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

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THE LIBRARY

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

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)

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

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

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

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

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

486

661

670

789

467

8.^4

624

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

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

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

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

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

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

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

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.

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. ^'

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.

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.

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

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

,. 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

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-

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

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

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

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/

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.

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.

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

dl-t{,<^u^

Ir^

you --^^J— ^

140 ORIGINAL TITLE3 (Part 1

CHAPTER III

^0^ ACCRETION

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^.

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*^

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.

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

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

t/ jf7 ^ -^

176 DERIVATIVE TITLES (Part '2

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

,''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).

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

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.

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.

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.

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.

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- ^

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-

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.*^ ^

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,"-*^

(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**

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).

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.

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."

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.

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 b