1 Johns. (N. Y.) 236 ; John v. 
Stevens, 3 Vt. 316. To which may be added, Stiles v. Hooker, 7 Cow. 
(N. Y.) 266; 1 Kent, Com. 444; 2 Hill. Ab. 60, 61; Shumway v. 
Simonds, 1 Vt. 53 ; Baldwin v. Calkins, 10 Wend. (N. Y.) 166; and 
Miller v. Garlock, 8 Barb. (N. Y.) 153, where the principles applica- 
ble in cases of this kind are very clearly stated and condensed ; Hoyt 
V. Carter, 16 Barb. (N. Y.) 219; Valentine v. Boston, 22 Pick. 80, 
33 Am. Dec. 711; Atkins v. Bordnian, 20 Pick. (Mass.) 302; Little- 
field V. Maxwell, 31 Me. (1 Red.) 140, 50 Am. Dec. 653. 

In this State, in Bullen v. Runnels, 2 N. H. 255, 9- Am. Dec. 55, 
it was said by Woodbury, J., and held by the court, that the. most con- 
clusive evidence as to tlie interests of parties in water-courses, was 
the occupation of the parties during twenty years, because that is the 
common and peculiar mode of acquiring rights to the use of water, 



Ch. 2) PEESCEIPTION 101 

and because so long an occupation of a stream not navigable raises 
a presumption that the grants, now lost by time and accident, have 
passed between tlie parties, in conformity to the occupation. 

In Oilman v. Tilton, 5 N. H. 231, Richardson, C. J., says: "Some 
have held that a term of twenty years of exclusive, uninterrupted en- 
joyment of the use of water, in a particular manner, is a conclusive 
presumption of right, presumptio juris et de jure," It was not the 
point directly before the court, and he says no more; but we think 
that the remark shows that the opinion met his approval. The point 
decided was, t hat an_ a dverse e n jovment of water f or any period l ess 
than twenty year s is not a lone^sufficien t to warr anLlhe presumpjion 
of a grant . 

In the case of Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156, it 
was held that the ad verse , e xclusive use of water flowing through an 
aqueduct, by the owners and occupants of a house, for the term of 
twenty years, furnishes presu mptive evid ence of a grant from the 
owner of the land through which it is brought, to have it flow in the 
manner it has been accustomed to do for that period. And the learned 
chief justice who delivered the opinion of the court, remarks of the 
case: "During all that time, (more than twenty years,) the right of 
the plaintiffs, and those under whom they hold their lands, thus to 
take and use tlie water, has, so far as appears, not been contested by 
any one; nor is there any express evidence of any permission asked 
within the time or of any sum paid for the use, or any acknowledg- 
ment that the use was at the pleasure of those through whose land the 
aqueduct passed. These facts, if they stood alone, would furnish 
abundant evidence of title in the plaintiffs to take and use the water, 
as they and others, whose estates they hold, had been accustomed to 
do for such period." He subsequently says : "The plaintiffs' claim 
does not rest upon a prescription. There is no pretense that the use 
has extended beyond legal memory. T he plaintiffs must^ ;elx-U£0" 
th e presumption of a grant, arising froma n undisturbed enjoymen t 
o f the use of it, flowing^ through the land^wned by the defenda ntjor 
so J ong a per iod; which may be in the nature of a prescription, ex- 
ce pt so far as time is concerned .'^ ~ 

It is apparent that the learned judge referred to a prescription such 
as is recog nized by the ancient books of thejaw^ founded upon such 
a length of possession as the memory of man does not reach to, go- 
ing back to the first year of Richard I, three hundred years before the 
discovery of our co ntinent. Such a prescription, of course, could not 
exist in this case, nor in any case arising in this country. And any 
attempt to reason from the nature of such a prescription, so far as 
it related to time, might be properly rejected. The analogy of the 
presumption of title, or of grant, as the case may be, to a prescription, 
except so far as time is concerned, is distinctly admitted. And there 
seems to us both convenience and propriety in applying the term pre- 
scription in cases of this kind, since the prescription of the ancient 



r; 



102 OBIGINAL TITLES (Part 1 

books can never exist here, and even as to time, the limit recognized 
here agrees with that of tlie civil law. Hein. ad Pand., before cited. 
However this may be, this case furnishes strong evidence of the con- 
currence of tliis eminent judge in the general current of decisions in 
this country, as stated by Prof. Greenleaf. 

Upon this view of the law, we think tlie instruction given to tlie 
jury, that if an owner of a mill privilege, under a claim of right, used 
\ ■ and exercised the rights he claimed, without opposition or interrup- 

tion, for a period of twenty years, this gave him a perpetual right, was, 
upon the facts presented by the case, correct, unless the court erred 
in that part of the charge where they say that the exercise of the rights 
claimed for twenty years, without interruption, entitled the plaintiff to 
! a verdict, not withstand ing they shouldLfindjtha^^Airing^j,^aTt^^ 
time the title to the property affe ct ed was, by descent, in the jiarids^ of 
minors. 

This question, in a different form, came before the court in the case 
of Watkins v. Peck, and it was there said : "We are of opinion that 
no grant can be presumed from an adverse use of an easement in the 
land of another, for the term of twenty years, where the owner of_ 
. the land w^as, at the expiration of the twenty years, and long before, 

\ ; incapable of making any grant, whether the disability arose from in- 

sV^) fancy or insanity. Perhaps a disability intervening during the lapse 

of tlie term, but not extending to the termination of the twenty years, 
M^ might not be sufficient to rebut the presumption, but it would be absurd 

to presume a grant, where it was clear that no such grant could have 
existed." This case is relied on by the defendants as decisive of the 
)resent case, but we are unable so to regard it. 
[n the present case, the period of twenty years, necessary to give a 
I' title by presumption of a grant or title, commenced in 1807, and ended 
in 1828, after which time the right was denied, and its exercise in- 
terfered with. From 1822 to 1826, tlie title of the defendant's estate, 
in which the easement was claimed, was in the minor children of 
Kelso, the former owner, then deceased, and their interest was sold 
in 1826, by their guardian, by license from the court of probate. The 
disability of the owners did not extend to the end of the twenty 
years, but ceased two years previously. That case was not decided in 
Watkins v. Peck, but was in express terms left undecided. 

The case then before the court did not require the decision of any. 
question on the subject, since it was he ld that the then def endan ts tak- 
iii g the wate r^by contrac t_jrom the premises of a third person, could 
justjfy^jLindeOhaL_person3l-thg y couTd~not~standnonr'"tlfeir own oc- 
cupation. _ But it is not necessary here to question the ruling there 
made, in tlie case then before the court. 

But we think that, [n Ae present case, where it appeared that the 
parties interested were of full age at the "time when the possession and 
bser commenced, and for fifteen years after; and also at the time 
when the full time of twenty years was completed, and for two years 



Ch. 2) PRESCRIPTION 103 

before, and the title of the minors intervened for some three or four 
years between- those periods, th eir disabiHty would ii ot_p revent a title 
fr om bein g ^ acquired bv twenty yefir<^ p ossession . 
^1.,-We have already stated our impression that by the law, as generally 
recognized in this country, the party claiming title under such posses- 
sion is not obliged to rely merely on a presumption__of_a_.graiit, but 
he may rest on a pre sumption of righ t, or of any grant, reservation 
or record, which may be necessary to establish his title; and it seems 
to us this may properly be regarded as a species of prescription, estab- 
lished here by a course of judicial decisions, by analogy to the stat- 
ute of limitations of real actions. Coolidge v. Learned, 8 Pick. (Mass.) 
504; Melvin v. Whiting, 10 Pick. (Mass.) 295, 20 Am. Dec. 524. 

In cases where the party claiming title under such presumption, may 

find it necessary to rely upon the presumption of a deed, we think that 

long continued user is evidence of a lost or non-existing grant, from 

some person who might, at some time, have made a valid grant to some 

person capable of accepting it. It cannot prove more than this. User 

'^ cannot prove a grant by A. to B., on a given day, unless there be 

""other circumstances, which confine the presumption to a particular 

time, and to those persons only. The evidence of such limitation forms 

no essential or natural part of the proof of user. Campbell v. Wilson, 

3 East, 294 ; French v. Marstin, 24 N. H. 453, 57 Am. Dec. 294. 

/It strikes us that the legitimate and natural tendency of evidence of 

User may, in many cases, be rather to prove a deed existing before the 

/commencement of the user, than one executed during the time of the 

/use, or at its termination. Tinkham v. Arnold, 3 Greenl. (Me.) 122. 

j T jie earliest ac t of user proved, tends to prove j ^ght thenj gxisting, 

I u pon the principle that he who witnesses any en croachment upon his 

ri ghts, without objection or opposition, seems to~admit, in "some d e- 

. gre e, however slight, a right in the party who does it. Suchjight_evi- 

de nce gain s^or ce by co jitinuedrepetition, until a.^the_e nd of twe nty 

ye ars it be comes, unexplained, conclusive evidence of righ t. 

This species of prescription being established here upon the neces- 
sity existing among us, of some mode of determining the rights to 
easements, of a more rational character than the ancient rule of pre- 
scription, reaching back to the time of legal memory, and applicable 
to all cases, tlie analogy of the statute of limitations, by which tlie 
period of twenty years is adopted as the time of prescription, seems 
reasonable and proper to be followed likewise, as to the exceptions 
M^r^ prescribed by that statute. Those exceptions are of two kinds, the 
] case of areve rsioner against whom the statute does not begin to run, 

' and by parity of reason, the time of prescription does not begin to run 

until his interest becomes vested, so as to give him a right of action. 
The tenant for life or years may grant easements, or permit them to 
be acquired by user, and they will be valid against himself and those 
who hold his estate during its continuance, and perhaps not afterwards, 
where the reversioner had previously neither cause nor right to com- 



104 



ORIGINAL TITLE8 



(Part 1 



y 



plain. Daniel v. North, 11 East, 370; Bradburg v. Gimsell, 2 Wms. 
Saund. 175, d; Barker v. Richardson, 4 B. & A. 579; Ang. Adv. Enj. 
46; 2 Greenl. Ev. § 545. 

/cTwnerswho ^ are under disab ilities when tlieir rigli ts_are-iinsL en- 
croached upon, and the right~o I_ actIon for such encroachm ent_jirst 
accrues , have by tlie statutes five years to bring their actions, after 
the disability is removed, though the period of twenty years may have 
long expired. j<'.oster,v._Mar shall, 22 N. H. 491. In such a case, we 
think there would be the strongest reason for applying to the priv- 
ileges of the house the same rule we apply to the house itself, and to 
allow to the disabled owner tlie rule tliat he may have five years to 
contest his liability, after his disability has ceased. ^ut_ under the stat- 
ute jt_has always been_ held_ihat_jite r the statute has on cg commenced 
to run^ no i ntervening disability will defeat the ordinary lim itation 
ati_sing frotii— twenty years___adxg l_se possessio n. Howell v. Zouch, 
Plowd. 353; Doe v. Jesson, 6 EastTSO ; Eager v. Commonwealth, 4 
Mass. 182; Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433; 
Griswold v. Butler, 3 Conn. 227; McFarland v. Stone, 17 Vt. 165, 44 
Am. Dec. 325; Mercer v. Selden, 1 How. 37, 11 L. Ed. 38. 

The same rule seems to us proper to be applied, in case of disabilities 
arising to the owners of real estate, after the user and enjoyment of 
an easement has been commenced under a claim of right, with the 
knowledge of the owner, and without question or opposition on his 
part. Such interveni iig^dis abilities should not defeat the presum ption 
o f title resulting from twenty years possession . Tyler v. Williamson, 
4 Mason, 402, Fed. Cas. No. 14,312; 2 Kent's Com. 445; 2 Greenl. 
Ev. 545; Cross v. Lewis, 2 B. & C. 686; Best on Presumption, 89; 
Ang. Watercourses, 235. 

The p oint relative to the award is not in s isted upon, and jthe plain- 
tiff's answer to it seems sufficient. J udgment on the verdict." 



LAMB V. CROSLAND. 
(Court of Appeals of South Carolina, 1851. 4 Rich. Law, 536.) 

This was an actiorijm the case for obstructing a di tch. 

The lands of the parties^jvyere adjoining. The plaintiff's land, in 
1817, belonged to her husband, one Alexander Lamb. The defendant's 
land, then, belonged to one Bartholomew Cosnahan. Near Lamb's 
house were some ponds, which, in wet seasons, were filled with wa- 
terjjind^rodu^ced sickness. Lamb asked and obtainedjpennissiqn froni- 
Cosnahan to cut a ditch through his land, for tlie purpose of draining, 

2Mebane v. Patrick, 46 N. C. 23 (1S53); Tracy v. Atherton, 36 Vt. 503 
(1864); Ballard v. Dommon, 156 Mass. 449, 31 N. E. 635 (1892); Scallon v. 
Manhattan Ry. Co., 1S5 N. Y. 359, 78 N. E. 284, 7 Ann. Cas. 168 (1906), ace. 



h^Q' 



\i I. 



J \ 



^. 



Ch. 2) PRESCRIPTION 105 

those po nds. The ditch communicated with an old ditch, called the 
meadow ditch, by which the water passed off into Crooked Creek. The 
land through which the ditch was cut by Lamb, was then woodland; 
it had since been cleared. Tliejditchjiad_been^kej)t g^^en a^^^ 
Lamb's land ever since, and worked on occasionally, when it suited 
the convenience of those who owned the land. The plaintiff was in 
possession of Lamb's land. Lamb died in 1836. No evidence of how 
the plaintiff" derived title was given ; but it was understood, from the 
course of the testimony, that it had been sold for partition, and she 
was the purchaser. B. Cqsnahan died in 1820, leaving a widov; and 
infant children, one of whom was not of age until 1841. After his 
death, the land remained in the posses'smn of his widow and the ad- 
ministrator, until 1833, when it was sold for partition, and purchased 
by one E. Cosnahan, who sold it to one Feagin in 1836. From him 
it passed to Green. About 1843, he sold to Dudley, and Dudley to 
the defendant. In_ 1847 (in January ,)_jn consequence of the lower 
part of the ditch not being kept sufficiently open, four acres of the Jt' 

defendant's landTon the^side of the ditch, were too wet to plough. He 
sent to the plaintiff, requested her to open it, but she did not do it. 
In March the defendant filled up the ditch with 'dirt and logs. Some 
negotiation took place, and the plaintiff opened the ditch, but as it 
turned out, not sufficiently, for in July there were very heavy rains, 
and the water ponded on the four acres, and injured the growing crop. 
The defenda nt again obstructed the ditch. ■ It remained so four days, 
w hen th e plaintiff's son removed the obstruction. But in these four 
days, the corn in the plaintiff's pond was destroyed. For this injury 
the action was^^qught, an^ the sole questiorL presented by.. the_case 
wasTwhether theplaihtilf had a prescriptive right to drain her land 
throug h this ditch. If she had, the defendant had no right to ob- 
struct it. if she had not, then the defendant had a right to fill it up 
on his own land. 

Evidence was given on the question, whether the use had been ad- 
verse, or only permissive. That question was submitted to the jury, 
who found for the plaintiff. 

In his report of the case, his Honor, the presiding judge (Evans, J.), 
says : 

"It was clear, that from 1820 to 1833, the land of defendant_be-._ 
longed to in fants ; and there was not the sTfghtest evidence to change 
the original character of the use, up to the death of B. Cosnahan. My 
own opinion, founded on a pretty full argument, made in the case 
of Boykin v. Cantey, which I tried at Kershaw, was, that the pre- 
sumption of title, arising from adverse use, did not arise when the 
owners were, at the time of its commencement, infants ; and that, even 
in cases of intervening infancy, the presumption was suspended during 
infancy, for the_p^resumption depends, not on the use alone, but the 
acquiescence of the.owners. In this case, there is no doubt about the 
facts. The ii sg^ began in 1817, and continued to 1847, a period of thirty •^'^7 






106 ORIGINAL TITLES (Part 1 

years. But during the, time, the land belonged to infants tliirteen 
years, leaving only seventeen years. Entertaining this opinion, if 1 had 
left that point to the jury, they of course would have found for tlie 
defendant; but I did not feel at liberty, after having spent more than 
a day on the trial, to arrest the case by a nonsuit, on an undecided 
point, and one of difficult solution. The case was sent to the jury on 
the other points, reserving to the defendant tlie right to renew his 
motion in the Appeal Court." 

The defendant appealed, and now moved for a nonsuit, or new 
trial, on several grounds ; tlie f ourtli ground for a nonsuit was as 
follows : 

Because, admitting that the plaintiff had adverse possession for 
twenty-nine years, it was in evidence, that for thirt een years of thi s 
time, the proprietors of the servient tenement were infants, against 
whom an adverse possession could not grow into a right. 

Curia, per Evans, J. There are several questions presented by the 
brief in this case, but as the decision depends on the fourth ground 
for a nonsuit, none of the otlier questions will be considered. That 
ground is in the following words, to wit, "admitting that the plaintiff 
had adverse possession for twenty-nine years, thirteen years of this 
time the proprietors of the servient tenement were infants, against 
whom an adverse possession could not grow into a right." The facts 
of the case, necessary to be stated in order to understand this ground, 
' ' are these. ' In 1817, tlie ditch, which was the subject of controversy, 

was dug by Lamb through Cosnahan's land, by his permission or con- 
sent, for the purpose of draining some ponds on the land of Lamb. 
The ditch has been kept open ever since, until obstructed by the de- 
fendant, who now owns the land. In 1820, Cosnalian died, leaving a 
widow and infant children his heirs at law, one of whom was not of 
age until 1841. In 1833, the land was sold, under a decree of the 
Court of Equity, for partition, and purchased by one E. Cosnalian, 
from whom, by several intermediate conveyances, the defendant de- 
rives his title. 
.-J The g^uest_ion_ arising on these facts is, whether the plaintiff, who is 

the owner of Lamb's land, to drain which the ditch was dug, has 
acquired, by the use thereof, a right of drainage against the owners 
of the land. There is no doubt that, according to our law, as de- 
clared in a great many cases, (the adverse use of an easement for twen- 
ty years will confer a right to the use of it, as fully as if a deed for 
it w^ere produced and proved. In the ordinary transactions of man- 
kind, we find that men are not disposed to allow others to exercise 
dominion over their property. When, therefore, we find tliat such 
dominion has been exercised for a long period, without objection on 
the part of the owner, it is reasonable to conclude that such use began 
in right, or it would have been objected to. This title is founded on 
the presumption of a grant, which time or accident has destroyed. 
But this is perhaps a legal fiction, which the law resorts to, to support 



Ch. 2) PRESCRIPTION 107 

ancient possessions, and to maintain what the acts of the parties show 
they considered to exist. 

There can be no doubt that, if Cosnahan had Hved for twenty years 
after the use of the ditch commenced, and Lamb had used it adversely, 
as the jury have found, the right would have been perfect; and I 
suppose it equally clear, that if the time before Cosnahan's death, 
added to the time which elapsed after the sale in 1833, together, made 
the full period of twenty years, the right would be beyond dispute. 
For in both cases there would be an adverse use, and an acquiescence 
by those laboring under no disability, for the full period that the law 
requires to support, the presumption of a grant. 

In this case these two periods of time amount to only seven- 
teen years, and un less the presump tion ca n arise against the infants, 
the twenty years is incomplete. 

In McPherson on Infants, it is said (p. 538) : "It is a maxim of law, 
that laches is not to be imputed to an infant, because he is not sup- 
posed to be cognizant of his rights, or capable of enforcing them." In 
Bacon's Abridg. title Infant, G, (5 vol. 110,) last edition, it is said: 
"The rights of infants are much favored in law, and regularly their 
laches shall not prejudice them, upon the presumption that they un- 
derstand not their rights, and that they are not capable of taking no- 
tice of the rules of law so as to apply them to their advantage." The 
same doctrine is to be found in all the elementary writers from Coke 
to the present time. The presumption arises from the acquiescence 
of the parties interested to dispute it, and it would be difficult to assign 
a reason for drawing any conclusion from the acquiescence of an in- 
fant, who is supposed in law not to be cognizant of his rights, or capa- 
ble of enforcing them. Accordingly we find, that in all the cases which 
have been decided^ so far as I know, no presumption has been allowed 
against the rights of an infant, whether the question related to the 
satisfaction of bonds for the payment of money, or the performance 
of other acts, or to rights growing out of what Best calls a non-exist- 
ing grant. In Boyd v. Keels, decided in 1830, it was held that no 
presumption could arise that the condition of a bond of an adminis- 
trator had been performed, because the distributee, to whom he was 
to account and pay over the money, was an infant. The same was af- 
firmed in the case of Brown v. McCall, 3 Hill, 335. In Gray v. Givens, 
2 Hill, Eq. 514, Judge ^arper says : "I think it has not been questioned, 
that the time during which the party to be affected has been under 
disability, must be deducted in computing the lapse of time, in analog)' 
to the Statute of Limitations. Such was the case in Riddlehoover v. 
Kinard, 1 Hill, Eq. 376. If the possession were taken in early in- 
fancy, the title might be matured before the infant arrived at age, 
and before the Statute of Limitations had begun to run against him. 
The decisions have been numerous, and the practice habitual and I am 
not aware of any doctrine or decision to the contrary." 

We have no case involving the right to an easement, in which the 




108 ORIGINAL TITLES (Part 1 

question involved in this case has been decided by this court. In Watt 
V. Trapp, 2 Rich. 136, Judge O'Neall, on the circuit, expressed the 
opinion to the jury, tliat the presumption of a grant to a way would 
be arrested by infancy. But that point was not necessarily involved 
in the case, and this court declined to express any opinion, as, accord- 
ing to my recollection, it was not argued. In otlier States the ques- 
tion has been decided. In the case of Watkins v. Peck, 13 N. H. 360, 
40 Am. Dec. 156, it was held, tliat a grant cannot be presumed from 
the use and enjoyment of an easement for the term of twenty years, 
when the party, who must have made the grant if it existed, was an 
infant at the time of making it. This does not come up fully to the 
case under consideration, because in this case the grant, if any, must 
have been made coeval with the use, and that was in the lifetime of 
Cosnahan, who was adult. But that can make no difference, unless 
we apply the rule, which has been acfopted in relation to some of the 
clauses of the Statute of Limitations, viz., that where the Statute be- 
gins to run, it will not be arrested by any intervening disability. But 
tETs'has not been contended for, and tliere is no semblance of author- 
ity to support it. This construction arises on a positive enactment, 
that the action must be within four years from the time the right of 
action accrued; whereas presumptions arise from the assertion of the 
right, and the acquiescence in it, during the whole period of twenty 
years, and how can it be said that the infants have acquiesced, when 
they were incapable of asserting their rights ? 

But the case of IMelvin v. Whiting, 13 Pick. (Mass.) 190, was a case 
of intervening infancy. The plaintiff claimed title to a several fish- 
ery, on the defendant's soil, and relied, to support his title, on proof 
of an adverse, uninterrupted, and exclusive use and enjoyment for 
twenty years. The jury were instructed by the Chief Justice that, to 
raise such a presumption of conveyance, it must appear that such 
exclusive right had been used and enjoyed against those who were able 
in law to assert and enforce their rights, and to resist such adverse 
claim, if not well founded ; and, tlierefore, if the persons against whom 
such adverse right is claimed, were under the disability of infancy, 
the time during which such disability continued, was to be deducted 
in the computation of the twenty years ; and this construction was sup- 
ported by the Court of Appeals. The only dictum which I have found 
to the contrar}^ is contained in the opinion of Judge Story, in the 
case of Tyler v. Wilkinson, 4 Mason, 402, Fed. Cas. No. 14,312. The 
action involved the priority of right to use the water in Pawtucket 
River, and in no way involved the question of the rights of infants. 
The question which he was discussing was, whether the presumption 
from adverse use was a presumptio juris et de jure, a question of law 
to be decided by the court, or a fact to be determined by the jury. In 
support of his argument, that it is a presumptio juris, he says the right 
by presumption of a grant is not affected by the intervention of per- 
sonal disabilities, such as infancy, coverture, and insanity. This die- 



Ch. 2) PRESCKIPTION X09 

turn is noticed and disregarded in the New Hampshire case above re- 
ferred to, and I may be permitted to say, without any disrespect to that 
great and learned judge, that he di d not bear in mind the distinction ^ 

between a right claimed by prescription, and a presumption of right 
from a non-existing- grant. The former requires a use beyond legal 
memory7tlTe"latter may arise within twenty years. Best on Presump. 
§ 88 ; 3 Stark. Ev. 911, 3d Ed. ; 2 Ev. Poth. 139. 

We are of opinion, that the period of time^during which the infant 
heirs of Cosnahan were the owners~oFTHe servient tenement, is not 
to be computed as a part of the twenty years' adverse use necessary 
to vest the easement in the plaintiff, and upon this ground the plain- 
tiff should have been nonsuited on the circuit. It is therefore ordered 
that the verdict be set asjdej, and the defendant have leave to enter 
up a judgment of nonsuit. 

O'NeaIvL and Frost, JJ., concurred. Motion granted.* 



£^^ m AjL^^ , 



BAXTER v. TAYLOR. 

(Court of King's Bench, 1832. 4 Bam. & Adol. 72.) 

Declaration stated that a certain close called Stoney Butts Lane, 
situate in the parish of Plalifax in the county of York, was in the pos- 
session and occupation of J. H., J. E., and J. A., as tenants thereof to 
the_plaintiffj the reversion thereof then and still belonging to the plain- 
tiff ; yet the defendant, well knowing tlie premises, but contriving to 
prejudice and aggrieve the plaintiff in his reversionary estate and in- 
terest, whilst the said close was in the possession of the said J. H., J. 
E., and J. A., to wit, on, &c. wrongfully and unjustly, and without tlie 
leave and license, and against the will of the plaintiff, put and placed 
upon the said close diverse large quantities of stones, and continued 
the same for a long space of time, to wit, from thence hitherto; and 
also with the feet of horses, and the wh^Js^ of carriages, spoiled and 
destroyed divers parts of the said close, whereby the plaintiff was 
greatly injured in his rev ers io nary_ estate and interest therein. Plea, 
not guilty. At the trial before Parke, J., at the last assizes for the 
county of York, it appeared that the plaintiff was seised in fee of the 
closes mentioned in the declaration, which he had demised to tenants ; 
that the defendant had with his horses and cart entered upon the close 
called Stoney Butts Lane ; and that after notice had been given him by 
the plaintiff to discontinue so doing, he claimed to do so in exercise 
of a right of way. The learned Judge was of opinion, that although 
that might be good ground for an action of trespass by the occupier of 
the plaintiff's farm, it was not evidence of any injury to the reversion- 
ary estate, and therefore that the action was not maintainable ; and he 

3 See Saunders v. Simpson, 97 Tenn. 382, 37 S. W. 195 (1896) ; Hodges v. 
Goodsyeed, 20 R. I. 537, 40 Atl. 373 (1898). 




110 ORIGINAL TITLES (Part 1 

nonsuited the plaintiff, but reserved liberty to him to move to enter a 
verdict. 

Taunton, J. I think there should be no rule in this case. Young 
V. Spencer, 10 B. & C. 145, is not in point. That vv^as an action on tlie 
case in the nature of wasteby a lessor against his ov^^n lessee, _Here_ 



the action is by a reversioner against a mere stranger, and a very differ- 
ent rule is applicable to an action on the case in the nature of waste 
brought by a landlord against his tenant, and to an action brought for 
an injury to the reversion against a stranger. Jackson v. Pesked, 1 M. 
& S. 234, shews, that if a plaintiff declare as reversioner for an injury 
done to his reversion, the declaration must allege it to have been done 
to the damage of his reversion, or must state an injury of such a per- 
manent nature as to be necessarily prejudicial thereto, and tlie want of 
such an allegation is cause for arresting the judgment. If such an alle- 
gation must be inserted in a count, it is material, and must be proved. 
Here the evidence was, that the defendant went with carts over the 
close in question, and a temporary impression was made on the soil by 
the horses and wheels ; that damage was not of a permanent but of a 
transient nature; it was not therefore necessarily an injury to the plain- 
tiff's reversionary interest. Then it is said that the act being accompa- 
nied with a claim of right, will be evidence of a right as against the 
plaintiff, in case of dispute hereafter. But acts of that sort could not 
operate as evidence of right against the plaintiff, so long as the land 
was demised to tenants, because, during that time, he had no present 
remedy by which he could obtain redress for such an act. He could 
not maintain an action of trespass in his own name, because he was 
not in possession of the land, nor an action on the case for injury to the 
reversion, because in point of fact there was no such permanent in- 
jury as would be necessarily prejudicial to it; as, therefore, he had no 
remedy by law for the wrongful acts done by the defendant, the acts 
done by him or any other stranger would be no evidence of right as 
against the plaintiff, so long as the land was in possession of a lessee. 
In Wood V. Veal, 5 B. & A. 454, it was held that there could not be a 
dedication of a way to the public by a tenant for ninety-nine years, 
without consent of the owner of the fee, and that permission by such 
tfenant would not bind the landlord after the term expired. I think 
therefore that the plaintiff cannot maintain the present action ; and 
there is not doubt sufficient to induce me to think that there ought to 
be a rule nisi for a new trial. 

PATTitsoN, J. I am of opinion that the nonsuit was right. Young 
V. Spencer, 10 B. & C. 145, was not an action by the reversioner against 
a stranger, but by a landlord against his tenant. It was an action on the 
case in the nature of waste. To entitle a reversioner to maintain an 
action on the case against a stranger, he must allege in his count, and 
prove at the trial, an actual injury to his reversionary interest. It is 
said that this action is maintainable, because the plaintiff's title may be 
prejudiced by a trespass committed under a claim of right; but then for 



Ch. 2) PRESCRIPTION 111 

such an injury the action must be brought in the name of the tenant, 

who is the person in the actual possession of the land. It is true the 

landlord cannot bring an action in the tenant's name without his assent; 

but that, generally speaking, would be obtained without difficulty, and 

may be always made matter of arrangement between the landlord and 

his tenant. The landlord may even provide by covenant in his lease ^ 

tha^he shall be allowed to .,sue_in_tusjten.ant's name for any trespass 

committed on the land. 

Parke, J. I am clearly of opinion that there was no injury to the 
plaintiff's reversionary interest; and to entitle him to maintain this ac- 
tion it was necessary for him to allege and prove that the act complain- 
ed of was injurious to his reversionary interest, or that it should appear 
to be of such a perm.anent nature as to be necessarily injurious. A sim- 
ple trespass, even accompanied with a claim of right, is not necessarily 
injurious to the reversionary estate, and what Lord Tenterden said in 
Young V. Spencer, 10 B. & C. 145, must be construed with reference to 
the subject matter then under consideration, an action on the case in 
the nature of waste by a reversioner against his tenant. 

Rule refused.* y / / 

'h „ 4^f ,^ ,'. 

SERJEANT WILLIAMS' NOTE TO YARD v. FORD, 2 Wms. 
Saund. 172, 175 : "In Lewis v. Price, Worcester Spring Assizes, 1761, 
which was an action on the case for stopping and obstructing the plain- 
tiff's lights, Wilmot, J., said, that where a house has been built forty 
years, and has had lights at the end of it, if the owner of the adjoining 
ground Jbuilds against them so as to obstruct them, an action lies ; and 
this is founded on the same reason as when they have been immemorial, 
for this is long enough to induce a presumption that there w^as originally 
some agreement between the parties ; and he said that twenty years is 
sufficient to give a man a title in ejectment, on which he may recover the 
house itself ; and he saw no reason why it should not be sufficient to en- 
title him to any easement belonging to the house. So in an action on the 
case for stopping up ancient lights, the defendant attempted to show 
that' the lights did not exist more than sixty years, Wilmot, C. J., said, 
that if a man has been in possession of a house with lights, belonging 
to it for fifty or sixty years, no man can stop up those lights; possession 
for s uch a length of time amounts to a grant of the liberty of making 

4 But see Lund v. New Bedford, 121 Mass. 2S6 (1876) ; Cross v. Lewis, 2 
B. & C. 686 (1824); Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635 (1892), 
where the user commenced less than the prescriptive period before the ser- 
vient land v.-as leased. See, also, Reimer v. Stuber, 20 Pa. 458, 59 Am. Dee. 
744 (1853), where the user took place while the servient land was in the pos- 
session of tenants from year to year. 

A. owns lands in the possession of B. under a lease of 99 years. What 
would be the effect, as against B., of an adverse user for the prescriptive 
period? See Bright v. Walker, 1 Cr., M. & R. 211 (1834); Wheaton v. Maple 
& Co., [1893] 3 Ch. 48; Kilgour v. Gaddes, [1904] 1 K. B. 457; Wallace v. 
Fletcher, 30 N. H. 453 (1855), supra, p. 94. 



112 



ORIGINAL TITLES 



(Part 1 



them ; it is evidence of an agreement to make them. If I am in posses- 
sion of an estate for so long a period as sixty years, I cannot be dis- 
turbed even by a writ of right, the highest writ in the law. If_mX-E^ 
se^Qn_of the house cannot be distu_rbed,_sha]l I be disturbed in my 
fights? It would be'absurSr * * * DougarvTWilson, Sittings C. 
^Brr?in. 9 Geo. iir/ 



3/ 



7- 




WEBB V. BIRD. 
(Exchequer Chamber, 1863. 13 C. B. [N. S.] 841.) 

This was a writ of error upon a case stated by an arbitrator for the 
opinion of the Court of Common Pleas, upon the argument of, which 
that Court held that the owner of a wind mill cannot c laim,_ ^ther by 
presjmption^^r^by^resumptjpn of arrant arising from twenty years' 
acquiescence, to be entided to the free and uninterrupted pas sage of 
the cur i:£nis.pf win d and air t o his mill ; and that such a claim is not 
within the 2d section of the 2~^3 W. IV, c. '71, whic h is confined to 
rights of way or other__easements to be exercised upon or over the 
surface of the adjoining land. 

WiGHTMAN, J., now delivered the judgment of the Court: 
We took time for the consideration of this case on account of its 
novel cha racter. It appears by the finding of the arbitrator to whom 
the case was referred by order of Nisi Prius, that the plaintiff was the 
owner and occupier of a windmill built in 1829; that, from the time 
of its being built, down to 1860, the occupier had enjoyed as of right 
and without^interruption the use and benefit of a free current of air 
from the west for the working of the mill ; that, in the last-mentioned 
year, 1860, the defendants erected a school-ho use wit hin twenty-five 
yards of the mill, and therejjy obstructed the current of air which 
would have^come to it from~tTie~west, wherel)y lli'e workmg^Ttlie mill 
was hindered, and the mill became injured and deteriorated in value. 
Two cases were cited and mainly relied on for the plaintiff, — one in 
the 2 Rolle's Abridgment, p. 704, and the other in 16 Viner's Abridg- 
ment, tit. Nuisance (G), pi. 19 ; but both are shortly stated, and amount 
to little more than dicta ; and it does not appear that they are anywhere 
else reported, or in what manner or the terms in which such a right 
was claimed, whether by prescription or otherwise. There is a third 
case, called Trahern's Case, Godbolt 233, which was the case of a nui- 
sance caused by building a house so near as to hinder the working of 
the plaintiff's mill; and the judgment of the Court appears in the first 
instance to have been like that of the case in Rolle's Abridgment, that 

5 "There were two nisi prius decisions at an earlier day (Lewis v. Price, 
in 1761, and Dongal v. Wilson, in 1763); but the doctrine [that of acquisition 
of easement of light and air by user for a definite period of time] was not 
sanctioned in Westminster Ilnll until 17S6, when the case of Darwin v. 
JDpton was decided by the K. B. 2 Saund. 175. note (2). This was clearly a 
"Hepiarture from the old law.'TTurv v. Pope. Cro. Eliz. 118 (1587)." Brouson, 
J., in Parker v. Foote, 19 Wend. (N. Y.) 309, 318 (1838). 



Ch.2) 



PEESCEIPTION 



113 



SO much of the house should be thrown down as hindered the working 
of the mill. But, the plaintiff contending that the whole house should 
be thrown down, the case was adjourned, and no ultimate decision ap- 
pears to have been given. These are all the authorities which we have 
been able to find upon the subject. 

We agree with the opinion of the Court of Common Pleas, that the 
right to the passage of air is not a right to an ease ment within the 
meaning of the 2 & 3 W. IV, c. 71, §Z '" 

The mill was built in 1829, and so the claim cannot be by prescrip- 
tion. 

The distinction between easements, properly so called, and the right 
to light and air, has been pointed out by Littledale, J., in Moore v. 
Rawson, 3 B. & C. 332, 340 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. 
L. R. vol. 16). 

It remains, therefore, to be considered, whether, independently of 
the statute, the right claimed may be supported upon the presumption 
of a grant arising from the uninterrupted enjoyment as of right for* a 
certain term of years. We think, in accordance with the judgment of 
the Court of Common Pleas, and the judgment of the House of Lords 
in Chasemore v. Richards, 7 House of Lords Cases, 349, that the pre- 
sumption of a grant from long-continued enjoyment only arises where 
the person against whom the right is claimed might have interrupted 
or prevented the exercise of the subject of the supposed grant. As was 
observed by Lord Wensleydale, it was going very far to say that a man 
must go to the expense of putting up a screen to window-lights, to pre- 
vent a right being gained by twenty years' enjoyment. But, in that 
case, the right claimed, which was the percolating of water under- 
ground, went far beyond the case of a window. In the present case, 
it would be practically so difficult, even if not absolutely impossible, to 
interfere with or prevent the exercise of the right claimed, subject, as 
it must be, to so much variation and uncertainty, as pointed out in the 
judgment below, that we think it clear that no presumption of a grant, 
or easement in the nature of a grant, can be raised from the non-inter- 
ruption of the exercise of what is called a right by the person against 
whom it is claimed, as a non-interruption by one who might prevent 
or interrupt it. 

We are therefore of opinion that the judgment of the Court below 
should be affirmed. 

Bi^ACKBURN, J.. I perfectly concur in the judgment, but wish, for 
myself, to guard against its being supposed that anything in the judg- 
ment affects the common-law right that may be acquired to the access 
of light and air through a window, or to the right to support by an 
ancient building from those adjacent. I agree with my Brother Willes, 
in the Court below, that the case of the right to light, before the statute, 
stood on a peculiar gi-ound. 

Judgment affirmed. " ' 

Aig.Pbop. — 8 - >- 




114 OBIGINAL TITLES (Part 1 

_„v\/L|firi'"'^ STURGES v. BRIDGMAN. 

(Court of Appeal in Chancery, 1879. 11 Ch. Div. 852.) 

The plaintiff in this case was a physician. In the year 1865 hej)ur- 
chas ed the lease o f a hous e in Wimpole Street, London, which he oc- 
cupied as his professional residence. 

Wimpole S.tjeetjuns north and. souths and is crossed at right angles 
by Wigmore Street. The plaintiff's house was on the west side of 
Wimpole Street, and was second house from the north side of Wig- 
more Street. Behind the house was a garden, and in 1873 the plaintiff 
greeted a consujtingjrqom at the end of the garden. 

The defendant was a c onfectioner in large business m Wigmore 
Street. His house was on the north side of Wigmore Street and his 
kitchen was at the back of his house, and stood on ground which was 
formerly a garden and_abutted on tlie portion of the plaintijflTs garden 
on which he built the consulting-room. So that there was nothing 
between the plaintift''s consulting-room and tlie defendant's kitchen 
but the party wall, The defendant had in his kitchen twp_ large. marble 
mortars set in brick-work built up to and against the party-wall which 
separated his kitchen from the plaintiff's consulting-room, and worked 
by two large wooden pestles held in an upright position by horizontal 
bearers fixed into the party-wall. These mortars were used for break- 
ing up and pounding loaf-sugar and other hard substances, and for 
pounding meat. 

The plaint iff ^eged that when the defendant's pestles and mortars 
were being used, the ^ise and vibration thereby caused were very 
great, and were heard and felt in the plaintiff's consulting-room, and 
such noise and vibration seriously annoyed and disturbed the plaintiff 
and materially interfered with him in the practice of his pn)fession. 
In particular the plaintiff stated that the noise prevented him from ex- 
amining his patients by auscultation for diseases of the chest. He also 
found it impossible to engage with effect in any occupation which re- 
quired thought and attention. 

The use of the pestles and mortars varied with the pressure of the 
defendant's business, but they were generally used between the hours 
10 A.' M. and 1 P. M. 

The glaintiff made several complaints of the annoyance, and ulti- 
mately brought this action, in which he claimed an injunction to re- 
strain the defendant from using the pestles and mortars in such man- 
ner as to cause him annoyance. 

The defendant stated in his defence that he and his father had used 
one of the pestles and mortars in the same place and to the same ex- 
tent as now for more than sixty years, and that he had used the second 
pestle and mortar in tlie same place and to the same extent as now for 
more than twenty-six years. He alleged that if the plaintiff had built 



Ch. 2) PRESCRIPTION 115 

his consulting-room with a separate wall, and not against the wall of 
the defendant's kitchen, he would not have experienced any noise or 
vibration ; and he denied that the plaintiff suffered any serious annoy- 
ance, and pleaded a prescriptive right to use the pestl.es and mortars 
under the 2 & 3 Will. IV, c. 71. 

Issue was joined, and both parties went into evidence. The result 
of the evidence was that the existence of the nuisance was, in the opin- 
ion of the court, sufficiently proved ; and it also appeared that no ma- 
terial inconvenience had been felt by the plaintilf until he built his con- 
sulting-room. 

1879, July 1. Thesiger, L. J., delivered the judgment of the court 
(James, Baggallay, and Thesiger, L. J J.) as follows: 

The defendant in this case is the occupier, for the purpose of his 
business as a confectioner, of a house in Wigmore Street. In the rear 
of the house is a kitchen, and in that kitchen there are now, and have 
been for over twenty years, two large mortars in which the meat and 
other materials of the confectionery are pounded. The plaintiff, who 
is a physician, is the occupier of a house in Wimpole Street, which 
until recently had a garden at the rear, the wall of which garden was a 
party-wall between the plaintiff's and the defendant's premises, and 
formed the back wall of the defendant's kitchen. The plaintiff has, 
however, recently built upon the site of the garden a consulting-room, 
one of the side walls of which is the wall just described. It has been 
proved that in the case of the mortars, before and at the time of ac- 
tion brought, a noise was caused which seriously inconvenienced the 
plaintiff in the use of his consulting-room, and which, unless the de- 
fendant had acquired a right to impose the inconvenience, would con- 
stitute an actionable nuisance. The defendant contends that he had 
acquired the right, either at common law or under the Prescription Act,, 
by unmterrupte^ user for more than twenty years. 

In deciding this question one more fact is necessary to be stated. 
Prior to the erection of the consulting-room no material annoyance or 
inconvenience was caused to the plaintiff or to any previous occupier 
of the plaintiff's house by what the defendant did. It is true that the 
defendant in the 7th paragraph of his affidavit speaks of an invalid 
lady who occupied the house upon one occasion, about thirty years be- 
fore, requesting him if possible to discontinue the use of the mortars 
before eight o'clock in the morning; and it is true also that there is 
some evidence of the garden wall having been subjected to vibration, 
but this vibration, even if it existed at all, was so slight, and the com- 
plaint, if it could be called a complaint, of the invalid lady, and can be 
looked upon as evidence, was of so trifling a character that, upon the 
maxim de minimis non curat lex, we arrive at the conclusion that the 
defendant's acts would not have given rise to any proceedings either 
at law or in equity. Here then arises the objection to the acquisition 
by the defendant of any easement. That which was done by him was 



116 ORIGINAL TITLES (Part 1 

in its nature such that it could not be physically interrupted ; it could 
.- not at the same time be put a stop to by action. Can userwhich is nei- 

^ ther preventable nor actionable found an easement? We think not. 

The question, so far as regards this particular easement clainiedTls 
the same question whether tlie defendant endeavors to assert his right 
by common law or under the Prescription Act. That Act fixes periods 
for the acquisition of easements, but, except in regard to the particu- 
lar easement of light, or in regard to certain matters which are im- 
material to the present inquiry, it does not alter the character of ease- 
ments, or of the user or enjoyment by which they are acquired. This 
being so, the law governing the acquisition of easements by user stands 
thus : Consent or acquiescence of the owners of the servient tenement 

^ lies at the root of prescription, and of the fiction of a lest grant, and 

Tience the acts or user, which go to the proof, of either the one or the 
other, must be, in tlT,e language of the civil law, nee vi nee clam nee 
precario; for a man cannot, as a general rule, be said to consent to or 
acquiesce in the acquisition by his neighbor of an easement through an 
enjoyment of which he has no knowledge, actual or constructive, or 
which he contests and endeavors to interrupt, or which he temporarily 
licenses. It is a mere extension of the same notion, or rather it is a 
principle into which by strict analysis it may be resolved, to hold, that 
an enjoyment which a man cannot prevent raises no presumption of, 

y- consent or acquiescence. Upon this principle it was decided in Webb 

V. Bird, 13 C. B. (N. S.) S41, tliat currents of air blowing from a par- 
""ticular quarter of the compass, and in Chasemore v. Richards, 7 H. 
L. C. 349, that subterranean water percolating through the strata in no 
known channels, could not be acquired as an easement by user; and 
in Angus v. Dalton, 4 Q. B. D. 162, a case of lateral support of build- 
ings by adjacent soil, which came on appeal to this court, the principle 
was in no way impugned, although it was held by the majority of the 
court not to be applicable so as to prevent the acquisition of that par- 
ticular easement.*^ It is a principle which must be equally appropriate 
to the case of affirmative as of negative easements ; in other words, it 
is equally unreasonable to imply your consent to your neighbor enjoy- 
ing something which passes from your tenement to his, as to his sub- 
jecting your tenement to something which comes from his, when in 
both cases you have no power of prevention. 

&Lit_the_^ffirmative easernent differs, from jthe negative__easement in 
this, that the latter can under no circumstances be interrupted except 
by acts done, upon the servient tenement ; but the former, constituting, 
as it does, a direct interference with the enjoyment by -the servient 
owner of his tenement, may be the subject of legal proceedings as 
well as of physical interruption. To put concrete cases, the passage of 
lightand air to your neighbor's windows may be physically interrupt- 

6 See the same case in the House of Lords. 6 App. Cas. 740 (1S81). 



Ch. 2) PEESCRIPTION 117 

ed by you, but gives you no legal grounds of complaint against him. 
The pas sage of water from his land on to yours may be physically in- 
terruptedj.or may be treated as a trespass and made tlie ground of ac- 
tion for damages, or for an injunction, or both. J^oise is similar to 
currents o± air and the flow of subterranean and uncertain streams m 
its practical incapability of physical interruption, but it differs from 
them in its capability of grounding an action. Webb v. Bird and 
Chasemore v. Richards are not, therefore, direct autliorities governing 
the present case. They are, however, illustrations of the principle 
which ought to govern it ; fo r until the noise , to take this case, became 
an_actionaj3le_iiuisaJ!cej_which it did not at any time before the consult- 
ing-room, was built, the basis of the presumption of the consent^ viz., the 
power of prevention ph ysically or_. by action, was never pres- 

A' * * * J^^.^6t^ 

HUBBARD V. TOWN. 
(Supreme Court of Vermont, 1860. 33 Vt. 295.) 

PiERPOiNT, J.^ This action is brought to recover the damage claim- 
ed to have been su stained bv the plaintiff in consequence of the defen d- 
ant's obstructing his light s. 

It appears from the case that the building which has been owned 
and occupied by the plaintiff and his tenants for more than twenty- 
five years prior to the acts complained of, stands upon the line between 
his premises and the premises of the defendant, and that the defendant 
has owned and occupied his premises during the aforesaid period; 
that the windows in the plaintiff's building opened out toward the 
premises of the defendant, admitting light from that direction, and that 
they have so remained without obstruction, and without question on 
the part of the defendant for the period o jLtwentyj^fiye years_or more; , 
that in 1859 the defenda nt e_reci£d-a.-b.uilding^ on his„owrL premises 
immediately adjoining that of the plaintiff, so as to excludethe^light 
from t wo of the plaintiff's windows. 

The^nl)r question involved in this case is, wheth er the plainti ff by 
such long~aiid umnterrupjted use of his windows, and tlie light passing 
through them, has^thereb}' acquired the right so to continue his win- 
dows and thus to have the light pass through them, so that any act of 
the defendant which shall materially obstruct such light, will make him 
a wrong doer, and liable for any damage to the defendant that may 
ensue therefrom. 

The rulg. seems now, to be well settled in England, that such long 
nd uninterrupted use of light, gives the right to con tin ue' its use, and oj^^^ 



1 The balance of the opinion is omitted. 

8 The statement of facts is omitted. The case sufficiently appears from 
the opinion. 



118 ORIGINAL TITLES (Part 1 

to insist upon its remaining" unobstructed by the adjoining proprietor 
for all time. The courts place this upon the same grounds as rights 
"of way, and other rights acquired in and over tlie premises of another 
by long and undisturbed use ; presuming from the long exercise of the 
privilege by tlie one and an acquiescence tlierein by the other, tliat the 
right had its origin in a grant. 
^" ^hile the general doctrine has been universally adopted in this 
country, its application to cases of this kind has not been generally 
recognized, and in many of the States has been expressly denied. 
'^""Our statute of limitations cannot be brought in aid of the plaintiff's 
tlaim. The statute in terms only deprives the aggrieved party of the 
right of action after the limited period from the time the cause of ac- 
tion accrues, and although our courts have held that the exercise of the 
right by one party, and an acquiescence therein by the other, for such 
period, vests in the party so exercising it an absolute right, still in de- 
termining the question whether such right has in fact become an ab- 
solute one, the time that the one has so exercised it, is to be computed 
from the period when a cause of action therefor first accrued to the 
other, which he has omitted to enforce ; so that no right can be lost or 
acquired by virtue of the statute, where there has been no act done by 
the one, for which the law gives a remedy by action to the other ; and 
it is conceded in this case that the defendant had no right of action 
against the plaintiff for any act of his, in erecting his building and 
opening and continuing his windows, on the side adjoining to, and 
overlooking the defendant's premises. 

This reason would seem to apply with equal force, against the plain-: 
tiff's right to recover on the ground that a grant will be presumed f romi 
lapse of time to sustain his claim. •---- 

The principle upon which a grant is presumed is that in no other 
way can the acts of tlie parties be rationally accounted for. Such pre- 
sumption is required to account for the exercise of the right by the 
oi^e, and the acquiescence therein by the other, for so long a period. 

The right must be exercised adversely or under a claim of a right so 
to exercise it, by the one, and it must be acquiesced in by the other. 

This of itself presupposes that the exercise of the right by the one,_ 
without a grant, is a violation of some right of the other ; otherwise it 
could not be adverse, within the meaning of the rule; neither could the 
other acquiesce, for that presupposes a legal right to object and re- 
sist. 

If then there is no violation of the rights of another, no presujnptiqn, 
of a grant by sucE other arises; there is no occasion for it. There is 
no right exercised or claimed by the one, that belongs to the other, or 
which he could grant, if he should attempt it. 

How then can this doctrine of presumption apply to a case like the 
present? The erection of the building by the plaintiff on the line be- 
tween him and the defendant was no violation of any right of the de- 



Ch. 2) PEESCJBIPTION 119 

fendant; he could not complain of, or prevent it, and his assent or 
dissent could in no manner atfect the transaction. The legal right to 
do the act was perfect in the plaintiff. His right to erect his building 
on the division line is not controverted, the wisdom of the act is more, 
questionable. He might haVe made his walls solid, thus entirely ex- 
cluding the light from that direction; he chose to leave apertures 
therein : thereby allowing the light to remain unaffected to that ex- 
tent; but how can it be said that by excluding the greater part, he 
acquires any better right to the remainder, than he would have had to 
the whole, if he had not excluded any ? He has not done any act which 
has had any effect to control or influence the light, except to exclude 
it. He did not^draw or cause the light to pass in upon his pr_enn_ses in, 
any other than its natural manner ; it remained upon and over the de- 
fendant's premises as it had always been. As there was no interfer- 
ence with the rights of the defendant, it is difficult to see upon what 
the presumption of a grant can be based. Lapse of tim e and the pre- 
sumption^ arising therefrom are resorted to, only to justify in one, that 
which would otherwise be a usurpation of the rights of another. 

If a man can acquire, by use, a right to an uninterrupted enjoyment 
of light under circumstances like the present, why not acquire a right 
to_A_lilie .enjoyment of the prospect from the same windows, or to a 
free access of the air to the outside of his building to prevent decay, 
and many other rights of a similar and no more ethereal character? 
The result of which would be, if allowed, an utter destruction of the 
value of the adjoining land for building purposes. 

Windows are often of more importance for the prospect they afford, 
than for the light they admit. The light may be obtained from other 
directions, the prospect cannot, A pleasant prospect from the windows 
of a dwelling, always contributes more or less to the enjoyment of the 
occupants, and often enters largely into its pecuniary estimate. But to 
admit that a mere enjoyment of such prospect for fifteen years, gives 
him the right to insist that it shall remain uninterrupted for all future 
time, would be to recognize a principle at variance with well establish- 
ed rules, and one that could not be tolerated in this country. 

No such righ t can be acquired by use for the same reason that its 
exercise by one is no infringement of the rights of another, for which jd^ 

the law gives an action. Le Blanc, J., in Chandler v. Thompson, 3 
Camp. 82, says, that although an action for opening a window to dis- 
turb the plaintiff's privacy, was to be read of in the books, he had 
never known such an action to be maintained, and that he had heard 
it laid down by Eyre, Ch. J., that such an action did not he. 

We think the English courts, in applying the doctrine of the pre- 
sumption of grants from long use and acquiescence to this class of 
cases, clearly departed from the ancient common law rule as laid down 
in Berry v. Pope, Cro. Eliz. 118, and the error as it seems to us, con- 
sists in placing cases Hke the present upon the same footing and mak- 



120 OEIGINAL TITLES (Part 1 

ing them subject to the same rules that govern another class of cases, 
to which they really have no analogy. In ^ewis v. Price, Wilmot, J^, j^j 
said "that when a house had been built forty years and has had lights 
at the end of it, if the owner of the adjoining ground builds against 
them so as to obstruct them, an action lies ; and this is founded on the 
same reason as where they have been immemorial, for this is long 
enough to induce a presumption that tliere was originally some agree- 
ment between the parties, and that twenty years was sufficient to give 
a man a title in ejectment on which he may recover tlie house itself, 
and he saw no reason why it should not be sufficient to entitle him to an 
easement belonging to the house." 

As we have already seen, no presumption of an agreement arises, 
as none was necessary to justify tlie act. The man who occupies his 
own house for twenty years has no better title to it at the end of that 
time, than he had in the outset. Does he acquire any greater right to 
the light by the occupation than to the house? Clearly not; h aving 
usurpednprighthe can acquire none by lapse of time.. The error in 
the reasoning is, in saying that because the man who takes possession 
of his neighbor's house and holds it adversely for twenty years (his 
neighbor acquiescing therein,) acquires a title to it, therefore the man 
who opens windows in his own house that in no way interferes with 
the rights of his neighbor, and of which such neighbor has no legal 
right to complain, and keeps them open for twenty years, thereby ac- 
quires a right to insist tliat no act shall be done by his neighbor on his 
own land, that in any respect interferes with, or obstructs the light to 
those windows. In the one case there is an infringement of the rights 
of another for which the law gives a remedy by action; in the other 
there is not. This constitutes a radical dilterence between the two 
caseSj and that too in respect to the very point upon which the whole 
doctrine of presumption in cases like those under consideration de- 
pends. 

It might be urged with much force that a man who conveys a house 
with the privileges, etc., would not have a right to make an erection on 
his own land adjoining, that would shut out the light from the Vv^ndows 
in the house so conveyed, and it may be said that he who has occupied 
another's house for such length of time and under such circumstances 
that a grant will be presumed, stands upon the same footing as an ordi- 
nary grantee. However that may be, this case involves no such ques- 
tion. In those cases the question turns upon the fact that the title to 
the premises was derived by deed actual or presumed, from the party 
who seeks to deprive his grantee of the enjoyment of the right he has 
conveyed. The right does not depend upon the lapse of time, but is as 
perfect in the grantee the moment the deed is executed as it can ever 
iie^i Here the title to the premises of the plaintifl: was never in the de- 

^fendant, but has been in the plaintiff through the whole period. 

\ This question was fully considered in New York in tlie case of 



Ch. 2) PBESCRIPTION 121 

Parker v. Foote, 19 Wend. (N. Y.) 309, Bronson, J., says : "Upon what 
principle courts in England iiave applied the same rule of presumption, 
to two classes of cases so essentially different in character, i have been 
unable to discover. If one commit a daily trespass on tlie land of 
another under a claim of right to pass over, or feed his cattle upon it, 
or divert the water from his mill, or throw it back upon his land or 
machinery, in tliese and the like cases , lon^ continued ac quiescence 
affords strong presumption of right. T ~But in the case of lights there is 
no adverse user, nor indeed any use whatever of another's property, 
and no foundation" is laid for indulging any presumption against tlie 
rightful owner." And again he says : "T here is no principle I think, 
upon wdiich the modern English doctrine of ancient lights can be sup- 
ported ." 

The same doctrine was held in Pierce v. Fernald, 26 Me. 436, 46 
Am. Dec. 573, and in Napier v. Bui winkle, 5 Rich. (S. C.) 312, in both 
of which cases the subject was fully discussed. 

We see no reasons growing out of the nature or necessities of this 
class of cases, that require us to extend the doctrine of the presump- 
tion of grants to them, but on the other hand, the establishment of a 
rule that would require a man to erect a building or wall, that he did 
not need, on his own premises, for the sole purpose of excluding the 
light from his neighbor's windows, would lead to continual strife and 
bitterness of feeling between neighbors, and result in great mischief. 

The judgment of tlie county court is affirmed." 



^^MPAVEY V. VANCE. ^ 



(Supreme Court of Ohio, 1897. 56 Ohio St 162, 46 N. B. 898.) 

Error to Circuit Court, Highland County. ^ . 

Suit was brought by D. J. Vance and others to enjo in the def endant. 
A. E. Pavey, from closing up a cert ain wa^iise d by the plaint iffs over 
his land, which they claimed as appendant to their land. The defends 
ant denied the right. The case was appealed to the circuit court, where 
at the trial on the issues, the, court, at the request of the defendant, made 
a finding of the facts and its conclusions of law separately. The 
finding of facts is as follows : 

"That the pjaintiffs are the owners in fe e sim ple of the lands de- 
scribed as theirs in the petition, and that the defendant is the owner 
of the lands set out in the petition as his ; that the plaintiffs acquired 

9 As to the somewhat analogous situation where the easement of lateral 
support is claimed by prescription, see Richart v. Scott, 7 Watts (Pa.) 460, 32 
Am. Dec. 779 (1838); Mitchell v. Rome, 49 Ga. 19, 15 Am. Rep. 669 (1873); 
Tunstall v. Christian, SO Va. 1, 56 Am. Rep. 581 (1SS5) ; Sullivan v. Zeiner, 
^^ ^^'^■I'.^^ ^^ ^^^- 2^^' -^ ^'' ^- ^- "^30 (1S93) ; Angxis v. Dalton, 8 Q. B D 
85 (ISTTT^Q. B. D. 1G2 (1878), 6 App. Cas. 740 (1881); Solomon v. Vintners' 
Co., 4 H. & N. 585 (1859). 



122 ORIGINAL TITLES (Part 1 

the legal title from D. J. Vance; that D. J. Vance had occupied the 
lands from A. D. 1857; that the defendant acquired the title to his 
lands from Penelope Evans, who acquired it from Benjamin Barrere, 
now deceased; that defendant had notice after he contracted to buy 
said premises, and before his acceptance of the conveyance to him from 
^vans, that D. J. Vance claimed the right of way contended for by 
the plaintiffs in this suit; that, for^mqrethan twenty-one years prior 
to the acquiring of title by defendant of the lands from Penelo pe Ev- 
ans, D. J. Vance and his family, in going to and from his farrn and. 
dwelling to the turnpike^jeading from Hillsboro to New Market, and_ 
others going to and from said pike to Vance's, had passed over the, 
lands of defendant, using a way or road through defendant's farm 
as a foot way, wagon way, carriage way, and for hauling produce to 
and from said Vance's farm, and horseback way, without let or hin- 
drance or obstruction from Benjamin Barrere in his lifetime, or Pen- 
elope Evans, or their tenants ; that said road was used by said Bar- 
rere and his successors in ownership, during all of said period of time, 
as a farm road through his farm from the pike to the dwelling house 
on the D. J. Vance farm, and to the back part of the farm to the 
farm line of said Vance, said entire farm being inclosed during all 
of said period of time, being inclosed by fences and gates; that the 
Vances, and also the owners and occupants of defendant's lands, used 
said way whenever they saw fit, and was also used as one of the 
means of approach (but not the only road) to the Vance farm and 
house, and for departure therefrom, to and from the said turnpike, 
and was so used by said Vances and those going to and from the 
Vance place, without asking leave of the occupants of defendant's 
farm and without objection, 

"The said roadway is described as follows : Beginning in the line of 
the land of defendant and land of Jesse and Elizabeth McConnaughey 
(formerly owned by Benj. Barrere); running thence a northwesterly 
course over the lands of said defendant, Pavey, and, crossing a branch 
of Rocky Fork creek, passes by the dwelling house on the lands of said 
Pavey, and continued a northwesterly course to the said Ripley turn- 
pike, at a point about twenty-seven rods southwest of the schoolhouse 
on said turnpike known as the 'Kansas Schoolhouse,' there being 
three gates on said roadway, viz. one gate at the pike, one at the 
Pavey dwelling house, and one at the line between the lands of the 
defendant and said Jesse and Elizabeth E. McConnaughey, and the 
length of said right of way from where it enters that land of said 
Pavey to its termination at said turnpike being about 116 rods. fThe 
court further finds that the defendant, A. E. Pavey, obstructed* said 
roadway in the spring of A. D. 1893, prior to the bringing of this suit, 
by erecting a fence across the same, and ever since preventing the 
Vajices' passing over the same, in vehicles and on horseback." 

^he court found as a matter of law from these facts that the plain- 
tiffs were the owners of a right^ of way by prescription over the lands 



Ch. 2) PRESCRIPTION 123 

of the defendant, and rendered judgment for the relief prayed for, 
enjoined the defendant from obstructing the way, other than by the 
use of gates as before maintained, and ordered the removal of the ob- 
structions. The defendant excepted to the court's conclusions of 
law and judgment on the facts, and prosecutes error here for a re- 
versal of the judgment, on the ground that it is not supported by the 
^facts. 

MiNSHALL, J. (after stating the facts). The plaintiff in error claims 
that the court erred in its judgment because it does not appear from 
its finding that the way was used for the requisite period adversely 
to the defendant and his predecessors in title, and under a clajm of. 
right, nor is it found that it was not permissive. The court found; 
that, for more than 21 years prior to the time the defendant ac- 
quired his title to the land, D. J. Vance, the predecessor in title of the 
plaintiffs, and his family, "in going to and from his farm and dwelling 
to the turnpike, and others going to and from said pike to Vance's, ' 
have passed over the lands of defendant, using a way or road through 
defendant's farm as a foot way, wagon way, carriage way, horseback 
way, and for hauling produce to and from said Vance's farm, without 
let or hindrance or obstruction" from the defendant's predecessors 
in title. 

The plaintiffs' claim is based on a title by prescription to the road- 
way on the facts found. ^Easements of all kinds are said to lie in 
^rarTt7~c[nd^'"Tiot in livery ; " for the reason that, according to feudal 
ideas, they could not be created by livery, as livery would destroy the 
seisin of the owner of the land subject to the easement. But as a 
right to that which an individual has long used and enjoyed as his own 
without disturbance has ever been agreeable to a sense of natural 
justice, the courts of England at an early day adopted the fiction of a 
lost jeed in support of easements that had been enjoyed by the owner 
^f the dominant estate and those under whom he claimed for a period 
beyond the memory .Qi,jnani__Thiswa.s_first^fi2ced at a time beyond 
the reign of Richard I. But, by reason of the remoteness of the period, 
the proof became more and more difficult, if not impossible ; and 
finally the courts adopted a shorter period of 20 years, in analogy ,to 
the limitation in possessory actions. Still in this state of the law, 
as the title rested upon the presumption of a lost deed, the courts held 
that it might be rebutted, so that long possession still continued subject 
to this contingency, and might be overthrown by a showing that it com- 
menced and continued without deed. 

This, however, is no longer the general doctrine. Washb. Easem. 
(4th Ed.) 130-135; Railroad Co. v. McFarlan, 43 N. J. Law,_605 ; 
Tracy v. Atherton, 36 Vt. 503. I Where an easement, as a way, is nowl 
shown to have been used by an owner of land over the land of an- 
other for the requisite period, without interruption with all the inci- 
dents of ownership, the fact of such use is accepted as conclusive 
prool of the right. The extent of the right is determined by the nature 



124 ORIGINAL TITLE3 (Part 1 



^ 



and extent of the use. It is said : "Every species of prescription by 
Iwhich property is acquired or lost is founded on the presumption 
that he who has had a quiet and uninterrupted possession of anything; 

or a long period of years is supposed to have a just right thereto, 
ithout which he could not have been suffered to continue so long- in 

he enjoyment of it." Brown, Inst. 418. 

This is the principle of the civil law from wh ich title by pr escrip tion 
is derived. It mUst not be confounded with usucaption, which simply, 
by the lapse of a short time, cured defects in titles otherwise good. 
Prescription WAS_ not regarded as a, source of title, buj as a rneans^ 
of defense against the assertion of an originally superior title^ — one 
that would have prevailed but for the consideration given to long- 
time possession. It would seem that this was made available by the 
magistrate so framing the formula as to confine the inquiry of the 
judge to the simple question of long-time possession, and this was done 
by writing the limitation before the intentio. Hence the significance 
of the term "prescription/' which from its etymology means a writ-^ 
jn^before. The prescription was inserted for the very purpose of 
exclii^ng any other inquiry as to the rights of the party claiming 
thereunder than such as arose from long possession of the land in the 
character of owner. Sander, Just. Introd. § 104; Hunter, Roman 
Law, 288; Postes, Gaius, 581. 

But it is not material on which ground we regard that a right to 
an easement by prescription rests, — whether on that of a grant pre- 
sumed from lapse of time, or from the justice and policy of protect- 
ing one who has long used and enjoyed a right in the character oi^ 
owner, — the practical result is the same. ' The party so using and en- 
joying the easement is adjudged as possessing the right in connection 
with his land as an incident thereto. The substance , then, of a title ] 
by prescription, whether it relate to the land or an ease ment in it./ 
is the use and enjoyment of the land, or. the easement, for the requisite! 
period as an owner. No inquiry beyond this is required. The estabj 
lishment of the claim, however, necessarily requires proof Jthat the us4 
was adverse to the real owner, and lincler a claim of right. Withoiii 
such proof one could not be said to possess or use as an owner. Nor 
would the claim be consistent with a case where the possession is 
taken and held under the license or permission of the real owner. ' But\ 
in the case of an easement it is not required that the use should be i 
exclusive of the owner of the servient tenement. The latter may use 
a way in connection with the owner of the dominant tenement, as the , 
two uses are consistent; and the owner of the servient tenement may 
maintain gates thereon where such was his custom during the period 
of prescription. The use made of the way and the mode of its en-j 
joyment during this period determines the extent of the right ac-i 
quired and its limitations. Washb. Easem. 135. These views are'' 
fully sustained by the authorities cited by counsel for the defendanlj 
in error. 



Ch. 2) PEESCRIPTION 125- 

In this case the finding shows that the use made of the way was 
a dverse to t heowner oi the land. It prevented him from cultivat- 
ing it as he might otherwise have done, or from making any use of it 
inconsistent with the right of way as used. It also appears that it 
was under a claim of right, as it was used without "let or hindrance" 
and "without asking leave." | These circumstances are sufficient to 
show that it was under a claim of right. It is not necessary that it 
should have been made to appear that the party using the way verbally 
asserted the right to do so when using it. This may appear from 
conduct as well as words ; using a way without asking leave imports^ ' 
a claim of ri ght tO -do-SQ.. It may be stated as a gener al rule , that ' 
where a person uses a way in the enjoyment of his own land through 
the land of another, without let or hindrance, for the period of 21 
years, in the absence of anything to the contrary, he thereby Acquires 
a right by prescription to continue the use as an incident to his own 
land, and which wil l pa55-by_a conveyance jar-iiescent^ of, it. The fact I 
of the use is open to explanation. It may be shown to have been per- 
missive. But in such case the burden is upon the owner of the land 
to show that the use was a permissive one. Garrett v. Jackson, 20 Pa. 
331 ; O'Daniel v. O'Daniel, 88 Ky. 185, 10 S. W. 638. If the rule were 
otherwise, the burden of proof would be placed on the party holding 
the negative, which is seldom, if ever, done in civil suits ; for it is 
easier to prove an affirmative than a negative. Such evidence may 
have been offered, but the court evidently found, in this regard, 
against the defendant, in finding that it was without "let." 

The evidence is not incorporated in the record, and the finding must 
govern the disposition of tlie case. Judgment affirmed. ^** 

BARBER V. BAILEY. 

(Supreme Court of Vermont, 1912. 86 Vt. 219, 84 Atl. 608, 44 L. R. A. 

[N. S.] 98.) 

Powers, J.^^ The orator owns a piece of land on the northerly side 
of Pine Street, in the village of Newbury, known as the "Spring House 
Pasture." The defendant lives in a house which stands just north of 
this pasture, and has lived there since sometime in 1846. During all 
this time, he, and tlie members of his family, in going to and from 
Pine Street and the postoffice, have t aken a "short cut" through the 
£asture.^ No one has ever objected to this until on December 2, 1908, 
'the orator asked the defendant to take and carry away a certain timber 
which he, the defendant, had used as a bridge over a small brook in 

10 See, also, Fleming v. Howard. jnoCal. 28, 87 Pac. 90S (1906); Mitchell v. 
Bain, 142 Ind. 604, 42 N. E. 2:^0 (l.^^oTT^nittir-Tr Pennington, 122 Ky, 355, 91 
S. W. 730, 8 L. R. A. (N. S.) 149 (1906). 

11 A portion of the opinion is omitted. 



A 



126 ORIGINAL TITLES (Part 1 

the pasture. This the defendant refused to do, and the orator cut 
the timber in two, and the water floated it away. The defendant sued 
the orator to recover damages for the loss of the timber, and with this 
action pending, the orator brought this bill in chancery to enjoin the 
action at law, to restrain the defendant from crossing the pasture, 
and for an accounting. A trial was had before the chancellor, who 
found and filed the facts, and a decree, was tliereupon rendered for 
the orator. From that decree the defendant appeals. The only ques- 
tion litigated below was as to the right of the defendant to cross the 
pasture, a prescriptive right so to do being the defendant's only 
claim. * * * 

This brings us to a consideration of the main question in the case : 
Has the defendant acquired a prescriptive right to cross the orator's 
pasture? The finding is that for upwards of sixty years the defend- 
ant and his family have passed through the pasture to and from Pine 
Street "openly, notoriously and continuously, without interruption." 
_,^The right to an easement in another's land acquired by long use and 
enjoyment is analogous to the right acquired by adverse possession; 
and the rules of law applicable to the two cases are in harmony. 
Mitchell V. Walker, 2 Aikens, 266, 16 Am. Dec. 710; Tracy v. Ather- 
ton, 36 Vt. 503. One of the essentials, to the acquisition of §iich a 
right is that the use shall be adverse, — that is to say, it must be under 
a claim of right on the ^art of the user. Mitchell v. Walker, supra; 
Lathrop v. Levam, 83 Vt. \,1\ Atl.'33i ;' Goodall v. Drew, 85 Vt. 408, 
82 Atl. 680. So the finding before us lacks one of the elements of a 
prescription, for, as we have seen, it does not specify whether the de- 
fendant's use of tlie pasture has been adverse or permissive. Prima 
facie, the orator being the owner of the pasture, the defendant's acts 
were mere trespasses^ The burden of proof was on the defendant to 
establish his prescriptive right, if he had one. Plimpton v. Converse, 
42 Vt. 712. And this was so, though the orator may have alleged 
in liis bill that the defendant had no such riglit. For, though he al- 
leges more, the orator need only prove that the defendant committed 
acts which, in the absence of excuse or justification, amounted to a 
trespass. Bosworth v. Bancroft, 74 Vt. 451, 52 Atl. 1050. Our at- 
tention is called to the statement in the findings to the eflfect that the 
defendant never asserted that he crossed the pasture under a claim 
of right, but this obviously refers to an express assertion, and leaves 
untouched the effect of the defendant's conduct. I It was not necessary 
for the defendant to make an express declaratioir of his claim ; it was 
enough if his use of the way was of such a character as to indicate to 
the owners of the pasture that it was under a claim of right. Wilder 
V. Wheeldon, 56 Vt. 344; Jangraw v. Mee, !':> Vt. 211, 54 Atl. 189, 98 
Am. St. Rep. 816. 

In establishing the adverse character of his use of the way, the de- 
fendant is aided by a presumption, which arises from the fact that the 
ora'tor and the previous owners knew all about his crossing tlie 



Ch. 2) PRESCRIPTION 127 

pasture and made no effort to prevent it. This made it necessary for 
the orator to come forward with evidence that the defendant's acts 
were, in fact, permissive. The rule in such cases was stated by Qiief 
Judge Redfield in Arbuckle v. Ward, 29 Vt. 43, in these words: f'The 
mere use, if so open and notorious as obviously to attract the notice 
of the owner of the soil, or if expressly shown to have come to his 
knowledge, will prima facie establish the right, and it will be in- 
cumbent upon the owner to show in some mode, that it was not used 
under a claim of right to the water, or that he did not so understand 
it, and was not bound to so regard it from the nature and extent of 
the use." The same thing was held in Perrin v. Garfield, 2>7 Vt. 304; 
Dodge V. Stacy, 39 Vt. 558; and in Wilder v. Wheeldon, 56 Vt. 344.. 
But notwithstanding this presumption, the character of the use re- 
mains a question of fact, unless the proof and inferences are all one 
way, Plimpton v. Converse, 42 Vt. 712, and the burden of proof re- 
mains on the defendant. And here the proof and inferences were not 
all one way, for there were facts and circumstances shown from which 
we think it could reasonably be inferred that the defendant's use of 
the pasture was permissive. The character and situation of the land, 
the use made of it by the other neighbors, and other circumstances,) 
indicate, more or less strongly, that t he defen dantl$_use of the_pas- 
ture was ex gratia and not hostile. This being so, there is nothing 
for this Court to do but assume, in aid of the decree, that the court of 
chancery inferred this fact from those found, since without it the de- 
cree could not stand. In re Braley's Estate, 85 Vt. 351, 82 Atl. 5; 
Whitehead v. Whitehead. 84 Vt. 321. 79 Atl. 516; Perkins & Co. v. 
Perley, 82 Vt. 524, 74 Atl. 231; Van Dyke v. Cole, 81 Vt. 379, 70 
Atl. 593, 1103; Davenport v. Crowell, 79 Vt. 419, 65 Atl. 557; Sowles 
V. St. Albans, 71 Vt. 418. 45 Atl. 1050; Russell v. Davis, 69 Vt. 275, 
37 Atl. 746; Perrin v. Garfield, 37 Vt. 304. This is just what the 
Court did in the case last cited, except that it was there necessary in 
support of the judgment to assume that the court below inferred that 
the use was hostile instead of permissive. 

We reahze that it is a serious matter to interfere with privileges en- 
j oyed fo r more than sixty years, but it must not be forgotten that this 
^ourt s its in error only, and must deal with a record according to the 
establislie3_]riiles of law, and without regard to its own notion^ of the 
meri ts^ of the_ controversy^. * * * 

Decree affirme d and cause remanded.^' 

12 See, also, Bradley's Fi.sh Co. v, Dudley. 37 Conn. 130 (1870); Shea v. 
Gavitt. S9 Conn. .^.jO. r>4> Atl. P.CO, L. R. A. lOlfiA, GS9 (11)1.5); Chicago, B. 
& Q. R. Co. V. Ives. 202 111. 00. GO N. E. 940 (lOD.S) ; Bniner (Jranitoid Co. v. 
Glencoe Lime & Cement Co., IGO Mo. App. 2'.).',, I;j2 S. W. GOl (1912): Moll v. 
Hagerbaumer, 97 Neb. S09, 151 N. W. 300 (1915); Id., 98 Neb. 555, 153 N. W. 
560 (1915). 

Land entirely surrounded by other lands of the grantor was conveyed to A., 
who for more than twenty years made open use of a convenient way from 
the highway to his land over the land of the grantor. A. then buys a tract 



128 ORIGINAL TITLES (Part 1 



LECHMAN V. MILLS. 

(Supreme Court of Washington, 1907. 46 Wash. 624, 91 Pac. 11, 13 L. R. A. 
[N. S.] 990, 13 Ann. Cas. 923.) 

HadlEy, C. J. This action was brought to enjoin tlie defendants 
from keeping* and maintaining a canal on and across certain lands 
which the plaintiff claims to own, and also from overflowing with wa- 
ter any portion of said lands by means of said canal together with 
dams or dikes. Following largely the order of statement found in the 
brief of respondents, we believe the following is a fair statement of 
thejacts in the case: In the year 1879 one Briggs was the occupant, 
but not the owner, of the land over which thii" controversy exists, and 
which land the plaintiff now claims to own. At that time it was be- 
lieved the land would be included within the limits of the grant to 
the Northern Pacific Railway Company when those limits should 
be determined by the adoption of the line of definite location of the 
road, such adoption not then having been made. Briggs expected to 
purchase the land from the railroad company as soon as the latter 
acquired the title and was in position to make a sale and conveyance. 
But the land was then a part of the public domain, and Briggs was a 
mere occupant. While such was the situation, Mr. Mills, one of the 
defendants in this action, constructed a water ditch and pond on part 
of said land to serve the purposes of power for the operation of a 
sawmill. The ditch led from the Yakima river down to a depression 
upon the land now claimed by the plaintiff, and by means of dikes 
and dams, together with the natural topography of the ground, the 
water was impounded in a lake or pond, a part of the land so flood- 
ed being a part of the land now claimed by the plaintiff. The lower 
end of the pond was upon land owned by Mills, and the water which 
flowed into the pond was released through an outlet upon the land 
of Mills. Mills also constructed a sawmill, and the water so im- 
pounded developed the power for the operation of the mill. 

Prior to the construction of the ditch, reservoir, and mill, said Mills 

entered intp^an agreement with Briggs, the real nature of which is 

in issue. , 'The plaintiff contends that it was a mere permission or 

revocable license to Mills to construct and maintain the ditch and res- 

i ervoir. The defendants contend, and the trial court found, that it was 

la verbal grant from Briggs to Mills of the right to construct and 

\maintain said works upon the land. It is not disputed that Briggs at 

|that time, and as a part of the agreement, undertook and promised 

to execute a deed as soon as he should obtain title from the railroad 

of land over which he may reach another highway. Does he still have a 
right to use the first way? Suppose that for more than twenty years after 
. his purchase of the second tract he continued to use the old way as before. 
Is the situation any different? See Ann Arbor Fruit & Vinegar Co. v. Ann 
Arbor R. Co., 136 Mich. 599, 99 N. W. 869, 66 L. R. A. 431 (1904). 



Ch. 2) PRESCRIPTION 129 

company. But the plaintiff claims that Briggs, in making the agree- 
ment, did not intend to give a deed without first being paid a fur- 
ther consideration in money, no amount being stated but the amount 
to be subsequently fixed by further agreement. The defendants con- 
tend that this verbal agreement contemplated, so far as a verbal agree- 
ment could, an absolute and perpetual grant. Mills has continued to 
operate his sawmill by means of the water so stored from the time of 
said construction up to the present time. In 1882 he granted to Hutch- 
inson and Dreisner a one-half interest in the said power for the pur- 
pose of operating a flour mill, which was then by them erected. The 
said flour mill, together with the said conveyed interest in the water 
power, has by mesne conveyances passed to the defendants Kendall 
and Mack. The Northern Pacific Railway Company deeded the land 
to Briggs in J88?7 and he continued to own and occupy all of the 
land except tTiat occupied by the canal and reservoir, until October, 
1898. During all of said time the defendants and their predecessors 
in interest continued to maintain the canal and reser\oir, and to im- 
pound the water therein, and to utilize the power for the operation of 
said mill plants. In October, 1898, Briggs executed to the Sullivan 
Savings Institution an instrument in the form of a deed purportmg 
to convey to said grantee the title to said land. The plaintiff derives 
his. title through said Sullivan Savings Institutjon. This action was 
brought In January, 1906, to enjoin the defendants7as aforesaid, from 
further maintaining the ditch and reservoir. The cause was tried 
before the court without a jury, and judgment was rendered for the 
defendants, to the effect that they have a perpetual easement against 
the plaintiff and all persons claiming or to claim through or under 
h im? The pl ainirflThas appealed. ^ 

^Tinding Na 2, as entered by the court, is as follows: "That just 
prior to the construction of said works the said defendant Mills en- 
tered into an agreement with one Wilkin Briggs, who was then the 
occupant of the land hereinabove described which land is claimed 
by the plaintiff, wherein and whereby the said Mills undertook and 
agreed to construct said canal, dams, reservoir and sawmill, and the 
said Wilkin Briggs, in consideration of said undertaking and agree- 
ment of said J. L. Mills, gave and granted to said J. L. Mills verbally 
a perpetual right of way over and upon said land for said canal, 
ditch and reservoir, together with the right to construct and forever 
maintain said canal, ditch, reservoir and dams upon said land and to 
convey said water through said ditch or canal into said reservoir and 
to impound said water in said reservoir and overflow the and 
occupied by said reservoir in order to make the required head of 
water for the operation of the mills that were to be run by said 
power. That at that time the said Wilkin Briggs had no title 
to the land now claimed by the plaintiff but the same was then 
a part of the public domain of the United States, but it was then sup- 
Aig.Pbop. — ^9 



130 ORIGINAL TITLES (Part 1 

posed that the same would be included within or covered by the land 
grant to the Northern Pacific Railroad Company as soon as the route 
of said company's railroad should be definitely located through said 
county, and the said Wilkin Briggs then expected to eventually pur- 
chase said land from said company. And at the time of said verbal 
agreement between the said Wilkin Briggs and the said J. L. Mills the 
said Briggs verbally agreed to execute and deliver to the said J. L. 
Mills a deed evidencing said grant of said right of way and easement 
upon the demand of said J, L. Mills as soon as the said Briggs him- 
self received a deed to said land ; and the said Briggs then and there 
waived any and all other or further compensation on account of the 
construction and maintenance of said works and for the overflowing 
of said land." 

It was further found that Mills thereafter constructed said works 
and sawmill and entered into the enjoyment of the easement and of the 
rights thus verbally granted to him, openly, notoriously, and adversely 
as against Briggs and all other persons, under claim of right, and 
with the full knowledge and acquiescence of Briggs ; that all of said 
construction was made in reliance upon, and on the faith of, the ease- 
ment so granted and of the right to construct and perpetually main- 
tain said works and conduct water through said canal and impound 
the same, at an expense of $10,000, all of which was known to Briggs 
who, during all the time of his occupancy acquiesced in the claim of 
Mills and never disputed or denied it; that the grantees of Mills, 
who held the flouring-mill power, in like manner relied upon the right 
to perpetually use said water and power and perpetually maintain the 
reservoir, and by reason thereof they constructed their flour mill at 
an expense of $8,000, all of which was known to Briggs during the 
time of his occupancy and claim of title to any of said land, and he 
never denied or disputed said rights, but always acquiesced therein. 
Errors are assigned upon the findings, but we think they are sustained 
by the evidence. 

The findings establish that the agreement made by Briggs with Mills 
was not a mere revocable license or permission to occupy, but that it 
was intended to operate as a grant to be confirmed by deed when Briggs 
acquired the title so that he could convey it. We believe it is unnec- 
essary to discuss the testimony in detail, since we are satisfied that it 
establishes _the intention to make an absolute grant, the. consideration of 
which was the construction and operation of the mill at that place. 
The use of the premises was thus initiated, and it continued uninter- 
ruptedly for more than twenty-five years, until this suit was brought. 
Such use must now be presumed to have been adverse, unless it is 
explained to have been otherwise. 

"Where the use of an easement has continued for the prescriptive 

-^ period unexplained, it will be presumed to have been adverse, unless 

it is of such a character, or the circumstances attending it are such. 



Ch. 2) PRESCRIPTION 131 

as to show that it was a mere privilege enjoyed by leave of the land- 
owner." 22 Am. & Eng. Ency. Law (2d Ed.) p. 1202. Moreover, the 
use was not deprived of its adverse character or rendered merely per- 
missive for the purposes of the statute of limitations by a showing 
that it was preceded by an oral agreement amounting in terms to a 
grant, but void under the statute of limitations. "It is generally agreed 
that use of an easement under claim of right by virtue of a parol 
grant, may be adverse so as to give a title by prescription, although the 
parol grant itself is void under the statute of frauds." 22 Am. & Eng. 
Ency. Law (2d Ed.) p. 1198, and cases cited. 

The following from the opinion in Covcnton v. Seufert, 23 Or. 548, 
32 Pac. 508, may also be set forth as pertinent to this subject: "An 
easement cannot be granted by parol; yet, if Mr. Simpson purchased 
from Mr. Jackson the right to use the ditch, and used the same for 
ten years, and such use was acquiesced in by Mr. Jackson and his 
grantees, it would be such an exercise of the easement, under a claim 
of right, as to give a prescriptive right to the same. It is no objection 
to_granting an easement by prescription that the same was originally 
granted or bargained for by parol. That the use began by permis- 
sion does not affect the prescriptive right, if it has been used and 
exercised for the requisite period under a claim of right on the part of 
Mr. Simpson and his heirs, and their grantees. If the use of a way is 
under a parol consent given by the owner of the servient tenement to 
use it as if it were legally conveyed, it is a use as of right : Gould, Wa- 
ters, § 338; Washburn, Easem. (2d Ed.) 127. The plaintiffs have used 
the ditch as if it had been legally conveyed to them, that is, they have 
exercised such acts of ownership over it as a man would over his own 
property, — and the court must presume, in the absence of any evidence 
to the contrary, that the settlement was a parol consent or transfer 
by Mr. Jackson to Mr. Simpson of the right to use the ditch, and 
hence it was a use as of right." 

The facts in this case clearly show a continuous adverse use by re- 
spondents ami their grantors under claim of right for more than a 
quarter of a century. This estajjlishes their title by prescription^ and 
we find it unnecessary to discuss other reasons suggested in support 
of their title. * * * is 

The judgment is affirmed. 

13 The remainder of the opinion relating to another point Is omitted. 



132 ORIGINAL TITLTES (Part 1 

LEHIGH VALLEY R. CO. v. McFARLAN. 

(Court of Errors and Appeals of New Jersey, ISSl. 43 N. J. Law, 605.) 

Depue:, J.^* The d efendant is tlie lessee of the Morri!> C anal and 
Banking Company . In 18/1, the property, works and franchises of 
the latter compaiiy were granted to the defendant by a pprpp^iif|] jpn^p, 
under the authority of an act of the legislature. Pamph. L. 1871, 
p. 444. 

The lessor was i ncorporated in 1824, for the purpose of construc t- 
in g a canal to unite the river Delaware, near Easton, with the tid e 
waters of the Passaic. Pamph. L. 1824, p, 158. The canal was con- 
structed from the Delaware to the Passaic about 1830. In 1845 it was 
enlarged throughout its entire length to provide for navigation with 
boats of greater capacity. In 1857 the compan y renewed j jie timbers 
in its dam across the Rockaway river, and placed new flash boards 
upon it. In 1875 the flash boards were replaced by timbers firmly 
spiked on the top of the dam, and made part of its permanent struc- 
ture. 

The plaiaiif£.i s the owner of a mill situate on the Rockawav rive r, 
a bove tJTe site of the dam. Pie complains of an injui*y to his mill by 
back water cast back upon it by means of the dam. The damages 
claimed are such as accrued between the 30th of December, 1876, and 
the 22d of September, 1877. As his declaration was originally framed, 
the t heory of his action was that the dam at its increased height w as 
a ri unlaw ful '^i-m^tnrp At the trial the declaration was so amended 
as to present a claim for compensation for the damages sustained by the 
plaintiff between the days named, conceding that the canal company 
by its charter had power to take and appropriate to its use, lands and 
water, without compensation first made, and that therefore the dam 
was not, in itself, an unlawful structure. * * * 

The dp/^TT g&P^^ ^so contended at the trial that tlie righ^to mainta in 
i ts dam at its present height had been acquired bv adverse emovmen t. 
1 1 the defendant, or tlie canal company, under whom it claims, has ac- 
quired the right in dispute by pr^^cJ;^^J^io^^Jhe subject already discussed 
becomes of no importance in this litigation. It will be necessary, there- 
fore, to examine the instructions of the judge on this head. 
(' The instruction -was, in substance and effect, t hat mere verbal pr o- 
t ests and denial of the right, without any interruption or ohstmrt ion 
i n fact, of the enjoyment of tlie right, would prevent the acquisition 
o f~an easement by adverse use r. This instruction follows the opinion 
oFthe Vice-Chancellor, in Lehigh Valley R. R. Co. v. McFarlan, 30 N. 
J. Eq. 180. * * * 

14 That portion of the opinion relating to the plaintiff's claim to compen- 
sation, in which the court concluded the plaintiff was so entitl«»d, is omitted. 
Other parts of the opinion also are omitted. 



Ch.2) 



PRESCRIPTION 



133 



The ow ner of the servient tenement cannot overcome tlie presum p- 
ti on of right ansingy from an uninterrupted user nf twenty y ears, by 
pro of that no grant was in fact, made . He may rebut the presumption 
by contradicting or explaining the facts upon which it rests ; but he 
cannot overcome it by proof in denial of a grant. He may show that 
the right claimed is one that could not be granted away, or that the 
owner of the servient tenement was legally inrapahle of making, nr the 
owner of the dominant tenement i ncapable of receiving , such a grant. 
Rochdale Canal v. Radcliffe, 18 Q. B. 287 ; Ellwell v. Birmingham Ca- 
nal, 3 H. of L. 812; Staffordshire Canal v. Birmingham Canal, L. R. 1 
H. of L. 254; Thorpe v. Corwin, Spenc. 312. He may explain the user 
or enjoyment by showing that it was under permission asked and grant- 
ed ; or that it was secret and without means of knowledge on his part ; 
or that the user was such as to be neither physically capable of pre- 
vention nor actionable. Chasemore v. Richards, 7 H. of L. Cas. 349 ; 
Webb V. Bird, 13 C. B. (N. S.) 841 ; s. c, 10 C. B. (N. S.) 268; Sturges 
V. Bridgman, 11 Ch, Div. 852. But if there be neither legal incomp e- 
t ency nor physical incapacity^ and the user be open and notorious, and 
be suc h a s to be actionable or capable of prevention by the servien t 
owner, he can on ly defeat the .aff i ui-^ition of t he rif ; ht on the ground 

of the enjoyment was 



that the u st^ w-as r;pntcntious, o r the continuity 
interruj3 ted_ d iiring th^ peri od qt presc r iption . 

In defining title by prescription, Sir Edward Coke says, both to cus- 
toms and prescriptions, these two things are incidents inseparable, viz., 
po ssession or usage and time. Possession must have these qualities: 
It must be long, c ontinual and peaceable ; long, that is, during the time 
defined by law ; continuous, that is, that it may not have been lawfully 
interrupted; peaceable, because if it be contentious and the opposition 
be on good grounds, the party will be in the same condition as at the 
beginning of his enjoyment. Co. Lit. 113 b. By a long course of de- 
cision, the word "interrupted," when applied to acts done by the ser- 
vient owner, has received a fixed meaning as indicating an obstructio n 
to the use of the easement, some act of interference with its enjoymen t, 
which, if unjustifiable, would be an actionable wrong. This meaning 
has been given to tlie word as used in the statute 2 and 3 William IV, 
(Parke, B., in Olney v. Gardner, 4 M. & W. 495,) and is its usual signifi- 
cation. 

Sir Edward Coke gives no illustration of what was meant by conten- 
tious, except "opposition on good grounds," and by a quotation from 
Bracton, who wrote in a primitive era of English law, before the doc- 
trine of prescription, as applied to incorporeal hereditaments, had been 
subjected to the formative processes of judicial expositions from which 
the present state of the law is derived. The expression "opposition on 
g ood grounds" im p lies an act which would afford an opportunity to su b- 
niit its validity to the test of judicial decision, and is more consistent 
with the idea of an interference with the enjoyment of the right, such 
as would give the owner ability to go into court and establish his right. 



yh 



134 ORIGINAL TITLES (Part 1 

than with the supposition that prescriptive rights should he forever kept 
in abeyance by acts which gave persons claiming them, no power by 
suit at law to establish the right. In the passage quoted by Coke from 
Bracton, this early writer says : "I use the term peaceable, because if 
it be contentious, it will be the same as before, if the contention has 
been just; as if the true lord forthwith, when the intruder or disseizor 
has entered into seizin, endeavors soon and without delay (if he should 
be present, or if absent when he shall have returned) to repel and expel 
such persons by violence, although he cannot carry out to its effect what 
he has commenced, provided, however, when he fails he is diligent in 
requesting and in pursuing." Bract, fols. 51, 52. Mr. Goddard, in dis- 
cussing an enjoyment which is not peaceable, defines "vi" in the phrase 
"vi clam aut precario," to mean violence or force and strife, or con- 
tention of any kind; and the illustration he gives is where the enjoy- 
ment has been during a period of litigation about the right claimed, or 
the user has been continually interrupted by physical obstacles placed 
with a view of rendering user impracticable. Goddard on Eas. 172. 
In the English cases, pcacefulness and acquiescence (when the servient 
owner knows or might have known that a right is claimed against his 
jiiterest) are used indifferently as equivalent to uninterrupted. 

|n this country several decisions have been referred to as hold ing 
t hat prohibitions, remonstrances and denials of the right by thr '^wn er 
o ^the servient tenement, unaccompa nied by any act o f interferen ce 
w ith the eniovment of the easement, will prevent the acquisitionof th e 
tight. _ T hese cases are a legitimate outcome of the doctrine that the 
presumption is not a presumption juris et de jure, but is a presumption 
merely, liable to be rebutted by the proof of circumstances overcoming 
the presumption of a grant. This doctrine is supposed to have its chief 
support in Powell v. Bagg, 8 Gray (Mass.) 441, 69 Am. Dec. 262. 

In Powell V. Bagg, proof that the owner, when on the land, forbade 
the party claiming an easement of the flow of water over his premises 
to enter, and ordered him off, while there for the purpose of repairing 
the acqueduct, was adjudged to be competent evidence of an interrup- 
tion and an instruction that words, however strongly denying the right 
claimed or forbidding its exercise unaccompanied by any act or deed, 
was not an interruption of the user or enjoyment, was held,. to be de- 
fective and tended to mislead the jury. The evidence before-the.trial 
court is not fully reported. Evidence that the owner of the land for- 
bade the other party to enter, and ordered him off, was undoubtedly 
competent as part of the plaintiff's case. Whether what occurred at 
th ^t time would amount to an interruption oTt he easement, would de- 
p end upon circumstances, upon the conduct o t th e party when torb id- 
d en to enter or wlien ordered off. Lf the owner nf fhp ':;prvipn<- tpnp- 
ment, being on the premises, forbids tlie owner of the easement to 
enter for the purpose of enjoying it and orders him off, and the latter, 
on a well-grounded apprehension that the former means to enforce 
obedience to his commands, desists and withdraws, an action on the 



Ch. 2) PRESCRIPTION 135 

case for disturbance of the right would lie. This view must have been 
present in the mind of the court, else why restrict the prohibition to 
place — on the land? To give certainty to the owner's purpose? A pro- 
hibition delivered elsewhere might be so vehement and emphatic as to 
leave the denial of tlie" right equally beyond a doubt. On any other 
view of the case, as was said in C. & N. W. R. R. Co. v^JHijag, 90 
111. 340, rt he circumstances of the place where the forbiddance was 
rn ade, whethel" on or off the land, would be immaterial." If f acts such_^ 
as are above indicated, appeared in the case, the charge was, in the 
language of the court, "defective, and tended to mislead the jury in 
applying the evidence to the rule of law upon which the title of the de- 
fendant to the easement rested." Certain expressions from the opinion 
have been quoted as indicating that a verbal denial of the right will 
operate, ipso facto, to determine the right. If that view be adopted, 
or the suggestion of Mr. Justice Woodbury, (3 Woodb. & M. 551,) 
that complaints and the taking of counsel against such encroachments 
will bar the right, be followed, it is obvious that rights by prescription 
will be of little value. 

None of the authorities cited by the learned judge in Powell v. Bagg, 
goes to the extent contended for. The passage quoted from Bracton, 
[that an easement will be acquired by its exercise under a claim of right 
per patientiam veri domini qui scivit et non prohibuit sed permisit de 
consensu tacito, is followed by the comment that sufferance is taken 
for consent, and th ai: if the lord of the property, through sufferanc e, 
h as, when present and knowing the fact, allowed his neighbor to en toy 
on his estate a servitude for a long time pcaccablv and without interrup- 
t ion from such enjoyment nnrl t;iiffer;mrp, t here is a presumption. of 
consent and willingness. Bract, lib. 2, c. 23, § 1. fin the passage re-| 
ferred to in Greenleaf, the language is that the user must be adverse — \ 
that is, under a claim of title — with the knowledge and acquiescence of\ 
the owner of the land, and uninterrupted. 2^Greenl. Ev. § 539. In j 
Sargent v. Ballard, 9 Pick. (Mass.) 254, 255, Weld, J., in discussing the 
methods by which a claim of title by prescription may be controverted 
by disproving the qualities and ingredients of such a title, says that 
"ev idence_piigbt be q-iven to prove that the use had bee n interrupt ed, 

th erebv disproving a COn tJn'T^^I nrgniV^rprirp nf | )ip owner fnr tvypnty 

y ears." I n Arnold v. Stevens, 24 Pick. (Mass.) 112, 35 Am. Dec. 305, 
the plaintiffs' claim was of a right to dj^ore, under a grant by deed. 
They had not exercised the riglTt for forty years. In the meantime the 
owner had occupied and cultivated the surface of the land. The court 
held that there was no enjoyment hostile to the easement, for the owner 
of the land had done "nothing adverse to the rights of the owners of 
the easement — nothing to which they could object, or which would ap- 
prise them of the existence of any hostile claim, and no acquiescence, 
therefore, existed from which a conveyance could be presumed." In 
Monmouthshire Canal Co. v. Harford, 1 C., M. & R. 614, evidence 
was given of applications made on behalf of the claimants of the ease- 



136 ORIGINAL TITLES (Part 1 

ment for permission to exercise tiie right. The court held that permis 
sion asked for and received was admissible to show that the enjoyment 
was not of right nor continuous and uninterrupted, for " every time, t he 
occupiers asked for leave they admi tted t hat the former license had ex- 
]) ircd, an"crthat the continuance of the enjoyment was brokeri? ^ In nei- 
tlTer of these cases was the effect of verbal remonstrances or com- 
plaints, as evidence of an interruption of enjoyment, considered. 

Nor do the additional English cases cited by plaintiff's counsel in his 
brief meet the point under consideration. In Livett v. Wilson, 3 Bing. 
115, it is stated in the report that "as to undisputed use of the way 
there was conflicting testimony, but the weight of the evidence showed 
that the alleged right had been pretty constantly contested, and the de- 
fendant, upon recently taking some adjoining premises, the approach 
to which by the entrance he claimed into the yard, said 'my right of 
way from the street to the yard can now no longer be resisted.' " The 
character of the acts of resistance does not appear in the report of the 
case, either in 3 Bing. or in 10 Moore — whether they were verbal com- 
plaints or physical resistance. I do not find in either report of the case 
any warrant for the assertion of Tucker, P., (Xichols v. Aylor, 7 Leigh 
[Va.] 565,) that "repeated complaints and denials of the title of his ad- 
versary were considered as sufficiently rebutting the presumption of a 
grant." The only pertinency this case has to the subject now consid- 
ered, arises from the manner in which the case was left to the jury. 
The judge left to the jury to find whether or not the right had been 
granted by deed, instead of submitting to them the questions of fact 
upon which the law presumes a grant. I agree that, if the issue upon 
such a claim of right is whether a deed in fact has been made, proof 
of verbal complaints on or olt the locus in quo, as well as proof tliat 
no deed in fact was made during the continuance of the user, would 
be admissible and competent evidence; and such evidence would gen- 
erally determine the issup. But this method of leaving the question to 
juries has been condemned by the English courts, and is at variance 
with the doctrine generally received by the courts of this country. 

In Olney v. Gardner, 4 M. & W. 495, the decision was that, where 
there was unity of possession of the dominant and servient tenements, 
the time during which such possession was continued must not only be 
excluded in the computation of the twenty years, but destroyed alto- 
gether the effect of the previous possession by breaking the continuity 
of enjoyment. In Bright v. Walker, 1 C, M. & R. 211, it was held tha t, 
a s against the reversioner, the enjoyment of an easemenfduring a t en- 
ancy for life was not to be recK'oned as part of the prescriptive per iod. 
"Eaton V. Swansea Water Works, 17 O. B. 267, was an action for dis- 
turbance of a water-course claimed by adverse user. The court held 
that interruptions, though not acquiesced in for a year under statute 2 
and 3 William IV, might show that the enjoyment was never of right, 
but was contentious throughout; and there being evidence that the 
owner of the servient tenement was in the habit of stopping up the 



Ch. 2) PRESCRIPTION 137 

trench whenever it was made, the neglect of the judge to answer a ques- 
tion propounded by a juror as to what would be the effect in law of a 
state of perpetual warfare between the parties was not a satisfactory 
method of leaving the case to the jury. In Tickle v. Brown, 4 A. & E. 
369, it was held that the words "enjoyed by any person claiming a 
right," and "enjoyment thereof as of right," in the statute, meant 
an enjoyment had not secretly, or by stealth, or by tacit suffer- 
ance, or by permission asked from time to time on each occasion or on 
many, and that, therefore, p roof of a parol license was competent to 
show tha^ the enjoyment was permissive, ?^nd not und fr ^ rlnini-rii. 
r jglit . 'I'lie other two English cases referred to (Benneson v. Cartright, 
5 ir& S. 1 ; Glover v. Coleman, L. R. 10 C. P. 108) were simply inter- 
pretations of section 4 of the statute 2 and 3 William IV, and are not 
authorities with respect to the principles upon which prescriptive rights 
are acquired or prevented at common law. In each of the cases there 
was an actual physical obstruction of the user, and these cases turned 
upon the meaning of the words "submitted to or acquiesced in," con- 
tained in section 4, which provided that no act or matter should be 
deemed an interruption unless it should have been submitted to or ac- 
quiesced in for one year. Mr. Goddard, writing after all these cases 
were decided, in his excellent treatise, says: "It is commonly said that 
no easement can be acquired by prescription if the user has been en- 
joyed vi clam aut precario. The word vi does not simply mean by vio- 
lence or force, but it means also by strife or contention of any kind — 
as, for instance, that the enjoyment has been during a period of litiga- 
tion about the right claimed, or that the user has been continually dis- 
puted and interrupted by physical obstacles placed with a view of ren- 
dering the user impracticable." Goddard on Eas. 172. 
r 1 have not discovered in the English cases any intimation that mere 
j denials of the right, complaints, remonstrances, or prohibitions of user, 
I will be considered interruptions of the user of an easement, or as indi- 
I eating that the enjoyment of it was contentious. On the contrary, 
whenever the subject has been mentioned, it has elicited expressions 
_oi-+riarked disapprobation of such a proposition. This is conspicuously 
apparent in the opinions of Bayley, J., in Cross v. Lewis, 2 B. & C. 689; 
of Lush, J., in Angus v. Dalton, 3 Q. B. D. 85 ; and of Thesigcr and 
Cotton, Lords Justices, in the same case, as reported in 4 Q. B. D. 172, 
186. Thesiger, L. J., in considering the nature of the evidence which 
shall contradict, explain or rebut the presumption of right arising from 
an uninterrupted possession of twenty years, says that it is "not suffi- 
cient to prove such circumstances as negative an actual assent on the 
part of the servient owner, or even evidence of dissent short of actual 
interruption or obstruction to the enjoyment." In Angus v. Dalton, the 
easement was not such as came within the statute 2 and 3 William IV ; 
and the case was discussed and decided upon the principles of the com- 
mon law, independently of the statutory provision. 

Some confusion on the subject has arisen from the failure to discrim- 



138 



ORIGINAL TITLES 



(Part 1 




inate between negative and affirmative easements ; negative easements, 
such as easements of light, and of the lateral support of buildings, 
which cannot lawfully be interrupted except by acts done upon the 
servient tenement; and affirmative easements, such as ways and the 
overflowing of lands by water, which are direct interferences with the 
enjoyment b}? the servient owner of the premises, and may be the sub- 
ject of legal proceedings as well as of physical interruption. This dis- 
tinction is pointed out by the court in Sturges v. Bridgman, 11 Ch.-&r-^ 
852. In Angus v. Dalton, the Queen's Bench decided that the negative 
easement of lateral support of buildings could not be acquired by pre- 
scription, for the reason that the owner of the adjoining premises had 
no power to oppose the erection of the building and no reasonable 
means of resisting or preventing the enjoyment of its lateral support 
from his adjoining lands. But this decision was overruled in the Court 
of Appeals. Angus v. Dalton, 3 Q. B. D. 85, 4 Q. B. D. 162. With 
respect to such an easement there is great force of reasoning in the con- 
tention that slight acts of dissent should avail to defeat the acquisition 
of a right ; for it would be unreasonable to compel the owner of the 
adjoining lands to dig down and undermine the foundations or to put 
him to legal proceedings quia timet to preserve dominion over his prop- 
erty. But no such considerations of hardship or inconvenience exist 
when the easement is a right of vvay, which, whenever the right is ex- 
ercised, is a palpable invasion of property and may easily be obstructed, 
or is an easement of flooding lands, which is really, though not techni- 
cally, a disseizin pro tanto, and can easily be interrupted. ^ 

VThe whole doctrine of prescription is founded on public polic y. J It 
is a matter of public interest that title to property should not long re- 
main uncertain and in dispute. The doctrine of prescription conduces, 
in that respect, to the interest of society, and at the same time is pro- 
motive of private jiistice by putting an end to and fi.xinga limit t o^con ^ 
tention and strife. ICrQte&ts and m ere den ials of right are evidence^ that 
the right is in dispute, as distinguished from a contested right, li 
such protests and denials, unaccompanie dby anact which in law 

arnnijptQ to a flUtnrhnni'P nnri ic actionable nSSU c HTISe'permittcd tO pUt 

the i:ig4it in nheyr mce. the policy of the law wil l be defeated, and pre- 
scriptive rights be_2la££d- UPon the most unst able nf fnu ndntinrm. Sup- 
pose an easement is enjoyed, sa}', for thirty years. If after such 
continuance of enjoyment the right may be overthrown by proof of pro- 
tests and mere denials of the right, uttered at soniejxniQte but service- 
able time during that period, it is manifest that a right held by so un- 
certain a tenure will be of little value. If the easement has been inter- 
rupted by any act which places the owner of it in a position to sue and 
settle his right, if he chooses to postpone its vindication until witnesses 
are dead or tlie facts have faded from recollection, he has his own 
folly and supineness to which to lay the blame. Bii^_if_Ji^_in£j:£_4)ro- 
tests and denia ls-l:m his adversary, his righ t_niight be ^efgatgdJiejYQiild 
be_£lacedat_an un conscion able -disadvantage. He could neither sue 



Ch.2) 



PEESCRIPTION 



139 



and establish his right, nor could he have the advantage usually derived 
from long enjoyment in quieting titles. 

P rotests and remonstrances bv the owner of the servient tenemen t 
ag ainst the use of the easement, rather add to tlie streng^th of the claim " 
o f"a"prescriptive right; fpr^ holdin g in defij nc^_Qf_sucli_e>Lpxnstn1;itinns' 
isjdemonstrative^PX Qof that th ejmjoyT-nent is under a claim of right, 
fi ostjTe^d adverse ; and if they be not accompanied by acts amounting 
t o a disturbance of the right in a legal s e nse, they are no interruptio n 
or obstruction of the enjoyment . 

The instructions of the judge were erroneous in this respect. Th e 
j ur y^ should have be en told that a continuous enjoyment under a claim 
o f right ior twenty years, not obstructed by some suable act, and ha v- x/^,^iXx.omlJ 
i n ^the other qualities ot an adverse user, confers an indcteasible righ t . 
It is said that the instruction was given in view of evidence tending to 
show interruptions in fact of the right, and therefore the error was 
harmless. As the judgment will be reversed on other grounds, and 
the case may be retried, we prefer not to discuss the evidence at this 
time. 

On the two exceptions considered here, we think the judgment should 
be reversed. * * * 15 



^^nyxuyf^ 



ir-Dennith v. Annv(>-. 00 Ta. 1^1 (1.«:T0); Jordnn v. Lan?, 22 S. C. 159 
(1,S85); Kiiiil)iill v. I.ndd, 42 Vt. 747 (1S70). ace. Chicago & N. W. R. Co. V. 
Iloat,'. 00 III. .T'.n (1S7S) : Crosier v. I?ro\vii, Cf, W. Va. 27.".. Q5 S. E. r>20, 25 
L. R. A. (N. S.) 174 (1000); Roid v. Cnnictt, 101 Va. 47. 4.". S. E. 1S2 (100.3), 
contra. See Andrics v. Detroit, (J. II. & M. R. Co., 10.") Mirli. r">7, (J.3 N. W. 
52(; (ISO-.t; Rollins v. Blackdcii. 112 Me. 4."0. 02 Atl. .'.21 (1014). I n som e 
s tates there arc s tatntes pnn i(]iiif thiit c ertiiin r 'ofi<-i'v; sli-ill itinrnnr rii ijim- 
i n^ of a tirescij jmvQ r{,<rht- s;.>,7 s;tims:nn'a Am. St Law, § 2204. 

V\s to the olfeT-t of a fence hnilt or attempted to be built across way claim- 
ed hv prescrii)tion as intermiition of user, see Rrayden v. New York, N. H. & 
H. R. R. Co.. 172 Mass. 22."). .".1 N. E. 1081 (1808), and Connor v. Sullivan, 
4 Conn! 2G 16 Am. Rep. 10 (187:'.). 

CJ^ac KiN(i7V A., in connection with his use of Blackacre, had for five years 
used adversely a way over B.'s land; A. then conveyed Blackacre to C, "with 
the aiipurtenances." and C. continued siic li ;i(]v"r>-o iw^ f^| ir the bn lanee of 
t he nre.scrjptive period^ Has C. acnuired the easement by prescript ion? 
^Vhat wouIlI be the result If the words "with the api)urtenances' we re 
omitted? What If C. were A.'s heir, and as such succeeded to A.'s rights in 
Blackacre? See Leonard v. Leonard, 7 Allen (Mass.) 2l1 (18U3). 




A^-o-^ 



-^^-'v^^^o-'— «kX 







XL 



dl-t{,<^u^ 



Ir^ 



you --^^J— ^ 



140 ORIGINAL TITLE3 (Part 1 



CHAPTER III 




^0^ ACCRETION 






A^ 



i-'^ 



X^rjT GIFFORD v. YARBOROUGH. 



^^ 



(House of Lords, 1S28. 5 Biug. 163.) 




Best, C. J. My Lords, the question which your Lordships have 
^ proposed for the opinion of the Judges is as follows: " A. is seised in 
hjsdcmesne as of fee of the manor of N., and of the demesne lands 
thereof, which said demesne lands were f ormerly bounded on one side 
by tlie sea . A certain piece of land, consisting of about 450 acres, by 
the slow , g raduaL -and i mperceptible projection^ lluvion subsidence, 
and accretion of ooze, soil, sand, and matter slowly, gradually, and 
imperceptibly, and by imperceptible increase in long time ca^t up, de- 
posited, and settled by and from flux and reflux of the tide, and waves 
of the sea in, upon, and against the outside and extremity of the said 
demesne lands h ath been formed, and hath settled, grown, and accru ed 
u pon, and against, and unto tlie said demesne lam lZ Does such piece 
of land so formed, settled, grown, and accrued as aforesaid, belong to 
tlie Crown or to A., the owner of the said demesne lands ? There is 
no local custom on the subject." 

The Judges have desired me to say to your Lordships that land 
gradually and imperceptibly added to the demesne lands of a manor, 
as stated in the introduction to your Lordships' question, does not be- 
long to tlie crown, but to the owner of the demesne land. 

All the writers on the law of England agree in thisi/^iat as the King 
is lord of the sea tliat flows around our coasts, and also owner of all 
the land to which no individual has acquired a right by occupation and 
improvement, the soil tliat was once covered by the sea belongs to him. 

B ut this right of the sovereign might, in particular places, or. un der 
c ircumstances, m all places near the sea, be transferred to crrfnin nf 
his subjects by law. A law giving such rights may be presumed from 
either a local or general custom, such custom being reasonable,' and 
proved to have existed from time immemorial. Such as claim under 
the former must plead it, and establish -their pleas by proof of the 
existence of such a custom from time immemorial. 

G eneral customs were in ancient times stated in the plcadin.s^s of 
those wno claimed under them : as the custom o^^merchants, the cus- 
tonis oi the realm with reference to innkeepers Shd catriers, and oth- 
ers of the same description. But it has not been usual for a long time 
to allude to such customs in the pleadings, because no proof is required 



141 



Q^ 3) ACCEETION 

of their existence; they are considered as adopted into the common 
law and as such are recognized by the Judges without any evidence. 
These are called customs, because they only apply to particular de- 
scriptions of persons, and do not affect all the subjects of the realm; 
but if they govern all persons belonging to the classes to which they 
relate they are to be considered as public laws; as an act of parlia- 
ment applicable to all merchants, or to the whole body of the clergy, 
is to be regarded by tlie Judges as a public act. 

I f there is a custom regulating the right of the owners of all laiu ls^ 
bordering on th e sea, it is so general a custon i as need not be set mit in 
Ui e pleac lin.gs^o77f3ved by evidence, but will be taken notice ot by the 
Tud-es as part of the common law. /We think there is^ a custom by 
which lands from which the sea is j^raduaUy and imperceptibly re- 
moved by the alluvion of soil, becomes the property ot the person to / ^ 
whose land it is attached, although it has been in the fundus mans, and V^^^^^^^^ 
as such the property of the King. Sjich a custom is reasonably ^^ re- 
<r.r.U thPrirdits of theKing. and the subjects_cl nimmr ynd^f il; bene- 
fidal to the public; anritTexistence is established by satisfactory 

legal evidence. . , ,, • "f 

There is a great difference between land formed by alluvion, and 
derelict land. L and formed bv nlluvion must become useful soil by 
A ncrr... too slc jw tO h^ v^T'---'-^^ ' 1^^^'^ of what is dcpositcd by one 
tide will be so permanent as not to be removed by the next. An em- 
bankment of a sufficient consistency and height to keep out tlie sea 
must be formed imperceptibly. Ilut the sea frequently retires sudden- 
ly, and leaves a large space of land uncovered. 

When the authorities relative to these subjects are considered, this 
difference will be found to make a material distinction in the law that 
applies to derelict lands, and to such as are formed by alluvioi^ Un- 
less trodden by cattle, many years must pass away before lands formed 
by alluvion would be hard enough or sutTiciently wide to be used bene- 
ficially by any one but the owner of the lands adjoining. As soon as 
alluvion lands rise above the water, the cattle from the adjoming lands 
will give them consistency by treading on them; and prepare them 
for -rass or agriculture by the manure which tliey will drop on them. 
When they are but a yard wide the owner of the adjoimng lands may 
render them productive. Thus lands which are of no use to the^ing 
will be nc.fnl to the owner of the adjoin ing lands, and he will^cauire 
a Ti tle to them on ' the same princip le that all titles to lan chjiaye^been 
nT:;^nired by individuals, viz. bv occupation and improvenient. 

iocke in a passage in his Treatise on Government, in which he de- 
scribes the grounds of the exclusive right of property, says: God 
and man's reason command him to subdue the earth; that is. im- 
prove it for the benefit of life, and therein lay out something upon it 
that was his own, his labour. He that in obedience to that command 



142 ORIGINAL TITLES (Part 1 

subdued, tilled, and sowed any part of it, thereby annexed to it some- 
thing that was his property which another had no title to, nor could 
without injury take from him." 

This passage proves the reasonableness of the custom that assigns 
lands gained by alluvion to the owner of the lands adjoining. 

The reasonableness is further proved by this, t hat the land so gain ed 
i s a compensation for the expense of embankment, and for losses 
w hich frequently happen from inundation to the owners of lands nea r 
t he se a. 

This custom is be neficial to the pub lic. Much land which would re- 
main for years, perhaps for ever, barren, is in consequence of this cus- 
tom rendered productive as soon as it is formed. Although the sea is 
gradually and imperceptibly forced back, the Icind formed by the allu- 
vion will become of a size proper for cultivation and use; but in the 
mean time the owner of the adjoining lands will have acquired a title 
to it by improving it. 

The o riginal deposit constitutes not a tenth part of its value, th e 
ot her nine tenths are created by the labour of the person who has o c- 
^c upied i t; and, in the words of Locke, the fruits of his labour cannot, 
without injury, be taken from him. 

The existence of this custom is established by legal evidence. In 
Bracton, book 2, cap. 2, there is this passage: "Item, quod per allu- 
vionem agro tuo flumen adjecit, jure gentium tibi acquiritur. Est 
autem alluvio latens incrementum ; et per alluvionem adjeci dicitur 
quod ita paulatim adjicitur quod intclligere non possis quo momento 
temporis adjiciatur. Si autem non sit latens incrementum, contrarium 
erit." 

In a treatise which is published as the work of Lord Hale, treating 
of this passage, it is said : "That Bracton follows in this the civil law 
writers ; and yet even according to this the common law doth regular- 
ly hold between parties. But it is doubtful in case of an arm of the 
sea.'.' Hale de Jure Maris, p. 28. It is true that Bracton follows the 
civil law, for the passage above quoted is to be found in the same 
words in the Institute, lib. 2, tit. 1, § 20. But Bracton, by inserting 
this passage in his book on the laws and customs of England, presents 
it to us as part of those laws and customs. Lord Hale admits that it 
is the law of England in cases between subject and subject; and it 
would be difficult to find a reason why the same question between the 
crown and a subject should not be decided by the same rule. Bracton 
wrote on the law of England, and the situation which he filled, namely, 
that of Chief Justice in the reign of Henry the Third, gives great 
authority to his writings. Lord Hale in his History of the Common 
Laws (cap. 7) says, tliat it was much improved in the time of Bracton. 
This improvement was made by incorporating much of the civil law 
with the common law. 



Ch. 3) ACCRETION 143 

W e kg oM ^^that many of the maxims of t^*^ rnmmnn la^y are borro w- 
ed from the civil Liw . and are still quoted in tlie language of the civil 
law. Notwithstanding the clamour raised by our ancestors for the 
restoration of the laws of Edward the Confessor, I believe that these 
and all the Norman customs which followed would not have been suffi- 
cient to form a system of law sufficient for the state of society in the 
times of Henry the Third. Both courts of justice and law writers 
were obliged to adopt such of the rules of the digest as were not in- 
consistent with our principles of jurisprudence. Wherever Bracton 
got his law from Lord Chief Baron Parker, in Fortescue 408, says, 
"as to the authority of Bracton, to be sure many things are now alter- 
ed, but there is no colour to say it was not law at that time. There 
are many things that have never been altered, and are now law." Th e 
l aws must change with the state of things to which they rolnt e ; but, 
according to Chief Baron Parker, the rules to be found in Bracton are 
good now in all cases to which those rules are applicable. But the au- 
thority of Bracton has been confirmed by modern writers, and by all 
the decided cases that are to be found in the books. The same doctrine 
that Bracton lays down is to be found in 2 Rolle's Abr. 170; in Com. 
Dig. tit. Prerogative, (D. 61 ;) in Callis, (Broderip's edition,) p. 51 ; and 
in 2 Blac. Com. 261. 

In the case of the Abbot of Peterborough, Hale de Jure Maris, 
p. 29, it was holden : "Quod, secundum consuetudinem patriae, 
domini maneriorum prope mare adjacentium, habcbunt marettum et 
sabulonem per fluxus et refluxus maris per tcmporis incrementum ad 
terras suas costerae maris adjacentes projecta." In the treatise of 
Lord Hale it is said, "here is custom laid, and he relies not barely on, 
the case without it." But it is a general, and not a local custom, ap-i 
plicable to all lands near the sea, and not to lands within any particular, 
district. The pleadings do not state the lands to be within any district,' 
and such a statement would have been necessary if the custom pleaded 
were local. The consuetudo patriae means the custom of all parts oi 
the country to which it can be applied ; that is, in the present case, all 
sucji parts as adjoin the sea. 

The case of The King v. Olds worth (Hale de Jure Maris, p. 14) con- 
firms that of the Abbot of Peterborough as to the right of the owner 
of the adjoining lands to such lands as were "secundum majus et minus 
prope tenementa sua projecta" (Id. p. 29). That case was decided 
against the owner, because he also claimed derelict lands against the 
crown. 

Here it will be observed that there is a ^ dis tinction made between 
lands derelict and lands formed by alluvion : which distinction, I think, 
is founded on the principle that I have ventured to lay down, namely, 
th at alluvion must be gradual and imperceptible but the derelictioiij Qf 
land by the sea is frequently sudden, leaving at once large tracts of its 



OJjLMAt^r^ dLcAAjU^XMfV^. 



L 



144 ORIGINAL TITLES (Part 1 

bottom uncovered, dry, and fit for the ordin ar y purposes for w hich 
l and is used . But still what was decided in this case is directly appli- 
cable to the question proposed to us. The Judges are, therefore, war- 
ranted by justice , by p ublic policy, by the opi i^jons of learned w riters, 
and the auth ority of decided ca ses, in giving to your Lordships' ques- 
tion the answer which they have directed me to give. 

My Lords, the answer to your Lordships' question is the unanimous 
opinion of all the Judges who heard the arguments at your Lordships' 
bar. For the reasons given in support of that opinion I alone am re- 
sponsible. Most of my learned Brothers were obliged to leave town 
for their respective circuits before I could write what I have now read 
to your Lordships. I should have spared your Lordships some trouble 
if I had had time to compress my thoughts ; but I am now in the midst 
of a very heavy Nisi Prius sittings, and am obliged to take from the 
hours necessary for repose the time that 1 have employed in preparing 
this opinion. If it wants that clearness of expression which is proper 
for an opinion to be delivered by a Judge to this House, I hope that 
your Lordships will consider what I have stated as a sufticicnt apology 
for this defect. 

The Lord Chancellor. My Lords, I beg to express my thanks 
to the learned Chief Justice, and to the Judges, for the attention they 
have paid to this subject; and I have only to add that I entirely concur 
in the conclusion at which they have arrived ; and 1 would recommend 
to your Lordships, as a necessary consequence of the opinion which 
has been expressed, t hat the judgment of the C ourt of King's Bench 
u pon the matter should be affirmed . 

Earl of Eldon. My Lords, I heard only part of the argument, 
and therefore I have some difficulty in stating my opinion in this case; 
but having had my attention called to subjects of the same nature on 
former occasions, it does appear to me, I confess, after reading the 
finding of the jury, th at the opinion of the Judges must be that whiclT_ 
th e learned Chief Justice has now expressed . 1 therefore concur in 
the opinion the Lord Chief Justice has expressed. 

Judg ment affirme d.^ -. ■■^ r^ . •■ ' '■' 

1 "Blackstone says (vol. II, cliap. XVI), 'As to lands gained from the sea, ei- 
ther h r alluvion by the washing up of sand and earth, so as in time to jnake 
terra hrma. or by dereliction , as when the sea slmjiks back below the usual 
water mark ; in these cases the law is held to be,rt hiit if this 'z-a\\\ be little b y 
l ittle, bv Somali and imperce ptil^lo flPP-rppt/lT g hall go*To tUp nwiipr of flip lan (" 
ad.ioining.' BlackstOne then introduces by way ot explanation a reference fr„ 
a douDrrui brocard de minimis non curat lex, which Lord Chelmsford in Attor- 
ney General v. Chambers, 4 De G. & J. 55, at page 66, properly disclaims. The 
true reason for the principle of law in regard to foreshores is the same reason 
as the principle in regard to river banks, i. e., that it is founded upon security 
and general convenience." Atty. Gen. of Southern ^'igeria v. Holt, [1915] A. C. 
599, 613, per Lord Shaw of Dunfermline. See Banks v. Ogden, 2 Wall. 57 IT 
L.. Ed. 818 (1864). 

"Courts and text-writers sometimes give very inadequate reasons, born of a 
fancy or conceit, for very wise and beneficial principles of the common law ;. 



Ch. 3) ACCRETION 145- 

HALSEY V. McCORMICK. 

(Court of Appeals of New York, ISoS. 18 N. Y. 147.) 

Appeal from the Supreme Court. 

This was an a ction against Jacob McCormick , to recover a small 
pi ece of land in the villas^e of Ithaca, ly ing between what was former- 
ly ThrnortOanFoTslxM^^ the present centre of that 
creek. The lotoftlie plainti-ff, whicft, as he claims, covers the land in :^ 
dispute, is described in a conveyance to one Bennett, under whom !'^^Q^^,u«JZi^jA' 
holds, as running "s outh from the turnpike to the b ank of Six ^^^^^^^^TT;^^ , 
Creek." Bennett was also the grantor of Jacob McCormick, to whom, '<^<*'^^'<-~j ' 
subsequently to the deed under which the plaintiff derives title, he con- x^*.^'^ C^ 
veyed a parcel of land lying in the bed of Six Mile Creek, adjoinin g 
th e land of the plaintiff. The water of the creek having been caused 
to recede, a st rip of dry ground was formed at the foot of the \3 nk,/^^^;^ ^ 
which was the land in dispute m this action. 

On the first trial, hi 1853, the court held that the plaintiff was bound- 
ed on the south by the h igh water mark of the north bank of the creek. 
Upon appeal to this court, the judgment was reversed, the court hold- — 
ing that the plaintiff's land extended to l ow water m ark. 13 N. Y. 296. Lu^^ 
After this decision, the original defendant died, and the action was 
continued against his executors. Upon the second trial, it appeared 
that formerly the north bank of the creek, at low water, formed the 
south line of the land in dispute, but that the original defendant, Jacob 
McCormick, by d eepening the bed of the stream on the south sid^ ^nd 
pl acing stones upon a ridge in the centre, had turned the water so as 
trTiPovp ^ nnrfjnn op the north side of what was the bed of the stream 



djy, and thatupon this portion he had con structed a race to his mi ll, 
th e north bank of which was the original north bank of the stream . 

l^he cause was tried without a jury, and the judge tound as "facts 
"that the south line of the plaintiff's land was north of the premises in 
question; t hat the waters of the creek, where they pass the plaintiff s qs^ OU^ 
lot^dojow , and have for many years, run further to the s outh than *^>|^- ^ 

wh^TTh TcITkc was ereckil , and that the change in the channel was^f^^,^ ^^ ^ve. 
caused by ar tificial means used by Jacob :\IcCormick," the original de- 
fendant, as above indicated. He therefore ordered jud^g njjrTlt for the 

and we cannot help thinking this is somewhat so as to the right of a riparian 

owner to accretions and relictions in front of his land. The reasons usually 

given for the mle are either that it falls within the maxim. (Je^unnimi.s lex 

non curak or that because the riparian owner is liable to lose soil by the ac- 

tioli or encroachment of the water, he should also have the beneht of any 

land gained bv the same action. But it seems to us that the rule rests upon a 

much' broader principle, and has a much more important purpose in view, viz ^^ A 

to ni eserve the fund ai nnntm rinnrinu riu-ht^ n which all others depend, and ^U(r^%^ ^ 

t er" LiiinVu'ev v. biaic. ' )!! Minn. LSI, 'jW ^. \^ ■ H---*. 1'^ I^- I^- ^- *^".^^' ;' ! ^^^ 
sTliep. 541 (iso;!), per Mitchell, J. See also Lovingston v. St. Clair County. 
64* 111. 5G. 58, 16 Am. Rep. 516 (1872). 
Aig.Pbop. — 10 





146 ORIGINAL TITLES (Part 1 

defendant s, which was affirmed at general term in the sixth district, 
and the plaintiff appealed to this court. 

Pratt, J. It was settled by this court, when this cause was before 
it upon a former occasion, that the pl aintiff's south line did not orig i- 
na lly extend to the centre of the rrp^k, hut only to thpjm e of low w a- 
t er on the north ban k. Assuming this to be settled, tlie plaintiff does 
not claim that as the creek originally ran, the land in dispute was em- 
braced within the boundaries of his lot. But if I understand it, he 
laims that the land in dispute is^alluvioti^ and he is entitled to it as a 
riparian owner.^ B ut to acquire title to land as alluvion, it is neces sary 
t hat its increase should be imperceptible — that the amount added in 
e ach moment of time should not be perceived. When die change is so 
gradual as not to be perceived in any one moment of time, the proprie- 
tor, whose land on the bank of a river is thus increased, is entitled to 
the addition. Ang. on Watercourses, § 53 ; 2 Bl. Com. 262 ; 3 Kent, 
,. 519. 

It is enough that no such fact is found in this case, as that this piece 
of ground is alluvion — that it was formed by imperceptible accretion. 
The evidence shows that it was not thus formed . McCormick deepen- 
ed the bed of the stream on the south side, and placed stones along the 
centre so as to confine the water in the channel thus deepened, and by 
this means the land in question was left bare. He may have been 
guilty, by these acts, of a violation of the riparian rights of the plain- 
tiff or his grantors, but I know of no rule of law which would consti- 
tute an illegal act of the kind a transfer of the title. 

As tli e case stands, it is not necessary to pass upon the questi on ■ 
w hether there is a distinction between the case of alluvion formed b y 
natural or artificial mean s. I find no such distinction in the books. • 
If, by some artificial structure or impediment in the stream, the cur- 
rent should be made to impinge more strongly against one bank, caus- 
ing it imperceptibly to wear away, and causing a corresponding accre- 
tion on the opposite bank, I am not prepared to say that the riparian 
j^ "yx ^ y owner would not be entitled to the alluvion dius formed, especially as 
, s against the party who caused it. 
y If the accretion was formed under all the other circumstances neces- 

sary to constitute it alluvion, I can scarcely suppose that a person 
could successfully resist die otherwise valid claim of the riparian own- 
er, by alleging his own wrong, by showing that the accretion would 
not have thus formed if he had not himself wrongfully placed impedi- 
ments in the stream. But that question is not before us. It is enoug h 
t hat this case does not s how that the land in que stion was alluvio n. 

The judgment, therefore, must be affirme d with costs.^ 

f 2 "If portions of soil were added to rcfel estate fHreadj' possessed, by gradual 
I deposition, through the operation of natural causes, or by slow and impercepti- 
I ble accretion, the owner of the land to which the addition has been made lias 
Va perfect title to the addition. Upon no principle of reason or justice should 



Ch.3) 



ACCRETION 



147 



VOLCANIC OIL & GAS CO. v. CHAPLIN. 

(Ontario High Court of Justice, 1912. 27 Out. Law Rep. 34.) 

Action by the Volcanic Oil and Gas Company , T ohn G. Carr. a nd the 
TTnion Na tural Gns Comp a ny of Canada Limited (added by order in 
Chambers), plaintiffs, against Cha£lin_^and^^_Curr^ defendant^ , for a 
d eclaratio n of the plaintiffs' rightofoMnT^rshipoi certain lands, and 
for an i njunction a nd damages in respect of trespasses alleged to have 
been committed by the defendants thereon. 

Falconbridge;, C. J. The plaintiffs the Volcanic Oil and Gas Com- 
pany carry on busjnessjn the counties of Essex and Kent in tlic p ro- 
d uction and sale of petroleum and natural gas ; the plaintiff Carr is 
a farmer; the defendant C haplin is described as a w heel manuf ac- 
turer ; the (d efendant Curry) is an o il and gas drilling oper ator. 

It- The pl aintiff Carr is the owner and occupant of the westerly half 
of lot 178, Talbot road survey, in the township of Romney. It was 
granted by the Crown by patent dated the 29th January, 1825, to Carr's 
predecessor. The lands are described in the patent in manner follow- 
ing, that is to say: "All that parcel or tract of land situate in the town- 
ship of Romney, in the county of Kent, in the western district in our 
said Province, co ntaining by admeasurement one hundred acre s, be 
the same more or less, being the south-easterly part of lot number 
178 on the north-westerly side of Talbot road west, in the said town- 
ship, together with all the woods and waters thereon lying and being, 
under the reservations, limitations, and conditions hereinafter ex- 
I pressed, which said one hundred acres are butted and bounded or may 
'be otherwise known as follows, that is to say: commencing at the 
• north-westerly side of the said road in the limit between lots numbers 
177 and 178 at the easterly angle of tlie said lot 178; thence on a 



h e be deprived of accretions forced upon Mm hy the labor of another Avlthou t 
hfs coTTseut or connivance, and thus cut oft" from the benefits ot his origin al 
p roprietorship . * * ' In the case at bar, the accretions have not been sud- 
den, but gradual, as we gather from the testimony. The city of St. I^ouis, to 
preserve its harbor, and to prevent the channel from leaving the Missouri 
shore, threw rock into the river, and the coal dykes were made to afford ac- 
cess to boats engaged in carrying across the river. The ferry company pro- 
tected such accretions by an expenditure of labor and money. The accretions, 
then, are partly the result of natural causes and structures and work erected ^ 
and performed for the good of the public. Api)ellants should no t.tbpr<^bY ^"'^p' ^yg^ 



/^ /; 



their 



;hts heretofore en- 



frontage on the river and be debarred ot valuable ng] 

joyedr' — Ixjvingston r. «t. Clair CouTny, tj4 in. bu, U4, tlu, 1(3 Am. Kep. 516 
(1872)1 affirmed in 23 Wall. 46, 23 L. Ed. 59 (1S74) ; Adams v. Frothingham, 3 
Mass. 352, 3 Am. Dec. 151 (1807) ; Tatum v. St. Louis, 125 Mo. M8, 28 S. W. 
1002 (1894), ace. 

"O f course an exception m ^^^\ alwn yg l;^p mnde of cases where the operati ons 
u pon "the part3-''so w n land are not only calculated, but cn n bfTs oewn loha ve 
b een intended, to prod uce tbls gra dii al acqufsition of the seashore, howev er 
di' fficult such proof ot intention may b e." Attorney-General v. Chambers, 4 De 
G. & .t. 55, 69 (1S.j9), per I^rd Chelmsford, L. C. See Revell v. People, 177 111. 
468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257 (1S9S) ; Attorney-(ien- 
eral v. Holt, [1915] A. C. 599. 




148 



ORIGINAL TITLES 



(Part 1 







course about sixty degrees west along- the north-westerly side of the 
said road twenty chains seventy-one links more or less to the limit be- 
tween lots numbers 178 and 179; thence north forty-five degrees 
west sixty chains more or less to the allowance for road between the 
townships of Romney and Tilbury East; tlience east twenty-nine 
chains more or less to tlie limit between lots numbers 178 and 177; 
thence south forty-five degrees east 47 chains more or less to the place 
of beginning." 

The pl aintiffs claim that the original T albot road, which formed the 
s outh-westerly boundary of the la nTls mcl udcd m the above patent, ran 
near the bank of Lake Erie, which at this point is many feet above 
the beach, and rises perpendicularly therefrom, having a clay front 
facing the waters of the lake. The pl aintiffs further alle.g^e that alo ng 
t he shore of Lak e Erie ^ in thnt Jocality, the waters of the l ake have 
b een encro aching upon t he lands, undermi ning the bank, causmg it to 
s ubside, and then gradually washing it awav : that, by reason of this 
encroachment of the lake, Talbot road at an early period g rew dang er- ' 
o us and unsafe for public t ravel, until, about the year 1838, it was j 
abandoned as a means of public travel, and a new road, which has for 
many years been known as the Talbot road, was opened up and dedi- 
cated to public travel ; and that this road still continues to be the 
travelled road known as Talbot road, but the original Talbot road 
a cross the lake front has long since been w ashed away by th e wate rs 
n^tlip Inkp, nnH now those watcrs have advanced beyond where they 
were at the time of tlie original Talbot road survey; so that they have 
washed away the reserve left in front of the Talbot road, also the 
Talbot road itself and some rods of the front of the surveyed lots; 
s o that now so much of the lands patented to Carr's predecessor, a nd 
n ow owned bv him, as are now above the waters of Lake Erie, bo rder 
on the waters of th e Inke, an d nnt on the original Talbot road. 

"The above statements are denied by the defendants, but 1 find them 
o have been proved, as I shall hereinafter state. 

On or about the 4th July, 1908, the plaintiff Carr executed and de- 
livered to the plaintiffs the Volcanic company a grant and demise of 
t he exclusive right to search for, produce, and dispose of petrolcu m 
a nd natural gas in, under, and upon the said lands, together witli all 
r ights and privileges necessary therefor, etc. 

By instrument under the Great Seal of the Province of Ontario, 
dated the 1st August, 1911, known as Crown lease number 1836, the 
Go vernment of the Province demised and leased unto the defenda nt 
C haplin, his heirs, executors, etc., the whole o f "Sat parcel or tra ct 
o f^land under the waters of Lake Erie in front o f this lot, am ongst 
otliers (the particular description of which is set out in paragraph 5 
of the statement of defence of Curry). 

Ab out the month of September 1911, the defendant Chaph'n m nHp 
a verbal contract with the defendant Gurrv. for putting down a w pII 
ior the productionof petroleum and natur al ^as in and upon the land s 



Ch. 3) ACCRETION 149 

S O demised by the Crown to Chaplin ; and Curr y, actincr under s uch 
con tract, entered upon what the plaintiff Carr claims to be his la nd, 
with men and teams, and constructed a derrick and engine-house, etc. 

The plaintiffs, cl aiming th at this entry was w holly unlawfu l, made 
objection thereto; and, on the~defendants persistmg in their opera- 
tions, the plai ntiffs obtained an injunction from the local Judge, whi ch ^ 
injunc tion was continued until the trial. The plaintiffs now ask: (1) ^tS^^JT/*^ < 
That the injunction be made pe rpetuaj ; (2) a d eclaration of their 
rights as to the ownership of the land, a nd as to riparian righ ts ; and 
(3) damages . 

The defendants claim that, if the waters of the lake have washedC^^^^^^ C^ 
away the bank and encroached in and upon lot 178 the lands up to » 
the foot of the high bank before-mentioned became the property of 
the Crown, and that the south-westerly external boundaries of the lot 
shifted as the waters of the lake encroached thereon, giving full right 
to the Crown to enter into the Crown lease before-mentioned. 

The point involved is extremely interesting, and is one which, if I 
correctly apprehend the English and Canadian cases, has never yet 
been expressly decided, either in the old country or here. 

The surveyors who were called all agree that, by reason of the 
original survey having been made so long ago, and of the disappear- 
ance of original monuments, etc., they could not now lay out upon 
the land and water, as tliey now exist, the old Talbot road. Numer- 
ous witnesses were called who remembered that road and could speak 
of its boundaries, and of the erosion of the beach causing the road 
to be carried away north to its present position — many rods north of 
its original situs. T he evidence is overwhelming^ (I disregard the 
curio us evidence of Samuel Cooper), and I find it to be the fact th at 
t he locus now in^ controversy is part of the lot 178 north of the o ld 
T^ bot road". ^ 

Having come to this conclusion, it follows that, if the plaintiffs' 
contention in law is well founded, it is quit e -immaterial whe ther or 
n ot^ the construction of the derrick is entirely in the wat er, or partly 
in the water and partly on the beach — the fact being that it is on Carr's 
prq2?rty. 

In Gould on Waters (3d Ed.) para. 155, pp. 306 to 310, inclusive, 
after stating the general rule that "land f ormed by alluvio n, or the 
gradual and imperceptible accretion from the water, and l and gained _ 
by j-elictiop . or the gradual and imperceptible recession of the water, 
belong to the owner of the contiguous land to which the addition is 
made," and th at "conversely land gradually encroached upon bv na v;^ _^u>- 
ig able waters _cea ses to _^ elpng to the former owner." quoting the^^^\!f 

rnaximJ'Oui sentit onus debet sentire commodum," the aut hor pro- -^...^ 

ceeds (p. 309) ; " But when the line along the shore is clearly an d | y^w-.^ 
ri gidly fixed by a_^de e d or survey, it will not, it seems, afterwards " be *^ 
c hanged because of accr eti ons, although, as a general rule, the rig ht 
t o alluvions passes as a riparian right. " 



^-^ 



150 ORIGINAL TITLES (Part 1 

In Saulet v. Shepherd (1866) 4 Wall. (U. S.) 502, 18 L. Ed. 442, it 
was held that the right to alluvion depends upon the fact of contigu- 
ity of the estate to the river — where the accretion is made before a 
strip of land bordering on a river, the accretion belongs to it and not 
to the larger parcel behind it and from which the strip when sold was 
separated; citing at length the judgment in a case of Gravier v. City 
of New Orleans, which is in some Httle known report not to be found 
in our library at Osgoode Hall. 

In Chapman v. Hoskins (1851) 2 Md. Ch. 485, tlie general rule is 

stated as follows (paragraph 2, head-note) : "Owners of lands border- 

( ing upon navigable waters are, as riparian proprietors, entitled to any 

\ increase of the soil which may result from the gradual recession of 

yhe waters from the shore, or from accretion by alluvion, or from any 

/other cause; a nd this is regarded as the equivalent for the loss they 

(n iay sustain from the breaking in, or encroachment of the waters upo n 

t heir lands^ 

Now, in the case in hand, the plaintiffs say that they could gain noth- 
ing by. accretion, by alluvion, or other cause ; and, consequently, they 
should not lose by encroachment of the water upon their land, to 
which fixed termin i were assigned by the grant from the Crown. This 
doctrine seems to be well supported by decisions of Courts which are 
not binding upon me, but which command my respect, and which would 
seem to be accurately founded upon basic principles. — - — s 

In Smith v. St. Louis Public Schools (1860), 30 Mo. 290, the prin-' 
ciple is very clearly stated : "The principle upon which the right to 
alluvion is placed by the civil law — which is essentially the same in 
this respect as the Spanish and French law, and also the English com- 
mon law — is, t hat he who bears the burdens of an acquisitio n is en ti- 
t led to its incidental advantages,; con sequently, that the proprietor o f 
a field bounded by a river, being exposed to the danger of loss fro m 
its floo ds^ i s entitled t o the increment which from the same caus e 
maybearmexeil„tP.J.t-^ This rule is inapplicable to what are termed 
hmited helds, agri limitati ; that is, such as have a definite fixed bound- 
ary other than the river, such as the streets of a town or city." The 
reference in the judgment to the English common law is not quite 
so positive as the head-note states it. The Judge (Napton) in the 
course of a very learned opinion says (30 Mo. 300) : "It will be found, 
indeed, that upon this subject the Roman law, and the French and 
Spanish law which sprung from it, are essentially alike, if we except 
mere provincial modifications ; and it is believed that the English com- 
mon law does not materially vary from them. This uniformity neces- 
sarily results from the fact that the foundation of the doctrine is laid 
in natural equity." In saying this he may have had in his mind the 
language of Blackstone, to be now found in book 2 (Lewis' Ed.) pp. 
261-2, although he does not cite him. There are some earlier English 
authorities to which I shall refer later. 

Then there is a case of Bristol v. County of Carroll (1880) 95 111. 



Ch. 3) ACCRETION 151 

84 (para. 3 of head-note) : "3. To entitle a party to claim the, rig^ ht -/r 

t o an al lu\dal_for niation, or land gained from a lake hv alluvium, f} ^e. 
l ake must form a boundary of his land. If^ny_]andjies j3etween his ^ * — 

boundary linean d_the lake._h e_cannot_clair n such formation ." \^ "'^^'^^ 

TnDoe dem. Commissioners of BeauTort v. Duncan (1853) 46 N. C. ^-'■**''^* 
234, at page 238, Battle, J., says : "Were the allegations supported by 
the proof, an interesting question would arise, whether the doctrine 
of alluvion applies to any case where a water boundary is not called 
for, though the course and distance, called for, may have been co- 
terminous with it? We -do not feel at liberty to decide the question, 
because we are clearly of opinion that the evidence given on the part 
of the defendant does not raise it." 

Cook V. McClure (1874) 58 N. Y. 437, 17 Am. Rep. 270, is a judg- 
ment of the Court of AjDpeals of tlie State of New York. The head- 
note is as follows : il t seems, the rule that, where a boundary li ne 
i s a stream of water, imperceptib le acc retions to the soil, resulting; from 
natur aL causes. Erelong to the riparian owner, applies as well where I he | 
b oundary is u pon an artihcial pond as upon a running stream: . In 
an action of ejectment, plaintiff claimed under a deed conveying prem- 
ises upon which was a mill and pond. The boundary line along the 
pond commenced at 'a stake near the high-water mark of the pond,' 
running thence 'along the high-water mark of said pond, to tlie up- 
per end of said pond.' Held, that the line thus given was a fixed 
and permanent one, and did not follow the changes in the high-water 
mark of the pond ; and that defendant, who owned the bank bounded 
by said line, could not claim any accretions or land left dry in conse- 
quence of the water of the pond receding, although the gradual and 
imperceptible result of natural causes." 

In The Schools v. Risley, 10 Wall. (U. S.) 91, 19 L. Ed. 850, the 
decision was as follows: " A street or tow-path or passway or ot her 
open space permanently established for public use betw een the river 
an d the most eastern row of blocks in the 'lorn^g T tow n of St. Louis , 
w jicn It was first laid out, or established^ or founded, would prevent 
tlje owners of such lots or blocks from being riparian prop rietors 
of the land between such lots or blocks and the river. But this would 
n ot be true of a passage-way or tow-path kept up at the risk a nd QjUaU^^ ^ 
c harge of the proprietors of the lots , and following the changes of A/^^J^n!X^ 
the river as it receded or encroached, and if the inclosure of the pro- ^ 
prietor was advanced or set in with such recession or encroachment." 

In re Hull and Selby Railway (1839) 5 M. & W. 327, the general 
law as to gradual accretion or recession is stated. Alderson, B., says 
(p. 333) : "T he principle laid down by Lord Hale, that the party wh o 
s uffers the loss shall be entitled also to the benefit, governs and~3 e- 
ci desme qu estion. That which cannot be perceived in its progress is 
taken to be aTTT^it never had existed at all." tt' 

See also Giraud's Lessee y. Hughes (1829) 1 Gill & J. (14 C. A. Md.) 
249. 



152 



ORIGINAL TITLES 



(Part 1 




/ The defendants' counsel, in tlie course of a very elaborate and care- 
I ful argument, cited numerous authorities in support of the view that 
\ t he plaintiff Carr had lost the land by the encroachment of the wat er. 
J i do not cite all of these, because they are set out at large in the ex- 
/ tended report of the argument ; but I do not think that there is any 
case in which it has been expressly held that a person in the position 
of this individual plaintiff loses his property because of the grad ual 
encroa climent of the w^ater past the land in front of the road , pas t 
t he road^and past the fixed boundary of the p]^intiff<^'Jnnd■ He could 
not have gained an inch of land by accretion, even if tlie lake had re- 
ceded for a mile; and, therefore, it seems that the fundamental doc- 
trine of mutualit v. formulated in the civil law and adopted into the 
jurisprudence of many countries, cannot apply to him. 

Perhaps the strongest English case cited by the defendants' counsel 
was Foster v. Wright (1878) 4 C. P. D. 438: "The plaintiff was lord 
of a manor held under grants giving him the right of fishery in all 
the waters of the manor, and, consequently, in a river running through 
it. Some manor land on one side of, and near but not adjoining the 
river, was enfranchised and became the property of the defendant. 
The river, which tlien ran wholly within lands belonging to the plain- 
tiff, afterwards wore away its bank, and by gradual progress, not visi- 
ble, but periodically ascertained during twelve years, approached and 
eventually encroached upon the defendant's land, until a strip of it 
became part of the river bed. The extent of the encroachment could 
be defined. The defendant went upon the strip and fished there. 
Held, that an action of trespass against him for so doing could be 
maintained by the plaintiff, who had an exclusive right of fishery 
which extended over the whole bed of the river notwithstanding the 
gradual deviation of the stream on to the defendant's land." 

That case goes a long way in support of the defendants' contention. 
But Lord Coleridge, C. J., concurs only in the result arrived at by 
Lindley, J. He thinks the safer ground appears to be "that the lan- 
guage (of the grant) conveys * * ♦ a right to take fish, and to 
take, it irrespective of the ownership of the soil over which the water 
flows and the fish swim. The words appear to me to be apt to create 
a several fishery, i. e., as I understand the phrase, a right to take 
fish in alieno solo, and to exclude the owner of the soil from the right 
of taking fish himself ; and such a fishery I think would follow the 
slow and gradual changes of a river, such as the changes of the Lune 
in this case are proved or admitted to have been." 

There is a reference in the argument, and in the judgment in this 
case, to some of tlie old authorities; for example: Britton, book 2, 
ch. 2, sec. 7, Nichol's translation, p. 218: "But if the increase has 
been so gradual, that no one could discover or see it, and has been 
added by length of time, as in a course of many years, and not in 
one day or in one year, and the channel and course of the water is 
itself moving towards tlie loser, in that case such addition remains the 



.to \ 
this / ^ 



Ch. 3) ACCRETION 153 

purchase and the fee and freehold of the purchaser, if certain bounds '^^ 
are not found." 

Lindley, J., seems to think that in In re Hull and Selby Railway 
which I have already referred, the Court declined to recognise 
principle. 

As against the authorities in the United States which I have cited, 
there is a very strong case of Widdecombe v. Chiles (1903) 173 Mo. 
195, 73 S. W. 444, 61 L. R. A. 309, 96 Am. St. Rep. 507, a judgment 
of the Supreme Court of Missouri. The note is as follows: "De- 
fendant was the owner of the south half of a section of land between 
which and the river bed there was originally a strip of 8 acres, forming 
the fractional north half, which had not been patented. The river 
changed its bed until it had washed away the 8-acre strip, and flowed 
through defendant's land, when it began to rebuild to defendant's land 
all that it had washed away, and about 200 acres additional. Plaintiff 
then received a patent for the fractional north half of the section as 
described by the original survey. Held, that, t he accretion being t o 
defenda nt's land , plaintiff took no title by his patent." And Valliant, 
J., says WTJio. at page 204, 73 S. W. 446, 61 L. R. A. 309, 96 
Am. St. Rep. 507) : "This Court has not said in either of those cases, 
and we doubt if any Court has ever said, that land acquired under 
a deed giving metes and bounds which do not reach the river — which 
in fact did not reach the river when the deed was made — does not 
become riparian when the intervening land is washed away, and the 
river in fact becomes a boundary." ^ 

In considering authorities which are not binding upon me, and when 
I have to decide ' ^ipon reaso n untrammelled by authority" (per Wern- 
er, J., in Linehan v. Nelson^ il9l0]~r97' NV Y. 482, at page 485, 90 
X. E. 1114, 35 L. R. A. [N. S.] 1119, 18 Ann. Cas. 831), J prefer 
^hosj_Umted_States_ decisions, which I have earlier cited. There have 
also been cited to me authorities which it is contended dispose com- 
pletely of the Widdecombe Case, viz., the Lopez Case, which is re- 
ported as Lopez v. Muddun Mohun Thakoor (1870) 13 Moo. Ind. App. 
467; Hursuhai Singh v. Synd Lootf Ali Khan (1874) L. R. 2 Ind. 
App. 28; and Theobald's Law of Land, p. 37. 

It was strongly contended by tlie junior counsel for the plaintiffs 
that, apart from the main question, and granting that the erosive ac- 
tion of the lake has encroached upon the plaintiff Carr, and that he 
has lost some of his land, then at any rate he only loses it down to the 
low water mark. But, having regard to the view that I take about 
the main question, it is not necessary to consider that argument. 

s feuker v. Canter, U2 Kan. 363, 63 Pac. 617 (1901) ; Welles v. Bailey, 55 Conn. 
292, 10 Atl. 565, 3 Am, St. Rep. 48 (1S87), ace. But see Gilbert v. Eldridge, 47 
-Minn. 210, 40 X. W. 670, 1:5 L. li. .V. 411 (1801) ; Ocean City Ass'n v. Slinver, 64 
X. J. Law, 550. 40 Atl. COO. 51 I.. R. A. 425 (1000) ; Hempstead v. Lawrence, 70 
Mi.sc. Rep. 52, 127 N. Y. Supp. 040 (1010). See also Cook v. McClure, 58 N. Y. 
-4.37, 17 Am. Rep. 270 (1874), where the boundary was upon a millpond. 





54 OKiGiNAL TITLES (Part 1 

I do not see that the statute 1 Geo. V, ch. 6, has any application to 
this case; nor do I see that the Attorney-General ought to bring the 
action or is a necessary party — the plaintiffs being concerned only with 
the trespass upon their lands, and not with any supposed public right. 

The good faith, or the opposite of the defendants, in making the 
trespass, is a matter of no consequence in the disposal of the action. 

I find, therefore, that there has been a tre.=;pn.s.s by \]^p defpnfLTnts 

upon the piaintift's' land, and that they are entitled to have the inj un c - 

ti on herem made perpetual, wi th full costs on the High Court scale 

and $10 damages.* 

SUPPLEMENTARY NOTE 

Eminent Domain.— A'c/urr of Ti7?c.--T be title acquired n.s a result of eiiiin eut 
d oiiiaiii inuceediiiyj is an original or new title, as distiuiriiislicd fiotu a dcri va - 
tiv e^title or one L)ased upon nrivity. It is said in Weeks v. (Jraee. 191 Mass. 
2"JUr.S0 N. !•:. liliO, I) L. K. A. (N. S.) lO'.rJ, 10 Ann. Cas. 1077 (10(17) that: "The 
power when exerei.sed acts npon the land itself, not upon the title, or the sum 
of titles, if tliere are diversified interests. Upon ai)iiropriation all inconsistent 
proprietary rijjhts are divested, and not only privies, Ijut strangers are cou- 
cluded. * • ♦ Thereafter whoever may have heen the owner, or whatever 
may have been the quality of his estate, he is entitled to full compensation 
according to his interest, and the extent of the taking, hut the paramount right 
is in the puldic, not as claiming under him by a statutory grant, but by an 
independent title." See, also, Emery v. Boston Terminal Co., 17b Mass.' 171', 
.09 N. E. 7tj;J, SO Am. St. Kep. 47:; (1901); Todd v. Austin, .34 Conn. 7S (1S07). 
Couas ^uently eviction un der en anent domain proceedings does unt consti tute 
a brea'li oi WVtMltints iul' lllh', Ulullier sheMal or geinTal7~ ~Ake v. Mason. 101 
Pa. 17 (l.ss-'): Dobbins v. Hrown, 12 Pa. 7.j (ls4I)i; Folt.s v. Huntley, 7 Wend. 
(N. Y.) 210 (1&31) ; Stevenson v. Loebr, 57 111. 509, 11 Am. Rep. 36 (1S71) ; Kuhn 
V. Ereeman, 15 Kan. 420 (1875). 

E.rtcnt of the Interest Ac(/iiired. — I n the absence of constitutional rest ric- 
ti ons it rests within the discretion of the l.eirisliiture to determine wliat interest 
or estate shall vest , .^ee bnscoii v. Aew Haven, ib C6nn. 92, .^2 Atl. CIS (1V102) ; 
Georgia (Jranite K. R. Co. v. Venable, 129 (ia. .".41, OS S. E. 804 (19U7); Ding- 
ley V. Boston. 100 Mass. 544 (ISUvS) ; Sweet v. P.utTalo, N. Y. & Phila. Rv. Co., 
79 N. Y. 29;J (1S79); Eairchild v. St. Paul. 40 Minn. 540. 49 N. W. ;J25 (1891). 
W hen the extent of the interest is not si)eci[ied. oidv such an estate or inte r- 
e st will vest a s i.c! necess ary to iieriiiit the dccumi.lislimeiit of tlie p urpose for 
M -liich the land is apt)roiii-i:ite(l. Clark v. Worcester T'.". Mims: ""I! /IK'i'K> ; 
N'ewtun v. Newton, 1S8 Mass. 226. 74 N. E. .340 (1905) ; Smith Canal Co. v. Colo- 
rado Ice & Storage Co., 34 Colo. 485. 82 Pac. 940. 3 L. R. A. (N. S.) 114S (1905). 
See, also, lleyneman v. Blake, 19 Cal. 579 (1802) ; Quick v. Tavlor, 113 Ind. 
540. 10 N. E. ,588 (188S). But see Driscoll v. New Haven, 75 Conn. 92. 52 Atl. 
618 (1902). Where the fee vests, as to whether it is an absolute fee. see Halde- 
man v. Penn R. Co., 50 Pa. 425 (1805) ; Ma lone v. Toledo. 28 Ohio St. 043 (1870) ; 
Nelson v. Fleming, 56 Ind. 310 (1877) ; Kellogg v. Malin, 50 Mo. 490, 11 Am. 
Kep. 420 (1872) : People v. White, 11 Barb. (N. Y.) 26 (1851). Where less than 
the fee vests, the reversion remains in the original owner, his heirs and as- 
signs. Chambers v. Great Northern Power Co., 100 Minn. 214, 110 N. W. 1128 
(1907); McCombs v. Stewart. 40 Ohio St 047 (1SS4) ; Lazarus v. Morris. 212 
Pa. 128, 61 Atl. 815 (1905). A ^s to the rights of the parties where only an_ ease- 
ment is acquired , see Blake v. Rich, 34 N. II. 282 (1S50) ; Upper Ten Mile 
Plank Road Co. v. Braden, 172 Pa. 400, 33 Atl. 562, 51 Am. St. Rep. 759 (1896). 
When Title Passes. — I t is generally held that title vests O'dy upon payme nt 
of compensation. City or Chicago V. 'Birbian, 80 in. 4si (1875) ; Levering v. 
^Mladelphia G. & N. K. Co., 8 Watts & S. (Pa.) 459 (1844) ; Kennedy v. Indian- 
apolis, 103 U. S. 599, 26 L. Ed. 550 (1S80) ; New Orleans & S. R. R. Co. v. Jones, 

4 Apportionment of Accretions. — See case note to Northern Pine Land Co. 
V. Bigelow, 84 Wis. 157. 54 N. W. 496 (1893), in 21 L. R. A. 776, et seq. ; also 
Angell on Water Courses (4th Ed.) 47 et seq. 



Ch. 3) ACCRETION 155 

68 Ala. 48 (1880) ; Cushman v. Smith, 34 Me. 247 (1852) ; Stacey v. Vermont 
Cent. R. Co., 27 Vt. 89 (1854). 

In the absence of constitution,-!! rpsfrminti; |Jip legislature may in its discre - 
tio nJI^ermine when title shall rest. .Sweet v. Rechel. 159 U. ». oJiO, 1(3 tjup. 
Cfr43, 40 L. Ed. 188 (lS9o). See, also, City of Pittsburg v. Scott, 1 Pa. 309 
(1845). 

No extended discussion of this question will be attempted as each case is 
very larj:ely dependent UE)on the words of a particular statute or the state con- 
stitution. 

Tax Titles. — T he nature and extent of the title acouir pd hy g piir,^i>pgar <^f 
a tax sale depends largely upon the terms of the particular statute unde r 
which the taxes are kn-iedf Where the tax Is made a charge directly uiion the 
land itself, and the proc-eedings for its collection are strictly ii^Ji;iii> ^^^*^ ^'^^^ 
deed (j)rovided all the proceedings have been regular) will ha vetne effect of 
de stro , viug all t)rlor interests in the estate, whether vested or co utinL'eiit, f>y- 
ecuted or executory, and whether in noss^^-ssii^)ii. i-t'Vi-r><ion , or reni.-iiiider . Such 
a title is in no .seii.se derivative. I^ucas v. I'urdy, 1411 Iowa, .'JuU, 120 N. W, 
1063, 24 L. R. A. (N. S.) 1294, 19 Ann. Cas. 974 (19U9) ; I'.rown v. Austin. 41 VL 
2(52 (18(iS); Ivahle v. Nisley, 74 Ohio St. 328, 7S N. E. 52U (190<;). See, also, 
Osceola I>and Co. v. Chicago Mill & Lumber Co., 84 Ark. 1. 1(J3 S. W. (!09 (1907); 
Atkins V. Hinman, 7 111. (2 Cilnian) 4:}7 (1845i; McFadden v. Goff, 32 Kan. 
415, 4 I'ac. 841 (1884); McMtihon v. Crean, 109 .Md. (;52, 71 Atl. 995 (19U9) ; 
Langley v. Chai)in, i:{4 Mass. 82 (iss;5); Cole v. Van Ostnind, 131 Wis. 454, 110 
N. W. 884 (1997); Hefner v. Northwestern Mnt. Life Ins. Co., 12:{ U. S. 747, 
8 Sup. VL 'Ml, 31 L. Ed. 309 (1S.S7). W here, however, the taxes when levie d 
c onstitute a debt due from the owner wlikh ma y Lie collected in an action i n 
persu Lia nT; and wliere the law in terms or uinin a fair construction permits 
a saleol' the land oidy when all other remedies have been exliaiiste(l, the n 
t he tit le ac( |uircd is deriv ativ e, and includes only the Interest of tlie perso n 
taxeij: — See .MeTTTTiaid v. Hannah (C. C.) "1 l-'eil. 7:>. (1M)2); dross v. Taylor, 81 
CaTsO. G S. E. 179 (IS'^S); (wites v. Lawson, .32 (Jrat. (Va.) 12 (1879); Coney 
V. Cummings, 12 I.a. Ann. 74S (1857); Hunn v. Winston. 31 Miss. 1.35 (18.50); 
Dyer v. liranch Hank at Mobile, 14 Ala. (522 (1S4.S) ; Ex parte Macay. 84 N. 
C. 03 (1881): Jlisper County v. Wadlow, 82 Mo. 172 (1SS4); Ferguson v. Quinn, 
97 Tenn. 4fi. .3(! S. W. 57li, .33 L. K. A. (iSS (l.SDti); Clenn v. West. lOO \a. :;56, 
5U S. E. 14;? (19071. See, also. Irwin v. Hank of I iiited State.s, I I'a. 349 (1845), 
as to situation where .separate interests are se|>arutely a.ssessed. 

See on the subject generally Black on Tax Titles. 



PART II 
DERIVATIVE TITLES 



CHAPTER I 
MODE OF CONVEYANCE* 



SECTION 1.— AT COMMON LAW 
1. Feoffment 



LITTLETON'S TENURES. 

But of feoffments made in the country, or gifts in tail, or lease 
for term of life; in such cases where a freehold shall pass, if it be by 
deed or without deed, i t behoveth to have livery of seisin. 

Section 59. 



COKE UPON LITTLETON. 

"Livery of sefsin." Traditio, or deliberatio seisinre, is a solemni ty, 
t hat the law recju i reth for the passing of a freehold of lands or ten e- 
rnents by delivery of seisin thereo f. Intervenire debet solennitas in 
mutatione liberi tenementi, ne contingat donationem deficere pro de- 
fectu probationis. 

And there be two kinds of livery of seisin, viz. a li very in deed , 
and a l ivery in law . A li very in deed is when the feoffor taketh the 
ring of the door, or turf or twig ot tlie land, and d ehver eth the same 
uj)on the land to the feoffee in name of seisin of the land , &c., per 
hostium et per haspam et annulum vel per fustem vel baculum, 
&c. ''' * * 

A livery in law is, when the feoffor saith to the feoffee, being in 
the view ot the house or land, (I ^ive ynn ynndpr l^nH to you an d 
your heir s, and go enter into the same, and take possession thereo f 
accordino-ly) and the fe offee doth accordingly in the life of the feoff- 
or enter, t his is a good feoffment , for signatio pro traditione habetur. 
And herewith agreeth Bracton : Item dici poterit et assignari, quando 
res vendita vel donata sit in conspectu, quam venditor et donator dicit 

1 For the background of the subject-matter of this chapter, see 2 Pollock 
& Maitland, Hist. Eng. Law, SO-lOti. 

(156) 



Ch. ]) MODE OP CONVEYANCE 15T 

se tnidere : and in another place he saith, in seisina per effectiim et per 
aspectum. But if either feoffor or the feoffee die before entry Ih e 
hvery is void . And Hvery within the view is good where there is no 
deed of feoffment. And such a Hvery is good albeit the land lie in an- 
other county. A man may have an inheritance in an upper chamber, 
though the lower buildings and soil be in another and seeing it is an 
inh eritance cor poreal it shall pass by livery. 
4Sa7~B: 



STATUTE OF FRAUDS. 

For prevention of many fraudulent practices , which are commonly 
endeavored to be upheld by perjury and subornation of perjury; (2) 
be it enacted by the King's most excellent majesty, by and with the 
advice and consent of the Lords Spiritual and Temporal, and the Com- 
mons, in this present Parliament assembled, and by the authority of JJ \h 
the same, That f rom and aj te r the four and twentieth day of Jun e. Ouv*.^ AT ' 
w hich shall be in TITe year oTour Lord one thousand six hundred S£v- Q 
p ntv seven, all leases, estates, interests of freeliol d. or tc ^m7s^of^j>:eaTS, 
o r any u nccrUiurii^^ nKiiio rs, 
lands .^encmentsorhereditanients, made or created by livery and 
s eisin only , or by parol and not nut in writing, and signed by the p ar- 
t ies so making or crcatin^^ the same, or their a^!::^cnts thereunto lawfully 
authorized by writing, shall have the force and effect of leases or 
estates at will only, and shall not either in law or equity be deemed or 
ta ken to have any other or greater force or effect ; any considerati on 
f or making nny such parol leases or estates, or any former law o r ■ 
us age, to the contrary notwithstandin,c: . 

IL Except nevertheless all leases n ot exceeding the term of three 
y ejirs from the making thereo f, whereupon the rent reserved to the 
landlord, during such term, shall amount unto two third parts at the 
least of the full improved value of the thing demised. ^ • ^^^ 

in. And moreover, That no leases, estates, or interests either of - ^ 

freehold', or terms of years, or any uncertain interest, not being copy- 
hold or customary interest, of, in, to or out of any messuages, manors, . 
lands, tenements or hereditaments, shall at any time after the said four 
and twentieth day of June b e assip ^ned. ffrantcd or surren(J ereii--un- 
les s it be by deed or note in writing, signed bv the party so n.swni- 
j n'grgTanting or surrendering^ the same, or their agents thereunto law- 
fu lly authorized by writinc^. or by act and operation of law.' 
^■^Car. II, c. 3, §§ 1-3^ 

2 F or a l ong time prior to thfi Statute of Frauds n writing;, thougli JUJ- 
nece s^^iiry to an ettectivo T(:-('i HmeDt, was comnionly employea ns evidence ot 
Ih b "Lra usaction a nd im [rrrTTF : ^ ~~ „ „. ,t ^ ^ er <. ^ 

In 184o. i'ariiamoDt prov i d ed (St. 8 & 9 Vict. c. IOC, § 3) that a feoffment ..^^ 
other than a feoffment made under a custom by an infant, should be deeme d /^ 
void unless evidenced b}- a deed. 





158 DERIVATIVE TITLES (Part 2 



CHALLIS. REAL PROPERTY. 

A feoffment, the most venerable of assurances, survives to thi§ ^^y, 
b ut is now little use d. It, is believed that certain old corporate bodies 
still retain, at all events to some extent, the ancient practice of con- 
veying by feoffment. I t is the only assurance (not being matter of 
re cord, as a fine or recovery) by which, at the comm on law, legal es- 
t ates of freehold in possession can be conveyed to a person ha ving 
n o subsisting interest in the land and no privity with the person mak ing 
t he assurance. It consists simply and solely in the livery of the seisin; 
and some phrases in common use, which seem to imply a distinction 
between the feoffment and the livery, are so far incorrect. 

By the common law, any person having actual possessio n (not nec- 
essarily actual seisin), of lands, j^ould^ bv a feoffmen t, give to any per- 
son, other than the person having the next or the immediate estate of 
freehold in the lands, a n immediate estate of freehold , having any 
quantum. If the feoffor was actually seised, and the estate which 
passed by the feoffment was no greater than the estate of the feoffor, 
the feoffnient took effect rightfully '^i bu t if ^he f eoffor yv as not actu- 
ally seised, or if the estate which passed by the feoffment was grea ter 
t han his estate, the feoffment was styled a tortious feoffment, a nd 
was said to take effect by wrong. 

In accordance with the maxim that no one can qualify his own 
wrong, a tortious feoffment devested the whole fee simple out of th e 
rightful owner or owners . It does not follow that the tortious feoff- 
ment was necessarily a feoffment in fee simple ; and it might in fact 
• be for a less estate. In such a case, the feoffee took only the less 
estate, but the whole fee simple was devested out of the rightful 
owner or owners, a nd such part of it as was not disposed of by t he 
f eoffment became vested in the feoffor by way of a tortious revers ion 
upon the tortious particular estate created by the feoffment. 
/^ The tortious operation offeoffnjmnts made after 1st October, 1845, 
Vis prevented by 8 & 9 Vict. c. 106, § 4. 

The p ossession of a termor for years, or tenant at will, or by suffer- 
ance, sufficed to enable the termor, or tenant, to make a tortious feoft"- 
ment; and thus to convey an immediate estate of freehold which ful- 
filled many of the purposes of a rightful estate, though it affor ded 
no defence against the title of the rightful owne r. Upon the subject 
generally, and especially upon the case of Doe v. Horde, 1 Burr. 60, in 
which Lord Mansfield, striving after an unattainable equity did his 
best to throw the law into confusion, see Butl. n. 1 on Co. Litt. 330b. 

I f a. tortious feoffment was made by anv person other than a ten ant 
i n tail actually seised, the person rightfully entitled (or any other p er- 
s on acting in his name, even though without his assent) might at com - 
: mon law destroy the tortious estate of the feoffee by mere entry (Co. 
Litt. 258a) ; but if the feoffee's heir had succeeded by inheritance be- 






Ch. 1) MODE OF CONVEYANCE ^.J^d^^ J 1^^ 

fore entry made, the h eir's estate could not be affected by entry, a nd 
t he rightful claimant was put to his actio n. (Litt./sect. 3S5.) His 
entry was technically said to be t olled by dcsccnt^'^ast . Entry was 
t pllcd by a descent cast in fee tail (when the disseisor made a giit in 
t aij) as well as in fee simple. (Ibid. sect. 386.) But on the extinction 
of the entail by failure of issue, the entry was revived against the 
remainderman or reversioner. (Co. Litt. 238b.) 

The 3 & 4 Will. 4, c. 27, § 39, eiiacts that no descent cast after 3 1s t ->i^ 
December, 1833, shall toll any right of entry^ This enactment made /-<g ^U<' ^' ' 
the learnmg of descents cast, and also of continual claim whereby'^^^ -l^^^*.*^ 
rights of entry' might be protected therefrom, equally obsolete. ^'^^/y x.X^ 

A feoffment, made by a tenant in tail actually seised, operated as a A^-^r^ » 
d iscontinuance of the estate tail, and devested all remainders, and t h e 
reversion, expectant upon it, unless they were vested in th e kmg . 
Stone V. Newman, Cro. Car. 427, at p. 428. By such discontinuance 
the p ersons entitled under the entail, and in remainder or reversio n, 
were barred of their right of entry, and resi)ectively put to their ac - 
t ion as the only means to enforce their claims. 

The learning relating to discontinuance, though obsolete in respect ' 
to the common practice, is still sometimes of practical importance. In 
1884 a case was litigated in the House of Lords in which the validity ' 

of a claim partly depended upon the properties at Jthe common law of 
a tortious fee simple, which had been gained by a discontinuance 
effected in the preceding century, by a feoffment made by the survivor 
of two joint donees in special tail. 

I n all cases where the ri^ht of entry was tolled or barred, the net - 
ful action to recover tiic seisin was a real action. An _^ctionofcjcct- 
lent ( eiectione fi rma;) would not suffice . 2 Prest. Abst. 328. 

Tiiere were tvvodcgrees of remoteness in a right of action, the first 
being said to be founded upon a r ight of possessio n, and the second 
being styled a mere right ; and there were two kinds of real actions 
corresponding thereto, possesso ry actions, grounded upon writs styled 
writs of entry , and djoitural a^ t[o n Sj grounded upon writs styled writs _ 
of rigiit. A right of possession might be turned to a mere right, either 
by suffering such a time to elapse as would be a bar to a writ of entry, 
or by suffering adverse judgment by default in an action on such a 
writ. (See, on this subject, Butl. n. 1 on Co. Litt. 239a.) But the di s- 
c ontinuance of an estate tail by the tortious feoffment of the tenant 
in tail in possession, forthwith turned the right of the issue in tail_ to 
a mere right, without passing through any mtermediate stage s. 

3d Ed. by Sweet, pp. 397, 405, et seq.^ 




strictly sppfikins:, was properly used only '"'hon the convoynnce 

iiiii)le/ A Ylien the estiue cre;ited was a t>e tn il tHe conveyance 

b y gift, und when a iile estate t-he coiTrgySnce waa by lease . 





160 DERIVATIVE TITLES (Part 2 

II. Fine 
BLACI^STO^'fS^- COMMENTARIES. 

A fine is som e times said to be a feofifment of record : though it 
might with more accuracy be called a n acknowledgment of a feurimen t 
on record . By which is to be understood, that i t has at lenst tho .'^n me 
f orce and effect with a fenttrnpnt, in the conveying and assurins: of 
lancls.: though it is one of those methods of transferring estates of 
freehold by the common law, in which l iverv of seisin is not ncrrs'^n rv 
t p be actually ^iven : ._the supposition and acknowledgment thereof in a 
court of record, however fictitious, mducmg an equal notoriety . But, 
more particularly, a fine may be described to be an amicable compos i- 
ion or agreement of a suit, either actual or fictitious, by leave of th e 
k ing or his justices: whereby the_ lands in question become, or a re 
/ acknowledged to be the right of one of the partie s : In its original 
it was founded on an actual suit, commenced at law for recovery of 
Vossession of lands or other hereditaments ; and the possession thus 
-'gained by such composition was found to be so sure and effectual, 
that fi ctitious actions were, and continue to be, every day commen ced, 
for the sake of obtaining the same securi ty. 
Book 2, star p. 348. 



III. Common Recovery 

BLACKSTONE'S COMMENTARIES. 

A common recovery is so far like a fine, t hat it is a suit or actio n, 
either actual or fictitious ; ^and in it the lands are recovered again st 
t he tenant of the freehold : which recovery, being a supposed adju- 
dication of the right, b inds all perso ns, an d vests a free a nd_ ^bsol ute 
f ee-simple in the recover or. A recovery, therefore, being in the nature 
of an action at law, not immediately c ompromised like a fine, but car- 
ried on through every regular stage of proceeding, I am greatly ap- 
prehensive that its form and method will not be easily understood by 
the student who is not yet acquainted with the course of judicial 
proceedings; which cannot be thoroughly explained, till treated of at 
large in the third book of these Commentaries. 

Book 2, star p. 357.* 

* For an account of the procedure in common recoveries, see Pollock, Land 
-V Laws, SO; Williams, R. P. 95 et seq. 

<^ ^ By the Fines and Recoveries Act. 3 & 4 W. IV, c. 74, i t is provfdetl-^at after 

Jj^' jj>jJ^ D ecember 31. 18:^3. no fine shall be levied or commog recovery siiffered of 
fjjA>^\ l»«lds of any tenure. ~" "If*^ 



4^ 



Ch. 1) MODE OF CONVEYANCa 161 

IV. Leas^ 

BLACKSTONE'S COMMENTARIES. 

A lease is properly a conveyance of any' lands or tenements (usu- 
a lly in consideration of rent or other annual recompense), made fo r 
lifCj^f or years, or at will, but^ jil\va;^s ^r a less time than the less or 
hatti _iQj:li£_pr ^r {ii^ Sj^ for if it be for the whoTe interest, it is more prop- 
e rly an assjgnm^ than a lease. The usual words of operation in it 
are, "demise, grant, and to farm let : dimisi, concessi, et ad firmam tra- 
didi." Farm, or feorme, is an old Saxon word signifying provisions; 
and it came to be used instead of rent or render, because anciently the 
g reater part of rents were reserved in provisions ; in corn, in poultry , 
.i nd the like : till the use of money became more frequ ent. So tliat 
a farmer, firmarius, was one who held his land upon payment of a 
rent or feorme : though at present, by a gradual departure from t he 
o riginal sense, the word farm is brought to signify the very estate or 
l ands so held upon farm or rent. By this conveyance an estate for 
life, f^^rveaji^, or a^vv i^, may be created, e ither in corporc^Torin- 
c orporeal hereditaments ; though livery of seisin is indeed incident and 
necessary to one species of leases, viz. : leases for life of corporeal 
hereditaments ; but to no other. 

Book 2, star p. 317. 



V. ExcHANce 



BLACKSTONE'S COMMENTARIES. 

An exchange is a mutual grant of equal interests, the one in con- 
sideration of the other. The word "exchange" is so individually req- 
uisite and appropriated by law to this case, that it cannot be supplied 
by any other word, or expressed by any circumlocution. The estate s ^o^^;^ 
e xchanged must be equal in quantity, not of value, for that is im ma- ^j^iL*..-^ ^^-'^^ 
t enal. but of interest; as feQ;^sipTp4^g fonf^e-siiTiple, a l^ase jor.t^viinty..^;;.^.^.^ 

yg^j^ for ^ l^s^ i^or t wejity. ^ years, and the like. And the exchango? 

may be of things that lie either in grant or in livery. B ut no livery o f 
s eisin, even in exchanges of freehold, i s necessary to perfect the con - 
veyance : for each party stands in the place of the other and occupies 
his right, and each of them hath already had corporal possession of his 
own land. But entry must be made on both sides, for, if either part y 
die before entry, the exchange is void, for want of sufficient notoriety . 

Book 2, star p. 323.' 
Aig.Peop. — 11 



162 DERIVATIVE TITLES (Part 2 

VI. Partition 

BLACKSTONE'S COMMENTARIES. 

A partition is w hen two or more joint-tenants, coparceners, or te n- 
ants in common. agree_^to divide the lands so held among tliem in sev- 
e ralty, each taking a distinct par t. 

Book 2, star p. 2)2Z^ 



VII. Grant 




r.fzi 




BLACKSTONE'S COMMENTARIES. 

Grants, concessiones ; t he regular method by the commo p Inw nf 
t ransferring the property of incorporeal hereditaments, or such thing s 
w hereof no livery can be had. For which reason all corporeal here- 
ditaments, as lands and houses, are said to lie in livery ; and the other s, 
. a s advowsons. commons , rcnts^ r eversions, etc.. to lie in e rrant . Snd 
/ the reason is given by Bracton : "traditio, or livery, nihil aliud est 
quam rei corporalis de persona in personam, de manu in manum, trans- 
atio aut in possessionem inductio: sed res incorporales, qua^ sunt 
psum jus rei vel corpori inha^rens, traditionem non patiuntur" Qiy- 
is merely the transferring from one person to another, fro m one 
hand to another, or the induction into possession of a co rporeal here- 
d itament; but an incorporeal hereditament, which is the right itself t o 
a thing, or inherent in the person, does not admit of delivery) . These , 
t herefore^ pass merely by the delivery of the deed . And in seigniories, 
or reversions of lands, such grant, together with the attornment" 
of the tenant (while attornments were requisite), were held to be of 
equal notoriety with, and therefore equivalent to, a feoffment and liv- 
ery of lands in immediate possession. I t therefore diflfers but Ij ttle 
f rom a feoffment , exc^^t in jts subjec t-matt er ; for the operative words 
thenein commonly used are dedi et concessi, "have given and granted." 
Book 2, star p. 317. 

6 See infra, pp. 687, 6S9, 

6 See Litt. 551, 5G7-5C9 ; Co. Litt. .309. a, b. 

"And be it further enacted by the nuthority afore.<?aid. TJiat from and afte r 
t he first day of Trinity term all grants or conveyances thereafter to J ie 
made, by fine or otherwise, of any manors or rents, or of the reversion o r 
rayiainder 9f a"ny messuau^e s or lands, shall Iip gonf ]^ an d effectual.~to all In- 
tents and purposes, wif|iti^j--^np^^nttornmi2it of _f he lepan ts of any such 
manors, or of the land out of whiclisuclT rentslTall be issuins:, or of the par- 
ticular tenants upon whose particular estates any such reversions or remain- 
ders shall and may be expectant or depending, as if their attornment had 
been had and made." St. 4 Anne (1705) c. 16. § 9. 

As to necessity for attornment in the United States, see Tiffany, Landlord 
& Tenant, § 146f. 



Ch. 1) MODE OF CONVEYANCH 163 

VIII. Dedication C C, \J\ / 9 (> 3 

REX V. HUDSON. 

(Court of Kins's Bench, 1732. 2 Strange, 909.) 

On an in formation for stopping up a comm on font-way, the prose- 
cutor proved, that it ha d been a common passage under the defendan t's 
house as far back as anv witnesses could remember. But the defend- 
ant producing a lease made for fifty-six years of this way, to the intent 
it might be a passage during the term, and t he term expiring in 1728 ; 
th e Chief Tustire rRAVAfONn) held the defendant not guilty: and as to u jAf^^yy^ (n 
t hejenving it open since, he said that it would not be lon g ^ enough to -^"j^ 



a mount to a gift of it to the public .'^ 

LADE V. SHEPHERD. 

(Court of King's Bench, 1735. 2 Strange, 1004.) 

Upon trial of an a ction of trespass a c ase was made, that the place 
where the supposed trespass was committed was formerly the prope rty 
of the plaintiff, who some years since built a street upon U. which_ bas 
ever sinceTecn used as a highway. That the defgniljint had land con- 
tiguous parted only by a ditch, and that he laid_a_l) ridge o ver the ditch, 
t he end whereof rested on the highway . And it was insisted for the 
defendant, tliat by the plaintiff's making it a street, it was a dedication 
of it to the public ; and therefore however he might be liable to an in- 
dictrnenftor a nuisance, yet the plaintiff could not sue him as for a 
trespass on his private property. Sed per Curi.vm. Tt is rertninlv a 
d edication to the public, so far as the public has occasion ^^^ n, ^v'"^'^"' 
i s only for a right of passage . Rut ij_ never was understom LJo 
be a transfer of the absolute property in the soi l. So the plaintiff had 
j u dgmen t. 

7 mat six yenrs mnv be sufficient time whert^in to presume a dedicat ion 
fr om use r, isee Rugby c''hnnty V. Merrywentnor. 11 Knst. .'^75. note. T'ser fo r 
eiL^ hn-fn" months, where th ere w as a declaration of iiitontioii to ded icnte. lipid 
sf rnicient in ' N London \l. Co. v ^t. Mary, Isiinyton. 21 W. K. 2U(J (1.^72). 
"Xo particular time i.s necessary for evidence of a dedication; it is not. like 
a firaiit, presumed from length "of time; i f the act of dedication be unequ iv- 
ocal, it may take place imuiediatcly ; for instance, if a man Diiiias a um ible 
r ow of houses opening into an ancient street at each end niaking a street^ 
and sells or let^ thP hnn'^ps. that, is instantly a nigpway^ - uimmore, J., in 
WOudver v. iladden. 5 Taunt. 12."> (181.''>). 

A. is tenant for life, the remainder in fee being in B. ; A. dedicates a por- 
tion of the land as a highway. What effect, if any. would such dedication 
have upon B.? See FarquharV. Is'ewbury Rural Council, \lWd\ 1 Ch. 12. 



V 



164 DERIVATIVE TITLES (Part 2 

REX V. LLOYD. 
(Court of King's Bench, 180S. 1 Camp. 260.) 

This was an i ndictment for obstructing a hi^qhwa y. 

It appeared that tlie place in question is a narrow passage lying on 
the north side of Snow-Hill, called Cock-court; and being of an oblong 
shape, leads from one part of this street to another, without having any 
outlet elsewhere. The houses all the way round had once belonged to 
the same individual ; and the d efendant, having purchased tliose at th e 
top of t he court, built a wall across there, interceptmg all comm unica- 
t ion between the i-wn <;if]p" nnlrm Irpirn}' nf Snn-jv T^ill Till then, the 
passage had been open as far back as could be remembered ; and though 
it could in general be of no use to those walking up and down Snow- 
Hill being a most circuitous route which no one would willingly take, 
yet it was convenient for the public when the street was blocked up bv 
a crowd. The passage had been lo ng lighted bv the citv of Lo ndon 
and there had n ever been any chain acr oss it, or any mark to denote its 
being private property. 

Lord EllExborougii. I think, that if places are lighted by public 
bodies, this is strong evidence of the public having a right of way over 
them ; and t Q say that this right cannot exist because a particular p lace 
does not lead -coftveiiicixtly from one street to another, w ould go to cx - 
t rn | guish all highways w here Tas in Oueensauarc'l there is no thorough- 
fare. If the owner of the soil throws open a passage, and neither 
marks by any visibly, distinction, that he means to preserve all his 
rights over it, nor excludes persons from passing through it by positive 
prohibition, he sh all be presumed to have dedicated it to the publ ic. 
Although the passage in question was originally intended only for pri- 
vate convenience, the public are not now to be excluded from it, after 
being allowed to use it so long without any interruption. 

The defendant wa«; fnnnH { ym'liy " - . --■ 

8 Tlmt there cannot be a dedication to a vnrtion of the nubll ^, i=ifp r»"»^Q v. 
Huskin^^on, 11 M. & W. S-JT (184:;). But see Worinley v. Worniley, infra. 

A bridge may be a public bridge by dedication, altliough the right of the 
public to use same is limited to such times as the river is not fordable. Rex 
V. Northampton, 2 M. «& S. 2G2 (1S14). As to dedication for limited i>nrposes, 
see Stafford v. Coyney, 7 B. & C. 257 (1S27); Gowen v. Philadelphia Ex- 
cbauge Co., 5 Watts & S. (Pa.) 141, 40 Am. Dec. 4S9 (1S43). And as to dpdica- 
tion subject to re.servations on behalf of tbe owner, see Mercer v. Woodgate, 
Li. R. 5 Q. B. 26 (1869), where the owner claimed the right to plough up the 
way periodically; Attorney General v. Horner, [1913] 2 Ch. 140, where the 
owner claimed land had been dedicated for street purposes subject to a right 
of overflow from a private market ; City of Noblesville v. Lake Erie & W. R. 
Co., 130 Ind. 1, 29 N. E. 484 (1891), where the dedication of a street was 
claimed to be subject to the right to lay down a railroad therein. 



Ch. 1) MODE OF CONVEYANCE) 165 

CINCINNATI V. WHITE. 
(Supreme Court of the United States, 1S32. 6 Pet. 431, 8 L. Ed. 452.) 

Error to the Circuit Court of Ohio. The c ase came before the cour t 
on a bill of exceptions , taken by the plaintiffs in error, the defendants 
in the circuit court, to the instructions g iven by the court to the jury, 
on the request of the counsel for the plaintiff's in that court; and to 
the refusal of the court to give certain instructions as prayed for by 
the defendants below. 

In the opinion of the court, no decision was given on those excepn 
tions, save only on that which presented the question of the dedication 
of the land in controversy for the use of the city of Cincinnati ; which, 
and the facts of the case connected therewitli, are fully stated in the 
opinion of the court. The arguments of the counsel in the case, on 
the matters of law presented by the exceptions, are, therefore, neces- 
sarily omitted. 

Thompson, J., delivered the opinion of the court. The eiectnie nt 
i n this case was brought by Edward White, who is also the defend ant 
in error, ^o recover tJo.ss(;^ssi()n of a small lot of ground, in the city o f 
Cincinnati. lyin!£- in thai uart of the city usually denominated the co m- 
HiSin. 

To the right understanding of the question upon which the opinion 
of the court rests, it will be sufficient to state, generally, that on the 
15th of October, in the y ear 1788. Jo hn Cleves Symmes entered into 
a contract w ith the then board of treasury, under the direction of 
congress, for the p urchase of a large tract of land, then a wildern ess, 
i ncluding that where the city of Cincinnati now stands. Some negotia- 
tions relative to the payments for the land delayed the consummation 
of the contract for several years ; but on_ thc 30th of September 179 4, 
a patent was issued , conveying to Symmes and his associates, the land 
contracted for ; and as Symmes was the only person named in the pat- 
ent, die f ee was, of course, vested in him . Before the' issuing of the 
patent, however, and, as the witnesses say, in the year 1788, Matth ias 
P enman purchased of Symmes a part of the tract inrlndrH in ^he pat- 
en |yandcniba_aan^j^ That in 
the same year, Denman sold one-third o f his purchase to Israel Lud- 
low, and one-third to R o"bert Patterson. These three persons, Den- 
man, Ludlow and Patterson being t he equitable owners of the ]^;\iA 
(nn Ipo-nl |j|]p having hppn crr.nntpd ), proceeded, in January. 1789. to 
lay out the town. A plan was made and approved of by all the pro- 
prietors ; according to which, the ground lying between Front street 
and the river, and so located as to include the premises in question, 
was set ap art as a common, for the use and benefit of the town for 
ever, reservmg only the right of a ferry ; and no lots were laid out on 
the land tlius dedicated as a common. 



166 DERIVATIVE TITLES (Part 2 

The lessor of the plaintiff made title to the premises in question un- 
der Matthias Denman, and produced in evidence a copy, duly authenti- 
cated, of the location of the fraction 17, from the books of John C. 
Symmes, to Matthias Denman, as follows: "1791, April 4, Captain 
Israel Ludlow, in behalf of Mr. Matthias Denman, of New Jersey, 
presents for entry and location, a warrant for one fraction of a section, 
or 107.8 acres of land, by virtue of which he locates the 17th fractional 
section in the 4th fractional township, east of the Great Miami river, 
in the first fractional range of townships on the Ohio river; number 
of the warrant, 192." In March 1795, Denman conveyed his interest, 
which was only an equitable interest, in the lands so located, to Joel 
Williams; and on the 14th of February, 18C0, John Cleves vSymmes 
conveyed to Joel Williams in fee, certain lands described in the deed, 
which included the premises in question; and on the 16th of April 
1800, Joel Williams conveyed to John Daily the lot now in question. 
And the lessor of the plaintift, by sundry mesne conveyances, deduces 
a title to the premises to himself. 

In the course of the trial, several exceptions were taken to the ruling 
of tlie court, with respect to tlie evidence olifered on the part of the 
plaintiff, in making out his claim of title. But in the view which the 
court has taken of what may be considered the substantial merits of the 
case, it becomes unnecessary to notice those exceptions. 

The merits of the case will properly arise upon one of the instruc- 
tions given by the court, as asked by the plaintiff; and in refusing to 
give one of the instructions asked on the part of the defendant. PAt 
the request of the plaintiff', the^ court instructed the jury, "that to en- 
able the city to hold this ground, and defend themselves in this action, 
by possession, they must show an unequivocal, uninterrupted posses- 
sion for at least twenty years." On the part of the defendants, the 
court was asked to instruct the jury, "that it was competent for the 
original proprietors of the town of Cincinnati to reserve and dedicate 
any part of said town to public uses, without granting the same by 
writing or deed to any particular person; by which reservation and 
dedication, the whole estate of the said proprietors in said land, thus 
reserved and dedicated, became the property of, and was vested in, the 
public, for the purposes intended by the said proprietors; and that, 
by such dedication and reservation, the said original proprietors, and 
all persons claiming under them, are estopped from assertiQw any claim 
or right to the said land thus.jpserved and dedicated." The court r^ 
fused. to give the instruction as, asked, but gave the following iastruc- \ 
tion: "That it was competent for the original proprietors ..oi the town 
of Cincinnati to reserve and dedicate any part of said town to public 
uses, without granting the same, by writing or deed, to any particular 
person ; by which reservation an^ dedication, the right of use to such 
part is vested in the public for the purposes designated ; but that such 
reservation and dedication do not invest the public with the fee." 



Ch. 1) MODE OF CONVEYANCE 167 

The ruling of the court, to be collected from these instructions, was, 
that although there might be a parol reservation and dedication to the 
public of the use of lands ; yet such reservation and dedication did 
not invest the public with the fee; and that a possession and enjoy- 
ment of the use for less than twenty years was not a defence in this 
action. The decision and direction of the circuit court upon those 
points come up on a writ of error to this court. 

It is proper, in the first place, to observe, that although the land 
which is in dispute, and a part of which is the lot now in question, has 
been spoken of by the witnesses as having been set apart by the pro- 
prietors as a common, we are not to understand the term as used by 
them in its strict legal sense, as being a right or profit which one man 
may have in the lands of another ;| but m its popular sense, as a piece' 
of ground left open for commons and public use, for the convenience 
and accommodation of the inhabitants of the town. "~^ 

Dedications of land for public purposes have frequently come un- 
der the consideration of this court; and the objections which have 
generally been raised against their validity have been the want jofa_ j^ 

grantee competent to taketlie titlej applying to them the rule which 
^revails^in private grants, that there must be a grantee as well as a 
grantor. But that is not the light in which this court has considered 
such dedications for public use. The law applies to them rules adapt- 
ed to the nature and circumstances of the case, and to carry into execu- 
tion die intention and object of the grantor, and secure to the public 
the benefit held out, and expected to be derived from and enjoyed, by 
the dedication. '\ 

It was admitted at the bar, ithat dedications of land for charitabla 
and religious purposes, and for public highways, we re valid, without 
any grantee to whom the fee could be conveyed^ TtTfhough such are 
the cases which most frequently occur and are to be found in the 
books, it is not perceived, how any well grounded distinction can be 
made between such cases and the present. The same necessity exists 
in the one case as in the other for the purpose of effecting the object 
intended. The princip le , if well foundedjn the law, must have a gen- 
eral applicatiqn_Jo_all appropriations and dedications for public use, 
where there is no g rantee in esse to take the fee. But this forms an 
exception to the rule applicable to private grants, and grows out of the 
necessity of the case. In this class of cases, there may be instances, 
contrary to the general rule, where the fee may r emain in abeyance, 
until there is a grantee capable of taking; where the object and pur- 
pose of the appropriation look to a future grantee, in whom the fee is 
to vest. But the validity of the dedication does not depend on this; 
it will preclude the party making the appropriation from re-asserting 
any right over the land, at all events, so long as it remains in public 
use, although there may never arise any grantee capable of taking the 
fee. 



168 DEuivATivE TITLES (Part 2 

The recent case of Beatty v. Kurtz, 2 Pet. 266, 7 L. Ed. 521, in this 
court, is somewhat analogous to the present. There, a lot of ground 
had been marked out upon the original plan of an addition to George- 
town, "for the Lutheran Church." and had been used as a place of 
burial, from the time of the dedication. There was not, how'cver, at 
the time of the appropriation, or at any time afterwards, any incor- 
porated Lutheran church, capable of taking the donation. The case 
turned upon the question, whether the title to the lot ever passed from 
Charles Beatty, so far as to amount to a perpetual appropriation of it 
to the use of the Lutheran church. That was a parol dedication only, 
and designated on the plan of the town. The principal objection re- 
lied upon was, that there was no grantee capable of taking the grant. 
But the court sustained the donation, on the ground, that it was a 
dedication of the lot to public and pious uses; adopting the principle 
that had been laid down irLthe case of the Town of Pawlet v. Clark, 9 
Cranch, 292, 3 L. Ed. 735,»that appropriations of this description were 
exceptions to the general rule requiring a granttnTl That it was like a 
dedication of a highway to the public. This last remark shows that the 
case did not turn upon the bill of rights of Maryland, or the statute of 
Elizabeth relating to charitable uses, but rested upon more general 
principles ; as is evident from what fell from the court in the case of 
the Town of Pawlet v. Clark, which was a dedication to religious uses; 
yet the court said, this was not a novel doctrine in the common law. 
In the familiar case, where a man lays out a street or public highway 
over his land, there is, strictly speaking, no grantee of the easement, 
but it takes effect by way of grant or dedication to public uses. And 
in support of tlie principle, the case of Lade v. Shepherd, 2 Str. 1004, 
was referred to ; which was an action of trespass, and the place where 
the supposed trespass was committed was formerly the property of the 
plaintiff, who had laid out a street upon it, which had continued there- 
after to be used as a public highway ; and it was insisted, on the part 
of the defendant, that by the plaintiff's making a street, it was a dedi- 
cation of it to the public, and that although he, the defendant, might be 
liable for a nuisance, the plaintiff could not sue him for a trespass. 
But the court said, it is certainly a dedication to the public, so far as 
the public has occasion for it, which is only for a right of passage; 
but it never was understood to be a transfer of his absolute property 
in the soil. The doctrine necessarily growing out of that case has a 
.sirong bearing upon the one now before the court, in two points of view. 
4it shows, in the first place, that no deed or writing was necessary to ^ 
Iconstitute a valid dedication of the easement. All that was done, from 
^iljflhing that appears in the case, was barely laying out the street by 
the owner, across his land. fAnd in the second place, that it is not 
necessary that the fee of the land should pass, in order to secure theT 
easement to the public. And this must necessarily be so, from the ' ■ 
nature of the case, in the dedication of all public highAvays. There is ' 
no grantee to take immediately, nor is any one contemplated by die . 



Ch. 1) MODE OP CONVEYANCE 160 

party to take the fee at any future day. No grant or conveyance can 
be nec essary t o pass .the iee_out of ,the._Q\vner of the land, and let it 
remain in abeyanc e, until a grantee shall come in esse; and indeed, the 
case^reTelTeHtoTn Strange considers the fee as remaining in the origi- 
nal owner; otherwise, he could sustain no action for a private injure- 
to the soil, he having transferred to the public the actual possession^__ 
If this is the doctrine of the law, applicable to highways, it must ap- 
ply with equal force, and in all its parts, to all dedications of land to 
public uses ; and it was so applied by this court to the reservation of a 
public spring of water, for public use, in the case of McConneU y. 
Trustees of the Town of Lexington, 12 Wheat. 582, 6 L. Ed. 735. 
The court said, the reasonableness of reserving a public spring, for 
public use, the concurrent opinion of all the settlers that it was so re- 
served, the universal admission of all that it was never understood, 
that the spring lot was drawn by any person, and the early appropria- 
tion of it to public purposes, were decisive against the claim. 

The right of the public to the use of the common in Cincinnati must 
rest on the same principles as the right to the use of the streets ; and 
no one will contend, that the original owners, after having laid out 
streets, and sold building lots thereon, and improvements m ade, could ^ 
claim the easement thus dedicated to the public. All public dedications' 
must be considered with reference to the use for which they are made ; 
and streets in a town or city may require a more enlarged right over 
the use of the land, in order to carry into effect the purposes intended, 
than may be necessary in an appropriation for a highway in the coun- 
try ; but' the principle, so far as respects the right of the original owner 
to disturb the use, must rest on the same ground, in both cases ; and_ 
applies equally to the dedication of the common as to the streets, fit 
was for the public use, and the convenience and accommodation of the 
inhabitants of Cincinnati ; and, doubtless, greatly enhanced the value 
of the private property adjoining this common, and thereby comi>en- 
sated the owners for the land thus thrown out as public grounds. And 
aiterJbdng^thuAselapart for public use, and enjoyed as such, and pri- 
vate ^n£indiyidualj^ights acquired with reference to it, the law con- , 
g iders it in the nature o f an estoppel in pais, which precludes the origi- 1 
nal owner from revoking such dedication. It is a violation of good \ 
faith to the public, "and to those who have acquired private property i 
with a view to the enjoyment of the use thus publicly granted. j 

The right of the public, in such cases, does not depend upon a twenty 
years' possession. Such a doctrine, applied to public highways and the 
streets of the numerous villages and cities that are so rapidly springing ■ 
up in every part of our country, would be destructive of public con- 
veniencc^and private right. The case of Jarvis v. Dean, 3 Bing. 447, 
sho\i:5,\that rights of this description do not rest upon length of posses- 
g^r The plaintiff's right to recover in that case, turned upon the 
question, whether a certain street, in the parish of Islington, had been 
dedicated to the public as a common public highway. Chief Justice 



w 



1/ 




170 DERIVATIVE TITLES (Part 2 

Best, upon the trial, told the jury, that if they thought the street had 
been used for years as a public thoroughfare, with the assent of the 
owner of -the soil, they might presume a dedication ; and the jury 
found a verdict for the plaintiff, and the court refused to grant a new 
trial, but sanctioned the direction given to the jury and the verdict " 
found thereupon ; although this street had been used as a public road 
only four or five years; the court saying, the jury were warranted in 

jii;esuming it was used with the full assent of the owner of the soil. 

I The point, therefore, upon which the establishment of the public street 

'rested, was, whether it had been used by the public as such, with the 
assent of the owner of the soil ; not whether such use had been for a 
length of time, which would give the right by force of the possession; 
nor whether a grant might be presumed ; but whether it had been used 
with the assent of the owner of the land; necessarily implying, that 
the mere naked fee of the land remained in the owner of the soil, but 
that it became a public street, by his permission to have it used as such. 
Such use, however, ought to be for such a length of time that the pub- 
lic accommodation and private rights might be materially affected by 
an interruption of the enjoyment. 

In the present case, the fact of dedication to public use is not left 
to inference, from the circum5j:ance that the land has been enjoyed as 
aj;:Qmmon-4^i'-many years. IfBut the actual appropriation for that pur- 
)ose is established by the irlbst positive and conclusive evidence. And 
'indeed, the testimony is such as would have warranted the jury in pre- 
suming a grant, if that had been necessary. And the fee might be con- 
sidered in abeyance, until a competent grantee appeared to receive it; 
which was as early as the year 1802, when the city was incorporated. 
And the common having then been taken under the charge and direc- 
tion of the trustees, would be amply sufficient to show an acceptance, 
if that was necessary, for securing the protection of the public right. 

But it has been argued, that this appropriation was a nullity, because ' 
the proprietors, Denman, Ludlow and Patterson, when they laid out 
the town of Cincinnati, and appropriated this ground as a common, in 
the year 1789, had no title to the land, as the patent to S'ymmes was 
not issued until the year 1794. It is undoubtedly true, that no legal 
title had passed from the United States to Symmes. BuMhe proprie- 
tors had purchased of Symmes all his equitable right to their part of 
the tract which he had under his contract with the government. This 
objection is more specious than solid, and does not draw after it the 
conclusions alleged at the bar. 

There is no particular form or ceremony necessary in the dedication 
of land to public use. All that is required is the assent of the owner of "^ 
the land, and the fact of its being used for the public purposes in- \ 

sanded by the appropriation. This was the -doctrine in the case of 
Jafvis V. Dean, already referred to, with respect toa_,st£££l.;_aGd the 
same rule must apply to all public dedications ;|ran3~from the mere use 
of the land, as public land, thus appropriated, the assent of the owner 



Ch. 1) MODE OP CONVEYANCE 171 

/may be presumed. In the present case there having been an actual 

'j/ dedication, fully proved, a contined assent will be presumed, until a 

/ dissent is shown ; and this should be satisfactorily established by the 

I partjc ^laim ing against the dedications; In the case of Rex v. Lloyd, 1 

^ Campr2627 Lord Ellenborough~s"aysr if the owner of the soil throws 

open a passage, and neither marks by any visible distinction that he 

means to preserve all his rights over it, nor excludes persons from 

passing through it by positive prohibition, he shall be presumed to have 

dedicated it to the public. 

^J^t the time the plan of the town of Cincinnati was laid ou.t by the 
proprietors, and the common dedicated to public use, no legal title 
had been granted. But as soon as Sj'mmes became vested with the 
legal title, under the patent of 1794, the equitable right of the pro- 
prietors attached upon the legal estate, and Symmes became their 
trustee, having no interest in the land but the mere naked fee. And 
the assent of the proprietors to the dedication continuing, it has the 
same effect and operation as if it had originally been made, after the 
patent issued. It may be considered a subsequent ratification and 
a ffirma nce of the first appropriation. And it is very satisfactorily 
proved,. that Joel Williams, from whom the lessor of the plaintiff de- 
duces his title, well understood, when he purchased of Denman, and 
for some years before, that his ground had been dedicated as a public 
common by the proprietors. The original plat, exhibiting this ground 
as a common, was delivered to him at the time of the purchase. And 
when he, afterwards, in the year 1800, took a deed from Symmes, he 
must, according to the evidence in the case, have known that he was a 
mere trustee, holding only the naked fee. And from the notoriety of 
the fact, that these grounds were laid open and used as a common, it is 
fairly to be presumed, that all subsequent purchasers had full knowl- 
edge of the fact. 
/ But it is contended, that the lessor of the plaintiff has shown tlie 
/legal title to the premises in question in himself, which is enough to 
I entitle him to recover at law ; and that the defendants' remedy, if any 
1 they have, is in a court of equity. And such was substantially the 
opinion of the circuit court, in the fourth instruction asked by the 
plaintiff, and given by the court, viz : "that if the said proprietors did 
appropriate said ground, having no title thereto, and afterwards ac- 
quired an equitable title only, that equitable title could not inure so as 
to vest a legal title in the city or citizens, and enable them to defend 
themselves in an action of ejectment brought against them by a person 
hol^iing the legal title." 

We do not accede to this doctrine. For should it be admitted, that 
the mere naked fee was in tlie lessor of the plaintiff, it by no means 
follows, that he is entitledJi>-i:^COver possession of the comraojLjnjaDL 
action of ejectment. fThis is a possessory action, and the plaintiff, to 
entitle himself to recover, must have the right of possession; and 




172 DERIVATIVE TITLES (Part 2 

whatever takes away this right of possession, will deprive him of the 
remedy by ejectment, Adams's Eject. 32; Stark, part 4, p. 506-7. 
This is the rulejaid down by Lord Mansfield in Atkyns v. Horde, 1 
Burr . 119 -^^ /f^n ejectment," says he, "is a possessory remedy, and 
JnTy competent where the lessor of the plaintiff may enter; and every 
plaintiff in ejectment must show a right of possession as well as of 
property." And in the case of Doe v. Staple, 2 T. R. 684, it was held, 
that although an outstanding satisfied term may be presumed to be sur- 
rendered, yet an unsatisfied term, raised for the purpose of securing 
an annuity, cannot, during the life of the annuitant; and may be set 
up as a bar tQ the heir-at-law, even though he claim only subject to the 
chafge.^ Thereby clearly showing, the plaintiff must have, not only the 
le, but a clear present right to the possession of the premises ; 
cannot recover in an action of ejectment. And in the case of Doe 
Jackson, 2 Dow. & Ry. 523, Bailey, Justice, says, '^An action of 
ejectment, which from first to last is a fictitious remedy, is founded on 
the principle that the tenant in possession is a wrongdoer; and unless 
he is so, at the tirfte the action is brought, the plaintiff cannot recover," 
If, then, it is indispensable, that the lessor of the plaintiff should show 
\y a right of possession in himself, and that the defendants are wrong- 

doers, it is difficult to perceive, on what grounds this action can be sus- 
tained. 

The later authorities in England which have been referred to, leave 
it at least questionable, whether the doctrine of Lord Mansfield in the 
case of Goodtitle v. Alker, 1 Burr. 143, "that ejectment will lie by the 
owner of the soil for land, which is subject to a passage over it as the 
king's highway," would be sustained, at the present day, at Westminster 
Hall. It was not, even at that day, considered a settled point, for the 
counsel on the argument (page 140), referred to a case, said to have 
been decided by Lord Hardwicke ; in which he held, that no possession 
could be delivered of the soil of a highway, and therefore, no ejectment 
would lie for it. This doctrine of Lord Mansfield has crept into most 
of our elementary treatises on the action of ejectment, and has appar- 
ently, in some instances, been incidentally sanctioned by judges. But 
we are not aware of its having been adopted in any other case, where 
it was the direct point in judgment. No such case was referred to on 
the argument, and none has fallen under our notice. There are, how- 
ever, several cases in the supreme court of errors of Connecticut, where 
the contrary doctrine has been asserted and sustained, by reasons much 
more satisfactory than those upon which the case in Burrow is made 
to rest. Stiles v. Curtis, 4 Day (Conn.) 328; Peck v. Smith, 1 Conn, 
103, 6 Am. Dec. 216. 

But if we look at the action of ejectment, on principle, and inquire 
. what is its object, it cannot be^justained, on any rational ground. It is 

to recover possession of the land in question ; and the judgment, if car- 
ried into execution, must be followed by delivery of possession to the 



Ch. 1) MODE OF CONVEYANCE 173 

lessor of the plaintiff. The purpose for which the action is brought, is 
not to try Jhe^ mere abstract right to the soil, but to obtain actual pos^ 
session ; the very thing to which the plaintiff' can have no exclusive or 
private right. This would be utterly inconsistent with the admitted 
public right; that right consists in the uninterrupted enjoyment of the 
possession; the two rights are therefore incompatible with each other, 
and cannot stand together. The lessor of the plaintiff seeks specific 
relief, and to be put into the actual possession of the land. The very 
fruit of his action, therefore, if he avails himself of it, will subject him 
to an indictment for a nuisance; the private right of possession being 
in direct hostility with the easement or use to which the public are en- 
titled ; and as to the plaintiff's taking possession subject to the easement, 
it is utterly impracticable. It is well said, by Mr. Justice Smith, in the 
case of Stiles v. Curtis, that the execution of a judgment, in such case, 
involves as great an inconsistency as to issue an habere facias posses- 
sionem ^ certain premises to A., subject to the possession of B. It is 
said, cases may exist where this action ought to be sustained for the 
public benefit, as where erections are placed on the highway, obstruct- 
ing the public use. But what benefit would result from this to the pub- 
lic? It would not remove the nuisance. The effect of a recovery, 
would only be to substitute another offender against the public right, 
but would not abate the nuisance. That must be done by another pro- 
ceeding. 

It is said, in the case in Burrow, that an ejectment could be main- 
tained, because trespass would lie. But this certainly does not follow. 
The object and effect of the recoveries are entirely different. rThe one 
is to obtain possession of the land, which is inconsistent with the en- 
joyment of the public right; an^' the other is to recover damages 
merely, and not to interfere with the possession, which is in perfect 
harmony with the public right. So also, if the fee is supposed to re- 
main in the original owner, cases may arise where perhaps, waste, or a 
special action on the case, may be sustained, for a private injury to such 
owner ; but these are actions perfectly consistent with the public right. 
But a recovery in an action of ejectment, if carried into execution, is 
directly repugnant to the public right. 

Upon the whole, the opinion of the court is, that the judgment must 
be reversed, and the cause sent back with directions to issue a venire 
de novo. Judgment reversed. 




174 DERIVATIVE TITLES (Pa it 2 

WATERS V. PHILADELPHIA. 

(Supreme Court of Pennsylvania, 1904. 208 Pa. 189, 57 Atl. 523.) 

Appeal from award of jury of view. Before Biddle, P. J. 

The facts are stated in the opinion of the Supreme Court. 

Verdict and judg ment for plaintiff for $3,00 0. Defendant appealed. 

Potter, J.* This was an issue framed under an appeal from the 
finding of a road jury upon a cl aim for damages caused by the wide n- 
ing of Waln ut street. On the lot now owned by the plaintiff' at tlie 
southeast corner of l5th street and Walnut, a building was erec ted 
some thirty-five or forty years ago upon a line about four feet fro m 
t he street Ime , and the inte rvening space was left open for use and wa s 
u sed by the public as part^ot the sidewalk. All the other buildings on 
the block were erected substantially on the same line. On June 30, 
1892, an or dinance was passed authorizing the bureau of surveys to 
revise the city plan so as to make the width of Walnut street confor m 
t o the line of the buildinp-s erected there^g m ; and on January 15, 1894, 
in pursuance to the ordniance, the new s outh line o f Walnut street was 
thus fixed. 

Plainti ff purchased th e p roperty in question in 1898, and took dow n 
the oldbu ilding and erected a"new one upon the line estab l ished in 189 4. 
This practically coincided with the line of the old building, although 
there is some evidence which indicates a further recession of a few 
inches. The p laintiff claimed damages for the value of the entire foi ir 
f eet between the original street line and that established in 189 4. The 
city claimed that the plaintiff' was entitled to no damages whatever, 
averring that the former owner had dedicated this four feet of ground 
to the use of the public. The court instructed the jurv that there w as 
ji o^ evidence in the case that would iustifv them in findin g thn^ tlipre 
h a^ been a dedication of the ground to public use , and restricted the 
jury to the single question of the amount of damages to be awarded. 
In this we think there was error. 

There is much evidence in the case tending to show that the strip of 
ground in question was for many years used as p^rt nf the sidewalk , 
a nd that the owner made no use of it which would indicate that he re- 
garded it as ministering in any wav to his special benefi t. There was 
no door upon the Walnut street end of the building and no steps lead- 
ing to the street, as the entrance was from the 15th street side. It is 
claimed by the city, and considerable evidence was offered tending to 
show, that, during a period of time exferir|in cr fnr many yeart; mn re 
t han the statutory period "f limitations, t he owner never made any ob- 
jection to the full and free use of this ground by the public as part of 
the highway, and never, during that period, made any claim of owner- 
ship therein. 

W here there has been long continued use of land as a street by th e 
public without objection on the part of the owner of the soil, the jury 



Ch. 1) 



MODE OP CONVEYANCE 



175 



may presume_a_valjci dedication. Schenley v. Com., 36 Pa. 29, 59, 78 
Am. Decr359. No par Vr^'^^^r fprmnHty I'g rpqnfQitp tf> rnnptitute a dedi- 
c ation upon the part of the ownef . Any act which clearly indicates an 
i ntention to dedicate is sufficient. "Proof of the animus dedicandi may 
be by circumstances, and may rest in pais. One of such circumstances 
which will be considered eyidence of dedication, is the use of the way 
by the public, wit h the knowledge and assent of the owner of the soil ; 
and when such use extends through a long series of years, the animus 
dedicandi is presumed. The reason of this rule is, that when the own - 
er of the soil so long acquiesces in the usin g- the wny, havin cr knnwlpdg- p' 
t hereof, he is estopped lo deny his prior dedication ." Wilson y. Sexon, 
2/ Iowa, 15. It was also said, in City of 'Richmond y. Stokes, 31 Grat. 
(Va.) 713: "Where streets and alleys haye been opened by the owner 
of the soil and used by the public with his consent for years, a dedica- 
tion of the easement may be presumed, and the continued and uninter- 
rupted use with the knowledge and acquiescence of the owner will jus- 
tify the presumption of a dedication to the pulilic, pr ovided the use h as 
be en continued so long that priya te rights and public conyen ience might 
b e materially affected by an interruption of the enjoymen t. But any 
a cts of owners hi p by the owners of the soil would repel the presum p- 
t'l^nTZ ~ ' 

In State v. K. C, etc., R. R. Co., 45 Iowa, 139, it was pointed out 
that in the strict sense of the term a highway cannot be established by 
prescription, since there can be no such thing as a grant to the public, 
but co mmon usage has applied th e term to highways whose existence is 
b ased upon long use and occupatio n. 

There are many cases holding that the period required for the stat- 
ute of limitations to bar the right of the ovyner wo uld from analogy be 
s ufficient to establish a presumption of de dimtinn from lapse of ti me. 
Thus Knox, J., says, in Com. y. Cole, 26 Pa. 187: "The use of the 
ground by the public as a highway for more than twenty-one years 
made it a public road just as effectually as though it had originally been 
laid out and opened by the proper authorities." And in Schenley y. 
Com., 36 Pa. 29, 59 (78 Am. Dec. 359) it is said : "T he period of tw en- 
t y-one years of enjoyment after which a presumption of a grant is 
made, is fixed fro'T^ nnnl'"'?)^ tr. tliP <;f.qtiitp ^ f limitations . ' ' 

There is also abundant authority for the proposition that the owner 
of the soil ma y be concluded by a user by the publ ic for a .much -shor4er 
period of time, when th ere arejothe r (j-irrnmst^nc p', from whighthe jn- 
t ention to dedicate may be inferred. • As in Pittsburg, etc., Railway 
Co. V. Dunn, 56 Pa. 280, Reed, J., says : " Eight years is quite sufficien t 
t i me for presuming a dedication of the way to the public. In_a great 
c ase which was much contested, s ix years was held sufficient, 11 East, 
^75 (note) ; and in Jaryis y. Dean, 3 Bing. 447, Chief Justice Best said 
'as it had been used for four or fiye years as a public road, the jury 
were warranted in presuming that it was used with the full assent of 
the owners of the soil.' " But where it is obyious that a space has been 







Xf 



r 



t/ jf7 ^ -^ 



176 DERIVATIVE TITLES (Part '2 



(s 



left open for the accommodation of the owner and not of the public the 
presumption of dedication does not arise. Gowen v. Phila. Exchange 
P-o., 5 Watts & S. 141, 40 Am. Dec. 489. And where the owner of j and 
sets his fence back fro m the highway for his own convenienc e and uses. 
I t he mtervenmg space until his death for private purposes,"the munici- 
/ pal authorities cannot restrain a subsequent owner of the property, 
'even years after the death of the former owner, from setting back the 
fence to the old line and enclosing the intervening space : Griffin's Ap- 
peal, 109 Pa. 150. But there the use of the land by the public was sim- 
ply by sufferance of the owner: in that case Justice Green said (page 
/ -//.^m ^ 155): ^' Dedicatio n i s a matter of intention, and when clearly prov ed, 
OA*^^i^^^^ /, it is as complete m one dav as in twenty-one year s. Where there is no 
^j3£;;^<A/<*^ opposing proof, long continued use by the public is evidence of an in- 
■''^^ tention to dedicate, but it is by no means conclusive and always yields 

<f to contrary proof of a satisfactory character." In Weiss v. So. Bethle- 

/ hem Borough, 136 Pa. 294, 20 Atl. 801, the question of the intention to 

dedicate was submitted to the jury, and they were instructed that a 
mere permissive use by the public of a piece of ground left open by the 
owner in front of his property, and used by him in his own business 
and for his own convenience, was not a dedication to public use and 
conferred no right upon the public as against the owner. The ju ry 
, ^w ere further told tha t the question whether or not there was a dedi ca- 
t ion depended upon the tacts m evidence aajo the op enin g of the lan d, 
the c haracter of the use by the publi c, the character of the property, 
Jix'^ the n ature of the land and its snrrmir]din crs^ ^UlLli' ^^^ other nrnim- 
7j^^*^ ^ s^nces i n the c jise^. and if they found that there was ^ah" iiil:ehtion to 

•yv*| ' dedicate on the part of the owner, they would be warranted in finding 
"Yl 1 that there was an actual dedication, and in that event their verdict 

V should be in favor of the defendant. 

A general statement of the doctrine applicable to this case is found 
in Dillon, ^Municipal Corporations (4th Ed.) § 639, as follows : "A 
street may be widened by the dedication of a strip of land adjoining it 
and such dedication may be shown by long use by the public and ac- 
quiescence in such by the owner. And if the street has been long used 
and built upon to a particular line, which has been acquiesced in by the 
adjoining owners, who have built and made improvements to corre- 
spond with siich line, such owners and the public acquire rights in con- 
sequence and one or more of such owners cannot afterwards change 
or narrow the street by showing that the original survey made the line 
of the street different from that which "had been long regarded, built 
upon and acquiesced in as the line of the street." 

I n the prese nt case , we think the question of dedication sho uld have 

been submitted to tne jury . The evidence showed a long use^oT the 

strip of ground in question by the public, as part of the pavement. 

_ Whether or not this was simply permissive, by the owner, and was ac- 

' companied by a course of conduct which would indicate a continued 

claim of ownership, was for tlie jury to determine. Whether the own- 




Ch. 1) MODE OF CONVEYANCE 177 

er of tfie_soil_gave up the n.'^p nf the strip to tjip pn1-»1iV^ wi'tlmm- qimiifj- 
c ation, o r \vlietherjie ever attempted in a ny way to li mit the rights of 
t^ public therein..were questions of fact." The court should have given 
to the jury an adequate definition of what facts or circumstances would 
amount to a legal dedication and it would then have been for them to 
find from the evidence and all the circumstances of the case, tlie ex- 
istence of facts to fit the definition. 

The fifth, sixth and seventh assignments of error are sustained. 

The judgment is reversed and a venire facias de novo is awarded.® 



Q^U^^Uh-^^4^ 



o-i^r" 



-^^ WORMLEY V. WORMLEY. J^ J- 

(Supreme Court of Illinois, 1904. 207 111. 411, 69 N. E. 865, 3 L. R. A. 

[N. S.] 481.) 

This is a Wll jn chance ry, filed in the circuit court of Kendall coun- 
ty on June 10, 1899, by the plaintiff in error, George D. Wormley and 
all of the defendants in error except John T, Wormley, (said de- 
fendants in error, except John T. Wormley, being ten in number,) 
as complainants, against defendant in error, John T. Wormley, as de- 
fendant. A general demurrer was filed to the bill. On January 4, 
1901, the demurrer was_ sustained. Subsequently on April 3, 1901, 
the bil l was dismisse d for wa nt of e quity, and the costs were taxed 
against the complainants below, and it was ordered that the defend- 

9 Not uncommonly it is snid that an adverse use of Innd for highway pur- /) 
p oses oy rnp nnhii f rnr thp^ppiinrl of flip statute of liinitatioiis will result In Xd- 
a highway being created |>y "prpspT-i^fti^n^ See Jennings \. Tisbury, 5 Gray 
('jnass.) 7:j (l!li55'). Prescription in this connection can hardly have quite the 
same meaning as in the case of the creation of pi-ivate easements, at least 
in so far as it implies a supposed lost grant. In this connec tion the pre- ^4- 

sumption is of ii past dedica tion. Thomas v. FordTHSTild. 34^," 52 Am. Hep. 

oisnssoi: "~ ^ 

There may be statutes directly applicable to the situation. In California, (jgS "/ /^T\ 
for instance, there is a statute t hat "all roads used as such fcr a period of ^—"^'^iV. \J^ 
more thii n \\\c v ears are highwavs T This statute was construed as in "the v ^"^*' 

nature of a statute of limitations. Bolger v. Foss, 65 Cal. 250, 3 Pac. 871 ^'K'{2^^ ^ 
(1884). There is a similar statute in Michigan, the period of time specified ^-^^-r* ^ 

being ten years. 2 Comp. Laws, § 4061. J.'he stat ute, however, docs not . — 

2J2I2liLto_a_use^_^^vhich is merely permissive. ^l^Hciney v. Township of Sodus, cJ ^"t/C^^^ 

131 Mich. 510, 91 N. W. 745," 59 L. R. A. 287' (1902). y^T^ 

The owner of a tract of land in the outskirts of a city had the same plat- 
ted into blocks, lots, and streets. A map was made, showing the arrange- 
ment, and lots were sold and conveyed with reference to the map. Some 
of the streets were opened and used. In proceedings by the city to have 
opened certain other streets shown on the map the owners of lots abutting 
upon such streets claim compensation. Are they entitled to any? See Quick- 
sail V. PhiladelDhia, 177 Pa. 301, 35 Atl. 609 (1896); HaiTington v. Man- 
chester, 76 N. li. 347, 82 Atl. 716 (1912) ; Mayor and City Council of Balti- 
more V. Frick. 82 Md. 77, 33 Atl. 435 (1895) ; Reis v. City of New York, 188 
N. Y. 58, 80 N. E. 573 (1907); State v. Hamilton, 109 Tenu. 276, 70 S. W. 619 
(1902). 

Aig.Pkop. — 12 



d 




v4 



,''f 



178 DERIVATIVE TITLES (Part 2 

ant below have execution therefor. The present writ of error is sued 
out for the purpose of reviewing the decree, so entered, which dis- 
missed the bill for want of equity. /?/? ^•.,/,/ 
In the bill, the orators therein bein£_ plaintiff in error, Gggrge D , 
Wormley, and ten other perso ns, who are defendants in error herein 
wTth the defendant in error, John T. Wormley, alleged that in Feb -_ 
ruary, 1839, and prior thereto and thereafter^one John H. Wormley 
was the owner in fee of a certain tract of eighty acres of land in said 
countv. and also was the owner in fee of other lands particularly de- 
scribed in the bill; that such other lands so described constituted 
i n all one-half acre ; that said one-half acre of land so described 
was generally known as t he "Wormley cemetery," and had been so 
known and recognized ever since the year 1839; that, in February 
and June of 1839, two of John H. Wormley 's re latives were bu ried 
in said one-half acre of land, that in 1845 a brother-in-law of his 
was biiried on said half acre; that in 1845 John H. Wormley, be- 
ing the owner of said one-half acre, and of other lands about the 
same whereon he resided, dedicated by words and acts snid half nrx e 
for a burying ground for the uses of the Wormley familv. and the ir 
relatives : Jhat ever sinc e J.8 39 said half acre has been used by t he 
Wormley fa mily , ^jldj^he neigjjhoriiptjd, for the uses of sepulture; 
that, since the year 1845^ there have been buried on said dedicated 
land many persons, the names of about thirty of whom are mentioned 
in the bill, being of the Wormley family, and relatives of orators; 
t hat monuments have been erected over the graves of many of saj .d 
d^ecedents, many of them by orators ; that orators, and other relatives 
of said decedents, have continued to protect the remains of those 
buried in said cemetery, and to preserve the identity and memory 
of their said relatives ; that orators have not in any manner neglec ted 
to preser ve the monuments, erected to indicate the identity and pr e- 
serve the memory of their said rp 1ativp<; nr trt giVp anH rnntmiie tO 
said cemetery the character and name of a burial ground, except 
so far as th ey have been prevented by John_ 1^. Wormley, the^de^ejid- 
antj that ttiere were~!hefi, at l:he time^T filing the bill, in said ceme- 
tery more than eighty graves, cared for and kept by orators, and other 
relatives of the deceased; tl iat John H. Wormley settled in Osweg o, 
i n Kendall county, several years before 1839. and resided prf ,a nd 
o wned the farm on which said cemetery i s located, from the tim e of 
su ch settlement until the time of his death about th e year 1890; that 
during all that time he recognized said cemetery, as the burial ground 
of his relatives and the neighborhood, and a ssisted in maintain inp- 
t he same as such;^ that, during his lifetime, he. with Qtlifr relati ves 
qt those buried m said cemetery, caused to be erected and maintained 
a suitable fence, enclosing said half acre dedicated by hinT~as a ceme - 
tery; that such fence was kept up by orators, and other relatives of the 
deceased, until prevented by the defendant in a violent and unlawful 
manner; that, upon the death of John H. Wormley. the defendant. 



Ch. 1) MODE OF CONVEYANCE 179 

T ohn T. Wormley.^s his son and heir, came into the ownership and 
p ossession of the farm , on which said cemetery is located, and still 
owns and possesses tlie same; that, for many years after his coming 
into such ownership of said farm, he recognized the said cemetery 
as the burying ground of and for the Wormley family and neighbor- 
hood, and t hat the sani^e had been dedicated by his father, John H. 
Wormley , _for such purpose s ; that said cemetery is located on said 
farm on the line of the Aurora and Oswego wagon road, a nd ingress 
a nd egress in and out of said cemetery can be had without in any way 
i nterfering with, or trespassing on, the lands or premises of the de - 
fendant, John T. Wormley J that lately said defendant has torn down 
the fence, surrounding said cemetery, and is pasturing cattle, horses, 
and swine therein ; t hat he has defaced and is defacing, the monum ents 
a nd desecrating the graves in said cemetery : that he threatens to 
s hoot and kill any persons, who attempt tofence said cemetery, or care 
for the monum PTitt; and g raves therein ; that he threatens to enter and 
remove the monuments therein, and to plow and cultivate the land 
therein ; that, by threats and force, he prevents orators, and other rel- 
atives of the buried, from replacing the fence or caring for the mon- 
uments and graves in said cemetery ; that orators fear that he w ill 
c arry jTJs_tlire ats into p\'Pl;'}^t^ an^ nnless re!=;l;r nined by the orderof the 
c ourt. The bill thereupon prays that John T. Wormley may be re- 
strained by injunction from defacing, or in any manner interfering 
with, the monuments and graves in said cemetery, or with orators, 
or any one of them, in fencing said cemetery and preserving the mon- 
uments and caring for the graves therein, or in any way interfering 
with the fence or fences of said cemetery, now or hereafter erected ; 
t hat. , u pon_a^n al he.nrm v ^^ it may be order e d and decreed that s aid 
descri bed one-half acre of land, known as the " Wormley cemetery ," 
has bee n dedicate d, t o the Wormley fa mily, and their relatives, and 
neighborhood contiguous thereto, as a burying ground; that said in- 
j unction may be made perpetual, and orators may have such oth er 
re lief as equity m^ y require , etc. 

MagrudEr, J. First — It is well settled in the United States, that 
ce meteries are among the purposes, for which land may be dedicated ; 
and it is held that, upon such dcdicaiiun, the owner is precluded trom 
exercising his former rights over the land. 5 Am. & Erig. Ency. of 
Law (2d Ed.) p. 784, and cases referred to in notes. 

It i s also well settled, t hat a court of equity will enjoin the owner 
o^ ^land from defacing, or meddling with, graves on land, dedicated to 
the public for burial purposes, at the suit of any party., having de- 
ceased relatives or friends buried therein Beatty v. Kurtz, 2 Pet. 
585, 7 L. Ed. 521; Davidson v. Reed, 111 111. 167, 53 Am. Rep. 613. 
In the case of Beatty v. Kurtz, supra, the Supreme Court of the United 
States, in speaking of property consecrated to cemetery purposes, held 
that the removal of the memorials, erected by piety or love to the 
memory of the good, are such acts as can not be "redressed by the 



180 DERIVATIVE TITLES (Part 2 

ordinary process of law. T he remedy must be so ug ht, if at all, in th e 
pr otecting power of a court of chancer y; operatmg by its injunc tion 
to "preser ve the repose of the ashes of tlie dead, and the religious sens i- 
bilities of the livin<^. " In Davidson v. Reed, supra, two persons, res- 
idents in the neighborhood of a public burying ground, having friends 
buried there, filed a bill to enjoin the party owning the tract of land, 
on which it was located, from defacing the grave, and to preserve the 
ground for the public use for burial purposes ; and it was there held 
that they could maintain the bill in their names, for the benefit of 
themselves, as well as if all others directly interested had joined. 

I t is also well settled, that no par ticular form or ceremony is n ec- 
^ essary to dedicate land for the purposes of a cemetery . All that need 

^ be shown to constitute such dedication is the assent of the owner, and 

the fact that the land is used for the public purposes, intended by the 
appropriation. Stak ing off ground as a cemetery and allowing burials 
. therein amounts to a dedication. An express setting apart of land" for"" 
"such a pUrpose by the owner may constitute a dedication of the land 
as a burial ground or cemetery. 5 Am. & Eng. Ency. of Law (2d 
Ed.) p. 784; 9 Id. p. 28; Hagaman v. Dittmar, 24 Kan. 42; Hayes 
V. Houke, 45 Kan. 466, 25 Pac. 860. It has been held tha t the noto - 
ri ous use of property for twenty years for burial p '^^'P'"'!^!^ wi*^^"' "^^ 
acquies cence of the owner affords presump tive ev idence of its ded i- 
catio n tor such purpo ses. Boyce v. Kalbaugh, 47 JMd. 334, 28 Am. 
Rep. 464. 

In Davidson v. Reed, supra, this court held that a dedication of 
land to the public for any public use may be shown by grant, by user, 
or by the acts and declarations of the owner, coupled with evidence 
of acceptance by the public; and that, where there was evidence of 
an intent to dedicate, no particular form or ceremony is necessary . 
In Davidson v. Reed, supra, it appeared that the owner of a quarter 
section of land as early as 1844 buried a child in a comer thereof, since 
which time the same had always been used by the people of the neigh- 
borhood as a public burying place, and the declarations of such owner 
showed an intent to devote the land to such use, and the subsequent 
owners of the quarter section of land made no objection to such use, 
but recognized the same as a public burial place ; and it was there 
held that these facts were sufficient to show a dedication of the land 
so used to the public for a place for the interment of the dead. 

In Alden Coal Co. v. Challis, 200 111. 222, 65 N. E. 665, we have 
■ recently hel^ that the Statute of Frauds does not apply to dedication of 
ground to the public, but that the same may be evidenced by acts and 
declarations without any writing, and t hat no particular form is nec- 
e ssary to the validity of the dedication , it being properlv a questio n 
of intention, and that a dedication mav be established by parol . See 
also Cincinnati v. White, 6 Pet. 440, 8 L. Ed. 452. In Alden Coal Co. 
V. Challis, supra, we also held that the acceptance necessary to com- 
plete such dedication may be implied from acts and from user; and 



Ch. 1) MODE OF CONVEYANCE 181 

that, wl ien the dedi cati on is beneficial or greatly c onvenient or np rp<;- 
s ary to the public, an "acceptance will be implied from slight ciixu m- 
stancgs^ 

By comparing the allegations of the bill in the case at bar, as the 
same are set forth in the statement preceding this opinion, with the 
allegations of the bill, passed upon by this court in Davidson v. Reed, 
supra, it will be found that the two cases correspond in all essential 
particulars. It appears from the allegations of the bill in the present J^ 

case that, during the lifetirrie of John H. Wormley, the original owner /' 

of the land dedicated for the purposes of the Wormley cemetery, _he 
r ecognized the half acre of groun d here in question as a cemetery for ^ I 
a ^period of about fl f ty^t i£__ ^ars", to-wit, trom l8>^9 to h is~5eath in 
1 ^90. During that time he not only buried his own relatives upon this 
half acre, and permitted others to bury their dead there, but he indi - 
cated h is- intention tojmake suchdedication. and to continue it, by pos- 
itive and open acts. He, with others who buried their dead upon the 
half acre, caused to be erected and maintained a suitable fence, en- 
closing such half acre. He permitted the persons, who buried their 
dead there, to erect monuments over them, and to protect and preserve 
the identity of the remains buried there. The bill alleges that more 
than eighty persons have been buried in the cemetery, and that their 
graves have been cared for and kept up by their relatives. John H. 
Wormley died in 1890, and the defendant, John T. Wormley, his son, 
for more than ten years after that date, recognized the half acre as 
a cemetery, and did nothing to interfere with its use as such, until 
about the time the present bill was filed. The bill also alleges that 
he has committed acts of depredation upon the cemetery by tearing 
down the fence surrounding it, and by pasturing his horses and cat- 
tle and swine therein ; and also that he not only threatens to kill per- 
sons, who attempt to re-build the fence around the cemetery, or care 
for the monuments and graves therein, but also threatens to remove 
the monuments erected to commemorate the dead, and to plow and 
cultivate the land therein. T he demurrer, filed by the defendant, ad - 
UTJts all these allegations of the bill to be true .. When the land de- 
scended to John T. Wormley from his father, he inherited it subject 
to the rights, which had been acquired in this half acre as* a cemetery. 
The assent of his father to its use for such purposes is clearly averred 
in the bill, and it is also alleged therein, and shown, that it was ac- 
cepted by the parties using it for the purposes, for which it was ded- 
icated by the owner. 

Under the facts and under the authorities applicable thereto, we 
are of the opinion that the court below erred in sustaining the d e- 
rm]rrpr_tn the biUr ^nd_t hat such demurrer should have be en pver- 
ruled.^" 

10 See Colbert v. Shepherd, S9 Va. 401, 16 S. E. 246 (1892). 



s 



182 DERIVATIVE TITLES (Part 2 

CASSIDY V. SULLIVAN. 

(Supreme Court of Nebraska, 1906. 75 Neb. 847, 106 N. W. 1027.) 

Albert, C. This is an appeal from a d ecree enjoinino^ the def end- 
a nts from maintaining a fence on an alleged public road. The defend- 
ant Babcock owns the sout hwest quarte r of the no rtTTu^est quar ter of 
a certain section of land, and his codefendant owns the southeast 
quarter of the northeast quarter of the section adjoining on the west. 
T he road extends north and south on the section line between t he 
t wo forty-acre tracts . That the d efgndarga, a short time before the 
suit was commenced, er ected a fence on the road is not disputed ; t he 
o nly controversy being the sufficiency of the evidence to show the ex - 
i stence of a public road. That the county board never made any or- 
der for the opening of the road is conceded. It does appear, however, 
that many years ago th e coun ty board entered an order decl aring all 
s ection lines- within tlie county public roa ds. But as this amounted 
to a reiteration oi section 46, chapter 78, Compiled Statutes 1905 (Ann. 
St. 6049), it was mere brutum fulmen, and, of itself, has no bearing 
on the question at issue. 

One contention of the plaintiff is that t he alleg ed road is a high - 
■ ... — . — ■ 1 — * 

way by dedication . The evidence seems to bear o ut this contention. 
It appears that for many years the travel to and from the Black 
Hills country was al ong trails i n the vicinity of this road. It does 
not appear to have been confined to any particular track, and as the 
county was largely unsettled s ection lines were di«;rporar£W j Although 
it was denied by the defendants, it sufficiently appears tliat^aijiLDSt 
2 years ago the defendant Babcock and one through whom the oth er 
defendant traces his title, and who then owned the Sullivan forty , 
f orthe purpose 6i inducing the public travel to follow the section lin e 
b etween their respective tracts, built fences and planted trees o n 
th eir respective sides of the section line, leaving a space about 66 fe et 
w ide for public travel, and that thereafter, until about the time of the 
commencement of this suit, the travel was confined to that space, 
which has ever since been used by the public as a highw ay .^ Snr h 
u se has been»uninterrupted, save that about a year before this suit wa s 
b egun one of the defendants placed a fence on the road, but was direc t- 
ed to remove it by the county attorney, and did so. It should be re- 
marked, however, that there is evidence tending to show that the use 
of the easement was interrupted several years ago by a fence which 
was maintained for some time. But the evidence on this point is 
conflicting, and we are not prepared to say that a finding against the 
defendants thereon is not sustained by sufficient evidence. Taken in 
i ts entirety the evidence satisfies us that the owners of the land, more 
t han 15 years ago, dedicated that portion now claimed as a public_ jx>ad 
t o the public , and the public at once accepted the grant, and, practi- 
cally speaking, have been in the uninterrupted enjoyment thereof ever 



it 



Ch. 1) MODE OF CONVEYANCE 183 

since. It is true, there is no evidence that the public authorities ever 
authorize^ any work on the road, or did any act indicating an accept- 
ance of the grant. But a dedication, in order to become binding; upon 
t he dedicator o rjijs^ privies in estate, need not be accepted by the p ub- 
lic_a utlK)rities , butjiiavJpejL^ceuted b ^^he g eneral^ ixiblic^ The gener al *= — 

p ublic accepts, as in this instance, by entermg upon the land and en - ^^•'^C^^J^jU*^ 
jo ying tl)p privil^cTp nff ered. in other words, by user . Streeter v. yiL'UyO, 
Stalnaker, 61 Neb. 205, 85 N. W. 47; Attorney General v. Abbott, 
154 Mass. Z2Z, 28 N. E. 346, 13 L. R. A. 251 ; Rees v. City of Chi- 
cago, 38 111. Z22\ Alden Coal Co. v. Challis, 200 111. 222, 65 N. E. 
665. 

Considerable stress is laid on the fact that the road in question 
is connected with no public road at the south, and that it is some 80 
rods from the north line of the defendants' lands to a public road with 
wliich this road would connect at the north ; in other words, that th is 
r pad is disconnected from all other public roads. In view of the en tire 
e vidence , th-lt ^^^^ '"'^'^ "'"^ '^pp''in Lgignificanc e. The travel from other 
public roads to this road is over private property and with the permis- 
sion of the owners, who, unlike the defendants, are not shown to 
have dedicated a right of way for the use of the public. When such 
permission is withdrawn, if the travel over such lands is merely per- 
missive, the authorities may take the proper steps to establish highways 
connecting with this road, or, if the road is not required, the proper 
steps may be taken to relieve the defendants of the burden of the 
easement. But that has nothing to do with this case. The evidenc e 
sh gws that t he road is a public highway, and so long as it remain s 
s uch the detcndants have no right to obstruct it; , 

It is recommended that the decree of the district court be affirmed. 

DuFFiE and Jackson, CC, concur. 

By the Court : For the reasons stated in the foregoing opinion, the 
dec ree of the district court is affi riTied. 

» DOWNING V. COATESVILLE BOROUGH. 

(Supreme Court of Penn.sylvania, 190G. Iil4 Pa. 291, 63 Atl. 696.) 

Tr espass to recover dam ages for personaHnjurics. Before Hemp- 
hill, RjT ^"~ ~' ' 

From the record it appeared that plaintiff was Injured b y falling 
i n a hole on a sidewalk in the borough of Coatesvill e. There was evi- 
dence that the portion of the street in which the hole was located 
had been t hrown open to pub lic use by a former owner of an adjo in- 
i ng property, but there was no evidence that the strip in question ha d 
been accepted as a public stree t by the bor ough. • 

The court entered a compulsory nonsuit which it subsequently re- 
fused to take off. 

E rror assigned was refusal t o take off nonsuit. 



184 DERIVATIVE TITLES (Part 2 

P^R Curiam. The learned judge below conceding that throwing 
open a strip of his lot as a part of a street to the public for^ number 
of years, r nay amount to dedicatio n to public use as against the owner, 
nevertheless states accurately the rule t hat such action by the ow ner 
>^ c annot of itself make the land part of the street so as to bind the m u- 

nicipality . Someactofaccept^ce on the part of the municipality 
must be shown beToreiT'caii be held liable for failure to keep in re- 
pair, etc., citing In re Alley in Pittsburg, 104 Pa. 622 ; Com. v. Moore- 
head, 118 Pa. 344, 12 Atl. 424, 4 Am. St. Rep. 599, and Steel v. Bor- 
ough of Huntingdon, 191 Pa. 627, 43 Atl. 398. 

Applying this rule to the facts before him the judge said: '^ 
ou r_^case there was no evidence whatever of the acceptance of this sid e- 
w alk by the borough by either act or deed ; i t a pparently was thrown 
o pen to the public street by Miss Perkins tor the r^nv^^^'^nrf ?"'^ 
ac commodation of her tenants, for on her property immediately north 
wHere she resides, she still retains her fence along the eastern side of 
the roadway." 

Tliis amply sustains the nonsuit. Judgment affirmed.^* 



OGLE V. CITY OF CUMBERLAND. 

(Court of Appeals of Maryland, 1899. 90 Md. 59, 44 Atl. 1015.) 

ScHMucKER, J. This case was instituted by the appellant to re- 
cover damages from the city of Cumberland for personal injuries sus- 
t ained by him from falling into a ditch or sewer at the point wherTi t 
c rossed a road w hich he contends was a public street of tliat city. The 
facts ot the case are substantially as follows : 

Prior to the year 1887 persons and vehicles having occasion to pass 
in either direction between Creek street, in the city of Cumberland, 
and the basin of the Chesapeake & Ohio Canal, were in the habit o f 
c rossing in a nsarly direct line over the land of the canal company l y- 
i ng between the basin and the corner of Creek and Canal stre ets- 
Early in 1887 the West Virginia Railroad Company acquired this land 
from the canal company by condemnation , and e rected trestl es and 
other structures upon it, which prevented its use as a roadway, and 
thus made it necessary to provide a new way of access to the canal ba- 
sin from the corner of Creek and Canal streets. In the condemnation 
proceedings by which the railroad company acquired this land, it was 
agreed in the presence of the jury, and set forth in the return of the in- 
quisition, t hat another road, 24 feet wide, extending over the co ndemned 

11 In King v. Leake, 5 B. & Ad. 469 (1833), a parish was held properly con- 
victed under an. indictment for the nonrepair of a road, though there had 
been no acceptance beyond the public use thereof. The Highway Act of 1835 
(5 & 6 Wm. IV, c. 50, § 23), however, prevents the liability of the parish to 
repair from arising until assent has been given as prescribed. See Cabab^ v. 
Walton D. C, [1914] A. C. 102. 



Ch. 1) MODE OF CONVEYANCE 185 

l and from Creek street near its intersection with Canal street to the ba- 
sin, sho uld be "kept open for the use of the canal and the public for 
passing for all purposes for which a public road is commonly used to 
and between Creek street and the canal." ■ This new road crossed the 
railroad track by passing under the trestle which supported the track, 
and just before passing under the trestle the road crossed the ditch o r 
sewer into which the appellant fell when he was injured . The appellant 
kept a saloon in a house near the basin, which he rented from the canal 
company! He was in jured by falling into the ditch after dark on the 
evening of February 1, 1894, as he was gomg from Creek street along 
the new road towards his saloon. He s ued the citv of Cumberland for 
damages , alleging that this new road was a public street, which it was 
the duty of the city to keep in repair, but that it had negligently been 
permitted to be in a dangerous condition, etc. There never was any 
grant to the city of the new road as a street, nor was there ever any 
formal acceptance by the city of its dedication to public use, but the' 
appellant relies upon the facts about to be mentioned as amounting to 
an i mplied acceptance by the cit y : In January, 1891, the city council, 
in response to a petition addressed to it by the appellant, o rdered a li ght 
t o be placed "at or near the railroad crossing under the trestling- of the 
\ yest Virginia Rai l road leading to the towpath ," and appointed a com- 
mittee to execute the order. This committee, finding a light already 
located within 50 feet of the place where the road crossed under the 
trestle, advised that this lamp be moved into such a position as would 
throw its light upon the crossing under the trestle; and the council 
ordered it to be done, but it had not in fact been done when the acci- 
dent to the appellant occurred. The ditch into which he fell had fo r 
many years carried the surface water from Creek and other stree ts 
d own to the canal basin, and on one or more occasions prior to the ac- 
cident the employes of the city had been seen to clean out the ditch, 
and scrape the surface of the streets which it drained. In Novembe r, 
1 8S6, the city council passed an ordinance accepting an offer of th e 
r ailroad company to locate its freight depot so as to occupy a po rtion o f 
the east side of the bed of Canal street at and near its intersection with 
Creek street, u pon condition that the railroad companv would give t o 
t he city sufficient land on the west side of the street to maintain its 
original width. 

The court below being of the opinion that none of the transactions 
appearing in evidence were legally sufficient to show an acceptance by 
the city of Cumberland of the 24-fcot road on which the accident oc- 
curred, as a public street, granted the prayer of the defendant, taking 
the case from the jury, and the plaintiff appealed. 

T here_can be no question that the facts of this case establish a ded i- 
cation to public use by the railroad companv of the road upon which 
t he appellant was injured . As between the owner of the land covered 
by the road, and the public, the latter were entitled to use it as a high- 
wa}^; but that did not of itself impose upon the city the obligation to 




186 DKRivATivE TITLES (Part 2 

keep the road in repair, nor make it liable for accidents occurring from 
the defective condition of tlie road. Before the appellee can be held 
liable for tlie iniurv for which the present suit was institu ted, it mus t 
a ppear tha t there h ad been an acceptance by it, through the acts of its 
authorized ^public departments or officials, of the road on which the ac- 
c ident happene d, as one o j its p ublic streets. Kennedy v. Mayor, etc., 
65 Md. 520, 9 A'tr234, 57 Am. Rep. 346; State v. County Com'rs of 
Kent Co., 83 Md. Z17 , 35 Atl. 62, 33 L. R. A. 291 ; Valentine v. City of 
Hagerstown, 86 Md. 486, 38 Atl. 931 ; 2 Dill. Mun. Corp. § 642. These 
authorities hold th at the acceptance of a street by a municipality "ma v 
b e either express, and appear of record, or they may be implied fr om 
r epairs knowingly made or paid for by the authority which has the leg al 
power to adopt the street or highway, or from long use by the publi c." 
They also hold that, when public use is relied on to establish the accept- 
ance, there must have been an uninterrupted use by the public fQ£ _at 
l east 20 year s, and such use for a less time will be insufficient. 

It is not contended in the present case that there has been an express 
municipal acceptance of the alleged street, or a public use of it for more 
than 20 years ; nor is there, in our opinion, proof of any acts or transac- 
tions on the part of the city or its authorized officials, in reference to it, 
affording proper evidence of an implied acceptance. Certainly the oc- 
casional cleansing of the ditch, and the scraping of Creek and the other 
streets which it drains, by the employes of the city, can have no im- 
portant bearing upon the subject; f or it appears from the evidence t hat 
t he ditch had been in exic;fpnce_ for 40 years before the road wa s 
opened^ Nor is the fact that the city council were willing to grant the 
appellant's request to have a light placed near the crossing of the road 
under the railway trestle important. The appellant himself, although 
he offered the facts just alluded to in evidence, did not strongly rely 
upon them in argument ; but he claimed that the leaving open by the 
railroad company of the new road, in its condemnation proceedings, 
and the passage shortly thereafter by the city council of the ordinance 
allowing the railroad company to use a portion of the bed of Canal 
street, m ust be taken as p arts of a co mmon scheme to a ccommodate 
both the railroad company and the city, from which an ac"ceptance by 
the latter of the new road as one of its streets is to be implied. 

An examination of these two proceedings makes it quite plain that 
this contention of the appellant c annot be maintain ed. Each of the two 
proceedings is complete in itself, and neither one refers to, or is de- 
pendent upon, the other. The condemnation proceedings took away 
from the canal company the land over which access had theretofore 
been had to its wharf and basin from Creek street, and the new road 
was simply provided by the railroad company in lieu of the one taken 
away. The city was not a party to the conde mnation proceedings, nor 
does the former road over the condemned land appear t6 hav<i..igt^ r 
been accepted bv the citv as a stree t. The ordinance in reference to 
Canal street fully covers the matter to which it relates, and requires 



Ch. 1) MODE OF CONVEYANCE 187 

the railroad company to give to the city additional land on one side of 
Canal street in lieu of the portion on the other side of the street to be 
occupied by the depot. Further, t his ordinance, on its face, recites that , 
w hen its terms have been carried out, "the width of said street f or traf- 
ficjHi rposes will be increased 33 per cent . ' 

The record fails to disclose any such acceptance by the appellee as 
the law requires of the road on which the accident to the appellant oc- 
curred, and therefore the court below properly took the case away from 
the jury. The j udgment will be affirmed, w ith costs.^^ 

IX. Release 

BLACKSTONE'S COMMENTARIES. 

Releases; w hich are a discharge or a conveyance of a man's right in 
l ands or tenements, to another that hath some former estate in po s- 
session. The words generally used therein are "r emise d, rekased, and 
fo rever quitclaim ed." And these releases may enure either/1. JBy way 
of enl^j;^^^ig^^_^r} ^_fi stg^te, or enlarger Testate: as if there be^^nant for 
life or years, remainder to another in fee, and he in remainder releases 
all his right to the particular tenant and his heirs, this gives him the 
estate in fee. But in this case the relessee must be in possession of some 
estate, for the release to work upon ; for if tliere be lessee for vea rs, 
a nd before he enters and is in his possession, the lessor releases to him 
all his right in thexeversion such release is void for want of possessi on 
i n the relessee .X2.y^V way of passing an estate, or mitter Testate: as ^J-^'-^-'i ^ 
w hen one of two coparceners releaseth all her right to the other, this 
passeth the fee-simple of the whole . And in both these cases there 
must be a pr ivity of est ate between the relessor and relessee ; that is, 
one of their estates must be so related to the other, as to make but one 
and the same estate in \^\Y3^yr>y way of passing a right or mitter le 
droit : as if a man be disseised, and releaseth to his disseisor all b is 
r ight, iTereby the disseisor acquires a new right, which changes 
the quality of his estat£.^and renders that lawful which before was tor- ^ > 

tious or wrongfuL/^4>.xCy way nf ^vtingni<;hnipnt- as if my tenant for J^^^^<<^ 
life makes a lease to A for life, remainder to B and his heirs, and I 
release to A ; this extinguishes my right to the reversion, and shall 
enure to>fe< advantage of B's remainder as well as of A's particular 
estate./SyBy way of entry and feoffment: as if there be two joint 
disseisors, and the disseisee releases to one of them, he shall be sole 
seised, and shall keep out his former companion ; which is the same in 
eft'ect as if the disseisee had entered, and thereby put an end to the dis- 
seisin, and afterwards had enfeoffed one of the disseisors in fee. And 

12 See Arnold v. City of Orange, 73 N. J. Eq. 2S0, 66 Atl. 1052 (1907), where 
the construction of a sewer in a dedicated street by direction of a village 
ordinance was deemed suthcient to show acceptance. 





DERIVATIVE TITLES 



(Part 2 



eupon we may observe, th at when a man has in himself the po sses- 
ion of lands, he must at the common law convev the freehold by feoff - 
ment and livery ; wlji ch rnak gs ^a notorietyLJn the _countr j ^ : but if a man 
has only a right or a future interest, he may convey that right or j ,n- 
l erest by a mere release to him that is in possession of the land : for 
the occupancy of the relessee is a matter of sufficient notoriety already. 
Book 2, *p. 324." 



X. Confirmation 

BLACKSTONE'S COMMENTARIES. 

A confirmation is of a nature nearly allied to a release . Sir Edward 
Coke defines it to be a conveyance of an estate or right in esse whereby 
a voidable estate is made sure and unavoidable, or whereby a particu- 
lar estate is increased : and the words of making it are these, "have 
given , granted , ^ ratified , _appro've d, and confirmed." 

Book 2, *p. 325.^* ' 



XI. Surrender 



COKE UPON LITTLETON. 

"Surrender," sursum redditio, properly is a yielding up an estate f or 
l ife or years to him that hath an immediate estate in reversion or r e- 
mainder . _vvherein the estate for life or years may drown by mut ual 
agreement between them.^ ° 

y/^^3^/The co pimon modern quitclaim deed is an outgrowth of the common-law 
cj eTease. Generally the quitclaim deed has been enlarged into a primary or 



original conveyance. It s operation, however, is limited to the intpi-{^ , <;|- whir h 
t he grantor has at the time of~tGe execution of the dee d. 

1* In Boquillas Land & Cattle Co. v. Curtis, 213 U. S. 339, 29 Sup. Ct. 493, 
53 L. Ed. 822 (1909), it was contended that a confirmatory patent from the 
United States enlarged the rights of a grantee from one of the Mexican 
states. The court said: "But, while it is true that in Beard v. Federy, 3 
Wall. 478, 491, 18 L. Ed. 88 (1865), Mr. Justice Field calls such a patent 
a quitclaim, we think it rather should be described as a confirmation in a 
strict sense. 'Confirmation is the approbation or assent to an estate already 
created, which, as far as in the confirmer's power, makes it good and valid ; 
so that the confirmation doth not regula rly crea te an e state; but yet such 
words may be mmgted m the cOhfil'ma[loii,-^gnriiray~cFeate~^nH"'eiilar'ge an es - 
tate-i but tliat is by tne torce or sucn words tnat are for eign to the biisTness 
of confirmation? wiiDerr, Tenures (o. it Is not to be underst(X)d that \vhen 
the United States executes a document on the footing of an earlier grant by 
a former sovereign, it intends or purports to enlarge the grant." Per 
Holmes, J. 

13 See Heroy v. Reilly, 84 N. J, Law, 671, 87 Atl. 112 (1913). in which su it 
was brought against a lessee on a contract made with the plaintiff, whereb y 
the le:;see agreed in case, or a "saie. assignment or transter'^ of the term to 
pay oyer to the plaintiff one-third of the net profit from such'fgale ot trau s- 
fgri__^The lessee's administratrix had entered into an arrangement with the 



CIl. 1) MODE OP CONVEYANCE 189- 

A surrender properly taken is of two sorts, viz., a surrender in deed . 
or_b^Ljex£ress_ words, (whereof Littleton here putteth an example,) and 
a s urrender in law w rought by consequen t by ope r ation of law^ Little- 
ton here putteth his case of a surrender of an estate in possession, for a 
right cannot be surrendered. And it is to be noted, that a surrender 
i n law is in some cases of greater force than a surrender in deed . As 
if a man make a lease for years to begin at Michaelmas next, this fu- 
ture interest cannot be surrendered, because there is no reversion 
wherein it may drown ; but by a surrender in law it may be _drowned. 
A s if the lessee before M ichaelmas take a n ew lease for years either t o 
b egin presently, or at Michaelmas, this is a surren der in law of the 
f ormer lease . Fortior et asquior est dispositio legis quam liominis. 

Also there is a surrender without deed, whereof Littleton putteth 
here an example of an estate for life of lands, which may be surren- 
dered without deed, and without livery of seisin ; because it is but a 
yielding, or a restoring of, the state again to him in the immediate re- 
version or remainder, which are always favored in law. ^ And there 
is also a surrender by deed: and that is of things that li^ jn grmii- , 
whereof a particular estate cannot commence without deed , and' by 
consequent the estate cannot be surrendered without deed. But in the 
example that Littleton here putteth, the estate might commence without 
deed, and therefore might be surrendered without deed. And albei t 
a particular estate be made of land by deed, vet may it be surrendere d 
without deed, m respect of the nature and quality of the thi rfg demi^^d^ 
because the particular estate might have been made without deed ; and 
so on the other side. If a man be tenant by the curtesy, or tenant in 
dower of an advowson^ rent, or other thing that lies in grant ; albe it 
t here_ the estate begin without deed , yet in respect of the nature and 
quality of the thing that lies in grant it cannot be surrendered witho ut 
deedL. And so if a lease for life be made of lands, the remainder for 
life ; albeit the remainder for life began without deed, yet because re- 
mainders and reversions, though they be of lands, are things that lie 
in grant, they cannot be surrendered without deed. See in my Reports 
plentiful matter of surrenders. 

337b, 338a.^° 

lessor whereby the former " waived , gm'tclnlmpd an d surrendered" all rights 
to a renewal of the lease, and all rights by virtue thereof, and agreed to 
"a sslgi^. sublease and pnt th e lessor i\] fi]]i fontrnl " retaining the right to 
c ollect rent.< un t'TTlie date of the exni ration of the lease. The pli^intiflf 
claimed that this arrangement entitled him under his contract to recover one- 
third the profit made thereby. 

16 See the Statute of Frauds, § 3. supra, p. 157. 

By the Real Property Act of 1S45 (St. 8 & 9 Vict. c. lOG, § 3) it is provided 
that surrenders of estates other than those which might by law be created 
without writing, shall be void at la^, unless made by deed. 



190 DERIVATIVE TITLES (Part 2 

LORD WARD v. LUMLEY. 

(Court of Exchequer, 1860. 5 Hurl. & N. 87.) 

Declaration. — That the plaintiff bY_de£d^ated the 6th May, A. D. 
1856, let and demised to the defendant all that building called "H er 
Majesty's Theatr e." situate in the Haymarket, in the county of Mid- 
dlesex, for the term of four years and nine calendar months, to be 
computed from the 25th day of March then last mentioned, at and un- 
der (amongst other rents) the rents following, that is to. say, tlie rent 
of il934. 14s. for the first year of the said term, and the yearly rent 
of £6275. for every of the second, third, and, fourth years of such 
term, and the sum of i4706. 5s., for the last nine calendar months 
of the said term, such rents to be payable beforehand, or one quarter 
in advance, by four equal quarterly payments on each of the first four 
years of the said term. T hat after the making of the said deed, t he 
de fendant entered into and upon the said premises, for the said term , 
and afterwards, during said term, to wit, on the 21st June, A. D. 185 8. 
the sum of £4569., of the rent aforesaid, for three quarters then 
elapsed, became and was due and owing from the defendant to the 
plaintiff, and the same is still in arrear and unpaid. 

Plea. — That the said deed, by which the plaintiff demised the said 
premises to the defendant, was made between the plaintiff and th e 
defendant , and was sealed with the seal of the defe ndant ; and the 
defendant never was in any way liable to pay to the plamtitt the said 
rent or any part of it except under and by virtue of covenants made 
by the defendant with the plaintiff, and contained in the said deed ; 
which covenants bound the defendant to pay the said rent to th e 
p laintiff at the times and upon the terms in the declaration particu larly 
mentioned ; and the defendant never entered upon or occupied the 
said premises, or any part thereof, except under the said deed so made 
between the plaintiff and defendant, and sealed with their seals as 
aforesaid, and containing the said covenants. That after the mak ing 
of the said deed, and before this suit, the said deed was and now is 
v^holly c ancelled by and with the assent of the plaintiff and of th e 
defendan t; and also all th e est ate, t erm , and intere st of the defendant 
in the said premises was duly surrendered to the plaintiff Ijy act an d 
o peration of law, a fter the said r ent became due under the said cov e- 
n ants as atoresaid ana petore tnis su it. 

Demurrer and joinder therein. " 

Martin, B. We are all of opinion that the plea is bad. When a 
man demises land for a term of years, reserving to himself a rent, 
the effect of it is t o create two estates , viz., the e state of the lesse e. 
and the reve rsion of the lessor , and The rent is incident to the rev er- 
sion. When the day of payment arrives, the rent still remains an- 
nexed to the reversion. Her e, the q u estion is w hether the simply ca n- 
celling a lease destroys thelfessor's right of action tor the recovery 



Ch. 1) MODE OF CONVEYANCE 191 

of the rent, I am of opinion that it does not, because the cancelling 
a lease d oes not destroy the estates already vested or their incident s. 

W ATSO N, B. I am of the same opinion. Where the contract arises 
from the deed itself, and the deed is destroyed, no action can be main- 
tained in respect of it. But this case is very different, for here, upon 
tli (;^ .^ypmtinn nf the deed, there p ^gg'^d ^^'''^''■i thf! ^ssor to tlie lessee 
a n estate which was not sffpr^^d by the rancellation of the lease . The 
lessee holds the estate subject to the rent which is incident to the re- 
version in the lessor. According to the argument for the defendant, 
he may hold the estate without payment of rent. But the authorities 
ar e clear that the cancelling a deed does not divest the estate ot t he 
l essee ^^ or deprive the lessor of his right of action upon the demi se. 

Martin, B., added : The Lord Chief Baron, who has left the Court, 
requested me to say that he is of tlie same opinion. 

J udgment for the plaintiff.-^ ^ 



ALLEN v. JAQUISH. 

(Supreme Court of New York, 1839. 21 Wend. 62S.) 

This was an action of ejectment , tried at the Delaware circuit in 
May, 1837, before tlie Hon. James Vanderpoel, then one of the circuit 
judges. 

On the 25th August, 1834, an agreement under seal was entered into 
by the plaintiff and John Jaquish, Junior, whereby the p laintiff bound 
himself to f urnish a mill on a certain stream and as much timber a s 
could be cut and sawed into lumber and manufactured into shingl es 
bv Taguish during ten years next ensuing the date of the agreem ent, 
from certain specified lots ; to keep the mill in rep air, and withm one 
year to m ake a good road from the mill to the river Delaware — giving 
by the agreement imr nediate possessio n to Jaquish of the mill, mill-lot 
and house, and a uthorizing him to clea r as much land as he saw fit. 
Jaquish on his part agreed to erect two shingle machines and put 
them in operation in the mill by the 1st June, 1835, to keep them in 
repair or supply their places, and to saw as much lumber and manu- 
facture as many shingles as could be made during the stipulated time ; 
for which privileges he agreed to leave at the mill one-third of all 
the lumber and shingles which should be manufactured, ^y an ag ree- 
m gnt endorsed on the above instrument, the plaintiff authorized T a- 
q ui.sh to have a' jack made at the expense of the plainti ff. In October, 
1835, another agreement in writing, but not under seal, was signed by 



17 See Beidler v. Fish. 14 111. App. 29 (1SS3); Brewer v. B'ld'g Assoc, 16<i 
111. 221, 46 N. E. 752 (1897). 

A^ term is properly oi-Piifpf] hy pni-n l ; may it be surrendered by paro LI See 
Logan V. Barr, 4 Har. (Del.) 546 (1S47)'; Mckinney v. Reader. 7 ^Vatts (Pa.) 
128 (18.38) ; Ross v. Schneider, 30 lud. 423 (1S68) ; Smith v. Devlin, 23 N. Y, 
363 (1861). 



192 DERIVATIVE TITLES (Part 2 

John Jaquish, Jun., whereby, after reciting the former agreement 
on his part to put up two shingle machines in the mill of the plain- 
tiff, he stipulated as follows : " I do hereby engage, if I do not put u p 
t he said shi ngle machine s in the said mill and get them in operatip n 
by the first day of |une, 1836^ I will then reli nquish the contrac t and 
gi ve up every thing I have done, and le ave all things on the pre mises, 
provided I shall be entitled to~l-eceive two-thirds of all the lumber 
sawed at the mill until the said first of June, 1836." The shingle ma- 
chines n ot being erected and put into operation b v the first day of 
June, 1836, the pl aintiff caused a notice to quit to be served on Joh n 
J aquish, Jun., on the tenth day of Tune . A similar notice having two 
days before been served upon Cornelius Jaquish and John W. Jaquish, 
who were made d efendants jointly wit h John Jaquish, Jun., in this 
action, which was commenced shortly afterwards ; the declaration be- 
ing returnable at July term, 1836. 

The plaintiff having rested, the def endant's counsel asked for a no n- 
s uit on the following ground s : 1. That the suit was prematurely 
brought under the notice to quit; 2. That the plaintiff had failed to 
shew performance of the stipulations on his part as contained in the 
contract, as to the making of a good road, &c. ; 3. That there was no 
proof of a joint possession of the premises by the defendants in tlie 
action; and 4. That the second agreement was void, being without 
consideration and not sealed. The j udge refused to nonsuit the p lain- 
tiff. The defendants then offered to prove non-performance of sun- 
dry" stipulations in the contract on the part of the plaintiff; which evi- 
dence being objected to, was rejected by the judge. The evidence of 
a joint possession of the premises by the defendants resting in cir- 
cumstances, the counsel for the defendants asked the judge to require 
the plaintiff to elect, against which of the defendants he would pro- 
ceed, insisting that a joint possession had not been shewn, or to non- 
suit the plaintiff. The judge refused to do either. Whereupon the 
cause was summed up and the i urv found a verdict for the plainti ff 
a gainst all the defendants ; who now moved for a new trial. 

CowEN, J.^* [After ruling against the defendants tlie minor ob- 
jections raised in the case, such as that a joint possession was not 
shown in the defendants, and that the evidence offered of nonper- 
formance by the plaintiff of the stipulations in the first contract on 
his part agreed to be performed ought not to have been rejected, tlie 
judge proceeded as follows:] 

T he second ag reement was, I think, valid. One objection raised on 
the argument wa~s, that tHe agreement not being under seal, it should 
have expressed a consideration. It was evidently intended as a modi- 
fication of the firs t agre ement or leas e! it was signed by the defend- 
ant, John Jaquish, Jun.7 the original lessee, and accepted by the plain- 
tiff on account of the delay and non-performance; perhaps, of both 

ISA portion of the opinion is omitted. 



Ch. 1) MODE OF CONVEYANCE 19S 

parties. J^hn Jaquish, Jun., deeming himself most in fault, aoreed , on 
ac count ot his non-pertormance, mentioned in his second agreement , 
to repair the omission by a given day, or relmquish his n rip-jnal lea^. 
He meant the last contract should operate as a part ot the first; and 
the motive or consideration is plainly enough collectable from the 
face of the new contract. He was to have a share of tlie lumber sawed 
at the mill in the mean time, and the plaintiff had been damaged by 
the breach. H ere are two concurring considerations, the satisfactio n 
of damage to the plain Uft, and a clear right or benefit acquired by 
J ohn Jaquish, |um , It was not necessary that these should be ex- 
pressly mentioned as the consideration. It is enough that they are 
obviously so in fact, from the recital and nature of tlie instrument. 

If the lease became void, in consequence of not fulfilling the second 
agreement, or, if the latter operated as a surrender, the case was not 
one in which any noti^e^tojiuit was necessary. T hat is never re - 
q uired where the p nrJMes have bv mutual agreement fixed tlie terms 
o n which the lease is to terminate. The lessee may always waive the 
right to require notice ; and for the same reason, t he right never ar ises 
w here a lease for years exoi fpfs 1-»y ^^"'^ ^^n h'lnitation. or the pa rties 
Viavp ritheri ^yit^p made an end of it. Conventio vincit legem. If a 
party has, in any form, transferred ajl his interest to another, he is 
b ound to quit the pos session. I f he do not, an ejectment lies aga jnst 
h im immediately. ^ \\ 

(' The important question is, in w.hat way did the second writing be- Q^ "J j 
tween these two parties operate ?y Did it enure as a mere prom ise, a ^"-^ — 
d efeasance , or modi fication of the lease; o r was it a surrender? If 
a mere promise, ejectment will not lie upon it; but only an action of 
assumpsit. To warrant the present action, therefore, it must have 
operated to extinguish the lease, or pa ss the interest o f the lessee to 
the plaintiff. * * * 

The second agreement thus failing to operate as a defeasance, the 
next question is, w hether it could operate as a contingent surrend er, 
i t^ being in the nature of a re-demise_. There is no doubt that eithe r 
a surrender or demise may be etfec"ted by a simple writing not sea led. 
M agennis v. ' MacCuUogh, Uilb. Kq. Cas. 235, 6; Co. Litt. 338, a, note 
(1); Farmer v. Rogers, 2 Wils. 26. The^erative words of, ,a ,sur- ^ 

render are, "hath surrendered, granted and yielded up." 2 Black. 
"Cbmm. 326 ; Co. Litt. 337, b ; Woodf . Land, and Ten. 185 (Lond. Ed. 
of 1804). There is no doubt, however, that a surrender may be ef- 
fected by equivalent words ; and when complete, it is as it were a 
re-demise. Woodf. Land, and Ten. (Ed. before cited) 186; Perk. sec. 
607. I t may be made upon condition; that is. to become void upon 
condition. Perk, sec. 624. And though no case goes so far as to say 
that a surrender may be made to become good upon condition prece- 
dent, yet there seems to be no objection to that in principle, if the 
interest surrendered be not a freehold. That cannot, in general, be 
Aig.Pkop. — 13 




\^^^ 



194 DERIVATIVE TITLES (Part li 

granted so as to take effect in future; but a term for years can. 
T he surrender of a term to operate in futuro is equa lly free of the 
objection . Con tracts of parties, whether by deed or otherwise, sha ll 
always take effect a ccording to their rea l in tent, if that be possib le, 
c onsistently with the rules of law , in VVhitlock v. Horton, Cro. Jac. 
91, Mary Milton, by indenture between her and the defendant, cove- 
nanted, granted and agreed, that tlie defendant should and might, have, 
hold and enjoy, from and after the death of E. W. the moiety of cer- 
tain lands, for sixty years, &c. And it was held that tliese were apt 
words to make a lease for years, and might enure as a lease in futuro. 
Richards v. Sely, 2 Mod. 79, is a like case. And there, Maynard, 
Serj., conceded that the word "covenant" would of itself make a lease, 
which is adopted and repeated in Woodf . Land, and Ten. 7 (Lond. ed. 
1804). The latter author, at p. 6 says it is a general rule, " that what- 
e ver words are sufficient to e xplain the intent of the parties, that on e 
shall divest himself of the possession, and the other come into it, f or 
s uch a determinate time, whether they run in the form of a license , 
c ovenant or ag ; re£ment, are of themselves sufficient ; and will, in con - 
s truction of law, amount to a lease for vears. as eff'ectually as if th e 
most proper and pertinent words had been made use of for that pur - 
pose." Otherwise of the most apt words, if they appear to be only 
preparatory to a future lease to be made, Bac. Abr. Leases, &c. (K), 
S. P. We have seen that Woodfall, in another place, speal<s of a sur- 
render operating as of the nature of a re-demise. Suppose the owner 
of land promises another in writing, for good consideration, that on 
the other paying so much, he, tlie owner, will relinquish and give up 
the land to the promisee for ten years at such a rent. Is there a 
doubt, that on paying the money, the promisee might enter or bring 
ejectment as a lessee? I should tliink not. The case at bar is qui te 
a s strong; for th e lessee agrees that if he failto perform, he ^v'l' ^<^- 
l inquish his lease and give up everything. No farther act is spoken 
of! The meaning was t o annu l and ren der the lease inoper ative ; and 
although it could not enure as a defeasance or as a demise, yet i t ma y, 
I think, enure and take effect as a surrender, on the contingency ha p- 
pening. Test the case by the rule in Woodfall. Can any one doubt 
that the lessee intended to divest himself of the possession, and let 
tlie lessor take it for the whole remaining term of the lease? In tliis 
view the verdict at the circuit is sustainable, and a new trial must be 
denied. 

New trial denied.^ " 

10 Mundy v. Warner, 61 N. J. Law, 395, 39 Atl. 697 (1S9S), ace. 'J npi 
vg pr jStioDsjlv of oijiiiion that there caunot be a sn rvppflpr tn fs^kp. plnpp in 
futuro '' I'arke, B., in Doe (i."'AluiTell v. Milwara, 3 M. & W. 328 (1S3S). " 
"SeeTIarris v. HifscocU, 91 N. Y. 3i0 (1883), as to suHlciency of language to 
accomplish a surrender. 



Ch. 1) MODE OF CONVEYANCE 195 

IVE'S CASE. 

(Court of Common Pleas, 1597. 5 Coke, 11a.) 

Ive br ought an action of waste against Sammes , and counted of a 
lease made to the defendant of the manor of Tottenham in the county 
of Essex for 30 years; the defendant pleaded, non dimisit; and by 
special verdict it was found, d iat the lessor made a lease for 30 yea rs 
of the said manor, except all woods and underwoods growing or being 
o n the manor : and afterwards m ade a second lease to the same lessee 
of a ll the woods and underwoods grow ing or being on the said manor 
for the term of 62 years without impeachment of waste, and after- 
wards made a third leas e of the said manor to the said lessee for 3 
v ears, witliout exception, to begin at a day to come, scil, from the ex - 
piration of the said first lease for 30 vears ; and after the term 30 years 
expired; t he lessee cut trees ; Ive in revers ion. brouj^ht an acti on of 
waste ; and it was adjudged for the pla intilf. And in this case three 
points were resolveS! * * * ^° 

3. That by the acceptance of a future lease to begin divers years 
after, the said lease of the wood for 62 years was presently surr jendeij:, 
ed, be cjiuse the lesse e by acceptance thereof had affirmed the less or 
t o have ability to make the new lease, which he had not, if the firs t 
I gase shall stand ; as if lessee for 20 years takes a lease for three years, 
to begin 10 years after; itj ^a j^^e^^l, ^£ Ui;ren der of thewhole terjii^ 
for it cannot be a surrender of the last 10 years, anSi^mainTor the 
first 10 years, and so to make a fraction of the term, nor can he who 
h ath a lease for 20 years surrender the last 10 years by any express 
surrende r saving to him the first iU y ears. Vide 14 H. 8, iSf " 2T^r . 
112. 4 Mar. 141. 3 Eliz. 200. 10 Eliz. 272. 11 Eliz. 280. 35 H. 8, 
57. 21 H. 7, 6. 31 Ass. p. 26. 32 H. 8, 46. Z7 H. 6, 17. 14 H. 7, Z7 . 
21 H. 7, 12, 40. 13 R. 2. Dower. 40 E. 3, 24, 43. 41 E. 3, 13. 44 E. 
3, 25, 26. 25 E. 3, 13.^^ ^ 

DAVISON ex dem. BROMLEY v. STANLEY. 
(Court of King's Bench, 1768. 4 Burr. 2210.) 

This was a case reserved from the assizes; upon an ejectment, tried 
before Mr. Justice Yates. 

The short of it, so far as concerned the point now determined, was, 
that W dliam B romley, Esq., being seised in fee, in the year 1686, de- 

-^That part of the report dealing with the first two points is omitted. 
/ 2/"Lessee for 21 years took a lease of the same lands for 40 years to begin 
Wmediiitely after the death of J. S. It was holden in this case that the 
same was not any present surrender of the first term; ^vX if J. S. die vvj thin 
t he term then it is a surrender, for it may be that J. S. shan"5Ut'yTvg the 
first teriiL" Anon., 4 Leon. i>0 (15S8). 

~^e Tracy v. Albany Exchange Co., 7 N. Y. 472, 57 Am. Dec. 538 (1852), 
wherp tiia new lease was to take effect on expiration of existing term. 



6^ 




196 DERIVATIVE TITLES (Part 2 

mised for ninety-nine years, to hold from the day of the date. After- 
wards, William Bromley, upon the marriage of Francis Bromley, with 
Ann Walsh, joi ned in a s ettlement_jvar^'' ^"'^s un cle Francis Brom ley, 
?)nd_re duced his former e stqtp in fee tn an estate for H fe. Thi s wa s a 
v oluntary settlement, and had a power in it ; but it was not pretend ed 
t hat the second lease was made according to that powe r. After this, 
William rheino- then nnlv tenant for life) in 1693. makes a new le ase 
f or ninetv-nine years, to the same tenant, of the same premises, wit h- 
out communicating to the tenant the alteration which he had made of 
his estate, by rednrin p- his fee to a hte-estate : and this was acquiej ^^d 
"^ / i n, and the rent paid and received, for sixty yea rs. In the mean time, 

Y ^ and before any objection was made with regard to these leases, William 

Bromley died, and his effects came into the hands of Lord Montfort. 

T he less or of the pla inti ff was tenant in fail under the settleme nt ; 
and clai med a right to disjjossess the tena nt 

\lie only question upon which the Court gave their opinion, was — 
''whether the acceptance of the second lease operated as a surrend er 
of*the forrner lease ." 

Lord Mansfield agreed, that the acceptance of a second good 
lease will operate as a surrender of a former. But the reason does not 
hold, in the case of accepting a new void lease, or one that the lessee 
can't enjoy. 

In the present case, Mr. William Bromley had probably forgott en 
t hat he had altere^iis estate m fee to an estate for life; at least, h e did 
not tell the lessee, that he had so do ne. 

'i"he hrst lease was for ninety-nine years from the day of the date : 
the second lease is for ninety-nine years, to commence immediately; 
and there is not a word said of the settlement or power. The tenant 
made a fair contract, bona fide, for a valuable consideration. Thfi-aec- 
or id lease was a deceit upon him ; for the lessor had no title to gra nt 
t his new lease. But the present lessor oFthe plaintiff says he sFall 
lose the former lease too; because the latter is inconsistent with the 
former ; and he could not hold under both. 

Where the first could be of no use, if he had had the second ; and 
both parties so intended; there is no inconsistency in the acceptance of 
a new good lease being a surrender of the former. But the accepti ng 
a, new void lease, which the lessee is not to enjoy, could not she\v_an 
i ntention to surr ender the other^ Therefore, the reason why this 
should be an implied surrender, totally fails. A void contract for a 
t hing that a man cannot enjo3^, cannot in common sense and re ason, 
i mply an agreement to give up a former contract . And Mr. Price has 
shewn that the law is so ; and that cases of this nature appear to have 
been grounded upon solid reason, when they are well considered. 

lam very clearjhat the acceptance of this new lease, which did n ot 
pass an mterest according to the contract, cannot operate as a su r- 
r ender of the former. And this is sufficient : I will not enter into any 
other questions about the other parts of the case. 




v/ 



Ch. 1) MODE OF CONVEYANCE 197 

T he second lease did not pass an interest according to the contrac t. 

The plaintiff has no right to recover. 

I give no opinion whether the acts of the lessor have or have not 
made the new lease good for the whole of the term. 

The three other Judges were clearly of the same opinion. 

Per Cur'. Let the postea be delivered to the defendant; in order 
that a nonsuit may be enter ed. ^^ 

ZICK v. LONDON UNITED TRAMWAYS, LIMITED. 
(Court of Appeal, King's Bench Division. [1908] 2 K. B. 126.) 

Appeal from the judgment of Jelf, J., in an action tried by him 
without a jury. [1908] 1 K. B. 611. 

The action was in form an action for trespass brought by the plain- 
tiff Zick, who was the oc cupier of a s hop, house, a nd forecourt, num- 
bered 84, Merton High Street, Wimbledon, and carried on business 
there as a furniture dealer, t o recover damages from the defend ant 

C Ompanv for enter ing ^^^^ tregpn'^sing upon the plaintiff's prf"'"''^^"^ r>n 

March 20, 190 7, and the following days, and for depriving him of the 
use of the said forecourt and thereby interfering with his business. 

On the pleadings the defendants, besides putting the plaintiff to the 
proof of his case, set up the following defence :^hat by the London 
United Tramways Act, 1902 (2 Edw. VII, c. 247), incorporating the 
Land Clauses Consolidation Act, 1845, they were authorized to acqui re 
c ompulsorily the sai djgre court for widening the roadwa y ; that on 
May 28, 1905, thev se rved notice to treat on Coope and Heatley, t he 
l easeholders , being mortgagees in possession of the said premises an d 
forecourtpTor the purchase of their interest in said forecourt ; that 
at the date of the service of said notice the plaintiff was not the occ u- 
pi er nor in possessio n of the said premises or forecourt, and had_no 
in terest therei n; that notwithstanding the service of the said notice, 
C oope and Heatley purpo rted af ter the date of such service to grj^ ^nt 
to the plaintiff an mterest m tT j e~said premises and forecourt by mean s 
of an agreement of tenancy, and that such an agreement of tenanc y 
was invalid in law against the defendants . ^ * * ^^ 

2 2 Roe V. Archbishop of York, 6 East, 86 (1805). ace. See Doe v. Courtenay, 
11 Q. B. 702 (1848); Doe v. Poole, 11 Q. B. 713 (1848). 

Premises were in possession of H. as tenant from year to year when H. 
and M. agreed to take a lease of same for seven years at a yearly rental ;• 
the agreement was in writing, but the contemplated lease was never drawn: 
H. and M., however, entered and held possession for a time, M. then dropping 
out, leaving H. as sole occupant. No rent having been paid, the lessor took 
possession and kept S. out. In an action by S. in trespass the question was 
whether the original tenancy from year to year had been terminated. JJeld, 
that the fo rmer tenancy had come to a n end by surrender in law^ Hamerton 
v! b'tead, 8 B. & (J. 4'<8 (1824). ' 

23 The statement of the facts and pleadings is omitted ; the case sufficient- 
ly appears in the opinions. The concurring opinion of Kennedy, L. J., is also 
omitted. 



i 



1.98 DERIVATIVE TITLES (Part 2 

The learned judge gave judgment for the plaintiff. 
X Sir GorelIv Barnes, President. I am of opinion that the conclu- 
I sion arrived at by the learned judge is right, and I can put my view of 
/ the case very shortly. An agree m ent was made on March 15. 19 05. 
'^\j \ b y which Fellowes. as ag ent tor the morteagees in possession of th e 
^^ \ premises in question, l et them to one Sinclair for a term of three ve ars. 

which would expire on March 14. 1908. On May 15, 1905, the defend- 
I ants served the notice to treat on the lessors' agent. Rv_ _an agreem ent 
/ d ated January 23, 1906, Sinclair, without any knowledge of l h£_notice 
t o treat, sold to the plaintiff Zick the furnit ure an d effects on the pre m- 
ises, with c ertain exceptions, and agreed to stand possessed of the lease 
of the premises in trust fori-hp pb intiff ; and in February the plaintiff 
entered on the premises. Afterwards, in order that the plaintiff should 
have not only the beneficial but also the legal possession of the prem- 
ises, Sinclair informed Fellowes that he desired to trans fer to the pj ain- 
tjff t he unexpired portion of his tenancy, and Fellowes sai d t hat he 
t hought he could arrange with his prmcipais tor a surrender of Jj ie 
e xisting tenancy and the granting of a fresh agreement to the plainti ff 
f or a term of three years, ins tead of the plaintiff taking a transfer of 
a term which had only two years to run. The plaintiff accepted this 
proposal, and accordingly, o n February 14, 190 6, an agreement wa s 
executed for a new tenancy which would expire on Febru ary 14,~ 1909. 
Under tnese circumstances the defendants contend that the plaintiff is 
not entitled to any compensation. The objection taken by the defend- 
ants to the plaintiff's right to compensation appears to me to be purely 
technical and to have no merits. The p arties to the transaction, Sin- 
clair, the plaintiff, and Fellow es^ pntprprj into jlie agreement iff F'^^^''"- 
a ry 14, i^iJb, for a new tenancy extending beyond the unexpired pej iod 
o f the former tenancy, thinking, no doubt, that it would operate a s a 
s urrender of the old term.. But, in consequence of the service of the 
notice to treat, the m ortgagees in possession of th e premises had no 
l onger any righ t to create a new tenancy which extended bey ond the 
period ot ttie existing tenancy . The result, as it apppq|-<; tn rn p^wnnlH 
b e that the surrender never came into operation bera^ ise the rn nside ra- 
tion for it failp^T So Sinclair remained entitled to treat the original 
tenancy as subsisting, and to claim compensation in respect of it as 
trustee for the plaintiff. The plaintiff appears to have offered to join 
Sinclair as plaintiff in the action, but it does not seem to have been con- 
sidered necessary, inasmuch as it was agreed that the real question for 
decision at the trial was whether the plaintiff, under the circumstanc- 
es which I have mentioned, was a person who had such an interest as 
entitled him to compensation in respect of the period extending up to 
the date on which the original tenancy of Sinclair would have expired. 
For the reasons which I have given I think that the decision of the 
learned judge was in substance correct. Ij it be necessary to add Sin- 

p1;^iV ^g Q p]^\r,uff^ ;n nrrl^r trx nrpf rw^rpr ^f^y teclinical diffJCultV . I thiuk 

t hat should be. dnn^ . 





Ch. 1) * MODE OF CONVEYANCE 199 

Farwell, L. J. This is i n form an action of trespass , but it is 
agreed that t he only questio n really involved is whether the pla intiff. 
Zick is entitleg to compensation^! In March, 1905, an agreement was 
made under which Sinclair became tenant of the premises in question 
for a term of three years from March 14 at a yearly rent of £30. In 
May of the same year notice to treat in respect of the premises was / v^-^^-t^ 
served on the lessor's agemf After service of that notice the lessors / " 
co uld create no new interest in the premises sn as to throw any fre sh > .^^-^^-t-^-^ 
burden on the defendants . In ignorance of the notice to treat S in- * 
c lair sold to the plaintiff his interest in the premises. Upon his in- 
forming the lessors' agent that he wished to transfer his interest, _he 
a nd the plaintiff and the lessors' a o ^pnt rame to the conclusion,t h^t the 
b etter arrangement would be that the old tenancy should be surren der- 
ed and a new one created for a longer term, which was accordingly - 
done by the agreement dated February 14. 1906. That agreement the 
defendants were entitled to treat as void, and they did so treat it. The 
law is laid down by Coleridge, J., in Doe v. Courtenay (1848) 11 Q. B. 7^ 

688, at p. 712, "t hat, where the new lease does not pass an interes t "f/, ^ , 
according to the contract, the acceptance of it will not operate a sur- 
r ender of the former lease ; that, in the case of a surrender implied 
by law from the acceptance of a new lease, a condition o ught also to 
b e understood as implied by law, making void the surrender in case th e 
n ew lease should be made void ; and that, in case of an express sur- 
render, so expressed as to shew the i;itenti on of the parties to make the 
surrender only in consideration of the grant, the sound construction of 
such instrument, in order to effectuate the intention of the parties, 
would make that surrender also conditional to be void in case the grant . 
should be made void." If the learned judge in the Court below has not 
expressed himself quite in the same terms, I think, by what he said on 
p. 616 of the report in the Law Reports, he meant the same thing. I 
do not think that he meant to say that the agreement for the new ten- 
ancy might be remodeled, so as to make the term co-extensive with the 
remainder of the term under the original tenancy, but that h e acted on 
t he well-established rule that, where a new lease is gran te d on th e 
f ooting t hat an ol d lease is surrendered, upon the avoidanc e of the new 
l ease the surrender is void, the consideration for it having faile d. 1 
agree that this ap peal should be dismi ssed.''* 

24 See Knight v. Williams, [1901] 1 Ch. 256. 



t 



200 DERIVATIVE' TITLES * (Part 2 

SCHIEFFELIN v. CARPENTER. 

(Supreme Court of New York, 1S3G. 15 Weud. 400.) 

This was an a ction of covenan t, tried at the New York circuit in 

April, 1834, before the Hon. Ogden Edwards, one of the circuit 
judges. 

The plaintiff declared on a lease under seah made by him to Ed- 
mund T. Carpenter, bearing date 1 st April, 182 9, demising a dwelli ng 
hous e and lot of ground of 5% acres, situate in the twelfth ward 
of the city of New York, for the t erm of six years, subject to an 
a nnual ren t of $325, to be p aid quarterly . The lease was a tripartite 
indenture, Daniel S. Hawkhurst and Daniel Carpenter being parties 
thereto, and u nking with the tenant in the covenants to be perfom ied 
on his partj^ and they were joined as defendants in the suit with t he 
tenant. The defendants, amongst other things, covena nted for the pay - 
ment of the rent: that the tenant should during the term, keep the 
dwelling house, fences and every part of the demised premises in good 
c ondition and repai r, and, at the expiration of the term, yield them 
up in like good repair ; that he w ould not remove, injure or destr oy 
any root, plant, bush or tree growing on the premise s, or suffer the 
same to be done; that~4ie wo uld not underlet or assign the premise s, 
e ither directly OT'lSy-^aperation of law, without the written consent ol 
t he landlord : and that during the term, the dwelling house sh ould no t 
be occupied as a public house, inn or tavern^ without the like written 
consent. The plaintiff assigned, as breaches of the covenants: 1. That 
on the 1st July, 1833, there was one year's rent in arrear and unpa id ; 
2. That on the 1st January, 183f, the tenant perrnitted the dwelling 
house and fences, i&c, t o fall into bad condition , and to become ruinous 
and to decay for the want of necessary repairs, and so permitted them 
to remain until the commencement of the suit; 3. That on the 1st 
January, 1831, he s uffered fruit trees, gooseberry bushes, aspar agus 
roots, and ornamental flowering plants growing on the premises t o be 
lopped, uprooted, removed and destroyed by persons and animals; 
4. That from 1st November, 1832, until 1st June, 1833, the dwelling 
house was us ed and occupied as a public house , without the consent 
of the plaintiff. The defendants pleaded the general issue, and gave 
notice of various matters to be proved on the trial. 

On the trial of the cause, the plaintiff claimed to recover the rent 
of a quarter of a year, ending 1st July, 1833, and damages for breaches 
of the covenants to keep the premises in repair, and not injure them, 
&c. The plaintiff proved that the premises were in good repair at the 
date of the lease, and when the tenant went into possession ; and that 
in February, 1833, the dwelling house was in a ruinous state, the fences 
prostrated, and the garden wholly destroyed, and that th e expen se 
of putting the p remises in repair w ould be b etween $400 and $500^ He 
also proved that the premises had been occupied tor a year by two men 



Ch. 1) MODE OF CONVEYANCE - 201 

of the name of Wood and Matthews, who were rail-road contractors, 
and had many persons in their employ who resided on the premises. 
The defe ndant offered to prove that the plaintiff held the demise d 
p remises onlv in rio'ht of his wife, and insisted that inasmuch as an 
action of waste might be brought in the name of the husband an d wife 
in the character of reversioners, the claim of damages for injury to 
the demised premises ought not to be sustained in the present suit ; the 
evi dence was rejected by the judg e. The defendants also offered to 
prove that in tlje autumn of 1831, an agreement w as entered into be- 
tween the plaintiff, the def endant Edm und T. Carpenter and t wo per - 
sons of the names of Mills and Owen, that Carpenter s hould quit a nd 
su rrender up the premises to the plaintiff, t hat the lease declared on 
s hould be delivered up and cancelled, and a new lease of the premises 
should be executed bv the plaintiff to Mills and Owen for the term 
o f 8 or 10 years . That in pursuance of such agreement. Carpenter, in 
the autumn of 1831, surrendered up the premises to the plaintiff, and 
paid all the rent then due to the plaintiff, a nd Mills and Owen to ok 
possession of the premises and occupied the same pursuant to such 
agreement as tenants to^he plaintiff', .who accepted them as such, and 
r eceived rent from thcnrL That Mills and Owen occupied the premises 
until the autumn of 1832, when they left, and were succeeded in th e 
possession by Woo d and Matthews, to whom also the premises were 
l et by the p laintiff, and from w^ho p he a kn rereived rent : these facts 
the defendant offered to establish by parol proof. The counsel for 
the plaintiff objected that parol evidence of the alleged agreement or 
surrender of the lease was inadmissible ; and also that the evidence, 
if intended to be urged in discharge of the covenants, ought not to be 
received, f or the reason that a covenant cannot be discharged by paro l J^ ^ 
before breach . The judge s ustained t he objection. The defendants 
then proved that Mills and Owen went into possession of the premises 
on the 1st November, 1831, and that previous to their entry, Edmund 
T. Carpenter (the tenant) put the premises in as good repair as they 
were in when he entered; they were thus repaired, because Mills and 
Owen were to take possession. The plaintiff, on being spoken to on 
the subject, said that he was satisfied with the repairs, if Mills and 
Owen were satisfied. It was also proved, that after Mills and Owen 
quit the premises, they were occupied by Wood and Matthews, who 
had a large number of men in their employment as laborers on a rail- 
road and housed on the premises. Wood and Matthews were in pos- 
session six months, and paid rent to the plaintiff. 

The counsel for the defendants insisted that the plaintiff was not 
entitled to recover in this action more than nominal damages for the 
breach of the covenant to keep the premises in repair, and for the in- 
jury done to the premises, as the tenant might put the premises in 
complete repair before the end of the term, and if he did so the plain- 
tiff would have no cause of complaint; if he did not do so, then the 
plaintiff' would be entitled to bring his action, and to recover damages^ 



202 DERIVATIVE TITLES (Part 2 

and requested the judge so to charge the jury. The judge declined to 
do so, and, on the contrary, c harged the jury that the plaintiff w as 
e ntitled to his verdict for one quarter's rent, (which was admitted to 
b e all that was due at the bringing of the suit ;) and, further, that 
they were n ot bound to limit their verdict on the covenant of repai rs 
to nominal damages but might give such sum as, under all the c ir- 
c umstances, they should consider the planititf entitled to recover, pcu - 
vided thev were satisfied that the defendants had violated their co ve- 
nants. The jury found a verdict f^-tli£ ^laiiit2ff_\vith $481,25 d am- 
ages. The defendants ask for a new trial. The cause was submitted 
on written arguments. 

Nelson, J. This case has been elaborately argued upon paper by 

the respective counsel, and all the authorities and principles bearing 

upon the points disputed, have been referred to and examined ; and 

were it not for some recent cases in the English courts, that are very 

confidently urged by the defendant's counsel, it seems to me there 

would be but little difficulty in disposing of the case. A surren der 

J i s defined to be a yielding up of an estate for life or years to TTm T 

^ who hath the immediate estate in reversion or remainder, wjierein th e 

fstate for hte or years may drow n by mutualagreemegt . Comyn's 

Landlord & Tenant, ZZ7 ; 2 Co. Litt. ddi; ^ (^ruise, i5d; 4 Bacon's 

Abr. 209; Shep. Touch. 300, 307. Before the statute of frauds and 

Jj/0 /• perjuries, a ny form of words without writing, whereby an intention ap - 

»/i>*''^*^Z^ \ peared to surrender up the possession of the pre mi'^pc; tn tlip 1p':;(;;nr 
L^"^ I or reversioner, was sufficient for that purpos e. This was called a 

"a) surrender in fact. There was also a surrender in law. It was effecte d 

i' by the acce ptanc e of a new lease of the premises from the lessor, fo r 
t he whole or a part of the time embraced in the former one, becaus e 
i t^ necessar ily implied a determination and surrender of that lease ; 
otlierwise the lessor would be unable to make^the second, or the lessee 
to enjoy it, and it was therefore but reasonable to presume both par - 
ties intenHed to waive and relmquish the benefit of the first one . The 
second lease before the statute referred to, of course need not have 
been in writing to operate an effectual surrender of the first one. The 
statute of 29 Car. enacted "that all leases, estates, interests of 
freehold or terms of years, or any uncertain interests of, in, to 
or out of any lands, &c. made or created by livery and seizin only, ^ 
b y parol, and no t p ut in writing , &c. shall have the force and effect o f 
l eases or estates at will only," &c. excepting leases not exceedmg tJi e 
t erm of three years from the making thereo f. And also, "no leas es, 
estates or int erest either of freehold or term of years, or anv uncer tain 
i nterest, &c. oi, in, to or^out ot any messuages. &c. shall be assigne d. 
g ranted or surrendered, unless by deed or note, in writing, or operatio n 
of law. " Our statute (2 R S. [1 St. Ed.] p. 134, sec. 6) provides 
that "no estate or interest in lands, other than leases for a term not 
exceeding one year, &c. shall hereafter be created, granted, assigned, 
surrendered, &c. unless by act or operation of law, or by deed or cun- 



Ch. 1) MODE OF CONVEYANCE 203 

veyance in writing-" &c. Sec. 8. " Every contract for the leasing fo r 
a longer period than one year. &c. shall be void,'' unless in writing. 
S ^nce these statutes, a parol lease in England for more than thre e 
years, and in this state for more than one, i s entirely void ; though if 
the tenant enters into possession, he shall be deemed a t enant at wil l, 
and for the purpose of notice to quit, from year to year, and n otwith - 
standing the lease be void, it may regulate the terms- of ho l^jng-^s to 
rent, time to quit. &c . 5 T. R. 471 ; Comyn's L. & T. 8: Woodf. 14, 
15; Bradley v. Covell, 4 Cow. 350; Jackson ex depi. Church v. 
Miller, 7 Cow. 747. But as a lease for the purposes for which it was 
given, it is considered wholly void. It is, however, co nclusively settled 
b y authority, that the second lease must be a valid one, so as to convey, 
t he interest it professes to convey, to the lessee, and al so to bind him to "j^ 

t he performance of the" covenant or agreement in favor of the lessor , 
i n order to operate as an effectual surrender of the hrst one. ■!i Burr. 
1807; 4 Burr. 1980, 2210; 6 East. 86; Comyn's Dig. tit. Estate, g. 13 ; 
4 Bac. Abr. 215. Without this, the reason before given for the im- 
plied surrender would fail, and the intent of the parties be altogether 
defeated. Instead of being but a surrender of the first lease, it would 
be a surrender of the whole estate and interest in the premises, and 
a virtual determination of the existence of any tenancy. Now t he 
ground upon whi ch th e surrender jn this case is mainly argued is,, not 
that a new lease was given to the original lessee, but that it was given 
to JMills and Owen with his consent, for the period of eight or ten 
years. Assuming this, amounts to the same as if given to Carpenter; 
it_i s^ impossible to rnaintain that any valid^ lease lias been proved in the 
case, or any lease whatever for aUefinite period. The most that was 
offered to be proved was, that Mills and Owen went into possession 
with the consent of the defendants, under a parol agreement for a lease 
for eight or ten years ; ajid if it be viewed as- an agreement for a lease . 
or as a virtual lease for that time^ it is void under fhp t;tatntp , nnd rnnld 
not be enforced by either of the parties. A n inip l ied tenancy at wi ll 
o n hLwa s created, which enabled Mills and Owen to hold trom'year t o 
):ear ^ror the purpose of notice to quit, but which they could terminate 
at any moment they pleased . The agreement and entry in pursuance 
of it conferred no rights upon the plaintiff, further than to recover 
his rent while they continued to occupy, and perhaps a quarter's rent, 
if they abandoned the occupation after the commencement of a quarter 
and before its termination. 

Suppose this agreement had been made with the original tenant, 
and the defendants can claim no more from it as offered to be proved, 
could it be contended that it operated as a virtual surrender of the lease 
for six years, and that the plaintiff could dispossess the tenant on 
giving six months notice to quit? This would be the consequence of 
the doctrine urged in the defence. The tenant would become a mere 
tenant at will. TIie_authoritii "s alr^n^jj,^ ^pfprrpH tn ( [-lenrly establish 
that the second lease, to have the effect claimed, must pass the inj^r- 




204: DERIVATIVE TITLES (Part 2 

e st in the premises according^ to the contract^ or in other words, carr y 
i nto legal effect the intent of the parties executing it 3 Burr. 1807; 
4 Burr. 1980, 2210; Comyn's Dig. tit. Estate, 8, 12; 6 East, 661 ; Van 
Rensselaer's Heirs v. Penniman, 6 Wend. 569 ; 1 Saund. 236, n. b. It 
is stated by Baron Gilbert, 4 Bacon's Abr. 210, that since the statute of 
frauds the new lease must be in writing in order to operate as an 
implied surrender of the old one, for it is then of equal notoriety 
with a surrender in writing. This position is also adopted by Ser- 
jeant Williams, in his notes upon the case of Thursby v. Plant, 1 
Saund. 236, n. b. But as surrenders by operation of law are expressly 
excepted out of the statute, as a necessary consequence they are left 
as at common law ; and t here it is clear it need not be in writing to 
have the effect to surrender the old one, e v en if by deed . 2 Starkie's 
Sv. 342; 20 Virrer, 143, L., pi. 1, n. ; 1 Saunders, 236, n. c. I am in - 
c lined therefore to think that a valid parol lease, since th e sta tute, mig ht 
p roduce a surrender in law within the reason and prmciple upon wh i^h 
t his doctrme is founded . The jtrU-?- L^^ seems to be that laid down 
by Mr. Starkie, 2 Starkie's Ev. 342, as follows: The taking a new 
l ease by parol is by operation of law a surrender of the old one, al - 
t hough it be by deed, provided it be a good one, and pass an interest 
according to the contract and intention of the parties ; for otherwise 
t he acceptance of it is no implied surrender of the old one . 

If the first lease in this case has not been surrendered, then there is 
no ground of defence against the action upon the express covenants 
contained in it, even if we should concede a legal assignment from 
the tenant to Mills and Owen, and the acceptance of them expressly 
or impliedly by the plaintiff. 4 T. R. 98, 100; 1 Saund. 241, n. 5; 
Woodf. 278; Cro. Car. 188; Comyn's Land. Si Tenant, 275, and cases 
there cited. But the plaintiff stipulated against assignment or unde r- 
etting unless permission was given in writing ; and a parol license is 
t herefore inoperative. 2 T. R. 425; 3 T. R. 590; 3 Madd. 218; 
Piatt on Cov. 427. T his clause in a lease would be nugatory, if cou rts 
s hould allow parol evidence to control in the matter . Besides a parol 
assignment is void under the statute of frauds. The case of Thomas 
V. Cook, 2 Starkie's R. 408, is supposed to have a strong bearing upon 
this one. In that case there was a parol lease from year to year to 
Cook, who under-let to Parkes. The rent being in arrear, Thomas 
distrained upon him, and he paid it by a bill of exchange ; on receiving 
which he declared he would have nothing more to do with Cook. 
Afterwards, however, he brought his action against him for rent then 
due. For the plaintiff it was insisted that there was no surrender 
within the statute of frauds. Abbott, C. J., left it to the jury to say, 
whether the plaintiff had not accepted Parkes as his tenant, with the 
assent of Cook; and the jury finding in the afffrmative, the plaintiff 
was nonsuited. The court at the ensuing term, when the case was 
moved, were of opinion there was a surrender by operation of law. 
They say if a lessee assign and the lessor accept the assignee of the les- 



Ch. 1) MODE OF CONVEYANCE 205 

s ee as his tenant- that in point of law puts an end to the privity o f 
estate., and an action of debt cannot be brought to recover the ren t. 
That I admit to be true, but if the lease had been in writing, according 
to the cases above cited, a suit might still be maintained upon the ex- 
press covenant in it, though the privity of estate was gone. Besides, 
the assignment was void as such under the statute of frauds. 1 Campb. 
318; 5 Bing. 25; Comyn's Land. & Ten. 55, and cases there cited; 
Woodf. 277. A ^ain. the court say it is a rule of law, that the accep t- 
ance of a subsequent lease by parol operates as a surrender of^g . 
f ormer lease by deed._ That is true under the circumstances we have 
before endeavored to explain, and is undoubtedly the legal ground upon 
which that case may be maintained. The case sufficiently shows that 
the implied parol demise to Parkes was a valid one to the extent in- 
tended by both parties; the one to Cook was a lease from year to 
year, and the acceptance of Parkes, as tenant in his place, impliedly 
gave him the same tenure and term ; no writing was necessary for that 
purpose. This is the ground upon which the case is said to stand by 
the court, in commenting upon it in a subsequent term, 4 Barn. & 
Cres. 922. 

In the case of Grimman v. Legge, 8 Barn. & Cres. 324, the lease was 
by parol for one year, for the first and second floor of a house, a dis- 
pute having arisen before the end of the year, the tenant said she 
would quit. The landlord said he would be glad to get rid of her. 
She accordingly left the premises, and possession was taken by him. 
The facts were submitted to the jury, to presume a rescindment of the 
original contract between the parties. The case of Stone v. Whiting, 

2 Starkie, 235, is precisely like the case of Thomas v. Cook, and stands 
upon the same principle. In the case of Whitehead v. Clifford, 5 
Taunt. 518, the lease was by parol from year to year, and stands upon 
the footing of Grimman v. Legge. In the case of Hamerton v. Stead, 

3 Barn. & Cres. 478, a tenant from year to year entered into an agree- 
ment in writing for a lease to him and another, and from that time 
both occupied. It was held that the new agreement, coupled with the 
joint occupation, determined the former tenancy, and operated as a 
surrender in law, though the lease contracted for was never granted. 
If the new agreement and occupation were viewed as a tenancy from 
year to year, which was of equal tenure with the first lease, there was 
at least no hardship in this decision. The judges obviously were some- 
what embarrassed in their endeavors to place the case upon princi- 
ple, and some of their observations conflict with the case in 6 East, 86, 
which they admitted to be good law. The first case was by parol from 
year to year, and might well have been put upon the footing of the 
cases to which I have referred, where the facts were submitted to the 
jury to find the first contract rescinded. 

The jaw seems to be well settled, that under a coveng^nt to repai r 
l ike the one in question, the landlord need not wait tjll^.the expiration 
of the term before bringing^ an action for the breacfi,' under an idea 



206 DERIVATIVE TITLES (Part 2 

t hat the tenant mav. before he leaves the premises, put them in gox )d 
condition 1 Barn. & Aid. 584; 2 Ld. Raym. 803, 1125; 1 Salk. 141; 
Piatt on Cov. 289; Comyn's Land. & Ten. 210. If the covenant was 
only to leave the premises in as good a condition as the tenant found 
them, it seems an action would not lie till the end of the term. Shep. 
Touch. 173; Piatt on Cov. 289. 

The defendant canno t question, in this action, the title of the la nd- 
lord. , The action is upon an e xpress covenant between the parties, 
and the suit, if sustained at all, must be by the plaintiff alon e. 

New tr ial denie d. ^ j 

' ; r •-' 1. ' 

WHITEHEAD v. CLIFFORD. 

(Court of Common Pleas, 1814. 5 Taunt. 518.) 

This was an action for the use and occupation of a house , which was 
tried at the Middlesex sittings after last Michaelmas term, before 
Mansfield, C. J., when, a fter the Plaintiff had proved that the Defen d- 
ant had been tenant from year to year of the Plaintiff's house, the D e- 
fendant proved a parol agreement, that the Plaintiff would give up h is 
c laim to the rentj _ on the Defendant's giving up immediate possessi on 
i n the middle of the quarter: both parties accordingly went before a 
magistrate, and the Defendant then gave up the key, which the Plain- 
tiff" accepted, and the Defendant was never after that time in the pos- 
session of the premises. T he Plaintiff sought to recover for a tim e 
st jbsequent to his resuming the key ; and he insisted that the tenancy 
was not thereby determmed, by reason of the statute of frauds; and 
cited Mollet v. Brayne, 2 Camp. 103.^-'^ Mansfield, C. J., reserved the 
question, subject whereto the j ury found a vjerdict for the Defenda nt. 

Best, Serjt., in Hilary term, 1814, had obtained a rule nisi to set 
aside this verdict, and enter a verdict for the Plaintiff. 

GiBBs, C. J. The cl ause of the statute of frauds v>diich restricts e s- 
tates created by parol, to three years, has nothing to do with that 
which requires surrenders to be in writing . In Mollet v. Brayne both 
parties did not act on the parol notice to quit, but the tenant only. The 
present action can never succeed. The action for use and occupation 

25 In the case cited the defendant had been in possession as tenant under a 
yearly rent for several months when a dispute arose between him and the 
lessor; the defendant threatening to quit the premises, the lessor said, 
"You may quit when you please." The defendant accordingly left a few days 
later. The lessor sued for rent accrued after defendant quitted the premises. 
The defendant tendered the rent accrued up to a day after he had left. 
" Lord Ellenborough was of opinion that the tenancy was not d etermined 
merely by" the landlord giving the tenant a parol ncense to quit, and th e teji.- 
ant quitting accordingly ^ At the time tuere was a subsisting term in the 
premises, and tue statuTe of frauds (St. 29 Car. II, c. 3, § 3) p rovides that n o 
l ease or term of year s, or a ny uncertain interest * * » shall be s!u r- 
renaered, unless py d^tJU or UOt^ ih writing, oi- by act and operation of 1^ . 
ilere there was no aeea or n ote in writin g, and not hing is proved which can 
be considered a surrender by operation of lavy" (ISOSJI 



Ch. 1) MODE OF CONVEYANCE 207 

depends either upon actual occupation, or upon an occupation which 
the Defendant might have had, if she had not voluntarily abstained 
from it. H ere the Plaintiff himself takes possession of the hous e, 
a nd makes the profit of the premises ; and it was therefore impossible 
for the Defendant, during the same time, to have used and occupied 
the premises, if she would. As to the case in Campbell, it is very- 
different from this, and we do not throw out any opinion against it; 
but when the like circumstances arise, it will be proper to consider 

R ule discha rged.^ ° - . d /4:^i^l±fr^f'*^ ' 




THOMAS V. COOK. 

(Court of King's Bench, ISIS. 2 Barn. & Al 

A ction for use and occupation . At the trial of this cause at the 
London sittings after Trinity term before Abbott, J., it appeared that 
the pla intiff had originallv let the premises_^ consisting of a house in 
Long-L.ane t o the defendant ^ as tenant from year to year . After he 
had resided tliere for some time, the defeqd^pt underlet them to one 
Perkes. commencing at Christmas 1816. At Lady-Dav 1817. defend.- 
a^ dji^trained pprke' s goods for rent in arrear . Rent being then due 
f rom the defendant to Thn mas , the latter gave notice to Perkes no t 
to pay the rent to the defendant, but to him : and upon Cook's refus- 
ing to take Perke's bill for the amount then due, the plaintiff agreed 
to take it himself in payment of the rent due from Cook to him, say- 
ing that he would not have any thing further to do with Cook. j\n d 
a fterwards^ in October. 1817. the plaintiff himself distrained the goo ds 
of Perkes for rent in arrear . The jury found, by the direction of 
the learned Judge, a v erdict for the defendant, on the ground tha t 
T homas had, with the assent of Cook, accepted Perkes as his tenant o f 
t he premises . 

Topping moved for a new trial. By the third section of the Stat- 
ute of Frauds, "No lease or term of years or any uncertain interest of I 
or in any messuages, lands, tenements, or hereditaments, shall bej 
surrendered unless by deed or note in writing." Now the utmost th at 
a ppeared on the trial was a parol surrender by Cook of his interes t 
in the premise^ , and in Mollett v. Brayne, 2 Campb. 103, it was held 
by Lord Ellenborough that a tenancy from year to year could not be 
determined by a parol license from the landlord to the tenant to quit, 
and the tenant's quitting accordingly. The same point was ruled in 
Doe v. Ridout, 5 Taunt. 519. T hen if this surrender be void the c ase 

26 See Phene v. Popplewell. 12 C. B. (N. S.) 334 (1862) ; Millis v. Ellis, 109 
Minn. 81, 122 N. W. 1119 (1909). Cf. Oastler v. Henderson, 2 Q. B. D. 575 
nc77^ : Newton v. Speare Laundering Co., 19 R. I. 516, 37 Atl. 11 (1S96) ; 
Smith V. Hunt, 32 R. I. 326, 79 Atl. 826, 35 L. R. A. (N. S.) 1132, Ann. Cas 
1912D, 971 (1911). 



208 



DERIVATIVE TITLES 



(Part 2 



F alls within the autlinn'ty of Bull v. Sibbs . 8 Term Rep. 327, and t he 
p laintiff is entitled to a verdict . 

Abbott, C. J. By the third section of the Statute of Frauds, it is 
'enacted "Th at no leases, estates, or interests, either of freehold, term s 
of years, or any other uncertam interest in any messuages, mano rs.' 
l ands, tenements or hereditaments shall be surrendered, unless b y 
deed or note in writing, or bv act and operation of law T' And the 
question in this case is, whether what has been done will amount to a 
su rrender by act and operation of law . Now the facts of the case 
re these. The plaintiff Thomas had let the premises in question to 
the defendant as tenant from year to year, and the def endant underl et 
them to Perkes. The rent being in arrear, the defendant, on Lady- 
Day 1817, distrained the goods of Perkes, who having tendered a bill 
in payment of the rent which the defendant had refused to receive, the 
plaintiff then interposed, took the bill in payment, and accepted Perkes 
as his tenant: and afterwards in October 1817, himself distrained the 
goods of Perkes for rent then in arrear. I left it to the jury to say 
whether under these circumstances the plaintiff' had not, witli the as- 
sent of Cook, accepted Perkes as his tenant of the premises, and the 

\ jury found that fact in the affirmative. T jhjnk , therefore , this amnn nt- 
e d to a ya lirl <^^irrpndpr ^^ Cook's interest in the premis es, being a sur- 
render by act and operation of law. The consequeTice is that" the 
plaintiff can have no claim for rent against the present defendant, arid 
that the verdict therefore was right. 

BaylEy, J. If a lessee assigns over his interest, and the lessor ac- 
cepts the assignee as his tenant, t he privity of estate is thereby de - 
s troyed, and on that ground it is not competent for the lessor to brin g 
d ebt agamst the lessee . Where, indeed, the contract is by deed, there 
he may bring covenant by the Statute of Hen. VIII. In this case, the 
landlord has ac cepted Perkes as his tenant, and must be consi dered 
t o have made his election between Perkes and Cook . And the case 
of Phipps V. Sculthorpe, 1 Barn. & Aid. 50, is an authority to she.w 
that the plaintiff has no right to recover. This was a surrender of 
Cook's interest in the premises by act and operation of law, and the 
j ury were quite rig^ht in presuming that Cook harl agQpntpd_lQ_iJ2 ^ 
a cceptance of Perkes as tenant to the plaintiff: for that assent w as 
c learly for Cook's ^b enefit. 

HoLROYD, J. It appears from the Statute of Frauds, that a sur- 
render in order to be valid, must be ei ther by deed or note in writing 
or by act and operation of law^ In Mollett v. Brayne, 2 Campb. 103, 
there was only a parol surrender, and no circumstance existed in that 
case which could constitute a surrender by act and operation of law. 
But injjiia_j:aae, -tbere is not merely a declaration by the plainliff, th _aj- 
he will no longer consider Cook a -^ hi-^ tenant, hnt there is also the 
a cceptance by him of another person as the tenant, and that acceptance 
I S assented to by Cook . Now, if a lease be granted to an individual, 

• and there be a subsequent demise of the premises by parol to the same 



Ch. 1) MODE OF CONVEYANCE 20^ 

person, that will amount to a surrender of his lease. Then the cir- 
cumstances of Cook having first put in another person as undertenant, 
and having afterwards assented to a second demise by the plaintiff 
to that person, will in the present case amount to a virtual surrender 
of his interest by act and operation of law. Notwithstanding ther e- 
f ore the third section of the Statute of Frauds, I am of opinion, tha t 
t he facts here found by the iurv amount to a valid surrender of Co ok's 
i nterest ^ a nd a re-demise of the premises by the plaintiff to Perke s. 
In that case there will be no ground for disturbing the present verdict. 
Rule refused.^' 



WALLS V. ATCHESON. 
(Court of Common Pleas, 1826. 11 Moore, 379.) 

This was an a ction for assumpsit, for use a nd occupation . The 
cause was tried before Lord Chief Justice Best, at the sittings at West- 
minster, in the present Term. 

The pla intiff, a widow, let to the defendant part of a furnished hous e 
i n Manchester Square, at the rent of sixty-five guineas, for one yea r 
c ertain, from the 14th of September^ 1824. The defendant q uitted at 
e nd of the first quarter, viz. on the 14th December, p aying ren t up 
t o that day. About three weeks afterwards, the plaintiff let the apart- 
ments to . another person, at the rent of one guinea per we ek. At the 
expiration of the second quarter, the plaintiff se nt in an account to 
t he defendant, charging him for a quarter's rent according to the 
t erms of the original takmg, deducting the sums received from^ the 
p erson to whom she had re-let the apartments , and making the de- 
fendant debtor to her for the sum of £7. 5s. Od. ; which sum the_ de- 
f endant paid . The second tenant quitted in the beginning of July, 
1825, from which time, until the 14th of December following, the 
apa rtments remained vacant . The plaintiff accordingly brought this 
action, to recover from the defendant, £21. Os. 6d., the balance of rent 
due to her from him, by the terms of the original letting. 

His Lor dship, being of opinion, that, by letting the^ apartment s_to 
a nother, the plaintiff had rescinded the previous contract with t he 
d efendant, directed a nonsuit . 

Mr. Serjeant Vaughan now applied for a rule nisi, that the nonsuit 
might be set aside and a new trial had. * * * 

Lord Chief Justice Best. By her own act, the plaintiff prevente d 
th g^ defendant fr o m occupying these premises. S he let them to ano yier 

2 7 See Walker v. Richardson, 2 M. & W. 882 (1S37); Lynch v. Lynch, & 
Ir. Law Rep. 131 (1843) ; Creagh v. Blood, 8 Ir. Eq. Rep. 688 (1845). 
Cf. Decker v. Hartshorn, 60 N. J. Law, 548, 38 Atl. 678 (1897). 
Aig.Prop. — 14 



210 DERIVATIVE TITLES (Part 2 

t enant. Ca n a landlord have two tenants , and be rp rpivino- rent-icnm 
o ne, and at the same time holding the other liab le? The case of Mol- 
lett V. Brayne is altogether distinguishable from the present. In White- 
head v. CHfiford, 5 Taunt. 518, it was held, that, if a landlord, in the 
middle of a quarter, accept from his tenant the key of tlie house 
demised, under a parol agreement, t hat, upon her then living up the 
p ossession, the rent shall cease, and she n ever afterwards occupies the 
p remises, he cannot recover, in an action for the use and occupatio n 
o f the house, for the time subsequent to his accepting the key . Lord 
Chief Justice Gibbs there said : "In Mollett v. Brayne, both parties 
did not act on the parol notice to quit, but the tenant only. T he pres - 
e nt action can never succeed . The action fo r us e and occupation jde- 
p ends. either upon actual occupation, or upon an occu pation whirh th e, 
d efendant might have tiad. jf sliH had not voluntarr[yabstained- £rom 
i^ Here, the plaintiff himself takes possession of the house, and makes 
the profit of the premises ; and it was therefore impossible for the 
defendant, during the same time, to have used and occupied the prem- 
ises, if she would." I think both law and justice are with the defend- 
ant. 

Mr. Justice Park. I am of opinion that my Lord Chief Justice 
p roperly nonsuited the plainti ff; and that there is no colour for call- 
ing upon us to disturb that nonsuit. The case of Mollett v. Brayne is 
very different from the present: there, the tenant had a subsisting 
term, which could not be determined by a mere parol surrender. Here, 
t he plaintiff, by her own act, rescinded the contract with the defen d- 
ant, and dispensed with the necessity of a surrender . In Redpath v. 
Roberts, the landlord had only offered to let the premises, but had 
not in fact let them : thus there was nothing to obstruct the defend- 
ant's occupation of them, had he been so minded. In Lloyd v. Crispe, 
5 Taunt. 257 the lessor having, by receiving rent from him, assented 
to the occupation of an assignee, he was held, by Sir James Mansfield, 
to have waived the necessity of a license for the subsequent assign- 
ment, notwithstanding a covenant in the lease, that the premises should 
not be assigned without the licence of the lessor. In Whitehead y^ 
Chfford, the plaintiff, the landlord, had accepted the key, and thus the 
tenant was prevented from occupying tlie house. So, here, the c on- 
d uct of the plaintiff in re-letting the apartments, signified as complete 
a n acquiescence m the tenancy being determined, as could be con- 
v eyed bv the acceptance of the key. 

Mr. Justice Burrough. If the tenancy on the part of the defend- 
ant in this case were to be considered a continuing tenancy after the 
period at which he ceased to occupy the premises, the letting of them 
to another person was, on the part of the plaintiff, a tortious act; it 
was in the nature of an eviction. I think the case discloses abun dant 
evid ence that the contract was put an end to with the asse nt of lEhe 
pfaintlffherself. 



Ch. 1) MODE OF CONVEYANCE 211 

Mr. Justice GasEleE. If the plaintiff had given the defendant 
notice, that, if he would not occupy tlie apartments himself, she would 

let them to another tenant, on his account, the case would have been 

different. Un der the circumstances, I sec no reason for di sturbi ng 
t he nonsuit . 

Rule refused.^* 



GRAY V. KAUFMAN DAIRY & ICE CREAM CO. 

(Court of Appeals of New York, 1900. 1G2 N. Y. 3SS, 56 N. E. 903, 49 L. R. A. 
5S0, 76 Am. St Rep. 327.) 

Appeal from a judgment of the Appellate Division of the Supreme 
Court in the second judicial department, entei^ed May 5, 1897, affirm- 
ing a judgment in favor_ol. plainti ff_entered upon a decision of the court 
at a Trial Term, a jury having beefi waived. 

' This action was br ought to recover two months' rent of the prem ises 
knn^,vn ^^Nn 7f^ 7 Eighth avenue, in llie rity nf New York . In July, 
1893, the plaintiff let the said premises to the defendant f or ten yea rs 
from August 1st, 1893, at the ye arly rental of $2,40 0, pay able mon thly 
in advance, and also the ex tra water rent charged against the defend- 
ant for its business. The defendant to ok possession about July, 1893, 
and pa id rent tn Nnvpmhpr Kf, 1893 , h '^^ refused to pay for the months 
of November and December of that year, the rent of which became 
due and payable on the first days of those months respectively. 

T he answer, in effect, admits the making of the lease, but denies an y 
i ndebtedness under it and sets up the eviction of the defendant, a_ sur - 
render and rescission of the lease, and claims credit for the rent r e- 
c eived from the undertenant. On or about the 28th or 29th of October, 
1893, the plaintiff had a conversation with Mr. Kaufman, the president 
of the defendant, upon the demised premises. The plaintiff's version 
of this conversation is as follows : "They were pulling up the store and 
the things, and were going to move out. They had not said anything 
to me about moving out prior to that time. I asked Mr. Kaufman 
what he was doing, pulling up the store. He said he was going to 
move out, and I asked him why, and he said because he couldn't make 
any mone}'', and I told him that he had a lease on it, and that I would 
hold him responsible for the rent if he went out. 'Well,' he says, '1 
am moving out, I don't want to stay where I don't make my rent.' " 
T he defendant moved out and sent the kevs of the store to the plainti ff 
b y mail. Plaintiff received them about the 2d of November, 1893. 

2 8 See, also, Nickells v. Ather.stone, 10 Q. B. 914 (1847); Haycock v. John- 
ston, 97 Minn. 2S9, 106 N. W. 304, 114 Am. St. Rep. 715 (1906); Rogers v. 
Dockstader, 90 Kan. 1S9, 133 Pac. 717 (1913); Hotel Marion Co. v. Waters 
(Or.) 150 Pac. S65J1915). 



"212 DERIVATIVE TITLES (Part 2 

On the 3d of November, 1893, plaintiff served upon the defendant a 
notice of which the following is a copy : 

"New York, November 3, 1893. 
"To the Kaufman Dairy & Ice Cream Co. : 

"Yesterda v I received the keys of 787 Eighth Av f^^ii^ ^y "injl^ I 
hereby notify you that I do not accept a surrender of the premises, and 



t hat 1 intendto hold y ^u rf'^P'^^'^i^^f- f or the rent under tlie leas e. _ I 
s hall let the premises on your a ccount, and hold you for anv loss wh ich 
m ay be sustained. 

"Yours, etc., John Gray." 

The defe ndant made no answer to t his notice. On the 17tli of No- 
vember, 1893, the plaintiff went to Kingston and saw Mr. Kaufman, 
the president of the defendant, Mr. Spore, the secretary, and a Mr. 
Bruin. The pl aintiff asked Mr. Kaufman for the November rent, a nd 
t he latter replied that no rent was due ; that he had not made a le ase ; 
t hat there was nothing due and he would not pay ; that he had given up 
t he store and plaintiff could do what he liked withit . Thereupon the 
plaintiff started for home. The president and secretary of the defend- 
ant went to the railway station and there h ad a conversation with_t he 
pl aintiff about compromising the matter bv taking the cellar of said 
p remises for fifty dollars a month for the term of the lease if th e 
plaintiff would cancel the same as to the rest of the premise s. The 
plaintiff' said' he would think over the matter and see what he could' 
do with the remainder of the property, and let them know. The plain- 
tiff' testifies that thereafter, and on the 27th of November, 1893, he 
wrote to the defendant as follows : 
"Kaufman Dairy & Ice Cream Co. : 

"Gentlemen : I have an offer for the store you leased from me, 787 
Eighth Ave. the parties will pay $1,500 to the first of May and $1,600 
for three years from May. I think this is about as good an offer as 
can be expected, considering the times. P lease let me know if you w ill 
k eep the cellar and pav the dift'erence between the $1.jOO and $2.400 
t o^jSIay, and $1,600 — ^2,400 after . An early reply will much oblige. 
"Yours respect., J. Gray, 323 Washington Avenue." 

The plaintiff further testifies that he inclosed this letter in an en- 
velope directed to the defendant at Kingston, N. Y., deposited it pre- 
paid in the post office at Brooklyn and recei ved no reply the reto. Tlie 
d efendant had tenants in the cellar when it left the premis es . Thes e 
te nants attorned to the plaintiff . 

On or about the 1st of December, 1S93, plaintiff let the premises 
which had been previously demised to the defendant to one Mary Ann 
Keogh for the term of three years and fi ve months at an annual re nt 
ot ^l, :)UO per year tor ihe tirst hve months, and $1,600 per ^^r for the 
remamnig three years, to be paid in equal monthly installments in ad - 
v ance. 

The defendant pleaded eviction, but gave no evidence upon that sub- 
ject, and upon the trial admitted that it had no excuse for leaving the 



Ch. 1) MODE OF CONVEYANCE 21o 

premises. Kaufman admitted having a conversation with the plaintiff 
before the defendant left the premises, in which the plaintiff stated that 
he would hold the defendant for the rent, but denied that he, Kaufman, 
had stated that the defendant would not stay where it did not make 
any money. Kaufman also admitted the receipt of the letter dated No- 
vember 3d, but both he and Spore denied receiving the one dated No- 
vember 27th. Both admitted the conversation testified to by the plain- 
tiff as having taken place at Kingston, and Spore testified that on that 
occasion Kaufman stated distinctly that the defendant did not owe any 
rent ; that it had given up and surrendered the premises ; that there was 
some talk at the railroad station about renting the cellar from tlie 
plaintiff at fifty dollars per month during the term of the lease, but 
there was nothing said in that conversation about plaintiff's reletting 
the premises on defendant's account. Abraham L. Gray, a son of the 
plaintiff, testified on the latter's behalf that he went to Kingston with 
his father to see Kaufman and was present at the conversation at the 
railroad station. He testified that Mr. Spore offered the plaintiff fifty 
dollars a month for the basement if he would let the defendant off on 
the store, and the plaintiff replied that he would think it over and let 
them know. T he lease to the defendant contained no provision again st 
s ubletting, except for "any saloon or liounr busmess. and_con- 
tained no provision for a reletting of the premises by th e plaintiff 
i n case the defendant vacated tlie same during the term of the lease . 

After the evidence was all in, tbe parties waived the jury and sub- 
mitted the facts to the court for decision. The defendant admitted its 
liability for the November rent, but claimed that it was released as to 
the December rent by the reletting of the premises to said Mary Ann 
Keogh on the 1st of December. Upo n these facts the court foun d^iat 
t he plaintiff" was entitled to recover rent for the mont 
a nd December, less the amo unt re ceived from the 
t he plaintiff refused to accept a surrender of the 
p remises were at no time surrendered to the plaintiff, and that the r e- 
le tting of the premises was done with the assent of the defendant. 

Werner, J. This controversy arises out of the conventional rela- 
tion of landlord and tenant under circumstances governed by fixed 
principles of law. The first and most important question in the cas e is 
whe ther the plaintiff^s reletting of the premises deicribed in the lease , f 

a ?terthe defendant's attempted surrender of the same, changed or af - ' 

ie cfed the legal status of the parties under the origina ljease. It is so 
well settled as to be almost axiomatic that a surrender of premises is 
created by operation of law when the parties to a lease do some act so i^. x ^^ ^^ 
in consiste nt with the subsisting relation of landlord and tenant as to ^ 

i mply that they have both agreed to consider the surrender as mad e, y^'^^/v'-*'***^ 
It has been held in this state that "a surrender is implied, and so effected 
by operation of law within the statute, w hen another estate is create d 
b y the reversioner or remainderman with the assent of the termor in- 
c ompatible with the existmg state or term ." Coe v. Hobby, 72 N. Y. 



he court loun d^iat 

jnths of Noveinl jer /f)^^ ^f^Ztt 

iinderfennnts; thnt Un^ ^ 
premises : that th e ' 



214 DERIVATIVE TITLES (Part 2 

145, 28 Am. Rep. 120. The existence of this rule has been recognized 
in this state in Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394; 
Smith. V. Kerr, 108 N. Y. 36, 15 N. E. 70, 2 Am. St. Rep. 362; Under- 
hill v.^ColHns, 132 N. Y. 271, 30 N. E. 576, and in other jurisdictions 
in Beall v. White, 94 U. S. 389, 24 L. Ed. 173 ; Amory v. Kannoffsky, 
117 Mass. 351, 19 Am. Rep. 416; Thomas v. Cook, 2 Barn. & Aid. 119; 
Nickells v. Atherstone, 10 Ad. & El. N. R. 944; Lyon v. Reed, 13 M. 
& VV. 306, and Washburn on Real Property, vol. 1, pp. 477, 478. It is 
conceded that defendant's offer of surrender was declined by the plain- 
tiff, and that after the defendant's abandonment of the premises the 
plaintiff relet the same in his own name to one Mary Ann Keogh for a 
term of three years and five months. S uch a situation, unqualified by: 
o ther conditions, would create a surrender by opera t ion nf law. We 
n iust, therefore, ascertain whether the conduct of the parties takes this 
case out of the operation of this r ule. 

it is urged by the learned counsel for the plaintiff that the reletting 
was done with the consent of the defendant under circumstances which 
bring the case directly within the rule laid down by Judge Haight in 
Underbill v. Collins, 132 N. Y. 270, 30 N. E. 576. In that case the 
landlord and tenant had a conversation a few days before the latter va- 
cated the premises. The tenant asked the landlord to take the same 
off his hands. This the landlord declined to do, insisting that he would 
hold the tenant for the rent and would lease the premises for his bene- 
fit. In the case at bar there was also a conversation before the prem- 
ises were vacated ; but in this conversation there was nothing said 
about a reletting. The plaintiff" simply said that he would hold the de- 
fendant for the rent. On the 2d of November, 1893, a day or two after 
defendant's removal, the plaintiff received the keys of the premises.. 
He returned them with a note stating that he would relet on defend- 
ant's account and hold it responsible for any loss that may be sus- 
tained. To this note the defendant made no reply. On the 17th of 
November, 1893, the plaintiff and his son went to Kingston and saw 
Kaufman and Spore. In the conversation which took place between 
them and the plaintiff there was no suggestion of reletting. The plain- 
tiff" made a demand for tlie rent which was unpaid, and the defendant 
made an offer of compromise, under which it agreed to take the cellar 
of said premises at fifty dollars per month if the plaintiff would cancel 
the lease as to the store. This offer the plaintiff agreed to consider. 
On the 27th of November, 1893, the plaintiff wrote to the defendant 
that he had an oft"er for the store of $1,500 per year to the first of the 
next ensuing May, and $1,600 per year for three years thereafter. He 
requested the defendant to let him know if it would keep the cellar and 
pay the difference between the rent fixed by the lease and the amount 
offered by the intending tenant. To this letter tlie defendant made no 
reply. 

It will be observed from this brief resume of the facts that there are 
several distinct features in which this case differs from the Underbill 



Ch. 1) MODE OF CONVEYAXCB 215 

Case. In the latter case there was a personal interview before the 
tenant had vacated, in which the subject of reletting the premises was 
discussed. He re the subject of reletting Avas not mentioned until afte r 
t he tenant went out, and then the suggestion came in a letter to which 
t he defendant made no reply . Obviously the only theory upon which 
the defendant can be held to have assented to the reletting of the prem- 
ises is that by its silence it acquiesced in the act of the plaintiff. We 
may assume, although we do not decide, that if the communications 
upon the subject of reletting had been made verbally in the course of 
conversation between the parties, even after the tenant had vacated the 
premises, the rule as to agreements by implication laid down in the Un- 
derbill Case might be held to apply. But here, as we have seen, the 
l andlord's propos al to relet was in the form of two letters . In the first 
of these, dated November 3d, he makes the unequivocal assertion that 
he will let the premises on defendant's account, and will hold it for any 
loss that may be sustained. Defendant's failure to reply to this letter is 
followed by a personal interview on the 17th of November, in which 
there is no reference to a reletting of the premises, and in which de- 
fendant's president, after denying any liability for rent, tells the plain- 
tiff to do what he likes with the premises. Then follows the letter of 
November 27th, informing the defendant of the offer which the plain- 
tiff had received from an intending tenant, and asking defendant if it 
would pay the difference between the amount offered and the rent re- 
served in the original lease. 

It will be observed that, even if we were to give these written com- 
munications the same force and effect as verbal statements made in per- 
sonal interviews between^the parties, the facts here are easily differ- 
entiated from those in the Underbill Case J T here the tenant vacated the 
pr emises upon the oft'er of the landlord to relet for his benefit nnd nn- 
d er such circumstances as tn permit the infe rence that he accepted t he 
o ffer. Here the landlord's statement to that effect, made after the ten- 
ant's abandonment of the premises, is followed by negotiations in which 
the tenant expresses a willingness to keep the cellar at fifty dollars 
per month if the landlord will cancel the lease as to the rest of the 
premises. These steps are succeeded by a communication from the 
landlord, in which he requests the tenant to decide whether it will keep 
the cellar and pay the deficit which will arise by an acceptance of the 
offer which the former then had under consideration. It may well b e 
d oubted whether ver bal declarations made in personal jntprvipw; h p- 
t ween the partie s, u nder the circumstanc e*' nhnvp na^rfitfr], wnu 1 d 
s upport the plaintiff's theorv of this action . To create a contr act by 
impii^ation^.lh ^rernust be an un equi vocal and unq iii Tlfie^asser| lQ^_of 
a ri^liO y\ one qf ^jh e parties. aaSTiuc h silence bjY_ _the-Qther_^as^ to-sup- 
poji^theJ^^alJjiipi^ilcejoijTi^^ 

But it is clear, both upon principle and authority^ that we have no 
right to indulge in the assumption that the letters above referred to 
have the force and effect of verbal statements made in the presence of 



216 DERIVATIVE TITLES (Part 2 

the defendant's officers. The rule is precisely to the contrary. It is 
well expressed in Learned v. Tillotson, 97 N. Y. 12, 49 Am. Rep. 508, 
as follows : "We think that a distinction exists between the effect to 
be given to oral declarations made by one party to another, which are 
in answer to or contradictory of some statement made by the other 
party, and a written statement in a letter written by such party to an- 
otlier. It may well be that under most circumstances what is said to a 
man to his face, which conveys the idea of an obligation upon his part 
to the person addressing him, or on whose behalf the statement is 
made, he is at least in some measure called upon to contradict or ex- 
plain ; but a failure to answer a letter is entirely differe nt. ^nd ther^ Js 
n o rule of law which re quires a person to e nter into a correspondenc e 
with another in referenc etoa matter m dispilte between them, or which 
holds that silence should be regarded as an admission against the pa rty 
t o whom the letter is addressed. Such a rule would enable one party 
to obtain an advantage over another and has no sanction in the law." 
To the same effect are Bank of B. N. A. v. Delafield, 126 N. Y. 418, 
27 N. E. 797, and Thomas v. Gage, 141 N. Y. 506, 36 N. E. 385. 

I t is man ifest^heref ore, that the act of the plaintiff in reletting_ said 
p remises under the circumstances referred to operated as an" acceptan ce 
of the defendant's oft'er to su rrender. The judgment herein can be sup- 
ported upon no theory that is consistent with the established rules of 
law. As the views above expressed are decisive of the case, it is un- 
necessary to discuss the other questions raised by the defendant. 

The ju dgment of the court below slio uld be reversed and a new trial 
granted, with costs to abide the event. 

Landon, J. (d issenting). The trial court found that "Plaintiff 
refused to accept a surrender of the premises, and did not accept it, 
and the premises were at no time surrendered to the plaintiff". The 
le tting of the prem ise s was done with the assent of the defenda nt." 
The order of affirmance by the Appellate Division does not state that 
it was unanimous, but tliat is not important here, for the record con- 
tains evidence tending to support the findings. The evide nc e tends to 
s how that the defendant inten ded by its conduct to threaten the plain - 
tiff with the loss of his rent, and thus to c oerce him to relet the ^prein- 
i ses, a nd then deny its assent^ j iotwithstanding after its receipt of the 
plaintiff's first letter, it t old the plaintiff he could do as he liked wit h 
t he premises . The defendant thus replied to the plaintiff''s letter, at 
least so the trial court, in view of all the circumstances, might find, and 
did find. 

Parker, Ch. J., and Gray, O'Brien and Haight, JJ., concur with 
Werner, J., for reversal. Landon, J., reads dissenting memorandum. 
CuLLEN, J., not sitting. 

Judgment reversed, etc.** -JLs^-l 

2» See Welcome v. Hess, 90 Cal. 507, 27 Pac. oG9, 25 Am. St. Rep. 145 
(1891) ; Pelton v. Place, 71 Vt. 4J|J^4y Atl. 63 (1899). 



(\0 




eJ-^'^ 



Ch. 1) MODE OF CONVEYANCB 217 

■' -^ OLDEWURTEL v. WIESENFELD. 

(Court of Appeals of Maryland, 1903. 97 Md. 165, 54 Atl. 969.) 

Briscoe, J.'° On the eighth day of June, 1900, the appellees in- 
stituted a suit in covenant in the Superior Court of Baltimore City, 
against the appellant, to recover rent due and owing i inrlpr a l easp dafa 4 
t he 1st day of April, 1895, f or a store and dwelling known as No. 50 7 
South BroaHwa y , Baltimore . The lease is in writing and is fully set 
out in the record. The property was rented for the te rm of five year s, 
beginning on the first day of April, 1895, and ending on the 31st day 
of March, 1900, at $ 900 per yea r, paya ble in equal monthlv installmen ts 
on the fi rjt day of each and every month. It was provided by the terms 
of the lease that its provisions and covenants should continue in force 
from term to term after the expiration of the term mentioned therein, 
provided the parties thereto or either of them could terminate it at the 
end of the term, or of any year thereafter, by giving at least ninety days 
previous notice thereof in writing. I t was further provided, in rase 
t he rent should be ten days in arrear and not paid when the same shoul d 
become due, then the lessor may re-enter and take back the premi ses 
without demand. There was no covenant in the lease for making re- 
pairs to the premises. 

The declaration states that the sum of six hundred and five dollars 
was due and unpaid for rent with interest from April 1st, 1900, over 
and above all discounts, according to the following bill of particulars, 
which was filed, on demand, in the case. 

Bill of Particulars. 

Mr. Henry Oldewurtel to Bernard Wiesenfeld and Joseph Miller, 
Trustees of the Estate of Betsey Wiesenfeld. 

To 5 years rent of No. 507 S. Broadway, at $900 per year, as per 

lease of April 1st, 1895 $4,500 Ofl 

Less $10 per month, waived for the months of Aug., Sept., Oct., Nov. 

and Dec, 1897, and Jan., 1898, respectively 60 00 

$4,440 00 
Credits. 

By cash from April 1, 1895, to June 1. 1898 $2,865 00 

By Hughes & Co., from Sept. 1, 1S9S. to Jan. 1, 1899 280 00 

By Wheeler & Hughes, from Feb. 1. 1899, to Aug. 1, 1899 370 00 

By C. Walmacher, from Oct. 19, 1899, to March 31, 1900 320 00 

$3,835 00 
To balance 605 00 

The undisputed facts of the case out of which the controversy arose 
briefly stated are these: The defendant, the lessee, continued in po s- 

3 The portion of the opinion relating to the correctness of the form of 
action is omitted. 



218 DERIVATIVE TITLES (Part 2 

s ession of the demised premises until Tune 1st, 1898. when he paicL the 
rent to that date and left the key at the office of tlie plaintiff in his ab - 
sence^ stating to the clerk "that he had moved out the house and here 
was the key." 

On June 2d, the next day, the plaintiff wrote him the following let- 
ter: 
"Henry Oldewurtel, Esq., 

"Dear Sir : I have been informed that you left the key of No. 507 
South Broadway at my office. I beg to notify you that I refuse to ac- 
cept t he key and that it is still at my office a t your risk and'dispos al. 
I als o hereby no tify you t hat we will hold yo u subject to all the cove - 
nants of the lease, executed by you. 

'Wery truly yours, ' Bernard Wiesenfeld." 

The plaintiff not receiving a reply to the foregoing letter, a second 
letter dated June 3, 1898, was written the defendant as follows: 
"Henry Oldewurtel, Esq., 

"Dear Sir: I herein beg to notify you that I int end to make an ef- 
f ort to get a tenant for the premises known as NoTbO/ South Broad - 
way, without abandoning anv rights. Mr. Miller and myself as execu- 
tors and trustees may have against you as tenant under our lease to 
you for rent. In case we get a tenant we will allow you credit for 
such rent as we may collect, and hold you for the balance as due under 
your lease. 

"Yours truly, Bernard Wiesenfeld." 

S ub ^equently a sign was put in the window of the premises that the 
p roperty was for rent , . and it was rented from time to time, and the 
d efendant credited with the rent to the date of the expiration of th e 
lease. The plaintiff's testified that they refused to accept a surrender 
of the premises, never made any alteration of the original lease, by a 
subsequent agreement, and never ousted the defendant from the prem- 
ises, and that necessary repairs were made to the property. The de- 
fendant, on the other hand, testified that he vacated the property be- 
cause it had been condemned by the building inspector of BaltimoFe^ 
and was not tenantable, and he notified the clerk when he paid the rent 
that he would no longer be liable under the lease. There was other 
evidence in the case, but as the material facts are not disputed and 
have been heretofore stated it will not be necessary to further set 
them out. At the trial below, the Court granted the two pravers off er- 
ed on the part of th e, plaintiff, and rejected th o se presented by the de- 
fendan t, except, tbe-^fi fih. It also granted the plaintift''s special ex- 
ception to the defendant's first prayer, that there was no legally suffi- 
cient evidence to show that the terms of the lease were ever modified 
by any legally binding agreement. The whole case was presented on 
the prayers and the special exception, and we shall proceed to consider 
them. 

The^ pravers on . the part of the plaintiff were demurrers to the ev i- 
d ence an d w ere to the efiFect that as a matter of law there was no leg g.1- 



Ch. 1) MODE OF CONVEYANCE 219 

1^ suffic ient eviden c e of the acceptance of a su rrender, or of an ouste r 
by the plaintiff . 

The generaFrule is well settled that to constitute a valid surrender 
of rented premises by a tenant during the term there must be the 
a ssent of both parties to the rescinding of the contract of renting, and 
such assent may be e xpressed o r implied froip such acts as would rea- 
sonably indicate that the parties have agreed that the tenant shall 
abandon the premises, and the lan dlord assume its possessi on. Biggs 
V. Stueler, 93 Md. 110, 48 Atl. 727. 

The appellants admit that the defendant returned the key before 
the expiration of the lease. It was not accepted and therefore up to 
this time no surrender took place. It is further conceded that the 
plaintiffs had a right to enter for the purpose of taking care of the 
property, of repairing the premises and to put a "for rent sign" in the 
window. 

But it is earnestly urged that the re-renting of the property fpr the. 
b gnent of the tenant without h is assent was an acceptance of a su r- 
tSJid^r, an nn^tfr nf the tpnant^ and rele ased him from liability for re nt 
u nder the lease^ , 

There are some authorities to the effect that a re-entry and reletting 
of abandoned premises by the landlord without the consent of the ten- 
ant, would create a surrender, by operation of law. Underbill v. Col- 
lins, 132 N. Y. 271, 30 N. E. 576; Gray v. Kaufman, 162 N. Y. 388, 
56 N. E. 903, 49 L. R. A. 580, 76 Am. St. Rep. 327 ; Day v. Watson, 8 
Mich. 535 ; Rice v. Dudley, 65 Ala. 68. 

The best approved cases, however, assert the contrary doctrine, and 
h old that where a tenant repudiates the lease, and abandons the de- 
mjsed premises, and the lessor enters and relets the property, that such 
r e-renting does not relieve the tenant from the payment of the rent 
u nder the covenants of the lease . Auer v. Penn. 99 Pa. 370, 44 Am. 
Rep. 114; Meyer v. Smith, ZZ Ark. 627; Bloomer v. Merrill, 1 Daly 
(N. Y.) 485; Scott v. Beecher, 91 Mich. 590, 52 N. W. 20; Rich v. 
Doyenn, 85 Hun, 510, ZZ N. Y. Supp. 341 ; Alsup v. Banks, 68 Miss. 
664, 9 South. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294. 

In Biggs V. Stueler, 93 Md. Ill, 48 Atl. 729, this Court said: "The 
acts upon which the appellee in this case relies to prove a surrender are 
the acceptance of the keys by the appellee, the repairs to the house and 
the reletting. But th ose are insufficient of themselves to show acc ept- 
a nce, unless under all the circumstan rp<; thfV ^''^ " f such a Hi^imrter 
a^ to show a purpose on the part of the tenant to vacate and on th e 
p art ot the landlord to resume possession, to the exclusion o f tbp. ten- 
ant." 

In the case now under consideration all of the acts of the lessor, 
including the letters of June 2nd and 3rd cl early show that the appe l- 
l ees did not intend to ac cept a s urrender of the property and to releas e 
the tenant from his liability for rent . On the contrary the letters dis- 
tinctly state the property would be rented subject to the covenants of 





220 DERIVATIVE TITLES (Part 2 

the lease and if a tenant could be secured, and rent collected, the lessee 
would be credited therewith, and be liable for the difference. 

The case of Big-gs v. Stueler, supra, is also relied upon by the appel- 
lant to sustain the proposition urged by him, t hat the assent of the 
t enant is absolutelv necessary -hefore the landlord ran r^ l^^t rlpmi'cpri 
premises. In that case there was a statement that would seem to sus- 
tain the appellant's contention but an examination of the whole case, 
will clearly show that the case cannot be given such a construction. 
It was not necessary for the decision of the case, and would not be in 
accord with the conclusion reached by the Court, under the facts of the 
case. 

As to the rulings of the Court on the first and second exceptions 
upon the admissibility of evidence but little need be said as the evi- 
dence was afterwards admitted, and the defendant was not injured 
thereby. 

The pl aintiff's special exception to the defendant's first praver w^a s 
p roperlv sustamed . There was no evidence legally sufficient to show 
that the terms of the lease had been modified by an oral agreement, 
and what was said by us on the demurrer to the declaration, disposes 
of this question. 

For the reason we have given, the defendant's prayers were prope rly 
r ejected, and as the correctness of the Cou rt's rulings on the pl amtiff's 
prayers established the right of the plai ntifls to recover, the judgment 
will be affirmed. 

Jud gment affirme d with costs.'* ' ' ■ 

31 "Upon the trial in the court below the learned .Indgje Instructed the jury, 
as set forth in the second assigrnment of error, as follows: ' 1^ a man refu ses 
t o continue your tenant, g ives up the house into your hand s, why, th en, sou 
have a right to put a bill ui mhi the hinisp nnil try to rent i t; bec ause, if you 
rent it, it: is so much saved to Mr. Auer, no much saved to the surety of 
the tenant, because you have to give an account of every cent you make out 
of the house; a nd cert ahilv it is much better for the tenant, that t he lan d- 
I grd should rent the ho use aivl get sonietliinLT fnr TI, tli;in to siuiiily F ockj Uie 
d oor and lay by an d sue tlie tenant or surety fer the whole ainnn nt of , the 
r ent tor the who le ter ni for whlcF he lias taken it ; so that, being for the 
benefit of both parties, it is no presumption that the landlord has accepted a 
surrender, that he has taken and leased the house.' We see no error in this. 
It'is good sense as well as good law." Auer v. Pennsylvania, 90 Pa. .370, .'576, 
44 Am. Rep. 114 (1882), per Paxson, J. In the case, however, it appeared that 
the landlord had notified the surety of the tenant who moved out that he 
would be looked to as continued security for the rent. 

"May a landlord, after his tenant has vncnterl arwj ^han c\qh(h[ the prem- 



i ses without cause, resume possession fEere6f, and re-lease the same to an - 
other, after giving notice to the original tenant of his intention of holding 
him for the rents reserved , and that he had resumed possession for the pnr- 
pose of protecting the reversion, and had relet them to reduce the damage s 
which he might otherwise sustain, without being held to have crpnfptiM 
surrenaer by operation of law . * * * The a r pnprnl mlp n o doubt Is thnf. 
i f the tenant abandons the pr em ises and the L4hdlord I'e -f en'ts them ^a~suF 
render is estabUsliedT^ Stobie v. Dills, (JL! 111. 4oi> (l^TI). — J:5ut nearly every 
rule nas its excpptlons, and one of the excentioi^s to the rule l.ust quoted is 
t hat if the landlord re-leases the m fo r and'bri Account of the tenant n sn f- 
renaer is not to be interred . *—- * — * If tney gave appellees notice that 
they intended to hold them for the rent, and re-rented simply to reduce the- 



Ch.l) 



MODE OF CONVEYANCa 



221 



LYON V. REED. 

(Court of Exchequer, 1844. 13 Mees. & W. 285.) 

Parke, B.^^ This was a special case argued in Easter Term. It 
was an action of debt by the pla intiff, as assignee of the reversion of 
certain houses"an3 rope-walks at i5hadwell,"li o_lde rrun(ier a lease trom 
t he Dean ofS't. Paul's against the defendants, who are executors of 
Shake speare Reed, Deceas ed, ihe plaintitt claims from the defend- 
ants nmeteen years' rent, accrued due between Christmas, 1820, and 
Christmas, 1839, partly in the life time of Shakespeare Reed, who hel d 
t he premises during his li fe^and partly since his decease , while the 
premises were in the possession of the defendants, his executors. 

The material facts are as follows : — The premises in question are 
parcel of the possession of the Dean of St. Paul's, and it appears that, 
on tlie 26th of December. 1803, the then dean demised a large estate a t 
§hadweli^ jjid ^ing the houses and premises in question, to two per - 
s ons of the names of Ord andPlanta ( who were in fact Jrustees fo r 
tlieI3^jtY£sJamily) for a te rm of forty years , commencing at Christmas, 
1803, and which would, therefore, expire at Christmas, 1843. On the 
24 th jjf March, 1808, Ord and Planta made an underlease of the houses 
and rope-walks in question to~StTakespeare Reed for thirty-four year s, 
cx) mmencinfT from Christmas, 180/, so that the term created bv th\is 
underlease wo uld expire at Christmas. 1841. leaving a reversion of two 
years in Ord and Planta. The rejjl sought to hox^zo^^^^i^dj^J^^ej:^^ 

du^-^pniheuijjierlea^e;^^ 
Cl^i§ti^asJJ^39^^ It appears that, previously to the month of October, 
1811, Robert Hartshorn Barber a nd Francis Charles Parry were .ap- 
p ointed by t he Court of Chancery t rustees for 

t he place ot Urd and Planta ; and by an indenture dated the 3d of 
October, fell, endorsed- on the lease of 1803, all the property at Shad 



/ ^ A'iA^'-'^ /I 






the Bowes family, in /-iXit/CCu^ 



9r^ 



well Remised by that lease was assigned by Ord and Planta to Barber 
and Parry, the new trustees . Soon after this assignment, the Bowes 
family appears to have negotiated with the dean for a renewal of the ^ < Jix4y>*- ^ 
lease of 1803, and accordingl y a n ew lease was executed by the dean, ' y^ -j 
^ ^ "^^SLO^ ^^f^ 



damages — and this is made to appear by satisfactory evidence — there is no 
reason for holding that there was a surrender, and that the original tenants 
were released from their obligation." Brown v. Cairns, 107 Iowa, 727, 737, 
77 N. W. 478, 482 (1S9S), per Deemer, C. J. See Kean v. Rogers, 146 Iowa, 
559, 123 N. W. 754 (1909). 

" What does or does not constitute a surrender of the lease and _ ^^^ Qf»pppt- 
ance tlTereor must be determined trom all the facts it L-£a.Ch particular cas e. 
■vVtrhout" stfitlhg in detail all the testimony on that point m this case, we 
think it is a fair deduction from the testimony that therp y ^«^- g" pb a sux - 
render h ere, ana an acceptance of it. especially in view of the fnrt ttiP^ ^" 






/^ 



Appellan t nevefjnot iged the lessee at any time, not pvpti pftpr r^rmy^p;? tvia 
no uncation ilfpgpember. 1905. that they would not renew the lease, that he 



expected to"h(Ma the lessee tOr tll'5 rent." Stein v. Hyman-Lewis Co., 95 Miss. 
293, 299, 48 South. 225, 226 (1909), per Whitlield, C. J. 

3 2 The opinion only is printed; the case suthciently appears therefrom 



^>^;5*^ 







222 DERIVATIVE TITLES (Part 2 

\^\ d ated on the 7th of April, 1812, for a term of forty years, frnm r;.|iri<; t- 
k M mas, 181 1. a n3~which term, would therefore, endure till Chrktma ';^ 

1 ~851. "On fortunately this lease, instead of being made to Barber and 
Parry (the new trustees) in whom the old term (subject to the under- 
lease to Reed) was vested, was made tq Ord and Planta, the old tru s- 
tees ; the fact of _the_ch ange of trustees and the assignment of the 3d 
of October, 1811, having, at the time e scaped observ ation. In this 
state of things, a private act of Parliarnent was passedTenabling the 
dean and his successor for the time being t o grant leases of the Shad - 
well estate to the trustees of th e Bo wes family for successive terms of 
ninety-nine years, renewable for ever . 

The act, which is intituled "An Act to enable the dean of St. Paul's, 
London, to grant a Lease of Messuages, Tenements, Land's, and Here- 
ditaments in the parish of St. Paul's, Shadwell, in the County of Mid- 
dlesex, and to enable the Lessees to grant Subleases for building on 
and repairing, that Estate," received the royal assent on the 22d of 
July, 1812. It begins by reciting the will of Mary Bowes, whereby she 
bequeathed her leasehold estate at Shadwell, held under the Dean of 
St. Paul's, (being the estate afterwards demised by the leases of 26th 
December, 1803, and the 7th April, 1812,) to Ord and Planta, on cer- 
tain trusts for the Bowes family. It then recites the lease of the 7th 
of April, 1812, and after stating that it would for the reasons therein 
mentioned, be beneficial for all parties that the dean should be empow- 
e red to grant long leases of the Sha dwell property, perpetually renew- 
able, and further stating that Ord and Planta were desirous of being 
discharged from their trust, and that John Osborn and John Burt had 
agreed to act as trustees in their place ; it enacted, that it should be 
lawful for the dean and his successors for the time being, and he and 
they are thereby required, on a surrender of the existing lease, to 
demise the Shadwell estate to Osborn and Burt, their executors, ad- 
ministrators, and assigns, for a term of ninety-nine years, and at the 
e nd of every fi fty years to grant a new lease on payment ot a nomfn al 
fine^ with varTous provisions (not necessary to be stated) torTecuring 
to the dean and his successor a proportion of all improved rents to be 
thereafter obtained. And by the second section of the act it is e n- 
a cted, that, immediately on the execution by the dean of the first lease 
for ninety-nine years t o b e granted in pursuance ot the act, the lease 
o t the / t h ot April, 18iZ, should become void. It is plain, from the 
provisions contained in this act, that the persons by whom it was ob- 
tained were not aware, or had forgotten that, in the month of October 
preceding, Ord and Planta had assigned their interest in the property 
to Barber and Parry, the new trustees appointed by the Court of 
Chancery. In pursuance of the act of Parliament by an indenture of 



t hree parts, dated the 31st day of Au gust, 1812, a nd_ma^gJ.^£lS£au-tFe 
^^ ' dean of t he first part, Th omas iJowes"(the party "beneficially interes ted 

*/ forJiis Trf"e)_q f the'seTondl^art^ and Os born and Burt of the third part, 
' » the dean demised the Shadwell property to Osborn and Burt for a term 






Ch. 1) 



MODE OF CONVEYANCE 



223 



o f nJnetvTnine years , and the dp t-^i,';^ ig pypressed fahe maHf^ h<^ ;v^]1 in 
ic onsideration of the surr e nder of the lease of die 7th of April, 181_2 , 
"being die lease last existing," as also of the rents and covenants, &c. 

Mr. Bowes, and Osborn and Burt, his trustees, appear to have dis- 
covered, before the month of January, 1814, the mistake into which 
they had fallen, and two further deeds were then executed for the 
purpose of curing the defect. By the former of these deeds, which 
bears date the 6th Januarv\ 181 4. and is made between Barber and 
Parry of the one part, and the dean of the other part, reciting that, at 
the time of the granting of the lease of the 7th of April, 1812, the 
estate and interest created by the original demise of the 26th of De- 
cember, 1803, was vested in Barber and Parry, and also reciting that 
the fact of the assignment to them by the deed of the 3d of October, 
1811, was not known to the parties by whom the said act was solic- 
ited, it is witnessed, that Barber and Parrv did bargain, sell and su r- 
r ender. tfl _ the dean the whole of the said Shadwell estate, to the inten t 
t hat the term of forty years, created by the lease of the 26th o i-Xle - 
cember. 1803 , mi o;^lu.be merged in the freehold, and that the dean might 
execute a new lease to Osborn and Burt according to the said act. By 
the other deed, which bears date the 29th of January, 1814, and is 
made between the dean of the first part, and the said Thomas Bowes 
of the second part, and the said Osborn and Burt, of the third part; 
the^ dean. in consideration of the effectual surrender of the two prior^ 
l eases of the 26t h ot JJ ecember, ISO: 
for the 61 



act of Parliament, to Osborn and Burt . 
rator s. and assigns^ for a term of nin etvtnine 



e state, pu rsuant to the sai 
rs, admim 



their execu: 

years. The interest of Osborn and Burt, under these two leases to 

them, has, by various assignments, be come vested in the plaintiff and 

tl ^ere is no doubt but tha tj ig i§^ entitled to recover the rent in question ^ pi 

in this action, if Osborn and Burt would have been so entitled 






Such being the principal facts, we must consider how they bear on i 
the several issues raised by the pleadings. The declaration, after stat- C' 
ing the demise from the dean to Ord and Planta in 1803, and the un- 
derlease from them to Reed in 1808, goes on to state, that, by the deed 
of the 3d of October, 1811, Ord and Planta assigned all their in- 
terest in the premises to Barber and Parry, and th at the dean, bei ng 
seise d of t he rev ersion expectant on the term of forty vears so assigne d 
t oBarEer I jTd Farry, by the indenture of the 31st of August. 181 2. 
d emised tKe'p remise s to Osborn and Burt for a term of ni n ety-nin e 
yearSj by virtue whereof they became entitled to the reversion for that 
term. The declaration then goes on to state that, by the indenture 
of the 6th of January, 1814, Barber and Parry assigned their interest 
to the dean, to the intent that he might grant a new lease to Osborn 
and Burt; and that afterwards, on the 29th day of the same month 
of January, 1814, the dean, by the indenture of that date, made a 
new demise of the premises to Osborn and Burt for a fresh term of 



SU i^^ytru-^^^f 




224 DERIVATIVE TITLES (Part 2 

ninety-nine years, they by the same indenture s urren dering thejoriner 
t erm crejj;e(i by t he demise of the 31st of Augiist^ _18|Z THedecla ra- 
tion then traces the title in the present plaintiff by assignment from 
Osborn and Burt previously to Christmas, 1820, and so claims title to 
the rent accrued due after that date. 

To this declaration the defendants pleaded six plea s : Firs t, a plea 
traversing the averment that, at the time of the demise toTTsborn and 
Burt of the 31st of August, 1812, the dean was seised in fee of the 
reversion. S econdly a plea traversing that demise. Thirdl y, a plea 
traversing the assignment by Barber and Parry to the dean, to the 
intent that he might grant a new lease to Osborn and Burt. Fourth ly, 
a plea traversing the surrender by Osborn and Burt of the first term 
of ninety-nine years, fifthly, a special plea stating the indenture of 
the 7th of April, 1812, whereby Ord and Planta became entitled to 
the reversion for forty years from Christmas, 1811, and so continued 
imtil, up to, and after the execution of the indenture of the 29th of 
January, 1814. Sixthl y, a plea traversing the demise to Osborn and 
Burt by the indenture of the 29th of January, 1814. Issue was joined 
on all the pleas except the fifth, and to that the plaintiff replied, that, 
after the making of the lease of the 7th of April, 1812, and before the 
lease of the 31st of August, 1812, the private act of Parliament was 
passed, authorizing the dean, on the surrender of the existing lease, 
to grant a lease for ninety-nine years to Osborn and Burt; and the 
replication then avers that the lea se of the 31st of August, 1 812, w as 
dulv made in pursuance of the act, and ttiat. at the time when it w as 
m ade, the lease of the 7th of April. 1812^ was duly surrendere d. To 
this the defendants rejoin, traversing the surrender of the lease of the 
7th of April, 1812, and on this issue was joined. The second, third, 
and sixth issues, it will be observed, are mere traverses of the exe- 
cution of deeds which are found by the special case to have been duly 
executed ; ' and, as the traverse merely puts in issue the fact of the 
execution, and not the validity of the deeds or the competency of the 
parties to make them, the verdict on those issues must certainly be 
entered for the plaintiff ; and so must that on the fourth issue, whereby 
the defendant traverses the surrender by Osborn and Burt of the first 
term of ninety-nine years, when the demise of the second term was 
made to them. It ^ is quite clear t hat the acceptance of the secon d 
demise w as of itself a surrender m law of the first , even^ if no surr en- 
d er m tact w a^_i pad e. For whom, then, is the verdict on the remain- 
ing issues, the first and fifth, to be entered? The issue on the fifth 
plea is, it will be observed, whether the lease of the 7th of April, 1812, 
was duly surrendered at the time of the making of the indenture of 
J, the 31st August, 1812. And the issue on the first plea is substantially 
( the same; for if the plaintiff succeeds in showing that the indenture of 
1 the 7th April, 1812, was duly surrendered as set forth in his declara- 
jtion^ then it follows that the dean was at that time seised of the re- 
Vyersion, and so the plaintiff must succeed on the first issue; if, on 



Ch. 1) MODE OP CONVEYANCE 225 

the 'other hand, he fail on the fifth issue, he must also fail on the jjS^^""^ 

first. "^^^^-^^"^ 

The rea l qiiestinn. therefore, for our consideration is, whether th e/ .^ 
p laintiff has succeeded in showing that the term of the 7th April wa s * 
s urrendered previously to the execution of the indenture of the 31s t 
of August, 1812. On this subject it was argued by the counsel for 
the plaintiff, first, that the circumstances of the case warranted the 
conclusion that there was an actual surre nder in fac t; and if that be 
not so, then, secondly, that they prove conclusively a surre nder in po int 
ofjaw. 

We will consider each of these propositions separately. And first, 
as to a surrender in fact. The subject-matter of the lease of the 7th 
April, 1812, was, it must be observed, a rpyprc;iQn; a matter, there- 
fore, lyingingrant^ an d not in liver y, afld of which, therefore, there «**«=^ 
could be no valid surrender in fact ot herwise than bv deed ; an d what i^ •^''^'^'^^^^^^^^ 
the plaintiff must make out, therefore, on this part of his case is, that, • » ^ 



^r^ 



befo re tTie exec uti on of the first le a se for nmety-nme year s, 'Ord and ^'A-i ^''^^^ 

^^^ fanta^y some deed not n ow forthcoming, assigned or Surrendere d AjM>'"*^ yj 
to the dean the interest which they had acquired under the lease o f 
the 7th of A pril. But what is there to warrant us in holding that any 
such deed was ever executed? Prima facie a person setting up a deed 
in support of his title is bound to produce it. But undoubtedly this 
general obligation admits of many exceptions. Where there has been 
l ong enjoyment of any right, which could have had no lawful orig in 
e xcept bv deed, then , in^favour of such enjoyment, all necessary deeds 
may be presumed, if there is nothing to negative such presumption . 
Has there, then, in this case been any such enjoyment as may render 
it unnecessary to show the deed on which it has been founded? The 
only fact as to enjoyment stated in this case has precisely an opposite 
tendency; it is stated, so far as relates to the property, the rent of 
which forms the subject of this action, namely the houses, &c., under- 
let to Reed, that no rent has ever been paid ; and t herefore, as to tha t 
port ion of the property included in the lease of April, 1812, there ha s 
c ertainly been no enjoyment incon sis tent with the hypothesis that that 
l ease was not surrendered. 

The circumstances on which the plaintiff mainly relies as establish- 
ing the fact of a surrender by deed, are the statements in the two leases 
to Osborn and Burt, that they were made in consideration, inter alia, 
of the surrender of the lease of the 7th April, and the fact of that 
lease being found among, the dean's instruments of title. These cir- 
cumstances, however, appear to us to be entitled to very little weight. 
The o rdinary course pursued on the renewal of a lease is for the les- 
see to deliver up'the old lease on receiving the new one, and the new 
lease usually states that it is made in consideration of the surrender 
of the old one. No surrender by deed is necessary, where, as is c om- 
monly the case, th e former l essee takes the new lease, and aU whi ch 
Aig.Pbop. — 15 



226 



DERIVATIVE TITLES 



(Part 2 



A-""^. 

Oj^ 




i s ordinarily done to warrant the st atement of the su rrender of _the 
old lease as a part of the consideration for granting the new one, is, 
t hat the old lease itself,, t h e parchment on which it is engrossed, is de- 
l ivered -UP. Such surrender affords strong evidence that the new 
lease has been accepted by the old tenant, and such acceptance un- 
doubtedly operates as a s urrender hv operation of law , and so both 
parties get all which they require. We collect from the documents 
that this was the course pursued on occasion of making the lease of the 
26th December, 1803, and the lease of the 7th of April, 1812; and we 
see nothing whatever to warrant the conclusion that any thing else was 
done on occasion of making the lease to Osborn and Burt. 

Wl iere a surrender by deed was understood by the parties to be 
n ecessary, as it was with reference to the term assigned to Barber and 
Parry^ th ere it was regularly made , and the deed of surrender wa s 
e ndorsed on the lease itself ! There is no reason for supposing that 
the same course would not have been pursued as to the lease of April, 
1812, if the parties had considered it necessary. If any surrender 
had been made, no doubt the deed would have been found with the 
other muniments of title. No such deed of surrender is forth-d oming, 
a nd we see nothing to justify us m presuming that any such dee d 
^j -1 eyer_existed. We may add, that the statement in the new lease, that 
l*^' the old one had been surrendered, cannot certainly of itself afford any 
evidence against the present defendants, who are altogether strangers 
to the deed in which those statements occur. 

It remains to consider whether, although there may have been n o 
.surren der in fact^ the rirrnrrT^tances of the case will warrant us in hold - 
i ng^^t there was a surrender by act and operation nf l^w- On the 
part of the plaintiff it is contenaec^^" Tiiat there is sufificient to justify 
us in coming to such a conclusion, for it is said, the fact of the lease 
of the 7th of April, 1812, being found in possession of the dean, even 
if it does not go the length as establishing a surrender by deed, yet 
furnishes very strong evidence to show, that the new lease granted to 
Osborn and Burt was made with the consent of Ord and Planta, the 
lessees under the deed of the 7th of April, 1812. And this, it is con- 
tended, on the authority of Thomas v. Cook, 2 B. & Aid. 119. and 
Walker v. Richardson, 2 AI. & W. 882, is sufficient to cause a surrender 
by operation of law. 

In order to ascertain how far those two cases can be relied on as 
authorities, we must consider what is meant by a surrender by opera- 
tion of law. This term is a pplied to cases where the owne r of a par- 
t icular estate has been a party to some act, t he validity of which he 
i s by law afterwards estopped from disputing, and which woul dno t 
e valid if his particular estate had continue d to exist. TFere the 
aw treats the doing of such act as amounting to a surrender. Thus, 
f lessee for years accept a new lease from his less or., he is.,e stoppe d 
rom saying that his lessor had not power to make the new leas e ; and, 
as the lessor could not do this until the prior lease had been surren- 



Ch. 1) MODE OP CONVEYANCE 227 

dered, the law says that the a c ceptance of such new lease is of itself a 
surrender of the former. So, if there be tenant for life, remainder to 
another in fee, and the remainderman comes on the land and makes 
a feoffment to the tenant for life, who accepts livery thereon, the ten- 
ant for life is thereby estopped from disputing the seisin in fee of 
the remainderman, and so the law says, that such acceptance of livery 
amounts to a surrender of his life estate. Again, if tenant for years 
accepts from his lessor a grant of a rent issuing out of the land and 
payable during the term, he is thereby estopped from disputing his les- 
sor's right to grant the rent, and as this could not be done during his 
term, therefore he is deemed in law to have surrendered his terra to the 
lessor. 

It is needless to multiply examples ; all the old cases will be found 
to depend on the principle to which we have adverted, namely,_an 
a ct done bv_or to the owner of a particular estate, the validity of which 
h e^ is estopped from disputing, and which could not have been done 
i f_the particular estate continued to exis t. ^]he-Ja w lJ Te?:£.^s3 j( s^thgt 
t lie .ac t itself araQlinta.to _ja ^u jTender. In such case it will be observed n 
there can be no question of mtention. Th e_ surrender is not the resu lt ^-{>t^;vvfirikf^ '^ 
o f intention. It takes place independently, and even in spite of inten ->^ / ^.^a^**'^ *^ 
t ion . Thus, in the cases which we have adverted to of a lessee taking^^^ . ,^ 

a second lease from the lessor, or a tenant for life accepting a feoff'- 't^^ct^-^^t'*'^''*^ 
ment from the party in remainder, or a lessee accepting a rent-charge 
from his lessor, it would not at all alter the case to show that there was 
no intention to surrender the particular estate, or even that there was ^ 'Ajl^ ^ /^ 
an express intention to keep it unsurrendered. I n all these rases th e ^ ^''^ / 
surre nder would be the act of law, and would prevail in spite of th e 
i ntention of the parties. ~ ^rhese principles are all clearly deducible 
from the cases and doctrine laid down in Rolle and collected in Viner's 
Abridgment tit. "Surrender," F and G, and in Comyns' Dig. tit. "Sur- 
render," T, and I, 2, and the authorities there referred to. But, in 
all these cases, it is to be observed, the owner of the particular estate, 
by granting or accepting an estate or interest, is a party to the act 
which operates as a surrender. That he agrees to an act done by the 
reversioner is not sufficient. Brooke, in his Abridgment, tit. "Sur- 
render," pi. 48, questions the doctrine of Frowike, C. J., who says — 
"If a termor agrees that the reversioner shall make a feoffment to a 
stranger, this is a surrender," and says he believes it is not law ; and 
the contrary was expressly decided in the case of Swift v. Heath, 
Carthew, 110, where it was held, that the consent of the tenant for life 
to the remainderman making a feoffment to a stranger, did not amount 
to a surrender of the estate for life, and to the same effect are the 
authorities in Viner's Abr. "Surrender," F, 3 and 4. 

If we apply these principles to the case now before us, it will b e 
seenthat they do not at all warrant the conclusion, that there was a su r- 
r ender^f the l ease o f the 7th of April, 181 2^ bvact_ and nperatian 
oit lawl Even adopting, as we do, the argument ot tHe plaintiff, that 



228 DERIVATIVE TITLES (Part 2 

the deliv ery up_ by Ord and Planta of the lease in qu e stion affor ds 
cogent evidence__of their having consente d t o the making of the ne w 
leas_e^stdl there is n^estoppe l in^ such a case^ It is an act which, like 
any other ordinary act in pais, is cap able of being explain ed, and its 
effect must therefore depend, not on any legal consequence necessarily 
attaching on and arising out of the act itself, but on the intention of 
the parties. Before the Statute of Frauds, the tenant in possession of 
a corporeal hereditament might surrender his term by parol, and 
therefore the circumstance of his delivering up his lease to the lessor 
might afford strong evidence of a surrender in fact; but certainly 
could not, on the principles to be gathered from the authorities, amount 
to a surrender by operation of law, which does not depend on inten- 
tion at all. On _all these g roun ds, we ar^ of opinion that there was in 
th is case no surrender by operation of l aw , and we should have con - 
sideredJ Jie case as ji yite clear had it not been for some modern rase s, 
to whi ch we ;, must n ow advert. 

TEe first case, we believe, in which any intimation is given that 
there could be a surrender by act and operation of law by a demise 
from the reversioner to a stranger with the consent of the lessee, is 
that of Slone v. Whiting, 2 Stark. 236, in which Holroyd, J., intimates 
his opinion that there could; but there was no decision, and he re- 
^ , served the point. This was followed soon afterwards by Thomas v. 
^^ ' /'Cooke, 2 Stark. 408, 2 B. & Aid. 119. That was an,adia D"of debt by^ 
r'*'/\fl^ j l andlord against his tenant from year to year, under a parol demise . 
/ The defence wal, that the defendant Cooke, the tenant, had put an- 
^ other person (Parkes) in possession, and that Thomas, the plaintiff, 
1 had, with the assent of Cooke, the defendant, accepted Parkes as 
/ his tenant, and t hat so the tenancy of Cooke had be en dete rmined. 
V^T hf Q o urt o f King's Bench held, that the tenancv""was deterrn ined. 
b y act and operation of law. 

It IS maiier oi great r^ret that a case involving a question of sO' 
much importance and nicety, should have been decided by refusing 
a motion for a new trial. Had the case been put into a train for 
more solemn argument, we cannot but think that many considerations 
might have been suggested, which would have led the Court to pause 
before they came to the decision at which they arrived. Mr. Justice 
Bayley, in his judgment says, the jury were right in finding that the 
original tenant assented, because, he says, it was clearly for his bene- 
fit, an observation which forcibly shows the uncertainty which the 
doctrine is calculated to create. 

The...actg>ii Lpais which bind parties by way _of estoppel arejajiijew, 
a nd are pointed out by Lord Cok e. Co. Little. SSTaT'^'Tfiey are all "acts 
which anciently really were, and in contemplation of law have always 
continued to be, a cts o fjl£tori.et y. not less formal and sol emn than the 
execution of a deed, , su c h as livery^ entry, acceptan ce of an estate, and 
tbe like^ Whether a party had or had not concurred in an act of this 
sort, was deemed a matter which there could be no difRculty in ascer- 



*pi^ 



Ch. 1) MODE OF CONVEYANCE 229 

taining, and then the legal consequences followed. But in what uncer- 
tainty and peril will titles be placed, if they are liable to be affected 
by such accidents as those alluded to by Mr. Justice Bayley. If th e 
d octrine of Thomas v. Cooke should be extended, it may very much 
a ffect titles to long terms of years, mortgage terms, for instance. _i n 
which it frequently happens that there is a consent, express or implie d, 
by the legal termor to a demise from the mortgagor to a third person. 
To hold that such a transaction could, under any circumstances. 
a mount to a surrender by operation of law, would be attended wit h 
most serious rnnsegnernpf^s, 

The case of Thomas v. Cooke has been followed by others, and acted 
upon to a considerable extent. Whatever doubt, therefore, we might 
feel as to the propriety of the decision, that in such a case there was a 
surrender by act and operation of law, we should probably not have 
felt ourselves justified in overruling it. And, perhaps, the case itself, 
and others of the same description, might be supported upon the 
ground of the actual occupation by the landlord's new tenants, which 
would have the eft'ect of eviction by the landlord himself in supersed- 
ing the rent or compensation for use and occupation during the con- 
tinuance of that occupation. But we feel fully warranted in not ex - -yy^^^ 
t ending the doctrine of that case, which is open to so much doub t, 
especially as such a course niight b e attended with very mischievou s ^-^VT»-/2L^ 
c onsequences to the security of titles . 

If, in compliance with these cases, we hold that there is a surrender 
by act and operation of law where the estates dealt with are corporeal ..^...^ 

and in possession, and of which demises may therefore be made by VivC"^^ 
parol, or writing, a nd where there is an open and notorious shifting o f »- — - 

t he actual poss ession, it does n ot follow that we should adopt the^same ' 
d octrine where reversions or mcorporeal hereditaments are disposed o f, 
w hich pass only by deed . With respect to tnese, we'think we oughtto 
abide by the ancient rules of the common law, which have not been 
broken in upon by any modern decision, for that of Walker v. Richard- 
son, 2 M. & W. 882, which has been much relied on in argument, is 
not to be considered as any authority in this respect, inasmuch as the 
distinction that the right to tolls lay in grant was never urged, and 
probably could not have been with success, as the leases, perhaps, 
passed the interest in the soil itself. Moreover, according to the re- 
port of that case, it would seem that the new lessees had, before they 
accepted their lease, become entitled to the old lease by an actual assign- 
ment from the old lessee. If this were so, then there could, of course, 
be no doubt but that the old lease was destroyed by the grant and ac- 
ceptance of the new one. It is, however, right to say, that we believe 
this statement to have crept into tlie report inadvertently, and that 
there was not, in fact, any such assignment. The result of our anxious 
consideration of this case is, that the verdict on the issues on the first 
plea and on the rejoinder to the replication to the fifth plea, must be 



230 DERIVATIVE TITLES (Part 2 

entered for the defendants, and as those pleas go to the whole cause 
of action the ju dgment must be for them. ^t-cd^Cj • 

In the case, as it was originally stated, it dia not appear that there 
had been any change of dean since the original demise in 1803. We 
desired to have the case amended on this point, in order that the fact 
might appear, if the case should be turned into a special verdict. Eor 
durin g the incumbency of the dean, who made the lease for ninetv-nin e 
y ears, that lease would be good independently of the private _act, and as 
t he immediate reversio n ^ o n which the defendant's lease, depended^ was 
ass igneB to the dean by Barber and Parry previously to the demise o f 
t he 29th of January. 1814. th at reversion un doubtedly passed to O s- 
hnni^gnd j^irj^ fii-irl would enablethemTortKeplaintiff claiming under 
them, to sue for the rent so long as tlie estate of the same dean con- 
tinued, whether the lease for ninety-nine years was or was not war- 
ranted by the act ; and '^n _Hip pbintifF might possibly have been entitl ed 
t o judgment non obstante veredicto. It appears by the case as now 
amended, that the Bishop of Lincoln who was the dean granting the 
leases of ninety-nine years, ce ased to be dean , and was succ ££ded by 
Dr. Van Mildert in October, 1820, before any part of the rent sought 
to be recovered in this action had accrued due, and therefore no ques- 
tion on this head arises. 

N either will the second private act stated in the case a M_tl2e _plain.- 
tiff. It appears that, in 1820, the difficulties in which the parties had 
involved themselves by neglecting to get a proper surrender of the 
lease of the 7th of April, 1812, was brought under the consideration 
of the Court of Chancery, in a suit there pending relative to the af- 
fairs of the Bowes family. Master Cox, by his report of the 15th of 
February, 1 1820, st ated, that he was ofo £inion that both t he leases of 
ni nety-nine years were voTcI, the hrst because it was m a de when t he 
o riginal term of forty years wardutstanding in Barber and Parry , and 
the latter b ecause at the time of its creation the lease of the 7th of 
April, 1^12, was still outstanding, t hus showing clearly his opinion that 
nothing had happened to cause a surrender of that lease by operation 
of law ; and he re commended that an act of Parliament shou ld be ob- 
t ained to remedy the defect . His report was afterwards confirmed, and 
the second act stated in the case was accordingly obtained. The act 
received the Royal assent on the 15th of July, 1820, and i^ wa_s..the'reb v 
e nacted, that the lease of the 29th of January, 1814, should be vali d 
to all intents and purposes ; and further, that immediately after the 
passmg of the act, the leases of the 26 th of December, 180 3, the 7th of 
A pril. 1812. a nd the 31st of August, 1812 , s hould be void to all intents 
and purposes. Th e' effect of this was to degtfoy altoget her t he reve r- 
si on in respect of which the rent now sought to be recovered was pay- 
able,^ and it may therefore well be doubted whether, even if all the is- 
sues had been found for the plaintiff, he could have had judgment. It 
is, however, sufficient for us to say that the act certainly does not enti- 
tle the plaintiff, to any thing which he would not have been entitled to 



Ch. 1) MODE OF CONVEYANCE 231 

if no such act had passed. More especially when it is considered, that, 
by the saving clause, the defendants are excepted out of the operation 
of the act. The re sult_ tl"'^'"pf'^TC ^'^i ^J2^ the verdict on the 1st and 5 th 
is sues must be entered for the defendan t._a n_d on the other issues for 
t he plaintiff , and the judgment will be for the defendant. 
Judgm ent for the de fendant.^ ^ 




XII. Assignment 

BLACKSTONE'S COMMENTARIES. 

An assignment is p roperly a transfer, or making over to another, of 
t he right one has in any estate ; but it is usually applied to an estate for 
life or years. 

Book 2, star p. 326. 



9r^ 



XIII. Defeasance 

BLACKSTONE'S COMMENTARIES. 

A defeasance is a collater aLjkcd. made at the same time with a feo ff- 
ment or other conveyance, contammg certa i n conditions, upon the pe r- 
fo rrnance of which the estate then created may be defeated or totally 
u ndone . -^ 

Book 2, star p. 327. 

33 See 5 Irish Jurist, 117. 

"In tliis case, the d efeiidnnt hciTip thp lessee in possession of the premises , 
t he pliiiutiff. his huidlord . wUh hi.^; consent, let them to a new tenant., and 
piit him in nos.session . and Tliscliarged the defendant from his liability as 
tenant. The judire who tried the case held that these facts constituted a 
s urrender by oijeration of law , and therefore a defence against the plaintiff's 
clafmfor rent. The correctness of that holding has been brought into ques- 
tion before us in consequence of tlie opinion expressed by the Court of Ex- 
chequer in Lyon v. Reed, 13 M. & W. 2.S5. .305-.310 (1844); but we are of opin- 
ion that it is correct. * * * Where there is an agreement to surrender a 
particular estate, and the possession is changed accordingly, it is more prob- 
able that the legislature intended to give effect to an agreement so proved as 
a surrender by operation of law than to allow eitlier party to defeat the 
agreement by alleging the absence of written evidence. Although we do not 
n gspnt to flif^ observations upon the line of ca^-es. from Thomas v. iCn dk. 
d ^wnward^ i i. in the" learned and able iudLrment given in Lyon y. Keed. IJL -M. 
& \V. 283 (lM^'4>,"w e' wish to express our entire concuri'enil'e m the decision la 
t l^at ca.st^r " Lord "Denman, C. J., in Mckells v. Atherstoue, 10 Q. B. !J44 
(1847). See. also, Wallis v. Hands, [1893] 2 Ch, 75; Feun^r v. Blake, [1900] 
L. R. 1 Q. B. 42G. 

As to surrenders by operation of law against the intent of the parties, see, 
further, Van Reussalaer's Heirs v. Tenniman. 6 Wend. 569 (1831); Smith v. 
Kerr. lOS N. Y. 31, 15 X. E. 70 (1887); Flagg v. Uow, 99 Mass. 18 (186S); 
Thomas v. Zumbalen, 43 Mo. 471 (1869) ; Johnson v. Northern Trust Co., 265 
111. 263, 106 N. E. 814 (1914); U'N'eil v. Pearse, 87 N. J. Law, 382, 94 Atl. 312 
(1915). 



//-^- 



232 DERIVATIVE TITLES (Part 2 

XIV. DEVIS15 

LITTLETON'S TENURES. 

Also, in some boroughs, by the custom, a man may devise by h is 
t estament his lands and Jenements^ which he hath in fee simple withj ji 
t he same bo roug h at the time of his death ; and by force of such devise, 
he to whom such devise is made, after the death of the devisor, may 
e nter into the tenements so to him devised, to^ have arid to hold t o 
him, after the form and effect of the devise^, without any livery Q f 
seisin thereof to be made to him. &c. 

Section 167.^* « 



SECTION 2.— UNDER STATUTE OF USES 
L UsiiS BEFORE THE Statute of Uses 



Shortly after the Norman conquest a practice began to grow up of 
ma king feoffments of lands to trusted friends to be held on behalf o f 
th ef c offer or a third person or to be disposed of as directed at the tini e 
of the conveyance or thereafter .^ ^ Under such conveyances t he leg al 
o wnership was of course in the feoffee , and in his hands was subject 
to all the burdens and iiiciden^of the feudal land law, to avoid many 
of which it bec ame common to make the conveyances to two or mox £-as 
j oint tenant s. '^^ This method of disposition in its early use was re- 
sorted to i n order that corporations, societies and individuals that we re 
i ncapable under the law of owning land might have the benefit there - 
qV^'' Later it was availed of to secure the land to certain persons after 
the death of the f coffer or to such persons as he should nominate by his 
last will, and also as a means of avoiding forfeiture by reason of t rea- 
son, etc.^^ 

84 By the Statute of Wills (32 Hen. VIII, c. 1), power NYfls given to every 
t enant in fee simple to dispose o f all liis lands hold by sooai^o temuv, aii(i_aL 
twb-thiras or b£s lanas neld D y~l^n^ht-sei:xi£a> The Statute of 12 Car. II, c. 
'2i, wnicn converted tlie tenure by kuiglit-service into socage tenure, had the 
effect of making all lands of fre ehold tenure disp osable by will. FurtlTer, on 
the history of the law 'or wnis, seelJostigan's "Cases" on Wills, pp. 3-9. 

There were other modes of conveyance by special custom, as in the case of 
copy hold lands. On this the student may well consult 2 Blackstone's Commen- 
taries, c. 22. , 

35 2 P. & M. Hist. Eng. Law (2d Ed.) 231. See the same, pp. 228-232, for an 
historical account of the origin and growth of "uses." See, also. Holmes in 1 
L. Q. R. 1G2 et seq. 

so Williams, R. P. (22d Ed.) 170, 171; Leake, Prop, in Land, 80. 

37 2 P. & M. Hist. Eng. Law (2d Ed.) 231. 

38 Sanders, Uses and Trusts, 10, 17. 




Ch. 1) 1^1^^^ MODE OP CONVEYANCE 233 



The p^s on to whom the land_was conveye d came to be ca lled the 
"feoffee^/ tp uses ." the person on whose behalf the land was held the 
"cestui ^iueuse ," and the beneficial interest which the "cestui" had was 
known as the "use." T his ''use" was not in any sense ownership . On 
t he contrary it dist in ctlv was not ownershi p.^° The feoffee to uses was 
supposed to deal with the property as directed under the confidence 
in which the conveyance to him had been made and to allow the cestu i 
que use to have the ben efi cial occupation of the land and to take t he 
p rofits thereof . The cestui que use in possession with the consent of 
the holder of the legal estate, however, was in the position, so far as the 
common law courts were concerned, of a tenant at will .^" and a cestui 
que use out of possession in entering upon the land without consent 
could be proceeded against in those courts as a trespasser. 

For many years after the practice of conveying land to uses had be- 
come common there was no really effective way of compelling the fe- 
offee to uses to observe the terms of the confidence, nor remedy against 
one who had proved unfaithful,*^ Some time during the reign of Ed- 
ward III, however, it seems that the Chancellor, the head of the rapidly 
broadening Court of Chancery, began to entertain proceedings agains. t 
s uch feoft'ees to compel their observance of the trust and the directions \y 

q f^tlie person on whose behalf they held. *'^ During the time of Henry 
VI it was held that the h eir of the feoffee to uses was subject in the 
chancery to the same duties as the feoffee himself,*^ and only a little 
later the remedy was extended as against the t ransferee of the feoft'e e 
to uses who took as a volunteer or with notice.** Now that a really 
eft'ective means of enforcing the terms of the trust was at hand, the 
c u stom of conveying lands to uses became even more popular, s o pop- 
ular in fact that Blackstone says that during the civil commotions be - 
tween the, houses of Lancaster and York "uses grew almost unive r- 

After the jurisdiction of the Chancellor to enforce uses became well 
established and settled, g radually the use came to be considered th e 
s ubject of ownership apart from the ownership of the land . Gour_t_s 
oi law recognized still only the legal estates; to the law courts there 



f A_.use_ is a trust or confidence reposed in some other, which is not issuing 
t of the hind, but as a thuig coUater al. annexed in privit y to the estate ot 
the laud, and to the person touching the land, scilicet, t hat cestui que use shal l 
t ake the profit, and that the terre-tenant shall make an estate according to 
his direction. So as cestui que use has neither jus in re nor jus ad rem, %^ 
O Qly a confidence and trust, for which he had no remedy b.y the common law , 
but for hreach of trust his remedy was only by suDpoena in chancery." Co. 
Litt. 272b. 

4 Leake, Prop, in Land, 79. 
- -Ai Jenks, A Short History of English Law, p. 97. In Williams, R. P. (22a 
Ed.) 171, it is said that there was a remedy for breach of faith in the ecclesias- 
tical courts. See Holmes in 1 L. Q. R. 162 et seq. 

42 Keilw. 42, pi. 7, per Vavasour, J. 

*3 Id. 

4* r>urgess V. Wheate, 1 Eden, 177, 218 (1759), per Mansfield, C. J. 

45 2 Bl. Comm. *329. 



234 DERIVATIVE TITLES (Part 2 



■r: 



could be no such interest as a "use." T lie "use" in equity tlius bec ame 
a n equ ita ble estate and equitable ownership therein was established . * ® 

The "use" could be transferred, inherited, and devised, and the 
equitable ownership could be divided up into equitable estates. It w as 
p ossible to have in the "use" estates in fee simple , fee taiL etc., in pos- 
session, or by way of remainder or reversion .^ ^ The legal estates were 
restricted in their creation and conveyance by the demands of the law 
regarding the seisin,*'* but th ese equitable estates were not subi£ £L.to 
s uch restrictions, there being no seisin^m the case of a "use ." Accor d- 
i ngly an equitable estate of freehold could be provided for to arise in 
futuro.. S uch uses were known as. springing uses . And it was possible 
to hmit a use to a man and his heirs that should upon the happening of 
an event specified shift over to another person and his heirs. Such 
uses were known as s hifting uses,. Also uses co uld be devised by wi ll, 
for no livery of seisin was required in the transfer of a use. 

J n case of the death of the cestui que use intestate, the use was held 
to descend to his heirs according to the course of the common law . The 
equity courts allowed great latitude in the creation of equitable estates 
by purchase, but they djd not allow the common law of descent to i >e 
vari ed_even in the case of a use. *^ 

^he use ccnie to be consirlered as a sort of metaphysical entity in whic h 
_ re miaht he estates very similnr to those which cnnhl ht^ creati-il in liind . 
e states in possession , reiiiaitide r. reversion, e states di^sceiidiljle in this way or 
that." Maitland, EquTty, 33. 

47 Id. 

48 "A feoffment might be made with an express appropriation of the seisin 
to a series of estates in the form of particnlar estiite and remainders, and the 
livery to the inunediate tenant was then effectual to transfer tlie seisin to or 
on behalf of all the tenants in remainder, according to the estates limited. Hu t 
f uture estates could only be limited in the form of remainders, and any U mi- 
t allons operating to shift the seisin otherwise than as remainders expecta nt 
v ipon the determination of the preceding estate weie void at common law . 
Thus, upon a feoffment, with livery of seisin, to \. for life or in tail, and npou 
the determination of his estate to B., the future limitation takes effect as a 
i-emainder immediately expectant upon A.'s estate. But upon a feoff'ment to 
A. in fee or for life, and after one year to B. in fee ; or to A. in fee, and upon 
his marriage to B. in fee; or to A. in fee or for life, and upon B. paying A. a 
sum of money to \^. in fee. — tl jie limitations shifting the seisin from A. to B. 



T he exigencies. of tenure required that the seisin or immediate freehold should 
n£.ver be in abeyance, but that there should at all times be a tenant investejj L 
^ ^th the seisin ready, on the one hand, to meet the claims of the lord for the 
duties and services Of the tenure, and, on the other hand, to meet adverse 
claims to the seisin, and to preserve it for the successors in the title. This 
rule had important effects upon the creation of freeliold estates; for it follow- 
ed as an immediate consequence of the rule, as also from the nature of the es- 
sential act of conveyance by livery of seisin, t hat a grant of the freehold cou ld 
n ot be made to comm ence at a future time, leaving the"l(Jl!»IU'y \ acant duri_i ig 
tjLte interval. As 11 I'Ulisd'LiuehOtJ bt the same rule if a feoffment were made to 
A. for life and after his death and one day after to B. for life or in fee. the 
limitation to B. was void, bec-ause it would leave the freehold without a tenant 
or in abe\Lance for a day after the death of A." Leake, Prop, in Laud, 33. 
4 8 Sugden's Gilbert on Uses, 26 et seq. 



Ch. 1) MODE OF CONVEYANCE 235 

I n jL use there \^as no such thing as dower or curtesy.^ " and it could 
not be reached by creditors. ^^ Nor cottlj a use be tort'elted for felony 
or treason.^'' The co mmon law incidents of tenure were not applicab le 
to the use. It is not to be wondered that Bacon wrote : "A man, that 
had cause to sue for land, knew not against whom to bring his action 
or who was the owner -oi it. Th e wife was defra uded of her thirds ; 
th e husband of his curtesy : the lord of his wardship, relief, hcriot. an d 
ej^cheat ; the creditor of his extent for debt: and the poor tenant of hi s 
l ease." ^^ "To remedy these inconveniences abundance of statutes were 
provided, which made the lands liable to be extended by the creditors 
of the cestui que use (Stat. 50 Edw. Ill, c. 6; 2 Ric. II, sess. 2, c. 3 ; 19 
Hen. Vli, c. 15); made him liable to actions for waste (Stat. 11 Hen. 
VI, c. 5) ; established his conveyances and leases made without the con- 
currence of his feoffees (Stat. 1 Ric. Ill, c. 1) ; and gave the wardship 
of his heir, with certain other feudal perquisites (Stat. 4 Hen. VII, c. 
17; 19 Hen. VII, c. 15)."^* 

Th ese uses were created upon a cpmmon law conveyance, e. g.. a 
feoffrcenj^nrl nkn jnflpppnrlpnfly nf such a conveyance. A feoffment 
tFA. and his heirs to the use of B. and his heirs of course created a use_ 
i n fee simple in B . So commonly were conveyances made to hold to 
the use of the feoffer that it was presumed that the use was to remain 
in him."''^ I n such cases the use was said to result, and was known as a '"' 
r esulting use . This presumption co uld be rebutted bv an express lim i- 
ta tion otTTTe use to designated parties ; ^" also by showing that consider- 
ation was given for the conveyance or that a consideration was ex- 
pressed.^^ Relationship between feoft'er and feoffee was also sufficient 
to rebut the presumption of a resulting use. And the use could result A^^c-k 
in part, as in a feoffment to A. and his heirs to the use of A. for life. 
There the use is in A. for life, and the balance of the use in fee has 
resuhed to feoff'er.^* Co nsideration and recitals of consideration ac- ^ 
c ordingly became very important in conveyancing. 

5 Id. pp. 48, 49. 62 Id. pp. 77, 79. 

51 Id. pp. 75, 7G. 53 L'se of the Law, 153. 

54 2 l?!. Coiiim. *332. 

55 Beckwith's Case, 2 Co. 5Sa (15F9) ; Armstrong v. Wolsey, 2 Wils. 19 (1755). 
See Shoitiidiie v. Lauiplusli, 2 Salk. 67S, 2 Ld, Rayui. 70S, 7 Mod. 71 (1702). 

5 Stephen's Case, 1 Leon. 138 (15SS) ; Same's Case, 2 Roll. Abr. 791. 

6 7 Porter's Case, 1 Co. 24a (1592). See, generally, Sanders, Uses and Trusts, 

60, til. "If the feoffment or conveyance of t*he legal possession be made for a / ^ 

particular estate only as a gift in tail, or a lease for life or for years, th e ry\^i/i4/9^ ^^ 

t enure alone thereby created^ with its attendant services and obligations. sur >- ^-' 

p lied a consideration sutficient to prevent tne use from resu lting, a nd to carr y 

i t to the donee or lessee : and this doctrine applies at the present cTay . But au 

express use declared in favor of another would rebut the use implied from 

the tenure in such cases." Leake, Prop, in Land, 84. 

58 Co. Litt. 271b; Sanders, Uses and Trusts, 101. And a consideration gi v- 
e n or recite d will be deemed to be on account of the use expressly provided fo r. 
Sanders, CSSs and Ti-ustsri02! A te6Ttment in fee to the use of the feoffo r 
f or life or years w ill leave the iise in fee in tht^ f^of[ee. for to allow the un - 
disposed of use to result would accomplish by merger a destruction of the use 



dAK^''^ 



(^ 



236 DERIVATIVE TITLES (Part 2 

' Uses arose independently of a common-law conveyance by an agr ee- 
ment of sale of the land supported by a valuable consideratio n.^^ Also 
by a declaration o r agreement in a writing under seal by the owner who 
was seised that he would thereafter "stand seised" for the benefit of 
some near relative.®" The former came to be known as a "b argain an d 
sale," the latter as a "covenant to stand seisgd." 



II. The Statute: of Ushs 

Where by the common laws of this realm, l ands, tenements an d 
hereditaments be not devisable by testament, nor ought to be transfer - 
red frorn one to another, but by solem n livery and seisin, matter of rec- 
ord, writing sufficient made bona fide, without covin or fraud ; yet 
nevertheless divers and sundry imaginations, subtle inventions and 
practices have been used, w hereby the hereditaments of this realm have 
b een conveyed from n np t(7 ^^nntlipr by fra ,udu1ept fe offments, fines, re - 
covenes, anH ntlipr a'^qnr^nrp g craftilv made to secret uses, intents and 

■ ■ ' — ~" 7 ■ — -^. -■■■ _ ' 

t rusts ; and al so by wills and testame nts, sometime made by nude parolx 
and words, sometime b y signs and tokens , and som etime by w riting, 
and for the most part made by such persons as be visited with sickness, 
in their extreme agonies and pains, or at such time as they have scantly 
had any good memory or remembrance ; at which times they being pro- 
voked by greedy and covetous persons lying in wait about them, do 
many times dispose indiscreetly and unadvisedly their lands and in- 
heritances ; by reason whereof, and by occasion of which fraudulent 
feoffments, fines, recoveries, and other like assurances to uses, confi- 
dences and trusts, divers and many heirs have been unjustly at sundry 
times disinherited, the lords have lost their wards, marriages, reliefs, 
harriots, escheats, aids pur fair fils chivalier & pur file marier, jan d 
s cantly anv person can be certainly assured of any lands by th,e rn pur- 
c hased, nor know surely against whom they shall use their action s^r 
e xecutions for t lidjij ights. titles and duties ; also men married have 
lost their tenancies by the curtesy, women their dowers, manifest per- 
juries by trial of such secret wills and uses have been committed; the 

for life or years in the larger use in fee, which would manifestly be contrary 
to the intention. But it would be* otherwise in case the feoffor should provide 
for the use to himself and the heirs of his body, for there a merger woxild be 
impossible. Dyer, 111b, in margin. 

59 1 Co. Rep. 176a (1582-1584); Barker v. Keete, 1 Freem. 249, 2 Vent. 35, 
1 Mod. 262, 2 Mod. 249 (1677), where a rent of a peppercorn was deemed suffl- 
■cient to raise a use upon a bargain and sale. 

60 Sharington v. Strotton, Plowd. 298 (1565). See Ricker v. Brown, 183 Mass. 
424, 67 N. E. 353 (1903). "But a covenant was not necessary; a declaration 
of intention made by deed poll would serve equally well (Sljep. I, 508) ; a mere 
parol promise was not sufficient (Collard v. Collard, Popl. 47, Serj. Moore's Rep. 
687, 2 Anders. 64 [1593] ; Page v. Moulton, Dyer, 296a, pi. 22 [1570])." Challis 
U. P. (3d Ed.) 419, 420. 



Ch. 1) MODE OF CONVEYANCE 237 

King's Highness hath lost tlie profits and advantages of the lands of 
persons attainted, and of the lands craftily put in feoffments to the uses 
of aliens born, and also the profits of waste for a year and a day of 
lands of felons attainted, and the lords their escheats thereof ; a nd many 
ot her inconveniences have happened and daily do in cre ase among the 
K ing s subj ects , to their great trouble and inquietness , and to the utter 
subversion of the ancient common laws of this realm ; for the extirping 
and extinguishment of all such subtle practiced feoffments, fines, re- 
coveries, abuses and errors heretofore used and accustomed in this 
realm, to the subversion of the good and ancient laws of the same, and 
to the intent that the King's Highness, or any other his subjects of this 
realm, shall not in any wise hereafter by any means or inventions be 
deceived, damaged or hurt, by reason of such trusts, uses or confi- 
dences: it may please the King's most royal majesty, That it may be 
enacted by his Highness, by the assent of the lords spiritual and tem- 
poral, and the commons, in this present parliament assembled, and by 
the authority of the same, in manner and form following; that is to 
say. T hat where any person or persons stand or be seised, or at any 
ti me hereafter shall happen to be seised, of and in any honours, castle s, 
r nanors. lands, tenements, rents, services, reversions, remainders .o r <■ 

other hereditame nts^o t he use, confidence or trust of any other per - /T" 

s on or persons. oF ot any body politick, b}^ reason of any bargain, sale , 
fe offment, fine, recovery, covenant, contract, agreement, will or othe r- 
wise^ J) V any manner means whatsoever it be; that in every such. case, 
all and every such person and persons, and bodies politick, t hat have o r 
h ereafter shall have any such use, confidence or trust, in fee simple , 
f e_e tajl, for term of life or for years, or otherwise, or any use. confi <- 
dence-or trust, in remainder or reverter, shall from henceforth staad 
and be seised, deemed and adjudged in lawful seisin. esta ^T ^^^^ P""- 
s ession of and in the same honours, castles, manors, lands, tenement s- 
rents, services, reversions, remainders, and hereditaments, with their 
appurtenances, to all i ntents, constructions and purposes in the law, o f 
a nd jn .such like estates a s^ tliey had or shall have in use, trust or con fi- 
d ence of or in the same; "and tnat the estate, title, right and possession 
that was m such person or persons that were, or hereafter shall be 
seised of any lands, tenements or hereditaments, to the use, confidence 
or trust of any such person or persons, or of any body politick, be from 
henceforth clearly deemed and adju dged to be in him or them tha t 
have, or hereafter shall have^ such use^ confidence or trust, after suc h 
q uality, manner, fo rm and rondilinn .qg tlipy HaH hpfnrp in or tn the 
use, confidence or trust that was in them. 

n. And be it further enacted by the authority aforesaid, Tliat where 
divers and many persons, be or hereafter shall happen to be, jointly 
seised of and in any lands, tenements, rents, reversions, remainders or 
other hereditaments, to the use, confidence or trust of any of them 
that be so jointly seised, that in every such case that those person or 
persons which have or hereafter shall have any such use, confidence 

S^e^ttte of Us<:s.-. — 



238 DERIVATIVE TITLES (Part 2 

or trjst in any such lands, tenements, rents, reversions, remainders or 
hereditaments, shall from henceforth have, and be deemed and ad- 
judged to have only to him or them that have, or hereafter sliall have 
any such use, confidence or trust, such estate, possession and seisin, of 
and in the same lands, tenements, rents, reversions, remainders and 
other hereditaments, in like nature, manner, form, condition and course 
as he or they had before in the use, confidence or trust of the same 
lands, tenements or hereditaments ; saving- and reserving- to all and 
s mgular persons and bodies politick, the ir heirs and successors, other 
than those person or persons which be seised, or hereafter shall be 
seised, of any lands, tenements or hereditaments, to any use, confi- 
dence or trust, all such right, title, entry, interest, possession, rents a nd 
action, as thev or any of them had, or mi.ght have had before the ma k- 
ing_£tiJllis_acjt. 

III. And also saving to all and singular those persons, and to their 
heirs, which be, or hereafter shall be s eised to any use , al j^such for mer 
r ij^ht, title, entry, interest^_ possession. rents, customs, services an d ac- 
ti on. as thev or anv nf t]'\p\]^ miV1-||- \^ ^ye. had tn his or their own proper 
u se, in or to any manors, lands, tenements, rents or hereditamgn js. 
whereof thev be . .or hereafter shall be seised to any other us e, as if this 
present act had never been had nor made ; any thing contained in this 
act to the contrary notwithstanding. 

IV. And where also divers persons-stand and be seised of and in any 
lands, tenements or hereditaments, in fee-simple or otherwise, to the 
use and intent that some other person or persons shall have and per- 
ceive yearly to them, and to his or their heirs, one annual rent of x. li. 
or more or less, out of the same lands and tenements, and some other 
person one other annual rent, to him and his assigns for term of life or 
years, or for some other special time, according to such intent and use 
as hath been heretofore declared, limited and made thereof : 

V. Be it therefore enacted by the authority aforesaid. That in ever y 
su ch case t h£,aaJIL £. persons, t heirhe irs and assigns, that have such us e 
a nd interest, to have an J perceive any such annual rents out of an y 
l ands, tenements or hereditaments, that they and every of them, the ir 
h girs and assigns, be adjudged and deemed to be in possession a nd 
s eisin of t he samp rpnt. nf anH I'n qhpIi HV^ PQfaf^ oc th^y In^^ j^^ the 
title, interest or use of the said rent or profit, and as if a sufficient grant, 
or other lawful conveyance had been made and executed to them, by 
such as were or shall be seised to the use or intent of any such rent to 
be had, made or paid, according to the very trust and intent thereof, 
and that all and every such person and persons as have, or hereafter 
shall have, any title, use and interest in or to any such rent or profit, 
shall lawfully distrain for non-payment of the said rent, and in their 
own names make avowries, or by their bailiffs or servants make conis-. 
ances and justifications, and have all other suits, entries and remedies 
for such rents, as if the same rents had been actually and really granted 
CO them, with sufficient clauses of distress, re-entry, or otherwise, ac- 



Ch. 1) ' MODE OF CONVEYANCE 239 

cording to such conditions, pains, or other things hmited and appointed, 
upon the trust and intent for payment or surety of such rent. 
St. 27 Hen. VIII, c. 10.«^ 



III. Uses After Statute of Uses 

{A) Uses Raised i n Connection with a Common-Law Conveya nce 

GREEN V. WISEMAN. 

(Court of Common Pleas, 1600. Owen 8G.) 

In an ejectment . The defe ndant pleaded that a feoffment was ma de 
to the useof T. S. the lessor of the defendant , who by force thereof, 
and of tETstatute. was seised, and m ade a lease to the defendan t ; and 
that one Green entered and made a lease to the [>laintiff, and did not 
say that he entered upon J. S. And all the question was, whethe r 
when a feoffment is made to the use of another, if he have such a seisi 



b efore his entrv. whereof he may be disseised . 

Glanvile. He hath no freehold, neither in deed nor in law before 
entry. 

WalmselEy. This is contrary to all the books: for a possession 
in law is so translated from the feoffee to cestui que use, that the wife 
of the feoffee shall not be endowed. 

Owen. He ought to have alleged a disseisin. 

Anderson. As he might have possession by force of a devise at 
common law, so he shall have possession of the land here by force 
of the statute, and it is in cestui que use, before agreement or entry, 
but if he disagree, then it shall be out of him presently but not before ^ ^ fZ 
he disagree. And after viz. Hillar. 42 Eliz. ^ . .^ 

Williams moved the case again, and W almselEy said then, that h e ^T*^'^* -^ 
m ight be disseised before his entry or agreement, and the pleadi ng ^ i^, 
s hall be that he did enter, and did disseise him, but he shall not hav e 
a trespass without actual entrv,_ for^jhatisgroun ded o n a pos session : 
Glanvill agreed to this, and advisedWTiliams to adventure the case 
thereupon. *^^ 

ci As^ to how far the Statute of TTses is a part of the law of the America n ^l^ft^^fy 
states.'-s ee 1 Perry oh Trusts (titb Ed.) § 2'J!)n. " ' ' ^ 

62 See Heelis v. Blain, IS C. B. (N. S.) 90 (1864) ; Hadfield's Case, L. R. 8 C. 
P. 306 (1872) : Witham v. Brooner, 63 111. 344 (lS72j ; Hutchius v. Heywood, 50 
N. H. 491 (1871). 

In Egerton's Case, Cro. Jac. 525 (1619), it was held that a fine levied "to 
the use of the wife of J. S." save to the wife an estate for life only. Lucas 
V. Brandreth, 28 Beav. 274 (ISCO) ; McElroy v. Same, 113 Mass. 509 (1S73) ; 
Nelson v. Davis, 35 Ind. 474 (1871), ace 




24:0 DERIVATIVE TITLES (Part 2 

SHORTRIDGE v. LAMPLUGH. 

(Court of King's Bench, 1702, 2 Salk. 678.) «' 

H. b rought covenant as assignee of a reversj gn, and shewed, that 
tlie lessor, in consideration of 5/. b argained and sold to him for a 
year, and a fterwards released to him and his heirs, y irtute quarundam 
indentur, bargainse venditionis & relaxationis necnon vigore statuti de 
usibus, &c. he was seised in fe e- And it was objected, that the use 
must be intended to be to the releasor and his heirs, because no con- 
sideration of the release nor express use appeared by the pleading; 
so that without considering the operation of tlie conveyance, tlie ques- 
tion was upon the pleading. Whether the use shall be intended to th e 
releasor, unless it be averred to be to the releasee ? Et per Holt, C. 
J., to which the rest agreed. 

This way of pleading was certainly good before the statute 27 H, 
8, so is Plowd. 478; and many precedents in Co. Ent. of feoffments 
averred in the same manner ; for the use was a matter that was ex- 
trinsical to the deed, and depended upon collateral agreements at 
common law, and then the use might, as since the statute of frauds 
by writing, be averred by parol, and therefore in pleading the conv ey- 
a nce was taken to the use of him to whom the convevance was made , 
till the contrary appeared : if it were otlierwise. it ought to come on 
the other side; and 27 H. 8 has not altered tlie course of pleading, 
which is rather confirmed by the statute; b ecause, if now the use be 
c onstrued to be to Jhe releasor or fe o ffor, the conveyance will be to.n o 
r nanner of purpose , it being still the old estate to which the old war- 
ranty and other qualities remain annexed ; whereas before the statute 
there might be some end in making the feoffment, viz. to put the free- 
hold out of him and prevent wardship ; and Co. Lit. goes no farther, 
than where there is a feoffment to particular uses and estates, the 
r esidue of the use shall be to the feoffor, which is reasonab lej._for 
the raising those particular estates appears a sufficient reasonfor tlie 
c^nvpyanrp And PowEL, J. doubted, whether there could be a re- 
sulting use on a lease and release, unless, where particular uses are 
limited ; for this way of conveyance is grounded on the ancient way 
of releasing at common law, wherein there was a merger of estate, 
which is a good consideration, as where the lessor confirms to the lessee 
and his heirs. In error of a judgment of C. B. which was affirmed. 

63 The case is also reported in 2 Ld. Raym. 79S, and in 7 Mod. 71. 



-^ft^At 



Ch. 1) MODE OF CONVEYANCE 241 

"^ ^ARMSTRONG v. WOLSEY. 

(Court of Common Bench, 1756. 2 Wils. 19.) 

E jectment, tried at Norwich before Parker, Ch. Baron, who re- 
served this short case for the opinion of the Court. A. B. beingL in 
possession of the lands in question, le vied a fine sur co^usans de droit 
corne_ceo, &c., with pro damations to the conusee and his he irs, in tlie 
6th year of the present King, with out any consideration expr essed, and 
widiou t declaring any u se thereof : nor was it proved that the conusee 
was ever in possession. ^ — 

So that the single question is, whether the fine shall enure to the m ^ ^ ~^ 

o f the conusor or the conusee,? And after two arguments, the Court 1— ^ 

was unanimous, and gave judgment for the plaintiff, who claimed as 
heir of the conusor. 

Curia — I n the case of a fine come ceo. &c.. where n o uses are de- 
c lared, whether the conusor he in possession^ or the fine be of a x %- 
version . it shall enure to the old uses, a nd the conusor shall be in of 
the ol3 use ; and although it passes nothing, yet a fter five years a nd 
n on-claim it will operate as a ba r. 

And in the case of a recovery suffered, the same shall enure to 
the use of him who suffers it, (who is commonly the vouchee,) if no 
uses be declared ; but he gains a new estate to him and his heirs gen- 
eral; and although before the recovery he was seised ex parte ma- 
terna, yet afterwards the estate will descend to his heirs ex parte 
paterna, as was determined in Martin v. Strachan, ante. (1 Wils. 2, 
66.) Sed vide tliat case, 2 Stra. 1179. 

I n the case at Bar, the ancient use was in the conusor at the tim e 
of levying the fin e; and it seems to have been long settled before this 
case, t hat a fine without any consideration, or uses thereof declare^ , 
s hall enure to the ancient use in whomsoever it was at the time of le vy- 
J T^ ^ y the fine ; ^r\(\ ^'^ it vv;;^^ here in t he COnusor at that t^I TlP, *^^^ 'y^\- 
ment must be for tlie plaintiff."* 



VAN DER VOLGEN v. YATES. 

(Court of Appeals of New York, 1853. 9 N. Y. 219.) 

On the 27th of April, 1790, Nicholas Van der Volgen owned a lot 
in Schenectady, the land out of which this controversy arose. On t hat 
d ay, by indenture of release reciting that the releasees were in posse s- 
sio n of the premises " by virtue of a bargain and sale to them thereof 
made for one whole year, by indenture bearing date the day next be- 

64 See Grev v. Grev, 2 Swans. 594, 598 (1677) ; Jackson v. Cleveland, 15 Mich. 
94, 90 Am. Dec. 266 (1866) ; Blodgett v. Hildreth, 103 IMass. 484 (1870). 
Aig.Pkop.— 16 



242 DERIVATIVE TITLES (Part 2 

fore the day of the date of these presents, and by fo rce of the st atute 
^for transferring uses into possession," and i n consideration of £10 0. 
^Omju^^^^ji^ 1 paid by the releasees, he released the premises to Robert Alexand er 
\ and seven other persons named, of whom Joseph C. Yates, the origin al 
<^-^U^ [ defendant in this action, was one , "and to their h eirs and assigns^F or- 

"Z^'J^^^ ever ." The deed then declared that the conveyance was "upgntrusi, 
(J >. nevertheless, t o the on ly proper use, benefit and behoof of Cornelm s 

-,^ ^ ( Van Dyck," and twelv^ other persons named^ "members of St. Geo rge's 
\M^^' ) Lodge, m the town of Schenectady, and all others who at present a re 
J or hereafter may beco me members of the same, their survivorsan d 
* I successors forever, and to and for no other use, intent and purpos e 
\ whatsoever ." Then follows a covenant for further assurance to the 
releasees, their heirs and assigns, "to and for the uses and purposes 
hereinbefore specified and more particularly mentioned;" and a cove- 
nant for the qu iet and peaceable possession of the releasees, their heirs 
and assigns, "for the uses and purposes aforesaid." No conveyance of 
the premises, subsequent to this, was ever mad e. 

In 1797 Nicholas Van der Volgen died, leaving a will in which, not 
having specifically disposed of the reversion of the premises in ques- 
tion, he m ade Lawrence and Petrus Van der Volgen his residua ry 
devisees. In 1819 Petrus died, having devised all his estate by willj o 
Myndert Van der Volgen, Lawrence and Myndert bei ng thus the le gal 
representaTtives of Nicholas m a ny devisaPie estate in the premises 
which he may have had at the time of his death. 
f/fu ^ d/^y, I^ 1S33 the a ct to incorporate th e Utica and Schenectady Railroad 
yUA^*'*^^^ Company was passed. Under its authority the company instituted 
•^ J pr oceedings to appropriate the lot in question to the use of the roa d. 

i/t/v*^' To these proceedings Lawrence and Myndert Van der Volgen, Joseph 

C. Yates, now the sole survivor of the releasees in the before mention- 
ed conveyance, and certain persons claiming to be members of St. 
George's Lodge were made parties, all of the cestuis que use named 
^^ in that instrument being dead. The commissioners awarded six cen ts 

Jly*^^^ I t o the two Van der Volgens, and $2755 to Yates "as trustee under J he 

I aA^ release ;" and the two former filed their bill in chancery against the 

Sfl^/^^^^ latter to compel the payment of the money to them as the representa- 
aA ' tives of the releasor, and entitled to the land or its proceeds. The 

vice-chancellor (Gridley) dismissed the bill, and this decree was affirm- 
ed by the chancellor (Walworth). 3 Barb. Ch. 242. The complainants 
appealed to this court. 

All the original parties to the. action had died since the commence - 
ment of the suit, and their personal representatives were the presen t 
parties. 

RuGGLES, Ch. J. In determining this case it will be assumed that 
the deed executed by Nicholas Van der Volgen to Robert Alexander 
and seven others for the use of Cornelius Van Dyck and twelve others, 
was a valid conveyance by lease and releas-C . operating by fpnce of the 
statute ofTuses. to vest in_\la.n Dyck and other'? ^y|in nrp t^pppjally nam- 





Ch. 1) MODE OP CONVEYANCE 243 

e d as_cestins que use , an estate for their joint lives and the life of the 
survivor but not an estate in fee ; and that the limitation of the fur- 
ther use to "all others who were then or thereafter might become mem- 
bers of St. George's Lodge, their survivors and successors forever," 
was v okl for uncertainty ; and that the use of equjiabl^Jnter^ thus 
attempted to be given to the members of the lodge not specially named, 
ca nnot be sustained either as a legal estate bv force of the statute of 
uses, or as an executory trust, or as a charitable use . Upon these as- 
sumptions the only remaining question is wh ether upon the death o f^ 
t he last surviving cestui que use the estate resulted back to the reprg i 
sentatives of the grantor, who are the complainants . If it did so, thc}'^ 
are entitled to the money in controversy, otherwise not. 

Before the statute of uses, and while uses were subjects of chancery 
jurisdiction exclusively, a use could not be raised by deed without a 
sufficient consideration ; a doctrine taken from the maxim of the civil 
law, ex nudo pacto non oritur actio. In consequence of this rule the 
court of chancery would not compel the execution of a use, unless it 
had been raised for a good or valuable consideration ; for that would 
be to enforce donum gratuitum. 1 Cruise, tit. xi, ch. 2, § 22. _^id 
w here a man made a feoffment to another w^ithout any consideration . yji* 

equity presumed that he meant it to the use of himself : unless he ex - 
pressly declared it to be to the use of another, and then nothing was 
presumed contrary to his own expression s. 2 Bl. Com. 330. If a per- 
son had conveyed his lands to another without consideration, or dec- 
laration of uses, the grantor became entitled to the use o r pernancy of 
the profits of the lands thus conveyed. 

T his doctrine was not altered by the statute of uses. Therefore it />">■ ^ a •/ /I 
became an established principle, t hat where the Ic.gal seizin or pos_s es- t/yt^L^O-'*^''*^ 
s ion of lands is transferred by any common law conveyance or assu r- C^ l,,*.**^^ 
ance, and no use is expressly declared, nor any consideration or ev i- ^ '' 

dence of intent to direct the use, such use shall result back to the origi - 
nal owner of the estate ; fon^h^re t here_is ne it her consideration noj - 
declarati on_ofuseSj nor any circumstance to show the in te ntion of the 
parties^ it cannot be supposed that the estate was intended to be given 
away. 1 Cruise, tit. ii. ch. 4, § 20. 

B ut if a valuable consideration appears, equity will immediatel y \ (jiA A/y^'^CJ^ 
raise a use_correspondcnt to such consideration . 2 Bl. Com., 330. And / 
{ J in_such case no use is expressly declared, the person to >vhniTi th er G{h^» 
l egal estate is conveyed, and from whom the consideration moved, wj llj 
be entitled to the use . The payment of the consideration leads the use/ 
unless it be expressly declared to some other person. The use results 
t o tlie original owner where no cnnsiderg tinn ap pears, because it ca n- 
not be supposed that the estate was intended to be given away ; and b y ^-^ 
the same rule it will not result where a consideration has been paid , 
b ecause in such case it cannot be supposed that the parties intended 
the lajid should go back to him who had been paid for it . 

The statute of uses made no change in the equitable principles which 



/ 



^ 



244 DERIVATIVE TITLES (Part 2 

previously governed resulting uses. It united the legal and equita ble 
estate, so that a fter the statute a convevance of the use was a conve y- 
ance of the land : and the land will not result or revert to the original 
owner except where the use would have done so before the statute was 
passed. Cruise, tit. x, ch. 4, § 20. 

It is still now, as it was before the statute, "t he intention of the p ar- 
ties to be collected from the face of the deed that gives effect to resu lt- 
ingjjses^' 1 Sanders on Uses, 104 (Ed. of 1830). 

As a general rule it is true that where the owner for a pecuniary 
consideration conveys lands to uses, expressly declaring a part of the 
use, but making no disposition of the residue, s o much of the us e as 
t he owner does not dispose of remains in him. Cruise, tit. xi, ch. 4, § 
21. For example, if an estate be conveyed for valuable consideration 
to feoffees and their heirs to the use of them for their lives, the re- 
mainder of the use will result to the grantor. In such case the intent 
of the grantor to create a life estate only and to withhold the residue 
of the use is apparent on the face of the deed ; the words of inheritance 
in the conveyance being effectual only for the purpose of serving the 
declared use. The consideration expressed in the conveyance is there- 
fore deemed an equivalent only for the life estate. The residu£ -of the 
u se rema ins i n or results to the grantor, because there was no gra nt 
of it, nor any mtention to grant it, and because it has never been p aid 

But the general rule above stated is clearly inapplicable to a case i n 
• 'f'Jiu^ which the intention of the grantor, apparent on the face of thejd eed. 
fjji //^ A'**'*^ J^to dispose of the entire use, or m other words of his whole estate in 
he land . Such is the case now before us for determination. The 
consideration expressed in Van der Volgen's deed was £100; and it is 
perfectly clear on the face of the conveyance t hat he intended to p art 
with his whole title and interest in the land. He limited the use by the 
terms of his deed "to Cornelius Van Dyck and twelve other members 
of St. George's Lodge in the town of Schenectady, and all others who 
at present are, or hereafter may become members of the same, their 
survivors and successors forever." He attempted to convev the u se 
and beneficial interest to the members of that Indo le either as a corp o- 
rate body, capable of takmg bv succession forever, or to that associ a- 
ti on for a charitable use or perpetuitv. In either case, if the convey- 
ance had taken effect according to the grantor's intention, it \vould 
h ave passed his whole title , and no part of the use could have resu lt- 
ed to him or his representatives. 

Admitting that the declaration of the uses was void except as to the 
cestuis que use who were specially named, and good as to them only 
for life, y et it cannot be doubted that the parties believed when th e 
deed was executed that the grantor conveyed his whole title in fee, an d 
t he intentions of the parties that the entire use and interest of th e 
g rantor should pass,_ is as clear as if the limitation of the whole use 
•had been valid and effectual. This intent being established it follows, 



Cy(^ 



Ch. 1) MODE OF CONVEYANCE 245 

as a necessary consequence, th at the sum of ilOO consideration was 
p aid and received as an equivalent for what was intended and supposed 
t o have been conveved . that is to say for an estate in f eg. The express 
declaration of the use in the present case, instead of being presump- 
tive evidence that the grantor did not intend to part with the use in fee, 
is co nclusive evidence that he did so intend ; and the extent of the 
express declaration is as much the measure of the consideration as if 
the whole of the declared use had been valid. T he complainant's claim 
t o the resulting use, or reversion of the land, being founded solely on "^ 

tl ie assumption that the grantor never was paid for it, must, tlierefore . 
f ail because the assumption is disproved bv the deed itsel f. > 

A use never results against the intent of tlie parties. " Where theie 
i s any circumstance to show the intent of the parties to have been that 
t he use should not result, it will remain in the persons to w^hom th e 
l egal estate is limited.^ " 1 Cruise, tit. xi. Use, ch. 4, § 41. In this case 
there are at least two such circumstances. They have already been 
alluded to ; first, the intent expressly declared t o convey the land in fe e t /\t^tj^rUji 
^\ P C in perpetuity for the benefit of the members of St. George's Lodge . 
C^ This effectually repels the idea of a resulting use . The two intents -'<*-'*-*• •"r^-^-'^ 
-.. are incompatible. Secondly, the p ayment of the purchase money, o f jj ^XjlJUI'^ 
rv) which enough has been already said . 

If it be said that the express declaration is a presumptive proof that 
the grantor did not intend that the grantees of the legal estate should 
have that part of the use which was effectually declared, the answer is, 
that the express declaration is proof at least equally strong that he did 
not mean that the use should result to himself. Conceding then that 
the intention of the parties in regard to this residue of the use cannot 
be carried into effect, the equity which governs resulting uses settles 
the question between them. It gives the residue to the grantees because 
the grantor has had the money for it, and the language of the convey- 
ance is sufficient to pass it. The g^rantor cannot have the purchas e 
money and the land also . Payment of the, purchase money for th e -j^ 

entire title, vests the entire use in the grantees , excepting only so much 
of it as may be effectually declared for the benefit of some other per- 
son. 

It was insisted on the argument that where an estate is conveyed 
for particular purposes or on particular trusts only, which by accident 
or otherwise cannot take effect, a trust will result to the original owner 
or his heir; and that the present case falls within that principle. We 
were referred on this point to Cruise, tit. Trust, ch. 1, § 56. But on 
looking at the cases cited by Mr. Cruise, they are found to be cases not 
, of uses, but of active trusts ; all excepting one created by devise, where 
of course no pecuniary consideration was paid, and the land therefore 
was not diverted from the heir-at-law on the failure of the trust. The 
case in which there was a conveyance in trust has no resemblance to 
the case now in hand. That the rule above cited from Cruise is in- 
applicable to the present case appears on Sir Edward Coke's author- 



246 DERIVATIVE TITLES (Part 2 

ity, in The Queen v. Porter, 1 Rep. 24, 26, that upon a feoffment made 
without consideration to charitable uses void by statute, the feoffee 
should, notwithstanding the declaration of such uses, be seized to the 
feoffor and his heirs; but that if the feoffor had reserved but a penny 
rent, or had taken a penny in consideration of the feoffment, then, al- 
though the statute makes void the use expressed, yet the feoffees shall 
be seized to their own use and not to the use of the feoffor. This was 
said in the argument for the defendant Porter; and Coke, who was 
solicitor for the Queen, in a note at the end of the case, referring by a 
marginal note to this part of the argument, says: "And it is good 
policy upon every such feoffment (to charitable uses) to reserve a small 
rent to the feoffor and his heirs, or to express some such consideration 
of some small sum, for the cause before rehearsed." Thus it appea rs 
t hat upon a feoffment to a void use, upon a pecuniary consideration . 
y^ however small, the t i tle vests m the feoff'ee for his own benefi t. The 

conveyance in the present case was by lease and relea se, which oper- 
ated in this respect like a feoffment, and vested the estate, legal an d 
equitable, in the releasees, from and after the expiration of the valid 
use. 

Whether they took this residue of the estate as tenants in common 
or as joint tenants is a question which does not arise in this case. It 
has been assumed that the use expressed in favor of the members of 
St. George's Lodge, not specially named, was not valid as a charitable 
use. But it was not necessary to decide that question. The decision 
of this case must not be understood as settling any question as to the 
title to the money in controversy, except that no part of it belongs to 
the complainants. 

Judges Mason, Morse, Johnson and Gardiner concurred in the 
foregoing opinion. 

Willard and Taggart, J J,, dissented. 

D ecree affirmed . *^° 

65 Cf. JIcElroy v. McElroy, 113 Mass. 509 (1S7.3), where the case, as stated in 
the syllabus, was as follows: A, by deed of wa rranty, wifh covemmts to the 
"grantee, his heirs and assiajns," and i n consideration of one dollar p aid by 
B. (his brother), "trustee of" Q. ^another brotner), and of "the love an"cl atfec- 




ta 
us 



tion" he liore to C, c onveyed a parcel of land to B., "it being my intention" " 
c onvey" to B., "in trust tor" C.^ " to nave ann lo no ia to t he said grante e, h. 
heirs and assigns, to his and tlieir use and liehoorTort^VH r. i;^ it was ht ^Fcl fHat 
the re was a resuitlflg tl'hst in the grantor m me remainder after th(; lite estate 

im — " ' •" 



^^rxV 










Ch. 1) MODE OF CONVEYANCE . 247 

(B) Uses Raised Independently of a Common Lazv Conveyance 

THE STATUTE OF ENROLMENTS 

Be it enacted by the authority of this present Parliament, That from 
the last day of July, which shall be in the year of our Lord G od 1536 , 
no mano rs, lan ds, tenements or other hereditaments, shall pass, alter 
or ch ange from one to another, whereby any estate of inheritance^ or 
freehold shall be made or take effect in any person or persons, or any 
use thereof to be made, by reason only of any bargain and sale there- 
oTj e xcept the same bargain and sale be made by writing indented 
s ealed, and inrolled in one of the King's courts of record at Westmin - 
ster^ or else within the same county or counties where the same manors, 
lands or tenements, so bargained and sold, lie or be, before the Custos 
Rotulorum and two justices of the peace, and the clerk of the peace of 
the sarne county or counties, or two of them at the least, whereof the 
clerk of the peace to be one ; and the same enrolment to be had and 
made within six months next after the date of the same writings in- 
dented ; the same Custos Rotulorum, or justices of the peace and clerk, 
tak ing for the enrolment of every such writing indented before them , 
where the land comprised in the same writing exceeds not the yeax ly 
v alue of forty shilling s, ii. s. that is to say, xij. d. to the justices, and 
xij. d. to the clerk; and for the enrolment of every such writing in- 
dented before them, wherein the land comprised exceeds the sum of 
xl. s. in the yearly value, v. s. that is to say, ii. s. vi. d. to the said jus- 
tices, and ii. s. vi. d. to the said clerk for the enrolling of the same; 
and that the clerk of the peace for the time being, within every such 
county, shall sufficiently enroll and ingross in parchment the same 
deeds or writings indented as is aforesaid ; and the rolls thereof at the 
end of every year shall deliver unto the said Custos Rotulorum of the 
same county for the time being, there to remain in the custody of the 
said Custos Rotulorum, for the time being, amongst other records of 
every of the same counties where any such enrolment shall be so 
made, t o the intent that every party that hath to do therewith, mav_j :e- 
sort j.nd see the effect and tenor of every such writing so enroU ^d. 
"TLProvided always, That this act, nor any thing therein contained, 
extend to any manner lands, tenements, or hereditaments, lying or be- 
ing within any city, borough or town corporate within this realm, 
wherein the mayors, recorders, chamberlains, bailiff's or other officer 
or officers have authority, or have lawfully used to enroll any evi- 
dences, deeds, or other writings within their precinct or limits; any 
thing in this act contained to the contrary notwithstanding. 

St 27 Hen. VHI, c. 16, (1536). 



248 . DERIVATIVE TITLES (Part 2 

GREY & EDWARDS CASE. 

(Court of King's Bench, 1577. 4 Leon. 110.) 

I In an attaint by Grey against Edwards it was holden by Wray, 

. Y^ V Gaudy, and Jkoffries, that if one makes a deed, and that by these 
'■^1^ . L' words (dedi) conveyeth lands to another, wrthou^_aiiy_jwwxh_^f_bar- 
W*^ V r gai p and sal e, and that for a sum of money ; if tlie deed be debito 
T .-j^ mode enrolled, the use ^hall x>ass as well as if the words of_barggin 

and s^Jj&Ji ad been in the deed^ because that a sum^ rnoney was paid 
for tlie Iand.«» 




LUTWTCH V. MITTON. 

(Court of Wards, 1620. Cro. Jac. 604.) 

It was resolved by the two Chief Justices, Montague and Hobart, 
and by TanfiEld, Chief Baron, that upon a d eed of bargain and sale 
for years of land s whereof he himself is in possession, and t he ba r- 
gai nee never entere d; if afterwards the bargainors make a grant of 
the reversion (reciting this lease) expectant upon it to diverse uses 
that it is a good conveyance of the reversion ; and the estate was 
executed and vested in the lessee for years by the statute; and was 
divided from the reversion, and not like to a lease for years at the 
( jL-^ti,' common law; for in that case there is not any apparent lessee un- 
til he enters : but here, by operation of the statute, it absolutely and 
M-.4^!LCk actually vests the estate in him, as the use, b ut not to have trespas s 
^. without. _entry and actual possession: wherefore they would not per- 

"^ mit this point to be further argued. 



JACKSON ex dem. HUDSON v. ALEXANDER. 

(Supreme Court of New York, ISOS. 3 Johns. 484, 3 Am. Dec. 517.) 

This was an ^ction of eiectment . for lot No. 68, in the town of Mil- 
ton, in the county of Cayuga. The cause was tried before Mr. Jus- 
tice Spencer, at the Cayuga circuit, on the 1st July, 1808. On tlie 
trial, th e pla in tiff gave in.evld e nce an exemplification of a patent, da ted 
t he 8th July, 1790, grantmg the lot in question to Joseph Brown, for 
his military services, and a writmg executed by Brown, in the f ollow- 
ing- words : 






"F gr value, received .of Dani el Hudson & Co., I hereb y make ov gr 
a nd grap't for m yself. heirs7 ana executors, unto the tJUJd Daniel Hud- 



•8 Taylor v. Vale, Cro. Eliz. 166 (1589), ace. 



Ch. 1) MODE OF CONVEYANCE 249 

s on & C o., his hei rs and assigns, my right and claim on the public j or 
66u acres of "land. " Witness my hand and seal, tli'is 7th day of May, 
1784. 

"In presence of • Joseph Brown. [L. S.] 

"Solomon Coures. 
"John Dolson." 

A verdict was taken for the plaintiff, subject to the opinion of the 
court, on a case containing the above facts ; and it was agreed, that 
if the court should be of opinion, that t he instrument in writin g .from 
Brown to Hudson, one of the lessors of the plamtiff, was a sufficie nt 
c onveyance of the premises in question, then judgment was to be en - 
ter ed for the plg i intiff ; otherwise, the verdict was to be set aside, and 
a nonsuit entered. 

The cause was submitted to the court without argument. 

Thompson, J. This case has been submitted without argument, and 
the question presented for our decision is, u ^ether the instruipent in "^ 
w riting given by To_seph Brown to Daniel Hudson, be sufficient to con - 
vey the title to the premises in question. The want of any considera- 
tibn either expressed on the face of the instrument, or proved at the 
trial, is the principal objection to its operation. A ll deeds by whi ch 
l and may be convey e d^ d_erive their effect from the common law, ^ r ^ 

from the statute of uses. It cannot be pretended that this instrument 
can take effect as a common law conveyance, either original or deriv- 
ative. 4 Cruise, on Real Property, 100. I f it is to have any op era- 
t ion, it must be as a bargain and sale, by virtue of the statute of use s. 
That statute has given rise to several new forms of conveyance, 
which operate contrary to the rules of the common law. It is a gen- 
eral rule of the common law, that it is not absolutely necessary, that 
a consideration should be expressed in a deed. T he thoiight and dp - 
liberation, which was supposed to attend the making and executing of 
deeds, rendered them valid, without any consideration expressed . 
Soon, however, after the chancellors had assumed a jurisdiction m 
cases of uses, they adopted the maxim of the civil law, "ex nudo pacto 
non oritur actio," and in conformity to it, they determined not to lend 
their aid |to carry any deed into execution, unless it was supported by 
some. consideration. 4 Cruise, 24. Hence it has becor|ie a univer sal -JL. ^ 

rule. _that a use cannot be raised without a consideration; and a, bar- ^ 



ir 



gai n and sale, being merely a conveyance of a us e, it cannot be_ eff,ec- 
t uai without a consideration, which must be valuable^ for the very 
name of the conveyance imports a quid pro quo. 1 Co. 176, a; San- 
ders on Uses, 340; 2 Inst. 671; 4 Cruise, 173-8. That a conside ra- 
tion is requisite to raise a use, is a principle recognized by almost ever y 
e lementary writer on the subject ; and has been repeatedly sanction ed 
b y adjudged case s. The expression of Sir Wm. Blackstone, (2 Comm. 
296,) may be too broad when he says, that a deed or grant, made with- 
out any consideration, is of no effect, and is to be construed to enure, 
or be effectual only, to the use of the grantor; yet Professor Chris- 



t 



^ 



250 




DERIVATIVE TITLES 



(Part 2 



tian, in his note on this passage, admits this position to be true with 
respect to a bargain and sale. B aron Corny n, also, says, that n har.n -ain 
a nd sale of land, whereby a n.^e. arises^ niighf tn he made upon. ^ 
v aluable consideration, oth e rwise no use _ arises ; and the considera- 
tion must not be too general, but must import a quid pro quo. 2 
Com. Dig. 6; 3 Com. Dig. 275-7. We find the same principle rec- 
ognized by the late editor of Bacon's Abridgment, (1 Bac. Abr. 469.) 
Shep. Touch. 220. It is there said, that by a bargain and sale of i and 
no use arises, unless there be a consideration of money ; for selling, 
ex vi termini, supposes the transferring a right of something, for mon- 
ey, and i f there be no such consideration, it may be an exchang e, 3 
Qovenant to stand seise37a grant, & c. y but can be no sale within the_ stat- 
ute. The judgnient of the court, in Mildmay's Case, 1 Coke, 176, was 
governed by the same principles ; and in Doe ex dem. Milburn v. 
Salkeld, Willes, 675, Lord Ch. J. Willes, in delivering the opinion 
of the court, upon the nature and operation of a deed, set forth in 
the case, observes, it cannot be considered as a bargain and sale, be- 
cause there was no money consideration. ~~ 
In the case of Ward v. Lambert, Cro. Eliz. 394, the deed recited, 
"that whereas I. S. was bound in a recognizance, and other bonds for 
him, he, for di vers good consid erations, bargained and sold the land 
to him and his heir^; and this~was held not to be a good bargain 
and sale. T he court said, that in every bargain and sale there ought to 
be a quid pro quo: but thevendor there had nothmg for his land^ and 
t herefore, it was void. If a man give land, or bargain, and sell land 
to his son, no use arises thereby. If, then, a valuable consideratio n 
be necessar y to raise a use, the next ques tion ^vill be. whether the in - 
s trument before us, upon the fax:e ot it, miports the consideration r e- 
q uired in a bargain and sale, under th e statute of uses . If it does, 
it must arise either from the internal torce of the words "for value 
received," or by virtue of the seal. A valuable consideratign i'; define d 
i n the books, to mean money, or any other thing that bears a knqwn 
valuer 4 Cruise, 24. This court, in the case of Lansing v. AIcKillip, 
3 Caines, 286, considered the words, for value received, of little force 
and importance of themselves, towards making out a consideration. 
Independently of that decision, however, I cannot discover more effi- 
cacy in these words than in many others which have been used in in- 
struments, that have been adjudged inoperative as bargains and sales. 
All the cases I have cited to show the necessity of a considera tion. 
plainly inHi(^ ate, that if it is to be inferred fr om the face of the dee d, 
i_t^ ouoht to be so ex press ed as necessarily to import value . It rnu st 
not, i n the langua ge^ ot Baron Comyn, be too general. It seems to 
me, tTiaFas much rnay be inferred from "the word consideration as 
the word value. And it has repeatedly been adjudged, that an ac- 
knowledgment of the receipt of a consideration generally was not 
sufficient. Although this may have the' semblance of a technical nicety, 
incompatible with the broad principles of justice, yet the rule appears 



Ch. 1) MODE OF CONVEYANCE 251 

to me to be too firmly established to be overturned. Many of the com- 
mon law principles, applicable to other contracts, cannot be applied to 
bargains and sales under the statute of uses. 

In Mildmay's Case, and also that of Ward v. Lambert, before refer- 
red to, the words^ di vers good considerations , were considered insuffi - 
c ient to raise a use. Leing- but general parlance, implying nothing, unles s 
e xpress; considerations were shown ; for otherwise none would be 
intended. So in Fisher v. Smith, 5 Vin. Abr. 406, note, the court were 
clear, that i f^one pleads a bargain and sale, in which no consideratio n 
9f monev is expressed, th en he nn orht to supply it by an avermenLth at 
it was for mone j/ : and that the words, for divers good considerations, 
shall not be intended for money, without an averment ; but if the deed 
expresses, for a competent sum of money, it is sufficient, without 
showing the certainty ot the sum ; and none shall say that no money 
was paid; for against this express mention in the deed, no averment 
that no money was paid shall be admitted. An acknowledgment in th e 
d eed of the receipt of monev. ex vi termini, imij-orts value, and the 
amount of the consideration is immaterial . It has been repeatedly 
ruled that, if in pleading a bargain and sale, no valuable consideration 
is shown, it will be ill on demurrer. In many cases the verdict has 
been deemed to cure this defect, which must have been on the ground, 
that after verdict, the consideration is presumed to have been proved 
on the trial. 1 Lord Raym. Ill ; 1 Wils. 91 ; 2 H. Black. 261. Froni y 
njl fhp; rn ses referred to. it is evident that the court did not consider tl ie jAjtAjP >U^ 
s eaL as yirtuallv importing the requisite consideration; for the instrii - | 

nients. although under seal, were deemed inoperative, as bargains an d Pfr^ti^ hJLi 
sales . It would have been competent for the plaintiff, in the present 
case, to have proved a co nsideration paid, _(5 Yin. 507,) which, in my 
opinion, vvoukT liave'^Tnade the deecl eTifectual to transfer the title ; 
the word grant being sufficient to pass the land by way of use, (2 Mod. 
253.) Under this view of the case, I should be inclined to grant a new 
trial, to give the plaintiff an opportunity of producing this proof, if in 
his power, without the expense of a new action ; but according to th e 
s tipulation in the case, a judgment of nonsuit, in my n])ini()n^ nngl it 
to be entered . 

Kent, Ch. J. I am of opinion that the deed from Brown to Hudson 
was sufficient to convey his interest in the premises. 

I agree that the deed, if it operates at all, must operate as a bargain 
and sale under the statute of uses. 

At the common law , a feoffment or lease was valid, without any 
consideration, in consequence of the fealty or homage which vvas inci- 
dent to every such conveyance. The law raised a consideration out of 
the tenure itself. But after the_statute of Quia Emptores. (18 Ed. I,) \''^ 
Perkins says, that a consideration became requisite eveJi to the validity ' • • 
of a feoffment, as none could be implied, since, according to tlie statute 
n o _f eudal duty or service resulted to the immediate feoffor . (Perkins, 
sects. 528-537.) The general, and the better opinion is, that the no- 



Ccn-voX^^/u, 




252 DERIVATIVE TITLES (Part U 

tion of a consideration first came from the court of equity, where it 
was held necessary to raise a use ; and w hen conveyances to uses w ere 
i ntroduced, the courts of law adopted the <;nmp if1pa..p and held that a. 
consideration was requisite in a deed of hargajn and sal e. This 
new principle in the doctrine of assurances by deed, met, at first, 
with a very strong resistance from the ablest lawyers of the age. Plow- 
den, in his argument in the case of Sharington v. Stroffen, 1 Plowden, 
308, 309, which arose upon a deed under the statute of uses, contended, 
with great force of reason and authority, that a deed, which was a 
solemn and deliberate act of the mind, did of itself import a consid- 
eration ; that the will of the grantor was a sufficient consideration, 
and it neyer could be called a nudum pactum. Lord Bacon, in 
This reading on the statute of uses, takes notice of this argument of 
Plowden, and gives it the weight of his sanction. "I would have one 
a se showed/' snid he, "\i Y men learned in the law, wIiptp" there 15^ - a 



deed, ^nd yet there needs a rnrr^ideratinn As for parole, the law ad- 

Ijudgeth it too light to give an action without consideration ; but a deed, 

/even in law, i mports a consideration , because of the deliberation and 

I ceremony in the confection of it; and, therefore, in 8 Reginais, it is 

(solemnly argued that a deed should raise a use without any other con- 
sideration." Bacon's Works, v. 4, p. 167. But notwithstanding this 
strenuous opposition, the rule from chancery prevailed, and it has_b een 
l ong' settled, that a consideration, expressed or proved, was necessa ry 
to give effect to aje ed of bargain and sale . I am not going to attempt 
to surmount the series of cases on this subject, though I confess my- 
self a convert to the argument of Plowden. I admit the rule that a 
consideration is necessary to a conveyance to uses ; but I think that 
here is evidence of a consideration, appearing on the face of the deed 
before us, sufficient to conclude the grantor, and to give effect to it 
as a bargain and sale. 

The rule requiring a consideration to raise a use, has become mere ly 
nomin;al. jmd a_matter of form ; for if a sum of money be mentioned, 
it is never an inquiry whether it was actually paid, and the smallest 
sum possible is sufficient: nay, it has been solemnly adjudged, that a 
__£epper-corn was sufficient to raise a use. 2 Vent. 35. Since, then, 
the efficacy of the rule is so completely gone, we ought, in support of 
deeds, to construe the cases which have modified the rule, with the ut- 
most liberality. 

The deed in the present case states, that "for value received of the 
grantee, he doth grant," &c., and can it now be permitted to the 
grantor to say there was no value received? Value received is equ iv- 
a lent to saving^ money was receiv e d, or a chattel was receive d. It is 
an express averment, ex vi termini, of a quid pro quo. In Fisher v. 
Smith, Moore, 569, there was a bargain and sale for divers consid- 
erations, and it was held not to be enough, without an averment, that 
it was for money. "But if the deed express for a competent sum of 
money, this is sufficient without mentioning the certainty of the sum. 



Ch. 1) MODE OF CONVEYANCE 253 

and against this express mention in the deed, no averment or evidence 
shall be admitted to say that no money was paid." All the cases that 
I have examined, which say that a general consideration is not suffi- 
cient, are cases in which the words in the deed were for divers good 
considerations. I. have not met with any case which goes so far as 
t o say, that a n averment in the deed of value received by the grantor, 
\yas not sufecient It is said, in 2 Roll. Abr. 786, pi. n, that "an aver- 
ment that a bargain and sale was in consideration of money or other 
valuable consideration given, was sufficient." If the words had been 
for money received by the grantor, then the deed would have fallen 
exactly within the decision in Moore, and would have been good, ac- 
cording to the admission in all the books. I cannot perceive any es- 
sential difference between the two averments ; v alue received does, in 
j udpnent of law, implv monev. or its equivalent . The grantor must 
be estopped by this express averment in his deed. He admits not only 
a value, but a value received from the grantee ; and if we will not 
intend this value to be something valuable, or equal to a competent 
sum of money, we seem not to construe charters as they did in the case 
of Fisher v. Smith, and as the law axiom requires them to be exam- 
ined, benignly, and in support of the substance. The statute of 9 and 
10 Wm. Ill, c. 17, regards those words of so much import, that if 
a bill contains them, the holder is then entitled to recover interest and 
damages against the drawer and endorser; and in Cramlington v. Ev- 
ans, 1 Show. 4, Carth. 5, Lord Holt laid great stress on these words. 
"I f the drawer^" he says, "mention for ynlnp rprpivpH thpn hp Jg 
chargeable at co mmon law ; but if no such mention is ma^ . thpn ymi 
must come upon the custom of merchants only ." I mention these au- 
thorities only to show that these words mean something ; and that, in 
certain cases, at least, the law has attached the meaning of real ac- 
tual value to the averment of value received, and that in those cases, 
it has been co nsidered as equivalent to saying for money receive d. 
The law from the beginning has been very indulgent in helping out 
deeds, on the ground of consideration. If no consideration be ex - 
pressed, one may be averred in pleading, or proved upon the trial. 
Mildmay's Case, 1 Co. 175 ; Fisher v. Smith, Moore, 569. In pleading 
a bargain and sale, in which no consideration is expressed, it was 
held, in Smith v. Lane, Moore, 504, that the bargainee need not aver 
payment of money, because it was implied. This was after^vards held 
otherwise; but it has been lately held by the Court of C. B. (2 H. 
Black. 259) that this averment was but matter of form, and the omis- 
sion of it cured, on a general demurrer. This last decision seems to 
have almost done away even the form of the old rule, for it can hardly 
be necessary to prove upon trial under the general issue, a fact which 
is matter of form, and not of substance. A plaintiff is bound to prov e 
onlv what would be considered as material averments, and matte rs 
which go to the substance of the actio n. 



254 DERIVATIVE TITLES (Part 2 

But I plac e mv opinion on the ground that the deed contains a suffi - 
cient averment of a consideration, to estop the grantor, and to give th e 
deed operation under the statute of uses., I am not apprized of any 
case which is an authority against this conclusion. In Lansing v. Mc- 
Killip, 3 Caines, 286, two of the judges intimated that value received 
did not supersede the necessity of averring and proving a considera- 
tion in a special agreement; but another of the judges went largely 
\ into the support of a contrary opinion. The case, however, was not 

decided upon that ground, but upon another, viz. that where the plain-, 
tiff alleges two good considerations in his declaration, he must prove 
them as laid. 

T he next point in the case is, whether the words, "make over a nd 
g^rant," be sufficient to convey Brown's interest in the land . Thfij^ord 
•A' graiitjias been held sufficient to pass land by way of use, 2 Mod. 253 ; 

TTRaym. 48 Though in its original meaning, the word ai)plied only 
to a conveyance of incorporeal hereditaments, which could not pass 
by livery of seisin, yet i n conveyances under the statute of uses, it is 
s ufficient, if the g^ranting words are competent to raise a use ^ for t he 
s tatute then performs the task of the ancient livery of seis in. 

Aly opinion on both points, accordingly, is, that the plaintiff is en- 
titled to judgment. 

Van Ness, J., and Y.\TEs, J-, were of the same opinion. 

Judgment for the plaintiff.*^ ^ 



^K 



1 



6 7 The opinion of Spencer, J., to tbe same effect as the opinion of Thompson, 
J., is omitted. 

In a deed the consideration was recited as "four thousand three hundred 
dollars." with a line drawn throngh the "four thousand three hundred." .No 
consideration having been proved, the question was whether the deed could 
operate as one of bargain and sale. Catliu Coal Co. v. Lloyd, 180 111. 398, 54 
K. E. 214. 72 .Am. St. Rep. 216 (IbOD). 

"AV heii tiip rotiv^i deration in a covenant to stand seised to uses, or in a bar- 
gain and sale, isguod^and t he person cert ai n , there that perscii may make a n 
a vernient that TlTe consideration was paid , an d according to the truth of TTi e 
case ; b ut when the person is uncei-tain and the coiisider.ition ffpiipr.-il there 
no,averi iiPiif cnn li^ f--^l^ T» bv anv nersom In the first case tlie averment by 
the particular person is but rechicing the general consideration to some cer- 
tainty, and making out that in particular, in favour of the i)erson who was 
before included in the general words, which is very reasonable, in case a good 
consideration were bona fide paid by him ; but in the latter case the intent 
of the covenantor was void ab initio, for it appearing that he designed nobody 
in particular, for the benefit of the use he would raise, no person in certain 
could aver any particular consideration why he should have the use. because 
it plainly appears by the deed he did not design him for the use an.v more than 
any other person, and the law will not give i" _ psp tn ^nvbn tiy contrary to th e 
ii],teiit of the party mentioned in the seUlement, " etc. Gilbert's Uses (Sugdeu's 
Edl) 4rJ. See Mildmay's Case, 1 Oo" i'<S (loSi!). 



Ch. 1) MODE OF CONVEYANCE 255 

ROE ex dem. WILKINSON v. TRANMER. 
(Court of Common Pleas, 1757. 2 Wils. 75.) 

Upon the trial of this cause it appeared *in evidence, that Thomas 
Kirby, being seised in fee of the lands in question, m ade and execu ted 
c ertain deeds of lease and release . The lease, dated November 9, 
1733, made between the said Thomas Kirby of the one part, and Chris- 
topher Kirby his brother of the other part, whereby it is witnessed 
thaLlb e said Thomas Kirby. in consideration of 5s., did grant, bar - 
gain, and sell to the said C. Kirby. his executors, administrators, an d 
assigns, the lands in question ; to have and to hold the same un to_the 
s aid C. Kirby. his executors, administrators, and assigns, from the day 
before the date thereof for the t erm of one yea r under a pepper-corn 
rent, to the intent that by virtue of these presents, and by force of the 
statute for transferring uses into possession, he the said Christopher 
may be i n the actual possession of all the pre mises, and be enabled t o 
t ake and accept of a grant, and release of the reversion and inheri t- 
ance thereof to them and their heirs, to, for, and upon such use s, 
i ntents, and purpo'^t ; "^, ns in nnd l^y the said grant and release shall be 
d irected or _ declared._ In witness, ^c, executed by Thomas Kirby. 

The release, dated November 10, 1733, made between Thomas Kirby 
of the one part, and C. Kirby his broth.er of the other part, witnesseth, 
that f or the natural love he beareth toward his s aid brot her, and fo r 
a nd in consideration of £100. to the said Thomas Kirby. paid by the sai d 
C. Kirby. he the said Thomas Kirby hath granted, rel eas ed, and con - 
firmed, and by these presents, doth grant, release, and confirm unto t he 
s aid C. Kirby. in his actual possession ther e of now being, by virtue of_ a 
bar gain and s ale for one whole year to him thereof made by the said 
I' Fiomas ivirby , by in denture dated the day next before the day of 
the date hereof, and by for ce of the statute mad e for transferring of 
uses into possession, after the death of the said Thomas Kirby, all that 
one close, &c. (the premises without any words of limitation to the re- 
leasee) ; t o have and to hold the said premises unto the said C. Kirb y 
and the he i rs of his body lawfully begotten, and after their decease to 
J ohn WilRinson. eldest son of my well-beloved uncle John Wilkinson 
o f North Daltori-J n the county of York, gentleman, t o him and h is 
heir' ^ nnd nq<;ig^n<;, anrl tn the Only proper use and behoof of liini th e 
said John Wilkinson the Younger, his executors, administrators or .a s- 
si gns forever, h e the said John Wilkinson the Younger paying or caus- 
ing to be paid to the c hild or children of my well-beloved broth er 
Stephen Kirby the sum of £200. ; and for want of such child or ch il- 
dren, then to the child or children of my well-beloved sister lane "Ki r- 
b^ and for want of such issue, then to- the yo unger children of my 
well-beloved uncle, John Wilkinson, of North Dalton aforesaid ; and 
for want of such younger children, th en the said estate above men- 
tioned to be free from the payment of tTie above-named sum oi ±200. 



256 



DERIVATIVE TITLES 



(Part 2 







^ 



Then the re leasor co ven ants that he is lawfully seised in fee, and t hat 
he hath good right and full power to convey the premises to the s aid 
C. Kirb ^^hd Uso that it may and shall be lawful to and for the 
said C Kirby, or the said John Wilkinson the Younger, from and 
after the death of him the said Thomas Kirby, pe aceably and quietl y 
t o have, hold, use, occupy, possess, and enjoy the said messuage, land s, 
a nd premises, with the appurtenances, not only without the lawful le t, 
suit, &c. of him the said Thomas, but all others claiming under jijip, 
&c. free from all incumbrances . • Then it is covenanted by all the 
parties, that all fing^and re cover ies, and deeds of the premises, levied, 
suffered, or executed by the parties or any of them, or by any oth- 
er persons, sh all be and enure to the use of the said C. K irby and, his 
h eirs of his body lawfully begotten ; and for want of sucli^ -4^sue. 
t hen to the us^ nf the ■«;aid Tohn Wilkinson junior, his heirs and^as- 
sjgns for ever, according to the true intent of these presen ts. In 
witness, &c. executed by Thomas Kirby. 

It further appeared in evidence, that C. Kirby on the 10th of Novem- 
ber 1733, p aid to the said Thomas Kirby i20. in moncv, and gave hjm 
his note for £80. payable to the said Thomas Kirby, wlio signed__a re- 
ceipt on the backside of the said djp pd of relea se in these words ; viz. 
Received the day and year within written of the within named C. 
Kirby the s um of one hundred pounds, being the full consideration - 
money within mentioned to be paid, t" me- I say, received by me, 
Thomas Kirby. Witness M. J. S. T. 

It further appeared in evidence, that C. Kirby died without issue in 
1740, and that Jo hn Wilkinson the lessor of the plaintiff is the same 
John Wilkinson named in the deed of release ; but it did not appear 
that the said John Wilkinson had notice of the said deeds of lease 
and release until a short time before this ejectment was brought. 

This being the case for the consideration of the Court, the general 
question is, wl iether the lessor of the plaintiff has a title to recov er 
u pon the lease an*^ rp1pa<;p ? ® ^ * * * 

WiLLEs, C. J. It is admitted and agreed on all hands that this deed 
is void as a release, because it is a grant of a freehold to commence 
in futuro; and therefore the only question is, wjiether it shall ta ke 
e ffect as a covenant to stand seised to uses? and we are all of opinio n 
tl iat it shall fmv Brother Bathurst. not being here, authorized me 
to say he is of the same opinion). 

]\Iany cases have been cited on both sides, some of which are very 
inconsistent with one another, and to mention them all would rather 
tend to puzzle and confound, than to illustrate the matter in question; 
and therefore I shall only take notice of those things we think most 
material, and of some few cases nearest in point for our judgment. 

It appears from the cases upon this head, in general, that the judges 
have been astuti to carry the intent of the parties into execution, and to 



68 A summary of the arguments of counsel given in Wilson's report is liere 
omitted. 



Ch. 1) MODE OF CONVEYANCE 257 

give the most liberal and benign construction to deeds ut res magis 
valeat quam pereat. I rely much upon Sheppard's Touchstone of Com- 
mon Assurances, 82, 83, (which is a most excellent book,) where he 
says, when the intent is apparent to pass the land one way or another, 
there it may be good either way. 

By the w ord intent i s not meant the intent of the parties to pass the , 

la iTcl bv this or tEat particular kind of deed, o r by any par ticular mod e *Uvjla*.>».4^ 
or form of conveyance, b ut an intent that the land shall pass at a ll ^ 1^ 

e vents one way or other j ^ ^^^^Xjla^ 

Lord Hobart, (who was a very great man,) in his Reports, fo. 277, 
says, "I exceedingly commend the Judges that are curious and almost 
subtil, astuti, to invent reason and means t o make acts according t o 
t he just intent of the parties, and to avoid wrong and injury, which by 
rigid rules might be wrought out of the act ;" and my Lord Hale in 
the case of Crossing and Scudamofe, 1 Vent. 141, cites and approves 
of this passage in Hobart. 

A 1 t hough formerly, according to some of the old cases, the mode- O r 
f orm of a conveyance was held material, 3^et in later times, where th e 
inteM appears that the land shall pass, it has been ruled nt h^ ^wise^ n nd 
certainly it is more considerable to make the intent good in passing the 
estate, if by any legal means it may be done, than by considering the 
manner of passing it, to disappoint the intent and principal thing, which 
was to pass the land. Osman and Sheafe, 3 Lev. 370. Upon this 
ground we go. 

We are all of opinion that in this case there is every thing- nere'^'^a ry 
t o make a good and effectual covenant to s^ d seised to uses .cTFirstT 
here is a dee^ ^ecoridl>^^ere are apt word s, the word g^rant alone 
would have been siithcient7but there are other words besides which are ^ ^i 
material ; viz. a covenant that the grantor has power to grant, and a • ^^^^ \*T%n 
covenant that all fines, recoveries, &c. of these lands shall enure to the* /»j!!1jx>m-*'»^ 
uses in the deec^ ^ "Thi^ dlyf* the cov enantor was seised in fey'^'^ourthlv.^ ' *^« * 
here appears a most plain intent that Wilkinson the lessor of the plain - ' » , 

tiJLsbould have the lands in case C. Kirby died without issue. And y. ^^*^ ^^^ 
^M^sth', here is a p roper consideration to raise an use to the lessor of the (Ip 

plaintifL for the covenantor in the deed names him to be the eldest son 6, ^^^""^Vj^ 
of his well-beloved uncle; tl^seare all thej:ircumstances necessary to aJcAjl/^^^^ 



make a good deed of covenant to stand seised to uses 

In support of their opinion the Chief Justice only cited and observed /t^"*-* ^ '^ 
upon these cases, viz. Crossing and Scudamore, 1 Mod. 175, 2 Lev. 9, 

1 Vent. 137; Walker and Hall, 2 Lev, 213; Coultman and Senhouse, 
Tho. Jones. 105, Carth. 38, 39; Baker v. Hil 2 W. & M. B. R.; Os- 
min and Sheafe, 3 Lev. 370. 

The Chief Justice lastly cited two of the strongest cases mentioned 
for the defendants, as Hore and Dix, 1 Sid. 25, and Samoh and Jones, 

2 Vent. 318, and said he did not (for his own part) understand them; 
and that if he had sat in judgment in those cases, he should have been 

Aig.Pbop. — 17 



/, a diMjJi 



258 



DERIVATIVE TITLES 



(Part 2 



of a different opinion in both ; however, he said the present case dif- 
fered from these two cases. Lastly, he said the whole court were cl ear 
of opinion that a man seised might covenant to stand seised to thejise 



qf another person after the covenantor's dea th, 
the plain tiff. «» 



MURRAY V. KERNEY. 



Postea delivered to 



(Court of Appeals of Maryland, 1911. 115 Md. 514, 81 Atl. 6, 38 L. 

[N. S.] 937.) 



R. A. 




Pattison, J., delivered the opinion of the Court. 

In this case the appellee, pl amtift" below, filed his bill allegino^ that 
h e was th e nwnpr, in fpp 'di mple, of a lot of land in Baltimore Citv. s it- 
u ated at the corner formed by the intersection of the west side of Cen - 
t ral avenue and the southeast side of Gav street that he had acquired 
from one Jane J. Murr ay by deed d ated September 13th, 1905. 

The bill alleges .that Jane J. Murray a cquired title to this property by 
written a g ;reement executed on the 2d dav of December, 1885, by th e 
s aid Jane J. Murray and her three sisters who were at the time owne rs 
of said lands as tenants in common. The agreement was executed and 
acknowledged by them with all the formalities required in the execu- 
tion and acknowledgment of deeds and was duly recorded, and is as 
follows : 

"We, the undersigned, daughters of the late Peter and Elizabeth 
Murray, named and subscribed to this instrument of writing, do ente r 
i nto an ag reem ent that for the benefit of each and all of them nam ed 
a nd subscribed to this agreement and are now living in and owne rs 
i ointlv the property being their joint interest left them, Ly icy A. 
Murray, Ann Murray, Sara A. Crawford and Jane J. Murray, as heirs 
of the above Peter and Elizabeth Murray, property situated on the 
southwest corner of Gay and Canal streets (now Central avenue) ; th e 
o bject of this is that in case that if by death should take one of t he 
p arties, the other three sisters are the owners and if two are taken b v 
cf eath, then the two remaining sisters are the owners, and if by dea th 
o ne of the two sisters is taken then the last surviving sister is the ow n- 
er^ and in order to carrv faithfully this agreement, we hereunto set ou r 
iTgnH-:; an ij ^ppk anH ^nh^r rihe nur names this second day of Decem ber. 

in the y ear ei g-htP Pn j^nnrlrpH anH f^JCTJ-ily-flvp " 

The bill further alleges that t he three sisters all died in the lifetime 

6 9 There have been many cases in Avhicb the courts have been astuteto u p- 
h old a^Ht^ed as operative in some maimer ! See Cheney v. WatUiiis, 1 HaT. S, J. 
riMd.1 .'^27, 2 Am. l)po. .'S.SO (1804). snst ainJDir as a feoffment a deed defective as 
a bart^ain and sale, for wnnt of a pro;)er consideration : I'erry v. Price, 1 .Mo. 
553 (181'5), same; Havens v. Sea Shore Land C^o., 47 N. J. Eq. 365. 20 Atl. 497 
(1890), s ustaining as a bargain and sale a conveyanpp in the words "reinjjs e. 
release and onitplniin," void as a I'elease liecause the estate was in expectanc y; 
Lambert v. Smith, 9 Or. 185 (1881) ; ileld v. Culumijet, 4 tSawy. 5:J3, i'eo: Oas. 
No. 4,7tJ4 (1864). 



..'-A 



Ch. 1) MODE OF CONVEYANCE 259 

of Jane J. Murray, l eaving her surviving them , the owner, as it alleg es. 
o f said propertv under and by virtue of said agreement, and that sh e 
d ied on the 26th dav of Tanuary. 1908 . The bill also alleges that said 
property, for a long time prior to the acquisition of it by the plaintiff, 
was o ccupied bv him and wa's in his possession at the time of the fili ng 
o f the bill That at the time of the death of the said Jane J. Murray, 
she was seized of the property adjoining the property so acquired by 
him, which was also embraced in the property mentioned and describ- 
ed in the agreement above mentioned, signed by th§ said Jane J. Mur- 
ray and her sisters aforesaid, and w hich he r h^jrs, nft^r her dpnth, 
a greed to ^pll tn th^ "Mprth r.ny S;trfp ^ Perman mt Rnilrliiio- and T.Q.nn 
Association of B^ ltimn rp Tify , but upon examination the purchaser 
was not satisfied with the title of Jane J. Murray thereto, its objection 
being based upon the sufficiency of the agreement above given to pass 
title to her in said lands, and proceedings were instituted in the Circuit 
Court for Baltimore City "for the sale of said property and the ratifica- 
tion of the contract of sale to the said corporation, which proceedings 
have long since been completed and the title of said adjoining property 
conveyed to the said corporation." 

A s the legal sufficiency of the title of Tane T. Murray in and to_ the - . • "-^^ 
la nds sold as aforesaid had been questioned , the ^l^^tift" thought i tC/'<*|klAy4*^^ 
best, as he alleg es^ ^f^ ha^^ pve<:"'^pd to him, by the heirs of fane T . cCtA^ 
Murray, a confirmatory deed for the propertv so conveyed unto him by *^*'*'^^ . 
her as aforesaid. To this end he called ui)on the heirs to execute the ^ 

confirmatory deed and all of them executed the same except the d e- ^^|t^^:i^^=^ 
f endants, who refused to do so- It was then that he determined to file /TjLu/i4 ^0% 
the bill asking the Court, as he did, to construe said agreement and by ^y -. *y 
its decree "remove any cloud which might exist or be supposed to exist"-^'*''*^'^^ '■'*''^ ' 
upon his title to said lands. 

The d efendant s Mary J. Murray and William A. Murray ansvi^ered, 
stating tiiat as to the construction of the paper writing or agreement 
mentioned in the bill, and as to the relief prayed therein, they consent- ^i^jw^ju* ^ 
ed to and desired that the Court should pass such decree as to it might 
seem just and proper in the premises. The other defendants, James 
E. Murray and Thomas F. Murray, also answered neither admitting 
nor denying the things alleged in the bill, but requiring proof thereo f. 

To these answers the general replication was filed, and the testimony 
of the plaintiff alone was thereafter taken, which substantially sustains 
the allegations of the bill. 

The qu estion presented by this appeal is, did Jane J. Murray, th e 
s urvivor of the sisters, who were, as it is conceded, at the time of tj ie 
execution of the paper writing above set forth, the owners of sa id-land 
i nvolved in these proceedings as tenants in common, acquire their in- 
t erest therein under and by virtue of such written agreemen t? 
""It is not difficult to ascertain the meaning of said paper writing. It 
was evidently the purpose and intention of the sisters that they should 
continue to own said property so long as all of them should live, and 






260 DERIVATIVE TITLES (Part 2 

upon the death of any of them tlie three surviving sisters should be 
the owners of said property, and upon tlie death of tlie second sister 
the two surviving sisters should be the owners thereof, and upon the 
death of tlie third sister the surviving sister was to become the owner 
of the entire interest formerly held by the four sisters, or the owner of 
the property. B ut is this instrument of writing legally sufficient to 
e ffect the purpose and meaning aforesaid ? "Where theintent of the 
grantor to pass the land is apparent, if for any reason the deed or in- 
strument by which the transfer of title was intended to be effected can 
not operate in the way contemplated by the parties, t he Court, if pos- 
s ible, will give it effect in some other way, and judges have been v ery 
a stute in s uch cases in their en deavors to make the conveyance oper a- 
tive one way or the other t o carry mtoeffect the intention of the gr gji^ 
toTor dono r." Bank of U. b. v. Housman, 6 Paige's Ch. (N. Y.) 534. 
If for any of the reasons assigned by the appellant the instrument of 
writing mentioned in this case should be inoperative as a common law 
deed, weJlmk that it is effective as a covenant to stand seized to u ses 
under the Statute of Uses . 
^ ^ /^ /' Blackstone defines a covenant to stand seized to uses as " A speci es 

U^f,.,^^ ^ I o f conveyance by which a man seized of lands, covenants in consider a- 
B Aji>*^ \ t ion of blood and marriage that he will stand seized of the same t ojhe 

m^ Z**"^^ I u se of his child, wife or k i nsman, for life, in tail, or in fee" Hut this 
^>^, I conveyance can only operate when made upon such weighty and inter- 

'^^^ Vesting considerations as those of blood and marriage." Book 2, 338. 

" No particular word or form of words is necessary to constitute a 
' covenant to stand seized. ' The consideration is the chief requisite 
to characterize it and to support it as such a conveyance. This con- 
sideration is bl ood and marriag e. I f the consideration appears in a 
deed, though there be no express words of consideration, yet it is s uffi- 
c ient to raise a use by way of conveyance. " Barry v. Shelby, 5 T^nn. 
(4 Hayw.) 229, 231. 

Lord Coke, in treating the Statute of Uses, says : " The intention o f 
the parties is the principal foundation of the creation of uses ," and m 
Slay v. Mehan, 1 Lewt. 782, the Court says: "There is no covenant 
that admits of such a variety of words as that of a covenant to stand 
seized." Hayes v. Kershow, 1 Sandf. Ch. (N. Y.) 263. 

T he covenant must, of course, be by deed in order to constitute it a 
covenant; and the usual term employed in creatmg it is. "covenan t." 
though any other words may be adopted which are tantamount there- 
to. 2 Washburn on Real Property, § 1379. 

The deed or instrument of writing that was before the Court in the 
case of Fisher v. Strickler, 10 Pa, 348, 51 Am. Dec. 488, was as fol- 
lows : "Now, know ye, that we, the said Jacob Strickler and Christian 
Strickler, have this day agreed with each other, that in case if one of 
them shall happen to die unmarried, or intermarried and without law- 
ful issue or issues that should arrive to the age of twenty-one years, 
that then and in that case the survivor of them shall be the sole heir 



Ch. 1) MODE OF CONVEYANCB 261 

of the deceased one both to the real and personal estate of tlie deceas- 
ed, without any further deed or conveyance ; to hold the real estate as 
well as the personal estate of the deceased unto the survivor and to his 
heirs and assigns forever." The Court in adopting the opinion of the 
lower Court said : "Tloe instrument of writing set forth in this case is 
what is technically c alled a covenant to stand seized to uses. The '^t' 

words are sufficient to create the covenant7the'iriteiitron being apparent 
on the face of the deed, that each party should stand seized to the use 
of the qtlier surviving him, under the circumstances stated. And the 
consideration of n at ural lov e, though not expressed, is manifest from 
the relation of the parties. Milbourn v. Salkeld, 'WilTes, 673 ; Bedell s 
Case, 7 Rep. 40; Crossing v. Scudamore, 1 Ventr. 137; 3 Cruise's 
Dig., Part. IV, 186-190." 

I n this case, as it is conceded, the four sisters were seized in fee, as 
t enants in common, of the lands in question, and being so seized ex- 
ecuted the deed or agreement above set forth. Each was seized of._a 
o ne-fourth undivided interest in said land and by this deed or instr u- 
ment of writing each covenanted to stand seized of her interest therei n 
t o her use during her life , and upon her death to the use of such of 
her sisters as surviv ed hei. successively to and including the last sur- 
vivor, who became seized thereby, i n_fee. of the interest of all the sis- 
ters in said lands. 

From what we have said we do not think the Court below erred in 
its ruling and will therefore affirm its decree. 

Decree affirme d, with costs to the appellee. -^ />_£,tt._«->jr a-.^-^ ^l^^rx,"-*^ 







(C) Limitations Upon the Operation of the Statute of Uses 
TYRREL'S CASE. 

(Court of Wards, 1557. Dyer, 155.) 

Jane Tyrrel, widow, for the sum of four hundred pounds paid b y 
G. Tvrrel her son and heir apparent, by indenture enrolled in chanc ery 
in the 4th year of E. VI, bargained. _ so ld, g_a v e^ granted , covenante d, 
and c oncluded to the said G. Tyrrel all her manors, lands, tenements. 
&c., to have and to hold the said &c. to the said G. T. and his hei rs 
f or ever, to the use of the said Jane during her life, without impeacj i- 
ment of waste ; and immedi ately after her decease to the use x tf-the 
said G. T. and the heirs of his body lawfully begotten ; ^and in defa iilt 
of such issue, to the use of the heirs of tlie said Jane for eve r. Quaere 
well whether the limitation of tliose uses upon the habendum are not 
void and impertinent, because an use cannot be springing, drawn, or 
reserved out of an use, as appears prima facie? And here it ought 
to be first an use transferred to the vendee before that any freehold 
or inheritance in the land can be vested in him by the enrollment, &c. 



ex dem. LLOYD v. PAS SINGH AM. 



262 DERIVATIVE TITLES (Part 2 

•^ ■ 

And this case has been doubted in the Common Pleas bef(5re now : 
,*^ut ideo quaere legem. But all the Judges of C. B. and Saunders, Chie f 

r^ ^^ J ustice, thought that the limitation of uses above is void, &:c. for sup- 

pose the statute of InroUments (cap. 16.) had never been made, but 
only the statute of Uses, (cap. 10.) in 27. H. VIII, then the case above 

■^ A ^gtiKA^^-"^ could not be, because an use cannot be engendered of an use, &c. See 

5. M'^'j^ M. 10 & 11 Eliz. & fol.^0 

>v ^ I \ rLoMJl (Co"''^ of King's Bench, 1827. 6 Barn. & C. 305.) 

X m L/>'^^>^*''^^ Ejectment for lands in tlie county of Merioneth. Plea, the general 
X ^ ^, issue. At the trial before Burrough, J., at the last Summer Assizes 

'ffl ^/P^^'^*'^wf ■^^^ Salop, it appeared that the lessor of the plaintiff claimed as devi see 
1 ' (l ^ i n tail under the will of Catherine Lloyd, who was co-heiress, with 

>^, >f*f f her sister Mary, of Giwn Lloyd, who died in 1774. In 1746, by in- 

.^tv**'"*-! denture made between himself, G. Lloyd, of the first part, Sarah Hill 

of the second part. Sir Rowland Hill and John Wynne of the third 
part,, and Sir Watkin Williams Wynne and Edward Lloyd of the fourth 
part ; i n consideration o L- an intended mar ri age with the said _^rah 
Hill, and of a sum of £8000., being the marriag e .po rtion of the sa id 
^a rah Hill, p aid or secured to be paid to him Giwn Lloyd, he. G iwn 
0ovd, did grant, release, and confirm unto the said Sir Watkin W il- 
lia ms Wvnne and Edward Lloyd in their actual possession then bejn g, 
by yirtue of an i ndenture of bargain and s a le. &:c.. and to their he irs 
a nd assigns, certam premises therein particularly described . , an d, 
a mongst others, the premises in question ; to have and to hold the 
said premises with their appurtenances, unto the said Sir Watkin Wil- 
liams Wynne and Edward Lloyd, their heirs and assigns ; to the on ly 
p roper use and behoof of them the said Sir Watkin Williams Wynn e 
a nd Edward Lloyd, their heirs and assigns for ever. , i^pnp Vw^^ , never- 
t heless, and sub je ct to the several uses, intents, and purposes ther ein- 
a fter mentioned^ that is tosay, to theuseof_ the_ s^idJ^^wn Lloy J and 
h is heirs until tlie said in tenoe^^'nramage should take effect^ and from 
and after the solem nization of t he said intended marriage, then to 
t he use and behooi ot Uiwn JLloyd and Sarah his intended wife, a nd 
their assigns, for and during the term of their natural lives, and the 
longer liver of them, as and for her jointure and in lieu and full sat- 
isfaction of dower; and from and after the decease of such surv ij^or 
t o the use of Sir Rowland Hill and John Wynne, their executors, ad- 
ministrators, assigns, for the term of TOOO years, t o and for the sev- 
eral intents and purposes theremafter mentioned ; and from and after 
the expiration or other sooner determination of that estate, to tlie use 

TO See Sambach v. Dalton, Tothill, ISS (1G34) ; Jackson v. Cary, 16 Johns. 
(N. Y.) .^>04 (1819) ; Reid v. Gordon, 35 JVld. 183 (ISTi:) ; Croxall v. Shereid, 5 
Wall. 2G8, 18 L. Ed. 572 (1866). 



Ch. P MODE OF CONVEYANCE 263 



a nd behoof of tlie first son of the body of the said Giwn Lloyd _on the 
body of the said Sarah Hill, h is intended wife, lawfully to be begotten, 
and the heirs male of the body of such first son lawfully issuing; ^nd 
for _d^fault of _ such issue, to the use and behoof of the second son 
i n like manner ; and then to tlie daughters ; aj id for r lpf^nli- of snrh 
i ssue, to J:he use and behoof of th e ?aifl Oiwri T.lnyd, hi;:; heirs and 
assigns for eve r. And.it was thereby declared and agreed by and be- 
tween all and every the said parties to the said indenture, that the term 
of 1000 years thereinbefore limited to Sir Rowland Hill and John 
Wynne, w as upon trust that they did and should immediately after th e 
d ecease ofJ l Lwn Lloyd, by sale or mortgage ot the" whole or qny part 
t hereof, raise the '^^m nf ^39 00 ^^ be paid and applied in manne r 
t heremafter mentioned . And it was thereby declared and agreed by 
and between the parties to the said indenture th at a sum of £4000. of 
th e said sum of £8 000. should imme diately after the solemnization of 
t he saiH mtenfled marriage be p aid mto the hands of them the sai d 
Sir Rowland Hill and Tohn Wynne, upon trust that the same should 
be paid, laid out, and applied by them with all convenient speed in 
the purchase of freehold lands , tenements, or hereditaments in f ee 
s imple, in the county of Merio neth aforesaid or elsewhere in the pri n- 
cipa lity of Wales, or in that part o f Great Britain called Engbtid , with 
the approbation of them tlie said Giwn Llovd and Sar^h 11111^ -h is in- 
tended wife, or the survivor of tliem, testified by any deed or writing 
under the hands and seals of them the said Giwn Lloyd and Sarah 
Hill, and the survivor of them, duly executed in the presence of two 
or more credible witnesses ; a nd that the said lands, tenements, an d 
h ereditaments, when so purchased, and every part and parrel thereof . 
with their appurtenances, should be conveyed to them the said Si r 
Watkin Williams Wvnne and Edward Llovd , and their heirs, and t o 
t he survivor of them and his heirs , to and for the use and behoof of 
the several persons, and for such estate and estates as the premises 
thereinbefore mentioned, and thereby granted and released by the said 
Giwn Lloyd were conveyed, settled, limited, and appointed. And it 
w as thereby also further df^cj-jpr pd and agreed that in case th e re 
s hould be no issue of the said intended marriage and that the sa id 
S arah Hill should be minded by her last will and testament to give o r 
devise any sum not exceeding £4000.. or the estate thereby intended 
to be purchased therewith, or any part thereof as aforesaid, to any 
person or persons whatsoever, it s hould be lawful f^ ^^'^ fo'" h<>r thp 
s ajd Sarah Hill, notwithstanding her coverture^ to p; -ive and devise th e 
s ^me, or any part thereof, to such person or persons, and to and-J or 
s uch estate and estates, and such uses, intents, and purposes, as sh e 
s hould limit, direct and appoin t : and in such case they the said Sir 
Watkin Williams Wynne and Edward Lloyd should sta nd seised ofj all 
and every the lands, tenements, an3 hereditaments so to be purchased 
as aforesaid, to them and their heirs, t o and for such uses, inten ts, 
a nd purposes, as she the said Sarah Hill should, by such her last will, 



>«^. 



> 




264 DERIVATIVE TITLES (Part 2 

l imits direct, and appoin t ; and then and from thenceforth all and ev- 
ery the uses and limitations to the said Giwn Lloyd and his heirs, of 
and concerning the said lands, tenements, and hereditaments to be pur- 
chased as aforesaid, should cease, determine, and be absolutely void, 
to all intents' and purposes whatsoever. 

Gjwn Llovd died in 1774, and Sarah his wife in 1782. intestate, a nd 
without having had any issue . Catherine Lloyd, the testatrix, con- 
tinued in possession of the estate from the death of Sarah Lloyd un- 
til the time of her own death, in 1787. For the defendants, it w as 
c ontended, that the legal estate was vested in Sir W. W. Wynne an d 
Edward Lloyd, by the deed of 1746. and consequently, that neitli er 
Giwn Lloyd nor tlie testatrix had any legal estate ; and, therefore, th e 
l essor of the plaintiff could not derive any such estate from her . The 
learned Judge reserved the point, and the plaintiff having obtained 
a verdict, a rule nisi for entering a nonsuit was granted in Michaelmas 
term. 

BaylEy, J, I am of opinion that we ought not to make the rule ab- 
s glute for entering a nonsuit, but that there should be a new t rial in 
this case. Considering the length of time that has elapsed since the 
purposes of the settlement made by Giwn Lloyd were at an end, I 
think the question as to presuming a reconveyance of the legal estate 
ought to be submitted to a jury. The first point for our considera tion 
i s upon the construction of the settlement! for if it vested the legal 
e state in the trustees, then the lessor of the plaintiff had nni- the 1p<T.ql 
estate unless there had been a rf'cr'^^^^y^^^^ The limitation is to Sir 
W. W. Wynne and E. Lloyd, and to their heirs and assigns, habendum 
to tiiem their heirs and assigns, to the only proper use and behoof of 
them their heirs and assigns upon certain trusts. I felt upon first 
reading it, that tliis was in a very singular form, and it appeared to 
me that the words "To the use and behoof of them their heirs and 
assigns," had been introduced by an accidental mistake, but I now 
think that they were introduced by design, but through ignorance. J.t 
i s certainly singular that Giwn Lloyd should part with tlie legal esta te 
i mmediately on the execution of the settlement, and that he and h is 
wife should onlv"be equitable tenants for life. It is also_singular that 
the term created for the purpose of raising portions should be a mere 
equitable term, and that the lands to be purchased with the £4000. 
should be limited in such a manner as to leave it doubtful whether 
or no the cestui que trust would take the legal estate. That would not 
necessarily be the case, for the direction, that the estate purchased 
should be limited "for such estate and estates," as the other premises, 
might mean for equitable estates ; and, therefore, this is not absolutely 
inconsistent with the idea that the trustees were to take the legal es- 
tate. And on the other hand, t he power which Giwn Lloyd and h is 
w ife would have had to defeat all the contingent limitations , if the 
t rustees did not take the legal estate, shows so strong a purpose to b e 
answered by construing the deed according to the strict legal opera- 



Ch. 1) MODE OP CONVEYANCE 265 

t ion of the language used, that I think we are not at liberty to pu t 
a ny other construction upon the words than that which thev usually 
b ear. Now, ever since I have belonged to tlie profession of the law, 
I have inv ariably understood that an use cannot be limited upon an U>i4_ ^4>— f 
use. That is admitted to be so in general, b ut a distinction has bee n ^ ^ca,^i^ 
t ak^n where the limitation is to A., to the use of A. in trust for B ., 
a nd it is said that then A. is in by the common law . That is true; 
but he is in of the estate clothed with the use, which is not extinguished, 
but remains in him. In the case of Meredith v. Jones, cited in argu- 
ment to show that where an estate is limited to A., to the use of A., 
he is in by the common law, it is said, "For it is not an use divid ed 
fr g n i.^^"'^ pstptp, as where it is limited to a strange r, j3Ut the use and th e 
e state go ■together ." That case therefore shows, that although the 
tr u stees in fliis case might be in by the common law, yet they were i n 
b oth of the estate and the use. There are two cases expressly in point. 
Lady "IVhetstone v. Bury is a very clear case, and the words used 
were precisely the same as those found in tlie deed in question, and it 
was there decided, and also in The Attorney General v. Scott, which 
came before Lord Talbot, one of the greatest real property lawyers 
that ever filled the office of Lord Chancellor, th at the le gales tate ves ts 
i n him to whom by the words of the instrument the use i^hmit ed, . , 

Upon the authority of these two cases, I am of opinion that the u se ^^-^ap«j%-* 
o f tlie estate in question was executed in the trustees.. Then, upon ' k "T- 

the other question tiiere is certainly some proi niH fnr prp=n"T'"g a *^: '^'^\ 

reconveyance ; b ut, on the, one hand. I think the Court would be going ^v*"s 

a great deal too far were they to make such a presumption, and, o n ^\j^' 

t he other, I think the lessor of the plaintiff ought to have an opp or- -yy^ V'l 
t unity of submitting that pojpt <"0 a j^^'X - The rule should, therefore, ■ ' l . 

be made absolute for a n^ej^J^rial. V^ ''^vjh 

HoLROYD, J. I agree with my brother Bayley, that in this case there 
ought to be a new trial. Upon the first perusal of the deed in ques- 
tion I had no doubt that the legal estate was vested in the trustees , 
having always understood that an use cannot be limited upon an use ; 
and although I was struck by the ingenuity of the distinction pointed 
out by Mr. Taunton, yet upon further consideration it appears to me 
that his argument does not warrant it. The argument is, that as t he 
tr ustees did not in the first instance take to the use of another, but / a 
o f themselves^ they were in by the common law , and not the statute : > ^. ""^ Cytrtr 
that the fi rst use was, therefore, of no effe ct, and t he case was to be I ^^^^ ^ 
c onsidered as if the deed had merely contained the second limitation \ 
t o use^ . Bu^ll^^J; is* nqt go. for although it be true that the trustees 
take the seisin by the common law, and not by the statute, yet they . a r;^ 
ta ke that seisin to the use of themselves, and not to the use of another . J-^dj^:^^ — ^ 
i n which case alone the use is executed by the statute.. They are, there - y'uJLAx^ -^ 
f ore, seised in trust fnr another, and the legal estate remains in them . yOy^i,*.^aXt^* 
As to the question of intention, even if it were intended that the deed 
should operate in a different mode from that pointed out by the law. 



V** 



S 



266 



DERIVATIVE TITLES 



(Part 2 







w hen the le^al estate is ^iven to trustees, that Intention cannot count er- 
vail the law. But the intention appears to me~altogeffier doubtful ; the 
absence of trustees to preserve contingent remainders affording a 
st rong reason for supposing that the parties meant to give the leg al 
estate to the trustees . 

LiTTLEDALE, J. I am entirely of the same opinion. It is said, that 
by the construction now put upon the deed the intent of the parties 
will be defeated. • If we were not construing a deed, I should feel dis- 
posed to give a liberal effect to the intention, but if all matters of 
convenience and inconvenience which raise a presumption of intention 
are to be taken into consideration, as affording rules for the construc- 
tion of deeds, and are to have the eft'ect of overruling the plain words 
of such instruments, the law will very soon be thrown into utter con- 
fusion. Here, however, there is a balance of inconveniences, and 
therefore we may come at once to the legal construction of the settle- 
ment. I never entertained a doubt that a second series of uses cou jd 
not be executed . It is true, that certain cases shew these trustees to 
have taken the esta te by the common law, but tliev to ok it coupled 
with the use. The cases cited upon this point are perfectly clear, and 
they are well collected in a note, by Serjt. Williams, to Jefferson v. 
Morton, 2 Saund. 11, n. (17). However for the reasons given, I think 
that there ought not to be a nonsuit, but a new trial. 

Rule absolute for a new trial. 



URE v. URE. 
(Supreme Court of Illinois, 1900. 1S5 111. 216, 56 N. E. 10S7.) 

BoGGS, J. The ch ancellor entered the decree here appealed frpm on 
the theory th e tru st.cr eated by the second clause of the will of Mar ga- 
r et Ure, deceased, w as a passive, or dry^ust^, a nd that the Statu te of 
U ses instantly operated to vest the legal title to the real estate in j the 
c estui que trust . Whether such is the true construction of the clause 
is the only question presented by the record. The clause reads as fol- 
lows: 

"Second — After the payment of such funeral expenses and debts, 
I_givej d evise and bequeath t o my son John Francis Ure all niy cow s, 
bulls and calv es, except one cow and my horse s Rosy, Jessie and Doll, 
and tlie rema inder of my real and personal estate equally to my two 
sons, R obert Arnold U re and Jo hn Francis Ur e: Provided, however, 
that the portion of my estate that I hereby give, devise and bequeath to 
my son Robert Arnold Ure shall be held bv a trustee, and said t rustee 
t o be the executor of this my will hereinafter nanied, to hold and con - 
trol said property for said Robert Arnold Ure in trust, he, the said 
RobertArnolj^ Ure, to h ave th e income^ only, from said e_state_toJiis 
o wn use and benefit as long as he may live, and on his death said esta te 
to revert to his natural heirs," etc. 



\>t 




i>fe>^ 



Ch.l) 



MODE OF CONVEYANCE 



207 



The trust estate, as appears from the will, consisted of t^th real a nd 
pe £sonal property . The St atute of Uses has no application to persoj ial 
property, and the title to that portion of the trust property was not af- 
fected by that statute. 27 Am. & Eng. Ency. of Law, p. Ill, and cases 
cited in note 1 ; 3 Jarman on Wills, p. 51, note 2. Speaking of the rule 
of construction adopted in some instances when a trust estate consists 
in part of property the fee whereof necessarily vests in the trustee, it 
is said in Jarman on Wills, (vol. 3, p. 85, 5th Am. Ed.) : " It seems th at 
wl Tere a will is so expressed as to leave it doubtful whether the tes ta- 
to r mtended the trustee to take the fee or not, the circumstance that 
there is included in the same devise other property which necessarily 
vests in the trustee for the whole of the testator's interest affords j i 
g round for g iving. \hfi will thf s nnie rnnstruction as to the estate in 
qU£^Uop." 

The income of the estate, both personal and real, is be queathed t o 
sa id Robert Arnold Ure during his lifetime and the remainder in fe e 
d evised to his "natural heirs ." The trustee is empowered to "hold and 
control" the property in trust, etc., and these words measure and fix 
the duties of the trustee. The word "hold," which was a technical 
word as employed formerly in the tenendum clause of a deed, has now 
no technical meaning when used in such instruments. Bouvier's Law 
Die. "Tenendum"; Wheeler v. County of Wayne, 132 111. 599, 24 N. 
E. 625. Among others, the foljowing definitions of the word 'Uioldl' 
are given by Mr. Webster: " To derive title to : to retain in one's keep- 
i ng; t o be in possession oL l t o occupv : to maintain authority over. " 
The" word "control" has no legal or technical meaning distinct from that 
given in its popular acceptation. Webster employs the word "superin- 
tendence" as expressive of the meaning of the word "control," and gives 
the word "control" as one of the synonyms of the word "superintend- 
ence." The same lexicographer defines the word "superintendence" as 
follows : "The act of superintending ; care and oversight for the pur- 
pose of direction and with authority to direct." The word "manage" 
is defined to mean "to direct ; control ; govern ; administer ; oversee ;" 
(Anderson's Law Die.) ; a nd the words "control" and "manage" hav e 
be en held to be synonymous . (Youngworth v. Jewell, 15 Nev. 48.) 

Power to hold alid the duty to control the trust estate involve the 
custody and possession of the trust property, both real and personal, 
and s uch a trust is not merely passiv e. It is not indispensable to the 
power and duty of a trustee to r^ the trust property and collect the 
rent thereon, the devise shall in pcpress terms so empower him. It is 
e nough if the intent to invest ham with such power can be gathered 
from th e_^ll. 3 Jarman on w/lls (5th Am. Ed.) p. 56. It was mani- 
'festly the intention of the maker of the will here under consideration, 
t he executor, as trustee, shoulg enter into and retain possession of the 
t rust estate during the lifetime of the said Robert Arnold Ure. and 
should diligently devote hijg energy^ judgment and discretion to the 
management and control oi the property , to the end that the greatest 







268 



DERIVATIVE TITLES 



(Part 2 



possible incQme should be secured therefrom. The Statute of U ses 
does not exec ute a t rust o f t his character . Meacham v. Steele, 93 111. 
135 ; Kirkland v. Cox, 94 111. 400; Kellogg v. Hale, 108 111. 164. 

The decree must be reversed, and the cause will be remanded for 
further proceedings in accordance with the views here expressed. Re- 
versed and remanded.''* 



-y:' 



SECTION 3.— UNDER MODERN STATUTES 




ABBOTT v. HOLWAY. 

(Supreme Judicial Court of Maine, 1S81. 72 Me. 298.) 

This is an a ction on the case for was te. The writ is dated Septem- 
ber 28th, 1878.*"""" 

The plea is the general issue and brief statement denying the plain- 
tiff's title and claim. 

At the trial it was admitted tliaf^ Jampc; Ab^<^^-t ^"'•^g, ^" the 30th of 
April, 1872, and long had been, the h jusband of th e plaintiff: that he 
died May 5th, 1875; tliat the defe ndant is the administrator on his es- 
tate ; that he owned, on the 3Uth of April, 1872, and long had owned, 
tlie premises described in tlie writ, a valuable farm in Pittston, upon 
which was a large timber and wood lot; that he continued to live on 
the farm with his wite managing and taking the crops tliereof until his 
death, she now surviving him ; tliat in the winter and spring of 1875, 
without the consent and against the remonstrance of the plaintiff, he 
caused to be cut and hauled to market, a quantity of mill logs, cut for 
t hat purpose, and n ot tor fencing or repairs. 

Since Abbott's death, his administrator has sold the lumber made 
from the logs and received the money therefor. 

The p laintiff" put in evidence the deed from James Abbott to h er, 
dated April 30th, 1872, embracing the premises described in the writ 
and upon which the alleged waste was committed, and proved i ts execu - 
tion an d delivery on the day of its date, and i ts record i n the Kennebec 
registry on the same day by plaintiff's procurement. It is made part 
of the case. 



71 A tract of land was conveyed to H. upon the following uses and trusts : 
"This conveyance is made to the said H. as trustee to hold the said property 
for the sole use and benefit of K., v/ife of M., free from dominion, debts, or • 
liabilities of her present or any future husband, and the rents, profits, pro- 
ceeds of, or sale or profits of said property, or any portion thereof, shall be 
held under the same trusts." Was the le.^al estate vested in the wife? See 
Hart V. Bayliss, 97 Tenn. 72, 36 S. W. 691 (1896) ; Georgia, C. & N. Ry. Co. v. 
Scott, 38 S. C. 34, 16 S. E. 185, 839 (1892) ; Sutton v. Aiken, 62 Ga, 733 (1879). 



1 



Ch. 1) MODE OF CONVEYANCE . ^ . 2G9 

(Deed) "^ *C^ 

"Know all men by these presents, tliat I, James Abbott of Gardiner 
in the county of Kennebec, i n consideration of one dollar paid by m y 
wife Clarissa B. Abbott, and for the purpose of providing and secur- 
ing to my said wife a comfortable support in the event of my decease 
during her life, the receipt whereof I do hereby acknowledge, do her e- 
by give , grant , bargain, s ell and convey, unto the said Clarissa B. Ab- 
bott of said Pittston her heirs and assigns forever a certain lot of land 
si tuate in said Pittston and bounded. * * * 

^'This deed is no^ to take effect andop erate as a conveyance u ntil 
my decease , and inc ase 1 shall survive m y said wife, this d eed is not 
t o be operative _a s a conveyanc e, it beingthe sole purpose and object 
of this deed to make a provision for the support of my said wife if she 
shall survive me, and if s he shall survive me then and in that even t 
o nlv t his deed shall be operative to convey to mv said wife said pre m- 
i ses in fee simp le! Neither I, the grantor, nor the said Clarissa B. Ab- 
bott, the grantee, shall convey the above premises while we both live 
without our mutual consent. If I, the grantor, shall abandon or desert 
my said wife then she shall have the sole use and income and control 
of said premises during her life. 

"To have and to hold the aforegranted and bargained premises, with 
all the privileges and appurtenances thereof to the said Clarissa B, if 
she shall survive me, her heirs and assigns, to their use and behoof 
forever. A nd I do covenant with the said Clarissa B. her heirs and as- 
s igns, that I am lawfully seized in fee nf \\\e p re mises ; that they are 
free of all incumbra nces ; that I have good right to sell and convey the 
same to the said Clarissa B.if she shall outlive me, to hold as aforesaid 
at my decease. A.nd that I and my heirs shall and will warrant and 
d efend the same to the said Clarissa B. if she shall survive me. and h er 
h eirs and assigns forever, against the lawful claims and demands of 
^ persons . 

"In witness whereof, I, the said James Abbott, have hereunto set my 
hand and seal, this tliirtieth day of April in the year of our Lord one 
thousand eight hundred and seventy- two. 

"James Abbott. [Seal] 

" Si?"ned . sealed, and d elivered in presen ce of 
"N. M. Whitmore. 
"L. Clay." 

Djily acknowledged a^ d _recorded^ 

Barrows, J. The plaintiff's right to maintain this action must de- 
pend ultimately upon the construction to be given to the deed or instru- 
ment under which she claims title, and upon the force and effect of the 
terms used therein to define the interest which she acquired by virtue 
thereof. 

Our statutes (R. S. c. '73, § 1) prnvi'f^p tViai- "a person owniii p ^ re al 
-estate and having a right of entry into it, whether seized of it or not, 



270 DERIVATIVE TITLES (Part 2 

. may rn ]-|Yry ?<•, nrall Viig interest in it, by a deed to be acknowledg ed 
[ and recorded as hereinaiter proviaed." JJetailed regulations as to the 
mode of execution and as to the torce and effect of conveyances thus 
made and recorded, follow this general provision in some thirty sec- 
tions, more, or less. C an it be doubted that under such statutes th e 
o wner of real estate can convev in the manner prescribed, such pp^^" o^ 
portion of his esta te as he and his grantee may a^ree. subject only to 
t hose restrictions which the law imposes as required by public policy, 
bm relieved from the technical doctrines which arose out of ancient 
feudal tenures, and all the restrictive effect which they had upon alien- 
ations. Why prevent the owner in fee simple from agreeing withhis. 
g rantee (and setting forth that ag reement in his conveyance) as to the 
t une when, and the conditions upon which, th e mstrume nt shall be o p- 
e rative to transfer the estate from, oneJLQ-ll 'ip~ntlipr ? 

In substance our law now says to a party having such an interest in. 
real estate as is mentioned in R. S. c. IZ, you may convey that interest 
or any part thereof in the manner herein prescribed with such limita- 
tions as you see fit, pr ovided you v iolate no ru le of public po licy, and 
pl a^e what you do on record so that aTTmay see how the owners hip 
^ands. ~ 

In the discussion of the effect of the statute of uses and of our own 
statutes regulating conveyances of real estate in Wyman v. Brown, 50 
Me. 139, (a leading case upon the validity of conveyances under which 
the grantee's right of possession was to accrue not upon delivery of 
the deed but at some future day,) Walton, J., remarks : 'fWe_am_al_so~| 
o f opinion that efl'ect may be given to such deeds by for ce of our own \ 
st atutes, independently of the statute of uses. Our d eeds" are not tram"- 
ed to convey a use merely, relying upon the statute to annex the legal 
title to the use. They purport to convey the land itself, and being duly 
acknowledged and recorded, as our statutes require, operate more like 
feoffments than like conveyances under the statute of uses." In this 
connection he quotes Oliver's Conveyancing, touching the operation and 
properties of our c ommon war ranty deed to the effect that in the trans- 
fer authorized by the statuteTiTthis mode, "th e land itself is conv eyed 
a s^in a feoffment except that livery of seizin is dispensed with up on 
c omplyingu aLtlLlh g requisitiori s _nf the statute, acknowle dgin g anH r p- 

• cording, sub stituted instead of it." 

■' ''^ ^ - — 1 

And he concludes that deeds executed in accordance with the provi- 1 
sions of our statutes and deriving their validity therefrom may be up- 
held thereby, as well as under the statute of uses, notwithstanding th ev 

p urport to convev freeholds to commence at a future_ day. ^ 

In other words the mere technicalities of ancient law are dispen sed 
w ith upon compliance w ith statute requirements._ Theacknowledg- , 
f ment and recording are accepted in place of livery of seizin. and~ insl 
) c ompetent to fix such time in the future a s the parties may agree u pon \ 
I as the^ime when the estate of the grantee shall commence . No more \ 
V. necessity for Hmiting one estate upon another, or for having an estatej 



(_ 



Ch. 1) MODE OF CONVEYANCE 271 

^'' (of some sort) pass immediately to the grantee in opposition to the ex- 
^ pressed intention of the parties. 

T he fe offment is to be r egarded as taking place, and the livery of 
se izin as occur ring at the tmie hxed in tlie instrument, ^nd ^he ac - 
k nowledgmentand recording are to be considered as giving the neces - 
s ary publicity which vyas sought- in the ancient ceremonv. The ques- 
tions, did anything pass by the conveyance, if so, what, and when, are 
to be determined by a fair construction of the language used, without 
reference to obsolete technicalities. The instrument will be upheld ac - fWjuJ^ *^ 
c ording to its terms, if those terms are definite and intelligible, and no t^i ^A-iKj^y^ 
i n contravention of the requirements of sound public policy . -^ ^^^ 

The defendant, while he does not controvert the doctrine of Wyman 
V. Brown, insists that nothing passed by the deed of James Abbott to 
his wife, because according to its terms it was le ft uncerta in whether 
the instrument would ever take effect as a conveyance, that not even a 
contingent remainder which the plaintiff claims, passed when the deed 
was made and delivered, t hat it amounts at most, to a mere executo ry 
a greement, and any recognition of its validity is contrary to public 
policy, because it is an attempt to evade the statutes regulating the mak- 
ing and execution of wills, i But the instrument was duly execut ed by 
the defendant's testator, a man capable of contracting, and having an 
absolute power of disposition over his homestead farm, subject only to 
the rights of his existing creditors. It was duly reco rded so that all the 
world might know what disposition he had made of a certain interest in «. 

it, and what was left in himself. If operative at all, it operated differ - //#t<ur^-^ ^ 
e ntlv from a will. A will is ambulatory, revocable. Whatever pass ed Ju%^ M\,tn»^ 
fr> the wife by th i<i irmtrnm ent became irrevocably hers . \ufx^ 

We fail to perceive that any principle of public policy, or anything ■■ * 

in the statute of wills calls upon us to restrict the power of the owner 
of property unincumbered by debt, to make gifts of the same, and to t(r%£^ m^J> 
qualify those gifts as he pleases, so far as the nature and extent of /U^vf^ft*^. , 
them are concerned. ! ^blic policy in this country has been supposed .^ '^^^ ' 
ra ther to favor the facilitation of transt'ers ot titl e, and tne alienatio n . 
o f _gstates. and the exercise of the m ost ample power over property by *^^*^^ ^^''^^ 
i ts owner that is consistent with goo3^ faith and fair dealing. The CUh/x^ '%^ 
selfish principle may fairly be supposed to be, in all but exceptional SuJUjJt^ 

cases, strong enough to prevent too lavish a distribution of a man's . ^Jj/j 
property by way of gift. ^^** \ ^^ 

The learned counsel for defendant speaks of this instrument as "an 
attempt to make an executory devise," "a mode of devising real estate." ^^^^^^ 
It is something more and different, and if the doctrine of Wyman v. _ / 
Brown is to be maintained,' i t gives to the grantee a contingent right i n >-*t^-«>M''****'^ 
t he property which (unlike the interest of a devisee in the lifetime^ f 
t he testator) cannot be taken from her, and may, upon the performance 
o f the condition make her the owner of the premises in fee simple, a c- 
c ording to its terms. It is argued that if the court give ettect to ttiis 
-mode of transmitting a title to real estate, it will lead to uncertainty as 



272 DERIVATIVE TITLES (Part 2 

to the rights of the respective parties, and to litigation between the 
heirs of the grantor and grantee, that "it would tie up estates, embar- 
rass titles, and impair the simplicity of our modes of conveyance," 
without producing any compensatory benefit. Why these results 
should follow (when the validity and effect of such conveyances has 
once been determined) in any greater measure than they are liable to 
follow any kind of family settlement is not apparent. What we do 
is precisely this. We uphold a conveyance in conformity with th e 
agreement of the parties t herem expressed, that the tit le of the p ^rante e 
s hall accrue, not upon the delivery of the deed, but upon the happeni ng- 
of a certain event ( the proof of which is commonly easy) at a future 
time specified in the recorded conveyance. W liy should harm com e of 
"^ i t any more than from a lease made to run from a future day certa in ? 

In substance the grantor says to the grantee, I give you this convey- 
ance made and executed in the manner prescribed by our statute, so- 
that you may have a n irrevocable assuranc e that if you outlive me the 
property therein described shall be yours iQ_fee_simeki_from and after 
my decease, in like manner as if you took the same by livery of seizin 
on that day, under a feoffment from me, the statute provisions for a 
recorded deed dispensing with that ceremon v- Doubtless this is all 
contrary to the ancient doctrine, which is thus stated in Greenleaf's 
Cruise, vol. IV, p. *48: "A feoffment cannot be made to commence 
in f uturo, so that if a person makes a feoffment to commence on a fu- 
ture day, and delivers seizin immediately, the livery is void, and noth- 
ing more than an estate at will passes to the feoffee," What was the 
foundation of this doctrine? It is stated ibidem thus: "This doctrine 
is founded on two grounds; first, because the object and design of 
livery of seizin would fail if it were allowed to pass an estate which 
was to commence in futuro; as it would, in that case, be no evidence 
of the change of possession ; secondly, the freehold would be in abey- 
ance which is never allowed when it can be avoided." But, given t he 
s vg;tem of re'cord^d conveyances for which our statutes provide, th e 
c eremony of livery o f seizin becomes of no importance as an eviden ce 
or the change of possessio n ; and we shall find our natural horror of a 
freehold in abeyance (if It could be demonstrated that such a result 
would follow from allowing a freehold to take eft'ect in futuro) greatly 
mitigated by the circ u_nistance that here and now it is no longer n ec- 
essarv "that the superior lord should know on whom to call for th e 
military services due for the feud," and so, in any event, the defence of 
File commonwealth will not be weakened; and by the further circum- 
stance that "e very stranger who claims a right to anv particular land s. 
may know against whom he ought to bring his praecipe for the rec ov- 
ery of them.'Lbj a simple inspection of the public records, and proof of 
actual possession . 

The doctrine of Wyman v. Brown is a good illustration both of the 
maxim, cessante ratione, cessat etiam lex, and of the changes wrought. 
in the common law by statutory provisions. 



Ch. 1) MODE OP CONVEYANCE 275 

T he Virginia doctrine that a feoffment cannot be made to commen ce 
i n futuro was long ago done away with by statute .. Tate's Dig. p. 175. 
While it does not form part of the decision in Wyman v. Brown, this 
matter underwent a careful scrutiny, and, upon full consideration, the 
court agreed that our statute system of registered conveyances brought 
about the same result here. 

We are at liberty, then, to give to the language used by the granto r 
i n a deed, its obvious meaning, without invalidating the deed, t o say 
t liat it shall operate as the parties inten ded, and carry an estate to com- 
mence in fiitnrn if t he y fio agree? without the necessity of resorting~t o 
any subterfuges under which the est ate thus created to commence in 
f uturo may b e recognized as existmy only by way of remainder or b.y 
v irtue of some imputed covenant to stand seiz ed. 

A single reading of this conveyance of James Abbott to his wife is 
sufficient to satisfy one that it was no part of the intention or expecta- 
tion of either, that the wife acquired thereby any interest in the home- 
stead farm during the life of the grantor except as expressly therein 
declared, to wit, a right to t he "use, income and control nf said premi se'; 
during her li f e," in case the husband deserted her (which he did not do) , 
and besides this, an irrevocable right to the same in fee simple, in case 
s he survived h er husband, her estate to commence at his deceas e. 

The language of the deed differs widely from that of any of the con- 
veyances which have been sustained as passing an estate in remainder 
to the grantee with a life-estate in the grantor reserved. If the object 
of the draftsman had been to exclude the idea that the conveyance 
should have any force until the time therein appointed, in other words, 
to have it take effect as a feoffment made at the time fixed in futuro, to 
convey, as of that date, an estate in fee simple and to have no other 
operation, it is difficult to see how he could have made that object 
plainer in words. 

"This deed is not to take effect and operate as a conveyance until 
my decease, and, in case I shall survive my said wife, this deed is not 
to be operative as a conveyance. * * * jf she shall survive me, 
then, and in that event only, this deed shall be operative to convey to 
my said wife said premises in fee simple." Note also the language 
of the habendum and covenants. A convevance thus fra.med cannot 
g ive, the rights of a remainderman presently to the grantee, nor so o p- 
erate for thwith, as a conveyance as to convert tlie holdinp^ of the gr an - 
t QT from tiiat time forward into a mere tenancy for life^ 

Such language bears little resemblance to the stipulation in the deed 
which was under consideration in Drown v. Smith, 52 Me. 142, "but 
the said (grantee) is not to have or take possession till after my de- 
cease; and I do reserve full power and control over said farm during 
my natural life." 

It differs quite as much from the provision in the case of Wyman v. 
Brown, to the effect that Mrs. Brown was "to have quiet possession^ 
Aig.Pbop. — 18 






274 DERIVATIVE TITLES (Part 2 

and the entire income of the premises until her decease." Drown v. 
Smith, however, is an authority which reheve's us on the question 
whether stipulations which on the face of them are not consistent with 
terms previously used importing a present conveyance, will avoid the 
deed. There is an apparent contradiction in saying, I convey this prop- 
erty to you, but this is no conveyance until, &c., nor unless, &c. j3ut 
t he modern cases like Drown v. Smith, indicate that if the intent, t ak- 
ing th e whole together, is clear and intelligible, the court will give eft egt 
-^■^ t o It notwithst a nding some apparent repugnan cv. If a deed can be 
upheld where, as in Drown v. Smidi, the grantor reserves to himself 
"full power and control over said farm during my (his) natural life," 
on the face of it including the power of disposition, we may give its 
fair and just effect to one framed, as this is, to convey an estate in fee 
simple to the grantee, to commence at the decease of the grantor, pro- 
vided the grantee outlives him ; and tlie true effect seems to be that of 
a feoffment under which the execution and record of the deed operate 
in the same manner as livery of seizin made at the time of the gran- 
tor's decease. \ I t gives no right of action for waste com^mitted dur ing 
( he grantor's life. While this grantor lived he could d o an ything with 
k he homestead farm not inconsistent with the right which he had co n- 
veyed to his wife to take it from the ti me of his decease, if she survived 
mm. as the owner the n ce forward m tee simpl e. 

If the testimony of Lapham and Palmer represents truly the acts of 
which the plaintiff complains as waste, her suit, were it otherwise w ell 
f ounded^ would fail for want of proof of anything which amounts __to 
waste according to the best considered decisions in this country . See 
Drown v. Smith, ubi supra, and cases there cited. 

PlaintiffjionsiiitJJ' 

72 See Miller v. Miller, 91 Kan. 1, 136 Pac. 953, L. R. A. 1915A, 671 (1913). 





yt^^ A^tyClyt^Pi^ AA.^Jte/0 



Ch. 2) EXECUTION OF DEEDS 275 

CHAPTER II 
EXECUTION OF DEEDS 



SECTION 1.— SIGNING 



At common law s igning- was not essential to a ^ood deed . Black- 
stone seems to have been of the opinion that the Statute of Frauds 
made signing necessary. 2 Bl. Comm. 306. The general and better 
view, however, has been that the Statute of Frauds did not, in its re- 
quirement of a signature, include instruments under seal. Avetine v. 
Whisson, 4 M. & G. 801 ; Taunton v. Pepler, 6 Madd. 166. See also 
Cooch V. Goodman, 2 Q. B. 580, 596; Cherry v. Henning, 4 Ex. 631. 
The stat utes of the various states in this country quite uniformly r e- 
q uire_that a deed effective as a conveyance shall be signed by the co n- 
v ev'ing party or his agen t. The state statutes should be consulted on 
this point. 



SECTION 2.— SEALING 



JACKSON ex dem. GOUCH v. WOOD. 
(Supreme Court of New York, 1S15. 12 Johns. 73.) 

This was an a ction of ejectment for lot No. 7, in the town of Locke, 
in the county of Onondaga, and was tried before Mr. Justice Thomp- 
son, at the Cayuga circuit, in June, 1813. 

The lessors of the plaintiff gave in evidence the exemplification of 
a patent, dated the 13th of June, 1791, to John Day, for the lot in ques- 
tion. He then proved that Moses Couch was the identical person who 
served, and was known in the New York line of the army by the name 
of John Day, and that he was the same person to whom the patent was 
granted by that name. It was also proved, that Moses Gouch, alias 
dictus John Day, was dead, and that the lessors of the plaintiff were 
his heirs at law. 

The defendant gave in evidence an instrument in writing, endorsed 
on the original patent, dated the 19th of November, 1792, signed 

his 

"John X Day," but without any seal, by which he, John Day, for the 

mark "^ ' 

consideration of ten pounds, paid to him by Benjamin Prescott, bar- 
gained, sold, remised, released and quit-claimed to the said Benjamin 



276 DERIVATIVE TITLES (Part 2 

Prescott, his heirs and assigns, all his right, title, claim, and interest, 
of, in, and to, the premises granted and described in the patent, to have 
and to hpld the same to the said Benjamin Prescott, and to his heirs 
and assigns, to his and tlieir only proper use and benefit forever ; and 
to this instrument the names of two witnesses were subscribed. 

There never having been any seal to the writing thus endorsed on 
the patent, it was objected, on the part of the plaintiff, that it amount- 
ed to no more than a parol contract, and was not sufficient to pass the 
land. This point was reserved by the judge, and the defendant gave 
in evidence sundry mesne conveyances from Benjamin Prescott to him- 
self, all of which had been duly recorded : he also showed a possession 
. for seven or eight years. A verdict was taken for the plaintiff, sub- 
ject to the opinion of the Court, on a case, as above stated. 

Platt, J., delivered the opinion of tlie Court. 

The single question in this case is, whether an estate in fee can be 
'^ conveyed otherwise than by deed; that is^to say, whether a seal js^ 

essential to such conveyance. 

The earliest mode of transferring a freehold estate, known in the 
English common law, was by livery of seisin only. Co. Litt. 49, b, 48, 
b. But when the art of writing became common among our rude 
ancestors, the deed of feoffment was introduced, in order to ascertain 
with more precision the nature and extent of the estate granted, with 
the various conditions and limitations. This deed, however, was of no 
validity, unless accompanied by the old ceremony of livery and seisin. 
2 Black. Com. 318. 

The statute of uses (27 Hen. VIII) gave rise to the deed of bargain 
and sale; and, soon afterwards, the conveyance by lease and release 
was introduced, in order to avoid the necessity of enrolment, required 
by the statute of 27 Hen. VIII, (2 Black. Com. 343.) By virtue of the 
statute of uses, which we have adopted, (without the proviso in the 
English statute requiring the enrolment of deeds,) the deed of bargain 
and sale, now in use here, is equivalent to the deed of feoffment with 
livery of seisin, (2 Black. Com. 339, 343,) and has, in practice, super- 
seded the lease and release. 

By the common law, estates less than a freehold might be created 
■or assigned, either by deed, by writing without seal, or by parol merely. 

By the 29 Car. II, c. 3. (9th and 10th sections of our "act for the 
prevention of frauds,") it was enacted, "that all leases, estates, interest 
of freehold, or terms of years, or any uncertain interests in lands, &c., 
made or executed by livery and seisin only, or by parol, and not in 
writing, and signed by the parties so making and creating the same, 
shall have the force and effect of leases or estates at will only ; except- 
ing leases for three years and less," &c. ; and, "that no leases, estates, 
or interests, either of freehold, or terms of years," &c. "in any lands," 
&c. "shall, at any time hereafter, be assigned, granted, or surrendered, 
unless it be by deed or note in writing signed by the party so assigning, 
granting, or surrendering the same," &c. 



Ch. 2) EXECUTION OF DEEDS 277 

Now, it is contended on the part of the defendant, that the common 
law mode of conveyancing has been so modified by this statute, as to 
destroy the distinction between an estate of freehold, and an estate less 
than a freehold, as it regards the mode of alienation ; and that either 
may now be conveyed by "note in writing" without seal, as well as by 
deed. 

No direct decision appears to have been made on this point; but in 
the case of Fry v. Philips, 5 Burr. 2827, and in the case of HoUiday v. 
Marshall, 7 Johns. 211, it was decided, that a written assignment of a 
lease for ninety-nine years was valid, though not sealed ; upon the ex- 
press ground that it was the sale of a chattel-real, for which the statute 
of frauds requires only a "note in writing" ; plainly recognizing the 
distinction between a term for years, and a freehold estate, as to the 
mode of conveyance. .^ 

According to Sir William Blackstone, (2 Black. Com. 309, &c.,)lsealf 
ing was not in general use among our Saxon ancestors. Their custom 
was, for such as could write, to sign their names, and to affix the sign 
of the cross; and those who could not write, made their mark in sign 
of the cross, as is still continued to this day. The Normans used the 
practice of sealing only, without writing their names ; and, at the con- 
quest, they introduced into England waxen seals, instead of the former 
English mode of writing their names and affixing the sign of the cross, ^ 

it being then usual for every freeman to have his distinct and particu- 
lar seal. The neglect of signing, and resting upon the authenticity of 
seals alone, continued for several ages, during which time it was held, 
bj; all the English Courts, that seali ng alone was sufficient But in the 
process of time, the practice of using particular and appropriate seals, 
was, in a great measure, disused ; and Sir William Blackstone, (2 
Black. Com. 310,) seems to consider the statute of 29 Car. II, c. 3, (of 
which the 9th and 10th sections of our statute of frauds are a 
copy,) as reviving the ancient Saxon custom of signing, without dis- 
pensing with the seal as then in use, under the custom derived from 
the Normans. 

We have the authori^ of that learned commentator, unequivocally 
in favor of the opinion J that a seal is indispensable, in order to convey 
an estate i n fee simple, lee tail, or for life. 2 Black. Com. 297, 312. 

Such seems to have been the practical construction, ever since the 
statute of Car. II in England, and under our statute of frauds in this 
state ; and to decide now, that a seal is unnecessary to pass a fee, would 
be to introduce a new rule of conveyancing, contrary to the received 
opinion, and almost universal practice in our community, and danger- 
ous in its retrospective operation. Construing this statute with refer- 
ence to the pre-existing common law, and the particular evil intended 
to be remedied, Ijhink th e leg islature did not intend to dispense with a 
seal, where it was before required, as in a conveyance of a freehold 
estate; but the oSject" was to require such deeds to be signed also, 
which the Cpurts had decided to be unnecessary. 



278 DERIVATIVE TITLES (Part 2 

I construe this statute as though the form of expression had been 
thus: "No estate of freehold shall be granted, unless it be by deed 
signed by the party granting ; and no estate less than a freehold (ex- 
cepting leases for tliree years, &c.) shall be granted or surrendered, 
unless by deed, or note in writing signed by the grantor." 

This venerable custom of sealing, is a relic of ancient wisdom, and is 
not without its real use at this day. There is yet some degree of 
solemnity in this form of conveyance. A seal attracts attention, and. 
excites caution in illiterate persons, and thereby operates as a security_ 
against fraud. 

If a man's freehold might be conveyed by a mere note in writing, he 
might more easily be imposed on, by procuring his signature to such 
a conveyance, when he really supposed he was signing a receipt, a 
promissory note, or a mere letter. 

The plaintiff is entitled to judgment. Judgment for the plaintiff.^ 

r . 

Quite generally the necessity for a seal as requisite to the validity 
of conveyances has been done away with by statute. As to this the 
statutes of the various states should be consulted. See also Stimson, 
Am. St. Law, §§ 1564, 1565. These statutes vary in form and are 
found under various heads, as a result of which there has been not a 
little uncertainty and confusion. See, for instance, Jones v. Morris, 
61 Ala. 518; Rondot v. Rogers Tp., 99 Fed. 202, 39 C. C. A. 462; 
Jerome v. Ortman, 66 Mich. 668, 33 N. W. 759. 

As to what amounts to a sufficient sealing see Lightfoot and Butler's 
Case, 2 Leon. 21; The Queen v. St. Paul, Covent Garden, 7 Q. B. 
232 ; National Provincial Bank v. Jackson, ZZ Ch. D. 1 ; Warren v. 
Lynch, 5 Johns. 239; Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228; 
Bates v. Railroad Co., 10 Allen, (Mass.) 251 ; Pease v. Lawson, ZZ 
Mo. 35; Barnard v. Gantz, 140 N. Y. 249, 35 N. E. 430; Lorah v. 
Nissley, 156 Pa. 329, 27 Atl. 242.^ 

1 See Warren v. T.ynch, 5 Johns. (N. Y.) 239 (ISIO), as to the origin, nature, 
and use of seals. — Rep. 

2 "The ground of this controversy lies in the fact that the deed to Edwards 
purports to be the deed of Agillon Price, only. The name of Lucy A. Price 
does not appear in the body of it, nor is there anything in the body of the 
deed to show that he was a married man. It concludes, 'In testimony where- 
of I have hereunto set my hand and seal,' et'c. The deed, however, is signed 
by her and her husband, and acknowledged by her on the twenty-second of 
July. 185.'}, and by him on the fourteenth of September, 1853. Tlie wife, as 
will be seen, owned the property in her own right, and the fact that she 
signed her name to the deed, and acknowledged it before a proper officer, 
does not make it her gi*ant. The party in whom the title is vested must 
use appropriate words to convey the estate. Signing, sealing, and acknowl- 
edging a deed by the wife, in which her husband is the only grantor, vvill_ 
not convey her estate, Whiteley v. Stewart, 63 Rfo. 3G0 dSTB) ; Agricultural" 
Bank v. Rice, 4 How. 225, 11 L. Ed. 049 (1840) ; City of Cincinnati v. New^-ll's 
Heirs' Lessee, 7 Ohio St. 37 (1857). Whether it would be sufhcient to release 
her dower in her husband's estate, we do not determine." Bradley v. Mis- 
souri Pac. Ry. Co., 91 Mo. 493, 4 S. W. 427 (1886), per Black, J. 



Ch. 2) EXECUTION OF DEEDS 279 

SECTION 3.— ATTESTATION 



At common law attestation by witnesses was not necessary for any 
purpose in connection with deeds. In the United States not uncom- 
monly the statutes require attestation for some purpose. In Ohio and 
Connecticut attestation by two witnesses is necessary to make the deed 
valid as a conveyance, even as between the parties. Langmede v. 
Weaver, 65 Ohio'St. 17, 60 N. E. 992; Winsted Bank v. Spencer, 26 
Conn. 195. Generally, however, where attestation is called for by the 
statute it is considered necessary only as a prerequisite to effective 
recordinoj. 



SECTION 4.— ACKNOWLEDGMENT 



This, too, is wholl y a requirement o f statute, and generally speaking, 
as in the case of altestation, is not essential to the validity of the con- 
veyance. In Ohio and Arizona, however, it has been held essential to 
the validity of the conveyance. Hout v. Hout, 20 Ohio St. 1 19; Lewis 
v. Herrera, 10 Ariz. 74, 85 Pac. 245, aff. 208 U. S. 309, 28 Sup. Ct. 
412, 52 L. Ed. 506. Quite commonly acknowledgment is made neces- 
sary to the validity of conveyances of certain special interests, as home- 
steads, or conveyances by certain persons, as married women. Aside 
from these the requirement goes merely to the effectiveness of the 
recording or to the matter of proof in offering the instrument in evi- 
dence. On this and upon the matter of Attestation as well the statutes 
and decisions thereunder should be consulted. 



SECTION 5.— DELIVERY 



STANTON V. CHAMBERLAIN. 

(Court of Common Pleas, 1588. Owen, 95.) 

In an action of debt upon a bond, upon non est factum pleaded, the 

jury found, that tlie defendant sealed the bond, and cast it on the table, 
and th^_plaintiff came and took up the bond, and carried it away with- 
out saying any thing; and if this shall amount to a delivery by the 
defendant to the plaintiff, was the question. And it was resolved by 
all the justices, that if the jury had found that he had sealed tlie bond, 



280 DERIVATIVE TITLES (Part 2" 

and cast it on the table towards the plaintiff, to the intent that the plain-_ 
tiff should take it as his deed, who took the^ond and went away, that- 
had been a good delivery; or that the plaintiff, after the sealing and 
casting on the table, had taken it by the commandment or consent of 
the defendant; but because it is found that the defendant only sealed 
it, and cast it on the table, and the plaintiff took it and went away with 
it, this is not a sufficient delivery, for it may be that he sealed it to the 
intent to reserve it to himself until other things were agreed, and then 
if the plaintiff take it, and go away with it without the defendant's con- 
sent, that will not make it the defendant's deed. But it was said, that 
it might be accounted to be the defendant's deed, because it is found 
that he sealed it, and cast it on the table, and tlie plaintiff took it, &c. 
and it is not found that the defendant said any thing, and therefore be- 
cause he did not say any thing, it will amount to his consent, Nam qui 
tacet consentire videtur. But to this it was answered, that it is not 
found that the defendant was present when the plaintiff took it, and if 
the defendant had sealed, and cast the bond on the table when the 
plaintiff was not there, and then the defendant went away, and then 
the plaintiff came and took it away, then clearly it is not the deed of the__ 
defendant.* 



BOYD V. SLAYBACK. 
(Supreme Court of California, 18S3. 63 Cal. 493.) 

The action was brought against Robert Taggart, a minor, and against 
O. M. Slayback, as administrator of the estate of Mary B. Taggart, and 
as guardian of Robert Taggart, to quiet title to certain lands alleged 
'^ * J ^^ have been sold to the plaintiff by Mary B. Taggart. The plaintiff 

alleged that some time subsequent to the execution and deliveny of the 
deeds to him, by which the lands were conveyed, they were left at the 
residence of Mrs. Taggart in a tin box, and that after her death it was 
discovered that the deeds had been abstracted. The defendant denied 
the execution and delivery. The deeds were not recorded: 
ff .- , Pkr Curiam.* * * * f j^g judgment must be reversed for er- 

ror in the charge to the jury. The court below charged: "A grant, 
I Q ^ I duly executed, is presumed to have been delivered ; therefore, if you 
find from the evidence that Mrs. Taggart actually signed and acknowl- 
edged the deeds in question, the law will presume that they were duly 
delivered, and in order to defeat this presumption, the party disputing 
the delivery must show, by preponderance of proof, that there was no 
delivery." 

This was error. A deed takes effect only from the time of its de- 
livery. Without delivery of a deed it is void. No title will pass with- 

8 See Hughes v. Easten, 4 J. J. Marsh. (Ky.) 572, 20 Am. Dec. 230 (1S30) j. 
Cannon v. Cannon, 26 N. J. Eq. 316 (1875). 
* Only a portion of the opinion is printed. 



Ch. 2) EXECUTION OF DEEDS 281 

out delivery. Dyson v. Bradshaw, 23 Cal. 528; Fitch v. Bunch, 30 
Cal. 208; Barr v. Scliroeder, 32 Cal. 610. It i s for the party claiming, 
iinde£a deed .tQ_£rove its delivery. Sometimes slight evidence will be 
sufficient to support a finding of delivery, but no legal presu mption j)f 
delivery ajrises . f rprn the mere fact that the instru ment is "s igned.". 
The acknowledgment only proves that it was signed. 
Judgment reversed and cause remanded for a new trial. 



^ 



^ J^ . 



CURRY V. COLBURN. 

(Supreme Court of Wisconsin, 1898. 99 Wis. 319, 74 N. W. 778, 67 Am. St. 

Rep. 860.) 

Bardeen, J. The plaintiff brings this actio n in ejectmen t to recover 
possession of a tract of land in the city of Marinette. The answer is 
a general denial, and a counterclaim substantially to the elYect that 
both parties claim title from one Fairchild, and that the dee d under 
which plaintiff claims title was never in fact delivered to him with 
i ntent to pass titI e.~~A reply asserts the validity of plaintiff's deed, and 
that defendants took title with notice of the plaintiff's rights. The 
chief g^uestion litigated on the trial was whether the deed from Fair- Y^'^ 

child to plaintiff had ever been delivered. The court found that such 
deed was handed by Fairchild to plaintiff merel y for examinationand 
insp ection, and \v as_not,ddiyered with the intention of passing thetitle. 
As conclusions of law, the court found that defendants were entitled 
t° Jil^&ni?IlL^ismissin^_the_ complaint and canceling said deed. 

There is ample evidence to support the conclusions arrived at by the 
trial judge, and his findings of fact cannot be disturbed. The deed in 
question was not dated or acknowledged. It was simply handed to 
plaintiff by Fairchild, at the former's request, to be taken to his law- 
yer for examination, and the parties were to meet later to complete 
the bargain. No particular fo rm is necessar y to cons titute_th e del iv- 
ery of the deed. , It is sufficient when the deed is executed, and the 
minds of the parties to it meet, expressly or tacitly, in the purpose to 
give it present eft'ect. Bogie v. Bogie, 35 Wis. 659. Like every other 
contr act, there must b e_a_meetini;_of the minds of the contracting par- 
ties — the one to sell and convey, and the other to purchase and receive 
— before the agreement is consummated. Welch v. Sackett, 12 Wis. yU 

243. The question of d elivery is largejyoHntention 1 Devlin, Deeds, 
§ 262. And a deed never becomes operative until it is delivered with 
the intent that it shall become effective as a conveyance. Id. Counsel 
for the plaintiff argue earnestly that, because the deed was handed by 
Fairchild to the plaintiff, this constituted a full and complete delivery, 
and that evidence was not admissible to show the actual condition 
then existing. No doubt, a great deal of discussion and unnecessary 
refinement may be found in the books, bearing upon this question ; but 
the main princip le must predominate, that, to constitute a valid de- 



282 DERIVATIVE TITLES (Part 2 

Hvery of a deed, the grantor must part with his dominion overJt, with_ 
intent_Jo pass _ the title. 

The ancient rule that a deed cannot be delivered in escrow to the 
grantee in no way conflicts with our conclusions. A delivery in escrow 
contemplates complete loss of control over the deed. Here the in- 
complete deed was haiided to the grantee, to take to his lawyer for in- 
spection. By the terms of their agreement of sale, a mortgage was to 
be made, a party-wall contract was to be executed, and part of the 
consideration to be paid. There was nothing in the circumstances to 
show that Fairchild in any way intended to part with his dominion 
over the deed. On the contrary, they all tend to establish the conclu- 
sion arrived at by the trial court. That parol evidence is admissible 
Jo show that a written instrument has never been delivered so as_to 
bind the parties thereto is established by the following cases : Gibbons 
V. Ellis, 83 Wis. 434, 53 N. W. 701 ; Price v. Hudson^ 125 111. 284, 
17 N. E. 817; Brackett v. Barney, 28 N. Y. 333; Jackson v. Roberts, 
1 Wend. (N. Y.) 478; Reichart v. Wilhelm, 83 Iowa, 510, 50 N. W. 19. 
In Price v. Hudson the court remark : "It is not competent to control 
the effect of the deed by parol evidence, when it has once taken effect 
7^ by delivery, but it is always competent to show that the deed, although 

in the grantee's hands, has never in fact been delivered, unless the 
grantor, or those claiming through him, are estopped in some way from 
assertmg the nondelivery of the deed." 

Not to prolong this discussion, we conclude that the decision of 
the trial judge upon the law finds ample support both upon principle 
and authority. 

By the: Court. The judgment of the circuit court is affirmed.^ 

s " The mies tiyn of r lelivery is a mixed question of la^ and fa ct, and it is 
held tuaniie delivery oi"a flPM may be uiiifle by acts alone, th'ai: is, by do- 
in^ soiiietbiiig and saying nothing; or by words alone, that is, by saying 
something and doing nothing; or it may be delivered by both acts and words. 
It must, however, be delivered by something answering to the one or the 
other, or both, and with the intent thereby to give effect fo the deed. Roun- 
tree v. Smith, 152 111. 49.3 [38 N. E. 6S0 (1804)]. In the case at bar the deed 
was handed to Charles S. Owen by Mr. Lewis, and after it had been signed 
and acknowledged by Mrs. Owen was placed by Owen in his private bo.x^, where 
it remained until after his death. If these were the only facts which appeared 
iu evidence bearing upon the question of delivery, it might well be held that 
the deed had been delivered. It appears, however, that the deed was made, 
not with the intention that it should immediately take effect and pass the 
title to said farm to Charles S. Owen, but that it should only take efteet in 
case Chartes S. Owen survived his wife, and in the event that his wife 
should survive him it was never to take efiect but was to be destroyed. A 
deed must take effect immediately upon its e.xec ution and delivery to tEe 
gntntee Ar It VVlll.no! tAke'eiierT ai all. U lisoll V. Wilson, fshl'lll. 5^ 'Hi 
N. E. lOUT. 49 Am. St. Itep. i'td (l^\ib)\ ; Wilenou v. Handlon, 207 111. 104 
[e9 N. E. 892 (1904)]. We think it clear that the parties to this deed intend- 
ed it to oiterate as a will, and that the possession of the deed by Charles 
S. Owen did not have the effect to vest the title to said farm in liim. It is 
urged, however, that the deed was delivered into the hands of Charles S. 
Owpn, and it is said such delivery had the effect to invest him with the title 
to the premises regardless of the intention of the parties, on the ground that 
a deed cannot be transferred fi'om the possession of the grantor to the gran- 



Ch. 2) EXECUTION OF DEEDS 283 

TISHER V. BECKWITH. 

(Supreme Court of Wisconsin, 1872. 30 Wis. 55, 11 Am. Rep. 546.) 

Appeal from the Circuit Court of Waupaca County. 

Action against defendants, together with the sheriff and former 
sheriff of Waupaca county, to restrain said officers from executing 
a_deed_gfj:ertain mortgaged premises sold under a judgment of fore- 
closure to_the defendants, and to compel the defendants to convey 
to respondent theii^ title acquired under such sale. 

It appeared in evidence that the plaintiff, Tisher, who was in pos- 
session of the premises in dispute as a homestead under a patent from 
the United States, liad partially execut ed bu t never delivered a deed 
of the premises to his s on Charles H. Tisher. Tliis deed, which was 
unstamped and bore no consideration or date, was placed by Tisher 
in a trunk and locked up, the key being kept by his wife in a small 
box in another trunk which was locked. The son kept his papers in 
the same trunk in which the deed was placed, but had no key. De- 
fendants claimed the premises under a sale by virtue of a judgment 
of foreclosure of certain mortgages executed by the said Charles H. 
Tisher. The court found as facts that the pretended deed of Tisher 
to his son was never fully executed and delivered, but that it was 
purloined from Tisher without his knowledge or consent, and that the 
defendants had due notice of the plaintiff's claim to the premises, as 

tee without vesting title In tlie grantee. We do not so understand the law. 
While a deed tiiunot be delivered to the granree in escrow, nunieruus cases 
have been decided by this court where deeds have been held nut to have 
been delivered so as to pass title although the possession of the deed passed 
froui the grantor to the grantee. In Rountree v. Snnth, supra, the deed 
was delivered by the grantor to the grantee and recorded with the kr)()\vl- 
edge and consent of the grantor, and yet it was held that It was not deliv- 
ered to the grantee so as to vest her with the title to the premises des'-rilied 
in the deed. See, also, Bovee v. Hinde, 135 111. 137 [25 N. E. C94 (1890)] ; Hayes 
V. r.o.vlan, 141 111. 400 \:W N. K. 1041, :« Am. St. Re].. :',2G (IM).!)!; Oliver 
V. Oliver, 140 III. 542 [.% N. E. 935 (1894)1; Wilson v. Wilson, supra; Hollen- 
beck v. Hollenbeck, 185 111. 101 [57 N. E. 30 (1900)). In the Wilson Case 
the deed was placed in the hands of one of the grantees with the under- 
standing if the grantor did not call for it it was to be placed of record after 
his death. The court, on page 574 [of 158 111., on page 1008 of 41 N. E.I, 
said : 'T he mere placing of the deed in the hands of one of the grante es 
did not, of itself, necessarily constitute a delivery . In such a case t lie ni- 
quiry is, what was the intention of the parties at the time? and that inten- 
tion, when asceitained, must govern.' And In Oliver v. Oliver, supra, on 
page 547 [of 149 111., on page 956 of 36 N. E.], it was said: 'The fact that 
a grantee in a deed may, after the execution of the instrument, take it into 
his hands does not, of itself, establish a delivery.' And in Hollenbeck v. 
Hollenbeck, supra, on page 103 [of 185 111., on page 37 of 57 N. E.]: 'The 
D jere iilacini': of a deed -in the hands of the grantee does nut conclusively e s- 
t ablish a delivery thereof, within the legal meainng or tuat word . Deliver y 
is'ji (luestiun oi' intent, and dcpeiMis upon whether the parties'at the tjin e 
meant it to he a delivery to t ;'K-e ^'itert- at onc e.' '^ Elliott v. Murray. 225 III. 
fO'i, 8(rX'. E. ?t (1907), per Hand, J. iiee, also, Kavauaugh v. Kavanaugh, 
260 111. 179, 103 N. E. 65 (1013); Elliott v. Merchants' Bank & Trust Co., 
21 Cal. App. 536, 132 Pac. 280 (1913). 



284 • DERIVATIVE TITLES (Part 2 

well as his son's inability to convey. As a conclusion of law the court 
found that Tisher was the owner in fee of the premises; that the 
pretended deed to his son was null and void; that the mortgages 
executed by the son were null and void, as well as the certificate 
of sale issued to defendants under the foreclosure sale ; that the sher- 
iffs should be enjoined from executing a deed on said certificate that 
the defendants should be restrained from disposing of the certificate, 
and that they should release to the plaintiff all claims to the premises in 
question by virtue of said sale and certificate. Judgment being en- 
tered in accordance with such findings defendants appealed, 

Dixon, C. J. The fourth finding of fact by the court below is in 
these words: "That the pretended deed from said plaintiflt and his 
wife to Charles H. Tisher was never fully executed and was never 
delivered, and that the same was purloined or stolen from said plain- 
tiff without his knowledge, consent or acquiescence." If this finding 
be correct and sustained by the evidence, it obviously puts an end to all 
claim of title to the land on the part of the defendants. It has beef 
held by this court that the fraudulent procurement of a deed depositcdl 
as an escrow from the depository by the grantee named therein, willl 
not operate to pass the title, and a subsequent purchaser of such] 
grantee, for valuable consideration without notice, derives no title 
thereby and will not be protected. Everts v. Agnes and Swift, 4 
Wis. 343, 65 Am. Dec. 314; Same v. Same, 6 Wis. 453. It is ess 
tial to the validity of a deed that it should be delivered, and such de-j 
Hyery to be valid must be voluntary^ that is, made with the assent f 
and in pursuance of an intention on the part of the grantor to de- 
liver it, and if not so delivered it conveys no title. A deed pur- 
loined or stolen from the grantor, or the possession of which was 
fraudulently or wrongfully obtained from him without his knowl- 
edge, consent or acquiescence, is no more effectual to pass title 
to the supposed grantee, than if it were a total forgery, and an in- 
strument of the latter kind had been spread upon the record. 

The only question. which can ever arise to defeat the title of the sup=^ 
posed grantor in such cases, is whether he was guilty of any negli- 
_gence in having made, signed and acknowledged the instrument, and 
in suffering it to be kept or deposited in some place where he knew 
the party named as grantee might, if so disposed, readily and without 
trouble obtain such wrongful possession of it and so be enabled to de- 
ceive and defraud innocent third persons. It might possibly be that 
a case of that kind could be presented where the negligence of the 
supposed grantor in this respect was so great, and his inattention and 
carelessness to the rights of others so marked, that the law would 
on that account estop him from setting up his title as against a bona 
fide purchaser for value under such deed. See Everts v. Agnes et al., 
6 Wis. 453. There are some facts and circumstances in this case 
strongly suggestive of such a defense, and were it not for the fact 
found by the court that the deed_ was ne ver fully e xecuted, and the 



Ch. 2) EXECUTION OF DEEDS 285 

further fact fully established in evidence that it was unstamped when 
jput aw ay by the plaintiff in the trunk in the manner described by him- 
self and the other witnesses, we might possibly have some hesitation 
about affirming the judgment of the court below on this ground. 

It appears from the plaintiff's own testimony that the trunk was 
easily accessible to his son, the person named in the instrument as gran- 
tee, for he says that his son, who was acting as town clerk at the time, 
kept his papers there, although he also testifies that the son had no 
key to the trunk, but that his, plaintiff's, wife kept the key in a smaU^ 
box in another trunk belonging to her and which was locked.] A^eed 
fully executed and which had been so kept or deposited would seem 
to furnish some evidence, more or less strong, of negligence on the part 
of the grantor. It would be unlike the case of a deed executed and 
deposited in escrow, which this court said was recognized as a- legitL:. 
mate business transaction. ; But the finding is that the deed was not! 
fully executed nor was it stamped, and the question is, whether it was \ 
negligence so to keep such an instrument^ and we are not prepared to I 
say that it was. It occurs to us, as it probably did to the court below,J 
that most men of ordinary care and circumspection would not have 
regarded this as unsafe or imprudent or careless. An instrument com- 
plete in all its parts and lacking nothing to give it validity but deliv- 
ery to the person named in it as grantee, might excite the cupidity of 
such person to take wrongful possession of it when frequent oppor- 
tunity for that purpose was afforded, but that an unfinished instrument, 
one partially executed and not ready for delivery, would present the 
same temptation would hardly suggest itself to the mind of any ordi- 
narily prudent and cautious man. It would hardly occur to such a man 
that such an instrument would be purloined or wrongfully taken, when * 

to give it any apparent validity in the hands of the supposed grantee 
the crime of forgery^rnust also be committed. 

It is for these reasons that this court is of opinion that the facts 
proved were not sufficient to take the case out of the general rule of 
law above stated, even taking the most liberal view of the facts in 
favor of the defendants. There are cases, however, the tendency of 
which would seem to be that the failure of the plaintiff to suspect and 
treat his son as a knave, thief, or criminal, could not be attributed to 
him as negligence. See the able and well considered opinion of the 
court by Christiancy, J., in Burson v. Huntington, 21 Mich. 415, 4 Am. 
Rep. 497, a case involving the same question with respect to the de- 
livery of a negotiable pr omissory note and which, not having been 
delivered by the maker but stolen or wrongfully taken and put in cir- 
culation by the payee, was held void in the hands of a bona fide holder 
for value. The same case also makes a distinction between a note 
or other instrument so obtained and one deposited in escrow and 
afterwards fraudulently delivered by the depositors, holding that in 
the latter case the maker would be bound as against an innocent holder 
for value, on the ground of the trust or confidence reposed by him 



286 DERIVATIVE TITLES (Part 2 

in the depository, and upon the principle that, when one of two inno;;_ 
cent persons must suffer by the acts of a third, he who has enabled^ 
such third person to occasion the loss must sustain it. Upon the same 
question also of negligence, see Wait v. Pomeroy, 20 Mich. 425, 4 Am. 
Rep. 395. It only remains, therefore, to be inquired whether the evi- 
dence given on the trial was such as to sustain the finding of the court 
above quoted. 

We are of opinion that the preponderance of testimony was de- 
cidedly in favor of the finding. If we omit from our consideration 
entirely the testimony of the plaintiff, which was clear and strong and 
whose credibility and fairness we discover nothing to impeach, except 
the mere fact of his interest, the finding was fully sustained by the 
testimony of the witnesses, Quimby, Wooden and Mrs. Scheppe, who 
corroborated the plaintiff" in almost every particular to which he testi- 
fied. Opposed to the testimony of these witnesses was only that of the 
witness Hoxie, who testified merely to certain admissions and conduct 
of the plaintiff calculated to induce the witness to believe that the 
plaintiff had conveyed the land to his son. In this, Hoxie was directly 
contradicted by the plaintiff, and there again the plaintiff was corrobo- 
rated by the witness Wooden, who was present on the occasion spoken 
of by Hoxie. In every view in which the testimony presents itself to 
our minds, we are constrained to say that this finding of the court 
below was correct, and consequently, that the judgment must be 
affirmed. 

By THE Court. Judgment affirmed ,* 

PARROTT v. AVERY. 

(Supreme Judicial Court of Massachusetts. 1S9.3. 159 ^rass. 594, 35 N. E. 94, 
22 L. R. A. 153, 38 Am. St. Rep. 465.) 

Writ of entry, to recover possession of a parcel of land in Great 
Barrington. J'lea, nul disseisin. The case was submitted to the Supe- 
rior Court, and, after judgment for the demandants, to this court, on 
appeal, upon agreed facts, in substance as follows. 

The tenant claimed title to the demanded premises by virtue of a 
deed to him of the same from his grandfather, one Miles Avery, de- 
ceased, dated, January 21, 1888, the consideration for which was ex- 
pressed to be "love and affection," which was executed in the presence 
of a witness, and which was recorded on January 31, 1893; and also 
under the second clause of the will of Miles Avery, which devised to 

6 See Gamer v. Risinger, 35 Tex. Civ, App. 378, 81 S. W. 343 (1904), where 
the grantors prepared a deed and placed it in a drawer of the family organ, 
where the grautore were accu.stonied to keep tlieir valuahle papers. The 
grantee, a stepdaughter of one of the grantors and a member of the house- 
hold, took the deed without the knowledge of the grantors, and conveyed 
the property to an innocent purchaser. 



Ch. 2) EXECUTION OF DEEDS 287 

the tenant, among other things, "my chest and its contents except the 
bank-books." 

The deed was duly executed by Miles Avery at or about the time 
of its date, and is supposed to have been placed by him with other 
valuable property in a certain chest owned by him, which was the 
chest bequeathed to the tenant by the second clause of the will. The 
will, which was dated May 25, 1889, was duly proved and allowed, 
and the executor of the will, agreeably to its provisions, delivered the 
chest and its contents, including the deed, which was found in the 
chest, to the tenant, on January 28, 1893. 

Miles Avery retained possession of the demanded premises, and 
of the chest and its contents, up to the time of his death, which oc- 
curred on May 10, 1891. 

The d emandants^ c laimed title to _the_ premises under the seventh 
clause o f the will, which was as follows: "All the residue and remain^ 
der q I my estate, both real and personal, not otherwise disposed of, 
shall be equally d jvj dpd amon g all of ray grandchildren then living." 

If the tenant had title to the demanded premises, judginent was to 
be entered in his favor; otherwise, judgment was to be entered for 
the demandants. 

Allen, J.f 1. The agreed facts fail to shovy a deliv;ery of the deed 
m t he grantor's lifetime. The grantor retained control of the deed 
and of the land. There was no prior bargain with the grantee, and no 
indebtedness to him, nor relation of trust towards him. He had no 
knowledge of the execution of the deed. The only consideration was 
love and affecti on. The deed was not recorded during the grantor's 
lifetime. There was no oral declaration by the grantor that he meant to 
have it take effect at once. In short, there was nothing tending to show 
a delivery of the deed except the bare fact that it was executed in the 
presence of a witness. Tlie_question of delivery is a question of fact, 
and d elivery in_the grantor's lifetime must be proved. There must 
have been an intention that it should operate as a present conveyance 
of title. A finding of the delivery of the deed would not be warranted 
on the agreed facts. Stevens v. Stevens, 150 Mass. 557, 23 N. E. 378; 
Shurtleff v. Francis, 118 Mass. 154; Hawkes v. Pike, 105 Mass. 560, 
7 Am. Rep. 554; Brabrook v. Boston Five Cents Savings Bank, 104 
Mass. 228, 232, 6 Am. Rep. 222 ; Chase v. Breed, 5 Gray, 440 ; Younge 
V. Guilbeau, 3 Wall. 636, 641, 18 L. Ed. 262 ; 3 Washb. Real Prop. 
(5th Ed.) 577 et seq. Ther e were no acts or declarations of the grantor 
sufficient to show an intent to treat it as delivered, or circumstances 
such as were f ouncT to He sufficient in Lowd v. Brigham, 154 Mass. 
108, 113, 114, 26 N. E. 1004, and cases there cited, and in Regan v. 
Howe, 121 Mass. 424. * * * 

Judgment for demandants affirmed.' 

t A portion of the opinion is omitted. 

7 See Taylor v, Taylor (R. I.) 90 AtL 746 (1014), in wliirh the erantor, a 
short time before her death, called her son, the grantee, to her bedside, and 



288 DERIVATIVE TITLES (Part 2 

DOE ex dem. GARNONS v. KNIGHT. 
(Court of King's Bench, 1826. 5 Barn. & C. 671.) 

This was an ejectment brought to recover possession of certain mes- 
suages and lands in the county of Flint. The^ lessor of the plaintiff 
claimed the property as mortgagee under a deed purporting to be ex- 
ecuted by W. Wynne, deceased. At the trial before Garrow, B., at the 
summer assizes for the county of Stafford, 1825, the principal questio^i 
turned on the validity of that deed ; and the following appeared to be 
the facts of the case : Wynne was an attorney residing at Mold in 
Flintshire, and had acted in that character for Gamons the lessor of 
the plaintiff, who resided at a distance of about three miles from Mold, 
Wynne's sister and niece lived in a house adjoining to his own at Mold. 
On the 12th of April, 1820, about six o'clock in the evening, Wynne 
called at his sister's house, his niece then being tlie only person at 
home, and asked her to witness or sign some parchment. He produced 
the parchment, 'placed it on the table, signed his name, and then said, 
"I deliver this as my act and deed," putting his finger at the same time 
on the seal ; the niece signed her name, and he took it away with him. 
The deed remained on the table until he took it away. He did 
not mention to his niece the contents of the deed, or the name: 
of Mr. Garnons. The niece had no authority from Mr. Garnons to 
receive any thing for liim. It was proved by Miss Elizabeth Wynne, 
the sister of Wynne, that in April, 1820, (but whether before or after 
the execution of the deed as above mentioned did not distinctly appear,) 
he brought her a brown paper parcel, and said, "Here, Bess, keep this ; 
it belongs to Mr. Garnons." Nothing further passed at this time ; but 
a few days after he came again, asked for the parcel, and she gave it 
to him; he returned it back to her again on the 14th, 15th, or 16th of 
April, saying, "Here, put this by." When she received it the second 
time, it was less in bulk than before. Wynne died in August, 1820. 
After his funeral, she delivered this parcel to one Barker in the same 
state in which she received it from her brother. Barker, who was an 
'intimate friend of Wynne, stated, that the latter in July, 1814, sent for 
him, and told him that he had received upwards of £26,000. upon Mr. 
Garnons' account; and after taking credit for sums he had paid, and 
placed out for Mr. Garnons, he was still indebted to him in more than 
£13,000. He then asked the witness, if. he, as his (Wynne's) friend, 
would see Mr. Garnons to explain the circumstances. The witness 
consented, and Wynne then made a statement of his property ; by 
which it appeared that after payment of his debts, including the £13,- 
000., he would have a surplus for himself and family of £8,000. at the 

gave to him a box and the key thereto, sayin?, "Everything in that box is 
yours." Among the papers in the box was a deed bearing date twelve years 
earlier, the delivery of which the court was called upon to determine. In the 
box were also the grantor's will and some insurance policies which belonged 
to the grai^tee's sisters. 



Ch. 2) EXECUTION OF DEEDS 289 

least. He desired the witness to tell Garnons that, although he could 
not pay him at that time, he would take care to make him perfectly 
secure for all the monies due from him. Upon this being communi- 
cated to Garnons he desired Barker to assure Wynne, that he would 
not then distress him, or expose his circumstances, but he expected that 
he would provide him securities for the money he, Wynne, owed him. 
This was communicated to Wynne, who expressed great gratitude to 
Garnons, and said, he would take care to make him perfectly secure. 
After the funeral of Wynne, his will was produced, and with it was a 
paper in his own hand-writing, containing a statement of his prop- 
erty, and a list of various debts secured by mortgage or bond, and 
among others, under the title "mortgage," there was stated to be a debt 
to Mr. Garnons for £10,000. Miss Wynne soon after delivered to the 
witness, Barker, a brown paper parcel sealed, but not directed. Upon 
this being opened, there was inclosed in it another white paper parcel 
directed, in the hand-writing of Wynne, "Richard Garnons, Esq." 
Within it was a mortgage deed, (the same that was witnessed by 
Wynne's niece, as before stated,) from Wynne to Garnons for £10,000. 
There was also within the white parcel, a paper folded in the form of 
a letter directed in the hand-writing of Wynne to Mr. Garnons. That 
contained a statement of the account between Wynne and Garnons, 
and £10,000., part of the balance due from Wynne to Garnons, was 
stated to be secured upon Wynne's property. The mortgage deed 
found in the parcel was then delivered to Garnons. It was a mortgage 
of all Wynne's real estates. 

It was contended on the part of the defendant that nothing passed 
by the deed, inasmuch as there had been no sufficient delivery of it to 
the mortgagee, or to any person on his behalf, to make it valid ; and, 
secondly, because it was fraudulent and void against the creditors of 
the grantor under the statute 13 Eliz. c. 5. The learned Judge over- 
ruled the objections, and the defendant then proved that Mr. Wynne, 
in May, 1820, had delivered to him a bond and mortgage of his real 
estates, to secure money due from Wynne to him ; and that by his will 
he devised all his estates to the defendant. Knight, in trust to sell and 
pay his debts. It was further proved, that about the 5th of April a 
skin of parchment with a £12. stamp was prepared by Wynne's order, 
and for a few days he remained in his private room, with the door shut. 
A clerk entered the room, and found him writing upon a parchment ; 
he afterwards locked the door. There was no draft of the mortgage in 
the office, and he never mentioned it. The whole of the deed was in 
Wynne's own handwriting. He had three clerks, and deeds were in 
tlie usual course of business executed in the office, and witnessed by him- 
self and his clerks. The learned Judge told the jury, that the first 
question for their consideration was, whether the mortgage to the les- 
sor of the plaintiff was duly executed by Wynne the deceased ; but that 
if tliey thought it was originally well executed, the question for their 
Aig.Pkop. — 19 



290 DERIVATIVE TITLES (Part 2 

consideration would be, whether the dehvery to Mrs. Elizabeth Wynne 
was a good delivery; and he told them he was of opinion, that if, 
after it was formally executed, Mr. Wynne had delivered it to a friend 
of Mr. Garnons, or to his banker for his use, such delivery would 
have been sufficient to vest in Mr. Garnons the interest intended to be 
conveyed to him under it; and the question for them to decide was, 
whether the delivery to Miss Wynne was, under all the circumstances 
of the case, a departing with the possession of the deed, and of the 
power and control over it, for the benefit of Mr. Garnons, and to be 
delivered to him either in Mr. Wynne's Hfetime or after his death ; or 
whether it was delivered to Miss Wynne merely for safe custody as the 
depository, and subject to his future control and disposition. If they 
were of opinion that it was delivered merely for the latter purpose, 
they should find for the defendant, otherwise for the plaintiff. A ver- 
dict having been found for the plaintiff, Campbell in last Michaelmas 
term obtained a rule nisi for a new trial. 

BaylEy, J.* There were ^^vo points in this case. One , whether there 
was an effectual delivery oFa mortgage deed, under which the lessor 
of the plaintiff claimed, so as to make the mortgage operate. The oth- 
er, whether such mortgage was or was not void against creditors or a 
subsequent mortgagee. Upon the first point the _f acts were shpjtlythese^ 
In July, 1814, Mr. Wynne, an attorney, who was seised in fee of the 
premises in question, made a communication through a friend to the les- 
sor of the plaintiff who was a client, that he (Wynne) had misapplied 
above £10,000. of his (Garnons') money. Garnons answered, he relied 
and expected that Wynne would provide him securities for his money ; 
and Wynne said he would make him perfectly secure, and he should be 
no loser. On the 12th of April, 1820, Wynne went to his sister's, who, 
with her niece, lived next door to him, and produced the mortgage in 
question, ready sealed. He then signed it in the presence of the niece, 
^ and used the words : "I deliver this as my act and deed." The niece, 
by his desire, attested the execution, and then Mr. Wynne took it away. 
The niece knew not what the deed was, nor was Mr. Garnons' name 
mentioned. In the same month of April he delivered a brown paper 
parcel to his sister, saying, "Here, Bess, keep this ; it belongs to Mr. 
Garnons." He came for it again in a few days, and she gave it him ; 
and he returned it on the 14th, 15th, or 16th of April, saying, "Here, 
put this by." It wag, then less in bulk than before, and contained the 
mortgage in question. Mr. W)mne died the 10th of August following, 
and after his death the parcel was opened, and the mortgage found. 
Mr. Garnons knew nothing of the mortgage until after it was so found. 
My Brother Garrow, who tried the cause, left two questions to the 
Y^ jury; one, whether the mortgage was duly executed ; the other, wheth- 

er the delivery to tlie sister was a good delivery ; and he explained to 

8 The argument of counsel and that portion of the opinion relating to 
counsel's contention that the deed was void under St. 13 Eliz, cc. 4 and 5, 
are omitted. 



Ch. 2) EXECUTION OF DEEDS 291 

them, *hat if the delivery was a departing with the possession, and of 
the power and control over the deed for the benefit of Mr. Garnons, 
in order that it might be delivered to him either in Mr. Wynne's life- 
time, or after his death, the delivery would be good ; but if it was de- 
livered to the sister for safe custody only for Mr. Wynne, and to be 
subject to his future control and disposition, it was not a good delivery, 
and they ought to find for the defendant. The jury found for the 
plaintiff. Their opinion, therefore, was, that Mr. Wynne parted with 
the possession and all power and control over the deed, and that the 
sister held it for Mr. Garnons, free from the control and disposition 
of the brother. 

It was urged upon the argument, that there was no evidence to war- 
rant this finding, and that the conclusion which the jury drew had no 
premises upon which it can be supported. Is this objection, however, 
valid? Why did Mr. Wynne part with the possession to his sister, ex- 
cept to put it out of his own control ? Why did he say when he deliv- 
ered the first parcel, "it belongs to Mr. Garnons," if he did not mean 
her to understand, that it was to be held for Mr. Garnons' use? And 
though the sister did return it to her brother when he asked for it, 
would she not have been justified had she refused? Might she not 
have said, "You told me it belonged to Mr. Garnons, and I will part 
with it to no one but with his concurrence." The finding, therefore, of 
the jury, if this be a material point, appears to me well warranted by 
the evidence, and then there will be two questions upon the first point : 
One, whether when a deed is duly signed and sealed, and formally de- 
livered with apt words of delivery, but is retained by the party execut- 
ing it, that retention will obstruct the operation of the deed ; the other^ 
whether if delivery from such party be essential, a delivery to a third 
person \fill be sufficient, if such delivery puts the instrument out of the 
power and control of the party who executed it though such third per- 
son does not pass the deed to the person who is to be benefited by it, 
until after the death of the party by whom it was executed. 

Upon the first question, whether a deed will operate as a deed though 
it is never parted with by the person who executed it, there are many 
authorities to show that it will. In Uarlow v. Heneage, Prec. Chan. 211, 
George Heneage executed a deed purporting to convey an estate to 
trustees, that they might receive the profits, and put them out for the 
benefit of his two daughters, and gave bond to the same trustees condi- 
tioned to pay to them £1,000. at a certain day, in trust for his daugh- 
ters ; but he kept both deed and bond in his own power, and received 
the profits of the estate till he died : he noticed the bond by his will, 
and gave legacies to his daughters in full satisfaction of it, but the 
daughters elected to have the benefit of the deed and bond, and filed a 
bill in equity accordingly. It was urged, that the deed and bond being 
voluntary, and always kept by the father in his own hands, were to be 
taken as a cautionary provision only. Lord Keeper Wright said, these 
were the father's deeds, and he could not derogate from them ; and the 



292 DERIVATIVE TiTi^ES (Part 2 

parties having agreed to set the maintenance of the daughters against 
the profits received by the father from the estate, he decreed upon the 
bond only; but that decree was, that interest should be paid upon the 
bond from the time when the condition made the money payable. In 
Clavering v. Clavering, Prec. Chan. 235, 2 Vern. 473, 1 Bro. Pari. Cas. 
122, Sir James Clavering settled an estate upon one son in 1684, and 
in 1690 made a settlement of the same estate upon another son: he 
never delivered out or published the settlement of 1684, but had it in 
his own power, and it was found after his death amongst his waste 
papers. A bill was filed under the settlement of 1690, for relief against 
the settlement of 1684; but Lord Keeper Wright held, the relief could 
not be granted, and observed, that though the settlement of 1684 was 
always in the custody or power of Sir James, that did not give him a 
power to resume the estate, and he dismissed the bill. In Lady Hud- 
son's Case, cited by Lord Keeper Wright, a father, being displeased 
with his son, executed a deed giving his wife £100. per annum in aug- 
mentation of her jointure; he kept tlie settlement in his own power, 
and on being reconciled to his son, cancelled it. The wife found the 
deed after his death, and on a trial at law, the deed being proved to 
have been executed, was adjudged good, though cancelled, and the son 
having filed a bill in equity to be relieved against tlie deed. Lord Somers 
dismissed the bill. In Naldred v. Gilham, 1 Pr. Wms. 57'7, Mrs. Nal- 
dred in 1707 executed a deed, by which she covenanted to stand seised 
to the use of herself, remainder to a child of three years old, a nephew, 
in fee. She kept this deed in her possession, and afterwards burnt it 
and made a new settlement; a copy of this deed having been surrepti- 
tiously obtained before the deed was burnt, a bill was filed to establish 
this copy, and to have the second settlement delivered up and Sir Jos- 
eph. Jekyl determined, with great clearness, for the plaintiff, and grant- 
ed a perpetual injunction against the defendant, who claimed under 
the second settlement. It is true. Lord Chancellor Parker reversed 
this decree ; but it was not on the ground that the deed was not well 
executed, or that it was not binding because Mrs. Naldred had kept it 
in her possession, but because it was plain that she intended to keep 
the estate in her own power ; that sh$ designed that there should have 
been a power of revocation in the settlement; that she thought while 
she had the deed in her custody, she had also the estate at her com- 
mand; that, in fact, she had been imposed upon, by the deed's being 
made an absolute conveyance, which was unreasonable, when it ought 
to have had a power of revocation, and because the plaintiff, if he had 
any title, had a title at law, and had, therefore, no business in a court of 
equity. Lord Parker's decision, therefore, is consistent with the posi-_^ 
tion that a deed. In general, may be valid, though it remains under the_ 
control of the party who executes it, not at variance with it ; and so it is 
clearly considered in Boughton v. Boughton, 1 Atkyns, 625. In that 
case, a voluntary deed had been made, without power of revocation, 
and the maker kept it by him. Lord Hardwicke considered it as valid, 



Ch. 2) EXECUTION OF DEEDS 293 

and acted upon it; and he distinguished it from Naldred v. Gilham, 
which he said was not appHcable to every case, but depended upon par- 
ticular circumstances; and he described Lord Macclesfield as having 
stated, as the ground of his decree, that he would not establish a copy- 
surreptitiously obtained, but would leave the party to his remedy at 
law, and that the keeping the deed (of which there were two parts) im- 
plied an intention of revoking, (or rather of reserving a power to re- 
voke.) I Upon these authorities, it seems to me, that_vvhere an instru- 
ment is_formally sealed and delivered, and there is nothing to qualify 
the delivery but the keeping the deed in the hands of the executing 
party, nothing to show he did not intend it to operate immediately, that 
it is a valid and effectual deed, and that delivery to the party who is 
to take by it, or to any person for his use,^ is not essential. I do not rely 
on Doe v. Roberts, 2 Barn. & A. 367, because there the brother who 
executed the deed, though he retained the title deeds, parted with the 
deed which he executed. 

But if this point were doubtful, can there be any question but that 
delivery to a third person, for the use of the party in whose favor a 
deed is made, where the grantor parts with all control over the deed 
makes the deed effectual from tlie instant of such delivery? The law 
will pr esume, if nothing appear to tlie contrary, that a man will accept 
what is for his^ benefit (11 East, 623, per Lord Ellenborough) ; and 
there is the strongest ground here for presuming Mr. Garnons' assent, 
because of his declaration that he relied and expected Mr. Wynne 
would provide him security for his money, and Wynne had given an 
answer importing that he would. Shepherd, who is particularly strict 
in requiring that the deed should pass from the possession of the gran- 
tor, (and more strict than the cases I have stated imply to be neces- 
sary,) lays it down that delivery to the grantee will be sufficient, or de- 
livery to any one he has authorized to receive it, or delivery to 
a stranger for his use and on his behalf. Shep. 57. And 2 Roll. 
Abr. (K.) 24, pi. 7, Taw v. Bury, Dyer, 167 b, 1 Anders. 4, and 
Alford V. Lea, 2 Leon. Ill, Cro. Eliz. 54, and 3 Co. 27, are clear au- 
thorities, that, on a delivery to a stranger for the use and on the be- 
half of the grantee, the deed will operate instanter, and its operation 
will not be postponed till it is delivered over to or accepted by the gran- 
tee. The passage in Rolle's Abridgment is this: "If a man make an 
obligation to L, and deliver it to B., if L get the obligation, he shall 
have action upon it, for it shall be intended that B. took the deed for 
him as his servant. 3 H. VI, 27." The point is put arguendo by Pas- 
ton, Serjt. in 3 H. VI, who adds, "for a servant may do what is for 
his master's advantage, what is to his disadvantage not." In Taw v. 
Bury an executor sued upon a bond. The defendant pleaded, that he 
causes tlie bond to be written and sealed, and delivered it to Calmady 
to deliver to the testator as defendant's deed ; that Calmady offered to 
deliver it to testator as defendant's deed, and the testator refused to 
accept it as such ; wherefore Calmady left it with testator as a sched- 



294 DERIVATIVE TITLES (Part 2 

ule, and not as defendant's deed, and so non est factum. On demurrer 
on this and another ground, Sir Henry Brown and Dyer, Justices, held, 
that, first by the delivery of it to Calmady, without speaking of it as 
the defendant's deed, the deed was good, and was in law the deed of de- 
fendant before any delivery over to the testator, and then testator's re- 
fusal could not undo it as defendant's deed from the beginning, and 
they gave judgment for the plaintiff, very much against the opinion 
of the Chief Justice Sir Anthony Brown, but others of the King's 
Bench, says Dyer, agreed to that judgment. It was afterwards re- 
versed, however, for a discontinuance in the pleadings. Sir A. Brown's 
doubt might possibly be grounded on this, that the delivery to Calmady 
was conditional, if the testator would accept it; and if so, it would not 
invalidate the position, which alone is material here, that an uncondi- 
tional delivery to a stranger for the benefit of the grantee will enure 
immediately to the benefit of the grantee, and will make the deed a 
perfect deed, without any concurrence by the grantee. And this is 
further proved by Alford v. Lea, 2 Leon. 110, Cro. Eliz. 54. That was 
debt upon an arbitration bond ; the award directed, that before the feast 
of Saint Peter both parties should release to each other all actions. 
Defendant executed a release on the eve of the feast, and delivered it to 
Prim to the use of the plaintiff, but the plaintiff did not know of it 
until after the feast, and then he disagreed to it, and whether this was a 
performance of the condition was the question. It was urged that it 
was not, for the release took no effect till agreement of the releasee. 
It was answered, it was immediately a release, and defendant could 
not plead non est factum, or countermand it, and plaintiff might agree 
to it when he pleased. And it was adjudged to be a good performance 
of the condition, no place being appointed for delivering it, and the de- 
fendant might not be able to find the plaintiff, and they relied on Taw's 
Case. This, therefore, was a confirmation, at a distance of twenty- 
eight years, of Taw v. Bury ; and at a still later period {33 Eliz.) it was 
again confirmed in the great case of Butler v. Baker, 3 Co. 26 b. Lord 
Coke explains this point very satisfactorily. "If A. make an obligation 
to B., and deliver it to C. to the use of B., this is the deed of A. pres- 
ently. But if C. offer it to B., there B. may refuse it in pais, and there- 
by the obligation will lose its force ; (but, perhaps, in such case, A. in 
an action brought on this obligation cannot plead non est factum, be- 
cause it was once his deed,) and therewith agrees Hil. 1 Eliz. Tawe's 
Case, S. P. Bro. Ab. Donee, pi. 29 ; 8 Vin. 488. The same law of a gift 
of goods and chattels, if the deed be delivered to the use of the donee, 
the goods and chattels are in the donee presently, before notice or 
agreement; but the donee may make refusal in pais, and by that the 
property and interest will be divested, and such disagreement need not 
be in a court of record. Note, reader, by this resolution you will not 
be led into error by certain opinions delivered by the way and without 
premeditation, in 7 Ed. IV, 7 &c., and other books obiter." Upon these 
authorities we are of opinion that the delivery of this deed By lA^ynneT 



Ch. 2) EXECUTION OF DEEDS 295 

and_£utting it into the possession of his sister, made it a good and valid 
deeT^aLJeast_irQiJl^the time it was put inta the sister's posses- 
sion." * * * 

)V. L FRYER V. FRYER. W, /. ¥ • h-^ 

(Supreme Court of Nebraska, 1906. 77 Neb. 29S, 109 N. W. 175, 124 Am. 

St. Rep. 850.) 

Albert, C.^° This is an a ppeal from a decree of foreclosure where- /0/7 ". J 
by the lien of plaintiff's mortgage is o-iven priority over tlie respectiv e V/'^^^^**'^Tl 
ju dgment liens of the two banks, defendants herein. The mortgage /^/ vZ^A^ 
is in the Torm of an a bsolute conveyance to the plaintiff by the de- """u 
fendant, William I, Fryer, and his wife of c ertain real estate in the Oy>^*..^^iuI 
city of Lincoln, was ji^rned and a.cknowlcdp^ed by the grantors on the ^Cjy 
22d day of April, 1901, and was hi ed for record ^ n tlie 28th day of ff^^^^^ /T*'*^^**^ 
April, 1902, by William L. Fryer, who had retained it in his posses- U " 
sion after it was signed and acknowledged, and af ter it was rprnrHe H^ 
w as forwarded to him at Denver. Colorado . _^vhere he had taken up 
his abode. Pla intiff resides in the state of Iowa . On tlie 18th day 
of December, 1902,' each of the defendant banks brought an action 
against William I. Fryer, who was the fee owner, ami caused a wri t Q^/t 
of attachment to issue which was levied on the premises covered by ^"i^ ' 
t he mortgage . In each of these cases judgment was given in favor 
of the plaintiff therein and an order entered for the sale of the prem- 
ises for the satisfaction of the judgment. In the pre sent suit the co n- 
test is be tween the plaintiff and the tw o banks as t o th e prigritx Jii 
their respective lienSj and is now narrowed down to the single ques- 
tion whether there had been a delivery of the mortgage to the plain- 
tiff before the levy of attachments on the property. The two iDanks 
join in an appeal, and contend that, while the evidence shows the 
mortgage was signed, acknowledged, and recorded some time before 
their attachments were levied, it is insufficient to sustain a finding that 
it was delivered to the plaintiff before that date. 

Appellants' contention seems to be based on the fact that the plain- 
tiff never saw the mortgage nor had actual manual possession of it 
until after this suit had been pending for some time, and long after 
the levy of the attachments. But the authorities are uniform that ac- 
tual manual deliv ery_is not^s.sential to give effect to a deed.. In Issitt 
v. Dewey, 47 Neb. 196, 66 N. W. 288, it was held that, where the 
grantor places his deed on record for the piirpose and w^th the in- 
tent of passing title to the grantee, actual manual delivery and formal 
acceptance are not essential to the validity of the conveyance. In the 
case at bar the evidence is conclusive that at the date of the mortgage 

9 See Xenos v. Wickham, 13 C. B. N. S. .381 (1S62), 14 C. B. N. S. 4.35 (186-3) 
L. K. 2 H. L. 296 (1867) ; Bligbt v. Schenck, 10 Pa. 285, 51 Am. Dec. 478 (1849).' 

10 A portion of the opinion is omitted. 



296 DERIVATIVE TITLES (Part 2 

deed the mortgagor, William I. Fryer, was indebted to the plaintiff 
on two notes, aggregating $5,000, for borrowed money, and that at 
the time such indebtedness was contracted it was agreed between the 
parties that William I. Fryer should convey tlie property in suit to 
the plaintiff as security for the debt, and file the conveyance for rec- 
ord. William I. Fryer testified on behalf of tlie plaintiff", and, while 
portions of his testimony would indicate that he had no clear recol- 
lection of what he did with the instrument after it was forwarded to 
him at Denver, toward the close of his testimony he testified positively 
that it had been forwarded to the plaintiff before the date of a certain 
payment made by him, which was made September 21, 1902, and al- 
most three months before the attachments were levied. It was after 
learning of this testimony that plaintiff made search and found the 
instrument among his papers. His statement, received in evidence 
as a part of his testimony, accounting for his failure to discover it 
earlier, is to the effect that it must have been received by another 
member of his household and placed among his papers during his ab- 
sence from home. The record further shows that at least two months 
before the attachments were levied William I. Fryer had importuned 
the plaintiff" to reconvey a portion of the mortgaged premises to the 
latter's wife, and that plaintiff had refused to do so. The evidence, 
we think, is amply sufficient to show that tlie instrument was placed 
on record by William I. Fryer with the intent and for the purpose of 
passing the title to the plaintiff, and to render evidence of an actual 
manual delivery and formal acceptance unnecessary, under the rule 
announced in Issitt v. Dewey, supra. * * * 

The decree of the district court seems amply sustained by the evi- 
dence, and we recommend its affirmance. 

DuFFiE and Jackson, CC, concur. 

By the Court. For the reasons stated in the foregoing opinion, 
the decree of the district court is affirmed.^ ^ -/ 

11 See Moore v, Hazelton, 9 Allen (Mass.) 102 (1864), where an insolvent 
guardian, being largely indebted to his ward's estate, upon the ward's com- 
ing of age, executed to the ward, in the presence of an attesting witness, an 
assignment of a mortgage of realty in a sum less than that due to the ward. 
This assignment was kept by the guardian until after the institution of pro- 
ceedings in insolvency by him, more than a year afterwards, when it was 
taken by the assignee in insolvency. The ward, who knew nothing of the 
assignment until after the insolvency, filed a bill in equity to compel the de- 
livery of the assignment. 



Cll. 2) EXECUTION OF DEEDS 297 

MITCHELL V. RYAN. 
(Supreme Court of Ohio. lSo4. 8 Ohio St. 377.) 

The action is one of ejectmenj^ and is in this court by agreement of 
parties, on the facts appearing in the notes of Judge Whitman, taken 
at the trial in the common pleas, and the deposition of Margaret Shan- 
non. From the judge's notes, it appeared that the plaintiff first offered 
a dee d fro m Owen Shannon to Ellen Shannon, for the land in con- 
troversy. TEis^ deed, dated April 2, 1838, was left with the recorder 
of Perry county, April 6th, 1838, and was actually recorded^ April 
JJth^l838, It was agreed that Owen Shannon was the common source 
of title. The marriage of Ellen_ Shannp? to John Mitchell, January 
7th, 1840, was admitted. Her death was also admitted. The posses- 
sion was admitted always to have been in Owen Shannon, or the de- 
fendant Ryan. The defendant oft'ered in evidence a deed from Owen 
Shannon and wife, to him, Ryan, dated July 27tli, 1847, recorded Feb- 
ruary 14jth. 1850^ 

Owen Shannon, the grantor, testified in substance as follows : "El- 
len Shannon was my daughter ; at the time of the deed to her, she 
was in the east ; she knew nothing of it ; no consideration passed, 
and she never had any knowledge of the conveyance ; she was born 
in 1823 ; a year after the execution of the deed, she came to Ohio ; 
she was married in about two years after the conveyance ; at this 
time I was in possession ; I continued in possession until I contracted 
to sell to one Kinney ; he took possession and made improvements ; 
left, and gave up the contract ; then Patrick Haughran went in under 
verbal contract with me, and made improvements ; he left ; I then 
sold to Timothy Ryan, he paid me two hundred dollars ; Ryan never 
moved on the place; my daughter lived a mile from the place after 
her marriage; she died last spring or fall." 

It was agreed that the taxes were always paid^by^ Shannon, till^the 
sale to Ryan. 

Henry Green testified that a short time before the last term of the 
court, Mitchell had no knowledge of the deed to his wife ; Duffy told 
him ; this was just about the time of the death of the wife. 

Owen Shannon being recalled, testified that he sent the deed by mail, 
from McConnellsville to Somerset, to be recorded ; it came back in 
the same way ; he kept the original deed till it was lost. 

The deposition of Margaret Shannon was in substance as follows : 
"I am a sister of Ann Ryan, wife of the defendant, and also of Ellen 
Mitchell, deceased, wife of John Mitchell. Ellen lived in New York 
before- she came to Ohio; she was the last of father's family who 
came ; he sent fifty dollars to bring her out ; had no knowledge of her 
owning any land in Perry county previous to her death ; I was with 
her off and on for two years before her death, she being sick ; she 
had not enough of the necessaries of life ; she had nothing that was 



298 ■ DERIVATIVE TITLES (Part 2 

nourishing, but did not complain, because she thought her husband 
was poor; she and Mitchell, after they left McConnellsville, lived on 
a farm owned by Mitchell and his father, until it was sold to P. Pagan ; 
tliey then moved on to Caron's farm, where they lived about a year, 
and until she died; that farm had cleared land, but they lived in a 
small log cabin in the woods; during tliat time Carons and they fell 
out, and she wanted to move on to an eighty acre tract adjoining fa- 
ther's farm; she told me that if Pagan would pay his notes accord- 
ing to promise, they would buy a nice little place, if only 40 or 80 
acres; I am acquainted with the place in dispute; during the time 
my sister lived in the neighborhood, Kinney lived on it ; next, Joseph 
Perril, who occupied it at least during one crop ; after him was Patrick- 
Haughran, who raised on it, I think, more than one crop ; Ryan then 
had it ; he rented it to Dawson, and afterward to Dew, who now oc- 
cupies it ; it had on it, at the time of my sister's death, two houses and 
a stable, and a considerable of the land was cleared; never heard her 
or John Mitchell say anything about owning it; it would have afforded 
a more comfortable place to live in, than that where she died; Ellen 
knew all about the sales and the renting of the place by father; I told 
her all about it; she asked me how much father got of Ryan for it: 
told her $200 ; Ellen had no property with which to purchase land be- 
fore her coming to Ohio, or previous to her marriage; William, 
Michael, and Mary Ann, the plaintiffs in this action, were the only 
children Ellen left." 

Thurman, C. J. The decision of this case depends upon the qiies- 
^ tion whether the recorded instrument, purporting to be a deed from__ 

(Dwen Shannon and wife, to Ellen Shannon, was ever, in contempla- 
tion of law, delivered. 

As the statute provides that copies from the records of deeds, duly 
certified by the recorder, and under his official seal, "shall be received 
in all courts and places within this State, as _prima^ Jacie evidence of 
the existence of such deeds," it is very clear that the record of a deed 
is prima facie evidence of its delivery ; since, without delivery, it can- 
not exist as a deed. Swan's St. (New Ed.) p. 310, § 10. To the 
same effect are the authorities, Steele v. Lowry, 4 Ohio, 74, 19 Am. 
Dec. 581; Foster's Lessee v. Dugan, 8 Ohio, 87, 31 Am. Dec. 432; 
Hammell v. Hammell, 19 Ohio, 18; Jackson v. Perkins, 2 Wend. 
(N. Y.) 317; Gilbert v. N. Am. P. Ins. Co., 23 Wend. (N. Y.) 46, 35 
Am. Dec. 543. 

It is also clear that this presumption may be rebutted by proof. For 
the statute makes the record prima facie evidence only, for tlie obvi- 
ous reason that it may be the result of accident, mistake, or fraud. 
And being the act of a mere ministerial officer, there is no reason why 
it should not be subject to explanation. See the cases above cited and 
also Chess v. Chess, 1 Pen. & W. (Pa.) 32, 21 Am. Dec. 350, and Jack- 
son V. Schoonmaker, 4 Johns. (N. Y.) 163. 

It was therefore proper for the defendant to introduce such rebut- 



Ch. 2) EXECUTION OF DEEDS 299 

ting testimony; indeed, it was indispensable for him to do so, as the 
burthen of proof that a recorded deed was not delivered, rests upon 
the party attacking it. 

He accordingly called Owen Shannon, the grantor, who testified as 
follows : 

"The grantee, Ellen Shannon, was my daughter; at time of deed 
to her in 1838, 2d April, she was in the east; she knew nothing of 
it; no consideration passed, and she never had any knowledge of the 
conveyance; she was born in 1823; she was 15 years old when the 
deed was executed ; she came to Ohio in a year afterward ; was mar- 
ried in about two years after the conveyance; at this time I was in 
possession, and I continued in possession until I contracted to sell 
the land to Kinney; he took possession, made improvements, left and 
gave up his contract ; then Patrick Haughran went in under a verbal 
contract with me, and made improvements; he left; I then sold it to 
Timothy Ryan, the defendant ; he paid me $200 ; agreed to ; that was 
the consideration ; Ryan never moved on to the place ; Ryan agreed to 
sell to Duffy ; the legal title is in Ryan, and. he is in possession by Duf- 
fy ; my daughter (Ellen) lived a mile from the place after her marriage ; 
she died in January, or February, 1852 ; she never had any notice of 
the conveyance ; I sent the deed by mail from McConnellsville to Som- 
erset to be recorded ; it came back the same way ; I kept the deed 
until it was lost." 

Other testimony was given by the defendant, tending to prove that 
the grantee, Ellen, knew of the control over the property exercised by 
her father, and of his several contracts in relation to it; and that she 
made no objection, nor asserted any claim; but the same testimony 
strongly tended to establish that she never had any knowledge of the 
conveyance ; nor did her husband know of it until after her death, and 
after the sale to Duffy. It was also agreed that Owen Shannon paid 
the taxes upon the land until he sold to Ryan. Upon this testimony, 
the first question for our consideration is, with what intent did Owen '"-^- 

Shannon send the deed to the recorder to be recorded ? Did he thus 
deliver it for the use of the grantee and to pass the title to her im- 
mediately, or had he some other intent? 

That a delivery of a deed to a stranger for the use of the grantee, 
may be a sufficient delivery, is well settled. 1 Shep. Touch, 57, 58; 
Jackson v. Phipps, 12 Johns. N. Y. 421, 

But it is said in the Touchstonej that if such a delivery be made 
without a declaration of the use, it seems it is not sufficient. The rea- 
son of this is very obvious. If the deed be delivered to the grantee, 
tiie natjjraLpr esump tion is that it is for his use, and no words are 
necessary; But if it be handed to a stranger there is no s;ich natural 
presumption; and hence, unless there be something besides the mere 
act of delivery to evidence the intent, it is impossible to say that the 
grantor designed to part with the title. For the delivery may be by 



300 DERIVATIVE TITLES (Part 2 

mistake, or for mere safekeeping, or for some other cause wholly in- 
dependent of a purpose to transfer the estate. 

But while it is thus apparent that the mere act of delivery to a 
stranger is insufficient, it is equally clear that there is no precise form 
of words necessary to declare tlie intent. Anything that shows that 
tlie- delivery is for the use of the grantee is enough. For the real 
question is, does the grantor by his act mean to part with his title ? and 
whatever satisfactorily manifests this design is as good as an expHcit 
declaration. Now it does seem to us that when a man executes and 
acknowledges a deed and delivers it to the recorder, with unqualified 
instruction to record it, as was done in the present case, the reasonable 
presumption, in the absence of any rebutting circumstance, is that 
he means thereby to transfer his title.^^ And this presumption is pow- 
erfully strengthened when, as in the case before us, the grantee is a 
minor child of the grantor, and is at a great distance from him, so 
that the deed cannot be delivered to her in person, and when too the 
circumstances tend to show that it is a gift, and a reasonable one, for 
aught that appears for the grantor to make. 

It is argued, however, that there are circumstances in proof that 
rebut the idea that Shannon, when he caused the deed to be recorded, 
meant to part with his title ; and we are referred to his subsequent pos- 
session of the instrument, to his subsequent control of the property 
and contracts to sell it, and to the failure of the grantee, or her hus- 
band, to assert any claim to the land before the commencement of this 
suit. 

As to the last circumstance, it is explained by the fact that the gran- 
tee died without any knowledge of the deed ; nor did her husband 
know anything about it until just before this suit was commenced. 
No inference, therefore, can be drawn from their silence. What 
weight, if any, should be given to tlie fact that the grantor never com- 

12 "It is unnecessary to controvert the proposition, however, that the rec- 
ord of a deed may be an evidential fact having more or less tendency, ac- 
cording to circumstances, to show that the deed had been delivered to the 
grantee therein named or to some person for his use. It may. under some 
circumstances, be prima facie evidence of delivery. But there is no suffi- 
cient \^'arrant in reason or precedent for declaring as a rule of law or pre- 
sumption of fact, that the record of a deed is, imder all circumstances, prima 
facie evidence of delivery. On the other hand, experience has shown it to 
be undoubtedly time that, under some circumstances, the record may have 
no legitimate tendency whatever to prove a delivery. The case of Hill v. 
McNichol. SO Me. 220 [13 Atl. 883 (18S8)], is an apt illustration of this state- 
ment" Egan V. Horrigan, 96 Me. 46, 50. 51, 51 Atl. 246, 248 (1901). 

"If the question were a new one, there would perhaps be nothing diffi- 
cult or impracticable in the conception that the act of leaving a deed with the 
register for record by the grantor with the intent on his part thereby to vest 
the title in the grantee should constitute the register the agent for delivery 
of the grantee, and that upon the assent of the grantee tlie transaction should 
take effect as a valid delivery. But we think the law is otherwise in this 
state. * * * » Barnes v. Barnes, 161 Mass. 3S1, 384, 37 N. E. 379, 380 
<1894). But see Rev. Laws 1902, Mass. c. 127, § 5. 



Ch. 2) EXECUTION OF DEEDS 301 

municated to either of them, the existence of the conveyance, is another 
matter. 

Much stress has sometimes been laid upon the fact of the grantor's 
possess ion of a deed after an alleged delivery of it ; and it has been 
said t hat such s jubsequent possession is a very pregnant circumstance 
to show that t he supposed delivery was not absolute. That this may 
often be the case is undeniable ; but where the deed has been recorded, 
such subsequent possession is evidently entitled to much less consid- 
eration than where it has not. An unrecorded deed is the sole evi- 
dence of title, and it would be unsafe and altogether unusual to leave 
it with the grantor after its delivery. But a recorded deed is not the 
sole evidence. The statute makes the record also proof, and a copy 
of it is admissible, even though the party offering it has the deed it- 
self in, his possession. Hence, with us, people have been proverbially 
careless about their deeds after they, are recorded, and often, if not 
generally, seem to attach more importance to the record than to the 
original. Add to this that the grantor, Owen Shannon, was the father 
of the grantee, Ellen ; that she was a minor, and away from home 
several hundred miles when the deed was recorded, and that she re- 
mained away for about a year, and it seems to us that but little, if 
any importance ought to be attached to his subsequent possession of 
the instrument. He was her natural guardian, and there was nothing 
strange in his having the custody of what belonged to her, even though 
it was a deed in which he was the grantor. 

Waiving the question, whether the subsequent acts of ownership, ex- 
ercised by Owen Shannon, in respect to the land, and his failure to 
communicate the existence of the deed to his daughter, are admissible 
evidence to prove that it was not his design to transfer the title to 
her when he caused the instrument to be recorded, we are inclined 
to the opinion, after a consideration of tlie whole case, that the testi- 
niony rather tends to prove a change of his mind subsequent to the 
delivery^t o the re corder, than to establish that it was not then his pur- 
gose to convey tih^ estate. If it had been his purpose when he made 
the delivery, to retain any control over the property, it is reasonable 
to suppose he would have declared such purpose to some one; if not 
to the recorder, at least to some member of his family, or to some 
friend. He was aware that by causing the deed to be recorded, he 
would, prima facie, be divested of his title, and it is not very reason- 
able to suppose that he would make such a prima facie case against 
himself, without taking some precaution to enable him to rebut it, if 
he did not mean fo do what his act purported. 

But this is not all. He was called as a witness, and testified. When 
he did so, he had the strongest motives to state that he did not mean, 
by the execution and recording of tlie deed, to part with his title. For 
he had subsequently conveyed the land to Ryan with warranty, and 
if he made that conveyance wilfully and corruptly, knowing that he 



302 DERIVATIVE TITLES (Part 2 

had no title, he committed no less than a penitentiary offense. Yet he 
uttered not one word to explain the intention witli which he sent the 
deed to the recorder. Nor did the defendant venture, so far as ap- 
pears, to put a question to him touching his intent. Why this silence 
of both witness and party? Why this failure to prove what the inter- 
est of both required to be proved? Why this neglect to make a suc- 
cessful defense? It -seems to us there is but one answer we are au- 
thorized to give to these questions, and that is, that the question was 
not asked, because the answer would have been unfavorable, and, for 
the same reason, there was no unasked statement by the witness. This 
is the ordinary presumption where a party fails to offer proof of what 
he ought to prove, if it exist. It is almost incredible that, in the case 
before us, the defendant would fail to ask, and the witness to state, 
whether it was the intention to convey the land, if that intentipn had 
not in fact existed. The very object for which the witness was called 
was to prove that the deed was never delivered, but instead of asking 
him directly for what purpose he caused it to be recorded, the defend- 
ant contents himself with proving circumstances from which he asks 
the court to infer the purpose. 
) ■ We suppose the truth to be, that the deed was sent to the recorder to 

\ be recorded in order to vest the title in the grantee, and make the prop- 

( erty hers ; but, that afterward, the grantor changed his mind, and con- 

( eluded not to give it to her. And, it is altogether probable, assuming 

the deed to be a gift, that he supposed he had a right to revoke it. This 
view reconciles his conduct perfectly, without imputing to him any 
/ wrong motive at any time, and it is the only view that, upon the testi- 

( mony, we feel at liberty to take. 

And here I would rernark, that very clear proof ought to be made, 
to warrant a court in holding that a man who has executed and ac- 
knowledged a deed, and caused it to be recorded, did not mean thereby 
to part with his title. If such deeds could be overthrown by slight 
testimony, a door would be opened to the grossest fraud. The testi- 
mony should, therefore, do more than make a doubtful case. It should 
establish clearly, that the dehvery for record was not for the use of 
the grantee. 

But it is urged, that even if Owen Shannon did intend to part with 
the title, yet the delivery was insufficient, because it was never accepted, 
or assented to by the grantee; and it is said that every sufficient de- 
livery includes such assent or acceptance, for no one can be made a 
grantee without his consent. ^^ * * * ||- follows that the plaintiff 
is entitled to judgment. 

13 The portion of the opinion relating to matter of acceptance, omitted hei-e. 
Is printed infra, p. 383. 



Ch. 2) EXECUTION OF DEEDS 303 

MATSON V. JOHNSON. 

(Supreme Court of Washington, 1008, 48 Wash, 256, 93 Pac. 324, 125 Am. 

St. Rep. 924.) 

RuDKiN, J. F. Lanston died testate in Kitsap county in this state 
on the 15th day of June, 1902. During his last illness and a few days 
before his death, he c alled in one of his neighbors and directed him__ to 
p repare a deed and will in order that he might execute them . A deed g 

was accordingly prepared purporting to convey the property now in C^t-t^^v, 
controversy t o the three minors who are plaintiffs in this actio n. The 
instrument was signed by the grantor in the presence of two wit nesses. 
but was not acknowle dged because there was no officer present author- 
ized by law to take the acknowledgment of deeds. The grantor stated 
to those present th at he would appoint Mr. Tohnson as his executo r, 
and would instruct him to have the deed acknowledged and pro perly 
executed . The property described in the deed was of the value of 
about $100 and was the only real property owned by the grantor. At 
the time of the execution of this deed and as part of the same transac- 
tion, Lanston executed a will making various small bequests which a re \Ju aJ(-/ H*-<i 
not material here. The following endorsement was made at the foot of ""^ ' 

the will by direction of the testator : " Ed Johnson are hereby empo w- 
er ed to appear for the notary publich to have inlaid deed execu ted." 
What disposition was made of the will and deed after their execution 
does not appear, but both instruments were delivered to the executor 
some time after Lanston's death and were by him f iled in the office o f 
t he clerk of the superior court, the will under date of June 18th an d 
t he deed on June 23d, 1902 . The deed was not filed for record in the 
auditor's office vmtil February 1, 1906. At the time of the execution of 
the deed and will, Lanston was the owner of the real property describ- 
ed in the deed and about $500 cash in bank. T he will was admitted to 
p robate and Johnson appointed executor there of . On the 25th day, o f 
N ovember, 1905^ the real property now in controversy was conveyed 
t o the defendants in this action by the executor of the will , pursuant 
to an order of the superior court made and entered in the estate matter. 
The p resent action was instituted by the grantees named in the ab ove 
deed, through their guardian ad litem, to quiet their title as against th e 
purchasers at the executor's sale , and from a ju dgment in favor of the 
defendants, the present appeal is prosecute d[ ~~' 

Three questions have been presented for the consideration of this 
court: (1) Was the Lanston deed ineffective for lack of a n_acknm vl- "^ 
e dg ment on the part of the grantor; (2) was there a delivery of the 
deed ; and, (3) are the defendants bo na fide purcha sers. 

Firsts An u nacknowledged deed is good as between the parties in 
t his state . Such an instrument conveyed at least an equ it abl e title. 
Devlin, Deeds (2d Ed.) § 465 ; Edson v. Knox, 8 Wash. 642, 36 Pac. 



ay 



304 DERIVATIVE TITLES (Part 2 

698; Carson V. Thompson, 10 Wash. 295, 38 Pac. 1116; Bloomingdale 
V. Weil, 29 Wash. 611, 70 Pac. 94. 

Second . Was there a d elivery of the deed ? "Actual manual deliv- 
ery and change of possession are not required in order to constitute an 
effectual deUvery. But whether there has been a vaHd delivery or not 
must be decided by determining what was the intent ion of the gra ntor. 
and by regarding the particular circumstances of the case . Where a 
father had indicated in various ways that certain property should be 
bestowed at his death upon his infant son, and for that purpose had 
executed a deed, of which he, however, retained the possession, effect 
was given to his intention, despite the fact that there had been no 
manual delivery of the deed." 1 Devlin, Deeds (2d Ed.) § 269. 

In Atwood V. Atwood, 15 Wash. 285, 46 Pac. 240, this court said: 
"In coming to these conclusions we have not lost sight of the able argu- 
ment and large array of authorities contained in the brief of appel- 
lant, to the effect .that the delivery of a deed does not necessarily re- 
quire any formal act on the part of the grantor ; that it is often a ques- 
tion of intention ; that a deed may become operative while the manual 
possession is retained by the grantor. But in such cases, before th e 
c ourt can find a delive ry, th e intention to consummate the transaction 
so as to fully vest the title m the grantee must be clearlv shown^ and 
neither the findings of fact by the referee nor by the superior court, 
nor the evidence in the case, satisfies us that the grantor in the deed 
under consideration ever did anything with the intention that by doing 
it he had so delivered the deed as to make it presently operative." 

What was lacking in the Atwood Case, viz., t he intention to ronsiim - 
mate the transaction so as to fullv vest the title in the grantee, was, in 
o ur opinion, clearly and u ripgniynrally <;hnwn in thic; raqp The wil l 
and deed were e xecuted at the sar ne time and as part of the sam.e t rans- 
^ction. The real property was "omitted from the will, no doubt ad- 
visedly, and all the surrounding circumstances show conclusively that 
t he grantor intended to convey his real property to these minors, that 
the deed was executed for that purpose; and in our opinion the mer e 
a bsence of an acknowledgment is not sufficient to defeat his express gd 
i ntention s. 

TliirrL Tlip respondents were not bona fide purchase rs, as that term^ 
is understood in the law! The rule of cave at emptor applies in all its 
vigor to sales by administrators or executors in this state, and the pur- 
chaser acquires only the interest of the estate. Towner v. Rodegeb,. 
33 Wash. 153, 74 Pac. 50, 99 Am. St. Rep. 936, and cases cited. 

We are therefore of opinion t hat the appellants have shown a clea r 
ti tle to the lands in controversy, as against the respondents, a nd th.e 
judgment of the court below is accordingly j;eyersedj with directions to 
enter judgment as prayed in the complaint. 

-jr. 



^4) 



Ch. 2) EXECUTION OF DEEDS 305 

BURNETT V. BURNETT. 

(Supreme Court of Michigan, 1S79, 40 Mich. 361.) 

Marston, J. The bill of complaint in tliis case was filed for t he 
pu rpose of foreclosing a mortgage alleged to have been e verntprl hy 
de fendant and delivered to Calvin T. Burnett now deceased . 

Calvin T. Burnett during his lifetime resided in Washtenaw county. 
He was the o^ yner of a tract of land in Livingston county, upon whic h 
t he defendant and his sister were livin g. It is claimed on behalf of the 
complainant that Calvin T., wishing to divide this tract between de- 
fendant and his sister, pursuant to an agreement previously made, had 
a d eed of conveyan c e of the north half thereof to defendant an d one 
o f the south half to nis sister prepared at Ann Arbor; that he and his 
wife, the present complainant, t ook said deeds and visited their so n ' 
a nd daughter where they resided upon said lands : that while there 
and upon the 18th day of February, 1873, said deeds w ere properly (jU^^h Jt^ 
executed, and that a t the same time two mort^^ age^ . one from defendan t ' 
and one from his sister to said Calvin, were by them respectively ex - Tfe^ ii*.o-CZj 
ecuted to secure certain notes^ those given by defendant being one for ^ 

$ 4,300, being the one in controversy, and another for $4,000. This 
second note under a separate agreement made at the same time was to 
be considered as an advance to t h e defendant towards his share of h is 
father's estate, and to be accounted for m a certain mann er. 

It is also claimed that the deeds, mortgages and notes were at the 
time of the execution thereof re tained by said Calvin T who was t o djLuLt ''»«■*-• 
h ave the same recorded, but which was not done. Calvin T. Bur j2£tt^ § -g^" 

died FebruaoL -^th«-lBZ7. After his decease the deed to defendant ^ 

was offered him but he refused to accept the same, a nd the admini stra- 
t rix, on February 14th. 1877. caused the deed and mortgag e to he re- 
corded^ 

The defendant in his answer admits the execution of the notes and 
mortgage ; th at $500 oi the note in controversy was for personal prop - 
erty which he had purchased from his father ; that the deed execu ted 
by his father to him of the land was not delivered nor intended to be : 
that his father was to keep said deed, notes and rnortgage, and agreed 
n ot to record the same, bu t would wait and see how def endant man - 
a ged the property, and if not satistactory that the papers could be d e- 
s troyed . 

The evidence is conflicting. Mrs. Burnett, the complainant, who was 
present at the time the papers were executed says : "My husband was 
to take care of the papers and put them on record at his own expense. 
H e was to see that they were put on record . My husband took them 
home with him." She farther gives as a reason why they were not at 
the time placed on record, was that they v\^ere to go home by way of 
Howell and have them recorded, but the sleighing was going off and 
Aig.Prop.— 20 



306 DERIVATIVE TITLES (Part 2 

they got home as quick as they could. She farther testif?ed that her 
husband three years before his death and again one year before, toM 
h er that if the papers were in his possession at the time of his death_,J jO-- 
h ave them recorded, and handed over to the p ro per parties. Mrs. Bur- 
nett's daughter Mrs. Webster, who was present at the time the papers 
were executed, gives the same version, t hat Calvin T. Burnett ^ wa'^ ^" 
t ake the papers, have them recorded, and then send the deeds t^j jhe 
proper persons, the grante es. 

The justice of the peace who took the acknowledgment and others 
who were present and who on other occasions had conversations with 
Calvin T. fully sustained the position set up in the answer of defend- 
ant. Which under all circumstances is the more probable and correct 
view? It is conceded that Calvin T. Burnett was a good and prompt 
business man, while de fendant was somewhat addicted to th e use of 
i ntoxicating liquors, and it is now said that it was on this account a nd 
t o prevent the def endant from s quandering the property that thej leed 
a nd mortgage were not recorded . It is clear from the testimony of 
Mrs. Burnett and her daughter that there was no formal delivery o,f 
t his deed to the d efendant. There is not the slightest testimony in the 
case tending to show that he had at any time possession or control, of 
the deed, though for never so short a period. All we have then from 
which we canfind that a sufficient delivery was made is the staternent 
made bv the grantor, admitting such a statement to have been mad e, 
t hat he would retain this deed, have it recorded and then send it to 
t he grantee. Had this been done, perhaps no question would have 
arisen. This, however, he did not do, but knowingly retained posses- 
sion of all the papers up to the time of his decease. T his we think fal ls 
s hort of showing a delivery . 

It is said, however, that defendant took and remained in possession 
of the real estate and made payments on the mortgage, and that he is 
thereby estopped from disputing the validity of the deed. Prior to the 
execution of this deed defendant was in possession of this land, under 
a three year's lease from his father. He continued in possession, and 
the payments made were, we think, as now said by him, to have been 
for the personal property which he purchased and in payment of rent 
of the premises. T he retention of all these deeds. note s_a nd mortgag es 
bvC alvin T. Burnett and not placing them on r e cord is consistent ajid 
h armonizes with the agreement as testified to by the justice and othg rs. 
an d IS inconsistent with the other view . From an examination of the 
evidence in the light of all the surrounding circumstances, we must 
come to the cmiclusion that the deed was not delivered, and that the 
agreement was in substance as set up by defendant in his answer. It 
follows, therefore that the decree of the court below must be affirmed 
with costs. ^ , / , / 

Campbell, C. J., and Graves, J., concurred. 

CooLEY, J. It appears tliat the intestate some years ago made an 
arrangement under which he deeded land to George F. Burnett, his 



Ch. 2) EXECUTION OF DEEDS 307 

son, of which about one-half the estimated value was to be an advance- 
ment, and for the remainder the son was to give a ten*per cent, mort- 
gage. It is probable from the evidence that the father planned this 
arrangement alone, but it was carried out by the parties so far as the 
execution of the papers was concerned, and the mortgage was executed 
by the son with accompanying notes and delivered to the father. The 
only question concerning the transaction is, whether t he dee d was ever y ^ 

delivered . 

It does' not clearly appear that the deed was ever placed in the son's 
hands, but I am not satisfied that at the time any of the parties sup- 
posed the transaction remained incomplete and unconsummated. The 
father who lived at a distance from the place where the papers were 
executed, took the deed away with him when he returned home, and it 
was found unrecorded among his papers after his death. His widow 
testifies that he took it merely for the purpose of putting it upon rec- 
ord, which he was to do at his own expense; and she says an acci- 
dental circumstance, which she explains, prevented his going to the 
register's office on his return home. 

The_.va.Lu£-QLthe land, has depreciated greatly since the transaction, 
took place, and on the death of the father it is found not to be for the 
interest of the son and daughter to claim under the deeds made to them 
by the father. And now the son being called upon to pay the mort- 
gage he gave upon the land described in the deed to him, he refuses 
to do so, and insists that the title was never conveyed to him, because 
the deed was never formally delivered. The daughter makes no ques- 
tion that the transaction with herself was complete, and as a witness 
in the case she gives evidence which would make out a transaction 
equally complete between her father and her brother, this defendant. 

There are two facts in this case which to my mind are more conclu- 
sive than all the testimony of witnesses as to their understanding of 
the purpose of the parties in executing such writings. One is that 
the daughfer, although it was greatly for her interest to take the same 
position that the son takes here, did not understand she was at liberty 
to do so, but admits that the transaction was what on its face it pur- 
ported to be. The other is that defendant for two years paid in full 
the interest on his mortgage, thereby admitting its validity and obliga- 
tion. And it seems to me exceedingly unsafe to set aside the just in- 
ferences from such unequivocal acts on such doubtful and contradic- 
tory evidence as we have concerning what took place when the papers 
were executed.^* 

14 A., the owner of lands, desiring to make provision for his son, directed a 
lawyer to prepare a deed of such lands. The deed when prepared was signed, 
sealed, acknowledged, and witnessed, and at request of A. recorded by the law- 
yer. After the lawyer had received the deed back from the recorder, A. told 
him "to keep it until called for." The son, without ever learning of the deed, 
died. Shortly thereafter A. called for the deed and tore his name oft. The 
son's widow now claims the land. Who is entitled thereto? The son had been 
living on the land with his father. *^' 



308 DERIVATIVE TITLES (Part 2 

WHEELWRIGHT v. WHEELWRIGHT. 
tSupreme Judicial Court of Massachusetts, 1807. 2 Mass. 447, 3 Am, Dec. 66.) 

The petitioners set forth that the said Joseph is seised in fee simple of 
four undivided ninth parts, and the other petitioners of two undivided 
ninth parts, of thirty-one acres of salt-marsh lying in Wells, in common 
with the said Aaron Wheelwright, and^ the y pray that th eir respe ctive 
parts may be set_oiiLtQ._the.m in severalty. 

The respondent pleads in bar that Samuel Wheelwright, grandfather 
of the respondent, on the 30th day of January, A. D. 1700, being seised 
in fee of the premises, made his last will in writing, which was after- 
wards duly proved, and by which he devised the premises to his son, 
Joseph Wheelwright, father of the respondent, in fee tail general, who 
entered and was seised, and from whom the premises descended to 
the respondent, as eldest son and heir in tail to his father, — and trav- ' 
erses the seisin in common with the petitioners, which they, in, their 
replication, affirm, and tender an issue to the country, which is joined 
by the respondent. 

Upon trial of this issue before Thatcher, J., October term, A. D. 
1805, the respondent produced the last will of Samuel Wheelwright, 
by which it was admitted, for this trial, that the premises were devised 
in tail to Joseph, son of the testator, and father of the respondent, and 
also of Joseph W., one of the petitioners, and of the husband of Mary 
W., another of the petitioners, and grandfather of the remaining peti- 
tioners. It was also admitted that the respondent was the heir male of 
Joseph, his father. 

The petitioners produced, in support of their claim, two deeds of 
the said Joseph, bearing date May 4, 1795, one whereof purported to 
be a conveyance of four ninth parts to the petitioner Joseph, and the 
other a conveyance of two ninth parts to the remaining petitioners; 
and they relied on these deeds to show that they were respectively 
seised, in fee simple, of the several shares so conveyed. Upon produc- 
ing these deeds by the petitioners, the respondent called for the evi- 
dence of their execution before they should be read. Nathaniel Wells, 
Esq., was produced as a witness, who testified that, in the year 1795, 
the petitioner Joseph requested him, by direction from his father, as 
he said, to write those two deeds. Having written them, on the 4th of 
May, 1795, the father called upon him, and signed and sealed the two 
deeds in presence of the witness and his brother, since deceased, and 
delivered them for the use of the grantees, and that he and his brother 
subscribed their names as witnesses. That it was the intent of the 
parties that the grantor should have the use of the premises during his 
life; and as some of the grantees were minors, and could not secure 
the use to him, that tlie deeds were delivered as escrows, as he_ex^ 
pressed it, to be delivered by him to the grantees 'upon the death of the 
j^rantor, which the witness has accordingly done. That the witness 



Ch. 2) EXECUTION OF DEEDS 309 

understood from the grantor that his intent, in executing the deeds, 
was to preven t the en tail f rpni depriving the g£antees of the land con- 
veyed^ 

The counsel for the respondent objected to the reading of the deeds 
to the jury upon this evidence, upon the ground that there was no 
proof that the same, or either of them, was duly executed and deliver- 
ed by the grantor in his lifetime to either of the grantees, or to any 
person authorized by them, or either of them, to receive the same; 
and that if they had been duly executed and delivered, they were not 
made bona fide^ but merely and for the express_purpose of destroying 
the entail of_said- lands. 

lliejudge^oyerruled the objection, permitted the deeds to go in evi- 
dence, and directed the jury that they were sufficient and legal evi- 
dence to maintain the issue on the part of the petitioners. After a 
verdict for the petitioners, the respondent's counsel filed exceptions to 
the above opinion and direction of the judge, which were allowed and 
signed pursuant to the statute, and at the last July term of the Court, 
the question of the validity of those exceptions came on to be argued. 

Parsons, C. J., (who stated the history of the cause, and proceeded.) 
The right which the father of the respondent had to convey any of 
the lands he held in tail must be derived from the statute of March 
8, 1792. By that statute it is made lawful for any person of full age, 
seised in fee tail of any lands, by deed duly executed before two sub- 
scribing witnesses, acknowledged before the vSupreme Judicial Court, 
Court of Common Pleas, or a justice of the peace, and registered in 
the records of the county where the lands are, for a good or valuable 
consideration, bona fide to convey such lands, or any part thereof, in 
fee simple, to any person capable of taking and holding such estate; 
and such deed, so made, executed, acknowledged, and registered, shall 
bar all estates tail in such lands, and all remainders and reversions ex- 
pectant thereon. 

From inspecting the deeds produced in evidence in this cause, it 
appears that two subscribing witnesses, to whose credibility no objec- 
tion is made, have certified that they were signed, sealed, and deliv- 
ered, in their presence. And it further appears that the grantor, on 
the same day, acknowledged that each instrument was his deed before 
a justice of the peace. 

One objection made by the respondent is, that, admitting the deeds 
to have been executed in the form and manner required by the statute 
in this case, yet these conveyances are not bona fide, being made, not 
for a valuable consideration, but for the purpose of depriving the heir 
in tail of his inheritance. The deeds purport to be for a valuable con- 
sideration in money, and for love and affection. to his issue, which 
is a good consideration. The statute also provides that the convey- 
ance may -be on good consideration. It is therefore very clear that 
the statute intended that the tenant in tail might bar the heir in tail, 
by deed conveying the land to his relatives, executed for a good al^ 



310 DERIVATIVE TITLES (Part 2 

though not a valuable consideration. This he might do by a common 
recovery ; and this method by deed is substituted by the statute in the 
place of that common assurance, the effect of which is founded on legal 
fictions. And it is certain that justice, or parental affection, will often 
induce parents who hold their lands in tail to make provision for the 
younger branches of their family out of the entail. As the statute 
has made the estate tail assets for the payment of the debts of the ten- 
ant, before and after his decease, a bona fide conveyance was required 
by the statute, to prevent alienations to defraud creditors, and not to 
protect the heir in tail. This objection cannot prevail. 

The other objection is that, by the statute, the conveyance should 
be completed, and the estate pass, in the lifetime of the tenant in tail, 
and that the deed should be sealed, delivered, and acknowledged, by 
him as his deed ; that, in the case at bar, the deeds were delivered by 
the grantor to Judge Wells, not as his deeds, but as his writings or 
escrows, to be delivered as his deeds by the judge to the grantees on 
his, the grantor's death ; that they could have no effect until delivered 
by the judge accordingly; and, as the grantor was dead before the 
second delivery, they were never his deeds, but are void. 

This objection seemed to deserve much consideration. The statute 
certainly intended that the conveyance of the estate tail should be 
executed in the lifetime of the tenant ; and therefore, if there be no 
acknowledgment of the deed by him, the defect cannot be supplied by 
the testimony of the subscribing witnesses after his death, as it may be 
in conveyances of estates not entailed. The reason is, as common re- 
coveries must be suffered in the lifetime of the tenant in tail, and at a 
court holden at stated times, and the heir in tail has a chance that the 
tenant may, after the commencement of the suit, die before the term, 
so it was intended to leave him the chance of the tenant's dying before 
acknowledgment, which, as the statute was first drawn, could be made 
only in some court of record ; although, as it was amended, it may 
now be made before a justice of the peace. There is therefore some 
chance saved to him, but of much less consequence than it was before 
the bill was amended. 

The law, so far as it relates to the nature of this objection, is very 
well settled. / If a grantor deliver any writing as his deed to a thirxT 
person, to be delivered over by him to the grantee, on some future event, 
it is the grantor's deed presently, and the third person is a trustee of 
it for the grantee ; and if the grantee obtain the writing from the trus- 
tee before the event happen, it is the deed of the grantor, and he 
cannot avoid it by a plea of non est factum, whether generally or spe^^ 
daily pleaded. This appears from Perk. 143, 144, and from the. case 
of Bushell V. Pasmore, 6 Mod. 217, 218. But if the grantor make 
a writing, and seal it, and deliver it to a third person, as his writing 
or escrow, to be by him delivered to the grantee, upon some future 
event, as his, the grantor's deed, — and it be delivered to the grantee 
accordingly, — it is not the grantor's deed until the second delivery; 



Ch, 2) EXECUTION OP DEEDS 311 

and if the grantee obtain the possession of it before the event hap- 
pen, yet it is not the grantor's deed, and he may avoid it by pleading 
non est factum. This appears from Perk. 142, 137, 138. 

It is generally true that a deed delivered as an escrow, to be deliv- , 
ered over as the deed of the party making it, on a future event, takes 
its effect from the second delivery, and shall be considered as the deed 
of the party from that time. Perk. 143, 144. — 3 Co. 35, b, 36, a.^_ 

Whether the deeds in this case were delivered to Judge Wells as 
writings to be delivered over as the grantor's deeds on his death, or 
whether they were delivered as the deeds of the grantor to Judge 
Wells, in trust for the grantees, to be delivered to them on the gran- 
tor's death, is a question of fact, to be determined by the evidence. 
This evidence results from the testimony of Judge Wells, and from the 
inspection of the deeds. The deeds appear to have been signed, sealed, 
and delivered, in the presence of two subscribing witnesses, and to 
have been acknowledged as the deeds of the grantor before a justice 
of the peace. The witness swears that the grantor did then sign, seal, 
and deliver, them for the use of the grantees. Thus far there can be no 
doubt. But the witness further testifies that, because the grantor was 
to have the use of the premises during his life, and some of the grantees 
being minors, the deeds were delivered tohim as escrow^ to be delivered 
to the grantees upon the grantor's death. What the witness understood 
by escrow is not explained. He might consider them as escrows, be- 
cause he was to have the custody of them until the grantor's death. 
To aid his memory, he therefore refers us to the memorandum he 
made, at the time, upon the wrapper of the deeds. In that memoran- 
dum they are called the two deeds of the grantor, naming him, to 
the grantees, naming them, to be kept until the death of the gran'tor, 
and then to be delivered to the grantees. Here they are not called the 
writings, or escrows, but the deeds, of th« grantor. The weight of the 
evidence is certainly very great, if not conclusive, in favor of the deeds 
having been delivered by the grantor, as his deeds, and deposited with 
Judge Wells, in trust for the grantees. Upon this ground the deeds 
were very properly admitted as -evidence, and the direction of the 
judge was correct. 

But if the deeds are to be considered as delivered to Judge Wells, 
not as the deeds, but as the writings, of the grantor, we must not 
thence conclude that they are void, ^l^lthoiigh generally an escrow / 
takes its effect from the second delivery, yet there are excepted cases, 
in which it takes its effect, and is considered the deed of the maker, 
from the first delivery. The exception is founded on necessity, ut 
res valeat. Thus Perk. 139, 140. If a feme sole seal a writing, and 
deliver it as an escrow, to be delivered over on condition, and she aft- 
erwards marry, and the writing be then delivered over on perform- 
ance of the condition, it shall be her deed from the first delivery ; oth- 
erwise, her marriage would defeat it. In Brook's Reading, on the stat- 
ute of limitations, p. 150, there is another exception. A. delivers a 



312 DERIVATIVE TITLES (Part 2 

deed, as an escrow, to J, S., to deliver over on condition performed, 
before which A. becomes non compos mentis ; the condition is then per- 
formed, and the deed dehvered over; it is good, for it shall be A.'s 
deed from the first delivery. Another exception is in 3 Co. 35, b, 36, a. 
Lessor makes a lease by deed, and delivers it as an escrow, to be de- 
livered over on condition performed, before which lessor dies, and 
after, it is delivered over on condition performed : the lease shall be 
the deed of the lessor from the first delivery. There is also a strong 
exception in 5 Co. 85. If a man deliver a bond as an escrow, to be 
delivered on condition performed, before which the obligor or obligee 
dies, and the condition is after performed — here there could be no sec- 
ond delivery, yet is it the deed of the obligor from the first delivery, 
although it was only inchoate ; but it shall be deemed consummate by 
the performance of the condition. 

/ Therefore, if the deeds in this case were delivered to Judge Wells 
s escrows, and by him delivered over on, the death of the grantor, they 
(must take their effect, and be considered as the deeds of the grantor, 
I from the first delivery, he being dead at the second delivery. And 
the cases in 3 Co. 36, a, and 5 Co. 85, are in point. It may here be 
observed, that it is not to be presumed that it was the intention of the 
grantor to deliver these deeds as escrows, to be after delivered as 
his deeds, on the event of his death; when, from the nature of the 
event, they could not be considered as his deeds from the second de- 
livery. The presumption is violent that he considered Judge Wells as a 
trustee of the grantees. But whether the deeds were delivered to him 
as escrows, or in trust for the grantees, — in either case the verdict 
must stand, and the first judgment be entered thereon, viz., that parti- 
tion be made; and let a warrant issue to commissioners to make par- 
tition." 



k 



RUGGLES V. LAWSON. 

(Supreme Court of New York, 1816. 13 Johns. 285, 7 Am. Dec. 375.) 

This was a suit in partition, tried before his honor the Chief Jus- 
tice, at the Orange circuit, in September, 1814. 

The plaintiff, in his petition, set forth, that he was seised, in fee, 
as tenant in common, of an undivided moiety of the premises in ques- 
tion ; and that Daniel Lawson and others, defendants, as heirs at law 
of Robert Thomson, Jun., deceased, were each seised of an equal and 
undivided twentieth of the premises, and the widow of Robert Thom- 
son was entitled to her dower in the one third of the said ten twen- 
tieths of the premises, of which the heirs of the said Robert Thomson 
were so seised. Several of the defendants put in pleas of confession, 
and consented to the partition. Robert Thomson and Nelson Thom- 
son, two of the defendants, pleaded non tenent insimul, and gave no- 
lo See Wells v. Wells, 132 Wis. 73, 111 N. W. 1111 (1907). 



Ch. 2) EXECUTION OF DEEDS 313 

tice, under the plea, that they would prove, at the trial, that they 
were entitled, in their own right, to one half of the premises, and that 
they claimed title to the same, by virtue of a conveyance to them, 
dated the 15th of November, 1811, from their father, Robert Thomson, 
(setting forth the deed at length.) 

At the trial, it was admitted that the plaintiff was seised, in fee, of 
an undivided moiety of the premises. 

Robert and Nelson Thomson, two of the defendants, gave in evi- 
dence the deed set forth in the notice accompanying their plea. The 
deed was given for natural love and affection of the grantor to his two 
sons, and for the further consideration of one dollar, and conveyed 
an undivided moiety of the premises. David Mason, a witness, proved, 
that, in June, 1814, the grantor, being sick, took from his chest the 
deed in question, among other deeds to his children, which he delivered 
to the witness, and, at the same time, directed him, in case he should 
die before making his will, which he had requested the witness to 
draw up for him, that he, the witness, would deliver the deeds to 
his children, respectively ; the witness having retired, for a short time, 
to prepare the will of the grantor, on his return, found him dead ; 
and about a month after his decease, the witness delivered the deeds 
to the grantees named therein. 

A verdict was taken for the plaintiff, subject to the opinion of the 
Court, on a case which was submitted to the Court without argument. 

Per Curiam. The only question in this case relates to the effect 
and operation of the deed from Robert Thomson, Jun., to his two 
sons, Robert and Nelson. This deed was duly executed by the grantor, 
in his lifetime, and delivered to a third person, to be delivered to the 
grantees, in case the grantor should die before having made and exe- 
cuted his will. The grantor did die without having made any will, and 
the deed was, after his death, delivered to the grantees. If this deed 
is to be considered as an escrow, the estate, under the circumstances 
stated in the case passed to the grantees, upon the delivery after the 
death of the grantor. It is a well-settled rule with respect to an es- 
crow, that, if either of the parties die before the condition is per- 
formed, and, afterwards, the condition is performed, the deed is good, 
and will take effect from the first delivery. Shep. Touch. 59. It may, 
however, be questionable whether this deed is to be viewed as an 
escrow ; the grantees had nothing to do, on their part, in order to make 
the deed absolute, which is usually the case where a deed is delivered 
as an escrow. The delivery here was, at all events, conditional, and 
to become absolute, upon an event which has taken place; and, as in 
the case of an escrow, the deed will take effect from the first deliv- 
ery. This principle is very fully laid down and illustrated in the cases 
of Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66, and 
Hatch V. Hatch, 9 Mass. 307, 6 Am. Dec. dl . The grantees in this 
deed are, therefore, entitled to a moiety of the premises, and par- 
tition must be made accordingly. 




M^ 



314 DERIVATIVE TITLES (Part 2 

JOHNSON V. JOHNSON. 
(Supreme Court of Rhode Island, 1903. 24 R. I. 571, 54 Atl. 378.) 

TiLLiNGHAST, J. The Only question presented for our decision by 
the bill, answer and proof in this case is w hether the deed under which 
t he respondent claims title to the real estate described in tlie bill was s o 
dep osited or le f t with the witness Charles P. Moies by the grantor, du r- 
ingh er lifetime, a s to constitute an absolute delivery thereof for the 
u se and benefit of the grantee. 

The material facts in the case are these: On May 9, 1899, Mary- 
Johnson made and executed a q uitclaim dee d of the premises referred 
to, to the r esponde nt , Marv A. Jo hnson, and le ft it with said Charles 
P. Moies, with direction that in case anything happened to her (she 
meaning thereby, as Moies understood it, that in case she should die), 
he sh ould then deliver the deed to her daughter, said M ary A John- 
son. _ -He did not understand, however, from the instructions given him, 
that the grantor intended by said acts to place the deed beyond her 
control, but, on the contrary, he understood that she retained the ri ght 
t o recall the deed at any time, and al so that she retained the right to 
s ell and dispose of the~property thereafterwards if she saw^ t. In 
short, the substance of Moies understanding, from the instructions 
given him, was t hat the deed was left with him subject to the contr ol 
o f the grantor during her life, and that in case of her dp ^th, without 
having d isposed of t he property, he was to deliver the deed to _the 
g rantee named therein . ^ 

The grantor continued to exercise dominion over said real estate 
up to the time of her death, which occurred on the 13th day of No- 
vember, 1901. She adv ertised it for sa le, and in other ways attempted 
to effect a sale thereof ; she pa id the taxes , colle cted the rent s, and 
pa id the int erest on the mortgage thereon, and generally treated the 
estate as her absolute^ property. After her death said deed was de- 
livered to the grantee by Moies, and by her caused t o be record ed in 
the registry of deeds in Pawtucket. And the complainants now seek by 
this bill t o have said deed set aside and declared void and of no effe ct, 
o n the ground that no ^livery thereof was ever effected by th e 
gj^ntor. 

In view of the facts aforesaid, we are of the opinion that said deed 
was ineffectual to pass any title to the estate. 

In order to c onvey title to real_esta te, it is necessar y that the de ed 
t hereof shall be^ deiivere3^o th e grantee . or to some on e for his us e. 
And the ordinary test of delivery if: Did the grantor by his acts or 
words, or both, in tend to dive st hims elf of the title to the estate de- 
s cribed in the d eed_ ^ If so, the deed is delivered. But if not, there 
is no delivery, and hence no title passes. See Am. & Eng. Ency. Law, 
vol. 9 (2d Ed.) 154-158; Brown v. Brown, 66 Me. 316. In^iXikJ^-Lo 



k«-owc7 J^ 



Ch. 2) EXECUTION OF DEEDS 315 

c onstitute a delivery, the grantor must absolntplv n ^^t t "^^'^^ the pos - 
session and control of the instrument. Younge v. Guilbeau, 3 Wall. 
636, 18 L. Ed. 262; Hawkes vTPike, 105 Mass. 562, 7 Am. Rep. 554. 

That a deed may be effectual to convey title, although delivered to 
a third person to hold until the grantor's death, and then to deliver 
it to the grantee, there can be no doubt. But i n order to make suc h 
a deliverv valid, the deed must be left with the depositary without an y 
r eservation on the part of th e gra ntor, either express or implied, of ^y\Jb y\jLAJL^^ 
th e tight to recall it or otherwise to control its use. Walter v. Way, 
170 111. 96, 48 N. E. 421 ; Foster v. Mansfield, 3 Mete. (Mass.) 412, 
37 Am. Dec. 154. In other words, in order to make a delivery of a 
deed valid when it is made to a third person for the benefit of the 
grantee, s uch delivery must be an absolute one on the part of the gran - 
tor; that is, he must divest hims elf of any right of future contro l 
t hereof . And if such control is retained by the grantor, no estate 
passes. 

The law relating to delivery of a deed is well stated in Prutsman 
v. Baker, 30 Wis. 644, 1 1 Am. Rep. 592, as follows : "To constitute de- 
livery good for any purpose, the grantor must divest himself of all 
power and dominion over the deed. To do this he must part w ith 
the possession of the deed and all right and autho rity to controMt, 
ekher finally an d forever, as w here it is given over to th e gr antee him - 
self, or to some person for him, which is called an absolute deliveiT i 
or otherwise he must part with all present or temporary right of posses- 
sion and control until the happening of some future event or the per- 
formance of some future condition, upon the happening or not hap- 
pening, or performance or non-performance of which, his right of 
possession may return and his dominion and power over the deed be 
restored; in which case the delivery is said to be contingent or con- 
ditional. An essential, characteristic, and indispensable feature -o f 
e very deliverv. whether absolute or conditional, is that therip must be 
a parting^ with the possession, and of tTle power and contr n j^nver t he 
Qeea Dv the grantor for the benefit of the grantee, at the time of de - 
liverx:. Porter v. Woodhouse, 59 Conn. 568 [22 Atl. 299, 13 L. R. A. 
64, 21 Am. St. Rep. 131] ; Baker v. Haskell, 47 N. H. 479 [93 Am. 
Dec. 455]." 

In the case at bar the evidence shows that while there yyas a partin g a ^ < /^ 
with the manual possession of the deed by the grantor, s he did no t -"T^ » ]_L/ 
p art with the control thereof j and hence a very essential element of a*^ X*»> >*^ 
delivery was lacking. aJ^-*-^ * 

Her intended disposition of the property was evidently of a testa- 
mentary character. "In case she died," as Moies testifies, "she wanted 
the property to go that way." Bjit an instrument which is intended t o 
o perate as a will, without being executed in accordance with the pro - 
visions of the statute relating thereto ( Ggn^JLaws 1896, R. I. c. 203), 
cannot be allowed to have the effect of a will. See Providence Insti- 




316 DERIVATIVE TITLES (Part 2 

tution for Savings v. Carpenter, 18 R. I. 287, 27 Atl. 337, and Coulter 
V. Shelmadine, 204 Pa. 120, 53 Atl. 638. 

For the reasons above given, the d eed in question must be set a side 
and declared null and void and of no eftecE Decree accordingly.^* 




MOORE v. TROTT. 

(Supreme Court of California, 1909. 156 Cal. 353, 104 Pac. 578, 134 Am. St. 

Rep. 131.) 

BivATTY, C. J. This is an ac tion to quiet title to certain lands for- 
m erly the property of Patrick Moore, deceased . The plaintiff is 
Moore's widow and administratrix, and the defendant, Mrs. George 
Trott, is the jerson named as grantee of said lands in two de eds which, 
y y _i m>-tfer-tg!TtTv<fay of ]\Tay7l9Q6, were maile d by Moore to P. O. T iet- 
^'^"'^z en. cashier o f the bank at Santa Maria, un der cover with the fo llow- 
i ng letter: 

"Arroyo Grande, ^lay 10th, 1905. 

"Mr. P. O. Tietzen — Dear Sir and Friend: I am sending you some 
deeds to lands that I have made to be delivered to the parties in case 
of my not returning from the California Hospital Los Angeles where 
I am going for to have an operation performed I also enclose you 
1000 shares of Pinal stock to be turned over to Annie Gray for the 
purpose of paying for her education at Berkley and would like very 
much if you would take charge of it for her and see that she gets it 
all right. T be deeds that I am sending you, vou will please lock th em 
i n your safe and in case I should d ie to immediately hand themto 

y^ i^f. Callerand v. Plot, 241 111. 120, 89 N. E. 266 (1909). 

C^n Belden v. Carter, 4 Day (Conn.) 66. 4 Am. Dec. 1S5 (1S09), deeds were hand- 
ed by ttie g-rantor to a tbird party with these instructions : "'l]ake_£h£ae_d£.eds, 
a nd Iveep tbem ; if I never call for tliem. deliver over nne to " Pamela, and the 
other to Is'oDie, alter my death ; if I call for them, deliver them up to nie?^ ^The 
grantor died without having called tor the deeds. The court held that there 
had been a valid delivery. Morse v. Slason, 13 Vt. 296 (lv<^41) ; Lippold v. Lip- 
pold, 112 Iowa, 134, S3 JSI. W. 809, 84 Am. St. Rep. 331 (1900) ; Henry v. Phil- 
lips, 105 Tex. 459, 151 S. W. 533 (1912), dictum, ace. But see Grillev v. Atkins, 
78 Conn. 380, 62 Atl. 337, 4 L. R. A. (N. S.) 816, 112 Am. St. Rep. 152 (1905). 

"In Shed v. Shed et al.. 3 N. H. 4 32 (1S26) where A. made an instrument pur- 
porting to convey to his two sous, B. and C, certain tracts of land, with a res- 
ervation of the use of the land to himself during his life, and delivered the 
instrument to D. to be delivered to B. and C. as his deed, after his decease, in 
ease he should not otherwise direct; and A. died without giving any further 
directions, it was held that the instrument was to be considered as the deed 
of A. from the hrst delivery, and that it might operate as a covenant by A. to 
stand seised of the land to his own use during life, remainder to B. and C. 
in fee. * * * T he decision in that case w ould a ppear to be in point for the 
dj ^endant, but_ w£_ ao not nnd any ^thih- ciiHk^ i n iim' h\\'i'\ Renorts,~a nfl fmrmn^ 
o^two m otners. which go to that extent . On the other hand, there are many 
alitnonties w'hich seem to us to establish a somewhat different rule." Cook 
v. Brown, 34 N. H. 400, 472 (1857), per Eastman, J. The' court overniled Shed 
V. Shed. See Brown v. Brown, 66 Me. 316 (1876) ; Felt v. Felt, 155 Mich. 237, 
lis N. W. 953 (1908), ace. 




Ch. 2) EXECUTION OF DEEDS 31T 

th g parties named telling them to put them of record as soo n as pos- 
sjble. 

"The other Pinal receipt for stock I think is in your bank if so send 
it to me to the California Hospital and I will endorse and return to you 
as security for my indebtedness to your bank. I am going to start to- 
day and I presume I will be there one or two days before they op- 
erate on me so if you mail that other certificate to me I will endorse 
and return it to you. You will please keep to yourself the names of 
the parties named in those deeds until you deliver them. After I pass 
in my checks and take flight for the other world from wdience none 
return. 

"Yours, Pat Moore." 

Immediately after mailing this letter Moore went to Los Angeles 
where the contemplated operation was performed. Towards the end 
of May he was able to return to his home at Arroyo Grande and to 
transact various business matters there and in San Luis Obispo, where 
he went to attend the June session of the board of supervisors, of 
which he was a member. B ut his health rapidly decline d and on 
t he _18th of Tune he died without ever having communicated to Tietz en 
an y other instruction, oral or written, than those contained m his le tter 
of May I Qth. On June 22d Tietzen delivered the two deeds in ques- 
tion to Mrs. Trott^ who filed them for record on the 23d. The sole 
question in the case is whe ther these deeds were so delivered _ as to 
p ass the title to the lands in controversy to the defendant, Mrs. Tro tt, 
or whether they remained inoperative for want of del ivery. 

It was found by the superior court "That at the tnne said Patrick 
Moore delivered said deeds to the said P. O. Tietzen as herein found 
he parted with all dominion over said deeds and each of them an d * ^y '-y 
reserved no right to recall or any wav control said deeds or either o f CA-y€/'^''V-C4A...<^ 
t hem. That said deeds were delivered absolutely. " Upon this and 
other sufficient findings judgment was entered in favor of the defend- 
ants, and plaintiff appeals from the order denying her motion for 
a new trial, her principal contention being that the finding here quoted 
is not sustained by the evidence. 

It has been thoroughly established as the law of this state by a se- 
ries of decisions commencing with Bury v. Young, 98 Cal. 446, 33 Pac. 
338, 35 Am. St. Rep. 186, t hat a valid transfer of a fee simple estat e, 
s ubject to a life estate in the grantor, may be effected by means of a 
dee d_ delivered _bv the grantor to a third party with instructions t o 
deliver it to the grantee at his, the grantor's death, provided alway s — 
and th is is the esse ntial c ondition of the validity of such transfers - 
that the d elivg|jjyg.^,a]^^' ; 0^u t g so that the deed is place d bevnnd the power 
ot the grantorto _x£call or control it in any even t. The finding of 
the superior court, it will be seen, fully supports its conclusion in favor 
of the validity of this transfer to Mrs. Trott and it only remains to 
inquire whether the evidence in the record sustains the finding. 

Moore at the time of his death was over seventy-one years of age. 





318 DERIVATIVE TITLES (Part 2 

His first wife had died childless and the plaintiff to whom he had been 
married about two years, was without issue. His relation to the de- 
f endant was that of an old and intimate friend of herself and her pa r- 
ents. Annie Gray was a member of his own household, and the other 
persons named as grantees of different portions of his lands in the 
deeds placed with Tietzen were intimate and valu ed friends . Of his 
long cherished design to make each of them a sharer in the estate he 
might leave at his death there can be no doubt, and it is equally clear 
from the evidence that he died in the belief that his purposes in this 
regard were fully effected by the deeds he had executed and the in- 
structions concerning them contained in his letter to Tietzen. ' jBut^ TT" 
is not enough that a man shall desire and intend th at a stranp ^er to h is 
blood shall have and enjoy his r eal property after his de ath , for unl ess 
he complies with the legal requisites of a validtransfer his wishes a nd 
i ntentions are unavailing and bis purpose is defeated . If, like Patrick 
Moore, he is unwilling to make a test ame nta_ry disEO,^on which, if 
unrevoked, will pass the estate at his deathT he m ust deliver his de ed 
a bsolutely and beyond his power to recall in any contingencv. t o a 
c ustodian whose duty it will be to keep it as long as the grantor liv es, 
and then to deliver it to the grantee . Were these deeds so delivered? 
/If Patrick Moore on his return from Los Angeles had demanded their 
/return could Tietzen have been justified in refusing to return them? 
I If he could not have refused, it matters not that no such demand was 
Imade. T he test of an effective delivery i n su''h r^=p° ■= ^Iip Qhcnliitf> 
'r elinquishment of the right of recall by the grantor in hit; instrnrtin ns 
to the person cha rged with the duty of making the delive ry. The 
transfer, or attempted transfer, of the estate being entirely gratuitous, 
the person named as grantee has no right beyond that which is volun- 
tarily conferred and the extent of that right is to be determined in 
every case where specific instructions are given by what passes between 
the grantor and his selected agent. The agent is of course bound to 
do what his instructions require him to do — no more, no less, and when, 
as in this case, his only instructions are in writing, the effect of the 
transaction depends upon the true construction of the writing. "" " It Is in 1 
other words a pure question of law wheth er there was an absolute de- I 

H^rp|-Y nr rtqt^ \ 

What, then, is the proper construction of Moore's letter? It seems 
very plain that Tietzen is authorized to deliver the deeds only "in case 
of my not returning from the California Hospital where I am going 
for an operation," and t he implication that if he does ^ retjj jn the deed s 
a re to be at his disposal is clear . But counsel ior respondent contends 
that a different intention is revealed by subsequent clauses of the let- 
ter. He relies greatly upon the direction to lock the deeds in Tietzen's 
safe "and in case I should die to immediately hand them to the parties," 
etc. We think that this, so far from being inconsistent with our con- 
struction of the first part of the letter, is only corroborative of itt I.fl 
Moore's intention had been to part with the deed absolutely he would 



Ch. 2) EXECUTION OF DEEDS 319 ^C 

/n ot have directed their delivery "in case I should die," for he was su re Y^^*''^ • ^/>^' 
\ Jio die at some time. He w ould m ore naturally have said when I die . Al^^^^^^ \ 
It is apparent that he was not without some hope of obtaining relief 
more or less permanent from the contemplated operation, and if he had 
returned from Los Angeles believing himself restored to health and 
had demanded a return of the deeds from Tietzen we can conceive 
of no ground upon which the demand could have been resisted. The 
concluding part of the letter to Tietzen, which counsel agree must be 
read without any period after the words "until you deliver them," nei- 
ther aids nor weakens our construction of the first part. The direction 
to "keep to yourself the names of the parties named in those deeds 
until you deliver them after I pass in my checks," etc., while they cer- 
tainly do consist with the idea of that death which is certain to come 
to every man, were entirely appropriate as referring exclusively to 
death as the result of the operation about to be performed. 

Aside from the letter to Tietzen which, as above stated, contained 
the only instructions ever given him as to the disposition of the deeds, 
it was shown by the testimony of numerous witnesses that Moore 
wished the persons named as grantees in his deeds to have the property 
therein described, and that his relations to those parties, and his con- 
dition and circumstances made them the reasonable and meritorious 
objects of his bounty. There is, moreover, no reason to^doubt that" 
he died believing that his deeds in the hands of Tietzen would be suffi- 
cient to accomplish his purpose, but his purpose is defeated by the fact 
that the delivery was not absolute. A technical but inflexible rule o f 
l aw governing the transfer of real property prevents his intention fr om 
being carried niit.^^ * * * 

Counsel for respondent urges with apparent seriousness the prop- 
osition that the deeds to Mrs. Trott having been found in her pos- 
session there is a presumption of delivery to her at their date, which 
is not rebutted by the evidence in the case. We think this presump- 
tion is not only overthrown by the evidence, but that the specific find- 
ings of the court show that t he only delivery was that made by Tietze n 
a fter Moore's, death . 

The or der of the superior coyt denying a new trial is reversed. ^^ _ , 

17 A portion of the opinion, in which a number of eases are reviewed, is omit- 
ted. // 

18 See s. c, 162 Cal. 268, 122 Pac. 462 (1912). ' ^ < d,^^ 
The owner of land, ill with consumption and believing herself on her death- ^^ ' 

bed, prepared a deed of said land and gave same to X., with instructions that, ^^ 

"if I recover, I want them back again ; and if I do not, you deliver to" the 
grantees. The grantor died six weeks later, and X. then turned the deed over 
to the grantees. Was there an effective delivery? Williams v. Daubner, 103 
Wis. 521, 79 N. W. 74S, 74 Am. St. Rep. 902 (1899) ; Seeley v, Curts, ISO Ala. 
445, 61 South. 807, Ann. Cas. 1915C, .381 (1913). 

The owner of land made a deed thereof and deposited same nith a trust com- 
pany, with written instructions "to hold it until a specified date, at which time 
to return it to the grantor if she is then living, and in the event of her death 
in the meantime to deliver it to the grantees." The grautdr died prior to the 



;320 DERIVATIVE TITLES (Part 2 

OWINGS V. FIRST NATIONAL BANK. 

(Supreme Court of Nebraska, 1914. 97 Neb. 257, 149 N. W. 777.) 

ReBsE, C. J. This is an action brought by plaintiff, I jenry Ovv ings, 
against the First National Bank of Johnson, Nebraska, to recoveii -the 
s um of $5,129.67, the proceeds of the sale of a tract of land, describe d 
i n the pleadi ngs , but the description of which need not be "stated he re. 
The land was formerly owned by Lizzie E. Schmidt, who was later 
married to Henry Owings. They went to the state of Colorado, and 
after their marriage there located in the city of Sterling, in that state. 
Mrs. Owings' liealth_failed, and it became apparent that she was in 
a precarious condition. O n the 28th day of June. 19 11, Mrs. Owings 
e xecuted a warranty