U.S. <^ ^<^ l.«>sAn^le.,^i^.
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
GIFT OF
Harold E. Ives
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CASES ON THE LAW OF PROPERTY
VOL. I.
PERSONAL PROPERTY.
By Harry A. Bigelow, Professor of Law in the
University of Chicago.
VOL. IL
RIGHTS IN LAND.
F.y Harry A. Bigelow.
VOL. in.
TITLES TO REAL PROPERTY.
By Italph W. Aigler, Professor of Law in the
University of Michigan.
VOL. IV.
FUTURE INTERESTS.
By Albert M. Kales, of the Chicago Bar, former-
ly Professor of Law in Harvard University.
VOL. V.
WILLS, DESCENT, AND ADMINISTRA-
TION.
By George P. Costigan, Jr., Professor of Law in
Northwestern University.
Aig.Prop. (ii)
CASES ON THE LAW OF PROPERTY
VOLUME 3
TITLES TO REAL PROPERTY
ACQUIRED ORIGINALLY AND BY
TRANSFER INTER VIVOS
By RALPH W. AIGLER
PEOl- ESSOR OF LAW IN THE UNIVEBSITT OF MICHIGAN LAW SCHOOL
AMERICAN CASEBOOK SERIES
WILLIAM R. VANCE
GENERAL EDITOR
ST. PAUL
WEST PUBLISHING COMPANY
1916
X
/
COPTBIGHT, 1916
BY
WEST PUBLISHING COMPANY
(Aig.Prop.)
^~ C^^^-* -i'^ J
To Dean Henry M. Bates
in Appreciation of His Kindly Interest and Sympathy
this Book is Dedicated.
(v)<
THE AMERICAN CASEBOOK SERIES
Thk first of the American Casebook Series, Mikell's Cases on Crim-
inal Law, issued in December, 1908, contained in its preface an able
argument by Mr. James Brown Scott, the General Editor of the Se-
ries, in favor of the case method of law teaching. Until 1915 this
preface appeared in each of the volumes published in the series.
But the teachers of law have moved onward, and the argument
that was necessary in 1908 has now become needless. That such
is the case becomes strikingly manifest to one examining three im-
portant documents that fittingly mark the progress of legal education
in America. In 1893 the United States Bureau of Education pub-
lished a report on Legal Education prepared by the American Bar As-
sociation's Committee on Legal Education, and manifestly the work
of that Committee's accomplished chairman, William G. Hammond,
in which the three methods of teaching law then in vogue — that is, by
lectures, by text-book, and by selected cases — were described and com-
mented upon, but without indication of preference. The next report
of the Bureau of Education dealing with legal education, published
in 1914, contains these unequivocal statements:
"To-day the case method forms the principal, if not ithe exclusive,
method of teaching in nearly all of the stronger law schools of the
country. Lectures on special subjects are of course still delivered in
all law schools, and this doubtless always will be the case. But for
staple instruction in the important branches of common law the case
has proved itself as the best available material for use practically ev-
erywhere. * * * The case method is to-day the principal method
of instruction in the great majority of the schools of this country."
But the most striking evidence of the present stage of development
of legal instruction in American Law Schools is to be found in the
special report, made by Professor Redlich to the Carnegie Foundation
for the Advancement of Teaching, on "The Case Method in American
Law Schools." Professor Redlich, of the Faculty of Law in the Uni-
versity of Vienna, was brought to this country to make a special study
of methods of legal instruction in the United States from the stand-
point of one free from those prejudices necessarily engendered in
American teachers through their relation to the struggle for supremacy
so long, and at one time so vehemently, waged among the rival sys-
tems. From this masterly report, so replete with brilliant analysis
and discriminating comment, the following brief extracts are taken.
Speaking of the text-book method Professor Redlich says :
"The principles are laid down in the text-book and in the profes-
sor's lectures, ready made and neatly rounded, the predigested essence
(vii)
VIU PREFACE
of many Judicial decisions. The pupil has simply to accept them and
to inscribe them so far as possible in his memory. In this way the
scientific element of instruction is apparently excluded from the very
first. Even though the representatives of this instruction certainly do
regard law as a science — that is to say, as a system of thought, a group-
ing of concepts to be satisfactorily explained by historical research and
logical deduction — they are not willing to teach this science, but only
its results. The inevitable danger which appears to accompany this
method of teaching is that of developing a mechanical, superficial in-
struction in abstract maxims, instead of a genuine intellectual probing
of the subject-matter of the law, fulfilling the requirements of a
science."
Turning to the case method Professor Redlich comments as follows :
"It emphasizes the scientific character of legal thought ; it goes now
a step further, however, and demands that law, just because it is a
science, must also be taught scientifically. From this point of view it
very properly rejects the elementary school* type of existing legal edu-
cation as inadequate to develop the specific legal mode of thinking, as
inadequate to make the basis, the logical foundation, of the separate
legal principles really intelligible to the students. Consequently, as the
method was developed, it laid the main emphasis upon precisely that
aspect of the training which the older text-book school entirely neg-
lected— the training of the student in intellectual independence, in in-
dividual thinking, in digging out the principles through penetrating
analysis of the material found within separate cases ; material which
contains, all mixed in with one another, both the facts, as life creates
them, which generate the law, and at the same time rules of the law
itself, component parts of the general system. In the fact that, as has
been said before, it has actually accomplished this purpose, lies the
great success of the case method. For it really teaches the pupil to
think in the way that any practical lawyer — whether dealing with writ-
ten or with unwritten law — ought to and has to think. It prepares the
student in precisely the way which, in a country of case law, leads to
full powers of legal understanding and legal acumen; that is to say,
by making the law pupil familiar with the law through incessant prac-
tice in the analysis of law cases, where the concepts, principles, and
rules of Anglo-American law are recorded, not as dry abstractions, but
as cardinal realities in the inexhaustibly rich, ceaselessly fluctuating,
social and economic life of man. Thus in the modern American law
school professional practice is preceded by a genuine course of study,
the methods of which are perfectly adapted to the nature of the com-
mon law."
The general purpose and scope of this series were clearly stated in
the original announcement:
"The General Editor takes pleasure in announcing a series of schol-
arly casebooks, prepared with special reference to the needs and limi-
PREFACE IX
tations of the classroom, on the fundamental subjects of legal educa-
tion, which, through a judicious rearrangement of emphasis, shall pro-
vide adequate training combined with a thorough knowledge of the
general principles of the subject. The collection will develop the law
historically and scientifically; English cases will give the origin and
development of the law in England; American cases will trace its ex-
pansion and modification in America ; notes and annotations will sug-
gest phases omitted in the printed case. Cumulative references will be
avoided, for the footnote may not hope to rival the digest. The law
will thus be presented as an organic growth, and the necessary con-
nection between the past and the present will be obvious.
"The importance and difficulty of the subject as well as the time that
can properly be devoted to it will be carefully considered so that each
book may be completed within the time allotted to the particular sub-
ject. * * * If it be granted that all, or nearly all, the studies re-
quired for admission to the bar should be studied in course by every
student — and the soundness of this contention can hardly be seriously
doubted — it follows necessarily that the preparation and publication of
collections of cases exactly adapted to the purpose would be a genuine,
and by no means unimportant service to the cause of legal education.
And this result can best be obtained by the preparation of a systematic
series of casebooks constructed upon a uniform plan under the super-
vision of an editor in chief. * * *
"The following subjects are deemed essential in that a knowledge of
them (with the exception of International Law and General Juris-
prudence) is almost universally required for admission to the bar:
Administrative Eaw, Equity Pleading.
Agency. Evidence.
Bailments. Insurance.
Bills and Notes. International Law.
Carriers. Jurisprudence.
Code Pleading. Legal Ethics.
Common-Law Pleading. Partnership.
Conflict of Laws. Personal Property.
Constitutional Law. Public Corporations.
Contracts. Quasi Contracts.
Corporations. Real Property.
Criminal Law. Sales.
Criminal Procedure. Suretyship.
Damages. Torts.
Domestic Relations. Trusts.
Equity. Wills and Administration,
"International Law is included in the list of essentials from its in-
trinsic importance in our system of law. As its principles are simple
in comparison with municipal law, as their application is less technical,
X pul:facb
and as the cases are g-enerally interesting, it is thought that the book
may be larger than otherwise would be the case.
"The preparation of the casebooks has been intrusted to experienced
and well-known teachers of the various subjects included, so that the
experience of the classroom and the needs of the students will furnish
a sound basis of selection."
Since this announcement of the Series was first made there have
been published books on the following subjects:
Administrative Laiv. By Ernst Freund, Professor of Law in the
University of Chicago.
Agency. By Edwin C. Goddard, Professor of Law in the University
of Michigan.
Bills and Notes. By Howard L. Smith, Professor of Law in the Uni-
versity of Wisconsin, and Underbill Moore, Professor of Law in
Columbia University.
Carriers. By Frederick Green, Professor of Law in the University of
Illinois.
Conflict of Lazvs. By Ernest G. Lorenzen, Professor of Law in
Yale University.
Constitutional Law. By James Parker Hall, Dean of the Faculty of
Law in the University of Chicago.
Contracts. By Arthur L. Corbin, Professor of Law in Yale University.
Corporations. By Harry S. Richards, Dean of the Faculty of Law in
the University of Wisconsin.
Criminal Law. By William E. Mikcll, Dean of the Faculty of Law in
the University of Pennsylvania.
Criminal Procedure. By William E. Mikell, Pean of the Faculty of
Law in the University of Pennsylvania.
Damages. By Floyd R. Mechem, Professor of Law in the University
of Chicago, and Barry Gilbert, of the Chicago Bar.
Equity. By George H. Boke, Professor of Law in the University of
Oklahoma.
Evidence. By Edward W. Hinton, Professor of Law in the Universi-
ty of Chicago.
Insurance. By William R. Vance, Professor of Law in Yale Uni-
versity.
International Law. By James Brown Scott, Professor of International
Law in Johns Hopkins University.
Legal Ethics, Cases and Other Authorities on. By George P. Costigan,.
Jr., Professor of Law in Northwestern University.
Partnership. By Eugene A. Gilmore, Professor of Law in the Uni-
versity of Wisconsin,
PREFACB XI
Persons (including Marriage and Divorce). By Albert M. Kales, of
the Chicago Bar, and Chester G. \'ernier, Professor of Law in
Stanford University.
Pleading (Common Law). By Clarke B. Whittier, Professor of Law
in Stanford University, and Edmund M. Morgan, Professor of
Law in Yale University.
Property (Titles to Real Property). By Ralph W. Aigler, Professor
of Law in the University of Michigan.
Property (Personal). By Harry A. Bigelow, Professor of Law in the
University of Chicago.
Property (Rights in Land). By Harry A. Bigelow, Professor of
Law in the University of Chicago.
Property (Wills, Descent, and Administration). By George P. Costi-
gan, Jr., Professor of Law in Xorthwestern University.
Property (Future Interests). By Albert M. Kales, of the Chicago
Bar.
Quasi Contracts. By Edward S. Thurston, Professor of I^aw in Yale
University.
Sales. By Frederic C. Woodward, Professor of Law in the University
of Chicago.
Suretyship. By Crawford D. Hening, formerly Professor of Law
in the University of Pennsylvania.
Torts. By Charles M. Hepburn, Dean of the Faculty of Law in the
University of Indiana.
Trusts. By Thaddeus D. Kenneson, Professor of Law in the Univer-
sity of New York.
It is earnestly hoped and believed that the books thus far published
in this series, with the sincere purpose of furthering scientific training
in the law, have not been without their influence in bringing about a
fuller understanding and a wider use of the case method.
William R. Vance,
General Editor.
June, 1921,
AUTHOR'S PREFATORY NOTE
Many law teachers have felt that Titles should be the basis of the
beginning course in Property. Although this volume appears as num-
ber tliree in a series of casebooks covering the law of Property, it is
believed that the subject-matter of the volume, with possibly some
shifts in order of the topics, is such that it may well be used in that
way.
That most of the topics taken up in this volume are appropriately
considered under the head of Titles there cannot be much question.
A word of explanation as to the editor's plan may perhaps dispose of
any question that may arise as to why certain matters were included
here. It may be suggested, for instance, that the matter of Estates
should not be gone into to the extent to which it is herein considered.
It would be expected, however, that in a book on Titles there would
be a treatment of the important and troublesome matter of the extent
of the interest acquired or transferred. It has seemed wise not to
limit here the discussion of Estates to their creation, but to take up
the entire subject in the one connection and dispose of it, excluding,
of course, the detailed consideration of Future Estates and kindred
topics, treated elsewhere. In fact, throughout, the plan has been to
place a topic where primarily it would seem to belong, for pedagogic
or other reasons, and then dispose of it once for all.
In the treatment of Uses before the Statute of Uses the editor has
frankly abandoned the case method as being unsuited to the accom-
plishment of the desired end, and has printed a very brief statement,
which may serve as an introduction to a more complete discussion
by the instructor. The editor has vet to find a student who can gather
any coherent ideas as to Uses before the Statute from the fragmentary
extracts._from secondary authorities printed in volume 1 of Gray's
Cases., And this seems quite commonly to have been the experience
of other teachers of the law of Real Property.
The editor desires, however, upon this occasion, to express his ap-
preciation of and admiration for Gray's Cases on Property. Probably
no man in the United States had so large an influence upon our law
of Property as has Professor Gray, and the collection of cases which
bears his name has played no inconsiderable part in exerting that in-
fluence.
The editor acknowledges his indebtedness to Mr. Grover C. Gris-
more, Instructor in Law in the University of Michigan Law School,
for assistance in the preparation of this volume.
Ralph W. Aigler.
Ann Arbor, Mich., May 1, 1916.
(xiii)*
TABLE OF CONTENTS
PART I
Original Titles
CHAPTER I
Section PossBSSORT Titles Page
1. Seisin and Disseisin 1
Effects of Possession H
Lapse of Time W
Adverse Possession 43
Constructive Adverse Possession 81
6. Disabilities , i 91
CHAPTER II
Peescbiption .... .^5rf:i.'. .<V^. .-^vt/'v -"^^-f^ • ^'Pf-r^^v^ 9^
' CHAPTER III
Accretion 140
PART II
Derivative Titles
ch.apter i
Mode of Conveyance
1. At Common Law ■. 156
I. Feoffment 156
II. Fine 160
III, Common Recovery 160
IV. Lease 161
V. Exchange 161
VI. Partition 162
VII. Grant 162
VIIL Dedication 163
IX. Release 187
X. Confirmation IBS
XL Surrender 188
XII. Assignment 231
XIII. Defeasance 231
XIV. Devise 232
2. Under Statute of Uses 232
I. Uses Before Statute of Uses 232
11. Statute of Uses 236
III. Uses after Statute of Uses 239
Aig.Prop. (xv)
7t
XVI TABLE OF CONTENTS
Section Page
2. Under Statute of Uses (Continued)
(A) Uses Raised in Connection with Common Law Con-
veyance 239
(B) Uses Raised Independently of a Common Law Con-
veyance 247
(C) Limitations Upon the Operation of the Statute of Uses 261
3. Under Modern Statutes 268
CHAPTER II
Execution or Deeds
1. Siffiiiug 275
2. Sealing 275
3. Attestation ^ 279
4. Aclinowledgment 279
5. Delivery , 279
CHAPTER III
The Property Conveyed . w-Cf-^ c -^ / ^'^<- v^ J
1. Boundaries ' -294
2. Exceptions and Reservations 449
CHAPTER IV
Creation of Easements by Implication 466
CH.VPTER V
Estates Created
1. Estates in Fee Simple 547
2. Estates in Fee Tail 556
3. Life Estates 570
I. Conventional 570
II. Legal 579
(A) In Tail after Possibility of Issue Extinct 579
(B) Husband's Interest in Wife's Realty 5S0
(C) Wife's Interest in Husband's Realty 597
4. Estates for Years 628
5. Estates at Will and from Year to Year 634
6. Concurrent Estates 685
7. Reversions and Remainders 731
CHAPTER Vl
Covenants fob Title /?f7v/."ffaC^ 734
/?r7v/."^J,
CHAPTER VII
Estoppel by Deed 779
CHAPTER VIII
Peiobities
1. Fraudulent Conveyances , 810
2. Recording 826
I. In England 826
II. In United States 834
(A) Statutes 834
(B) Scope of Operation and Effect of Statutes 837
(C) Effectiveness of Recotd 914
TABLE OF CASES
[cases cited in footnotes are indicated by italics, where small capitals
abe used, the case is befekeed to in the text]
Page
Abbott V. Holway 268
Adams v. Gordon 529
Agency Co. v. Short 28
Allen V. Jaquish 191
Amos, In re 573
Anderson, In re 71
Andrew v. Pearce 746
Angus v. Dalton 116
Ann Arbor Fruit <& Vinegar Co. u
Ann Arbor R. Co 128
Anon. 195
Arbenz v. E'xley, Watkins & Co. . . 680
Armstrong v. Wolsey 241
Asher v. Wbitlock 11
Auer V. Pennsylvania 220
A VETiNE V. WnissoN 275
Ayer v. Philadelphia & B. Face
Brick Co 790
Bailey v. Agawam Nat. Bank . . . .
Bailey v. Carleton
Baker v. Mather
Baker v. Rice
Baker v. Snavely
Bangor House Proprietarj' v.
Brown
Banks v. Ogden
Barber v. Bailey
Barker v. Keete
Barloic v. Rhodes
Barlow v. Waimvright
Barnes v. Barnes
Bates V. Bates
Baxter v. Taylor
Bayley v. McCoy
Beardsley v. Knight
Beatty v. Kurtz
Beckicith's Case
Beddoe's Ex'r v. Wadsworth
Bedford v. Bacchus
Belden v. Carter
Bellamy v. Sahine
Bleivitt V. Boorum
Blight v. Schenck
Board v. Board
Bond V. O'Gara
Borland's Lessee v. Marshall
Boyd V. Slayback
Boynton v. Haggart.
Bradley v. Missouri Pac. R. Co.. .
Braythwayte v. Hitchcock
Brigham v. Smith
Bromley v. Stanley
Broughton v. Randall
Brown v. Alabaster
458
84
893
529
370
426
436
125
236
466
665
300
602
109
781
749
168
235
736
827
316
914
314
354
70
61
588
280
887
278
657
494
195
597
478
Page
Brown v. Brown 616
Broivn V. Cairns 221
Brown v. Fuller 511
Bryan v. Atwater 52
Btickworth v. TMrkell 595
Burkholder v. Markley 408
Burnett v. Burnett 305
Buss V. Dyer 518
Bussmeyer v. Jablonsky 521
Butler V. Butler 624
Butterworth v. Crawford 535
Calvert v. Aldrich 716
Campbell v. Thomas 357
Canby v. Porter 583
Carllee v. EUsberry 550
Carrier v. Price 573
Carter v, Barnard 26
Cassidy v. Sullivan 182
Caswell V. Districh 630
Catlin' V. Ware 622
Cheney v. Watkins 258
Chicago. & B. I. R. Co. v. Willard 436
Child v. Starr 423
Christmas v. Oliver 793
Cincinnati v. White 165
City of Battle Creek v. Goguac
Resort Ass'n 541
Clayton v. Blakey 66i
Collard v. Collard 236
Cook V. Brown 316
Cooke V. Kell 820
Coppy V. I. De B 466
Coudert v. Cohn 662
Cover V. James 549
Crenshaw v. Moore 016
Cressey v. Cressey 725
Crossley & Sons v. Lightowleb 483
Croxall V. Shererd 262
Curry v. Colburn 281
Curtis V. Galvin 641
Dabney v. Child 495
navies v. Bear 471
Davison ex dem. Bromley v. Stan-
ley 195
Dean v. Goddard 72
Dee V. King 455
Dodd V. W^itt 44ff
Doe V. Jesson 91
Doe d. Murrell v. Mihcard 194
Doe d. Newman v. Rushain 819
Doe d. Rigge v. Bell 661
Doe d. Robinson v. Allsop 834
Doe d. Souter v. Hull 68
Aiq.Pbop.— b
(xvii)
XVIU
TABLE OF CASES
Page
Doe d. Thomson v. Amey 660
Doe ex dem. Carter v. Barnard . . 26
Doe ex dem. Christmas v. Oliver 793
Dow ex dem. Garnons v. Knight. . 28S
Doe ex dem. Goody v. Cartec 24
Doe ex dem. Harlan v. Brown... 32
Doe ex dem. Lloyd v. Passingham 262
Doe ex dem. Otley v. Mianning. .. 812
Doe ex dem. Parker v. Gregory. . 66
Dorrell v. Collins 449
Dow V. Whit7iey 892
Downing v. Coatesville Borough. . 183
Driiry v. Holden 792
Dungan v. Kline 566
Edwards v. Bibb 603
Edicick V. Hawkes 655
Ega7i V. Horrigan 300
Egerton's Case 239
Ellwtt V. Murray 283
Ellis V. Kyger 60S
EUis V. Paige 665
Elston V. Piggott 703
Emerson v. Mooney 450
Everts v. Agnes 347
Ewing V. Nesbitt 560
Fancy v. Scott 452
Farley v. Palmer 362
First Universalist Soc. v. Boland 552
Fitch V. Bunch 360
Fitzgerald v. Lihhy 892
Flower v. Darby 670
Flynn v. Flynn 612
Ford v. Metropolitan R, Cos 477
Fortier v. Ballance 65
Foster v. Marshall 584
French v. Pearce 51
Frost V. Beekman 926
Frost V. Beekman 374
Fryer v. Fryer 295
Galley v. Ward 898
Garnons v. Knight 288
Geddes Coarse Salt Co. v. Ni-
agara, Lockport & Ontario Pow-
er Co 434
Gee V. Hatley 66
German Savings & Loan Co. v.
Gordon 529
Gifford V. Tarboroiigh 140
Gilliland V. Woodruff 81
Goldsborough v. Gable 075
Goody V. Carter 24
Gouch V. AVood 275
0ould V. Wagner 432
Grady v. McCorkle 620
Gray v. Kaufman Dairy & Ice
Cream Co 211
Green v. Wiseman 239
Grey & Edwards' Case 248
Griswold v. Branf ord 665
Page
Griswold v. Johnson 723
Plall V. Eaton 411
Hall V. Harris 362
Halsey v. McCormiek 145
Ilamerton v. Stead 197
Hannon v. Christopher 783
Hanson v. Johnson 68
Hardin v. Jordan 426
Hare v. Celey 629
Harlan v. Brown 32
Harris v. Woodard 39i
Havens v. Sea Shore Land Co.. .. 258
Haverhill Sav. Bank v. Griffin. . 4a3
Hawksland v. Gatchel 335
Herter v. Mullen 672
Hildreth v. Googins 495
Hillary v. Gay 638
Hi/)ie V. Dodd 834
Hoban v. Cable 402
Holbrook v. Finney 598
Holden v. Garrett 868
Holmes v. Beixingham 431
Htihbard v. Greeley 352
Hubbard v. Town 117
Hudson V. Alexander 248
Hughes V. Graves 21
Hull V. Sangamon River Drainage
Dist 361
Hunter's ^^ssee v. Durrell 588
Hurley v. Hurley 706
Ingram v. Morris 619
Ive's Case 195
Jackson v. Baird .' 709
Jackson ex dem. ' Gilliland v.
Woodruff 81
Jackson ex dem. Gouch v. Wood. . 275
Jackson ex dem. Hudson v. Alex-
ander 248
Jackson ex dem. McCrackin v.
Wright 780
Jarvis v. Aikens 801
Jefferys v. Bucknell 789
Johnson v. Johnson 314
Johnson v. Thomas 56
JoxES V. Smith 896
Jordan v. Chambers 797
Kay V. Oxley 466
Kelsey, Appeal of 722
Kennedy v. De Trafford 702
King V. Durkee-Atwood Co 677
King v. Leake 184
Kingdon v. IS'ottle 755, 757
Kirkpatrick v. Mathiot 706
Kister v. Reeser 452
Ladd V. Ladd 331
Lade v. Shepherd 163
Lamb v. Crosland 104
TABLE OF CASES
XIX
Langley v. "Hammond 466
Layton v. Field 657
Leach v. Jay 7
rjectmian v. Mills 128
Tx'e V. Richmond 344
Lego V. Medley 395
Lehigh Valley R. Co. v. McFarlan 132
Leighton v. Theed 636
Le Neve v. Le Neve 829
Leonard v. Leonard 139
Lerued v. Morrill 407
Lessee of White v. Sayre 728
Lewes v. Ridge 754
Letvis V. Cook 749
Liford's Case 18
Liquid Carbonic Co. v. Wallace. . . 527
Lloyd V. Passingham 262
London Freehold & Leasehold
Property Co. v. Suffield 336
Loomis V. Loomis 322
Lord Ward v. Lninley 190
Losey v. Simpson 843
LoiHngston v. St. Clair County . . . . 147
Low V. Elwell 652
Low V. Tibbetts 438
Lucy V. Levirniton 754
Lutwich V. Mitton 248
Lyon V. Reed 221
Lyons V. Philadelphia & R. R. Co. 669
McCrackin v. Wright 780
McCullock V. Holmes 548
McKenzie v. Gleason 440
McNeely v. Langan 36
Mallott V. Wilson 383
Mancuso v. Riddlemoser Co. of
Baltimore City 509
Mangold v. Barlow 929
Manning v. N. J. Short Line R. R.
Co 494
Markland v. Crump 770
Marshall v. Roberts 882
Masvn v. Wierengo's Estate 680
Mather v. Ministers of Tr-inity
Church 18
Matson v. Johnson 303
Mattocks V. Stearns 582
May v. Emerson 365
Maynard v. Esher ^ . . . 491
Mildmay's Case 251
Mitchell V. Mc Shane Lumber Co. 79
Mitchell V. Ryan 297
Mitchell V. Rydn 385
Mitchell V. Seipel 504
Mitchell V. Warner 759
MoELLE V. Sherwood 889
MOLLET V. Beyne 206
Montgomery v. Tate 580
Moore v. Bennett 892
Moore v. Trott 316
Morecock v. Dickins 827
Morehead v. Hall 401
Page
Morrison v. Marqnardt 494
Morse v. Curtis 852
MUREAY V. Earl of Stair 341
Murray v. Kerney 258 '
Murray v. Stair (Earl) 341
Miirrell v. Milward 194
Mustain v. Gardner 690
Mutual L. Ins. Co. v. Dake 937
Newman v. Rusham , . 819
Neicton v. Harland 639
Nicholas v. Chamberlain. ..... 479
Nichols V. Luce 495
Nickclls V. Atherstone 231
Noke V. Awder 734
NorcToss V. Oriffiths 426
Nordman v. Rau 909
Ogle V. City of Cumberland 184
Oldewurtel v. Wiesenfeld 217
Oliver V. Hedderly 706
Oliver v. Piatt 889
Oregon Laws 837
Otley V. Manning 812
Owings V. First Nat. Bank 320
Paine^s Case 595
Palmer v. Cook 549
Palmer v. Ekins 736
Palmer v. Fletcher 469
Parker v. Gregoi^y 60
Parrott v. Avery 28G
Parry v. Carwardcn 819
Patman v. Haiiund S'.M
Paul v. Carver 441
Pavey v. Vance 121
Pearson v. Spencer 477
Pegg v. Pegg 69S
Perkins v. Coleman 796
Perry v. Clissold 13
Peters v. Cartier 884
Pettingill v. Porter 495
Phillips v. Low 487
Pickering v. Pickering 720
Pico V. Columbet 711
Pinnington v. Galland 469
Polden V. Bastard 474
Pollen and Wife v. Brewer 639
Preble v. Mkaine Cent. R. Co 56
Pringle v. Dunn 916
Prouty V. Marshall 932
Pyer v. Carter 472
R. Co. V. Walker 455
Ralph V. Bayley 89
Rankin v. Miller 845'
Rathmell v. Shirey 331
Ray V. Hazeldine 491
Reader v. Purdy 645
Resser v. Carney 804
Rex V. Hudson 163
Rex V. Lloyd 164
XX
TABLE OF CASES
Ricard v. Williams
liich V. NafCziger
RicHAEDs V. Rose
Rigge V. Bell
Right d. Flower v. Darby
Right d. Jefferys v. Bucknell
Robbins v. Barnes
Robinson v. Allsop
Robinson v. Bates
RoMnsan v. Lowe
Roe ex dem. Wilkinson v. Ti-an
mer
RoUo V. Nelson
Rosse's Case
Ruggles V. Lawson
Saccone v. West End Trust Co. . .
St. Clair v. Williams
Salter v. Jonas
Sambach v. Dalton
Say V. Stoddard
Ftchaubvch v. Dillemuth
Schieffelin v. Carpenter
Sehotield v. Iowa Homestead Co.. .
fiehool Trustees v. Schroll
Schurtz V. Colvin
Scott V. Stone
Seibert v. Levan
Shannon v. Kinny
Sharington v. Strotton
Sherin v. Brackett
Shoemaker v. Walker
Short ridge v. Lamphigh
SiNcy V. Eolden
Sigourney v. Larned
Simmons v. Paterson
Simonson v. Wenzel
Sizer v. -Devereux
Sleeper v. Lacouia
Smiley v. Smiley
Smith V. Bnrtis
Smith V. Detroit L. & B. Ass'n. . .
Smith V. Garland
Smith's Ex'r v. Jones
Smith's Heirs v. Branch Bank at
Jlobile
Sohier v. CoflSn
Solberg v. Robinson
Souter V. Hull
Stanton v. Chamberlain
Starr v. Child
Steel V. Frick
Stein V. Hyman^Lewis Co
Steml>erger & Willard v. Ragland
Stone V. Duvall
Stonehill v. Hastings.'
Strong V. Whybark
Sturgeon v. Wing field
Sttirges V. Bridgman
SuFFiELD V. Brown
Page
43
39
486
661
670
789
467
8.^4
624
91
255
52Q
573
312
429
758
440
262
642
56
200
767
426
3.52
368
497
31
236
34
600
240
4.39
914
443
837
421
443
329
7
656
819
461
885
17
740
68
279
443
631
221
872
322
325
«77
796
114
483
Taunton v. Costae 637
Pape
Tefft V. Mhinson 858
Temple v. Benson 416
Terrell v. Andrew County 927
Thomas v. Cook 207
Tliomas v. Stone & Graham SSO
Thompson v. Baxter 575
Thompson v. Leach 375
Thomson v. Amey 660
Thorn v. Neusom 884
Thomburg v. Wiggins 692
Tichhorne v. Weir 24
Tisher v. Beckwith 283
Toothe V. Bryce 521
Trowbridge v. Ehrich 444
Turner v. Meymott 636
Tyrrel's Case 261
Ure V. Ure 266
Van Der Volgon v. Yates 241
Van Home v. Fonda 700
Van Rensselaer v. Kearney... 786
Volcanic Oil & Gas Co. v. Cluiplin 147
Wallace v. Fletcher 94
Wallis V. Doe ex dem. Smith's
Heirs 610
Walls V. Atcheson 209
Walter v. Greennood 720
Ward (Lord) v. Lumloy 190
Waters v. Philadelphia 174
Watson V. Watson 595
Webb V. Bird 112
Weeks v. New York, W. & B. R.
Co 538
Welch V. Sackett 384
West V. Weyev 715
Whalley v. Thompswi 406
Wheeldon v. Burrows 478
Wheeler v. Young 862
Wheelwright v. Wheelwright 308
\STiitaker r. Brown 449
Whitehead v. Clifford 206
Whitehead v. Ragan 405
Whiting v. Whiting 616
Whittier v. Montpclier Ice Co 443
Whyddon's Case 3.34
Wilkinson v. Tranmer 255
Williams v. Burrell 748
Williams v. Green 336
Williamson v. Brown 902
Wilson v. Hart 896
Wilson V. Taylor's Ex'rs 776
Wipfler V. Wipfler 342
Woods V. Garnett 854
Wormley v. Wormley 177
Wyman v. Brown 270
Yard v. Ford Ill
Youngblood v. Vastine 849
Zick V. London United Tramways,
Limited 197
CASES ON PROPERTY
TITLES TO REAL PROPERTY
PART I
ORIGINAL TITLES
CHAPTER I
POSSESSORY TITLES
SECTION 1.— SEISIN AND DISSEISIN
MAITLAND, THE MYSTERY OF SEISIN.
Any one who came to the study of Coke upon Littleton with some
store of modern legal ideas but no knowledge of English Real Prop-
erty Law would, it may be guessed, at some stage or another in his
course find himself saying words such as these: "Evidently the main
clue to this elaborate labyrinth is the notion 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-
ship of land, when 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 words seisin 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 the occupation of
land by one who has come to it otherwise than as tenant in villeinage,
tenant at_will^ tenant 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 substantially seisin is
possession, no 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 admit
him, or repels him on his return from 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 takes away from him altogether
the convenience of using it^or hinders him from using it conveniently,
quietly, 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
to the tenement, it will be another thing.^ because then there will be a,
trespass. 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 tj^e wrongful takincr ^^ny ,frnm fhp rp^il nwnPi' nt tus
actual 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 dispos-
session of the freeholdej. An entry, or perception of rents and profits,
under colour of an adverse Jitle, 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 estate in fee simple, as
against all but the real owner, and upon this title he might maintain
an action of ejectment 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 time which were periodically fixed by law,
revested the estate in him.
Disseisin of the tenant of a particular estate disseised or divested
all tlie estates in remainder 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 feoffment
to 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 formedon
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 the
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. Hence 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 relation back. He may therefore maintain an action
wa/ or other turning the tenant ont ^f ^i^ l-pnnrp anrl iisurpiDg his place
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 of
treenold.' 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 and
other 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 certain
event^: as by the seisin being cast by descent upon the heir of the
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 discon-
tinuance of the possession. On the other hand, the right of entry
might be kept alive against a descent cast by the process of continual
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 action 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 except lapse of time. But it must
be prosecuted within twelve years next after the accrual of the right,
unless the person entitled is under disability.
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 called Possessory Actions, and the
original writs by which the proceedings upon them are instituted, are
_caned 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 ultimate 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 the assize and all.jQlher _real actions have been since superseded 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 ejectment, 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
^ important 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 cast applies
only to a seisin^_commencing by wrong, and founded on an ouster of
the_true owner. Whatever may be the meaning of disseisin, in other
cases, its meaning, when applied to the subject before us, embraces 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 would 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.. Disseisin
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_ title ^
"3^ "of the true owner. It lay, then, with the plaintiff to show his entry
not congeabie, or to show a subsequent disseisin ; for he entered upon
vacant lands. We may infer title, from his ten years' possession, suffi-
cient to put the tenant upon his defence ; but we ought not to infer a
tortious entry, or an actual ouster, sufficient to bar every defence. This
would be a most rigorous conclusion, for it makes tlie ancestor or the
plaintiff" a disseisor ; it tolls the entry of the true owner ; it shuts out
his defence, and drives him to his writ of right, which final remedy is
now subject to the limitation of 1rv\'enty-five years.
The subsequent use of the land by Teller was no disseisin. The case
of Matheson v. Trot, 1 Leon. 209, is a strong authority on this point.
In that case, Henry Denny, the heir at law, when he came of age,
claimed and sued out livery, or restitution of lands, out of the hands
of the feudal lord, who had seised them as guardian for the infant.
He then leased them for years, reserving a rent, and for years received
the rents and profits from his tenant, and died so seised. This was
held not to be a requisite seisin to cast a descent, though the court ad-
mitted, that his lessee had gained a wrongful possession in fee. If here
was not, during all this time, an actual pedis possessio by the heir,
(though the case says, he once walked over the lands with his tenant,)
yet he held and enjoyed the lands by his tenant; and the case showed
conclusively, that he held them without title, for the lands had been
devised in fee to his younger brother. This case, I think is, in every
view, much stronger in favor of a descent cast, than the one before us.
As it was, therefore, ruled, at the trial, that a descent was cast, and
Ch. 1)
POSSESSORY TITLES
11
the evidence offered by way of defence, inadmissible, the court are of
opinion, that there ought to be a new trial, with costs to abide the event
of the suit.
New trial granted.*
SECTION 2.— EFFECTS OF POSSESSION
ASHER V. WHITLOCK.
(Court of Queen's Bench, 1865. L. R. 1 Q. B.
Ejectment for a cottage, garden, and premises, situate at Keysoe
Row, in the parish of Keysoe, in the county of Bedford; the writ
stated that the female plaintiff claimed possession as heir-at-law of
Mary Ann Williamson, an infant deceased.
The defendant defended for the whole.
At the trial before Cockburn, C. J., at the last Bedfordshire Spring
Assizes, the following facts appeared in evidence : About Michaelmas,
in the ye§x— LS42, Thomas Williamson enclosed from the waste of a
manor a piece of land by the side of the highway ; and in 1850 he en-
closed more land adjoining, and built a cottage; the whole being the
land as described and claimed in the writ. He occupied the whole till
his death 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 JMarv 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 femak plaintiff is the heir-at-law of the testator's daughter,
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 posses-
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-
lished that possession is ^ood against all the world except the person
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 principle that the_ disseisor's title was good against all but the
disseisee. It is too clear to admit of doubt tliat, if the devisor had been
turned out of possession he could_bavp_maintained 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 haA she lived she could have brought ejectment: .al-
though she died without asserting her right, the same right belongs to
her heir. Therefore I think the action can be maintained, inasmuch
as the defendant had not acquired any title by length of possession.
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 therefore 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 ihe
original possessor 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. The 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. In the common case of proving a claim to
landed estate under a will, proof of the will and of possession or re-
ceipt oi rents by the testator is alwavs prima facie sufficient, without
going on to show possession for more than twenty years. 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 Act, 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 material provisions of the Act.
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 vested in the Minister of
Public Instruction and his successors on behalf of the Crown^ for the
purposes of the Act, for an estate of inheritance in fee simple in pos-
session freed and discharged from 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 estate
and interest uponthe publication _of such notification as aforesaid js
taken to have been converted intoa claim for compensation in pursu-
ance of the provisions thereinafter contained, 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 ninety days_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 serve a notice in writing upon the
Minister and a like notice upon the Crown solicitor, "which notice," jt
is declared, "shall seTTorth the nature of the estate or interest of the
claimant 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
forward the same, together with his report thereon, to the Minister,
who shall thereupon (unless no prima facie case for compensation shall
have been disclosed) cause a valuation of the land. or of t)-)^ p';fai-p-nr
interest of the claimant therein to be rnade in accordance with the pro-
visions of this Act, 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 resumed for ajpublic school 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. Clissold died shortly afterwards, and his will
was proved on May 5, 1892.
In May, 1902, under an order of the Supreme Court, the respondents
who are the present 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
title thereto bv possession."
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
any adverse claim, and let it to diflFerent tenants and received the rents
for his own use and benefit, and duly paid all rates and taxes in respect
of the land which stood in his~riatTie in the rate-books of the municipal-
ity 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^ranted 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 prescribed
by the provisions of the Statute of Limitations applicable to the case,
hjs right is forever extinguished, amL th^ po^^pssnry owner arq^J^'P'^
an 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.
Their Lordships are of opinion that it is impossible tp say that no
prima 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 that compensation would be pavable to every pergon
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
diligent inquiry, cannot be found the Act contemplates payment of the
compensation into Court to be dealt with bv a Court of Equity.
It only remains for their Lordships to express their opinion that
the valuation to be made should be a valuation of the land as at the
date 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 dismissed, 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 from 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 claimed title by adverse possession.
There was evidence tending to show that John C. Parkinson was
in possession 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,
Coffin's agent called upon Parkinson's hpirc; anri desired them to leave
the 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 endeavored 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 notjiing passed by his deed, and the demandants
cannot recover." 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 passed no title. 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 claim title under 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 tenants in possession are the heirs of
Jolin C. Parkinson, who died in Tanuary. 1857. A few days after-
Aig.Peop. — 2
4
s^
18
ORIGINAL TITLES
(Part I
wards the agent of Coffin called upon them and desired them to leave
the premises. They refused to quit, and claimed title. Afterwards
Coffin himself called upon them and wanted them to leave the prem-
ises. They again refused, claiming title. He endeavored to buy them
off, and they refused his overtures. They were thus in possession of
the 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. If he had a right of entry, he mi^ht
have 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 an
action for possession in the name of their grantor.!. 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 degd
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 adverse occupation
. and holding him out. See Washb. Real Prop. (3d Ed.) bk. 3, c. 2, § 7.
Judgment for the tenants on the verdict.^
7 A., the paper title owner of certain lands, sues B. in an action of Jrover
for the conversion ol stone and gravel dug out of and taken from said lands.
On the trial it develops that B. has been 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).
Suppose it had >^^" ^i ^yhn ^^""^ tnirt^n thc> stone and gravel. Could A. have
sued hi)? in trespasg quare clausum f regit? See "Wheeler v. Hotchkiss, 10
Connr22o' (1834).
-A very interesting question is presented when the ousted owner recovers
ossession and sues to recover specifically 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, That in conveying a descent in a writ of
right^ none shall presume to declare of the seisin of his ancestor fur-
ther, or beyond the time of King Richard,..uncle 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, formcdon in remainder, and
formedon in reverfor, at any time hereafter to be sued or bought, of or
for any manors, lands, tenements or hereditaments, whereunto any
person or persons now hath or have any title, or cause to have or pur-
sue any such writ, shall__be sued and takeii ^vithin twejity years next
after the end of this present session of Parliament; and after the said
twenty years expired, no such person or persons, or any of their heirs,
shall have or maintain any such writ, of or for any of the said manors,
lands, tenements or hereditaments ; (2) and that all writs of formedon
in descender, formedon in remainder, and formedon in reverter, of any
manors, lands, tenements, or other hereditaments whatsoever, at any
time hereafter to be sued or brought by occasion or means of any title
or cause hereafter happening, shall be sued and taken within twenty
years next after the title and cause of action first descended or fallen,
and at no time after tlie said twenty years ; (3) and that no person or
persons that now hath any right or title of entry into any manors,
lands, tenements or hereditaments now held from him or them, shall
thereinto enter, but within twenty years next after the end of this
present session of Parliament, or within twenty years next after any
other title of entrv^ accrued : (4) and that no person or persons shall
20
ORIGINAL TITLES
(Part 1
C^nr^K i
4 -,»^ ^^^^^
-.^^-V-t-'*-^
at any time hereafter make any entry into any lands, tenements or
hereditaments, but within twenty years next after his or their right
or title which shall hereafter first descend or accrue to the same ; and
in default thereof, such persons so not entering, and their heirs, shall
be utterly excluded and disabled from such entry after to be made;
any former law or Statute to the contrary notwithstanding.
II. Provided nevertheless, That if any person or persons, that is or
shall be entitled to such writ or writs, or that hath or shall have silch
right or title of entry, be or shall be at the time of the said right or
title first descended, accrued, come or fallen, within the age of one and
twenty years, feme covert, non compos mentis, imprisoned or beyond
the seas, that then such person or persons, and his or their heir and
heirs, shall or may, notwithstanding the said twenty years be expired,
bring his action, or make his entry, as he might have done before this
Act ; (2) so as such person and persons, or his or their heir and heirs,
shall within ten years next after his and their full age, discoverture,
coming of sound mind, enlargement out of prison, or coming into this
realm, or death, take benefit of and sue forth the same, and at no time
after the said ten years.
HOW. ANN. ST. MICH. 1913, c. 383.
Sec. 1. After the thirty-first day of December, in the year of our
Lord eighteen hundred sixty-three, no person shall bring or maintain
any action for the recovery of any lands, or the possession thereof, or
make any entry thereupon, unless suclLaction is commenced or entry
made within the time herein limited therefor, after the right to make
such entry or to bring such action shall have first accrued to the plain-
tiff, or to some person through whom he claims, to-wit:
First. Within five years, where the defendant claims title to the land
in question, by or through some deed made upon a sale thereof by an
executor, administrator or guardian, or by a sheriff, or other proper
ministerial officer, under the order, judgment, decree or process of a
court, or legal tribunal of competent jurisdiction within this state, or
by a sheriff upon a mortgage foreclosure sale ; or through a devise in
any will which shall have been probated in this state for fifteen years,
during which period no suit in chancery has been brought to test the
validity of such devise : Provided, that in_cases where such fifteen year
period has already elapsed such rights of entry or action shall be barred
after two years from the passage hereof, or in case such right has not
accrued, then after two years from the accruing thereof ;
Second. Within ten years, where the defendant claims title under a
deed made by some officer of this state, or of the United States, au-
thorized to make deeds upon the sale of lands for taxes assessed and
levied within this State ;
Third. Within fifteen years in all other cases.
Ch. 1)
POSSESSORY TITLES
21
Sec. 5. If at the time when any right of entry, or of action, as
aforesaid, shall first accrue or have accrued, the person entitled to such
entry or action shall be, or shall have been, within the age of twenty-
one years, or a married woman, insane, or imprisoned, or absent from
the United States, unless within one of the British provinces of North
America, such person, or any one claiming from, by or under him,
may make such entry, or bring such action, at any time within five
years after such disability shall be or shall have been removed, al-
though the time limited therefor in the first section of this chapter may
have expired.
HUGHES v. GRAVES.
(Supreme Court of Vermont, 1867. 39 Vt. 359, 94 Am. Dec. 331.)
This cause was an act of trespass quare clausum fregit. 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 defendant filed exceptions 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 each 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 to j
occupy peaceably and adversely claiming it as their own for mnrp th-an j
fifteen years. In the fall of 1847 an intermediate grantor of the de-^
fendant, claims this strip of land, sawed the fence in two where the_^
south line of the defendant's lot would strike it. But the fence after'
two or three months was rebuilt by the plaintiff's grantor and the occu-
pation in them continued till March, 1861, as the fence was still stand-
f^-^'
-'A. /C-V
yl
22 ORIGINAL TITLES (Part 1
ing when the plaintiff took possession under his deed, and when the
defendant purchased his lot in April, 1862, he claimed it and in the
summer of 1862 erected a store which extended eastward within about
eight inches of the plaintiff's dwelling house and covered not only a
portion of the strip of land so enclosed by the Quentons taken from
the old highway and the plaintiff's lot, but also a small portion of land
included within the boundaries of the plaintiff's lot. None of the deeds
prior to the deed of Olive Kelsey to I. Davey, of March 23d, 1860, by
and through which the plaintiff claims title to his lot, in their bound-
aries included the piece of land enclosed by Quenton and taken from
said old highway, and which actually formed part of the door yard to
the plaintiff's house. If the court shall be of opinion that the plaintiff
takes nothing by Quenton's possessory title because the land so claimed
was not included in the boundaries of his deed, 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 mere prior possession, unless the defendant has
a right to the possession. It is then the defendant's right and not the
plaintiff's which we are required to examine. The defendant shows a
faultless chain of title on paper, but it turns out he does not own the
land. One Quenton acquired the ownership by fifteen years possession
adverse to the defendant's grantors. The defendant's chain of deeds
represents nothing in the disputed l&nd except what his grantors lost
and Quenton gained. If Quenton's title had been by deed from the
defendant or his grantors, it is clear the defendant could not lawfully
have disturbed the plaintiff's prior possession. Quenton had no deed,
but his adverse possession for the statutory period gave him an abso-
lute indefeasible title to the land against the whole world on which
he could either sue or defend as against the former owner. That being
the case is there sufficient virtue left in the defendant's paper title to
warrant him in disturbing the plaintiff's possession. Under the present
English statute of limitations it is settled there would not be. The case
would stand precisely as if the defendant or his grantors had conveyed
to Quenton. The plaintiff would be liable to be interrupted in his pos-
session only by Quenton or some person under him. Holmes v. New-
lands, 39 E. C. L. 48, (11 A. & E. 44.) In Jukes v. Sumner, 14 Mees.
& Welsby, 41, Parke, B., remarking upon the present English statute
3 and 4 W. IV, ch. 27, says the effect of the act is to make a parlia-
mentary conveyance of the land to the person in possession after the
period of twenty years has elapsed. The several English statutes, and
their supposed points of difference, are commented upon in 2 Smith's
Ch. 1) POSSESSORY TITLES 23
Lead. Cases, 469, 559, et passim, and the case Fenner v. Fisher, Cro.
Eliz. 288, is cited in Holmes v. Newlands, ubi supra, as an authority
under the previous statutes against the apphcation to these statutes of
the full extent of the rule applied to the statute of William IV.
Any extended discussion of these English statutes would be unprof-
itable here for our statute, though mainly borrowed at the outset from
the statute of James, was somewhat modified when transferred to Ver-
mont, and has been materially altered in form in passing through the
several revisions to which our laws have been subjected. It now pro- '^t^j^^^^v-JS^
vides after the section relating to actions that, "no person having right 'i^Cc-^K^.^^Cc
or title of entry into houses or lands shall thereinto enter but within
fifteen years next after such right of entry shall accrue." The first
section takes away the remedy, and the second the right. G. S. p. 442,
§.§ 1 and 2. The title is vested in the adverse holder for the statu-
tory period, or as is often said, "the adverse possession ripens into
title." As a natural consequence the former owner is divested of all
the new owner acquires. This interpretation giving to adverse pos-
session for fifteen years the effect of a conveyance best accords with
the other well settled doctrines upon the subject of limitations as ap-
plied to real property. A covenant to convey perfect title is satis- ,.
fied by conveying a title acquired under the statute. In this country,
as in England, an agreement made after the lapse of the statutory
period to waive the benefit of the statute is not eft'ective, but the title
remains in the party who has acquired it under the statute, notwith-
standing his waiver, until he conveys it back with all the solemnities
required in any deed of land. In language of the books, "by analog}'
to the statute of limitations we presume a grant of incorporeal rights^ -^
after adverse uses for fifteen years." It would certainly be an artifi- _ I
cial construction of the statute which would make it a mere bar to the -^ *
owner's right against the person only who occupied adversely. It re- -^ "pc^^
lates to the rights of the party to the land. It makes no reference to .x^^^A/f
persons.
In this case, if the plaintiff's enjoyment of the land subjects him
to an action or entry by Ouenton, on the ground that Quenton and not
the defendant is the true owner, it ought not at the same time so sub-
ject him to action or entry by the defendant, on the ground that the
defendant is the true owner of the land. We are satisfied that no title
remains in the defendant, and that under our statute, he has no right
to the possessioa. It has been held that a plaintiff in possession with-
out right could maintain trespass against even the true owner for a
disturbance, while the right of possession was in a third person by
lease from the owner. Phillips v. Kent & Miller, 23 N. J. Law, 155.
Here neither the right of possession nor the ownership was in the de-
fendant.
The plaintiff claims that upon a correct construction of the deeds he
has Quenton's title. This point we have not decided. The plaintiff's
l/'/f
u^
24 ORIGINAL TITLES (Part 1
prior possession will enable him to recover as against the defendant
whose grantors suffered Quenton to acquire the land by adverse pos-
session for the statutory, period. Judgment affirmed.*
1 —
DOE ex dem. GOODY v. CARTER.
(Court of Queen's Bench, 1847. 9 Q. B. 863.)
Ejectment for a cottage, garden, &c., in Essex. Demise, 8th Janu-
ary, 1845.
On the trial, before Coleridge, J., at the Essex Summer Assizes,
1845, it appeared that the defendant was the widow of John Carter,
who died in 1834, being then occupier of the premises, which he had
held, as after mentioned, for a period short of twenty-one years; and
the defendant had occupied thern ever snigg. 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 without
paying any rent._ The father afterwards mortgaged the whole, on 23d
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 leased to A. for 89 years. Shortly after the lease was
made, G. entered into possession and continued therein adversely 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 the defendant's husband John Carter
entered into possession of all the premises sought to be recovered, as
tenant at will to his tatlier, more than twenty-one years before the
bringing of this ejectment, 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 the conveyance to the father had no operation on the
tenancy 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
tenant by sufferance, 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 .djaw
the conclusion tliat a new tenancy between the father. and the son had
been created at any time within twenty years before the bringing of
this 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 action ; 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-
ises 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. The lessor of the plaintiff had occupied from
the time of her husband's death, until a short time before the present
action was brought 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 husband's
possession raised a presumption that he was seised in f ee^ that fee must
have descended on his child, and, of course, the lessor of the plaintiff
f rnust 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 con-
nect 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 the effect of the 34th section would probably be to givejthe
right to the possessor for twenty years, even against the party in wh o m
the 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-
session must be either by the same person or several persons claiming
one from the other, which 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 you
come 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 lessor of the plaintiff had estab-
lished her case, if she had shewn nothing but her own possession for
thirteen 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 of ^^^•'^
title, and, no other interest appearing in 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
against which the lessor of the plaintiff's possession for thirteen years
could 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 told the iurv at the 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 running
was never stopped, notwithstanding that the intruder entirely aban-
doned the land long before thp expiration of twenty years from Jjis
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 ; that if Meredith, through whose possession
the defendant claimed, abandoned the land in the year 1853, and after-
wards, until the detendant came there, no person was in possession o f
the land, still the statute continued to run as against the plaintiff: and
that the statute barred the plaintiff's ri^ht of action hergin.
The Supreme Court (Martin, C. J., Faucett and Windeyer, JJ.) af-
firmed this ruling.
The judgment of their Lordships was delivered by
Lord Macnaghten. On the 3rd of December, 1885, the appellants,
as plaintiffs, brought an action against the respondent as defendant, to
recover fifty acres of land situated in the district of Botany Bay, in the
county of Cumberland, in the colony of New South Wales.
The defencfi^was the Statute of Limitations (3 & 4 Will. IV, c. 27),
which was adopted in the Colony by the Act No. 3 of 1837.
The action camie on for trial in September, 1886, before the late
Chief Justice Martin and a jury.
11 See Christy v. Scott, 14 How. 282, 292, 14 L. Ed. 422 (1852), contra.
Ch.l)
POSSESSORY TITLES
29
For the present purpose the facts of the case may be stated very
shortly. The land in dispute was, until recently, waste open bush.
The plaintiffs at the trial proved a complete documentary title deduced
from a Crown grant 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 actual 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 continuous 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, and the right of the true owner to_
the land would not again arise without an entry by such true owner
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 verdict was found for the defendant.
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,
is in 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 departure 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 the patent of the commonw^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 twenty
years or upwards, John Shannon had been in habits of intimacy with
his brother Hugh Shannon, and was fully apprised of his claiming_and
sellino' said land ; the attorney for the defendant asked a witness wheth-
er said Hugh Shannon had not latterly become insolvent, avowing his
object to be to prove by that and other circumstances, a collusive de-
struction of a writing evidencing a transfer of said land, betwixt the
plaintiff and Hugh Shannon; to the asking and answering of which
question, the plaintiff" objected; but the court overruled the objection
and instructed the witness to answer the question, to which the plain-
tiff excepted.
Whether the court below erred in their decision of this point, is the
first question which is necessary to be determined. * * *
12 The part of the opinion relating to the first question is omitted.
32
ORIGINAL TITLES
(Part 1
The only other question. presented by the case is, whether the stat-
ute of Hmitation was a bar to tlie plaintiff's recovery. It appears that
there was a continual adverse possession for more than twenty years,
but that Hugh Shannon, who first took the possession of the land in
controversy, before he^ had remained in possession twenty years, sur-
rendered the possession to the defendants or those under whom they
held, in pursuance of a decree entered upon an award giving them the
land m virtue ot an adverse claim, and that they had not had the land
in possession twenty 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-
ing to the literal import of the statute, the plaintiff could only enter
upon the land within twenty 3^ears after his right of entry accrued, and,
consequently, an adverse possession for that length of time, will toll
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 of
itle be always adverse to that of the plaintiff, nor whether the posses-
sion be held by the same or a succession of individuals, provided the
possession be a continued and uninterrupted one.
Judgment must be affirmed with costs. ^'
N^
DOE ex dem. HARLAN v. BROWN.
(Supreme Court of Indiana, 1853. 4 Ind. 143.)
Error to the Fayette Circuit Court.
RoACHE, J. Ejectment^by the heirs of Joshua Harlan for a lot in
the town of Connersville. Verdict and judgment for the defendant.
Motion for a new trial overruled. The evidence is all set out in a bill
of exceptions.
The plaintiffs were admitted at the trial to be the heirs of Toshua
Harlan. They then gave in evidence a deed of conveyan.ce 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 twenty 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, claiming to be the owner of the lot,
leased 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 lot remained vacant
and unenclosed up to 1843, a period of not less than ten years ; but
during all that period Claypool continuously claimed, 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 in 1827. the lot was not
assessed to any one ; 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 in 1843,. the defendant, (Brown,)
went into possession of the lot, 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 that if it was necessary to add the possession of Brown
to that of Claypool. to make up the twenty years, he. the defendant,
rnust 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 ti-
tle adverse to that of the real owner, but that both such claim and pos-
session have been continuous and uninterrupted. And this continuity
must be kept unbroken 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, Brown could not make nut the
twenty years without connecting his possession with that of CInvpool,
by showing that he was in under him. 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. Neither one of them was in possession for a period
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
chasm 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 against 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 defendant gave no evidence of
any right or 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 the interruption, though but for a moment, the title of the real
owner draws to it the seizin or possession. Melvin v. Proprietors, etc.,
5 Mete. Olass.) 15, 38 Am. Dec. 384; Ha'ynes v. Boardman, 119 Mass.
414; McEntire v. Brown, 28 Ind. 347; Jackson v. Leonard, 9 Cow.
(N. Y.) 653 ; Wood, Lim. sec. 271 ; San Francisco v. Fulde, Z7 Cal. 349,
99 Am. Dec. 278; Crispen v. liannavan, 50 Mo. 536; Shuffleton v. Nel-
son, 2 Sawy. 540, Fed. Cas. No. 12,822; Ang. Lim. §§ 413, 414; Sedg.
6 W. Tr. Title Land, §§ 740, 745-747; Riggs v. Fuller, 54 Ala. 141.^*
14 Lessee of Potts v. Gilbert, 3 Wash. C. C. 475, Fed. Cas. No. 11,347 (1819);
Ely V. Brown, 183 111. 575, 5G N. E. 181 (1900); Sheldon v. Michiiian Cent.
R. Co., 161 Mich. 503, 126 N. W. 1056 (1910) ; Moore v. Collishaw, 10 Pa. 224
(1849) ; Illinois Steel Co. v. Paczocha, 139 Wis. 23, 119 N. W. 550 (1909), ace.
Lnder the statute in North Daliota successive adverse possessions could
noclje' taclced even thoufi;h there was privitv. Streeter Co. v, Fredrickson,
II N. D. 300, 91 N. W. G92"119a2);"~Tii"Souif!r' Carolina tacking is allowed be-
tween heir and ancestor, but not between grantee and grantor, Epperson v.
Stansill, 64 S, C. 485, 42 S. E, 426 (1902).
36 ORIGINAL TITLES (Part 1
Second. The privity spoken of exists between two successive holders
when the later takes under the earlier, as by descent, (for instance, a
widow under her husband, or a child under its parent,) or by will or
grant, or by a voluntary ^^ transfer of possession. Leonard v. Leon-
ard, '7 Allen (Mass.) 277; Hamilton v. Wright, 30 Iowa, 480; Jackson
V. Moore, 13 Johns. (N. Y.) 513, 7 Am. Dec. 398; McEntire v. Brown,
supra; Weber v. Anderson, 73 111. 439; Wood, Lim. ,§ 271 ; Sedg. &
W. Tr. Title Land, §§ 747, 748.
Third. While to operate as a bar, adverse possession must be con-
tinuous, continuity will not be interrupted by the possession, during
any part of its period, of one who occupies the premises as a tenant of
the alleged adverse possessor. In such cases the tenant's posgession is
jdiat of his landlorxL- San Francisco v. Fulde, supra; Rayner v. Lee,
20 Mich. 384 ; Sedg. & W. Tr. Title Land, § 747.
Fourth. Possession, to be adverse, so as to bar an owner's right of
action, must be actual, open^ continuous, hostile, exclusive, and accom-
panied by an intention to claim adversely,. Sedg. & W. Tr. Title Land^
sec. 731 et seq.
This is all which we deem it necessary to say in this case; for, as
there is to be a new trial, we forbear to comment upon the evidence.
Order reversed, and new trial awarded.
Tr
\
McNEELY et ux. v. LANGAN.
(Supreme Court of Ohio, 1871. 22 Ohio St. 32.)
Error to the Court of Common Pleas of Hamilton county, reserved
in the District Court.
The original action was brqug]itJ>xth6J?!lailltiffs_^. error to recover
a strip of ground three feet wide, fronting on Longworth street, in the
city of Cincinnati.
The defense relied on was the statute of limitations. The case was
submitted to the court upon the following agreed statement of facts :
Jane McNeely et al. v. Thomas Langan. No. 32,026. Hamilton
Common Pleas.
It is hereby agreed between the parties that Stephen Burrows, on the
1st day of January, 1842, leased 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. Langan. 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 true.
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 adversejposs^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 fregit 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 involved is nine feet wide at the south end, fifteen
feet wide at the north end, and extends from the south line of the north
half of the south-cast quarter of section 5 to the north line of said
tract. Appellant has title of record to the whole of the south-east
quarter of said section 5. Christian Naffziger owns tlie north half of
the south-west quarter of said section, and his son, Peter Naffziger, is
his tenant.- Before Christian Naffziger became the owner of said tract
the whole of the south-west quarter of said section 5, belonged to
Christian Schwarzentraub, who died in November, 1888. By virtue
of a decree in a partition suit between the heirs of Schwarzentraub the
north half of the south-west quarter of section 5 was sold to Christian
Naffziger on June 5, 1889, and a deed therefor executed to him by the
master in chancery. At the time of said sale Fred Schwarzentraub was
in possession of said eighty-acre tract as tenant, and the decree pro-
vided the purchaser should have the rents for the year 1889 and the
possession of the premises on March 1, 1890. While the strip of land
in controversy was a part of the eighty acres to which appellant had
paper title, it was in the enclosure with the north half of the south-
west quarter from 1885 until April, 1909, when appellant, without
leave of or notice to appellees, removed the south forty rods of fence
from the line Icnown in this record as the Oswald line, west to the line
the transfer is that the predecessor passes it to the successor by mutual con-
sent, as distinguished from the case where a possessor abandons possession
^nerally^ and another, finding the premises unoccupied enters without con-
tact or reTalion with the former. * * *" Dodge, J., in Illinois Steel Co.
V. Paczocha, supra.
J^
40 ORIGINAL TITLES (Part 1
of the commission survey established in March, 1909. The fence was
built on the Oswald line as early as 1885, and thereafter Schwarzen-
traub and his heirs had possession of and cultivated all the land on the
west side of the fence until the sale to Christian Naftziger, and from
March 1, 1890, he has continued in possession and cultivated all the
land on the west side of the fence. Appellant and his predecessor in
title have during- all that time possessed and cultivated the land on the
east side of the fence.
It will be seen Christian Naffziger himself had not been in possession
of_the disputed premises quite twenty years, but if the possession of
Schwarzentraub be tacked to his, the period of adverse possession is
more than twenty years. The proposition principally relied upon by
appellant for reversal of the judgment is that there was no privity be-
tween Christian Schwarzentraub and Christian Nafifziger, and there-
fore the possession of the former cannot be tacked to the latter. The
rule of law as laid down by the decisions of this and other States is,
that jprivity 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 only 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 unoccupied, 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 action 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 administrator 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 tenant 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 to 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 case^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 is 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 presumption of
a grant from them is therefore, in this view, also, affected with an in-
trinsic infirmity.
in addition to all this, William never .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 title
being^ evidenced only by possession, it must be limited 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-estate 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, his 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 of
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 the 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_against the
creditors of William Dudley^ neither Joseph nor _the^ tenant had
gained any title tq^the land in controversy by possession^
For these reasons the judgment of the circuit court must be j;e-
_yersedj 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 father 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 possession 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).
Whether the possession \yas under a cTnim of 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.
There is no reouirement that th<^ oinin^: nP fiflp be bona flde. 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 adverse 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 believing and claiming it to be hls^wn, dqes^ tlius enter^
and possess. 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 been better informed, would not
have entered on the 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 an 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 principle. 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_dividing Hne^ be-
tween adjoining .owner s..
The case is stated in the opinion.
A principal issue between tlie parties was that of adverse 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., by mistake, inclosed seventeen acres of B.'s
land, and occnpipd samp for thp nprjori of the f^t'^^"^^' "f limitatlOB^." In
ejectment by B. against A. to recover possession of the seventeen acres, A.
claimed bv advey;-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 material? 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^^ "bad never want-
ed more than tbe will gav^ Her, Put sne knew the will gave her what"she
luid Inclosed," 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 provisional, and the possession is not adverse. Dow v. Mc-
Kenney, 64 Me. 138, is an exceTTeht illustration of this rule. In that
case a fence had been maintained on a wrong divisional line by mistake,
and it was found by the court as a matter of fact that "none of the
ih
^
60 OEIGINAL TITLES (Part 1
parties had any idea of maintaining any line but the true divisional
line and that they occupied according to the fence only because they
supposed it was on the true divisional line between them." Upon this
finding it was held as a matter of law that such possession was not ad-
verse to the right of the true owner. The unconditional intent to
claim title to the extent of the occupancy was wanting. See, also,
Worcester v. Lord, 56 Me. 266, 96 Am. Dec. 456.
Thus it is perceived that possession by mistake as above described
may or may not work a disseizin. Itjsjnot merely the existence, o.f_a_
mistake, but the presence or_absence of the requisite intention to claim
title that fixes the character of the entry and determines the question
of disseizin, ^he two rules are expressly recognized and carefully dis-
tinguished in our recent decisions. The distinction between them is
neither subtle, recondite or refined, but simple, practical and substan-
tial. It involves sources of evidence and means of proof no more
difficult or complex than many other inquiries of a similar character
constantly arising in our courts.
The conclusions of fact which are fairly warranted by the evidence
leave no room for doubt that the case at bar falls within the principle
last stated. It has already been seen that, prior to 1889, both parties
were ignorant of the fact that the fence erected by the plaintiff in
"1864 or 1866" was not on the true line. The plaintiff, Israel Preble,
himself testifies that after he moved the fence he had always regarded
it as the true line ; that he had occupied the land up to the fence upon
the supposition and belief that it was the true line and that he had so
occupied it because he thought it was his own land. This testimony,
viewed in the light of the circumstances and situation of the parties,
emphatically negatives the idea that during this time the plaintiff had
any intention to claim title to land which did not belong to him. We
are warranted in believing that it would do injustice to the plaintiff
himself, as well as violence to all the probabilities in the case, to as-
sume that immediately after the plaintiff had conveyed the land to the
defendant for a satisfactory consideration, he formed the intention
of depriving the company of a portion of the same land by disseizin in
case the fence should not prove to be on the true line.
The conclusion is irresistible that the plaintiff held possession of the
locus by mistake in ignorance of the true line, with an intention to
claim title only on condition that the fence was on the true line. His
possession was, therefore, not adverse to the true owner, and cannot
prevail against the valid record title of the defendant. JLudgment for
the defendant.-''
Peters, C. J., Walton, Virgin and Haskell, JJ., concurred. Em-
ery, T., did not concur. , , ,
20 See Richardson v. Watts, 94 Me. 476/487, 48 Atl. ISO (1901) ; Doolittle
V. Bailey, S."> Ii)\va. .^98, 52 N. W. 337 (1892) (but see Grube v. Wells, 3-1
Iowa, 148 [1871]) ; JNIiller v. Mills County, 111 Iowa, 654, 82 N. W. 1038 (190O) ^
Ch. 1) POSSESSORY TITLES 61"
BOND V. O'GARA.
(Supreme Judicial Court of Massachusetts, 1900. 177 Mass. 139, 58 N. E. 275,
83 Am. St. Rep. 265.)
Writ of entry, to recover a tract of land situated in Leicester. Plea,
general issue. Trial in the Superior Court, before Gaskill, J., who
allowed a bill of exceptions, in substance as follows.
The demandant 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, deceased,, 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 open and continuous and exclusive, and the principal question in r""^
controversy was whether the occupation was under a claim of right or
under a license 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 judge 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 that 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 plain. "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, enlarge 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
except 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.)
Forcible detainer, 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 verdict
was again rendered in favor . ofjhe 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, and 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 strange jf.whjlejiis title was 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 possessjon_from being_ wron^;:_
ful, from the very hour when his interest expired by his wife's death.
It is clear that he might have been immediately 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 action 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 crainied to be the eldest
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 is an^ action ^f_ejectment^ brought by;Jhe ap-
pellants, as, heirg-at-law of Catherine 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 that Statute, passed in 1833, the
doctrine of adverse possession was .virtually^aBoIished, and by it pos-
and John Souter iniripfl iri q p/^r^-■~<:^,rqJ^r,p pf {-i^^ nrpmisps to Hnll^ wliri j^nnk
nnsspmsion nnfL-pmriinprl nnr1i^f]]rl)P(1 Hu-ipin till 1.S14^ ^vlleD he Tlio'd, leaving
a_y(^^\. whprehv he "devised the nieiuises to defeudauts. Jn tact wniclier
Souter was the eldest sou and heir at law of Henry Souter, whom he sur-
vived. In ISIO. AV^hicher made his will, wherebv he devised all his realty
to trustees AVhicher tSouter diecL sliortiv after makiug lus w_iil. in 1816
tEe piamtin: as lessee of the said trustees commenced an acfiou of eiject-
ment against the cietendants to recover possession, jt was held thafilie
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 the curtesy, be-
causejii.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^
clainiingtit: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 under 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 plaintiff was entitled to recover.
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 under it^ but invalid so far as
regards the interests pf those in remainder^who claim under, th^ same
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 the 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 true^ 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.
On the interesting question as between the life tenant and the remainder-
manT^r lliusu claiming 'under them, the rights of the true owner aamut^tlij
being oarred oy rne aaverse 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 affirmed. 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 plainlifi^. Alfred J. Dean, brought this action September 2, 1891,
under G. S. 1878, ch. 75, § 2, to determine the adverse claims of God-
dard, and all other persons or parties unknown claimmg any right,
title, estate lien or interest in the real estate described in the opmion.
Goddard 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. The Court foujid plaintiff to be sole owner
in fee and in_possession of the lot and jhat he and his_grantors and
predecessors in interest had been in open, continuous, exclusive and
adverse possession thereof, with color of title and paying taxes tHere-
on, for a period of twenty years and ordered judgment for plaintiff
as prayed 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 adversely 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 fault 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 upon 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 esjopped 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 had 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 adverse, 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 hostile. 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 nearly ^5,000 taxes upon the premises. Payment of taxes
showg 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 jiiere 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_implements connected with such lum-
ber business used upon the premises, would indicate that some one
was exercising 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 possession of land, snnpo^iing it belonged to the United
SJates, and intending to ac(^T1it'e same unaer the United Stntes i.nnrt Jaws.
In 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 that he had lived on the land in question (p*^'
since 1889 and had been asserting claim to it since that time. 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
that 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 that admission was not conclusive against him in fa-^^^tlr
vor 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 an
estoppel 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 was.
"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-
sons. * * * But this rule is confined in its operation to the parties .
to the written instrument. When 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
neither party is estopped from contradicting it, or from proving facts *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 that the mere acknowledgrnpn^- r,f Htip jn a
third party did not preclude the defendant^; from claiming- that their
possession 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
plaintiff's adverse holding was interrupted on the 4fh dny nf ^Tay,
1898, while some of it tended to prove that the plaintiffs' adverseJaoId-
ing was not terminated or interrupted bv that incident. 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 judgment 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 pos-
sessiou 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 effect
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 possession
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
to X.. resei'ving the minerals. X. went into possession ~of the pu-TtiPi;^, nnd
continued therein until the tull running of the sfntute nf 11j;|^^|;ations'. _^n
g
,. meantime no nnp wfj? nnPTj]_fni<r/ti]p minpv^^ j; fh^r.^ f.r.nvpYp|^] j-tjp min-
'als to P.. who si^f^ to nnipt fiMe._ What result? Moore v. Empire Land
''c, 181 lla.'Wi, 61 isouth. 940 (1913) .
Ch, 1) POSSESSORY TITLES BI-
SECTION 5.— CONSTRUCTIVE ADVERSE POSSESSION
JACKSON ex dem. GILLILAND v. WOODRUFF.
(Supreme Court of New York, 1S23. 1 Cow. 276, 13 Am. Dec. 525.)
Ejectment, for 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. Jus-
tice Woodworth. at the Clinton Circuit. June, 1821. Defendant relied
upon plaintiff's claim being barred by the Statute of Limitations,
Woodworth, J.-" ^ ^ ^ The remaining question is — ^have the
defendants made out an adverse 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, in 1797; that_he. and Nathaniel Piatt, claimed the whole prop-
ertv. while it was in woods. The validity of this claim will next be
considered.
In September. 1794. Z. Piatt executed a quit-claim deed to Nathan-
iel 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 livp'^, nn the n^^p.
it will be seen, that a line, only, is given. No land is includ_ed: coa-
sequently, the deed is a numty, ma'smuch as nothing is granted. The >->v
question, then, is, whether "a^cTaiiTi Of ' title, under such an Tristrument. /-^ j
and an actual occupancy of part, can constitute a good adverse posses-/ ^ /
sion, beyond the parcel so occupied. \.S^
2 9 The statement of facts is abbreviated, and a portion of the opinion
omitted.
Aig.Pkop. — 6
i;
82 ORIGINAL TITLES (Part 1
It is well settled, that a continued possession, for 20 years, under
pretence or claim of right, ripens into a right of possession, which
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 actual
occupancy, a pedis possessio. which is definite, positive and 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 doubt-
that actual occupancy, and a claim of title, whether such claim be by
deed or Otherwise,'' constitute a valid adverse possession^ to that ex-
tent. But, when a party claims to hold, adversely, a lot of land, by
proving actual occupancy of a part only^_ his claini must be under a
deed 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. Color of title, under a deed, and occupancy of part, is suffi-
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 made.
must, in the description, include the premises. If the title is bad, it
is of no moment ; but_if no^aixds jire^escribec;!, nothino- can pass.
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 0 "The courts have concurred, it is believed, without an exception, in de-
fining '59l2£9^ title' to be that which in appearance Is title, but which in
iieality ?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
of adverse possession^ applied to a farm, or sing^le lot of land, is, in
itself, reasonable and ji^st. 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
little danger that a possession of twenty year'; will he matured 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, [that a small possession, taken under the deed to N. Piatt,
strument voifl on its face. GeBerally, where thp Inst.rnment. though void on
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. Statutes of limitations nnt nncnmmonly nrnviflp fnr
a different pprinri ^here there is adverse possession under color of title.
T'he state statutes should De consuiiea: ~
■84
ORIGINAL TITLES
(Part 1
cannot, under any circumstances, be a valid possession of the whole
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 entitled ^^ jurlprmpnt, fpr_anjin-
divided fourth part of the prernisgiT
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
four square rods of land, situated immediately gnnt]-] ^f ^r\c\ adjninlnpr
th^ 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 conveyed to Ampf^ To'^'^^" hv
Moses P. Payson, by two several, deeds, executed on the 27th of
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 three tracts of land to his
brother, Solomon Town, and in April, 1^1^, Solomon Town re-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 sev-
eral tracts. g;-iving- separate descriptions of each tract, to Ebenezer
Carleton. _and subsequently Carleton's title was conveyed to these
Solc^mon Town, in Tune 1830. conveved the demanded premises to
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 the house lot named in his
deed, and lived on and occupied the same for'many years, until it was
conveyed to the defendant^ E. Carleton. Jr.
In 1821, Ebenezer Carleton 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 and
undistQrbed possession, by themselves and their grantor, for a period
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 contended, by the defendants' rnnnsel that Ebenezer Carleton
having entered upon the house lot, claiming title to and occupying the
same, such entry extended tn the rnnti^nnns tmrtc Hpsrn'hpr^ I'n fhf^
same deed._and that entry and occupation of one of the tracts extended
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 court instructed the jury that an entry upon, and omipatinn 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 — that such possession might be acquired
by the laying of lumber upon said tract, or otherwise occupying it as
a place of deposit for farming utensils, &c., but that such possession
must be an open, ^visible possession, such as would give reasonable no-
tice of such adverse possession, to the owner.
86 ORIGINAL TITLES (Part 1
A verdict was rendered for the plaintiff, and the defendants moved
to set the same aside, for misdirection.
Parker, C. J. The genera[ 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 constructive 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 have 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, that the entrv anri pn<;c;p<;c;inn of the party
is notice to the owner of a claim asserted to the land: that the limits
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 wpH b"" prp<^nmpd
to have made some jQ-rant or convevance. co-extensive with the limits
of the claim set up ; or that, after such lapse of time, a possession un-
der 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 show actna] Irnnw1pr1crp_r>f
thej]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 presumption of
notice adse-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, jf the occupation is not oi.
a character to indicate a claim which may be co-extensive witli the.,
limits of tlic deed, llien the principle that the party is presumed to
^nter adversely according to his title, has no sound application, and
the adverse 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 title
beyond the actual occupation, could arise respecting other lots than
that of which the party was in possession. 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.
If the possession was not of a character to indicate ownership, and
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 posses-
sion that the grantee could maintain trespass against any person who
did not show a better right, (that is, a title, or prior possession,) there
is nothmg in the nature of it which can give it the character of a dis-
v
88 ORIGINAL, TITLES (Part 1
seizin, or possession adverse to the true owner, so as to bind him. JEox
that purpose, there must beactualoo^s^OiL of some portion oMhe
land of such owner, and that of a nature to give notice of an adverse
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 different
owners, an entry into one can in no way operate as a disseizin in rela-
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, what entryjnto the 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.
Ebenezer Carleton. to whom the convevance was made in 1815.J3iade
no entry or use of the lot up tn 1821, except bv Ipyi^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 so far as the laying of lumber on the lot was concerned,
this was no more than Carleton, and divers other persons, had been
in the habit of doino- hefor^, and thf|<- nfhpr<; rnntiTinff] to do the same
afterwards. Those acts, prior to 1815, were done by him, and otliers.
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 after
x/ . a _ deed of other lands, by a person having good title to thn-^e lands
could not operate as any notice to the owner of this tract, that a deed
had been made 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 on
to the land, that any entry was made upon it by Carleton, from which
Solomon Town, with knowledge of the entry, should have understood
that 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.)
Trespass for breaking and entering plaintiff's close, 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
deed 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 cornmenced clearing ten acres of said lot : that in the summer
of that year he chopped down the trees growinp;' on about three acres
of the land, and that defendant, in January, 1838. entered upon the lot
arid cut down and carried away a spruce tree.
The defend ai^t.^ on his part, gave in evidence a deed of the lot in
question, together with two other lots of land lying in Warren, from
one Daniel Spencer to Araunah Spear, dated July 18th, 1836, and re-
corded in August, 1836, and introduced testimony tending to prove
that {^ppar. immediately after the recording of his deed and in the same
month, commenced choj)ping on__said_lot, and cut down the timber
growing 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 plaintiff then introduced testimony tending to prove that the
land 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
entitled to recover against the defendant^ if he y^as a mere stranger,
aifd did not act by the direction or consent of Spear^ although, in fact.
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 verdict for the plaintiff. 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 evidence
was given to the jury tending to prove the defendant's acts tn have
been i-.nnp 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 any
part of the lot is subsequent to the possession of Spear, and it does not
appear that the alleged trespass of the defendant was committed 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.
It is, then, clear that the plaintiffs could not maintain this action
agamst Spear, and can he against a stranger.^ .We thmk jiot. 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 Spear, the latter has^fhe better title, tha^is,
the first available possession of that^art of the Idf'wiiere the trespass
was committed, and all ac^jof the plaintiff there~woHId 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 clause_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
"death" in that clause must mean and refer to the death of the person
to whom 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 under the disability. Here more than 10 years had
elapsed after the death of the brother before this ejectment was
brought 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, and set 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 owners 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 owners of the gristmill, and that said Kelso, at such
times, sometimes fulled his cloth in the night, when the gristmill was
not in operation, and sometimes took his cloth to be fulled at mills in
other towns.
The evidence also tended to prove that the owners of the gristmill
also claimed that the gristmill, as such, had a prior right to the use of
the water, when necessary, before any other mill or machinery on the
dam, and it did not appear that this right was denied or disputed by
Kelso, or his heirs or representatives.
It appeared that at Kelso's decease his children were minors, and
they so continued, except the eldest, for a short time, until their inter-
est in the fulling mill and lot was sold by the eldest son, and by the
guardian of the others, by license of the court of probate.
The fulling mill was leased by the administrator of Kelso's estate
for two years, fill 18Z4, and by the guardian of the children for two
years more, to 1826, in March or April. These leases conveyed the
fulling mill and water privilege for the clothing business, "except when
there was not sufficient water for the gristmill," and it appeared that
during those leases, the owners of the gristmill, when the water was
96 ORIGINAL TITLES (Part 1
low, drew all the water, and the gates of the fulling mill were shut
down at such times.
A witness for the plaintiff testified tliat he was a referee with two
others, now deceased, to settle a claim made by A. Dodge against the
estate of Kelso, for compensation for the use of the water by the full-
ing mill. The parties stated to them that the owners of the gristmill
had built the dam, and had done all that had been done to keep it in
repair; that Kelso came in under an agreement to pay a reasonable
compensation for the use of the water, though it had never been agreed
what that compensation should be, and that Kelso had used the water
for a number of years under that agreement; that the most of the year
there was water enough for both, and when there was not water enough
for both, the gristmill had the preference, and when the water was low,
was to have all the water. The question submitted to them was, what
the estate of Kelso should pay towards the expense of supporting the
dam, or what should be paid for the use of the water, when there was
water enough for both mills. He could not say what was said by
Dodge or the administrator, but what was said by either was assented
to by tlie other. There was no dispute between thern. The award was
produced and verified by him. It recited a submission by bonds, and
among other things, had an award of "forty dollars to be paid to Dodge
for the use of the water privilege," and was dated March 26, 1823. At
the foot of it was written, "We agree to the above award," which was
signed by Dodge and the administrator.
To all this evidence of the acts and admissions of the administrator
of Kelso's estate, and of the guardian of his minor children, it was ob-
jected that neither an administrator nor guardian has any power, di-
rectly or otherwise, to create an easement on the minors' estate, or by
his acts or admissions to furnish or make any evidence of such an ease-
ment, to affect any other persons than themselves, and the whole evi-
dence was therefore inadmissible against the grantees of the minors'
estate ; but the evidence was admitted, subject to exception.
It was objected that tlie award was not evidence of the submission
by bond, without the production of the bonds, or an account of their
absence, but it was admitted on the proof of the agreement of the par-
ties, written upon it, subject to the exception as to its admission and
effect.
It appeared by deeds produced by the defendants, that one of the
heirs of Kelso, then of age, and the guardian of the minor children,
under a license from the court of probate, sold and conveyed the full-
ing mill to D. Smith, on the 5th of August, 1826. Smith soon after
made a contract with the defendant, Fletcher, and gave him a bond that
he would convey the property, upon the payment of an agreed price,
within a certain time ; that in the meantime Fletcher should occupy the
premises, paying' a certain rent, and that when he paid $200 toward the
purchase, the rent should cease, and after that he was to pay only the
interest on the balance of the purchase money.
Ch. 2)
PRESCRIPTION
97
Fletcher occupied, paying rent for two years,, till 1828, and then paid
them $200, and afterwards occupied^ as_^ owner, paying interest only.
During the time from August, 1826, to the fall of 1828, while Fletcher
occupied as tenant, Smith paid to the owner of the gristmill half a dol-
lar a month for the use of the water. He testified he paid it because
it was unsettled and considered disputable, whether there was any priv-
ilege on the north side. He said he was offered a higher price, if he
would warrant the water, but he considered it disputable, and declined
to do it. In April, 1830, he conveyed to one Austin, under whom the
defendants claim. While he owned the fulling mill, and paid rent, the
owners of the gristmill claimed they had the first right to the water,
and it was generally understood they had such right.
After. the payment of the $200 by Fletcher to Smith, the right of the
plaintiff to a preference in the use of the water, or to any rent or com-
pensation for the use of it, was denied by Fletcher, and he ceased to
shut his gates when the owners of the gristmill requested it, but it did
not appear, howearly this resistance to the plaintiff's claim was first
made. ""~
The court instructed the jury that if the owner of the mill privilege,
under a claim of right, used and exercised the rights he claimed, without
interruption or opposition, for a period of twenty years, this gave him
a perpetual 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
prescription. 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. It was not until 1761 that this prin-
ciple 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.
But tlie current ^f__English decisions has gone no further_than to
hold that longjcontinued and uninterrupted possession is evidence from
which a jury mav_prp'^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^decisions on this_subjert have been but mr)des_of_eyading the^ffect
of^^earjy decisions of their courts^which have been found inconsistent
with the ^)rinciples of justicei 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, prescribed by
principle as well as by public convenience, to overrule the absurd de-
cisions which sanctioned a fixed_2oirit in the early 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 mgmory, 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 prescription- of such length of tirnejis has
been fixed_by_theJLegislature 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 oLAmerican 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. 14,312 ; 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, 10 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, that an_adverse enjovment of water for any period less
than twenty years is not alone^sufficient to warranLlhe presumpjion
of a grant.
In the case of Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156, it
was held that the adverse, exclusive use of water flowing through an
aqueduct, by the owners and occupants of a house, for the term of
twenty years, furnishes presumptive evidence 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. The plaintiffs must^;elx-U£0"
the presumption of a grant, arising froman undisturbed enjoyment
of the use of it, flowing^through the land^wned by the defendantjor
so Jong a period; which may be in the nature of a prescription, ex-
cept so far as time is concerned.'^ ~
It is apparent that the learned judge referred to a prescription such
as is recognized 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 continent. Such a prescription, of course, could not
exist in this case, nor in any case arising in this country. And any
attempt to reason from the nature of such a prescription, so far as
it related to time, might be properly rejected. The analogy of the
presumption of title, or of grant, as the case may be, to a prescription,
except so far as time is concerned, is distinctly admitted. And there
seems to us both convenience and propriety in applying the term pre-
scription in cases of this kind, since the prescription of the ancient
r;
102 OBIGINAL TITLES (Part 1
books can never exist here, and even as to time, the limit recognized
here agrees with that of tlie civil law. Hein. ad Pand., before cited.
However this may be, this case furnishes strong evidence of the con-
currence of tliis eminent judge in the general current of decisions in
this country, as stated by Prof. Greenleaf.
Upon this view of the law, we think tlie instruction given to tlie
jury, that if an owner of a mill privilege, under a claim of right, used
\ ■ and exercised the rights he claimed, without opposition or interrup-
tion, for a period of twenty years, this gave him a perpetual right, was,
upon the facts presented by the case, correct, unless the court erred
in that part of the charge where they say that the exercise of the rights
claimed for twenty years, without interruption, entitled the plaintiff to
! a verdict, notwithstanding they shouldLfindjtha^^Airing^j,^aTt^^
time the title to the property affected was, by descent, in thejiarids^ 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 held that the then defendants tak-
iiig the water^by contract_jrom the premises of a third person, could
justjfy^jLindeOhaL_person3l-thgy 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, their disabiHty would iiot_prevent a title
from being^ acquired bv twenty yefir<^ possession.
^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 presumption of right, 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 Tjie earliest act of user proved, tends to prove j^ght thenjgxisting,
I upon the principle that he who witnesses any encroachment upon his
rights, without objection or opposition, seems to~admit, in "some de-
. gree, however slight, a right in the party who does it. Suchjight_evi-
dence gains^orce by cojitinuedrepetition, until a.^the_end of twenty
years it becomes, unexplained, conclusive evidence of right.
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 ofareversioner against whom the statute does not begin to run,
' and by parity of reason, the time of prescription does not begin to run
until his interest becomes vested, so as to give him a right of action.
The tenant for life or years may grant easements, or permit them to
be acquired by user, and they will be valid against himself and those
who hold his estate during its continuance, and perhaps not afterwards,
where the reversioner had previously neither cause nor right to com-
104
ORIGINAL TITLE8
(Part 1
y
plain. Daniel v. North, 11 East, 370; Bradburg v. Gimsell, 2 Wms.
Saund. 175, d; Barker v. Richardson, 4 B. & A. 579; Ang. Adv. Enj.
46; 2 Greenl. Ev. § 545.
/cTwnerswho^ are under disabilities when tlieir riglits_are-iinsL en-
croached upon, and the right~oI_actIon for such encroachment_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_jiter the statute has oncg commenced
to run^ no intervening disability will defeat the ordinary limitation
ati_sing frotii— twenty years___adxgl_se possession. 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 interveniiig^disabilities should not defeat the presumption
of 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 point relative to the award is not insisted upon, andjthe plain-
tiff'sanswer to it seems sufficient. Judgment 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 ditch.
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 ponds. 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 defendant again obstructed the ditch. ■ It remained so four days,
when the 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
through 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 infants ; 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 iisg^ 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 thirteen years of this
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 unless the presumption can 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 did 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.*
£^^ mAjL^^ ,
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 ersionary_ 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 such a length of time amounts to a grant of the liberty of making
4 But see Lund v. New Bedford, 121 Mass. 2S6 (1876) ; Cross v. Lewis, 2
B. & C. 686 (1824); Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635 (1892),
where the user commenced less than the prescriptive period before the ser-
vient land v.-as leased. See, also, Reimer v. Stuber, 20 Pa. 458, 59 Am. Dee.
744 (1853), where the user took place while the servient land was in the pos-
session of tenants from year to year.
A. owns lands in the possession of B. under a lease of 99 years. What
would be the effect, as against B., of an adverse user for the prescriptive
period? See Bright v. Walker, 1 Cr., M. & R. 211 (1834); Wheaton v. Maple
& Co., [1893] 3 Ch. 48; Kilgour v. Gaddes, [1904] 1 K. B. 457; Wallace v.
Fletcher, 30 N. H. 453 (1855), supra, p. 94.
112
ORIGINAL TITLES
(Part 1
them ; it is evidence of an agreement to make them. If I am in posses-
sion of an estate for so long a period as sixty years, I cannot be dis-
turbed even by a writ of right, the highest writ in the law. If_mX-E^
se^Qn_of the house cannot be distu_rbed,_sha]l I be disturbed in my
fights? It would be'absurSr * * * DougarvTWilson, Sittings C.
^Brr?in. 9 Geo. iir/
3/
7-
WEBB V. BIRD.
(Exchequer Chamber, 1863. 13 C. B. [N. S.] 841.)
This was a writ of error upon a case stated by an arbitrator for the
opinion of the Court of Common Pleas, upon the argument of, which
that Court held that the owner of a windmill cannot claim,_^ther by
presjmption^^r^by^resumptjpn of arrant arising from twenty years'
acquiescence, to be entided to the free and uninterrupted passage of
the curi:£nis.pf wind and air to his mill ; and that such a claim is not
within the 2d section of the 2~^3 W. IV, c. '71, which 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 character. 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-house within 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 easement 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-
chased the lease of a house 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 confectioner 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 plaintiff ^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 passage 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 ; for 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 physically 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 sustained bv the plaintiff in consequence of the defend-
ant's obstructing his lights.
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 ojLtwentyj^fiye years_or more; ,
that in 1859 the defendant e_reci£d-a.-b.uilding^ on his„owrL premises
immediately adjoining that of the plaintiff, so as to excludethe^light
from two of the plaintiff's windows.
The^nl)r question involved in this case is, whether the plaintiff 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 continue' 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 time 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 right 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; having
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 acquiescence
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 : "There 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 enjoin the defendant.
A. E. Pavey, from closing up a certain wa^iised by the plaintiffs 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 fee simple 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 Penelope 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 which title by prescription
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 easement 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
adverse to theowner 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 right tO-do-SQ.. It may be stated as a general 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 will 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 taken a "short cut" through the
£asture.^ No one has ever objected to this until on December 2, 1908,
'the orator asked the defendant to take and carry away a certain timber
which he, the defendant, had used as a bridge over a small brook in
10 See, also, Fleming v. Howard. jnoCal. 28, 87 Pac. 90S (1906); Mitchell v.
Bain, 142 Ind. 604, 42 N. E. 2:^0 (l.^^oTT^nittir-Tr Pennington, 122 Ky, 355, 91
S. W. 730, 8 L. R. A. (N. S.) 149 (1906).
11 A portion of the opinion is omitted.
A
126 ORIGINAL TITLES (Part 1
the pasture. This the defendant refused to do, and the orator cut
the timber in two, and the water floated it away. The defendant sued
the orator to recover damages for the loss of the timber, and with this
action pending, the orator brought this bill in chancery to enjoin the
action at law, to restrain the defendant from crossing the pasture,
and for an accounting. A trial was had before the chancellor, who
found and filed the facts, and a decree, was tliereupon rendered for
the orator. From that decree the defendant appeals. The only ques-
tion litigated below was as to the right of the defendant to cross the
pasture, a prescriptive right so to do being the defendant's only
claim. * * *
This brings us to a consideration of the main question in the case :
Has the defendant acquired a prescriptive right to cross the orator's
pasture? The finding is that for upwards of sixty years the defend-
ant and his family have passed through the pasture to and from Pine
Street "openly, notoriously and continuously, without interruption."
_,^The right to an easement in another's land acquired by long use and
enjoyment is analogous to the right acquired by adverse possession;
and the rules of law applicable to the two cases are in harmony.
Mitchell V. Walker, 2 Aikens, 266, 16 Am. Dec. 710; Tracy v. Ather-
ton, 36 Vt. 503. One of the essentials, to the acquisition of §iich a
right is that the use shall be adverse, — that is to say, it must be under
a claim of right on the ^art of the user. Mitchell v. Walker, supra;
Lathrop v. Levam, 83 Vt. \,1\ Atl.'33i ;' Goodall v. Drew, 85 Vt. 408,
82 Atl. 680. So the finding before us lacks one of the elements of a
prescription, for, as we have seen, it does not specify whether the de-
fendant's use of tlie pasture has been adverse or permissive. Prima
facie, the orator being the owner of the pasture, the defendant's acts
were mere trespasses^ The burden of proof was on the defendant to
establish his prescriptive right, if he had one. Plimpton v. Converse,
42 Vt. 712. And this was so, though the orator may have alleged
in liis bill that the defendant had no such riglit. For, though he al-
leges more, the orator need only prove that the defendant committed
acts which, in the absence of excuse or justification, amounted to a
trespass. Bosworth v. Bancroft, 74 Vt. 451, 52 Atl. 1050. Our at-
tention is called to the statement in the findings to the eflfect that the
defendant never asserted that he crossed the pasture under a claim
of right, but this obviously refers to an express assertion, and leaves
untouched the effect of the defendant's conduct. I It was not necessary
for the defendant to make an express declaratioir of his claim ; it was
enough if his use of the way was of such a character as to indicate to
the owners of the pasture that it was under a claim of right. Wilder
V. Wheeldon, 56 Vt. 344; Jangraw v. Mee, !':> Vt. 211, 54 Atl. 189, 98
Am. St. Rep. 816.
In establishing the adverse character of his use of the way, the de-
fendant is aided by a presumption, which arises from the fact that the
ora'tor and the previous owners knew all about his crossing tlie
Ch. 2) PRESCRIPTION 127
pasture and made no effort to prevent it. This made it necessary for
the orator to come forward with evidence that the defendant's acts
were, in fact, permissive. The rule in such cases was stated by Qiief
Judge Redfield in Arbuckle v. Ward, 29 Vt. 43, in these words: f'The
mere use, if so open and notorious as obviously to attract the notice
of the owner of the soil, or if expressly shown to have come to his
knowledge, will prima facie establish the right, and it will be in-
cumbent upon the owner to show in some mode, that it was not used
under a claim of right to the water, or that he did not so understand
it, and was not bound to so regard it from the nature and extent of
the use." The same thing was held in Perrin v. Garfield, 2>7 Vt. 304;
Dodge V. Stacy, 39 Vt. 558; and in Wilder v. Wheeldon, 56 Vt. 344..
But notwithstanding this presumption, the character of the use re-
mains a question of fact, unless the proof and inferences are all one
way, Plimpton v. Converse, 42 Vt. 712, and the burden of proof re-
mains on the defendant. And here the proof and inferences were not
all one way, for there were facts and circumstances shown from which
we think it could reasonably be inferred that the defendant's use of
the pasture was permissive. The character and situation of the land,
the use made of it by the other neighbors, and other circumstances,)
indicate, more or less strongly, that the defendantl$_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-
joyed for more than sixty years, but it must not be forgotten that this
^ourt sits 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
merits^ of the_ controversy^. * * *
Decree affirmed 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
him? The plainirflThas 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 defendant is tlie lessee of the Morri!> Canal 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 incorporated in 1824, for the purpose of construct-
ing a canal to unite the river Delaware, near Easton, with the tide
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 company renewed jjie 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£.is the owner of a mill situate on the Rockawav river,
above 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 theory of his action was that the dam at its increased height was
ari unlawful '^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/^TTg&P^^^so contended at the trial that tlie righ^to maintain
its dam at its present height had been acquired bv adverse emovment.
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, that mere verbal pro-
tests and denial of the right, without any interruption or ohstmrtion
in fact, of the enjoyment of tlie right, would prevent the acquisition
of~an easement by adverse user. 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 owner of the servient tenement cannot overcome tlie presump-
tion of right ansingy from an uninterrupted user nf twenty years, by
proof 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 incapable 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 incompe-
tency nor physical incapacity^ and the user be open and notorious, and
be such as to be actionable or capable of prevention by the servient
owner, he can only defeat the .affiui-^ition of the rif;ht on theground
of the enjoyment was
that the ust^ w-as r;pntcntious, or the continuity
interruj3ted_diiring th^period qt prescription.
In defining title by prescription, Sir Edward Coke says, both to cus-
toms and prescriptions, these two things are incidents inseparable, viz.,
possession or usage and time. Possession must have these qualities:
It must be long, continual 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 obstruction
to the use of the easement, some act of interference with its enjoyment,
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
good grounds" implies an act which would afford an opportunity to sub-
niit its validity to the test of judicial decision, and is more consistent
with the idea of an interference with the enjoyment of the right, such
as would give the owner ability to go into court and establish his right.
yh
134 ORIGINAL TITLES (Part 1
than with the supposition that prescriptive rights should he forever kept
in abeyance by acts which gave persons claiming them, no power by
suit at law to establish the right. In the passage quoted by Coke from
Bracton, this early writer says : "I use the term peaceable, because if
it be contentious, it will be the same as before, if the contention has
been just; as if the true lord forthwith, when the intruder or disseizor
has entered into seizin, endeavors soon and without delay (if he should
be present, or if absent when he shall have returned) to repel and expel
such persons by violence, although he cannot carry out to its effect what
he has commenced, provided, however, when he fails he is diligent in
requesting and in pursuing." Bract, fols. 51, 52. Mr. Goddard, in dis-
cussing an enjoyment which is not peaceable, defines "vi" in the phrase
"vi clam aut precario," to mean violence or force and strife, or con-
tention of any kind; and the illustration he gives is where the enjoy-
ment has been during a period of litigation about the right claimed, or
the user has been continually interrupted by physical obstacles placed
with a view of rendering user impracticable. Goddard on Eas. 172.
In the English cases, pcacefulness and acquiescence (when the servient
owner knows or might have known that a right is claimed against his
jiiterest) are used indifferently as equivalent to uninterrupted.
|n this country several decisions have been referred to as holding
that prohibitions, remonstrances and denials of the right by thr '^wner
o^the servient tenement, unaccompanied by any act of interference
with the eniovment of the easement, will prevent the acquisitionof the
tight. _ These 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 oTthe easement, would de-
pend upon circumstances, upon the conduct ot the party when torbid-
den 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, rthe circumstances of the place where the forbiddance was
rnade, whethel" on or off the land, would be immaterial." If facts 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 thai: if the lord of the property, through sufferance,
has, 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-
tion from such enjoyment nnrl t;iiffer;mrp, there 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
"evidence_piigbt be q-iven to prove that the use had been interrupted,
therebv disproving a COntJn'T^^I nrgniV^rprirp nf |)ip owner fnr tvypnty
years." In 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, the
occupiers asked for leave they admitted that 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 that,
as against the reversioner, the enjoyment of an easemenfduring a ten-
ancy for life was not to be recK'oned as part of the prescriptive period.
"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, proof of a parol license was competent to
show tha^ the enjoyment was permissive, ?^nd not undfr ^ rlnini-rii.
rjglit. '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 policy. 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 to^con^
tention and strife. ICrQte&ts and mere denials of right are evidence^ that
the right is in dispute, as distinguished from a contested right, li
such protests and denials, unaccompaniedby anact which in law
arnnijptQ to a flUtnrhnni'P nnri ic actionable nSSUcHTISe'permittcd tO pUt
the i:ig4it in nheyrmce. the policy of the law will be defeated, and pre-
scriptive rights be_2la££d-UPon the most unstable nf fnundntinrm. 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 denials-l:m his adversary, his right_niight be ^efgatgdJiejYQiild
be_£lacedat_an unconscionable -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.
Protests and remonstrances bv the owner of the servient tenement
against the use of the easement, rather add to tlie streng^th of the claim "
of"a"prescriptive right; fpr^ holding in defijnc^_Qf_sucli_e>Lpxnstn1;itinns'
isjdemonstrative^PXQof that thejmjoyT-nent is under a claim of right,
fiostjTe^d adverse ; and if they be not accompanied by acts amounting
to a disturbance of the right in a legal sense, they are no interruption
or obstruction of the enjoyment.
The instructions of the judge were erroneous in this respect. The
j ury^ should have been told that a continuous enjoyment under a claim
of right ior twenty years, not obstructed by some suable act, and hav- x/^,^iXx.omlJ
i n^the other qualities ot an adverse user, confers an indcteasible right .
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). In some
states there arc statntes pnn i(]iiif thiit certiiin r'ofi<-i'v; sli-ill itinrnnr riiijim-
in^ of a tirescijjmvQ 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,
40 Conn! 2G 16 Am. Rep. 10 (187:'.).
CJ^ac KiN(i7VA., 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 siicli ;i(]v"r>-o iw^ f^|ir the bnlanee of
the nre.scrjptive period^ Has C. acnuired the easement by prescription?
^Vhat wouIlI be the result If the words "with the api)urtenances' we re
omitted? What If C. were A.'s heir, and as such succeeded to A.'s rights in
Blackacre? See Leonard v. Leonard, 7 Allen (Mass.) 2l1 (18U3).
A^-o-^
-^^-'v^^^o-'— «kX
XL
dl-t{,<^u^
Ir^
you --^^J— ^
140 ORIGINAL TITLE3 (Part 1
CHAPTER III
^0^ ACCRETION
A^
i-'^
X^rjT GIFFORD v. YARBOROUGH.
^^
(House of Lords, 1S28. 5 Biug. 163.)
Best, C. J. My Lords, the question which your Lordships have
^ proposed for the opinion of the Judges is as follows: "A. is seised in
hjsdcmesne as of fee of the manor of N., and of the demesne lands
thereof, which said demesne lands were formerly bounded on one side
by tlie sea. A certain piece of land, consisting of about 450 acres, by
the slow, graduaL-and imperceptible 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 hath been formed, and hath settled, grown, and accrued
upon, and against, and unto tlie said demesne lamlZ 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.
But this right of the sovereign might, in particular places, or. under
circumstances, 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.
General 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.
If there is a custom regulating the right of the owners of all laiuls^
bordering on the sea, it is so general a custoni as need not be set mit in
Uie pleaclin.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 oftheKing. and the subjects_clnimmr 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. Land formed bv nlluvion must become useful soil by
Ancrr... too slcjw 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 adjoining lands, and he will^cauire
a Title to them on 'the same principle that all titles to lanchjiaye^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, that the land so gained
is a compensation for the expense of embankment, and for losses
which frequently happen from inundation to the owners of lands near
the sea.
This custom is beneficial to the public. 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 original deposit constitutes not a tenth part of its value, the
other nine tenths are created by the labour of the person who has oc-
^cupied it; 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
We kgoM^^that many of the maxims of t^*^ rnmmnn la^y are borrow-
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." The
laws must change with the state of things to which they rolnte ; 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^ distinction 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,
that alluvion must be gradual and imperceptible but the derelictioiijQf
land by the sea is frequently sudden, leaving at once large tracts of its
OJjLMAt^r^ dLcAAjU^XMfV^.
L
144 ORIGINAL TITLES (Part 1
bottom uncovered, dry, and fit for the ordinary purposes for which
land 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 public policy, by the opii^jons of learned writers,
and the authority of decided cases, 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, that the judgment of the Court of King's Bench
upon 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, that the opinion of the Judges must be that whiclT_
the learned Chief Justice has now expressed. 1 therefore concur in
the opinion the Lord Chief Justice has expressed.
Judgment affirmed.^ -. ■■^ r^ . •■ ' '■'
1 "Blackstone says (vol. II, cliap. XVI), 'As to lands gained from the sea, ei-
ther hr 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,rthiit if this 'z-a\\\ be little by
little, bv Somali and imperceptil^lo flPP-rppt/lT ghall 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 action against Jacob McCormick, to recover a small
piece of land in the villas^e of Ithaca, lying 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 "south from the turnpike to the bank 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, adjoining
the land of the plaintiff. The water of the creek having been caused
to recede, a strip of dry ground was formed at the foot of the \3nk,/^^^;^ ^
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 high 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 low water mark. 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 deepening the bed of the stream on the south sid^^nd
placing 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 constructed a race to his mill,
the 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; that the waters of the creek, where they pass the plaintiffs qs^ OU^
lot^dojow, and have for many years, run further to the south than *^>|^- ^
wh^TThTcITkc was ereckil, and that the change in the channel was^f^^,^ ^^ ^ve.
caused by artificial means used by Jacob :\IcCormick," the original de-
fendant, as above indicated. He therefore ordered jud^gnjjrTlt 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 nieserve the fundainnntm rinnrinu riu-ht^n which all others depend, and ^U(r^%^ ^
ter" 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
defendants, 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 plaintiff's south line did not origi-
nally extend to the centre of the rrp^k, hut only to thpjme of low wa-
ter on the north bank. 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.^ But to acquire title to land as alluvion, it is necessary
that its increase should be imperceptible — that the amount added in
each 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 tlie case stands, it is not necessary to pass upon the question ■
whether there is a distinction between the case of alluvion formed by
natural or artificial means. 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 enough
that this case does not show that the land in question was alluvion.
The judgment, therefore, must be affirmed 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, Tohn G. Carr. and the
TTnion Natural Gns Company of Canada Limited (added by order in
Chambers), plaintiffs, against Cha£lin_^and^^_Curr^ defendant^, for a
declaration of the plaintiffs' rightofoMnT^rshipoi certain lands, and
for an injunction and 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 pro-
duction and sale of petroleum and natural gas ; the plaintiff Carr is
a farmer; the defendant Chaplin is described as a wheel manufac-
turer ; the (defendant Curry) is an oil and gas drilling operator.
It- The plaintiff 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, containing by admeasurement one hundred acres, 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
he be deprived of accretions forced upon Mm hy the labor of another Avlthout
hfs coTTseut or connivance, and thus cut oft" from the benefits ot his original
proprietorship. * * ' 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 not.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.
"Of course an exception m^^^\ alwnyg l;^p mnde of cases where the operations
upon "the part3-''sown land are not only calculated, but cnn bfTsoewn lohave
been intended, to produce tbls gradiial acqufsition of the seashore, however
di'fficult such proof ot intention may be." 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 plaintiffs claim that the original Talbot road, which formed the
south-westerly boundary of the lanTls mcludcd 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 plaintiffs further alle.g^e that along
the shore of Lake Erie^ in thnt Jocality, the waters of the lake have
been encroaching upon the lands, undermining the bank, causmg it to
subside, and then gradually washing it awav : that, by reason of this
encroachment of the lake, Talbot road at an early period grew danger- '
ous and unsafe for public travel, 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
across the lake front has long since been washed away by the waters
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;
so that now so much of the lands patented to Carr's predecessor, and
now owned bv him, as are now above the waters of Lake Erie, border
onthe waters of the Inke, and 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
the exclusive right to search for, produce, and dispose of petrolcu m
and natural gas in, under, and upon the said lands, together witliall
rights 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
Government of the Province demised and leased unto the defendant
Chaplin, his heirs, executors, etc., the whole of "Sat parcel or tract
o f^land under the waters of Lake Erie in front o f this lot, amongst
otliers (the particular description of which is set out in paragraph 5
of the statement of defence of Curry).
About the month of September 1911, the defendant Chaph'n mnHp
a verbal contract with the defendant Gurrv.for putting down a wpII
ior the productionof petroleum and natural ^as in and upon the lands
Ch. 3) ACCRETION 149
SO demised by the Crown to Chaplin; and Curry, actincr under such
contract, entered upon what the plaintiff Carr claims to be his land,
with men and teams, and constructed a derrick and engine-house, etc.
The plaintiffs, claiming that this entry was wholly unlawful, made
objection thereto; and, on the~defendants persistmg in their opera-
tions, the plaintiffs obtained an injunction from the local Judge, which ^
injunction was continued until the trial. The plaintiffs now ask: (1) ^tS^^JT/*^ <
That the injunction be made perpetuaj; (2) a declaration of their
rights as to the ownership of the land, and as to riparian rights ; 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. The evidence is overwhelming^ (I disregard the
curious evidence of Samuel Cooper), and I find it to be the fact that
the locus now in^ controversy is part of the lot 178 north of the old
T^bot road". ^
Having come to this conclusion, it follows that, if the plaintiffs'
contention in law is well founded, it is quite -immaterial whether or
not^ the construction of the derrick is entirely in the water, 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 formed by alluvion, or the
gradual and imperceptible accretion from the water, and land 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 that "conversely land gradually encroached upon bv nav;^ _^u>-
igable waters _ceases to_^elpng to the former owner." quoting the^^^\!f
rnaximJ'Oui sentit onus debet sentire commodum," the author pro- -^...^
ceeds (p. 309) ; "But when the line along the shore is clearly and | y^w-.^
rigidly fixed by a_^deed or survey, it will not, it seems, afterwards "be *^
changed because of accretions, although, as a general rule, the right
to 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; and this is regarded as the equivalent for the loss they
(niay sustain from the breaking in, or encroachment of the waters upon
their 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 termini 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, that he who bears the burdens of an acquisition is enti-
tled to its incidental advantages,; consequently, that the proprietor of
a field bounded by a river, being exposed to the danger of loss from
its floods^ is entitled to the increment which from the same cause
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
to an allu\dal_forniation, or land gained from a lake hv alluvium, f}^e.
lake must form a boundary of his land. If^ny_]andjiesj3etween his ^ * —
boundary lineand_the lake._he_cannot_clairn 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 : ilt seems, the rule that, where a boundary line
is a stream of water, imperceptible accretions to the soil, resulting; from
naturaLcauses. Erelong to the riparian owner, applies as well where Ihe |
boundary is upon 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 other
open space permanently established for public use between the river
and the most eastern row of blocks in the 'lorn^gT town of St. Louis,
wjicn It was first laid out, or established^ or founded, would prevent
tlje owners of such lots or blocks from being riparian proprietors
of the land between such lots or blocks and the river. But this would
not be true of a passage-way or tow-path kept up at the risk and QjUaU^^ ^
charge 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) : "The principle laid down by Lord Hale, that the party who
suffers the loss shall be entitled also to the benefit, governs and~3e-
cidesme question. 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
\ the plaintiff Carr had lost the land by the encroachment of the water.
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 gradual
encroacliment of the w^ater past the land in front of the road, past
the 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 mutualitv. 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, the accretion being to
defendant'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 reason 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 injun c -
tion herem made perpetual, with full costs on the High Court scale
and $10 damages.*
SUPPLEMENTARY NOTE
Eminent Domain.— A'c/urr of Ti7?c.--Tbe title acquired n.s a result of eiiiineut
d oiiiaiii inuceediiiyj is an original or new title, as distiuiriiislicd fiotu a dcri va -
tive^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 under enanent domain proceedings does unt constitute
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. — In the absence of constitutional restric-
tions 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 inter-
est will vest as i.c! necessary to iieriiiit the dccumi.lislimeiit of tlie purpose 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. — It is generally held that title vests O'dy upon payment
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-
tionJI^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. — The nature and extent of the title acouirpd hy g piir,^i>pgar <^f
a tax sale depends largely upon the terms of the particular statute under
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
destro,viug all t)rlor interests in the estate, whether vested or coutinL'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). Where, however, the taxes when levied
constitute a debt due from the owner wlikh may Lie collected in an action in
persuLia 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, then
the title ac(|uircd is derivative, and includes only the Interest of tlie person
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, it behoveth to have livery of seisin.
Section 59.
COKE UPON LITTLETON.
"Livery of sefsin." Traditio, or deliberatio seisinre, is a solemnity,
that the law recjuireth for the passing of a freehold of lands or tene-
rnents by delivery of seisin thereof. 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 livery in deed,
and a livery in law. A livery in deed is when the feoffor taketh the
ring of the door, or turf or twig ot tlie land, and dehvereth 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 and
your heirs, and go enter into the same, and take possession thereof
accordino-ly) and the feoffee doth accordingly in the life of the feoff-
or enter, this 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 Ihe
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
inheritance corporeal 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 from and ajter the four and twentieth day of June. Ouv*.^ AT '
which shall be in TITe year oTour Lord one thousand six hundred S£v- Q
pntv seven, all leases, estates, interests of freeliold. or tc^m7s^of^j>:eaTS,
or any unccrUiurii^^ nKiiiors,
lands.^encmentsorhereditanients, made or created by livery and
seisin only, or by parol and not nut in writing, and signed by the par-
ties 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
taken to have any other or greater force or effect ; any consideration
for making nny such parol leases or estates, or any former law or ■
usage, to the contrary notwithstandin,c:.
IL Except nevertheless all leases not exceeding the term of three
yejirs from the making thereof, 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 be assip^ned. ffrantcd or surren(Jereii--un-
less it be by deed or note in writing, signed bv the party so n.swni-
jn'grgTanting or surrendering^ the same, or their agents thereunto law-
fully authorized by writinc^. or by act and operation of law.'
^■^Car. II, c. 3, §§ 1-3^
2 For a long time prior to thfi Statute of Frauds n writing;, thougli JUJ-
neces^^iiry to an ettectivo T(:-('iHmeDt, was comnionly employea ns evidence ot
Ihb "Lrausaction and im [rrrTTF: ^ ~~ „ „. ,t ^ ^ er <. ^
In 184o. i'ariiamoDt provided (St. 8 & 9 Vict. c. IOC, § 3) that a feoffment ..^^
other than a feoffment made under a custom by an infant, should be deemed /^
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,
but is now little used. It, is believed that certain old corporate bodies
still retain, at all events to some extent, the ancient practice of con-
veying by feoffment. It is the only assurance (not being matter of
record, as a fine or recovery) by which, at the common law, legal es-
tates of freehold in possession can be conveyed to a person having
no subsisting interest in the land and no privity with the person making
the 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 possession (not nec-
essarily actual seisin), of lands, j^ould^ bv a feoffment, give to any per-
son, other than the person having the next or the immediate estate of
freehold in the lands, an 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 but if ^he feoffor yvas not actu-
ally seised, or if the estate which passed by the feoffment was greater
than his estate, the feoffment was styled a tortious feoffment, and
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 the
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, and such part of it as was not disposed of by the
feoffment became vested in the feoffor by way of a tortious reversion
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 possession 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 afforded
no defence against the title of the rightful owner. 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.
If a. tortious feoffment was made by anv person other than a tenant
in tail actually seised, the person rightfully entitled (or any other per-
son 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 heir's estate could not be affected by entry, and
the rightful claimant was put to his action. (Litt./sect. 3S5.) His
entry was technically said to be tolled by dcsccnt^'^ast. Entry was
tpllcd by a descent cast in fee tail (when the disseisor made a giit in
taij) 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 1st ->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 th e
reversion, expectant upon it, unless they were vested in the kmg.
Stone V. Newman, Cro. Car. 427, at p. 428. By such discontinuance
the persons entitled under the entail, and in remainder or reversion,
were barred of their right of entry, and resi)ectively put to their ac-
tion 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.
In 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 firma;) 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 right of possession, and the second
being styled a mere right ; and there were two kinds of real actions
corresponding thereto, possessory actions, grounded upon writs styled
writs of entry, and djoitural a^t[onSj 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 dis-
continuance of an estate tail by the tortious feoffment of the tenant
intail in possession, forthwith turned the right of the issue in tail_to
a mere right, without passing through any mtermediate stages.
3d Ed. by Sweet, pp. 397, 405, et seq.^
strictly sppfikins:, was properly used only '"'hon the convoynnce
iiiii)le/ AYlien the estiue cre;ited was a t>e tnil tHe conveyance
by 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 sometimes said to be a feofifment of record: though it
might with more accuracy be called an acknowledgment of a feuriment
on record. By which is to be understood, that it has at lenst tho .'^nme
force 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 liverv of seisin is not ncrrs'^nrv
tp 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 composi-
ion or agreement of a suit, either actual or fictitious, by leave of the
king or his justices: whereby the_ lands in question become, or are
/acknowledged to be the right of one of the parties : 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 fictitious actions were, and continue to be, every day commenced,
for the sake of obtaining the same security.
Book 2, star p. 348.
III. Common Recovery
BLACKSTONE'S COMMENTARIES.
A common recovery is so far like a fine, that it is a suit or action,
either actual or fictitious ; ^and in it the lands are recovered against
the tenant of the freehold : which recovery, being a supposed adju-
dication of the right, binds all persons, and vests a free and_^bsolute
fee-simple in the recoveror. A recovery, therefore, being in the nature
of an action at law, not immediately compromised 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, it is provfdetl-^at after
Jj^' jj>jJ^ December 31. 18:^3. no fine shall be levied or commog recovery siiffered of
fjjA>^\ l»«lds of any tenure. ~" "If*^
4^
Ch. 1) MODE OF CONVEYANCa 161
IV. Leas^
BLACKSTONE'S COMMENTARIES.
A lease is properly a conveyance of any' lands or tenements (usu-
ally in consideration of rent or other annual recompense), made for
lifCj^for years, or at will, but^ jil\va;^s^r a less time than the lessor
hatti_iQj:li£_pr^r{ii^Sj^ for if it be for the whoTe interest, it is more prop-
erly 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
greater part of rents were reserved in provisions ; in corn, in poultry,
.ind the like : till the use of money became more frequent. 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 the
original sense, the word farm is brought to signify the very estate or
lands so held upon farm or rent. By this conveyance an estate for
life, f^^rveaji^, or a^vvi^, may be created, either in corporc^Torin-
corporeal 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 estates ^o^^;^
exchanged must be equal in quantity, not of value, for that is imma- ^j^iL*..-^ ^^-'^^
tenal. but of interest; as feQ;^sipTp4^g fonf^e-siiTiple, a l^ase jor.t^viinty..^;;.^.^.^
yg^j^ for^ l^s^ i^or twejity.^ years, and the like. And the exchango?
may be of things that lie either in grant or in livery. But no livery of
seisin, 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 party
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 when two or more joint-tenants, coparceners, or ten-
ants in common. agree_^to divide the lands so held among tliem in sev-
eralty, each taking a distinct part.
Book 2, star p. 2)2Z^
VII. Grant
r.fzi
BLACKSTONE'S COMMENTARIES.
Grants, concessiones ; the regular method by the commop Inw nf
transferring the property of incorporeal hereditaments, or such things
whereof no livery can be had. For which reason all corporeal here-
ditaments, as lands and houses, are said to lie in livery ; and the others,
. as advowsons. commons, rcnts^ reversions, etc.. to lie in errant. 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, from one
hand to another, or the induction into possession of a corporeal here-
ditament; but an incorporeal hereditament, which is the right itself to
a thing, or inherent in the person, does not admit of delivery). These,
therefore^ 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. It therefore diflfers but Ijttle
from a feoffment, exc^^t in jts subject-matter ; 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 after
the first day of Trinity term all grants or conveyances thereafter to Jie
made, by fine or otherwise, of any manors or rents, or of the reversion or
rayiainder 9f a"ny messuau^es or lands, shall Iip gonf]^ and effectual.~to all In-
tents and purposes, wif|iti^j--^np^^nttornmi2it of _fhe lepants 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 information for stopping up a common font-way, the prose-
cutor proved, that it had been a common passage under the defendant'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 the term expiring in 1728 ;
the Chief Tustire rRAVAfONn) held the defendant not guilty: and as to u jAf^^yy^ (n
thejenving it open since, he said that it would not be long^ enough to -^"j^
amount to a gift of it to the public.'^
LADE V. SHEPHERD.
(Court of King's Bench, 1735. 2 Strange, 1004.)
Upon trial of an action of trespass a case was made, that the place
where the supposed trespass was committed was formerly the property
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 over the ditch,
the 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
dedication to the public, so far as the public has occasion ^^^ n, ^v'"^'^"'
is only for a right of passage. Rut ij_ never was understomLJo
be a transfer of the absolute property in the soil. So the plaintiff had
j udgment.
7 mat six yenrs mnv be sufficient time whert^in to presume a dedication
from user, isee Rugby c''hnnty V. Merrywentnor. 11 Knst. .'^75. note. T'ser for
eiL^hn-fn" months, where there was a declaration of iiitontioii to dedicnte. lipid
sfrnicient 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; if the act of dedication be unequiv-
ocal, it may take place imuiediatcly; for instance, if a man Diiiias a umible
row of houses opening into an ancient street at each end niaking a street^
and sells or let^ thP hnn'^ps. that, is instantly a nigpway^- uimmore, J., in
WOudver v. iladden. 5 Taunt. 12."> (181.''>).
A. is tenant for life, the remainder in fee being in B. ; A. dedicates a por-
tion of the land as a highway. What effect, if any. would such dedication
have upon B.? See FarquharV. Is'ewbury Rural Council, \lWd\ 1 Ch. 12.
V
164 DERIVATIVE TITLES (Part 2
REX V. LLOYD.
(Court of King's Bench, 180S. 1 Camp. 260.)
This was an indictment for obstructing a hi^qhway.
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 defendant, having purchased tliose at the
top of the court, built a wall across there, interceptmg all communica-
tion 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 long lighted bv the citv of London
and there had never been any chain across 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 tQ say that this right cannot exist because a particular place
does not lead -coftveiiicixtly from one street to another, would go to cx-
trn|guish all highways where 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 shall be presumed to have dedicated it to the public.
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 case came before the court
on a bill of exceptions, taken by the plaintiffs in error, the defendants
in the circuit court, to the instructions given 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 eiectnient
in this case was brought by Edward White, who is also the defendant
in error, ^o recover tJo.ss(;^ssi()n of a small lot of ground, in the city of
Cincinnati. lyin!£- in thai uart of the city usually denominated the com-
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 year 1788. John Cleves Symmes entered into
a contract with the then board of treasury, under the direction of
congress, for the purchase of a large tract of land, then a wilderness,
including 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 1794,
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 fee was, of course, vested in him. Before the' issuing of the
patent, however, and, as the witnesses say, in the year 1788, Matthias
Penman 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 of his purchase to Israel Lud-
low, and one-third to Ro"bert Patterson. These three persons, Den-
man, Ludlow and Patterson being the 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 apart 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, were 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 principle, if well foundedjn the law, must have a gen-
eral applicatiqn_Jo_all appropriations and dedications for public use,
where there is no grantee 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 remain 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 necessary to pass .the iee_out of ,the._Q\vner of the land, and let it
remain in abeyance, 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 made, 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- ,
giders it in the nature of an estoppel in pais, which precludes the origi- 1
nal owner from revoking such dedication. It is a violation of good \
faith to the public, "and to those who have acquired private property i
with a view to the enjoyment of the use thus publicly granted. j
The right of the public, in such cases, does not depend upon a twenty
years' possession. Such a doctrine, applied to public highways and the
streets of the numerous villages and cities that are so rapidly springing ■
up in every part of our country, would be destructive of public con-
veniencc^and private right. The case of Jarvis v. Dean, 3 Bing. 447,
sho\i:5,\that rights of this description do not rest upon length of posses-
g^r The plaintiff's right to recover in that case, turned upon the
question, whether a certain street, in the parish of Islington, had been
dedicated to the public as a common public highway. Chief Justice
w
1/
170 DERIVATIVE TITLES (Part 2
Best, upon the trial, told the jury, that if they thought the street had
been used for years as a public thoroughfare, with the assent of the
owner of -the soil, they might presume a dedication ; and the jury
found a verdict for the plaintiff, and the court refused to grant a new
trial, but sanctioned the direction given to the jury and the verdict "
found thereupon ; although this street had been used as a public road
only four or five years; the court saying, the jury were warranted in
jii;esuming it was used with the full assent of the owner of the soil.
I The point, therefore, upon which the establishment of the public street
'rested, was, whether it had been used by the public as such, with the
assent of the owner of the soil ; not whether such use had been for a
length of time, which would give the right by force of the possession;
nor whether a grant might be presumed ; but whether it had been used
with the assent of the owner of the land; necessarily implying, that
the mere naked fee of the land remained in the owner of the soil, but
that it became a public street, by his permission to have it used as such.
Such use, however, ought to be for such a length of time that the pub-
lic accommodation and private rights might be materially affected by
an interruption of the enjoyment.
In the present case, the fact of dedication to public use is not left
to inference, from the circum5j:ance that the land has been enjoyed as
aj;:Qmmon-4^i'-many years. IfBut the actual appropriation for that pur-
)ose is established by the irlbst positive and conclusive evidence. And
'indeed, the testimony is such as would have warranted the jury in pre-
suming a grant, if that had been necessary. And the fee might be con-
sidered in abeyance, until a competent grantee appeared to receive it;
which was as early as the year 1802, when the city was incorporated.
And the common having then been taken under the charge and direc-
tion of the trustees, would be amply sufficient to show an acceptance,
if that was necessary, for securing the protection of the public right.
But it has been argued, that this appropriation was a nullity, because '
the proprietors, Denman, Ludlow and Patterson, when they laid out
the town of Cincinnati, and appropriated this ground as a common, in
the year 1789, had no title to the land, as the patent to S'ymmes was
not issued until the year 1794. It is undoubtedly true, that no legal
title had passed from the United States to Symmes. BuMhe proprie-
tors had purchased of Symmes all his equitable right to their part of
the tract which he had under his contract with the government. This
objection is more specious than solid, and does not draw after it the
conclusions alleged at the bar.
There is no particular form or ceremony necessary in the dedication
of land to public use. All that is required is the assent of the owner of "^
the land, and the fact of its being used for the public purposes in- \
sanded by the appropriation. This was the -doctrine in the case of
Jafvis V. Dean, already referred to, with respect toa_,st£££l.;_aGd the
same rule must apply to all public dedications ;|ran3~from the mere use
of the land, as public land, thus appropriated, the assent of the owner
Ch. 1) MODE OP CONVEYANCE 171
/may be presumed. In the present case there having been an actual
'j/ dedication, fully proved, a contined assent will be presumed, until a
/ dissent is shown ; and this should be satisfactorily established by the
I partjc^laiming 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
affirmance 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 judgment for plaintiff for $3,000. Defendant appealed.
Potter, J.* This was an issue framed under an appeal from the
finding of a road jury upon a claim for damages caused by the widen-
ing of Walnut street. On the lot now owned by the plaintiff' at tlie
southeast corner of l5th street and Walnut, a building was erected
some thirty-five or forty years ago upon a line about four feet from
the street Ime, and the intervening space was left open for use and was
used 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 ordinance was passed authorizing the bureau of surveys to
revise the city plan so as to make the width of Walnut street conform
to the line of the buildinp-s erected there^gm ; and on January 15, 1894,
in pursuance to the ordniance, the new south line of Walnut street was
thus fixed.
Plaintiff purchased the property in question in 1898, and took down
the oldbuilding and erected a"new one upon the line established in 1894.
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 plaintiff claimed damages for the value of the entire foiir
feet between the original street line and that established in 1894. 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 was
jio^ evidence in the case that would iustifv them in finding thn^ tlipre
ha^ 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,
and that the owner made no use of it which would indicate that he re-
garded it as ministering in any wav to his special benefit. 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|incr fnr many yeart; mnre
than the statutory period "f limitations, the 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.
Where there has been long continued use of land as a street by the
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 parVr^'^^^r fprmnHty I'g rpqnfQitp tf> rnnptitute a dedi-
cation upon the part of the ownef. Any act which clearly indicates an
intention 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, with 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 using- the wny, havincr knnwlpdg-p'
thereof, 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, provided the use has
been continued so long that priyate rights and public conyenience might
be materially affected by an interruption of the enjoyment. But any
acts of ownership by the owners of the soil would repel the presump-
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 common usage has applied the term to highways whose existence is
based upon long use and occupation.
There are many cases holding that the period required for the stat-
ute of limitations to bar the right of the ovyner would from analogy be
sufficient to establish a presumption of dedimtinn from lapse of time.
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 : "The period of twen-
ty-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 may be concluded by a user by the public for a .much -shor4er
period of time, when there arejother (j-irrnmst^ncp', from whighthe jn-
tention to dedicate may be inferred. • As in Pittsburg, etc., Railway
Co. V. Dunn, 56 Pa. 280, Reed, J., says : "Eight years is quite sufficient
t i me for presuming a dedication of the way to the public. In_a great
case which was much contested, six years was held sufficient, 11 East,
^75 (note) ; and in Jaryis y. Dean, 3 Bing. 447, Chief Justice Best said
'as it had been used for four or fiye years as a public road, the jury
were warranted in presuming that it was used with the full assent of
the owners of the soil.' " But where it is obyious that a space has been
Xf
r
t/jf7 ^ -^
176 DERIVATIVE TITLES (Part '2
(s
left open for the accommodation of the owner and not of the public the
presumption of dedication does not arise. Gowen v. Phila. Exchange
P-o., 5 Watts & S. 141, 40 Am. Dec. 489. And where the owner of jand
sets his fence back from the highway for his own convenience and uses.
I the 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): ^'Dedication is a matter of intention, and when clearly proved,
OA*^^i^^^^ /, it is as complete m one dav as in twenty-one years. 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 jury
, ^were further told that the question whether or not there was a dedica-
tion depended upon the tacts m evidence aajo the opening of the land,
the character of the use by the public, the character of the property,
Jix'^ the nature of the land and its snrrmir]dincrs^ ^UlLli' ^^^ other nrnim-
7j^^*^ ^ s^nces in the cjise^. 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."
In the present case, we think the question of dedication should 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-
cation, or \vlietherjie ever attempted in any way to limit 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 chancery, 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 bill was dismissed for want of equity, 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- /)
poses oy rnp nnhiif 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 connection the pre- ^4-
sumption is of ii past dedication. 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 that "all roads used as such fcr a period of ^—"^'^iV. \J^
more thiin \\\c vears are highwavsT 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 statute, however, docs not . —
2J2I2liLto_a_use^_^^vhich is merely permissive. ^l^Hciney v. Township of Sodus, cJ ^"t/C^^^
131 Mich. 510, 91 N. W. 745," 59 L. R. A. 287' (1902). y^T^
The owner of a tract of land in the outskirts of a city had the same plat-
ted into blocks, lots, and streets. A map was made, showing the arrange-
ment, and lots were sold and conveyed with reference to the map. Some
of the streets were opened and used. In proceedings by the city to have
opened certain other streets shown on the map the owners of lots abutting
upon such streets claim compensation. Are they entitled to any? See Quick-
sail V. PhiladelDhia, 177 Pa. 301, 35 Atl. 609 (1896); HaiTington v. Man-
chester, 76 N. li. 347, 82 Atl. 716 (1912) ; Mayor and City Council of Balti-
more V. Frick. 82 Md. 77, 33 Atl. 435 (1895) ; Reis v. City of New York, 188
N. Y. 58, 80 N. E. 573 (1907); State v. Hamilton, 109 Tenu. 276, 70 S. W. 619
(1902).
Aig.Pkop. — 12
d
v4
,''f
178 DERIVATIVE TITLES (Part 2
ant below have execution therefor. The present writ of error is sued
out for the purpose of reviewing the decree, so entered, which dis-
missed the bill for want of equity. /?/? ^•.,/,/
In the bill, the orators therein bein£_ plaintiff in error, Gggrge D,
Wormley, and ten other persons, 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
in all one-half acre; that said one-half acre of land so described
was generally known as the "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 relatives were buried
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 nrxe
for a burying ground for the uses of the Wormley familv. and their
relatives : Jhat ever since J.839 said half acre has been used by the
Wormley family, ^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;
that 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 neglected
to preserve the monuments, erected to indicate the identity and pre-
serve the memory of their said rp1ativp<; nr trt giVp anH rnntmiie tO
said cemetery the character and name of a burial ground, except
so far as they 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; tliat John H. Wormley settled in Oswego,
in Kendall county, several years before 1839. and resided prf ,and
owned the farm on which said cemetery is located, from the time of
such settlement until the time of his death about the year 1890; that
during all that time he recognized said cemetery, as the burial ground
of his relatives and the neighborhood, and assisted in maintaininp-
the same as such;^ that, during his lifetime, he. with Qtlifr relatives
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
Tohn T. Wormley.^s his son and heir, came into the ownership and
possession 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 that the sani^e had been dedicated by his father, John H.
Wormley, _for such purposes ; that said cemetery is located on said
farm on the line of the Aurora and Oswego wagon road, and ingress
and egress in and out of said cemetery can be had without in any way
interfering 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 ; that he has defaced and is defacing, the monuments
and desecrating the graves in said cemetery : that he threatens to
shoot and kill any persons, who attempt tofence said cemetery, or care
for the monumPTitt; and graves 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 will
carry jTJs_tlireats into p\'Pl;'}^t^an^ nnless re!=;l;rnined by the orderof the
court. 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 ;
that., upon_a^nal he.nrmv^^ it may be ordered and decreed that said
described one-half acre of land, known as the "Wormley cemetery,"
has been dedicated, to the Wormley family, 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 other
relief as equity m^y require, etc.
MagrudEr, J. First — It is well settled in the United States, that
cemeteries 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 is also well settled, that 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. The remedy must be sought, if at all, in the
protecting power of a court of chancery; operatmg by its injunction
to "preserve the repose of the ashes of tlie dead, and the religious sensi-
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.
It is also well settled, that no particular form or ceremony is nec-
^ 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. Staking 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 that the noto-
rious use of property for twenty years for burial p'^^'P'"'!^!^ wi*^^"' "^^
acquiescence of the owner affords presumptive evidence of its dedi-
cation tor such purposes. 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 that no particular form is nec-
essary to the validity of the dedication , it being properlv a question
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, wlien the dedication is beneficial or greatly convenient or nprp<;-
sary to the public, an "acceptance will be implied from slight ciixum-
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
recognized the half acre of ground here in question as a cemetery for ^ I
a^period of about fl f ty^ti£__^ars", to-wit, trom l8>^9 to his~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 his- 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. The 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 de-
rm]rrpr_tn the biUr ^nd_that such demurrer should have been pver-
ruled.^"
10 See Colbert v. Shepherd, S9 Va. 401, 16 S. E. 246 (1892).
s
182 DERIVATIVE TITLES (Part 2
CASSIDY V. SULLIVAN.
(Supreme Court of Nebraska, 1906. 75 Neb. 847, 106 N. W. 1027.)
Albert, C. This is an appeal from a decree enjoinino^ the defend-
ants from maintaining a fence on an alleged public road. The defend-
ant Babcock owns the southwest quarter of the nortTTu^est quarter of
a certain section of land, and his codefendant owns the southeast
quarter of the northeast quarter of the section adjoining on the west.
The road extends north and south on the section line between the
two forty-acre tracts. That the defgndarga, a short time before the
suit was commenced, erected a fence on the road is not disputed ; the
only controversy being the sufficiency of the evidence to show the ex-
istence 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 the county board entered an order declaring all
section lines- within tlie county public roads. 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 the alleged road is a high-
■ ... — . — ■ 1 — *
way by dedication. The evidence seems to bear out this contention.
It appears that for many years the travel to and from the Black
Hills country was along trails in the vicinity of this road. It does
not appear to have been confined to any particular track, and as the
county was largely unsettled section lines were di«;rporar£Wj Although
it was denied by the defendants, it sufficiently appears tliat^aijiLDSt
20 years ago the defendant Babcock and one through whom the other
defendant traces his title, and who then owned the Sullivan forty,
forthe purpose 6i inducing the public travel to follow the section line
between their respective tracts, built fences and planted trees on
their respective sides of the section line, leaving a space about 66 feet
wide 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 highway.^ Snrh
use has been»uninterrupted, save that about a year before this suit was
begun one of the defendants placed a fence on the road, but was direct-
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
its entirety the evidence satisfies us that the owners of the land, more
than 15 years ago, dedicated that portion now claimed as a public_jx>ad
to the public, and the public at once accepted the grant, and, practi-
cally speaking, have been in the uninterrupted enjoyment thereof ever
it
Ch. 1) MODE OF CONVEYANCE 183
since. It is true, there is no evidence that the public authorities ever
authorize^ any work on the road, or did any act indicating an accept-
ance of the grant. But a dedication, in order to become binding; upon
the dedicator orjijs^ privies in estate, need not be accepted by the pub-
lic_autlK)rities, butjiiavJpejL^ceuted b^^he general^ ixiblic^ The general *= —
public accepts, as in this instance, by entermg upon the land and en- ^^•'^C^^J^jU*^
joying tl)p privil^cTp nffered. 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 this
rpad is disconnected from all other public roads. In view of the entire
evidence, th-lt ^^^^ '"'^'^ "'"^ '^pp''inLgignificance. 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 evidence
shgws that the road is a public highway, and so long as it remains
such 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
decree of the district court is affiriTied.
» DOWNING V. COATESVILLE BOROUGH.
(Supreme Court of Penn.sylvania, 190G. Iil4 Pa. 291, 63 Atl. 696.)
Trespass to recover damages for personaHnjurics. Before Hemp-
hill, RjT ^"~ ~' '
From the record it appeared that plaintiff was Injured by falling
in a hole on a sidewalk in the borough of Coatesville. There was evi-
dence that the portion of the street in which the hole was located
had been thrown open to public use by a former owner of an adjoin-
ing property, but there was no evidence that the strip in question had
been accepted as a public street by the borough. •
The court entered a compulsory nonsuit which it subsequently re-
fused to take off.
Error assigned was refusal to 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, rnay amount to dedication to public use as against the owner,
nevertheless states accurately the rule that such action by the owner
>^ cannot of itself make the land part of the street so as to bind the mu-
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: '^
our_^case there was no evidence whatever of the acceptance of this side-
walk by the borough by either act or deed ; it apparently was thrown
open to the public street by Miss Perkins tor the r^nv^^^'^nrf ?"'^
accommodation 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-
tained by him from falling into a ditch or sewer at the point wherTit
crossed a road which 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 of
crossing in a nsarly direct line over the land of the canal company ly-
ing between the basin and the corner of Creek and Canal streets-
Early in 1887 the West Virginia Railroad Company acquired this land
from the canal company by condemnation, and erected trestles 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, that another road, 24 feet wide, extending over the condemned
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
land from Creek street near its intersection with Canal street to the ba-
sin, should 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 or
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 injured 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 sued 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 implied acceptance by the city : In January, 1891, the city council,
in response to a petition addressed to it by the appellant, ordered a light
to be placed "at or near the railroad crossing under the trestling- of the
\yest Virginia Railroad 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 for
many years carried the surface water from Creek and other streets
down 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 November,
18S6, the city council passed an ordinance accepting an offer of the
railroad company to locate its freight depot so as to occupy a portion of
the east side of the bed of Canal street at and near its intersection with
Creek street, upon condition that the railroad companv would give to
the 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.
There_can be no question that the facts of this case establish a dedi-
cation to public use by the railroad companv of the road upon which
the 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 instituted, it must
appear that there had been an acceptance by it, through the acts of its
authorized^public departments or officials, of the road on which the ac-
cident happened, as one oj its public 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 that the acceptance of a street by a municipality "mav
be either express, and appear of record, or they may be implied from
repairs knowingly made or paid for by the authority which has the legal
power to adopt the street or highway, or from long use by the public."
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
least 20 years, 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; for it appears from the evidence that
the ditch had been in exic;fpnce_ for 40 years before the road was
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, must be taken as parts of a common scheme to accommodate
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 cannot be maintained. 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 condemnation proceedings, nor
does the former road over the condemned land appear t6 hav<i..igt^r
been accepted bv the citv as a street. 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, this ordinance, on its face, recites that,
when its terms have been carried out, "the width of said street for traf-
ficjHirposes 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 judgment will be affirmed, with costs.^^
IX. Release
BLACKSTONE'S COMMENTARIES.
Releases; which are a discharge or a conveyance of a man's right in
lands or tenements, to another that hath some former estate in pos-
session. The words generally used therein are "remised, rekased, and
forever quitclaimed." And these releases may enure either/1. JBy way
of enl^j;^^^ig^^_^r}^_fistg^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 vears,
and 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 possession
in the relessee.X2.y^V way of passing an estate, or mitter Testate: as ^J-^'-^-'i ^
when 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 privity of estate 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 bis
right, 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, that when a man has in himself the posses-
ion of lands, he must at the common law convev the freehold by feoff-
ment and livery ; wljich rnakgs^a notorietyLJn the_countrj^ : but if a man
has only a right or a future interest, he may convey that right or j,n-
lerest 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'ved, and confirmed."
Book 2, *p. 325.^* '
XI. Surrender
COKE UPON LITTLETON.
"Surrender," sursum redditio, properly is a yielding up an estate for
life or years to him that hath an immediate estate in reversion or re-
mainder. _vvherein the estate for life or years may drown by mutual
agreement between them.^°
y/^^3^/The copimon modern quitclaim deed is an outgrowth of the common-law
cjeTease. Generally the quitclaim deed has been enlarged into a primary or
original conveyance. Its operation, however, is limited to the intpi-{^,<;|- whirh
the grantor has at the time of~tGe execution of the deed.
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 regularly create an estate; 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 foreign 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 suit
was brought against a lessee on a contract made with the plaintiff, whereby
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 traus-
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 surrender in law wrought by consequent by operation 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
in 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.
As if the lessee before Michaelmas take a new lease for years either to
begin presently, or at Michaelmas, this is a surrender in law of the
former 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
isalso 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 albeit
a particular estate be made of land by deed, vet may it be surrendered
without deed, m respect of the nature and quality of the thirfg 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 ; albeit
there_ the estate begin without deed, yet in respect of the nature and
quality of the thing that lies in grant it cannot be surrendered without
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 and surrendered" all rights
to a renewal of the lease, and all rights by virtue thereof, and agreed to
"asslgi^. sublease and pnt the lessor i\] fi]]i fontrnl " retaining the right to
collect 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 "Her
Majesty's Theatre." 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. That after the making of the said deed, the
defendant entered into and upon the said premises, for the said term,
and afterwards, during said term, to wit, on the 21st June, A. D. 1858.
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 the
defendant, and was sealed with the seal of the defendant ; 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 the
plaintiff at the times and upon the terms in the declaration particularly
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 making
of the said deed, and before this suit, the said deed was and now is
v^holly cancelled by and with the assent of the plaintiff and of the
defendant; and also all the estate, term, and interest of the defendant
in the said premises was duly surrendered to the plaintiff Ijy act and
operation of law, after the said rent became due under the said cove-
nants as atoresaid ana petore tnis suit.
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 to create two estates, viz., the estate of the lessee.
and the reversion of the lessor, and The rent is incident to the rever-
sion. When the day of payment arrives, the rent still remains an-
nexed to the reversion. Here, the question is whether the simply can-
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 does not destroy the estates already vested or their incidents.
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
an 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
are clear that the cancelling a deed does not divest the estate ot the
lessee^^or deprive the lessor of his right of action upon the demise.
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 plaintiff bound
himself to furnish a mill on a certain stream and as much timber as
could be cut and sawed into lumber and manufactured into shingles
bv Taguish during ten years next ensuing the date of the agreement,
from certain specified lots ; to keep the mill in repair, and withm one
year to make a good road from the mill to the river Delaware — giving
by the agreement imrnediate possession to Jaquish of the mill, mill-lot
and house, and authorizing him to clear 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 agree-
mgnt endorsed on the above instrument, the plaintiff authorized Ta-
qui.sh to have a' jack made at the expense of the plaintiff. 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-nl ; may it be surrendered by paroLI 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 up
the said shingle machines in the said mill and get them in operatipn
by the first day of |une, 1836^ I will then relinquish the contract and
give up every thing I have done, and leave all things on the premises,
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 not being erected and put into operation bv the first day of
June, 1836, the plaintiff caused a notice to quit to be served on John
Jaquish, 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 defendants jointly with 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 defendant's counsel asked for a non-
suit on the following grounds : 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 judge refused to nonsuit the plain-
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 iurv found a verdict for the plaintiff
against 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:]
The second agreement 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 first agreement or lease! 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
account ot his non-pertormance, mentioned in his second agreement,
to repair the omission by a given day, or relmquish his nrip-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. Here are two concurring considerations, the satisfaction
of damage tothe plainUft, and a clear right or benefit acquired by
John 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. That is never re-
quired where the pnrJMeshave bv mutual agreement fixed tlie terms
on which the lease is to terminate. The lessee may always waive the
right to require notice ; and for the same reason, the right never arises
where a lease for years exoifpfs 1-»y ^^"'^ ^^n h'lnitation. or the parties
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
bound to quit the possession. If he do not, an ejectment lies agajnst
him 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 promise, a ^"-^ —
defeasance, or modification of the lease; or 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 pass the interest of the lessee to
the plaintiff. * * *
The second agreement thus failing to operate as a defeasance, the
next question is, whether it could operate as a contingent surrender,
it^ being in the nature of a re-demise_. There is no doubt that either
a surrender or demise may be etfec"ted by a simple writing not sealed.
Magennis 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. It 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.
The surrender of a term to operate in futuro is equally free of the
objection. Contracts of parties, whether by deed or otherwise, shall
always take effect according to their real intent, if that be possible,
consistently 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-
ever words are sufficient to explain the intent of the parties, that one
shall divest himself of the possession, and the other come into it, for
such a determinate time, whether they run in the form of a license,
covenant or ag;re£ment, are of themselves sufficient ; and will, in con-
struction of law, amount to a lease for vears. as eff'ectually as if the
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 quite
as strong; for the lessee agrees that if he failto perform, he ^v'l' ^<^-
linquish his lease and give up everything. No farther act is spoken
of! The meaning was to annul and render the lease inoperative ; and
although it could not enure as a defeasance or as a demise, yet it may,
I think, enure and take effect as a surrender, on the contingency hap-
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
vgpr jStioDsjlv of oijiiiion that there caunot be a snrvppflpr 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 brought 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, diat the lessor made a lease for 30 years
of the said manor, except all woods and underwoods growing or being
on the manor : and afterwards made a second lease to the same lessee
of all the woods and underwoods growing or being on the said manor
for the term of 62 years without impeachment of waste, and after-
wards made a third lease of the said manor to the said lessee for 30
vears, 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; the lessee cut trees ; Ive in reversion. brouj^ht an action of
waste ; and it was adjudged for the plaintilf. 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 surrjendeij:,
ed, becjiuse the lessee by acceptance thereof had affirmed the lessor
to have ability to make the new lease, which he had not, if the first
Igase shall stand ; as if lessee for 20 years takes a lease for three years,
to begin 10 years after; itj^aj^^e^^l,^£Ui;render ofthewhole 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
hath a lease for 20 years surrender the last 10 years by any express
surrender saving to him the first iU years. 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 Wdliam Bromley, 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 vvjthin
the term then it is a surrender, for it may be that J. S. shan"5Ut'yTvg the
first teriiL" Anon., 4 Leon. i>0 (15S8).
~^e Tracy v. Albany Exchange Co., 7 N. Y. 472, 57 Am. Dec. 538 (1852),
wherp tiia new lease was to take effect on expiration of existing term.
6^
196 DERIVATIVE TITLES (Part 2
mised for ninety-nine years, to hold from the day of the date. After-
wards, William Bromley, upon the marriage of Francis Bromley, with
Ann Walsh, joined in a settlement_jvar^'' ^"'^s uncle Francis Bromley,
?)nd_reduced his former estqtp in fee tn an estate for Hfe. This was a
voluntary settlement, and had a power in it ; but it was not pretended
that the second lease was made according to that power. After this,
William rheino- then nnlv tenant for life) in 1693. makes a new lease
for ninetv-nine years, to the same tenant, of the same premises, with-
out communicating to the tenant the alteration which he had made of
his estate, by rednrinp- his fee to a hte-estate: and this was acquiej^^d
"^ / in, and the rent paid and received, for sixty years. 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.
The lessor of the plaintiff was tenant in fail under the settlement ;
and claimed a right to disjjossess the tenant
\lie only question upon which the Court gave their opinion, was —
''whether the acceptance of the second lease operated as a surrender
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 forgotten
that he had altere^iis estate m fee to an estate for life; at least, he did
not tell the lessee, that he had so done.
'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-
orid lease was a deceit upon him ; for the lessor had no title to grant
this 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 accepting
a, new void lease, which the lessee is not to enjoy, could not she\v_an
intention to surrender the other^ Therefore, the reason why this
should be an implied surrender, totally fails. A void contract for a
thing that a man cannot enjo3^, cannot in common sense and reason,
imply 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 not
pass an mterestaccording to the contract, cannot operate as a sur-
render of the former. And this is sufficient : I will not enter into any
other questions about the other parts of the case.
v/
Ch. 1) MODE OF CONVEYANCE 197
The second lease did not pass an interest according to the contract.
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 entered. ^^
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 occupier of a shop, house, and forecourt, num-
bered 84, Merton High Street, Wimbledon, and carried on business
there as a furniture dealer, to recover damages from the defendant
COmpanv for entering ^^^^ tregpn'^sing upon the plaintiff's prf"'"''^^"^ r>n
March 20, 1907, 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 acquire
compulsorily the saidjgrecourt for widening the roadway ; that on
May 28, 1905, thev served notice to treat on Coope and Heatley, the
leaseholders, being mortgagees in possession of the said premises and
forecourtpTor the purchase of their interest in said forecourt ; that
at the date of the service of said notice the plaintiff was not the occu-
pier nor in possession of the said premises or forecourt, and had_no
interest therein; that notwithstanding the service of the said notice,
Coope and Heatley purported after the date of such service to grj^^nt
to the plaintiff an mterest m tTje~said premises and forecourt by means
of an agreement of tenancy, and that such an agreement of tenancy
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 former tenancy had come to an end by surrender in law^ Hamerton
v! b'tead, 8 B. & (J. 4'<8 (1824). '
23 The statement of the facts and pleadings is omitted ; the case sufficient-
ly appears in the opinions. The concurring opinion of Kennedy, L. J., is also
omitted.
i
1.98 DERIVATIVE TITLES (Part 2
The learned judge gave judgment for the plaintiff.
X Sir GorelIv Barnes, President. I am of opinion that the conclu-
I sion arrived at by the learned judge is right, and I can put my view of
/ the case very shortly. An agreement was made on March 15. 1905.
'^\j \ by which Fellowes. as agent tor the morteagees in possession of the
^^ \ premises in question, let them to one Sinclair for a term of three vears.
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 agreement
/ dated January 23, 1906, Sinclair, without any knowledge of lh£_notice
to treat, sold to the plaintiff Zick the furniture and effects on the prem-
ises, with certain exceptions, and agreed to stand possessed of the lease
of the premises in trust fori-hp pbintiff ; 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 transfer to the pjain-
tjff the unexpired portion of his tenancy, and Fellowes said that he
thought he could arrange with his prmcipais tor a surrender of Jjie
existing tenancy and the granting of a fresh agreement to the plaintiff
for a term of three years, instead of the plaintiff taking a transfer of
a term which had only two years to run. The plaintiff accepted this
proposal, and accordingly, on February 14, 1906, an agreement was
executed for a new tenancy which would expire on February 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 parties to the transaction, Sin-
clair, the plaintiff, and Fellowes^ pntprprj intojlie agreement iff F'^^^''"-
ary 14, i^iJb, for a new tenancy extending beyond the unexpired pejiod
of the former tenancy, thinking, no doubt, that it would operate as a
surrender of the old term.. But, in consequence of the service of the
notice to treat, the mortgagees in possession of the premises had no
longer any right to create a new tenancy which extended beyond the
period ot ttie existing tenancy. The result, as it apppq|-<; tn rnp^wnnlH
be that the surrender never came into operation bera^ise the rnnsidera-
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
that should be. dnn^.
Ch. 1) * MODE OF CONVEYANCE 199
Farwell, L. J. This is in form an action of trespass, but it is
agreed that the only question really involved is whether the plaintiff.
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 / "
could create no new interest in the premises sn as to throw any fresh > .^^-^^-t-^-^
burden on the defendants. In ignorance of the notice to treat Sin- *
clair sold to the plaintiff his interest in the premises. Upon his in-
forming the lessors' agent that he wished to transfer his interest, _he
and the plaintiff and the lessors' ao^pnt rame to the conclusion,th^t the
better arrangement would be that the old tenancy should be surrender-
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, "that, where the new lease does not pass an interest "f/, ^ ,
according to the contract, the acceptance of it will not operate a sur-
render of the former lease ; that, in the case of a surrender implied
by law from the acceptance of a new lease, a condition ought also to
be understood as implied by law, making void the surrender in case the
new lease should be made void ; and that, in case of an express sur-
render, so expressed as to shew the i;itention 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 he acted on
the well-established rule that, where a new lease is granted on the
footing that an old lease is surrendered, upon the avoidance of the new
lease the surrender is void, the consideration for it having failed. 1
agree that this appeal should be dismissed.''*
24 See Knight v. Williams, [1901] 1 Ch. 256.
t
200 DERIVATIVE' TITLES * (Part 2
SCHIEFFELIN v. CARPENTER.
(Supreme Court of New York, 1S3G. 15 Weud. 400.)
This was an action of covenant, 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 1st April, 1829, demising a dwelling
house and lot of ground of 5% acres, situate in the twelfth ward
of the city of New York, for the term of six years, subject to an
annual rent of $325, to be paid quarterly. The lease was a tripartite
indenture, Daniel S. Hawkhurst and Daniel Carpenter being parties
thereto, and unking with the tenant in the covenants to be perfomied
on his partj^ and they were joined as defendants in the suit with the
tenant. The defendants, amongst other things, covenanted 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
condition and repair, and, at the expiration of the term, yield them
up in like good repair ; that he would not remove, injure or destroy
any root, plant, bush or tree growing on the premises, or suffer the
same to be done; that~4ie would not underlet or assign the premises,
either directly OT'lSy-^aperation of law, without the written consent ol
the landlord : and that during the term, the dwelling house should not
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 unpaid ;
2. That on the 1st January, 183f, the tenant perrnitted the dwelling
house and fences, i&c, to 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 suffered fruit trees, gooseberry bushes, asparagus
roots, and ornamental flowering plants growing on the premises to be
lopped, uprooted, removed and destroyed by persons and animals;
4. That from 1st November, 1832, until 1st June, 1833, the dwelling
house was used 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 the expense
of putting the premises in repair would be between $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 defendant offered to prove that the plaintiff held the demised
premises 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 and 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
evidence was rejected by the judge. The defendants also offered to
prove that in tlje autumn of 1831, an agreement was entered into be-
tween the plaintiff, the defendant Edmund T. Carpenter and two per-
sons of the names of Mills and Owen, that Carpenter should quit and
surrender up the premises to the plaintiff, that the lease declared on
should 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
of 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, and Mills and Owen took
possession of the premises and occupied the same pursuant to such
agreement as tenants to^he plaintiff', .who accepted them as such, and
received rent from thcnrL That Mills and Owen occupied the premises
until the autumn of 1832, when they left, and were succeeded in the
possession by Wood and Matthews, to whom also the premises were
let by the plaintiff, and from w^hop he akn 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, for the reason that a covenant cannot be discharged by parol J^ ^
before breach. The judge sustained the 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, charged the jury that the plaintiff was
entitled to his verdict for one quarter's rent, (which was admitted to
be all that was due at the bringing of the suit;) and, further, that
they were not bound to limit their verdict on the covenant of repairs
to nominal damages but might give such sum as, under all the cir-
cumstances, they should consider the planititf entitled to recover, pcu-
vided thev were satisfied that the defendants had violated their cove-
nants. The jury found a verdict f^-tli£^laiiit2ff_\vith $481,25 dam-
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 surrender
J is defined to be a yielding up of an estate for life or years to TTmT
^ who hath the immediate estate in reversion or remainder, wjierein the
fstate for hte or years may drown 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, any form of words without writing, whereby an intention ap-
»/i>*''^*^Z^ \ peared to surrender up the possession of the premi'^pc; tn tlip 1p':;(;;nr
L^"^ I or reversioner, was sufficient for that purpose. This was called a
"a) surrender in fact. There was also a surrender in law. It was effected
i'by the acceptance of a new lease of the premises from the lessor, for
the whole or a part of the time embraced in the former one, because
it^ necessarily 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, ^
by parol, and not put in writing, &c. shall have the force and effect of
leases or estates at will only," &c. excepting leases not exceedmg tJie
term of three years from the making thereof. And also, "no leases,
estates or interest either of freehold or term of years, or anv uncertain
interest, &c. oi, in, to or^out ot any messuages. &c. shall be assigned.
granted or surrendered, unless by deed or note, in writing, or operation
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 for
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 three
years, and in this state for more than one, is entirely void ; though if
the tenant enters into possession, he shall be deemed a tenant at will,
and for the purpose of notice to quit, from year to year, and notwith-
standing the lease be void, it may regulate the terms- of hol^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, conclusively settled
by authority, that the second lease must be a valid one, so as to convey,
the interest it professes to convey, to the lessee, and also to bind him to "j^
the performance of the" covenant or agreement in favor of the lessor,
in 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 the
ground upon which the 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_is^ 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. An iniplied tenancy at will
onhLwas 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
est in the premises according^ to the contract^ or in other words, carry
into 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 there it is clear it need not be in writing to
have the effect to surrender the old one, even if by deed. 2 Starkie's
Sv. 342; 20 Virrer, 143, L., pi. 1, n. ; 1 Saunders, 236, n. c. I am in-
clined therefore to think that a valid parol lease, since the statute, might
produce a surrender in law within the reason and prmciple upon whi^h
this 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
lease by parol is by operation of law a surrender of the old one, al-
though 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
the 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 under-
etting unless permission was given in writing; and a parol license is
therefore inoperative. 2 T. R. 425; 3 T. R. 590; 3 Madd. 218;
Piatt on Cov. 427. This clause in a lease would be nugatory, if courts
should 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
see as his tenant- that in point of law puts an end to the privity of
estate., and an action of debt cannot be brought to recover the rent.
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 accept-
ance of a subsequent lease by parol operates as a surrender of^g.
former 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 repair
like 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
that 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 cannot question, in this action, the title of the land-
lord. , The action is upon an express covenant between the parties,
and the suit, if sustained at all, must be by the plaintiff alone.
New trial denied. ^ 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, after the Plaintiff had proved that the Defend-
ant had been tenant from year to year of the Plaintiff's house, the De-
fendant proved a parol agreement, that the Plaintiff would give up his
claim to the rentj_on the Defendant's giving up immediate possession
in 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. The Plaintiff sought to recover for a time
stjbsequent 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 jury found a vjerdict for the Defendant.
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 clause of the statute of frauds v>diich restricts es-
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 determined
merely by" the landlord giving the tenant a parol ncense to quit, and the 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) provides that no
lease or term of years, or any uncertain interest * * » shall be s!ur-
renaered, unless py d^tJU or UOt^ ih writing, oi- by act and operation of 1^.
ilere there was no aeea or note in writing, and nothing 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. 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 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
Rule discharged.^ ° - . d /4:^i^l±fr^f'*^ '
THOMAS V. COOK.
(Court of King's Bench, ISIS. 2 Barn. & Al
Action for use and occupation. At the trial of this cause at the
London sittings after Trinity term before Abbott, J., it appeared that
the plaintiff had originallv let the premises_^ consisting of a house in
Long-L.ane to 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 Thnmas, 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\nd
afterwards^ in October. 1817. the plaintiff himself distrained the goods
of Perkes for rent in arrear. The jury found, by the direction of
the learned Judge, a verdict for the defendant, on the ground that
Thomas had, with the assent of Cook, accepted Perkes as his tenant of
the 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 that
appeared on the trial was a parol surrender by Cook of his interest
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. Then if this surrender be void the case
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
Falls within the autlinn'ty of Bull v. Sibbs. 8 Term Rep. 327, and the
plaintiff is entitled to a verdict.
Abbott, C. J. By the third section of the Statute of Frauds, it is
'enacted "That no leases, estates, or interests, either of freehold, terms
of years, or any other uncertam interest in any messuages, manors.'
lands, tenements or hereditaments shall be surrendered, unless by
deed or note in writing, or bv act and operation of lawT' And the
question in this case is, whether what has been done will amount to a
surrender 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 defendant underlet
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. Tjhjnk, therefore, this amnnnt-
ed to a yalirl <^^irrpndpr ^^ Cook's interest in the premises, 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, the privity of estate is thereby de-
stroyed, and on that ground it is not competent for the lessor to bring
debt 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 accepted Perkes as his tenant, and must be considered
to 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^
acceptance of Perkes as tenant to the plaintiff: for that assent was
clearly for Cook's ^benefit.
HoLROYD, J. It appears from the Statute of Frauds, that a sur-
render in order to be valid, must be either 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
acceptance by him of another person as the tenant, and that acceptance
IS 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 there-
fore the third section of the Statute of Frauds, I am of opinion, that
the facts here found by the iurv amount to a valid surrender of Cook's
interest^ and a re-demise of the premises by the plaintiff to Perkes.
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 action for assumpsit, for use and occupation. The
cause was tried before Lord Chief Justice Best, at the sittings at West-
minster, in the present Term.
The plaintiff, a widow, let to the defendant part of a furnished house
in Manchester Square, at the rent of sixty-five guineas, for one year
certain, from the 14th of September^ 1824. The defendant quitted at
end of the first quarter, viz. on the 14th December, paying rent up
to that day. About three weeks afterwards, the plaintiff let the apart-
ments to. another person, at the rent of one guinea per week. At the
expiration of the second quarter, the plaintiff sent in an account to
the defendant, charging him for a quarter's rent according to the
terms of the original takmg, deducting the sums received from^the
person 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-
fendant paid. The second tenant quitted in the beginning of July,
1825, from which time, until the 14th of December following, the
apartments 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 Lordship, being of opinion, that, by letting the^ apartments_to
another, the plaintiff had rescinded the previous contract with the
defendant, 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 prevented
thg^ defendant from occupying these premises. She let them to anoyier
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
tenant. Can a landlord have two tenants, and be rprpivino- rent-icnm
one, and at the same time holding the other liable? 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, that, upon her then living up the
possession, the rent shall cease, and she never afterwards occupies the
premises, he cannot recover, in an action for the use and occupation
of 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. The pres-
ent action can never succeed. The action for use and occupationjde-
pends. either upon actual occupation, or upon an occupation whirh the,
defendant 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
properly nonsuited the plaintiff; 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,
the plaintiff, by her own act, rescinded the contract with the defend-
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 con-
duct of the plaintiff in re-letting the apartments, signified as complete
an acquiescence m the tenancy being determined, as could be con-
veyed 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 abundant
evidence that the contract was put an end to with the assent 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. Under the circumstances, I sec no reason for disturbing
the 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.plaintiff_entered upon a decision of the court
at a Trial Term, a jury having beefi waived.
' This action was brought to recover two months' rent of the premises
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 for ten years
from August 1st, 1893, at the yearly rental of $2,400, payable monthly
in advance, and also the extra water rent charged against the defend-
ant for its business. The defendant took possession about July, 1893,
and paid 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.
The answer, in effect, admits the making of the lease, but denies any
indebtedness under it and sets up the eviction of the defendant, a_ sur-
render and rescission of the lease, and claims credit for the rent re-
ceived 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.' "
The defendant moved out and sent the kevs of the store to the plaintiff
by 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. :
"Yesterdav I received the keys of 787 Eighth Avf^^ii^ ^y "injl^ I
hereby notify you that I do not accept a surrender of the premises, and
that 1 intendto hold y^u rf'^P'^^'^i^^f- for the rent under tlie lease. _ I
shall let the premiseson your account, and hold you for anv loss which
may be sustained.
"Yours, etc., John Gray."
The defendant made no answer to this 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 plaintiff asked Mr. Kaufman for the November rent, and
the latter replied that no rent was due ; that he had not made a lease ;
that there was nothing due and he would not pay ; that he had given up
the 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 had a conversation with_the
plaintiff about compromising the matter bv taking the cellar of said
premises for fifty dollars a month for the term of the lease if the
plaintiff would cancel the same as to the rest of the premises. 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. Please let me know if you will
keep the cellar and pav the dift'erence between the $1.jOO and $2.400
to^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 received no reply thereto. Tlie
defendant had tenants in the cellar when it left the premises. These
tenants 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 five months at an annual rent
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-
vance.
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. The lease to the defendant contained no provision against
subletting, except for "any saloon or liounr busmess. and_con-
tained no provision for a reletting of the premises by the plaintiff
in 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. Upon these facts the court found^iat
the plaintiff" was entitled to recover rent for the mont
and December, less the amount received from the
the plaintiff refused to accept a surrender of the
premises were at no time surrendered to the plaintiff, and that the re-
letting 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 case is
whether the plaintiff^s reletting of the premises deicribed in the lease, f
a?terthe defendant's attempted surrender of the same, changed or af- '
iecfed the legal status of the parties under the originaljease. 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 ^^ ^^
inconsistentwith the subsisting relation of landlord and tenant as to ^
imply that they have both agreed to consider the surrender as made, y^'^^/v'-*'***^
It has been held in this state that "a surrender is implied, and so effected
by operation of law within the statute, when another estate is created
by the reversioner or remainderman with the assent of the termor in-
compatible with the existmg state or term." Coe v. Hobby, 72 N. Y.
he court lound^iat
jnths of Noveinljer /f)^^ ^f^Ztt
iinderfennnts; thnt Un^ ^
premises : that the '
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. Such a situation, unqualified by:
other conditions, would create a surrender by operation nf law. We
niust, therefore, ascertain whether the conduct of the parties takes this
case outof the operation of this rule.
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. Here the subject of reletting Avas not mentioned until after
the tenant went out, and then the suggestion came in a letter to which
the 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
landlord's proposal 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 There the tenant vacated the
premises upon the oft'er of the landlord to relet for his benefit nnd nn-
der such circumstances as tn permit the inference that he accepted the
offer. 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 be
doubted whether verbal declarations made in personal jntprvipw; hp-
tween the parties, under the circumstance*' nhnvp na^rfitfr], wnu 1 d
support the plaintiff's theorv of this action. To create a contract by
impii^ation^.lh^rernust bean unequivocal and unqiiiTlfie^asser|lQ^_of
a ri^liOy\one qf^jhe parties. aaSTiuch 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 different.^nd ther^Js
no rule of law which requires a person to enter into a correspondence
with another in referencetoa matter m dispilte between them, or which
holds that silence should be regarded as an admission against the party
to 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.
It is manifest^herefore, that the act of the plaintiff in reletting_said
premises under the circumstances referred to operated as an" acceptance
of the defendant's oft'er to surrender. 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 judgment of the court below sliould be reversed and a new trial
granted, with costs to abide the event.
Landon, J. (dissenting). 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
letting of the premises was done with the assent of the defendant."
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 evidence tends to
show that the defendant intended by its conduct to threaten the plain-
tiff with the loss of his rent, and thus to coerce him to relet the^prein-
ises, and then deny its assent^ jiotwithstanding after its receipt of the
plaintiff's first letter, it told the plaintiff he could do as he liked with
the 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 iinrlpr a leasp dafa4
the 1st day of April, 1895, for a store and dwelling known as No. 507
South BroaHway, Baltimore. The lease is in writing and is fully set
out in the record. The property was rented for the term of five years,
beginning on the first day of April, 1895, and ending on the 31st day
of March, 1900, at $900 per year, payable in equal monthlv installments
on the firjt 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. It was further provided, in rase
the rent should be ten days in arrear and not paid when the same should
become due, then the lessor may re-enter and take back the premises
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 pos-
3 0 The portion of the opinion relating to the correctness of the form of
action is omitted.
218 DERIVATIVE TITLES (Part 2
session of the demised premises until Tune 1st, 1898. when he paicLthe
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 the key and that it is still at my office at your risk and'disposal.
I also hereby notify you that we will hold you 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 intend to make an ef-
fort 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
property was for rent,. and it was rented from time to time, and the
defendant 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 offer-
ed on the part of the, plaintiff, and rejected those presented by the de-
fendant, except, tbe-^fifih. 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 evi-
dence and were to the efiFect that as a matter of law there was no legg.1-
Ch. 1) MODE OF CONVEYANCE 219
1^ sufficient evidence of the acceptance of a surrender, or of an ouster
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
assent of both parties to the rescinding of the contract of renting, and
such assent may be expressed or implied froip such acts as would rea-
sonably indicate that the parties have agreed that the tenant shall
abandon the premises, and the landlord assume its possession. 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.
Butit is earnestly urged that the re-renting of the property fpr the.
bgnent of the tenant without his assent was an acceptance of a sur-
tSJid^r, an nn^tfr nf the tpnant^ and released him from liability for rent
under 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
hold that where a tenant repudiates the lease, and abandons the de-
mjsed premises, and the lessor enters and relets the property, that such
re-renting does not relieve the tenant from the payment of the rent
under 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 those are insufficient of themselves to show accept-
ance, unless under all the circumstanrp<; thfV ^''^ "f such a Hi^imrter
a^ to show a purpose on the part of the tenant to vacate and on the
part ot the landlord to resume possession, to the exclusion of tbp. ten-
ant."
In the case now under consideration all of the acts of the lessor,
including the letters of June 2nd and 3rd clearly show that the appel-
lees did not intend to accept a surrender of the property and to release
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, that the assent of the
tenant 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 plaintiff's special exception to the defendant's first praver w^as
properlv 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.
Forthe reason we have given, the defendant's prayers were properly
rejected, and as the correctness of the Court's rulings on the plamtiff's
prayers established the right of the plaintifls to recover, the judgment
will be affirmed.
Judgment affirmed 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 refuses
to continue your tenant, gives up the house into your hands, why, then, sou
have a right to put a bill uimhi the hinisp nnil try to rent it; because, 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; and certahilv it is much better for the tenant, that the land-
Igrd should rent the house aivl get sonietliinLT fnr TI, tli;in to siuiiily FockjUie
door and lay by and sue tlie tenant or surety fer the whole ainnnnt of , the
rent tor the whole terni 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-
ises 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 damages
which he might otherwise sustain, without being held to have crpnfptiM
surrenaer by operation of law. * * * The arpnprnl mlp no doubt Is thnf.
if the tenant abandons the premises and the L4hdlord I'e-fen'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
that if the landlord re-leases them for and'bri Account of the tenant n snf-
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 plaintiff, as assignee of the reversion of
certain houses"an3 rope-walks at i5hadwell,"lio_lderrun(ier a lease trom
the Dean ofS't. Paul's against the defendants, who are executors of
Shakespeare Reed, Deceased, 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 held
the premises during his life^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 at
§hadweli^jjid^ing the houses and premises in question, to two per-
sons of the names of Ord andPlanta (who were in fact Jrustees for
tlieI3^jtY£sJamily) for a term of forty years, commencing at Christmas,
1803, and which would, therefore, expire at Christmas, 1843. On the
24th jjf March, 1808, Ord and Planta made an underlease of the houses
and rope-walks in question to~StTakespeare Reed for thirty-four years,
cx)mmencinfT from Christmas, 180/, so that the term created bv th\is
underlease would 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 and Francis Charles Parry were .ap-
pointed by the Court of Chancery trustees for
the 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 accordingly a new 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 itL-£a.Ch particular case.
■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 here, ana an acceptance of it. especially in view of the fnrt ttiP^ ^"
/^
Appellant nevefjnotiged the lessee at any time, not pvpti pftpr r^rmy^p;? tvia
nouncation 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
\^\ dated on the 7th of April, 1812, for a term of forty years, frnm r;.|iri<;t-
k M mas, 1811. an3~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 trus-
tees; the fact of_the_change of trustees and the assignment of the 3d
of October, 1811, having, at the time escaped observation. In this
state of things, a private act of Parliarnent was passedTenabling the
dean and his successor for the time being to grant leases of the Shad-
well estate to the trustees of the Bowes 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 thedean should be empow-
ered to grant long leases of the Shadwell 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
end of every fifty years to grant a new lease on payment ot a nomfnal
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 en-
acted, that, immediately on the execution by the dean of the first lease
for ninety-nine years to be granted in pursuance ot the act, the lease
ot the /th 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
three parts, dated the 31st day of August, 1812, and_ma^gJ.^£lS£au-tFe
^^ ' dean of the first part, Thomas iJowes"(the party "beneficially interested
*/ forJiisTrf"e)_qf the'seTondl^art^ and Osborn 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
of nJnetvTnine years, and the dpt-^i,';^ ig pypressed fahe maHf^ h<^ ;v^]1 in
iconsideration of the surrender 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\ 1814. 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 sur-
render. tfl_the dean the whole of the said Shadwell estate, to the intent
that the term of forty years, created by the lease of the 26th oi-Xle -
cember. 1803, mio;^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^
leases of the 26th ot JJecember, ISO:
for the 61
act of Parliament, to Osborn and Burt.
rators. and assigns^ for a term of ninetvtnine
estate, pursuant to the sai
rs, admim
their execu:
years. The interest of Osborn and Burt, under these two leases to
them, has, by various assignments, become vested in the plaintiff and
tl^ere is no doubt but thatjig 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 that the dean, being
seised of the reversion expectant on the term of forty vears so assigned
toBarEer IjTd Farry, by the indenture of the 31st of August. 1812.
demised tKe'premises to Osborn and Burt for a term of ninety-nine
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 surrendering thejoriner
term crejj;e(i by the 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 pleas : First, 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. Secondly a plea traversing that demise. Thirdly, 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. Fourthly,
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. Sixthly, 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 lease of the 31st of August, 1812, was
dulv made in pursuance of the act, and ttiat. at the time when it was
made, the lease of the 7th of April. 1812^ was duly surrendered. 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 that the acceptance of the second
demise was of itself a surrender m law of the first, even^if no surren-
der m tact wa^_ipade. 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 real qiiestinn. therefore, for our consideration is, whether the/ .^
plaintiff has succeeded in showing that the term of the 7th April was *
surrendered previously to the execution of the indenture of the 31st
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 surrender in fact; and if that be
not so, then, secondly, that they prove conclusively a surrender in point
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^ and not in livery, afld of which, therefore, there «**«=^
could be no valid surrender in fact otherwise than bv deed ; and what i^ •^''^'^'^^^^^^^^
the plaintiff must make out, therefore, on this part of his case is, that, • » ^
^r^
before tTie execution of the first lease for nmety-nme years, 'Ord and ^'A-i ^''^^^
^^^fanta^y some deed not now forthcoming, assigned or Surrendered AjM>'"*^ yj
to the dean the interest which they had acquired under the lease of
the 7th of April. 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
long enjoyment of any right, which could have had no lawful origin
except 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 therefore, as to that
portion of the property included in the lease of April, 1812, there has
certainly been no enjoyment inconsistent with the hypothesis that that
lease 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 ordinary 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 com-
monly the case, the former lessee takes the new lease, and aU which
Aig.Pbop. — 15
226
DERIVATIVE TITLES
(Part 2
A-""^.
Oj^
is ordinarily done to warrant the statement of the surrender of _the
old lease as a part of the consideration for granting the new one, is,
that the old lease itself,, the parchment on which it is engrossed, is de-
livered -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 surrender 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.
Wliere a surrender by deed was understood by the parties to be
necessary, as it was with reference to the term assigned to Barber and
Parry^ there it was regularly made, and the deed of surrender was
endorsed 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-doming,
and we see nothing to justify us m presuming that any such deed
^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 no
.surrender in fact^ the rirrnrrT^tances of the case will warrant us in hold-
ing^^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 applied to cases where the owner of a par-
ticular estate has been a party to some act, the validity of which he
is by law afterwards estopped from disputing, and which wouldnot
e valid if his particular estate had continued 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 lessor., he is.,estopped
rom saying that his lessor had not power to make the new lease ; 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 acceptance 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
act done bv_or to the owner of a particular estate, the validity of which
he^ is estopped from disputing, and which could not have been done
if_the particular estate continued to exist. ^]he-Jaw lJTe?:£.^s3j(s^thgt
tlie .act itself araQlinta.to_ja ^ujTender. In such case it will be observed n
there can be no question of mtention. The_ surrender is not the result ^-{>t^;vvfirikf^ '^
of intention. It takes place independently, and even in spite of inten->^ / ^.^a^**'^ *^
tion. 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. In all these rases the ^ ^''^ /
surrender would be the act of law, and would prevail in spite of the
intention 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 be
seenthat they do not at all warrant the conclusion, that there was a sur-
render^f the lease of the 7th of April, 1812^ bvact_ and nperatian
oit lawl Even adopting, as we do, the argument ot tHe plaintiff, that
228 DERIVATIVE TITLES (Part 2
the delivery up_by Ord and Planta of the lease in question affords
cogent evidence__of their having consented to the making of the new
leas_e^stdl there is n^estoppel in^ such a case^ It is an act which, like
any other ordinary act in pais, is capable of being explained, 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 grounds, we ar^ of opinion that there was in
this case no surrender by operation of law, and we should have con-
sideredJJie case asjiyite clear had it not been for some modern rases,
to which we;, must now 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,adiaD"of debt by^
r'*'/\fl^ j landlord 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 that so the tenancy of Cooke had been determined.
V^Thf Qourt of King's Bench held, that the tenancv""was deterrnined.
by 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>iiLpais which bind parties by way_of estoppel arejajiijew,
and are pointed out by Lord Coke. Co. Little. SSTaT'^'Tfiey are all "acts
which anciently really were, and in contemplation of law have always
continued to be, acts ofjl£tori.ety. not less formal and solemn than the
execution of a deed, ,such as livery^ entry, acceptance 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 the
doctrine of Thomas v. Cooke should be extended, it may very much
affect titles to long terms of years, mortgage terms, for instance. _in
which it frequently happens that there is a consent, express or implied,
by the legal termor to a demise from the mortgagor to a third person.
To hold that such a transaction could, under any circumstances.
amount to a surrender by operation of law, would be attended with
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^^^
tending the doctrine of that case, which is open to so much doubt,
especially as such a course niight be attended with very mischievous ^-^VT»-/2L^
consequences 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, and where there is an open and notorious shifting of »- — -
the actual possession, it does not follow that we should adopt the^same '
doctrine where reversions or mcorporeal hereditaments are disposed of,
which 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 judgment 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
during the incumbency of the dean, who made the lease for ninetv-nine
years, that lease would be good independently of the private_act, and as
the immediate reversion^ on which the defendant's lease, depended^ was
assigneB to the dean by Barber and Parry previously to the demise of
the 29th of January. 1814. that reversion undoubtedly passed to Os-
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 entitled
to 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, ceased 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.
Neither will the second private act stated in the case aM_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, stated, that he was ofo£inion that both the leases of
ninety-nine years were voTcI, the hrst because it was made when the
original term of forty years wardutstanding in Barber and Parry, and
the latter because at the time of its creation the lease of the 7th of
April, 1^12, was still outstanding, thus showing clearly his opinion that
nothing had happened to cause a surrender of that lease by operation
of law ; and he recommended that an act of Parliament should be ob-
tained 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'rebv
enacted, that the lease of the 29th of January, 1814, should be valid
to all intents and purposes ; and further, that immediately after the
passmg of the act, the leases of the 26th of December, 1803, the 7th of
April. 1812. and the 31st of August, 1812, should be void to all intents
and purposes. The' effect of this was to degtfoy altogether the rever-
sion 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 result_tl"'^'"pf'^TC ^'^i ^J2^ the verdict on the 1st and 5th
issues must be entered for the defendant._an_d on the other issues for
the plaintiff, and the judgment will be for the defendant.
Judgment for the defendant.^ ^
XII. Assignment
BLACKSTONE'S COMMENTARIES.
An assignment is properly a transfer, or making over to another, of
the 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 collateraLjkcd. made at the same time with a feoff-
ment or other conveyance, contammg certain conditions, upon the per-
forrnance of which the estate then created may be defeated or totally
undone. -^
Book 2, star p. 327.
33 See 5 Irish Jurist, 117.
"In tliis case, the defeiidnnt hciTip thp lessee in possession of the premises,
the 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
surrender 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
ngspnt to flif^ observations upon the line of ca^-es. from Thomas v. iCndk.
d^wnward^ii. in the" learned and able iudLrment given in Lyon y. Keed. IJL-M.
& \V. 283 (lM^'4>,"we' wish to express our entire concuri'enil'e m the decision la
tl^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 his
testament his lands and Jenements^ which he hath in fee simple withjji
the same borough 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
enter into the tenements so to him devised, to^ have arid to hold to
him, after the form and effect of the devise^, without any livery Qf
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
making feoffments of lands to trusted friends to be held on behalf of
th ef coffer or a third person or to be disposed of as directed at the tini e
of the conveyance or thereafter.^ ^ Under such conveyances the legal
ownership 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 became common to make the conveyances to two or mox£-as
joint tenants. '^^ This method of disposition in its early use was re-
sorted to in order that corporations, societies and individuals that were
incapable 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 trea-
son, etc.^^
84 By the Statute of Wills (32 Hen. VIII, c. 1), power NYfls given to every
tenant in fee simple to dispose of all liis lands hold by sooai^o temuv, aii(i_aL
twb-thiras or b£s lanas neld Dy~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 freehold tenure disposable 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^son to whom the land_was conveyed came to be called 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." This ''use" was not in any sense ownership. On
the contrary it distinctlv was not ownership.^° 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 cestui
que use to have the beneficial occupation of the land and to take the
profits 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
such feoft'ees to compel their observance of the trust and the directions \y
qf^tlie person on whose behalf they held.*'^ During the time of Henry
VI it was held that the heir 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 transferee of the feoft'ee
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 ustom of conveying lands to uses became even more popular, so pop-
ular in fact that Blackstone says that during the civil commotions be-
tween the, houses of Lancaster and York "uses grew almost univer-
After the jurisdiction of the Chancellor to enforce uses became well
established and settled, gradually the use came to be considered the
subject 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
fA_.use_ is a trust or confidence reposed in some other, which is not issuing
t of the hind, but as a thuig coUateral. annexed in privity to the estate ot
the laud, and to the person touching the land, scilicet, that cestui que use shall
take 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, %^
OQly 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 0 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." Tlie "use" in equity tlius became
an equitable 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 was
possible 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 these equitable estates were not subi££L.to
such restrictions, there being no seisin^m the case of a "use." Accord-
ingly an equitable estate of freehold could be provided for to arise in
futuro.. Such 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 shifting uses,. Also uses could be devised by will,
for no livery of seisin was required in the transfer of a use.
Jn 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
varied_even in the case of a use.*^
^he use ccnie to be consirlered as a sort of metaphysical entity in which
_ re miaht he estates very similnr to those which cnnhl ht^ creati-il in liind.
estates in possession, reiiiaitider. reversion, estates 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. Hut
future estates could only be limited in the form of remainders, and any Umi-
tallons operating to shift the seisin otherwise than as remainders expectant
vipon 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. — tljie limitations shifting the seisin from A. to B.
The 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 investejjL
^^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, that a grant of the freehold could
not be made to commence at a future time, leaving the"l(Jl!»IU'y \ acant duri_iig
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
In 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 common law incidents of tenure were not applicable
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. The wife was defrauded of her thirds ;
the husband of his curtesy : the lord of his wardship, relief, hcriot. and
ej^cheat ; the creditor of his extent for debt: and the poor tenant of his
lease." ^^ "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)."^*
These 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_
in 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."''^ In such cases the use was said to result, and was known as a '"'
resulting use. This presumption could be rebutted bv an express limi-
tation 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.^* Consideration and recitals of consideration ac- ^
cordingly became very important in conveyancing.
5 0 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 0 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, the ry\^i/i4/9^ ^^
tenure alone thereby created^ with its attendant services and obligations. sur>- ^-'
plied a consideration sutficient to prevent tne use from resulting, and to carry
it 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 giv-
en or recited will be deemed to be on account of the use expressly provided for.
Sanders, CSSs and Ti-ustsri02! A te6Ttment in fee to the use of the feoffor
for life or years will 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 agree-
ment of sale of the land supported by a valuable consideration.^^ Also
by a declaration or 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 "bargain and
sale," the latter as a "covenant to stand seisgd."
II. The Statute: of Ushs
Where by the common laws of this realm, lands, tenements and
hereditaments be not devisable by testament, nor ought to be transfer-
red frorn one to another, but by solemn 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, whereby the hereditaments of this realm have
been conveyed from nnp t(7 ^^nntlipr by fra,udu1ept feoffments, fines, re-
covenes, anH ntlipr a'^qnr^nrpg craftilv made to secret uses, intents and
■ ■ ' — ~" 7 ■ — -^. -■■■ _ '
trusts ; and also by wills and testaments, sometime made by nude parolx
and words, sometime by signs and tokens, and sometime by writing,
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,jand
scantly anv person can be certainly assured of any lands by th,ern pur-
chased, nor know surely against whom they shall use their actions^r
executions for tlidjijights. 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 ; and many
other inconveniences have happened and daily do increase among the
King s subjects, 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. That where any person or persons stand or be seised, or at any
time hereafter shall happen to be seised, of and in any honours, castles,
rnanors. lands, tenements, rents, services, reversions, remainders .or <■
other hereditaments^o the use, confidence or trust of any other per- /T"
son or persons. oF ot any body politick, b}^ reason of any bargain, sale,
feoffment, fine, recovery, covenant, contract, agreement, will or other-
wise^ J) V any manner means whatsoever it be; that in every such. case,
all and every such person and persons, and bodies politick, that have or
hereafter shall have any such use, confidence or trust, in fee simple,
fe_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""-
session of and in the same honours, castles, manors, lands, tenements-
rents, services, reversions, remainders, and hereditaments, with their
appurtenances, to all intents, constructions and purposes in the law, of
and jn .such like estates as^tliey had or shall have in use, trust or confi-
dence 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 adjudged to be in him or them that
have, or hereafter shall have^ such use^ confidence or trust, after such
quality, manner, form 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
smgular persons and bodies politick, their 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 and
action, as thev or any of them had, or mi.ght have had before the mak-
ing_£tiJllis_acjt.
III. And also saving to all and singular those persons, and to their
heirs, which be, or hereafter shall be seised to any use, alj^such former
rij^ht, title, entry, interest^_possession. rents, customs, services and ac-
tion. as thev or anv nf t]'\p\]^ miV1-||- \^^ye. had tn his or their own proper
use, in or to any manors, lands, tenements, rents or hereditamgnjs.
whereof thev be. .or hereafter shall be seised to any other use, 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 every
such case th£,aaJIL£. persons, theirheirs and assigns, that have such use
and interest, to have an J perceive any such annual rents out of any
lands, tenements or hereditaments, that they and every of them, their
hgirs and assigns, be adjudged and deemed to be in possession and
seisin of the 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 in Connection with a Common-Law Conveyance
GREEN V. WISEMAN.
(Court of Common Pleas, 1600. Owen 8G.)
In an ejectment. The defendant pleaded that a feoffment was made
to the useof T. S. the lessor of the defendant, who by force thereof,
and of tETstatute. was seised, and made a lease to the defendant ; 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, whether
when a feoffment is made to the use of another, if he have such a seisi
before 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 WalmselEy said then, that he ^T*^'^* -^
might be disseised before his entry or agreement, and the pleading ^ i^,
shall be that he did enter, and did disseise him, but he shall not have
a trespass without actual entrv,_ for^jhatisgrounded on a possession :
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 American ^l^ft^^fy
states.'-see 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. brought covenant as assignee of a reversjgn, and shewed, that
tlie lessor, in consideration of 5/. bargained and sold to him for a
year, and afterwards released to him and his heirs, yirtute quarundam
indentur, bargainse venditionis & relaxationis necnon vigore statuti de
usibus, &c. he was seised in fee- 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 the
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 convey-
ance 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; because, if now the use be
construed to be to Jhe releasor or feoffor, the conveyance will be to.no
rnanner 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
residue of the use shall be to the feoffor, which is reasonablej._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.)
Ejectment, tried at Norwich before Parker, Ch. Baron, who re-
served this short case for the opinion of the Court. A. B. beingLin
possession of the lands in question, levied a fine sur co^usans de droit
corne_ceo, &c., with prodamations to the conusee and his heirs, in tlie
6th year of the present King, without any consideration expressed, and
widiout declaring any use 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^ ^ ~^
of 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 — In the case of a fine come ceo. &c.. where no uses are de-
clared, whether the conusor he in possession^ or the fine be of a x%-
version. it shall enure to the old uses, and the conusor shall be in of
the ol3 use ; and although it passes nothing, yet after five years and
non-claim it will operate as a bar.
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.
In the case at Bar, the ancient use was in the conusor at the time
of levying the fine; and it seems to have been long settled before this
case, that a fine without any consideration, or uses thereof declare^,
shall enure to the ancient use in whomsoever it was at the time of levy-
JT^^y the fine; ^r\(\ ^'^ it vv;;^^ here in the COnusor at that t^ITlP, *^^^ '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 that
day, by indenture of release reciting that the releasees were in posses-
sion 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 force of the statute
^for transferring uses into possession," and in consideration of £100.
^Omju^^^^ji^ 1 paid by the releasees, he released the premises to Robert Alexander
\ and seven other persons named, of whom Joseph C. Yates, the original
<^-^U^ [ defendant in this action, was one, "and to their heirs and assigns^For-
"Z^'J^^^ ever." The deed then declared that the conveyance was "upgntrusi,
(J >. nevertheless, to the only proper use, benefit and behoof of Cornelms
-,^ ^ ( Van Dyck," and twelv^ other persons named^ "members of St. George's
\M^^' ) Lodge, m the town of Schenectady, and all others who at present are
J or hereafter may become members of the same, their survivorsand
* I successors forever, and to and for no other use, intent and purpose
\ 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 quiet 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 made.
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 made Lawrence and Petrus Van der Volgen his residuary
devisees. In 1819 Petrus died, having devised all his estate by willjo
Myndert Van der Volgen, Lawrence and Myndert being thus the legal
representaTtives of Nicholas m any devisaPie estate in the premises
which he may have had at the time of his death.
f/fu ^ d/^y, I^ 1S33 the act to incorporate the Utica and Schenectady Railroad
yUA^*'*^^^ Company was passed. Under its authority the company instituted
•^ J proceedings to appropriate the lot in question to the use of the road.
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 cents
Jly*^^^ I to the two Van der Volgens, and $2755 to Yates "as trustee under Jhe
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 present
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 ofthe
statute ofTuses. to vest in_\la.n Dyck and other'? ^y|in nrp t^pppjally nam-
Ch. 1) MODE OP CONVEYANCE 243
ed 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 vokl for uncertainty ; and that the use of equjiabl^Jnter^ thus
attempted to be given to the members of the lodge not specially named,
cannot 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 whether upon the death of^
the last surviving cestui que use the estate resulted back to the reprgi
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
where 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 expressions. 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 useor pernancy of
the profits of the lands thus conveyed.
This doctrine was not altered by the statute of uses. Therefore it />">■ ^ a •/ /I
became an established principle, that where the Ic.gal seizin or pos_ses- t/yt^L^O-'*^''*^
sion of lands is transferred by any common law conveyance or assur- C^ l,,*.**^^
ance, and no use is expressly declared, nor any consideration or evi- ^ ''
dence of intent to direct the use, such use shall result back to the origi-
nal owner of the estate ; fon^h^re there_is neither consideration noj-
declaration_ofuseSj nor any circumstance to show the intention of the
parties^ it cannot be supposed that the estate was intended to be given
away. 1 Cruise, tit. ii. ch. 4, § 20.
But if a valuable consideration appears, equity will immediately \ (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 ther G{h^»
legal estate is conveyed, and from whom the consideration moved, wjllj
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
to tlie original owner where no cnnsidergtinn appears, because it can-
not be supposed that the estate was intended to be given away ; and by ^-^
the same rule it will not result where a consideration has been paid,
because 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 equitable
estate, so that after the statute a convevance of the use was a convey-
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, "the intention of the par-
ties to be collected from the face of the deed that gives effect to result-
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, so much of the use as
the 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
use remains in or results to the grantor, because there was no grant
of it, nor any mtention to grant it, and because it has never been paid
But the general rule above stated is clearly inapplicable to a case in
• 'f'Jiu^ which the intention of the grantor, apparent on the face of thejdeed.
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 that he intended to part
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 use
and beneficial interest to the members of that Indole either as a corpo-
rate body, capable of takmg bv succession forever, or to that associa-
tion for a charitable use or perpetuitv. In either case, if the convey-
ance had taken effect according to the grantor's intention, it \vould
have passed his whole title, and no part of the use could have result-
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, yet it cannot be doubted that the parties believed when the
deed was executed that the grantor conveyed his whole title in fee, and
the intentions of the parties that the entire use and interest of the
grantor 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, that the sum of ilOO consideration was
paid and received as an equivalent for what was intended and supposed
to 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 conclusive 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. The complainant's claim
to the resulting use, or reversion of the land, being founded solely on "^
tlie assumption that the grantor never was paid for it, must, tlierefore.
fail because the assumption is disproved bv the deed itself. >
A use never results against the intent of tlie parties. "Where theie
is any circumstance to show the intent of the parties to have been that
the use should not result, it will remain in the persons to w^hom the
legal 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 to convey the land in fee t /\t^tj^rUji
^\ PC 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 payment of the purchase money, of 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 purchase
money and the land also. Payment of the, purchase money for the -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 appears
that upon a feoffment to a void use, upon a pecuniary consideration.
y^ however small, the title vests m the feoff'ee for his own benefit. The
conveyance in the present case was by lease and release, which oper-
ated in this respect like a feoffment, and vested the estate, legal and
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.
Decree 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 warranty, wifh covemmts to the
"grantee, his heirs and assiajns," and in consideration of one dollar paid by
B. (his brother), "trustee of" Q. ^another brotner), and of "the love an"cl atfec-
ta
us
tion" he liore to C, conveyed a parcel of land to B., "it being my intention" "
convey" to B., "in trust tor" C.^"to nave ann lo noia to the said grantee, h.
heirs and assigns, to his and tlieir use and liehoorTort^VHr.i;^ it was ht^Fcl fHat
there 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 God 1536,
no manors, lands, tenements or other hereditaments, shall pass, alter
or change 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 except the same bargain and sale be made by writing indented
sealed, 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,
taking for the enrolment of every such writing indented before them,
where the land comprised in the same writing exceeds not the yeaxly
value of forty shillings, 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, to the intent that every party that hath to do therewith, mav_j:e-
sortj.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 gaip and sale, 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&Jiad 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 deed of bargain and sale
for years of lands whereof he himself is in possession, and the bar-
gainee never entered; 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, but not to have trespass
^. 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, the plaintiff gave in.evldence an exemplification of a patent, dated
the 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 :
"Fgr value, received .of Daniel Hudson & Co., I hereby make ovgr
and grap't for myself. heirs7 ana executors, unto the tJUJd Daniel Hud-
•8 Taylor v. Vale, Cro. Eliz. 166 (1589), ace.
Ch. 1) MODE OF CONVEYANCE 249
son & Co., his heirs and assigns, my right and claim on the public jor
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 the instrument in writing .from
Brown to Hudson, one of the lessors of the plamtiff, was a sufficient
conveyance of the premises in question, then judgment was to be en-
tered for the plgiintiff ; 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 "^
writing 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. All deeds by which
land may be conveyed^ 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. If it is to have any opera-
tion, it must be as a bargain and sale, by virtue of the statute of uses.
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. The 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 universal -JL. ^
rule. _that a use cannot be raised without a consideration; and a, bar- ^
ir
gain and sale, being merely a conveyance of a use, it cannot be_eff,ec-
tuai 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 considera-
tion is requisite to raise a use, is a principle recognized by almost every
elementary writer on the subject; and has been repeatedly sanctioned
by adjudged cases. The expression of Sir Wm. Blackstone, (2 Comm.
296,) may be too broad when he says, that a deed or grant, made with-
out any consideration, is of no effect, and is to be construed to enure,
or be effectual only, to the use of the grantor; yet Professor Chris-
t
^
250
DERIVATIVE TITLES
(Part 2
tian, in his note on this passage, admits this position to be true with
respect to a bargain and sale. Baron Corny n, also, says, that n har.n-ain
and sale of land, whereby a n.^e. arises^ niighf tn he made upon.^
valuable consideration, otherwise 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 iand
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 if there be no such consideration, it may be an exchange, 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 divers good considerations, bargained and sold the land
to him and his heir^; and this~was held not to be a good bargain
and sale. The 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
therefore, it was void. If a man give land, or bargain, and sell land
to his son, no use arises thereby. If, then, a valuable consideration
be necessary to raise a use, the next question ^vill be. whether the in-
strument before us, upon the fax:e ot it, miports the consideration re-
quired in a bargain and sale, under the 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'; defined
in 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 consideration.
plainly inHi(^ate, that if it is to be inferred from the face of the deed,
i_t^ ouoht to be so expressed as necessarily to import value. It rnust
not, in the language^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^ divers good considerations, were considered insuffi-
cient to raise a use. Leing- but general parlance, implying nothing, unless
express; considerations were shown ; for otherwise none would be
intended. So in Fisher v. Smith, 5 Vin. Abr. 406, note, the court were
clear, that if^one pleads a bargain and sale, in which no consideration
9f monev is expressed, then he nnorht to supply it by an avermenLthat
it was for monej/ : 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 the
deed 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; rnses referred to. it is evident that the court did not consider tlie jAjtAjP >U^
seaL as yirtuallv importing the requisite consideration; for the instrii- |
nients. although under seal, were deemed inoperative, as bargains and Pfr^ti^ hJLi
sales. It would have been competent for the plaintiff, in the present
case, to have proved a consideration 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 the
stipulation in the case, a judgment of nonsuit, in my n])ini()n^ nnglit
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
no _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 when conveyances to uses were
introduced, the courts of law adopted the <;nmp if1pa..p and held that a.
consideration was requisite in a deed of hargajn and sale. 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
ase showed/' snid he, "\iY 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, imports 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_been
long' settled, that a consideration, expressed or proved, was necessary
to give effect to ajeed 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 merely
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 equiv-
alent to saving^ money was received, or a chattel was received. 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
to say, that an 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 ; value received does, in
judpnent 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.
"If the drawer^" he says, "mention for ynlnp rprpivpH thpn hp Jg
chargeable at common 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 considered as equivalent to saying for money received.
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 prove
onlv what would be considered as material averments, and matters
which go to the substance of the action.
254 DERIVATIVE TITLES (Part 2
But I place mv opinion on the ground that the deed contains a suffi-
cient averment of a consideration, to estop the grantor, and to give the
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.
The next point in the case is, whether the words, "make over and
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 in conveyances under the statute of uses, it is
sufficient, if the g^ranting words are competent to raise a use ^ for the
statute then performs the task of the ancient livery of seisin.
Aly opinion on both points, accordingly, is, that the plaintiff is en-
titled to judgment.
Van Ness, J., and Y.\TEs, J-, were of the same opinion.
Judgment for the plaintiff.*^ ^
^K
1
6 7 The opinion of Spencer, J., to tbe same effect as the opinion of Thompson,
J., is omitted.
In a deed the consideration was recited as "four thousand three hundred
dollars." with a line drawn throngh the "four thousand three hundred." .No
consideration having been proved, the question was whether the deed could
operate as one of bargain and sale. Catliu Coal Co. v. Lloyd, 180 111. 398, 54
K. E. 214. 72 .Am. St. Rep. 216 (IbOD).
"AVheii tiip rotiv^ideration in a covenant to stand seised to uses, or in a bar-
gain and sale, isguod^and the person certain, there that perscii may make an
a vernient that TlTe consideration was paid, an d according to the truth of TTi e
case ; but when the person is uncei-tain and the coiisider.ition ffpiipr.-il there
no,averiiiPiif 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 ^nvbntiy contrary to the
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, made and executed
certain 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
thaLlbe said Thomas Kirby. in consideration of 5s., did grant, bar-
gain, and sell to the said C. Kirby. his executors, administrators, and
assigns, the lands in question ; to have and to hold the same unto_the
said C. Kirby. his executors, administrators, and assigns, from the day
before the date thereof for the term of one year 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 in the actual possession of all the premises, and be enabled to
take and accept of a grant, and release of the reversion and inherit-
ance thereof to them and their heirs, to, for, and upon such uses,
i ntents, and purpo'^t;"^, ns in nnd l^y the said grant and release shall be
directed 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 for the natural love he beareth toward his said brother, and for
and in consideration of £100. to the said Thomas Kirby. paid by the said
C. Kirby. he the said Thomas Kirby hath granted, released, and con-
firmed, and by these presents, doth grant, release, and confirm unto the
said C. Kirby. in his actual possession thereof now being, by virtue of_a
bargain and sale for one whole year to him thereof made by the said
I'Fiomas ivirby, by indenture dated the day next before the day of
the date hereof, and by force of the statute made 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) ; to have and to hold the said premises unto the said C. Kirby
and the heirs of his body lawfully begotten, and after their decease to
John WilRinson. eldest son of my well-beloved uncle John Wilkinson
of North Daltori-Jn the county of York, gentleman, to him and his
heir'^ nnd nq<;ig^n<;, anrl tn the Only proper use and behoof of liini the
said John Wilkinson the Younger, his executors, administrators or .as-
signs forever, he the said John Wilkinson the Younger paying or caus-
ing to be paid to the child or children of my well-beloved brother
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 "Kir-
b^ and for want of such issue, then to- the younger children of my
well-beloved uncle, John Wilkinson, of North Dalton aforesaid ; and
for want of such younger children, then 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 releasor covenants that he is lawfully seised in fee, and that
he hath good right and full power to convey the premises to the said
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, peaceably and quietly
to have, hold, use, occupy, possess, and enjoy the said messuage, lands,
and premises, with the appurtenances, not only without the lawful let,
suit, &c. of him the said Thomas, but all others claiming underjijip,
&c. free from all incumbrances. • Then it is covenanted by all the
parties, that all fing^and recoveries, and deeds of the premises, levied,
suffered, or executed by the parties or any of them, or by any oth-
er persons, shall be and enure to the use of the said C. Kirby and, his
heirs of his body lawfully begotten ; and for want of sucli^-4^sue.
then to the us^ nf the ■«;aid Tohn Wilkinson junior, his heirs and^as-
sjgns for ever, according to the true intent of these presents. In
witness, &c. executed by Thomas Kirby.
It further appeared in evidence, that C. Kirby on the 10th of Novem-
ber 1733, paid 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 djppd of release in these words ; viz.
Received the day and year within written of the within named C.
Kirby the sum 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 John 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, wliether the lessor of the plaintiff has a title to recover
upon 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 take
effect as a covenant to stand seised to uses? and we are all of opinion
tliat 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 word intent is not meant the intent of the parties to pass the ,
laiTcl bv this or tEat particular kind of deed, or by any particular mode *Uvjla*.>».4^
or form of conveyance, but an intent that the land shall pass at all ^ 1^
events 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 to make acts according to
the 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 though formerly, according to some of the old cases, the mode-O r
form of a conveyance was held material, 3^et in later times, where the
inteM appears that the land shall pass, it has been ruled nth^^wise^ nnd
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'^'^ary
to make a good and effectual covenant to s^d seised to uses.cTFirstT
here is a dee^ ^ecoridl>^^ere are apt words, 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 covenantor 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 proper 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 clear
of opinion that a man seised might covenant to stand seised to thejise
qf another person after the covenantor's death,
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, plamtift" below, filed his bill allegino^ that
he was the nwnpr, in fpp 'dimple, of a lot of land in Baltimore Citv. sit-
uated at the corner formed by the intersection of the west side of Cen-
tral avenue and the southeast side of Gav street that he had acquired
from one Jane J. Murray by deed dated September 13th, 1905.
The bill alleges .that Jane J. Murray acquired title to this property by
written ag;reement executed on the 2d dav of December, 1885, by the
said Jane J. Murray and her three sisters who were at the time owners
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 enter
into an agreement that for the benefit of each and all of them named
and subscribed to this agreement and are now living in and owners
iointlv the property being their joint interest left them, Lyicy 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) ; the
object of this is that in case that if by death should take one of the
parties, the other three sisters are the owners and if two are taken bv
cfeath, then the two remaining sisters are the owners, and if by death
one of the two sisters is taken then the last surviving sister is the own-
er^ and in order to carrv faithfully this agreement, we hereunto set our
iTgnH-:; anij ^ppk anH ^nh^rrihe nur names this second day of December.
in the year eig-htPPn j^nnrlrpH anH f^JCTJ-ily-flvp "
The bill further alleges that the three sisters all died in the lifetime
6 9 There have been many cases in Avhicb the courts have been astuteto up-
hold 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). snstainJDir 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), sustaining as a bargain and sale a conveyanpp in the words "reinjjse.
release and onitplniin," void as a I'elease liecause the estate was in expectancy;
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, leaving her surviving them, the owner, as it alleges.
of said propertv under and by virtue of said agreement, and that she
died 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 occupied bv him and wa's in his possession at the time of the filing
of 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 which her h^jrs, nft^r her dpnth,
agreed to^pll tn th^ "Mprth r.ny S;trfp^ Permanmt Rnilrliiio- and T.Q.nn
Association of B^ltimnrp 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."
As the legal sufficiency of the title of Tane T. Murray in and to_the - . • "-^^
lands sold as aforesaid had been questioned, the ^l^^tift" thought itC/'<*|klAy4*^^
best, as he alleges^ ^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 de- ^^|t^^:i^^=^
fendants, 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 defendants 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 thereof.
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 question presented by this appeal is, did Jane J. Murray, the
survivor of the sisters, who were, as it is conceded, at the time of tjie
execution of the paper writing above set forth, the owners of said-land
involved in these proceedings as tenants in common, acquire their in-
terest therein under and by virtue of such written agreement?
""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. But is this instrument of writing legally sufficient to
effect 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, the Court, if pos-
sible, will give it effect in some other way, and judges have been very
astute in such cases in their endeavors to make the conveyance opera-
tive one way or the other to carry mtoeffect the intention of the grgji^
toTor donor." 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 uses
under the Statute of Uses.
^ ^/^ /' Blackstone defines a covenant to stand seized to uses as "A species
U^f,.,^^ ^ I of conveyance by which a man seized of lands, covenants in considera-
B Aji>*^ \ tion of blood and marriage that he will stand seized of the same tojhe
m^ Z**"^^ I use of his child, wife or kinsman, 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 blood and marriage. If the consideration appears in a
deed, though there be no express words of consideration, yet it is suffi-
cient 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 of
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.
The covenant must, of course, be by deed in order to constitute it a
covenant; and the usual term employed in creatmg it is. "covenant."
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 called 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 natural love, 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."
In this case, as it is conceded, the four sisters were seized in fee, as
tenants 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
one-fourth undivided interest in said land and by this deed or instru-
ment of writing each covenanted to stand seized of her interest therein
to her use during her life, and upon her death to the use of such of
her sisters as survived hei. successively to and including the last sur-
vivor, who became seized thereby, in_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 affirmed, with costs to the appellee. -^ />_£,tt._«->jr a-.^-^ ^l^^rx,"-*^
(C) Limitations Upon the Operation of the Statute of Uses
TYRREL'S CASE.
(Court of Wards, 1557. Dyer, 155.)
Jane Tyrrel, widow, for the sum of four hundred pounds paid by
G. Tvrrel her son and heir apparent, by indenture enrolled in chancery
in the 4th year of E. VI, bargained. _sold, g_ave^ granted, covenanted,
and concluded 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 heirs
for ever, to the use of the said Jane during her life, without impeacji-
ment of waste ; and immediately after her decease to the use xtf-the
said G. T. and the heirs of his body lawfully begotten ; ^and in defaiilt
of such issue, to the use of the heirs of tlie said Jane for ever. 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, Chief
r^ ^^ Justice, 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 devisee
1 ' (l ^ in 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 ; in consideration oL-an intended marriage with the said_^rah
Hill, and of a sum of £8000., being the marriage .portion of the said
^arah Hill, paid or secured to be paid to him Giwn Lloyd, he. Giwn
0ovd, did grant, release, and confirm unto the said Sir Watkin Wil-
liams Wvnne and Edward Lloyd in their actual possession then bejng,
byyirtue of an indenture of bargain and sale. &:c.. and to their heirs
and assigns, certam premises therein particularly described., and,
amongst 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 only
proper use and behoof of them the said Sir Watkin Williams Wynne
and Edward Lloyd, their heirs and assigns for ever., i^pnp Vw^^ , never-
theless, and subject to the several uses, intents, and purposes therein-
after mentioned^ that is tosay, to theuseof_the_s^idJ^^wn Lloy J and
his heirs until tlie said in tenoe^^'nramage should take effect^ and from
and after the solemnization of the said intended marriage, then to
the use and behooi ot Uiwn JLloyd and Sarah his intended wife, and
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 survij^or
to the use of Sir Rowland Hill and John Wynne, their executors, ad-
ministrators, assigns, for the term of TOOO years, to 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
and behoof of tlie first son of the body of the said Giwn Lloyd_on the
body of the said Sarah Hill, his 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
in like manner ; and then to tlie daughters; ajid for rlpf^nli- of snrh
issue, to J:he use and behoof of the ?aifl Oiwri T.lnyd, hi;:; heirs and
assigns for ever. 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, was upon trust that they did and should immediately after the
decease ofJlLwn Lloyd, by sale or mortgage ot the" whole or qny part
thereof, raise the '^^m nf ^3900 ^^ be paid and applied in manner
theremafter mentioned. And it was thereby declared and agreed by
and between the parties to the said indenture that a sum of £4000. of
the said sum of £8000. should immediately after the solemnization of
the saiH mtenfled marriage be paid mto the hands of them the said
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 fee
simple, in the county of Merioneth aforesaid or elsewhere in the prin-
cipality of Wales, or in that part of Great Britain called Engbtid, with
the approbation of them tlie said Giwn Llovd and Sar^h 11111^ -his 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 ; and that the said lands, tenements, and
hereditaments, when so purchased, and every part and parrel thereof.
with their appurtenances, should be conveyed to them the said Sir
Watkin Williams Wvnne and Edward Llovd, and their heirs, and to
the 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
was thereby also further df^cj-jprpd and agreed that in case th e re
should be no issue of the said intended marriage and that the said
Sarah Hill should be minded by her last will and testament to give or
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 should be lawful f^ ^^'^ fo'" h<>r thp
sajd Sarah Hill, notwithstanding her coverture^ to p;-ive and devise the
s^me, or any part thereof, to such person or persons, and to and-Jor
such estate and estates, and such uses, intents, and purposes, as she
should limit, direct and appoint : and in such case they the said Sir
Watkin Williams Wynne and Edward Lloyd should stand seised ofjall
and every the lands, tenements, an3 hereditaments so to be purchased
as aforesaid, to them and their heirs, to and for such uses, intents,
and purposes, as she the said Sarah Hill should, by such her last will,
>«^.
>
264 DERIVATIVE TITLES (Part 2
limits direct, and appoint ; 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, and
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 was
contended, that the legal estate was vested in Sir W. W. Wynne and
Edward Lloyd, by the deed of 1746. and consequently, that neitlier
Giwn Lloyd nor tlie testatrix had any legal estate ; and, therefore, the
lessor 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-
sglute for entering a nonsuit, but that there should be a new trial 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 consideration
is upon the construction of the settlement! for if it vested the legal
estate 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
is certainly singular that Giwn Lloyd should part with tlie legal estate
immediately on the execution of the settlement, and that he and his
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, the power which Giwn Lloyd and his
wife would have had to defeat all the contingent limitations, if the
trustees did not take the legal estate, shows so strong a purpose to be
answered by construing the deed according to the strict legal opera-
Ch. 1) MODE OP CONVEYANCE 265
tion of the language used, that I think we are not at liberty to put
any other construction upon the words than that which thev usually
bear. Now, ever since I have belonged to tlie profession of the law,
I have invariably understood that an use cannot be limited upon an U>i4_ ^4>— f
use. That is admitted to be so in general, but a distinction has been ^ ^ca,^i^
tak^n where the limitation is to A., to the use of A. in trust for B.,
and 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 divided
frgni.^^"'^ pstptp, as where it is limited to a stranger,j3Ut the use and the
estate 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 in
both 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, that the legalestate vests
in him to whom by the words of the instrument the use i^hmited, . ,
Upon the authority of these two cases, I am of opinion that the use ^^-^ap«j%-*
of tlie estate in question was executed in the trustees.. Then, upon ' k "T-
the other question tiiere is certainly some proiniH fnr prp=n"T'"g a *^: '^'^\
reconveyance ; but, 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, on ^\j^'
the other, I think the lessor of the plaintiff ought to have an oppor- -yy^ V'l
tunity 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 the
trustees did not in the first instance take to the use of another, but / a
of themselves^ they were in by the common law, and not the statute : > ^. ""^ Cytrtr
that the first use was, therefore, of no effect, and the case was to be I ^^^^ ^
considered as if the deed had merely contained the second limitation \
to 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;^
take that seisin to the use of themselves, and not to the use of another. J-^dj^:^^ — ^
in which case alone the use is executed by the statute.. They are, there- y'uJLAx^ -^
fore, seised in trust fnr another, and the legal estate remains in them. yOy^i,*.^aXt^*
As to the question of intention, even if it were intended that the deed
should operate in a different mode from that pointed out by the law.
V**
S
266
DERIVATIVE TITLES
(Part 2
when the le^al estate is ^iven to trustees, that Intention cannot counter-
vail the law. But the intention appears to me~altogeffier doubtful ; the
absence of trustees to preserve contingent remainders affording a
strong reason for supposing that the parties meant to give the legal
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 coujd
not be executed. It is true, that certain cases shew these trustees to
have taken the estate by the common law, but tliev took 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 chancellor entered the decree here appealed frpmon
the theory the trust.created by the second clause of the will of Marga-
ret Ure, deceased, was a passive, or dry^ust^, and that the Statute of
Uses instantly operated to vest the legal title to the real estate in jthe
cestui 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 devise and bequeath to my son John Francis Ure all niy cows,
bulls and calves, except one cow and my horses Rosy, Jessie and Doll,
and tlie remainder of my real and personal estate equally to my two
sons, Robert Arnold Ure and John Francis Ure: 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 trustee
to 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 have the income^only, from said e_state_toJiis
own use and benefit as long as he may live, and on his death said estate
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 and
pe£sonal property. The Statute of Uses has no application to persojial
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 that
wlTere a will is so expressed as to leave it doubtful whether the testa-
tor 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 ji
ground for giving. \hfi will thf snnie rnnstruction as to the estate in
qU£^Uop."
The income of the estate, both personal and real, is bequeathed to
said Robert Arnold Ure during his lifetime and the remainder in fee
devised 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-
ing; to be in possession oLl to 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.) ; and the words "control" and "manage" have
been 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 such a trust is not merely passive. 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
enough if the intent to invest ham with such power can be gathered
from the_^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,
the executor, as trustee, shoulg enter into and retain possession of the
trust 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 Uses
does not execute a trust of this 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 action on the case for waste. 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 hjusband of the plaintiff: that he
died May 5th, 1875; tliat the defendant 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
that purpose, and not tor fencing or repairs.
Since Abbott's death, his administrator has sold the lumber made
from the logs and received the money therefor.
The plaintiff" put in evidence the deed from James Abbott to her,
dated April 30th, 1872, embracing the premises described in the writ
and upon which the alleged waste was committed, and proved its execu-
tion and delivery on the day of its date, and its record in the Kennebec
registry on the same day by plaintiff's procurement. It is made part
of the case.
71 A tract of land was conveyed to H. upon the following uses and trusts :
"This conveyance is made to the said H. as trustee to hold the said property
for the sole use and benefit of K., v/ife of M., free from dominion, debts, or •
liabilities of her present or any future husband, and the rents, profits, pro-
ceeds of, or sale or profits of said property, or any portion thereof, shall be
held under the same trusts." Was the le.^al estate vested in the wife? See
Hart V. Bayliss, 97 Tenn. 72, 36 S. W. 691 (1896) ; Georgia, C. & N. Ry. Co. v.
Scott, 38 S. C. 34, 16 S. E. 185, 839 (1892) ; Sutton v. Aiken, 62 Ga, 733 (1879).
1
Ch. 1) MODE OF CONVEYANCE . ^ . 2G9
(Deed) "^ *C^
"Know all men by these presents, tliat I, James Abbott of Gardiner
in the county of Kennebec, in consideration of one dollar paid by my
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 here-
by give, grant, bargain, sell and convey, unto the said Clarissa B. Ab-
bott of said Pittston her heirs and assigns forever a certain lot of land
situate in said Pittston and bounded. * * *
^'This deed is no^ to take effect andoperate as a conveyance until
my decease, and incase 1 shall survive my said wife, this deed is not
to be operative_as a conveyance, 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 she shall survive me then and in that event
onlv this deed shall be operative to convey to mv said wife said prem-
ises in fee simple! 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. And I do covenant with the said Clarissa B. her heirs and as-
signs, that I am lawfully seized in fee nf \\\e premises ; that they are
free of all incumbrances ; 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
defend the same to the said Clarissa B. if she shall survive me. and her
heirs 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 delivered in presence 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 owniiip^ real
-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 acknowledged
[ 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. Can it be doubted that under such statutes the
owner of real estate can convev in the manner prescribed, such pp^^" o^
portion of his estate as he and his grantee may a^ree. subject only to
those 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.
grantee (and setting forth that agreement in his conveyance) as to the
tune when, and the conditions upon which, the mstrument shall be op-
erative 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, provided you violate no rule of public policy, and
pla^e what you do on record so that aTTmay see how the ownership
^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~|
of opinion that efl'ect may be given to such deeds by force of our own \
statutes, independently of the statute of uses. Our deeds" 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 common warranty deed to the effect that in the trans-
fer authorized by the statuteTiTthis mode, "the land itself is conveyed
as^in a feoffment except that livery of seizin is dispensed with upon
complyinguaLtlLlhg requisitioris_nf the statute, acknowledging anH rp-
• cording, substituted 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 thev
purport to convev freeholds to commence at a future_day. ^
In other words the mere technicalities of ancient law are dispensed
with upon compliance with statute requirements._ Theacknowledg- ,
f ment and recording are accepted in place of livery of seizin. and~insl
) competent to fix such time in the future as the parties may agree upon \
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.
The feoffment is to be regarded as taking place, and the livery of
seizin as occurring at the tmie hxed in tlie instrument, ^nd ^he ac-
knowledgmentand recording are to be considered as giving the neces-
sary 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^ *^
cording to its terms, if those terms are definite and intelligible, and not^i ^A-iKj^y^
in 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 left uncertain 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, that it amounts at most, to a mere executory
agreement, 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 executed 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 recorded 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^-^ ^
entlv from a will. A will is ambulatory, revocable. Whatever passed Ju%^ M\,tn»^
fr> the wife by thi<i irmtrnment 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 .^ '^^^ '
rather to favor the facilitation of transt'ers ottitle, and tne alienation .
of _gstates. and the exercise of the most ample power over property by *^^*^^ ^^''^^
its 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,' it gives to the grantee a contingent right in >-*t^-«>M''****'^
the property which (unlike the interest of a devisee in the lifetime^f
the testator) cannot be taken from her, and may, upon the performance
of the condition make her the owner of the premises in fee simple, ac-
cording 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 the
agreement of the parties therem expressed, that the title of the p^rantee
shall accrue, not upon the delivery of the deed, but upon the happening-
of a certain event (the proof of which is commonly easy) at a future
time specified in the recorded conveyance. Wliy should harm come of
"^ it any more than from a lease made to run from a future day certain ?
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 an irrevocable assurance 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 ceremonv- 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 the
svg;tem of re'cord^d conveyances for which our statutes provide, the
ceremony of livery of seizin becomes of no importance as an evidence
or the change of possession ; 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 circu_nistance that here and now it is no longer nec-
essarv "that the superior lord should know on whom to call for the
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 "every stranger who claims a right to anv particular lands.
may know against whom he ought to bring his praecipe for the recov-
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
The Virginia doctrine that a feoffment cannot be made to commence
in 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
in a deed, its obvious meaning, without invalidating the deed, to say
tliat it shall operate as the parties intended, and carry an estate to com-
mence in fiitnrn if they fio agree? without the necessity of resorting~to
any subterfuges under which the estate thus created to commence in
futuro may be recognized as existmy only by way of remainder or b.y
virtue of some imputed covenant to stand seized.
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 the "use, income and control nf said premise';
during her life," 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
she survived her husband, her estate to commence at his decease.
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
give, the rights of a remainderman presently to the grantee, nor so op-
erate forthwith, as a conveyance as to convert tlie holdinp^ of the gran -
tQT 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
the modern cases like Drown v. Smith, indicate that if the intent, tak-
ing the whole together, is clear and intelligible, the court will give eftegt
-^■^ to It notwithstanding some apparent repugnancv. 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. \ It gives no right of action for waste com^mitted during
(he grantor's life. While this grantor lived he could do anything with
khe homestead farm not inconsistent with the right which he had con-
veyed to his wife to take it from the time of his decease, if she survived
mm. as the owner thence forward m tee simple.
If the testimony of Lapham and Palmer represents truly the acts of
which the plaintiff complains as waste, her suit, were it otherwise well
founded^ 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 signing- 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 statutes of the various states in this country quite uniformly re-
quire_that a deed effective as a conveyance shall be signed by the con-
vev'ing party or his agent. 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 action 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 sealing 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 in 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 the legislature 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 wholly a requirement of 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 is 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 presumption j)f
delivery ajrises . f rprn the mere fact that the instrument is "signed.".
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 action in ejectment 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 deed under
which plaintiff claims title was never in fact delivered to him with
intent to pass titIe.~~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 merely for examinationand
inspection, and \vas_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 form is necessary to constitute_the deliv-
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
contract, there must be_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 delivery 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 principle 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 miestiyn of rlelivery is a mixed question of la^ and fact, 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.xecution 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 executed but never delivered a deed
of the premises to his son 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 : 'The mere placing of the deed in the hands of one of the grantees
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
Djere iilacini': of a deed -in the hands of the grantee does nut conclusively es-
tablish a delivery thereof, within the legal meainng or tuat word. Delivery
is'ji (luestiun oi' intent, and dcpeiMis upon whether the parties'at the tjine
meant it to he a delivery to t;'K-e ^'itert- at once.' '^ 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 never fully executed, and the
Ch. 2) EXECUTION OF DEEDS 285
further fact fully established in evidence that it was unstamped when
jput away 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 promissory 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 demandants^ claimed title to _the_ premises under the seventh
clause of the will, which was as follows: "All the residue and remain^
der qI my estate, both real and personal, not otherwise disposed of,
shall be equally djvjdpd among 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 the 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 affection. 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 delivery 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. There 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 presume, 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 appeal from a decree of foreclosure where- /0/7 ". J
by the lien of plaintiff's mortgage is o-iven priority over tlie respective V/'^^^^**'^Tl
judgment liens of the two banks, defendants herein. The mortgage /^/vZ^A^
is in the Torm of an absolute conveyance to the plaintiff by the de- """u
fendant, William I, Fryer, and his wife of certain 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 hied 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 after it was rprnrHeH^
was forwarded to him at Denver. Colorado. _^vhere he had taken up
his abode. Plaintiff 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 writ Q^/t
of attachment to issue which was levied on the premises covered by ^"i^ '
the 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 present suit the con-
test is between the plaintiff and the two banks as to the 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 delivery_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 deed from 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 natjjraLpresumption 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
possession of a deed after an alleged delivery of it ; and it has been
said that such sjubsequent possession is a very pregnant circumstance
to show that the 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^to the recorder, 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 called in one of his neighbors and directed him__to
prepare 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 to the three minors who are plaintiffs in this action. The
instrument was signed by the grantor in the presence of two witnesses.
but was not acknowledged because there was no officer present author-
ized by law to take the acknowledgment of deeds. The grantor stated
to those present that he would appoint Mr. Tohnson as his executor,
and would instruct him to have the deed acknowledged and properly
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 are \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 empow-
ered to appear for the notary publich to have inlaid deed executed."
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 filed in the office of
the clerk of the superior court, the will under date of June 18th and
the 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. The will was admitted to
probate and Johnson appointed executor thereof. On the 25th day, o f
November, 1905^ the real property now in controversy was conveyed
to 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 present action was instituted by the grantees named in the above
deed, through their guardian ad litem, to quiet their title as against the
purchasers at the executor's sale, and from a judgment in favor of the
defendants, the present appeal is prosecuted[ ~~'
Three questions have been presented for the consideration of this
court: (1) Was the Lanston deed ineffective for lack of an_acknmvl- "^
edgment on the part of the grantor; (2) was there a delivery of the
deed ; and, (3) are the defendants bona fide purchasers.
Firsts An unacknowledged deed is good as between the parties in
this state. Such an instrument conveyed at least an equitable title.
Devlin, Deeds (2d Ed.) § 465 ; Edson v. Knox, 8 Wash. 642, 36 Pac.
ay
304 DERIVATIVE TITLES (Part 2
698; Carson V. Thompson, 10 Wash. 295, 38 Pac. 1116; Bloomingdale
V. Weil, 29 Wash. 611, 70 Pac. 94.
Second. Was there a delivery 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 intention of the grantor.
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 the
court can find a delivery, the 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., the intention to ronsiim-
mate the transaction so as to fullv vest the title in the grantee, was, in
our opinion, clearly and uripgniynrally <;hnwn in thic; raqp The will
and deed were executed at the sarne time and as part of the sam.e trans-
^ction. The real property was "omitted from the will, no doubt ad-
visedly, and all the surrounding circumstances show conclusively that
the grantor intended to convey his real property to these minors, that
the deed was executed for that purpose; and in our opinion the mere
absence of an acknowledgment is not sufficient to defeat his expressgd
intentions.
TliirrL Tlip respondents were not bona fide purchasers, as that term^
is understood in the law! The rule of caveat 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 that the appellants have shown a clear
title to the lands in controversy, as against the respondents, and 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 the
purpose of foreclosing a mortgage alleged to have been everntprl hy
defendant 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 which
the defendant and his sister were living. 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 deed of conveyance of the north half thereof to defendant and one
of the south half to nis sister prepared at Ann Arbor; that he and his
wife, the present complainant, took said deeds and visited their son '
and daughter where they resided upon said lands : that while there
and upon the 18th day of February, 1873, said deeds were properly (jU^^h Jt^
executed, and that at the same time two mort^^age^. one from defendant '
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 the defendant towards his share of his
father's estate, and to be accounted for m a certain manner.
It is also claimed that the deeds, mortgages and notes were at the
time of the execution thereof retained by said Calvin T who was to djLuLt ''»«■*-•
have the same recorded, but which was not done. Calvin T. Burj2£tt^ § -g^"
died FebruaoL-^th«-lBZ7. After his decease the deed to defendant ^
was offered him but he refused to accept the same, and the administra-
trix, on February 14th. 1877. caused the deed and mortgage to he re-
corded^
The defendant in his answer admits the execution of the notes and
mortgage ; that $500 oi the note in controversy was for personal prop-
erty which he had purchased from his father ; that the deed executed
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
not to record the same, but would wait and see how defendant man-
aged the property, and if not satistactory that the papers could be de-
stroyed.
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.
He 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
her that if the papers were in his possession at the time of his death_,JjO--
have them recorded, and handed over to the proper parties. Mrs. Bur-
nett's daughter Mrs. Webster, who was present at the time the papers
were executed, gives the same version, that Calvin T. Burnett ^wa'^ ^"
take the papers, have them recorded, and then send the deeds t^jjhe
proper persons, the grantees.
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 defendant was somewhat addicted to the use of
intoxicating liquors, and it is now said that it was on this account and
to prevent the defendant from squandering the property that thejleed
and mortgage were not recorded. It is clear from the testimony of
Mrs. Burnett and her daughter that there was no formal delivery o,f
this deed to the defendant. 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 made,
that he would retain this deed, have it recorded and then send it to
the 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. This we think falls
short 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. The retention of all these deeds. notes_and mortgages
bvCalvin T. Burnett and not placing them on record is consistent ajid
harmonizes with the agreement as testified to by the justice and othgrs.
and 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 the deed 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^ they pray that their respective
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 prevent the entail f rpni depriving the g£antees of the land con-
veyed^
The counsel for the respondent objected to the reading of the deeds
to the jury upon this evidence, upon the ground that there was no
proof that the same, or either of them, was duly executed and deliver-
ed by the grantor in his lifetime to either of the grantees, or to any
person authorized by them, or either of them, to receive the same;
and that if they had been duly executed and delivered, they were not
made bona fide^ but merely and for the express_purpose of destroying
the entail of_said- lands.
lliejudge^oyerruled the objection, permitted the deeds to go in evi-
dence, and directed the jury that they were sufficient and legal evi-
dence to maintain the issue on the part of the petitioners. After a
verdict for the petitioners, the respondent's counsel filed exceptions to
the above opinion and direction of the judge, which were allowed and
signed pursuant to the statute, and at the last July term of the Court,
the question of the validity of those exceptions came on to be argued.
Parsons, C. J., (who stated the history of the cause, and proceeded.)
The right which the father of the respondent had to convey any of
the lands he held in tail must be derived from the statute of March
8, 1792. By that statute it is made lawful for any person of full age,
seised in fee tail of any lands, by deed duly executed before two sub-
scribing witnesses, acknowledged before the vSupreme Judicial Court,
Court of Common Pleas, or a justice of the peace, and registered in
the records of the county where the lands are, for a good or valuable
consideration, bona fide to convey such lands, or any part thereof, in
fee simple, to any person capable of taking and holding such estate;
and such deed, so made, executed, acknowledged, and registered, shall
bar all estates tail in such lands, and all remainders and reversions ex-
pectant thereon.
From inspecting the deeds produced in evidence in this cause, it
appears that two subscribing witnesses, to whose credibility no objec-
tion is made, have certified that they were signed, sealed, and deliv-
ered, in their presence. And it further appears that the grantor, on
the same day, acknowledged that each instrument was his deed before
a justice of the peace.
One objection made by the respondent is, that, admitting the deeds
to have been executed in the form and manner required by the statute
in this case, yet these conveyances are not bona fide, being made, not
for a valuable consideration, but for the purpose of depriving the heir
in tail of his inheritance. The deeds purport to be for a valuable con-
sideration in money, and for love and affection. to his issue, which
is a good consideration. The statute also provides that the convey-
ance may -be on good consideration. It is therefore very clear that
the statute intended that the tenant in tail might bar the heir in tail,
by deed conveying the land to his relatives, executed for a good al^
310 DERIVATIVE TITLES (Part 2
though not a valuable consideration. This he might do by a common
recovery ; and this method by deed is substituted by the statute in the
place of that common assurance, the effect of which is founded on legal
fictions. And it is certain that justice, or parental affection, will often
induce parents who hold their lands in tail to make provision for the
younger branches of their family out of the entail. As the statute
has made the estate tail assets for the payment of the debts of the ten-
ant, before and after his decease, a bona fide conveyance was required
by the statute, to prevent alienations to defraud creditors, and not to
protect the heir in tail. This objection cannot prevail.
The other objection is that, by the statute, the conveyance should
be completed, and the estate pass, in the lifetime of the tenant in tail,
and that the deed should be sealed, delivered, and acknowledged, by
him as his deed ; that, in the case at bar, the deeds were delivered by
the grantor to Judge Wells, not as his deeds, but as his writings or
escrows, to be delivered as his deeds by the judge to the grantees on
his, the grantor's death ; that they could have no effect until delivered
by the judge accordingly; and, as the grantor was dead before the
second delivery, they were never his deeds, but are void.
This objection seemed to deserve much consideration. The statute
certainly intended that the conveyance of the estate tail should be
executed in the lifetime of the tenant ; and therefore, if there be no
acknowledgment of the deed by him, the defect cannot be supplied by
the testimony of the subscribing witnesses after his death, as it may be
in conveyances of estates not entailed. The reason is, as common re-
coveries must be suffered in the lifetime of the tenant in tail, and at a
court holden at stated times, and the heir in tail has a chance that the
tenant may, after the commencement of the suit, die before the term,
so it was intended to leave him the chance of the tenant's dying before
acknowledgment, which, as the statute was first drawn, could be made
only in some court of record ; although, as it was amended, it may
now be made before a justice of the peace. There is therefore some
chance saved to him, but of much less consequence than it was before
the bill was amended.
The law, so far as it relates to the nature of this objection, is very
well settled. / If a grantor deliver any writing as his deed to a thirxT
person, to be delivered over by him to the grantee, on some future event,
it is the grantor's deed presently, and the third person is a trustee of
it for the grantee ; and if the grantee obtain the writing from the trus-
tee before the event happen, it is the deed of the grantor, and he
cannot avoid it by a plea of non est factum, whether generally or spe^^
daily pleaded. This appears from Perk. 143, 144, and from the. case
of Bushell V. Pasmore, 6 Mod. 217, 218. But if the grantor make
a writing, and seal it, and deliver it to a third person, as his writing
or escrow, to be by him delivered to the grantee, upon some future
event, as his, the grantor's deed, — and it be delivered to the grantee
accordingly, — it is not the grantor's deed until the second delivery;
Ch, 2) EXECUTION OP DEEDS 311
and if the grantee obtain the possession of it before the event hap-
pen, yet it is not the grantor's deed, and he may avoid it by pleading
non est factum. This appears from Perk. 142, 137, 138.
It is generally true that a deed delivered as an escrow, to be deliv- ,
ered over as the deed of the party making it, on a future event, takes
its effect from the second delivery, and shall be considered as the deed
of the party from that time. Perk. 143, 144. — 3 Co. 35, b, 36, a.^_
Whether the deeds in this case were delivered to Judge Wells as
writings to be delivered over as the grantor's deeds on his death, or
whether they were delivered as the deeds of the grantor to Judge
Wells, in trust for the grantees, to be delivered to them on the gran-
tor's death, is a question of fact, to be determined by the evidence.
This evidence results from the testimony of Judge Wells, and from the
inspection of the deeds. The deeds appear to have been signed, sealed,
and delivered, in the presence of two subscribing witnesses, and to
have been acknowledged as the deeds of the grantor before a justice
of the peace. The witness swears that the grantor did then sign, seal,
and deliver, them for the use of the grantees. Thus far there can be no
doubt. But the witness further testifies that, because the grantor was
to have the use of the premises during his life, and some of the grantees
being minors, the deeds were delivered tohim as escrow^ to be delivered
to the grantees upon the grantor's death. What the witness understood
by escrow is not explained. He might consider them as escrows, be-
cause he was to have the custody of them until the grantor's death.
To aid his memory, he therefore refers us to the memorandum he
made, at the time, upon the wrapper of the deeds. In that memoran-
dum they are called the two deeds of the grantor, naming him, to
the grantees, naming them, to be kept until the death of the gran'tor,
and then to be delivered to the grantees. Here they are not called the
writings, or escrows, but the deeds, of th« grantor. The weight of the
evidence is certainly very great, if not conclusive, in favor of the deeds
having been delivered by the grantor, as his deeds, and deposited with
Judge Wells, in trust for the grantees. Upon this ground the deeds
were very properly admitted as -evidence, and the direction of the
judge was correct.
But if the deeds are to be considered as delivered to Judge Wells,
not as the deeds, but as the writings, of the grantor, we must not
thence conclude that they are void, ^l^lthoiigh generally an escrow /
takes its effect from the second delivery, yet there are excepted cases,
in which it takes its effect, and is considered the deed of the maker,
from the first delivery. The exception is founded on necessity, ut
res valeat. Thus Perk. 139, 140. If a feme sole seal a writing, and
deliver it as an escrow, to be delivered over on condition, and she aft-
erwards marry, and the writing be then delivered over on perform-
ance of the condition, it shall be her deed from the first delivery ; oth-
erwise, her marriage would defeat it. In Brook's Reading, on the stat-
ute of limitations, p. 150, there is another exception. A. delivers a
312 DERIVATIVE TITLES (Part 2
deed, as an escrow, to J, S., to deliver over on condition performed,
before which A. becomes non compos mentis ; the condition is then per-
formed, and the deed dehvered over; it is good, for it shall be A.'s
deed from the first delivery. Another exception is in 3 Co. 35, b, 36, a.
Lessor makes a lease by deed, and delivers it as an escrow, to be de-
livered over on condition performed, before which lessor dies, and
after, it is delivered over on condition performed : the lease shall be
the deed of the lessor from the first delivery. There is also a strong
exception in 5 Co. 85. If a man deliver a bond as an escrow, to be
delivered on condition performed, before which the obligor or obligee
dies, and the condition is after performed — here there could be no sec-
ond delivery, yet is it the deed of the obligor from the first delivery,
although it was only inchoate ; but it shall be deemed consummate by
the performance of the condition.
/ Therefore, if the deeds in this case were delivered to Judge Wells
s escrows, and by him delivered over on, the death of the grantor, they
(must take their effect, and be considered as the deeds of the grantor,
I from the first delivery, he being dead at the second delivery. And
the cases in 3 Co. 36, a, and 5 Co. 85, are in point. It may here be
observed, that it is not to be presumed that it was the intention of the
grantor to deliver these deeds as escrows, to be after delivered as
his deeds, on the event of his death; when, from the nature of the
event, they could not be considered as his deeds from the second de-
livery. The presumption is violent that he considered Judge Wells as a
trustee of the grantees. But whether the deeds were delivered to him
as escrows, or in trust for the grantees, — in either case the verdict
must stand, and the first judgment be entered thereon, viz., that parti-
tion be made; and let a warrant issue to commissioners to make par-
tition."
k
RUGGLES V. LAWSON.
(Supreme Court of New York, 1816. 13 Johns. 285, 7 Am. Dec. 375.)
This was a suit in partition, tried before his honor the Chief Jus-
tice, at the Orange circuit, in September, 1814.
The plaintiff, in his petition, set forth, that he was seised, in fee,
as tenant in common, of an undivided moiety of the premises in ques-
tion ; and that Daniel Lawson and others, defendants, as heirs at law
of Robert Thomson, Jun., deceased, were each seised of an equal and
undivided twentieth of the premises, and the widow of Robert Thom-
son was entitled to her dower in the one third of the said ten twen-
tieths of the premises, of which the heirs of the said Robert Thomson
were so seised. Several of the defendants put in pleas of confession,
and consented to the partition. Robert Thomson and Nelson Thom-
son, two of the defendants, pleaded non tenent insimul, and gave no-
lo See Wells v. Wells, 132 Wis. 73, 111 N. W. 1111 (1907).
Ch. 2) EXECUTION OF DEEDS 313
tice, under the plea, that they would prove, at the trial, that they
were entitled, in their own right, to one half of the premises, and that
they claimed title to the same, by virtue of a conveyance to them,
dated the 15th of November, 1811, from their father, Robert Thomson,
(setting forth the deed at length.)
At the trial, it was admitted that the plaintiff was seised, in fee, of
an undivided moiety of the premises.
Robert and Nelson Thomson, two of the defendants, gave in evi-
dence the deed set forth in the notice accompanying their plea. The
deed was given for natural love and affection of the grantor to his two
sons, and for the further consideration of one dollar, and conveyed
an undivided moiety of the premises. David Mason, a witness, proved,
that, in June, 1814, the grantor, being sick, took from his chest the
deed in question, among other deeds to his children, which he delivered
to the witness, and, at the same time, directed him, in case he should
die before making his will, which he had requested the witness to
draw up for him, that he, the witness, would deliver the deeds to
his children, respectively ; the witness having retired, for a short time,
to prepare the will of the grantor, on his return, found him dead ;
and about a month after his decease, the witness delivered the deeds
to the grantees named therein.
A verdict was taken for the plaintiff, subject to the opinion of the
Court, on a case which was submitted to the Court without argument.
Per Curiam. The only question in this case relates to the effect
and operation of the deed from Robert Thomson, Jun., to his two
sons, Robert and Nelson. This deed was duly executed by the grantor,
in his lifetime, and delivered to a third person, to be delivered to the
grantees, in case the grantor should die before having made and exe-
cuted his will. The grantor did die without having made any will, and
the deed was, after his death, delivered to the grantees. If this deed
is to be considered as an escrow, the estate, under the circumstances
stated in the case passed to the grantees, upon the delivery after the
death of the grantor. It is a well-settled rule with respect to an es-
crow, that, if either of the parties die before the condition is per-
formed, and, afterwards, the condition is performed, the deed is good,
and will take effect from the first delivery. Shep. Touch. 59. It may,
however, be questionable whether this deed is to be viewed as an
escrow ; the grantees had nothing to do, on their part, in order to make
the deed absolute, which is usually the case where a deed is delivered
as an escrow. The delivery here was, at all events, conditional, and
to become absolute, upon an event which has taken place; and, as in
the case of an escrow, the deed will take effect from the first deliv-
ery. This principle is very fully laid down and illustrated in the cases
of Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66, and
Hatch V. Hatch, 9 Mass. 307, 6 Am. Dec. dl . The grantees in this
deed are, therefore, entitled to a moiety of the premises, and par-
tition must be made accordingly.
M^
314 DERIVATIVE TITLES (Part 2
JOHNSON V. JOHNSON.
(Supreme Court of Rhode Island, 1903. 24 R. I. 571, 54 Atl. 378.)
TiLLiNGHAST, J. The Only question presented for our decision by
the bill, answer and proof in this case is whether the deed under which
the respondent claims title to the real estate described in tlie bill was so
deposited or left with the witness Charles P. Moies by the grantor, dur-
ingher lifetime, as to constitute an absolute delivery thereof for the
use and benefit of the grantee.
The material facts in the case are these: On May 9, 1899, Mary-
Johnson made and executed a quitclaim deed of the premises referred
to, to the respondent, Marv A. Johnson, and left 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 should then deliver the deed to her daughter, said Mary 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 right
to recall the deed at any time, and also that she retained the right to
sell and dispose of the~property thereafterwards if she saw^t. In
short, the substance of Moies understanding, from the instructions
given him, was that the deed was left with him subject to the control
of the grantor during her life, and that in case of her dp^th, without
having disposed of the property, he was to deliver the deed to_the
grantee 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 advertised it for sale, and in other ways attempted
to effect a sale thereof ; she paid the taxes, collected the rents, and
paid the interest 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 to be recorded in
the registry of deeds in Pawtucket. And the complainants now seek by
this bill to have said deed set aside and declared void and of no effect,
on the ground that no ^livery thereof was ever effected by the
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.
Inorder to convey title to real_estate, it is necessary that the deed
thereof shall be^ deiivere3^o the grantee. or to some one for his use.
And the ordinary test of delivery if: Did the grantor by his acts or
words, or both, intend to divest himself of the title to the estate de-
scribed in the deed_^ 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
constitute a delivery, the grantor must absolntplv n^^tt "^^'^^ 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 in order to make such
a deliverv valid, the deed must be left with the depositary without any
reservation on the part of the grantor, either express or implied, of ^y\Jb y\jLAJL^^
the 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, such delivery must be an absolute one on the part of the gran-
tor; that is, he must divesthimself of any right of future control
thereof. 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 with
the possession of the deed and all right and authority to controMt,
ekher finally and forever, as where it is given over to the grantee him-
self, or to some person for him, which is called an absolute deliveiTi
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 -of
every deliverv. whether absolute or conditional, is that therip must be
a parting^ with the possession, and of tTle power and contrnj^nver the
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 parting a ^ </^
with the manual possession of the deed by the grantor, she did not -"T^ » ]_L/
part 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 to
operate 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 deed in question must be set aside
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 action to quiet title to certain lands for-
merly the property of Patrick Moore, deceased. The plaintiff is
Moore's widow and administratrix, and the defendant, Mrs. George
Trott, is thejerson named as grantee of said lands in two deeds which,
y y _im>-tfer-tg!TtTv<fay of ]\Tay7l9Q6, were mailed by Moore to P. O. Tiet-
^'^"'^zen. cashier of the bank at Santa Maria, under cover with the follow-
ing 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. Tbe deeds that I am sending you, vou will please lock them
in your safe and in case I should die 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,
and 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. 432 (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. * * * The decision in that case would appear to be in point for the
dj^endant, but_w£_ao not nnd any ^thih- ciiHk^ in iim' h\\'i'\ Renorts,~anfl 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
thg parties named telling them to put them of record as soon 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. But his health rapidly declined and on
the _18th of Tune he died without ever having communicated to Tietzen
any other instruction, oral or written, than those contained m his letter
of May IQth. 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 whether these deeds were so delivered _as to
pass the title to the lands in controversy to the defendant, Mrs. Trott,
or whether they remained inoperative for want of delivery.
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 and * ^y '-y
reserved no right to recall or any wav control said deeds or either of CA-y€/'^''V-C4A...<^
them. 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, that a valid transfer of a fee simple estate,
subject to a life estate in the grantor, may be effected by means of a
deed_ delivered _bv the grantor to a third party with instructions to
deliver it to the grantee at his, the grantor's death, provided always —
and this is the essential condition of the validity of such transfers-
that the delivg|jjyg.^,a]^^';0^utg so that the deed is placed bevnnd the power
ot the grantorto_x£call or control it in any event. 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-
fendant was that of an old and intimate friend of herself and her par-
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 valued 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 that a stranp^er to his
blood shall have and enjoy his real property after his death, for unless
he complies with the legal requisites of a validtransfer his wishes and
intentions are unavailing and bis purpose is defeated. If, like Patrick
Moore, he is unwilling to make a testamenta_ry disEO,^on which, if
unrevoked, will pass the estate at his deathT he must deliver his deed
absolutely and beyond his power to recall in any contingencv. to a
custodian whose duty it will be to keep it as long as the grantor lives,
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. The test of an effective delivery in su''h r^=p° ■= ^Iip Qhcnliitf>
'relinquishment of the right of recall by the grantor in hit; instrnrtinns
to the person charged with the duty of making the delivery. The
transfer, or attempted transfer, of the estate being entirely gratuitous,
the person named as grantee has no right beyond that which is volun-
tarily conferred and the extent of that right is to be determined in
every case where specific instructions are given by what passes between
the grantor and his selected agent. The agent is of course bound to
do what his instructions require him to do — no more, no less, and when,
as in this case, his only instructions are in writing, the effect of the
transaction depends upon the true construction of the writing. "" "It Is in 1
other words a pure question of law whether there was an absolute de- I
H^rp|-Y nr rtqt^ \
What, then, is the proper construction of Moore's letter? It seems
very plain that Tietzen is authorized to deliver the deeds only "in case
of my not returning from the California Hospital where I am going
for an operation," and the implication that if he does^ retjjjn the deeds
are to be at his disposal is clear. But counsel ior respondent contends
that a different intention is revealed by subsequent clauses of the let-
ter. He relies greatly upon the direction to lock the deeds in Tietzen's
safe "and in case I should die to immediately hand them to the parties,"
etc. We think that this, so far from being inconsistent with our con-
struction of the first part of the letter, is only corroborative of itt I.fl
Moore's intention had been to part with the deed absolutely he would
Ch. 2) EXECUTION OF DEEDS 319 ^C
/not have directed their delivery "in case I should die," for he was sure Y^^*''^ • ^/>^'
\ Jio die at some time. He would more naturally have said when I die. Al^^^^^^ \
It is apparent that he was not without some hope of obtaining relief
more or less permanent from the contemplated operation, and if he had
returned from Los Angeles believing himself restored to health and
had demanded a return of the deeds from Tietzen we can conceive
of no ground upon which the demand could have been resisted. The
concluding part of the letter to Tietzen, which counsel agree must be
read without any period after the words "until you deliver them," nei-
ther aids nor weakens our construction of the first part. The direction
to "keep to yourself the names of the parties named in those deeds
until you deliver them after I pass in my checks," etc., while they cer-
tainly do consist with the idea of that death which is certain to come
to every man, were entirely appropriate as referring exclusively to
death as the result of the operation about to be performed.
Aside from the letter to Tietzen which, as above stated, contained
the only instructions ever given him as to the disposition of the deeds,
it was shown by the testimony of numerous witnesses that Moore
wished the persons named as grantees in his deeds to have the property
therein described, and that his relations to those parties, and his con-
dition and circumstances made them the reasonable and meritorious
objects of his bounty. There is, moreover, no reason to^doubt that"
he died believing that his deeds in the hands of Tietzen would be suffi-
cient to accomplish his purpose, but his purpose is defeated by the fact
that the delivery was not absolute. A technical but inflexible rule of
law governing the transfer of real property prevents his intention from
being carried niit.^^ * * *
Counsel for respondent urges with apparent seriousness the prop-
osition that the deeds to Mrs. Trott having been found in her pos-
session there is a presumption of delivery to her at their date, which
is not rebutted by the evidence in the case. We think this presump-
tion is not only overthrown by the evidence, but that the specific find-
ings of the court show that the only delivery was that made by Tietzen
after Moore's, death.
The order of the superior coyt denying a new trial is reversed. ^^ _ ,
17 A portion of the opinion, in which a number of eases are reviewed, is omit-
ted. //
18 See s. c, 162 Cal. 268, 122 Pac. 462 (1912). ' ^ < d,^^
The owner of land, ill with consumption and believing herself on her death- ^^ '
bed, prepared a deed of said land and gave same to X., with instructions that, ^^
"if I recover, I want them back again ; and if I do not, you deliver to" the
grantees. The grantor died six weeks later, and X. then turned the deed over
to the grantees. Was there an effective delivery? Williams v. Daubner, 103
Wis. 521, 79 N. W. 74S, 74 Am. St. Rep. 902 (1899) ; Seeley v, Curts, ISO Ala.
445, 61 South. 807, Ann. Cas. 1915C, .381 (1913).
The owner of land made a deed thereof and deposited same nith a trust com-
pany, with written instructions "to hold it until a specified date, at which time
to return it to the grantor if she is then living, and in the event of her death
in the meantime to deliver it to the grantees." The grautdr died prior to the
;320 DERIVATIVE TITLES (Part 2
OWINGS V. FIRST NATIONAL BANK.
(Supreme Court of Nebraska, 1914. 97 Neb. 257, 149 N. W. 777.)
ReBsE, C. J. This is an action brought by plaintiff, Ijenry Ovvings,
against the First National Bank of Johnson, Nebraska, to recoveii-the
sum of $5,129.67, the proceeds of the sale of a tract of land, described
in the pleadings, but the description of which need not be "stated here.
The land was formerly owned by Lizzie E. Schmidt, who was later
married to Henry Owings. They went to the state of Colorado, and
after their marriage there located in the city of Sterling, in that state.
Mrs. Owings' liealth_failed, and it became apparent that she was in
a precarious condition. On the 28th day of June. 1911, Mrs. Owings
executed a warranty deed to her husband, conveying the land in ques-
tion to him, and placed it in a trunk in the house, and kept it until the
2d day of December, of the same vear. At that time it was apparent
that she could not recover, and that the date of her dissolution was
not far distant, her malady being consumption. She was confined to
her bed, and called for the deed to be brought to her. She then ob-
tained pencil and paper and wrote the following instructions: "Ster-
ling, Colorado, Dec. 2, 19U. In case of my death, give this deed^to
my husband. Henry Owings, to be recorded so my property is his.
I am in poor health and no hopes of -ever getting well. He is the only
provider I have_SQt. Mrs. Lizzie Owings, Sterling, Colo." She
handed the deed and the above described memorandum to her hus-
band, requesting him to place them in a local bank at Sterling, which
he_did^ Mrs. Owingrdied on the 7th day of January. 19jj^ The sec-
ond day after her death, plaintiff called at the bank and received the
deed and memorandum of instructions, above copied, as well as some
money on deposit, and made preparations for returning to Johnson,
Nebraska, with tb^ rpm;iin<; nf his deceased wife. Prior to her de-
cease, she, with her husband, had negotiated tlie sale of the land to
one J. George Hahn for the sum of $5,640, and on the 11th day_pf
December, 1911, with plaintiff, executed a warranty deed to the pur-
chaser, which was deposited in the First National Bank of Johnson,
■^*^ A in this state. Prior to this time, and on the 2d day of December, 1911,
i^i^.^y'^^ a written contract of sale was made with Hahn for the sale of the
<s^j^ Oi. land at the price of $5.640. $400 of which was paid in cash, the re-
K ^^^ mainder to be paid on the 1st day of March. 1912. or $2.500 to be
V > then paid, and the remainder on time at the option of the purchaser.
. Lil date specified, and tbe deed was given to the grantees. Was there an effective
t JjK' ' delivery? Long v. Ryan, 166 Cal. 442, 137 Pac. 29 (1913).
•■^ A husband prepared a deed of bis lauds to his wife, and at the same time the
wife prepared a deed of her lands to him. Both deeds were deposited with a
third party, with instructions not to return either deed except upon the written
order of both, and in case of death of either to deliver the deed of the deceased
to the survivor. The wife died first, and her deed was given to the husband.
Was it an effective delivery? Dunlap v. Marnell, 95 Neb. 535, 145 N. W. 1017
-(1914).
^'^^
\o^
Ch. 2) EXECUTION OF DEEDS 321
Instead of accepting the time option, Halin paid into the bank the
whole amount, and accepted the deed, with another one executed by
P^amiit
Mrs. Owings left no child, nor father, nor mother, surviving her,
but she had two brothers, Henry Schmidt and Charles J. Schmidt,
who demanded one-half of the money in the bank as the heirs of
Mrs. Owings. The bank refused to pay tlie money to either claimant,
when this action was brought against it by plaintiff for the whole
amount. The bank filed the statutory affidavit to the effect that it held
no claim on the money, but that it was demanded by the claimants,
and asked to be protected. The court ordered the brothers to inter-
vene and__set_Ji£their claims by a day fixed by the courts whichthev
dig. contending~tKarthe deed frorti Mrs. Owings to her husband did ,-^ a. /^
riori:onvey any title to him for Avant of delivery,^ that the sale of the '
land to Hahn was of her property, and bv reason of their relationship
to her they were entitled to one-half of the fund under the provisions
oj the statutes of descent in this state. It appears that Henry Schmidt
held a note against his sister, Mrs. Owings, for the sum of $1,019.25,
growing out of the settlement and adjustment of an estate to which -
the land formerly belonged, and which note Mrs. Owings directed
should be paid at the time she handed the deed to plaintiff at Sterling.
There is no question as to this sum of money, plaintiff having agreed
at the trial that Henry Schmidt should receive it out of the fund.
The cause was tried to the court wjthout the intervention of a jury.
when a finding'"an3 judgment was entered, giving tlie $1.019.25 to
Henry" Schmidt, and the re.sidue tojbe^paid by the bank to plajntiff.
Defendants. xolp^'vp^^erSf appeal.
"The real, and indeed the only, question presented is : Was the deed/
from Mrs. Owings to plaintiff so delivered to hirn as to pass the tit]e ?
The negotiations for the sale to Hahn had so far progressed that the
contract of sale to the purchaser was signed on the day the deed was
handed to plaintiff for deposit in the Sterling bank, but the contract
an4 conveyance to Hahn were both signed by Mrs. and Mr. Owings.
Considerable testimony was taken at the trial showing what occurred
at the time the deed was sent to the Sterling bank, as well as declara-
tions made to others by Mrs. Owings after the execution of the deed
and before the 2d day of December, the day it was sent to the bank.
The written memorandum was made by Mrs. Owings while on her
sickbed, and she never was "down town" after that date and prior to
her death. She never made any effort to countermand those instruc-
tions, but, so far as is shown by the record, shfc was at all times there-
after entirely pleased with what she had done. I^ad she been able to
go to the bank and deposit the deed with oral instructions as written.
the case would fall within the rule of Roepke v. Nntymann, QS Nph
589, 146 N. W. 939, and we are upp^l^ ^''^ gf'p ^^y^ nnflpr hfr yqr\\\ew
instructions to the bank, they would not be of equal force. That case
Aig.Prop. — 21
322
DERIVATIVE TITLES
(Part 2
and Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439, 53 Am. St.
Rep. 532, are decisive of this one, and it is not necessary that the
law of those cases be further examined.
We are satisfied therewith, and that the judgment of the district
court is right and it is affirmed.^"
STONE V. DUVALL.
(Supreme Court of Illinois, 1S75. 77 111. 475.)
Writ of Error to the Circuit Court of Monroe county; tlie Hon.
Amos Watts, Judge, presiding.
This was a bilUn_chancei:^, filed by Washington Duvall and Mary
Duvall, his wife, against George Stone, Julia Stone, Pearly Stone and
Bissell Davis, heirs at ja\v c}i j^riry ■^tcuie,_d£geased. and^W^^i^ffl
Stone, h"usbanrl cff Mary ,Stnne, tn set aside a (jeed made-Jiy th£.XQm-
plainants to. said Marv Stone. The material facts of the case are set
:l^orth in the opinion of the court. {^^^j*^^^ P 1^a^^,JIU/'^ ^irtv(-^
Walker, J. The evidence shows^tnat defencmnts in error had
each been previouslv marxjed, Washington having a daughter by that
former marriage, who was married to William Stone ; Mary had a
son by her previous marriage, named Allen Agnew. They each owned
a small amount of real estate when married, and discord afterwards
having arisen between them, it was agreed that they should respectively
relinquish or convev their claim tqjsach other's property, so that the
survivor would have no interest in the real estate of the other — to
cut ofif the claim of dower by the wife in the property of the husband,
and the right of curtesy of the husband in the property of the wife,
and to prevent their' step children from claiming any interest in the
property of their step parents.
In consummating this arrangement, defendants in error went to a
justice of the peace, who, under their directions, preparedjle^s which
they executed and acknowledged. By one of these deeds the land
owned by the husband was conveyed in fee to his daughter, Mrs. Mary
Stone. By the other, the wife's real estate was conveyed to Allen
Agnew. The justice was directed to have the deeds recorded, and
to hold them until the death of the parties, and then deliver them to
the respective grantees! subsequently Mrs. Stone died, leaving"Trer
husband, and tlie other defendants, her minor children, surviving her.
19 In Loomis v. Looiuis, 178 Mich. 221, 144 N. W. .'i52 (101.3). the grantor, after
signing the deed, instructed the scrivener to retain i)ossessi(ni thereof, ".and
that if anj'thing occurred to her, happened to her, to deliver this deed to" the
grantee. After the grantor's death the scrivener turned the deed over to the
grantee. The scrivener testified thnt. if the grnntnr had called for the deed
during hg"- 'if'^tMll^i ^^ '"'"'llrl [I'-'^i'^^i'ly linve snrrendered it to lier. The court
held there had heen an effective delivery, an iimuediate estate having vested in
the grantee, suhject to a life estate in the g;rautor. See O'Brien v. O'Brien, 19
w. D. ad, i2b i^.'w. 307Ti^oj: —
l^^^
Ch. 2) EXECUTION OF DEEDS 323
The deeds were recorded, as required, by the justice of the peace, and
held untilliTter Mrs. Stone's death, when Duvall called and took the
deed executed to her from the justice. It appears that Stone, with his 9Sx*^
wife, was in possession of the property conveyed to his wife when "^ ' ^(X^
the deeds were made, and he so continued in possession until after the ^C^^'\^^^
suit was brought" ~ ~~ ~ ~
Complainants claim that the deed to Mrs. Stone was not made in
pursuance of their intentions, and contrary to their directions ; that
the deed was never delivered to the grantee, or to any one for her, \(J>
^d \\\ej^'^VeA tn have it.^e,t a^side and cancelled, and tlie prpsgrty
restored to Duvall. as it was before the deed was made. On a hear-
ing, the court below granted tlie relief sought, and defendants bring
the record to this court on error, and ask a reversal.
The evidence of the justice of the peace seems to be rather incjefinite
as to what the expressed purpose of the parties was when he drew
the deeds. He is, however, positive that he was directed to prepare
deeds to convey the land. He proposed to fix the matter by agree-
ment, will or otherwise, but Duvall declined, saying his wife desired
deeds. He, when asked the direct question whether the purpose was
not to convey Duvall's interest in his wife's property to her son, and
anyinterest she held m Duvall s property to Mrs. Stone, and whether
Duvall did not so inform him, says he believes that was the meaning,
but that he could not swear to the exact words. He also says that
he was afterwards so informed by Mrs. Duvall. He nowhere says
that it was understood or intimated that the parties intended or said
they desired to retain any interest in the property. • By a conveyance
in fee, they undeniably would accomplish the purpose of preventing
such claims as effectually as by any other mode ; and it is strange, if
such was the intention, that they did not say that was their only pur-
pose.
Duvall told Stone that he intended to convey the property to his
wife, as Stone states in his sworn answer. The deed having been
subsequently made in accordance with this declaration, and in pursu-
ance to the advice received from the attorney, a different purpose from
that expressed in the deed should be clearly proved, before a court
of chancery would interfere to set it aside. The deed itself, in proper
form and duly executed, is strong evidence of the grantor's intention.
ancT to overcome it. the evidence should be clear and convincing.
Here we find a man largely advanced in life, the father of a woman
having a family of children, and of limited means, and, as it seems,
fearful that his wife would, at his death, hold dower in his property,
determined to secure the property to his daughter, and it is not out of
t he usual cou rse of human action for him to make a conveyance to
her. He inquired if he__could ; he said he would, and finally did so
convey it. Duvall, himself, testified, and he does not state the pur-
pose of the conveyance, nor the instructions he gave to the justice of
the peace. He does not say that the deed did not carry out his pur-
324 DERIVATIVE TITLES (Part 2
pose virhen it was made. He is silent as to the execution of the deed,
or what he said to the justice. He does not say there was a mistake.
01^ that the justice did not do precisely what he desired. _ .
It is, however, said there was no consideration paid for the prop- '
erty. He acknowledges, in his deed, that tliere was, and he, and all
others, fail to disprove the acknowledgment of the fact in the deed.
The justice says he knew nothing of any consideration bein^ paid,
but that does not negative the statement in the deed that it was. Even
if it was necessary to prove a pecuniary consideration to sustain the
deed, still, tlie deed, uncontradicted, proves that it was paid. We
will not stop to inquire whether natural love and affection, although
not expressed in the deed, would not-sustain it, or whether, on his
own theory of the case, the getting of the property free from his wife's
dower would not be sufficient.
It is manifest that complainants intended to convey some interest
in, and title to these premises to Mrs. Stone, but what interest is not
sfiown by~the evidence. Whether it was to be a fee subject to a life
estate in the grantor, or some other estate, does not appear. Nor do
counsel suggest what estate it was. To cancel the deed would be to
permit Duvall to change his mind, and to defeat his act deliberately
dQne_atteF consultation and advice taken, and done m accordance with
his previously expressed purpose to convey to Mrs. Stone. It would
be clearly wrong to abrogate the deed, unless it clearly appeared that
an estate less than a fee, and such an estate as terminated with her
life, or previous thereto, was intended to be conveyed, but was not by
reason of a mistake.
It is urged that the deed was never delivered. It was not, to Mrs.
Stone, as she was probably not aware of its existence for a considera-
ble time afterwards, if it ever came to her knowledge. Was the de-
1 ivery to the justice of the peace, with directions to record and hojd
it until the death of Duvall, a delivery? It was manifestly not an ab-
solute dehvery. The fact that he was directed to hold the deed, and
not deliver it till the death of Duvall, renders it absolutely certain
that the grantor did not intend that the deed should take effect until
that time. This removes all doubt on that question. The deed did
not, therefore, opera'te to give Mrs. Stone any immediate rights or
interest in the premises. If she acquired any right, it was that the
title should only vest in her at her father's death.
Was this, then, a delivery as an escrow? Kent, Ch. J., in the case
of Jackson v. Catlin, 2 Johns. (N. Y.) 248, 3 Am. Dec. 415, says: 'jA
^ deed is delivered as an escrow when the delivery is conditional, that
• fMjt/^J^ is^ when it is delivered to a third person to keep until something be
^ -/^ — done fay the grantee; and it is of no force untij the condition be ful-
filled.'' Sheppard, in his Touchstone, p. 58, gives substantially the
sTriie definition, except he does not limit the performance of the act
to the grantee, which seems to us to be the more accurate rule. Now
this deed was to be delivered on the death of Duvall. That was the ex-
\ni*'^
Ch. 2) EXECUTION OF DEEDS ' 325
press condition upon which it was placed in the hands of the justice,
and, according to the authority of the case of Jackson v. Catlin, supra,
it was delivered as an escrow, and rniild not take fqll effect until the
thing happened that was conditional to its delivery; and Duvall not
having died, the deed has not yet vested the title in full, and can not
until that event shall occur.
Sheppard lays it down as the law, that "The delivery is good^ Jor it
is said, in this case, that if either of tlie parties to the deed die before,
tiie" conditions be performed and the conditions be after performed,
that the deed is good; for there was traditio inchoata in the lifetime
of the parties ; and postea consummata existens, by the performance
of tjie conditions, it taketh its effect by the first delivery, without any ^6iMK-# -^^
new or second delivery ; and the second delivery is but the execution « -^ diiJt*^^^
and consummation of tlie first delivery." But in such a case, the de- ^ r
livery only relates back to the first delivery so as to carry out the in- tk^Cl^ HSl -^
tention of the grantor, and to vest the title. It would not give the /^XuJL<ii-c»r^
grantee a right to intervening rents and profits. So in this case, the \J — -^ " '
deed is an escrow, that will not take effect until DuvalFs death, when
it may be delivered to the heirs of the grantee, and it will be held to ^
have taken ettect so as to nave vested such a title in the mother as to lA^A. -^^^^VCA
pass the fee to them. Until that time, Duvall will be entitled to the use
of the property as though he had a life estate, and the children of
Mrs. Stone the remainder.
It, then, follows that the court below erred in rendering the decree,
and it is reversed. Decree reversed.^" ^ //a^ZZ^ f' CZ^n^-^-i
STONEHILL v. HASTINGS.
(Court of Appeals of New York, 1911. 202 N. Y. 115, 94 N. E. 1068.)
HiscocK, J. This action was brought by the appellants as residu-
ary legatees and representing a deceased residuary legatee of one Mar-
gretta Todd to set aside a deed and what has been denominated a life
/p.
T5y a
"It is the well-established rule, in this state that the deliven'' of a deed
y a grantor to a third narty, to be by him delivered to the grantee after tlie
grantor's death, is valid. It conveys the fee, and operates as a conveyance in
pra?sent"i,"flibugh the enjoyment is postponed until the grantor s aeath.'^ Meech
v.'"\\^'ider,''i:i(> Mich, iil), 31, 89 ^'. W. 55(i, bb? (iyOL!). See Loomis V. Loomis,
supra, note 19.
"A grantor's deposit; of his deed with a third party, to be held by such third
party until the grantor's death and then delivered to the grantee therein named,
the grantor reserving no dominion or control over the deed during his lifetime,
constitutes_,a valid delivery and vests an immediate estate in the grantee, sub-
jecrTp_a life estate in the g^rantor [citing many cases]." Jviaxweli v. Harper,
sFWaslT. "851, ;iod, yy Pac. 7o6, Vbs (1909). To same general effect are Rowley
V. Bowyer, 75 N. J. Eq. 80, 84, 71 Atl. 398, 400 (1908). "All the cases cited
hold that title passes either at or as of the date of the first delivery." Nolan
v. Otney, 75 Kan. 311, 89 Pac. 690, 9 L. R. A. (N. S.) 317 (1907), where the gran-
tee was to support the grantor during his life.
326 ' DERIVATIVE TITLES (Part 2
lease of certain real estate situate in the city of New York known as the
Von Hoffman Apartment House. The deed ran to a daughter, Rosalie
Tousey, subject to the life lease. It was delivered by the grantor to_a
third person to be by him after her death delivered to the grantee^
which was done and this appeal is concerned with the judgment dis-
missing the complaint in so far as it attacks said deed. Such attack
does not present here any question of fraud or undue influence, but
~> involves the question whether the deed was valid and effective under
, the circumstances of its delivery.
The important findings on which the judgment dismissing the com-
plaint is based and certain significant refusals to find are, in substance,
as follows :
Some time before her death, Margretta Todd, being the owner of
the premises in question, executed a deed of the same to her daughter
Rosalie in consideration of natural love and affection, and delivered
the same to one Lockwood. "with instructions to hold the same (ku-ing
the lifetime of the grantor * * * ^Lud upon or after the death of
the said Margretta Todd, to deliver the said deed of the said premises
to her said daug^hter." In accordance with these mstructions, com-
munioated to him at the time of the execution of said deed, Lockwood
"did hold the said deed during the lifetime of said Margretta Todd and
after her death delivered the same to the said Rosalie Tousey who
duly accepted the said deed." The court refused to find that said deed
was deposited with Lockwood by the grantor as her agent, or that she
at all times retained control of the aforesaid deed (and lease) and ex-
ercised over the said instruments the power to recall them. During
the lifetime of the grantor, Lockwood informed the grantee tbat her
mother "had executed and delivered to him a deed conveying the said
premises to the said Rosalie Tousey to be delivered to her after the
death of her said mother." October 31, 1905, three days after the
death of the grantor, Lockwood caused to be recorded in the proper
office tTie deed in question, and notified one Hasting^s, as attorney for
the grantee, of such recording. The grantee at the time was traveling
abroad, and after she returned to New York early in December she
assumed the direction and management of said premises, expending
various sums in re-decoration, repairs, etc., and she made, or caused
to be made, a demand upon the Lincoln Trust Company, which had
taken possession ot the property under circumstances hereafter to be
referred to. that the management and control of the premises be,re-
linniiished to her "as the said property belonged to her under a deed
executed" as hereinbefore stated, and thereafter possession was sur-
rendered to her, which she retained until her death, when her title
passed to others who are defendants here.
I fail to see any break in this chain of findings which prevents them
from being sufficient in connection with other more formal ones to
draw after them the conclusions of law and judgment which have been
made to the effect that said deed vested in the grantee a title which
Ch.2)
EXECUTION OF DEEDS
327
was valid and effective as against the attempt of the appellants to sev.
it aside. ~ '
It is urged, however, as against the force of the findings above sum-
marized that other findings were made which are so inconsistent there-
with as to lead to a different judgment than that which was rendered.
Some of these findings are designated in the decision as findings of
fact and some of them which are described as conclusions of law are
nevertheless asserted by the appellants to be findings of fact. They are
in substance as follows :
T hat at the time of her death and for many years prior thereto Mar-
gretta Todd was the oivner in fee simple of the property in question ;
that she "retained the active and undisputed control, possession, man-
agement and ownership of thf^ g^irl prpmkpQ Hnwn to tjif dnt^ o^ ^""^
deatl^;" that on divers occasions subsequent to the execution of the
said deed to her daughter said Margretta Todd "had shown much love
and affection for her said daughter * * * ^j^^^ had expressed an in-
tention of executing a deed of the said premises to the said Rosalie Tou-
se}^" (stated as conclusions of law) that the deed was a valid convey-
ance "to take effect on the death of said Margretta Todd ;" that after
the death of the said grantor the said Lockwood made a valid delivery
of the deed of said premises to Rosalie Tousey and the said deed was
duly accepted by her "and the fee simple of said premises vested in
Rosalie Tousey from the time of the death of said Margretta Toddon
the 2Sth day of October, 1905, nnd_th^ snid Roprilip Tnngpy |ip ^nd is
entitled, I'H the. rp^}\^ anr] profit" thrrpfrnm jxom said 28tli day of Qcto-
berjJ905."
'On tliesfe so-called findings of fact the appellants build up the argu-
ment that in order to be effective the deed delivered to Lockwood \
^ithermust have taken effect presently when delivered to him or else I
takerT etlect when delivered to the grantee after the death of tlie /
e^rantor must have related back to ^^""^ tii-np f.f itc A(A\yery to Lock- \
wood ; that on either theory the grantor could not retain ownership of I
the premises down to the time of her death, and, therefore, the findings 1
which have been last quoted are in conflict with both theories and 1
"rnmpel the ronr1ii':;inn that the AeeA wnc in<^Piq(-]^r| to take effect not J
as a present ronve\'-ance but n^i n t''^tnmrntnr3'ji.ispositio£i-"
I'he hrst^!r\v^r*Tothis argument is that the findings which appel-
lants rely upon and which they claim to be in conflict with those first
quoted from, if they are in any conflict, involve statements of law rath-
er than of fact. I suppose that the question as of what time tHeTTtleN
would pass from grantor to grantee and at what date the fee simple \
would vest in the latter upon performance of the various acts set forth i
in the findings naturally must be one of law. ~^
In the second place, I do not think there is anything in the findings
or conclusions as a whole which is intended tO' be or really is at vari-
ance with the judgment which was rendered or which destroys the
deed as a valid conveyance. Take as an illustration the findings that
328 DERIVATIVE TITLES (Part 2
the deed was to take effect on the death of the grantor and that the
"fee simple of said premises vested in Rosahe Tousey * * *
from the time of the death of said Margretta Todd," and that at the
time of her death said grantor was the owner in fee simple of the
property, and interpreted in the light of their surroundings they are
substantially accurate. The conclusion that tlie title vested in the gran-
tee from the time of the death of her grantor was part of a conclusion
of law made for the purpose of fixing the time from which the grantee
should receive the rents and profits, and I do not understand that there
is any dispute tliat she was properly limited in her right to these to the
period after her grantor's death. The other conclusions that the deed
was to take effect upon tlie death of the grantor and that the latter
died seized of the premises are in accordance with the fact of the final
delivery of the deed and the law as established by well-considered
cases.
Hathaway v. Payne, 34 N. Y. 92, 113, considered a deed like the
present one, which was delivered by the grantor to a third party to be
delivered to the grantee after the former's death. Chief Judge Denio
wrote for a majority of the court as follows : "They (the authorities)
do * * * prove that a deed may be delivered to a third person, as
this was, with instructions to be finally delivered to the grantee after
the death of the grantor. In such a case, the weight of authority is,
that no title passes until the final delivery, and that then, and there-
after, the title IS, by relation, deemed to have vested as of the time o f
the first delivery to the third person. If it were an original question, I
should suppose that such a transaction was of a testamentary character.
* * * But the cases establish the rule as I have stated, and they
should not now be disturbed."
The same doctrine was laid down in Rosseau v. Bleau, 131 N. Y.
177, 30 N. E. 52, 27 Am. St. Rep. 578. It was there held that an
action might not be maintained by the representatives of a deceased
person to set aside as fraudulent against creditors a deed not delivered
until after the latter's death for the reason that such a deed did not
become operative during life and that, therefore, tlie grantor died so
seized that the liens of creditors attached under the statutes relating to
real estate of deceased persons.
In this connection appellants' counsel especially relies on the cases of
Rochester Sav. Bank v. Bailey, 34 Misc. Rep. 247, 69 N. Y. Supp. 163,
affirmed, 70 App. Div. 622, 75 N. Y. S'upp. 1131 ; Burnham v. Burn-
ham, 58 Misc. Rep. 385, 111 N. Y. Supp. 252, affirmed, 132 App. Div.
937, 116 N. Y. Supp. 1132; Id., 199 N. Y. 592, 93 N. E. 1117.
In each of these cases it expressly appeared that the grantor re-
tained control of the deed, a condition which not only does not affirma-
tively appear in this case, but which is negatived by an express refusal
to find to that effect.
It is further urged that as evidenced by certain findings, the daugh-
ter elected to reject the deed. These findings are to the effect that on
Ch. 2) EXECUTION OF DEEDS 329
learning of the death of her mother she cabled to certain representatives
to look after her interests, and that those representatives, although
knowing of the so-called lease and deed and also of the will, insti-
tuted proceedings to have the Lincoln Trust Company appointed tem-
porary administrator and to have it take possession of all of the estate
of the decedent, including the real estate in question, which it did. _I
dcLnot think under the circumstances that this amounted to any binding
election to reject the deed. The directions given by the daughter were
necessarily general and incomplete and in my opinion did not fairly con-
fer upon her representatives the authority to reject the deed. Immedir
at^elyupon her return she elected to accept the deed and take title
tmdfr iL^
Under the circumstances I think the judgment should be affirmed
with costs. Judgment affirmed. / »
SMILEY V. SMILEY.
(Supreme Court of Indiana, 18S8. 114 Ind. 258, 16 N. E. 585.)
Elliott^. Jacob Smiley was married four times. By his first
wife, Ca^^Ptne, he had four-frtnklren. Joseph J.. Jonathan H., James
and Elizabeth. By his^econePmfe he had no children. In 1870 he
married his third wi(^-Mary. On the 26th day of September, 1873,
he i>£came the ownfer of the land in controversy. On that day he and
hfe^ife executed five deeds^ one to his daughter. Elizabeth, one to his
son Jonathan H., one to Joseph and Jonathan, one to Toseph. and one
to the heirs of Tames Smiley. At that time James Smiley was living
and had four children, Jacob M., Sarah, William and Elizabeth. These
deeds embraced part, but not all, of the land owned by Jacob Smiley
iiL.1873! On the 25th day of May, 1875, he executedj^ .yq\L by which
he devised to. his wife, Mary, during her life or widowhood, part of the
land — that in section 11. Item 5th of his will reads as follows: "I
have heretofore executed deeds to all my real estate, not above named,
to my children and grandchildren for the lands which I wish them
each to have, and r\n\v pLnre therrij the said deeds, in the hands of. my
executor hereinafter named ; which deeds I wish my said executor
at my^ death to deliver to the parties severally named therein, and to
whom said deeds are executed. In the 6th item of the will, Joseph J- I » >v»^v^ j(
Smiley was nominated executor, T^^^ Q/^
A few days after the execution of the will, Jacob Smiley placed the ^V *^
dee^s in tiie hands of Joseph T. Sniijey, and directed him to retain "
them untiraJte'r he, |acob Smiley, should die, then to deliver them.
On the^'54th da}nyf"September, 1875, tlie third wife, Mary, died. On
the 6th day of the following November, Jacob Smiley, on being ad-
yised_that the deed to the heirs of James S'miley was not yalid, exerirU.
eda deed_tflJais_children,(^arah, Jacob M., WilHam and Elizabeth, Vnd
placed them inthe^hands'^ of Joseph~7V Smiley, and'Vrepeated the'in-
330 DERIVATIVE TITLES (Part 2
structions formerly given him. On the same4ay he executed this codi-
cil tohis willj "Whereas, my beloved wife^eparted this life on the
24th day of September, 1875, I now wish the propertv bequeathed to
her in my will equally divided among all my chijdren." On the 18th
day of December, 1875, Jacob Smiley married the appellee, Agnes
Smiley. On the 15th day of March, li5//, he died, leavmg no~children
by his last marriage. On that day Joseph T. Smiley delivered the d^eds
placed in his hands to the respective grantees therein named. _ Ho
consideration was paid by any of the grantees. The appellee was ad-
vised prior to her marriage that the only estate which Jacob Smiley
owned, or in which she would have any claim, was two parcels in sec-
tion eleven.
The judgment of the court gave the plaintiff an estate for life in "all
the land, as well that part described in the deeds placed in the hands
of Joseph J. Smiley as that of which no conveyance was made.
/^ The question whether thp pppfUpp \% entitled to a life-estate_ia the
, land embraced in the deeds placed in the hands of Joseph 1. Smilev.
depends upon the time those deeds took effect. If they took effect at
the time of their conditional delivery to him, then, it is clear, she has
no interest in the lands, because her husband was not seized of them
at any time during coverture. The case, therefore, turns upon the
effect of that conditional delivery. If that delivery was sufficient to
vest title in the grantees as of that date, then the appellee can have no
claim in the land as against them.
In deciding this question we attach importance to the fact that the
appellee was advised before marriage what land Jacob Smiley owned
and in which she would acquire an interest. She was, at least, put
upon inquiry, and if she failed to make inquiry she is not in a situation
to aver that she had no notice. Doubtless, marriage is a valid con-
sideration, and if Mrs. Smiley had not been informed as to what lands
her husband owned, a dift'erent question would confront us. We do
not, however, decide that the deeds would not have been valid even if
she had not been put upon inquiry, for that is not now necessary. We
do decide that, as she had notice prior to marriage what land her
husband then owned, she can not successfully assert her marital rights
in the land embraced in the deeds placed in the hands of . Joseph J.
Smiley. "
There was here a cojiilijioj^l.ilelivejx.fqr the deeds were placed in
the hands of Joseph J. Smiley with explicit instructions to deliver th.£tP
to the grantees upon the happening of a designated event, that of the
death of the grantor, in this particular the case differs from that of
Jones V. Loveless, 99' Ind. 317. It differs, also, from that case in an-
other particular, and that is this : The party who here assails the deeds
had notice that the grantor did not own the lands einbraced in them.
Tills case is, m all material respects, like Owen v. Williams, 114 Ind.
179, 15 N. E. 678, and the principle there asserted applies to it with
great force. Our conclusion is well sustained by authority. Hockett
Ch. 2) EXECUTION OF DEEDS 331
V. Jones, 70 Ind. 227; Crooks v. Crooks, 34 Ohio St. 610; Hatch v.
Hatch, 9 Mass. 307, 6 Am. Dec. 67 ; Stephens v. Rinehart, 72 Pa. 434;
Morse v. Slason, 13 Vt. 296; Tooley v. Dibble, 2 Hill (N. Y.) 641.
The trial court erred in its conclusions of law upon the facts stated
in the finding.
Tlie appellee has filed a motion to dismiss the appeal as to all of the
appellants except William Smiley, and, upon the admissions made in
the answer to this motion, the appeal must be dismissed as to all the
appellants, except the one named.
It is, therefore, adjuds^ed that, as to all the appellants except William
Smiley, the appeal is dismissed, and that, as to him, the judgment is
reversed, with instructions to restate the conclusions of law, and enter
judgment in his favor.^^
RATHMELL v. SHIREY.
(Supreme Court of Ohio, 1890. 60 Ohio St. 1S7, 53 N. E. 1098.)
The cause was tried in the circuit court upon appeal from the court * -j 'g j
of common pleas. The plaintiff in error prayed for a decree of the ^'*^*-««'''**"fi^
court setting aside a deed for one hundred acres of land made by his rdjLx^^^r''*
testator tojthe defendant , J[^i^omas^_g^l]2men , in trust for the defendant^'"'^
William C. Shirey and others, and an order for its sale for the payment
of debts of his testator, alleging in his petition and amendments thereto
tiie insufficiency of the assets of the testator to pay his debts ; that
the instrument in question was signed by the testator contemporane-
ously with the execution of his will and upon no consideration except
that expressed, to-wit, love and affection for his son William and one
dollar: that said instrument was not then, nor ever in the lifetime of
the testator delivered to said trustee^ but was delivered as an escrow
to one Zeno C. Payne to be bv him placed on record and delivered Jo
said trustee after the death of sajd testator, the testator remaining in
possession and control of the premises and paying taxes thereon until
his death, a portion of his debts being contracted after the signing of
said instrument and credit being extended to him on account of his
appar^nr^ owiiership of said premises, and that said deed delivered to
said trustee after the death of the plaintiff's testator was fraudulently
made and that it hinders, delays and defrauds his creditors. The an-
swer admittedjlie insufficiency of the assets of the testator's estate to
pay his debts. On' denial by the defendants of the plaintiff's allegations
as to the fraudulent character and effect of tlie instrument the cause
was tried in die circuit court where upon request the conclusions of
fact and law were separately stated as follows :
On the fourth day of December, 1891, Lewis Shirey, then in full
21 Vorheis v.- Kitch, 8 Phila. 554 (1871), ace, the deed there beirrg~«ft,.gscrow.
See Ladd v. Ladd, 14 Vt. 185 (1842), where the widow was held entitle
dower, the grantor having been deemed to have died seised.
"^^•^^
532
DERIVATIVE TITLES
(Part
\ji
A
life, was seized of 160 acres of land in Hamilton township, Franklin
county. Ohio, upon 60 acres of which there was a mortgage incum-
brance of $1,500; that on said December 4, 1891, said Shirey executed
/a trust deed toThomas Rathmell for the remaining 100 acres thereof
) for the use of his son, William C. Shirey, for life,.remamder to the chil-
/ dren of William C. Shirey. That on the same day he executed his_will
' disposing of 60 acres, the remainder of his land ; the same being charg-
ed with the mortgage incumbrance aforesaid to his daughter, Margaret
Thompson,^ lliat at the time of the execution of said deed, to-wit De-
cember 4, 1891, he delivered the same to one Zeno C. Payne, his attor-
ney, who made the following indorsement thereon in said Shirey's pres-
ence, to-wit: "Deposited with me in escrow to be placed on record at
the death of the grantor and delivered to the grantee therein named.
Z. C. Payne." At the time of said endorsement said Shirey instructed
said Payne to place this deed on record at the time of his death and
t deliver the same to the grantee therein named. That at the time of the
execution of said deed and will in addition to the mortgage incum-
brance of $1,500, Shirey was indebted to divers persons in the sum of
$500, which, in addition to the $1,500 mortgage incumbrance, remained
unpaid at the time of his death, which occurred in February in 1895.
Shirey remained in possession and control of said realty, and paid the
taxes thereon during his life time, and contracted subsequently to t_he
executiotTof said deed other debts to the amount of about S1.j25. said
incTeHtedness of $1,32d remaining unpaid at the time of his death.
Shirey died February, in 1895, leaving defendant, Crissie Shirey, his
widow, and said son and daughter surviving him. Said trust deed wa s ,
immediately upon Shirey's death, placed on record in the recorder's
office of Franklin county, Ohio, and then handed to Thomas Rathmell,
the grantee therein named, who,_ immediately upon Shirey's death an d
in execution of the trust created by said trust deed, entered into an d
took possession as such trustee of said 100 acres of land, and is now
and has been continuously since the death of said Lewis Shirey in pos-
session thereof. That said 60 acres of land devised to Margaret
Thomp'^on by qairl wijf have been sold by plaintiff and the proceeds of
said sale are not more than sufficient to pay said mortgage indebtpflnf'c;g
of $1,500, with interest, widow's dower in said 60 acres and costs of
sale. No provision for the widow was made either in thedeedjii trust
nrjri thq A^ijll^^t tTTeTTiiiT'Trr the pypn^^ dperTthe grantor,
Shirey, did not retain property clearly and beyond doubt sufficient to
pay his existing indebtedness; and of which indebtedness about $700
(beingj-insecured debts) is and remains_ unpaid, and that umesT^gaf^TOO
acresof land or some part thereof, be sold, the general creditors of said
Lewis Shirey will receive notKmgoiitheir clairn. as cost of administra-
tion, costs of last sickness and funeraland the mortgage indebtedness
of $1,500, with interest, and widow's dower and allowance, having
consumed the proceeds of said 60 acres of land and all the personal
estate of said Lewis Shirey. That said Lewis Shirey injthe_£2^££iition
Ch. 2)
EXECUTION OF DEEDS
333
of said deed acted in perfect good faith and without any intentional
fraud, ''fhat said Lewis Shirey when contracting said debts subse-
quent to the execution of said trust deed was guilty of no misrepresen-
tations whatever, credit having been extended to him without any
inquiry or investigation by the persons so lendmg him credit as to
how much land or property he then owned, said creditors having knowl-
edge that said Shirey was in the possession and control of 160 acres of
land and without knowledge that he had made said trust deed. Up-
on the foregoing facts the court finds the law to be as follows, to-wit :
First — That said trust deed passed the title to said grantee, Thomas
Rathmell, trustee, as ot tlie'^te of its first delivery, to-wit. December
4, 1891, subject to the dower estate of Crissie Shirey.
Second — There was no intentional fraud in the execution and deliv-
ery of said deed, and that the same is valid as to the debts ot .Lewis
Shirey created after nprember 4, 1RQ1. / ^C^Z^ t^ £^COt<4Zi.^u^ a^ ^mJ^
Third — That said conveyance is void as against the debts existing at
^
^
the time of its execution.
Fourth — That plaintiff is entitled to sell so much of said 100 acres
of land as may be necessary to pay the outstanding debts of Lewis
Shirey existing December 4. 1891. with the accrued interest thereon.
To each and all of which findings of fact so made by the court as afore-
said, and each and every conclusion of law thereon the plaintiff excepts.
A bill of exceptions was taken embodying all of the evidence, and this
petition in error prays for the reversal of the judgment of the circuit
court because its findings of fact are not supported by the evidenceand
because its conclusions of law were not justified by the fqcts found.
Shauck, J. The case presented permits us to assume, without de-
ciding, that in view of the facts found by the circuit court there was
such a delivery of the deed as would give it effect as against the heirs
at law of the grantors, and that as to them the deed would, by relation,
take effect at the date when the instrument was delivered as an escrow.
We have to determine whether it was effective to pass the' title to the
grantee discharged_of debts of tlie granjor^contracted between Decem- \^^'' -
ber, 1891, when the instrument was delivered as an escrow and Febru- ^^^^--'Tii) /
ary, 1895, when upon his death it was delivered to the grantee, as was ^^ ^\yi/0^
held by the circuit court. ^^^^'^
I Delivery being essential to the efficacy of a deed, it is obvious that
the title does not actually pass until that which was an escrow becomes
a deed by virtue of its delivery as such, or at least, untilthe satisfac-
tion of the conditions prescribed for its final delivery. Accordingly the
general rule is that the title does not pass until the second delivery, or
urftfrthe conditions prescribed therefor are satisfied. Itwould not be
practicable to cite all the cases in which the general rule is so stated.
Many of them are collected by Mr. Devlin in a note to section 328 of
his work on deeds. To this rule there is a well-recognized exception.
The rule and the exception are thus stated by Chancellor Kent:' 22^""
orally an escrow takes eft'ect from the second delivery and is to be con-
yit^ e*^jiju^.
334
DERIVATIVE TITLES
(Part 2
sidered as the deed of the party from that time: but this geppt-f^l riilp
does not apply when justice requires a resort to fiction. The relation
back to the first delivery, so as to give the deed effect from that time,
is allowed in cases of necessity, to avoid injury to the operation of the
deed from events happening- between the first and second d^jj^ery.
* JJut if the fiction be not required for any such purpose, it is
not admitted and the deed operates according to the truth of the case,
from the second delivery. It is a general principle of law that in all
cases where it becomes necessary for the purposes of justice that the
true time when any legal proceeding took place should be ascertained.
the fiction of law introduced for the sake of justice is not to prevail
against the f^ft. " 4 Com. 454.
Whatever terms may be employed in stating the exception, the_xd.a-
tion back to the first delivery is always to accomplish, and never to de-
feat, justice.^ Bearing in mind the purpose of this exception and the
fact that the deed before us was without any substantial j:onsideration,
it is quite apparent that the conclusion of the circuit courTthat the
relation back should be allowedjto cut ofi^ the claims of those who gave
credit to the testator between the first and second deliveries, and with-
out knowledge of the instrument, is erroneous. That conclusion de-
rives no support from Crooks v. Crooks, 34 Ohio St. 610, or Ball v.
Foreman, Z7 Ohio St. 132, where the title was held to pass as of the
date of the first delivery for purposes clearly within the exception as
■above stated.
The judgment of the circuit court will be so modified as to order the
plaintiff in error to sell so much of the land in controversy as may be
necessary for the payment of all the debts of the testator. Judgn\ent
accordingly.^^
WHYDDON'S CASE.
(Court of Comiuou Pleas, 1596. Cro. Eliz. 520.)
Annuity. The defendant saith, that he delivered the deed of annuity
to the plaintiff as an escrow, to be his deed upon a certain condition to
be performed, otherwise not : and that the condition was not yet per-
formed. The plaintiff demurred; and, without argument, adjudged
22 Brown v. x\usten, 35 Barb. 3-11 (1861), contra.
In Eanken v. Donovan, 46 App. Uiv. 225, 61 N. Y. Supp. 542 (1899), 1G6 N. Y.
626, GO N. P]. 1119 (1901), the grantor, after making a deed and putting same
into the custody of a third party, to be delivered to the grantee at death of
grantor, made a will purporting to devise the same property to another. Was
the will effective as to that property?
A woman made a deed of certain lands to her son, and left the deed with a
third party to be handed to the grantee on her death. Later she made a mort-
gage of the same lands to secure a loan. After the mother's death the mort-
gagee sought to foreclose the mortgage. The trial court excluded the evidence
offered by the son to prove the execution of the deed to him and that the mort-
gagee had notice of said deed. Was the court right V See Wittenbroek v. Cass,
110 Cal. 1, 42 Pac. 300 (1S95).
Ch. 2) EXECUTION OP DEEDS 335
for the plaintiff: for the delivery of a deed cannot be averred to he to 7^
the party himself as an escrow. Vide 19 Hen. VIII, pi. 8, 29 Hen.
VIII, and Morice's Case, Dyer, 34, b, 35, a, in margin.
^l^'iiu^.XT
HAWKSLAND v. GATCHEL.
(Court of Queen's Bench, 1601. Cro. Eliz. S35.)
Debt upon an oblia"ation. The defendant pleads that he delivered
that obligation to the plaintiff, as an escrow to be his deed, if he per-
formed such a condition, viz., to permit him to enjoy such corn; and
al ledgeth, that the condition was not performed, and so not his deed.
And hereupon the plaintiff' demurs. Clerk, for the plaintiff, argued,
that one cannot deliver a deed to the party himself, to be an escrow;
and to that purpose cited the 19 Hen. VIII, pi, 43 Edw. II, pi, 28,
where it is said, that this condition cannot be averred upon the delivery
to the party himself, in avoidance of the deed, without shewing a deed
thereof.
Gawdy. There is not any difference, where it is delivered to the
party himself as an escrow, and where to a stranger; and the case of
19 Hen. VIII, is so; because the deed was delivered to the party him-
self first, as his deed upon condition, &c., in which case the deed is ab-
solute, and takes eft'ect as his deed upon the first delivery ; and it can-
not be avoided by the condition. But when it is first delivered as-an
escrow, although it be to the party himself, it is clear that it is not his
deed until it be performed" And so is 29 Hen. Vill, Dyer, 34, in Mor-
ris and Leigh's Case.
Poi'HAM accord. ; for if, upon the delivery, the words spoken by
the obligor purport that it shall not be his deed, it is clear it is not : as
where one causeth an obligation to be written and sealed in my name,
and brings it unto me, and prays that I would deliver it as my deed,
and I say, "Do you such a thing, and take it as my deed^ otherwise not ;"
it is clear, that it is not my deed until the thing be performed. So if
the obligor saith, "Take it to you, I will not deliver it as my deed;"
it is not his deed. Wherefore in the principal case, when the obliga-
tion is delivered as an escrow, by express words, it is not possible that
it should be his deed, for the words are not sufficient to make it so
until the condition be performed. But if it be once delivered as his
deed, it rannnt afterwards be defeated by a condition, if the condition
be not in writing ; but here the condition is precedent, so as it was not
his deed until it were performed, and therefore a conditional delivery
may be averred without writing. Wherefore, &c. ,
Fenner to the same intent: for although dift'erence hath been taken,
that a deed shall not be delivered to the party himself as an escrow,
but to a stranger; and the reason hath been alleged, because when it is
delivered to the party himself, there cannot be a second delivery,
336 DERIVATIVE TITLES (Part 2
whereupon the writing should take his effect as a deed ; that seemeth
to be no difference : for when it is deHvered to the party as an escrow,
the words are not suf^ent to make it to be his deed, until the condi-
tion be performed. Wherefore, &c.
And of that opinion was ClExch. Wherefore it was adjudged for
tlie defendant. Vide Cro. Eliz. 520, Whyddon's Case.
WILLIAMS V. GREEN.
(Court of Coinuion Pleas, 1G02. Cro. Eliz. SS4.)
Debt upon a bill. The defendant pleads, that the said bill was deliv-
ered to the plaintiff as a schedule, upon condition, that if tlie plaintiff
delivered unto the defendant an horse upon such a rlay^ tViat y\-]f>n \f
should be his deed, otherwise not : and that the plaintiff had not deliver-
ed the said horse unto him ; and so non est factum. — And it was there-
upon demurred : and resolved by the whole Court to be no plea ; for. a
deed cannot be delivered to the party himself as an escrow, because then
a bare averment without any writing would make void every deed.
Wherefore it was adjudged for the plaintiff. See Whyddon's Case,
Cro. Eliz. 520.
LONDON FREEHOLD & LEASEHOLD PROPERTY CO. v.
SUFFIELD.
(Chancery Division. [1S97] 2 Ch. 60S.)
d This was an action by the plaintiffs, who were mortgagors, against
, the mortgagees, to set aside a mortgage deed for~i9000.. and arose
out of the frauds of one Llewellyn Malcolm Wynne, a solicitor, who
had since absconded.
The facts, so far as it is necessary to state them for the purposes of
the present report, were as follows. Llewellvn IMalcolm Wynne was a
solicitor carrying on business in London in partnership with his broth-
er. Campbell Mountague Edward Wynne, under the firm of "Wynne
& Son."
L. M. Wynne was one of the four trustees "of the marriage settle-
ment of Sir Frederick Leopold Arthur^and the firm acted as solicitors
to the trust He was also the managing director of the plaintiffs, the
London Freehold and Leasehold Property Company, Limited, incorpo-
rated in 1883. In ]May, 1886, Wyrme & Son, who carried on business
as bankers as well as solicitors, were appointed managers and bankers
ol the company at a commission. \Vynne & Son were also '^n]^^ritnr<;
to the company; Wynne & Son's office was the office of the company,
and Wynne & Son's conveyancing; clerk. Tyler, was the secretary to
the company. The company's accounts were kept by L. M. Wynne,
/ '
Ch. 2) EXECUTION OF DEEDS 337
whose duty it was, as acting banker and manager, to pay the company's
money received by him or his firm into the bank of "Wynne & Son."
Child & Co. were Wynne & Son's bankers, and in May, 1892. Wynne
& Son, as the soUcitors to the trustees of Arthur's settlement, received
a sum of £9000., part of the trust funds, and paid it intn Child's hank
to the credit of their own account, pending reinvestment. It appeared
that one of the trustees, Mr. Somerset, knew that Wynne & Son had
the money in their hands for reinvestment.
Early in 1893 the directors of the plaintiff companv, acting on L. M .
Wynne's advice, proposed to take steps for g'raduallv paying off certain
mortgages on properties of the company, ' bearing interest at 5 per
cent, by raising-a^^m of £9000.. at a lower rate of interest. The mode
oi raising tlm sumand all the details of the arrangements for the pur-
pose they left to Wynne, in whom the directors placed complete confi-
dence, he telling the board that he had clients who would lend the
money. In June, 1893, a mortgage was prepared by counsel on \\[ynne
& Son's instructions, for £9000.,~to the Arthur trustees upon the se-
curity of certain leasehold properties of the companv consisting of a
block of warehouses called "Victoria Warehouses," and two houses in
Bury Street, London, being' properties comprised in the existing mort-
gages.
On June 19, Messrs. Worley and Ryder, two of the company's di-
rectors, were informed^ by Wynne & Son that a meeting of the board
would be held on the 22d. A meeting of the directors was accordingly
held on June 22, 1893. An agenda paper for the meeting was prepared
by Tyler, and this_paper stated that part of the business would be_to
seal the £9000. mortgage, and another mortgage. The directors present
on the 22d were Wynne, Worley. and Ryder. Tyler, the secretary, was
also present. The mortgage for £9000., engrossed for execution, but
with date (except the year) and days for payment left in blank, was
produced and discussed, and a statement of the properties comprised
in the mortgages which were to be paid off was also produced. The
mortgage reserved mterest at 5Vj. per cent., reducible to 4^ on punc-
tual payment. After explanations by Wynne, it was "resolved that
the seal be affixed to the mortgage for £9000. on Victoria Warehouses
and Bury Street," and to the other mortgage, and both mortgages were
thereupon sealed with the company's seal. Both Worley and Ryder
signed the i9000. mortgage as directors. Tyler also signed it as sec-
retary. No cash then passed, and the directors were well aware of that
fact : nor, as a matter of fact, did the £9000. expressed to be advanced
to the company ever find its way into the company's coffers at all.
The blanks in the mortgage were not filled up at the meeting, but the
date of. the mortgage, December 29, 1893. was subsequently filled irLby
the law stationer when it was sent to be stamped. The blanks left for
the days, of payment were never filled in. The document thus sealed
was then given to or left with Wynne, who, on June 28, 1893, wrote to
Aig.Prop.— 22
Js^if>^
338 DERIVATIVE TITLES (Part 2
Colonel Lloyd, one of the Arthur trustees, that the £9000. had been
advanced on that security.
On March 2, 1895. L. M. Wvnne absconded, and on March 9 he was
adjudicated bankrupt. On the 16th his brother was also adjudicated
bankrupt, and on tlie same day a trustee was appointed in the bankrupt-
cies of the property of the firm and of the separate property of jU_M.
Wynne. ''After the failure of the firm the mortgage of December 29,
1893, was foundjn a "temporary box" belonging to them in whichthey
kept miscellaneous deeds likely to be wanted for temporary purposes
or for stamjjjng. The mortgage had not been_ent£i£dJn the company's
register of mortgages, nor was it re^jalgJ^d in the Middlesex Registry
until May 22, 1897, the day after Kekewich, J., gave judgment in the
present action. !AI)0ut the same time, and with a view to such regis-
tration, one of the Arthur trustees executed the mortgage.
The result of inquiries instituted into Wynne & Son's affairs aftef
their failure shewed that on June 1, 1893, they had 'transferred £9000.
from their account with the trustees of Arthur's settlement to the credit
of the plaintiff company ; the following credit entry, headed "The Lon-
don Freehold and Leasehold Property Company Mortgage Account"
being found in Wynne & Son's ledger: "By transferred from Sir F.
L. Arthur's settlement trustees, amount, advanced on mortgage at 4^2
per cent., £9000." As already stated, the £9000. never found its way
in cash to the conipany at all, nor was it ever applied in discharge of
tlTe_existino- mortgages, the entry, therefore, being, as the company £qii-
tended, fictitious and fmndnlent. It appeared that Tyler, the clerk to
Wynne & Son and secretary to the company, had access to the ledger ;
but he, and Worley and Ryder also, in giving their evidence in the pres-
ent action, said they knew nothing about any of the entries in Wynne
& Son's books, and never saw or knew of the particular entry in ques-
tion.
On March 21, 1896, the plaintiff company brought this action against
the defendants, the Arthur trustees (including 1^. M. Wvnne). and the
trustee in bankruptcy, claiming a declaration that the mortgage of
December 29, 1893, was not a valid and effectual security and was not
binding on the plaintiffs, and that the same might, if and so far as
might be necessary, be set aside and cancelled ; delivery-up of the title-
deeds relating to the mortgage; and injunction against enforcing the
security; and, in case the Court should be of opinion that the mort-
gage was valid and effectual, a declaration that the plaintiffs were enti-
tled to prove for the £9000. as money had and received by L. M.
Wynne as their solicitor, either against the joint estate' of the firm of
Wynne & Son, or against the separate estate of L. M. Wynne, as they
might elect; and all necessary accounts and inquiries. Defences were
delivered by all the defendants except Wynne, who, it appeared, had
by an order made by North, J., on April 25, 1896 — that is, since the
issue of the writ — been discharged from the trusts of the Arthur set-
tlement.
Ch. 2) EXECUTION OF DEEDS 339
The action came on for trial with witnesses before Kekewich, J.,
on May 20, 1897.
The witnesses examined were Messrs. Worley and Ryder, two of the
directors of the plaintiff company, Mr. Tyler, the late secretary of the
company, Mr. C. M. E. Wynne, and Mr. Dalgleish, an accountant who
had been auditor of the company, and was its present secretary, having
been appointed to that offxe in place of Tyler shortly after Wynne &
Son's failure. The effect of their evidence sufficiently appears, for
the purpose of this report, from the judgments of Kekewich, J., and the
Court of Appeal.
Oct. 30. The judgment of the Court (LindlEy, M. R., and Lord
Luni.ovv and Chitty, L. JJ.) was delivered by
Li.vdlKy, M. R.^* This is an appeal by the plaintiffs from a deci-
sion of Kekewich, J., refusing to set aside a mortgage executed by them
for securing £9000. to Lord Suffield and others, who were the trustees
of a settlement called Arthur's settlement.
[His Lordship then reviewed the facts of the case to the effect
above stated, observing that the relation of Wynne & Son to the plain-
tiff" company was an all-miportant element in the case ; that as bankers
and managers they kept the company's accounts, it being their duty
as managers to pay the company's money received by them as man-
agers into their bank ; that, moreover, it would be in accordance with
the ordinary course of business for a banker, w'ho had to pay mon£.v
for one customer to another, to effect such payment by book entries,
that is. by debiting one customer and crediting another in their respec-
tive accounts, it not being necessary that any cash should actually pass
from the one customer to the other : also that it was clear from the
evidence that the directors of the plaintiff company left all the ac-
counts to Wynne & Son, and never troubled themselves about any
books except the minute-books and the company's pass-book \vitR
Wynne X^ Snn: and that the plamtitts had tailed to prove that the
credit entry of June 1, 1893, was fictitious and fraudulent. His Lord-
ship, after referring to the evidence as to the preparation of the mort-
gage, its production at the meeting of the company's directors on June
22, 1893, and its sealing with the company's seal, proceeded :]
Tlie document thus sealed was given to or left with Wynne : b u t
in what capacity is by no means clear. Worley, Ryder, and Tyler have
all given evidence as to what took place when the £9000. mortgage
was sealed, and it is contended bv counsel for the plaintiffs that the (tA<i.Ajlf^^ ^ C4^
mortgage was merely an escrow, and never became a perfected deed. ^
We are unable to come to this conclusion^ ^It is. in our opinion, clear /v** rt\}'v^^*^
that the deed was sealed and delivered by the company, acting through ^
its directors and secretary, as a deed, i. e., as a perfect instrument; Oju^JaJ^^
and that it was so executed in order that it might be used a'? pn np- T7 '
erative deed for the purpose nf rarrying nnf the rnntemplated arrange- ''^^'^a^
23 A portion of the opinion is omitted. *-Xx"3»^ •
340 DERIVATIVE TITLES (Part 2
ment by which the several existing mortgages bearing interest at 5 per
cent, might be replaced by one mortgage bearing interest at 41/2 per
cent. The mortgage was for £9000. and interest at 51/4 per cent., re-
ducible to 4I/2 on punctual payment. On the face of it. it i'^ a. Hear
mortgage for the money and interest; the subsisting mortgages are
not mentioned or referred to^ The minute authorizing the seahng of
the deed says nothing about any conditional delivery, nor anything
sliewincr that the document was to operate as an escrow. Worley,
Ryder, and Tyler all agree that the deed was executed in order to en-
able Wynne to get the i9000., as it was wanted to pay off the other
existing mortgages for which it was to be substituted, and Worley
says, in order to give the company the right to demand £9000. from
the lenders. The real truth is that neither Worley, Ryder, nor Tyler
had any distinct idea how the contemplated arrangement was to be car-
ried out. They left the whole matter to Wynne, and entrusted him
to carrv it out as best he could: but that the deed was executed as a
deed and was not an escrow is. in our opinion, clear. This conclusion
is fortified by other evidence. [This evidence his Lordship adverted
to in detail.] Such is the history of the impeached deed.
Having now stated the material facts of the case, we pass to the
law applicable to them. The plaintiff company seek to set aside the
£9000. mortgage on the following groundsTnamely— first, on the legal
ground that the mortgage never was executed as a deed, but was only
an escrow.; secondly, on the equitable ground that the mortgagees
never gave and that the company never got the consideration for
which the mortgage was given. As regards the invalidity of the mort-
gage as a deed, it is urged that, although sealed, the mortgage was
handed to Wynne, not as one of the mortgagees nor as solicitor to
the mortgagees, but as solicitor to the plaintiff company, to be delivered
to the mortgagees or to be kept by him as their solicitor only when the
£9000.. or at least some of it, reached the plaintiff company or was
applied in paying oif the other mortgages which the company had
arranged to pay ofif. Kekejagch, T.. decided jliis poinf agamst the plain-
tiff Qompany. We take the same view. We are not prepared to go
so far as to say that, as Wynne was himself one of the mortgagees
and a party to the deed, it could not in point of law be an escrow
in his hands. Counsel for the defendants contended that the mere
fact that Wynne was himselT one oTthe rnoFfgagees was fatal to the
deed being an escrow. They contended that to be an escrow the deed
must be delivered to some person not a party taking under it ; in short,
to a stranger. In support of this contention reliance was placed on
Co. Litt. 36 a; Sheppard's Touchstone (7th Ed.) pp. 58, 59; 2* and
24^Xrhe delivery of a deed as an escrow is said to be where one cloth make
seaTa aeeci, and U{jllV(^i*' It unto a stranger until certain conditions be per-
t'grmea, 'andThen to be diellVgl'ed to bim to whom the deed is made, to take ef-
fect as 'his deed. And so a man may deliver a deed, and such a delivery is
good. But in this case two cautions must be heeded : 1. That the form of
Ch. 2) EXECUTION OF DEEDS 341
Whyddon's Case, Cro. Eliz. 520. No doubt the language used in the
authorities referred to and reproduced in other works on real prop-
erty and conveyancing is in favour of this contention. But the lan-
guage is very general, and we are not at all satisfied that the law is so
rigid as to compel the Court to decide that where there are several
grantees and one of them is als^ solicitor of the grantor and of the
other grantees, and the deed is delivered to him, evidence is not ad-
missible to shew the character in which and the terms upon which the
deed was so delivered. To exclude such evidence appears to us un-
reasonable ; and we do not think we are compelled by authority to
exclude it. We hold such evidence to be adniis<;ih1p, ?\nd jn cjp doing
we believe we are acting in accordance with modern authorities, be-
ginning with Murray v. Earl of Stair, 2 B. & C. 82, and ending with
Watkins v. Nash, L,, R. 20 Eq. 262. Upon the evidence, however, to
which we have already referred, we come to the conclusion that the
mortgage was executed as a complete deed, and that it was given as
such to Wynne in order to enable him to carry nut the arrangements
to which we have before alluded ; jjid to carry them out as he thought
proper.^"* * * *
y Jr
words used in the delivery of a deed in this manner be apt and proper. 2. I^at
tlie deed be deliverea to one that is a stranger to it. and not to the party him-
self to whom it is made: ' * ^ So it must be delivered to a stranger; for If
I seal my deed and deliver it to the party himself to whom it is -made as an _ .
escrow upon certain conditions, &e., in this case, let the form of the words be ^ cCcZ^^**
whai it will, the delivery is absolute, and the deed shall take effect as his deed «^' '--y
presenny, and the luirty is not bound to perform the conditions; for, in tradi- ^ 4''X^«--C*<
tionibus cliartarum, non quod dictum, sed quod factum est, Inspicitur. But ^^,*.c..-s„#i^
in the first cases before, where the deed is delivered to a stranger, and apt
words are used in the delivery thereof, it is of no more force, until the con-
ditions be performed, than if I had made it, and laid, it by me, and not delivered
it at all ; and therefore in that case, albeit the party get it into his hands
before the conditions be performed, yet he can make no use of it at all, neither
will it do him any good. B^t when the conditions m-p nprfm-pied. and the deed
Is delivered over, then the deed shall take as uiueh eff^ft 'T'^ '^ ^*" Wfff delivered -^
iinmediately to tlie party to whom it is made, .ind no act of God or u-,an can
Hinder or prevent this effect then, if the nartv thnt dntli mnkp it be not atlEe
time of iii.niving tliereoi:' disabled to make it. He therefore, that is trusted with
the keeping and delivering of such a writing, ought not to deliver it before the
conditions be performed ; and when the conditions be performed, he ought not
to keep it, but to deliver it to the party. For it may be made a question, wheth-
er the deed be perfect, before he hath delivered it over to the party accord-
ing to the authority given him. gowbeit it seems the delivery is good. forJt
is said in this case, that if either ofTlie narties to the deed die heforp thp fion-
ditions be performed, and the conditions be after nfirformed. that thp d^^ri 7s
good ; for there was traditio inchoata in the lifetime of the parties ; et postea
consummata existens by the performance of the conditions, it tak^tb i^g pffpr'i-
by the first deliver.y. without any new or second delivery: and thf^ sp<^nri rip-
livery is but the execution and consummation of the first delivery." Shep.
Touch. 5S, 59. ' '
2 5 But see Price v. Pittsburgh, Ft. W. & C. R. Co., .34 111. 13 (1864), where a
d^ed was left with the solicitor of a corporation, the grantee, to be held ^y him
until the performance of a conditioiL
342 DERIVATIVE TITLES (Part 2
WIPFLER V. WIPFLER.
(Supreme Court of Michigan, 1008. 353 :\Iich. IS, IIG N. W. 544, IG L. II. A.
[X. S.J 941.)
MoxTCOMERY, J. Complainant filed a bill for divorce, also pra^nng
to have set aside a deed of certain lands made by complainant running
to the defendant, and to compel the conveyance by defendant to com-
plainant of certain other lands, title to which was taken in defendant's
name, the consideration price having been paid by complainant. The
complainant prevailed on all points in the court below and defend-
ant appealed. The p-ronnd for the divorce alle,i]:ed was extreme cruejty.
The circuit judge, who saw the witnesses and noted their api)earance
upon the stand, w^as of the opinion that the case of extreme cruelty
was made out. We are not disposed, upon the record made, to disturb
the circuit judge's finding upon this question.
Upon the question of the right to set aside the deed execui£d-hy
complainant and placed in defendants hands, we encounter what.jye
deem a legal obstacle to granting the relief prayed. The equities of
the case are undoubtedly very strongly with complainant, and if the
rules of law would admit, we should unhesitatingly grant the relief
prayed. The property involved represents substantiallv all the earn-
ings of the complainant for a lifetime, and the insistance by the defend-
ant upon her legal rights which will result in turning complainant out
almost penniless, is most unconscionable and inequitable,.. We have
struggled to find authority for relieving complainant in the case, but up-
on a full consideration and a re-examination of the question determined
by this court in Dyer v. Skadan, 128 xMich. 348, 87 N. W. 211, 92 Am.
St. Rep. 461, we are unable to find such authority.
Complainant's testimony is that he prepared, ^signsd,. and acknowl-
edged the deeds in question, and retained them in his possession for
several years, but tliat Tn the month of August, 1890, when about
to take a raihvay trip to the G. A. R. encampment, which he deemed
hazardous on account of a strike of the employees of the road he
would travel over, he, before leaving home, handed the deeds to the
defendant wMth instructions that if anything of a fatal nature should
be^fall him, she should have the deeds recorded; that he returned_J n
safety, and several years thereafter found that the defendant had
caused the deeds to _be recorded during his absence on this trip. The
defendant denies that there was any condition annexed to the delivery
of the deeds to her, but asserts that complainant handed her the deeds
teJling her to record them, and instructing her in what office to have
them recorded. But assuming complainant's version to be correct, the
transaction constituted a delivery of the deeds to the grantee without
any express reservation of the right to recall them, and with intent
that in a certain contingency they should be efiective. without any fur-
ther act on the part of the complainant.
Ch. 2) EXECUTION OF DEEDS 343
The case of Dyer v. Skadan reviews the authorities and follows
the rule laid down by this court in Dawson v. Hall, 2 Mich. 390, that
a^delivery of a deed by a grantor to a granteeMn escrow or^upon con-
ditionMs effectual to pass title presently. This question has arisen and
is considered and discussed in a vast number of cases. Many cases
may be found in which the manual custody of a deed had been entrust-
ed to the grantee temporarily and evidence was admitted to show that
no delivery was intended. Uut these cases when examined and ana-
lyzed are found to be, we think, cases in which there was no intent
that the deed should take effect ultimately without any further act on
the grantor's part if the condition upon which it was delivered should
be performed. See a discussion of this subject in Gilbert v. Insur-
ance Co., 23 Wend. (N. Y.) 43, 35 Arh. Dec. 543, in which case it
was held that leaving the deed in the hands of the grantee to be by
him transmitted to a third person to hold in escrow until the hap-
pening of a certain event is not a delivery to the grantee so as to vest
title in him. But in that case it is manifest that nothing but the bare
possession of the deed was vested in the grantee, and it was not to be
retained except by a breach of faith. The deed could not presently
lake effect in the hands of the grantee, nor could it take effect without
an intervening act by the grantor or his agent. In the present case.
tio act of the grantor was required which was not performed.^ It Js
true the condition which it is attempted to annex to the delivery has
not been tulhlled, but had the death occurred, no other act of the
grantor was essential to the passing ot title! The case of Gilbert v.
Insurance Co., it should be stated, was later distinguished and its doc-
trine questioned by so able a jurist as Judge Selden in Braman v.
Bingham, 26 N. Y. 491, in which it was sought to avoid delivery of a
deed on the ground that it was deposited with the granted with in-
structions to leave it with one of the clerks of the register's office,
and it was contended that these facts showed that there was no de-
livery with intent that title should pass. It was held, however, that
it was immaterial whether these facts were properly pleaded ; that
if the answer, in addition to what it contained, had embraced these facts,
it would not, in the opinion of the court, have presented a defense.
Referring to Gilbert v. Insurance Co., it was said :
"In that case, the grantee had deposited the deed with the third per-
son in pursuance of the arrangement, the condition had not been per-
formed, and the grantee made no claim under the deed. The case
presented merely the question, whether the grantor still retained an
insurable interest in the premises described in the deed, the nominal
grantee testifying to the terms in which the deed was delivered to him.
Limited to its peculiar circumstances, no fault can be found with the
decision ; but if the grantee had retained. the deed, claiming that its de-
livery to him was absolute, and in a contest between him and the
grantor parol proof of a conditional delivery had been offered, I think
the result would have been different. If I am wrong in this conclu-
344
DERIVATIVE TITLES
(Part 2
d
sion, the case discloses an avenue for the overthrow of titles, by parol
proof, which was supposed to be closed by the rule to which it would
seem to form an exception. * * * If a delivery to the grantee
can be made subject to one parol condition, I see no ground of prin-
ciple which can exclude any parol condition. The deed having been
delivered to the grantee. I think the parol evidence that tb^ Hpliypr.^
was conditional was properlv excluded."
' See, also, Foley v. Cowgill, 5 Blackf . (Ind.) 18, 32 Am. Dec. 49;
Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330.
But if we assume it to be correct to hold that a deed may be deliv-
ered to a grantee as a mere agent or bailee of the grantor to transmit
such deed to a third person to hold in escrow, it does not aid the com-
plainant in this case. Nor do we know of any authority which goes
to the extent of holding that a deed dejivered to a grantee with an
intention on the part of the grantor that it shall be subject to a future
condition, but with no express provision for recall by the grantor and
i requiring for its vahdity no additional act on the part of the grantor
or any third person, can be defeated by parol proof of such condi-
4-i/-\-p 26 ^ ^ 5f;
The decree must be modified as indicated by this opinion. But the
want of equity and good conscience in defendant's attitude in this case is
so marked that we are disposed to exercise our discretion and with-
hold any award of costs.^^
LEE V. RICHMOND.
(Supreme Court of Iowa, 1894. 90 Iowa, 695, 57 N. W. 613.)
Robinson, J. The defendants. William Richmond and George W,
Fulton, for some years carried on a commercial business at Council
Bluffs under the name of the Boston Tea Company.. James T. Lee, a
son of the plaintiff, was employed by them as clerk for about three
years. In July, 1888, and while he was so employed, the defendants
caused him to be arrested on a preliminary information which charged
him with the crime ^F embezzlement. While he was under arrest,
and before the examination was held, he had an interview with Rich-
mond, in which he admitted that he was guilty of the offense charged,
but expressed a Hp'^irp tn 5;p.ttl^ the matter, and . agreed lo""teTegraph
. y^2^/The balance of the opinion reviewing many cases is omitted.
C-'-^ee accord, Fisher v. Fisher, 23 Cal. App. 310, 137 Pac. 1094 (1913), under a
statute.
27 Cf. Alabama Coal & Coke Co. v. Gulf Coal & Coke Co., 165 Ala. 304. 51
• South. 570 (1910), where A. made a deed to B. and handed the deed to X., a
land purchasing agent of B., to be held, however, in escrow until the payment
of the purchase price by B. Held no delivery to B.
See Blewitt v. Boorum, 142 N. Y. 357, 37 N. E. 119, 40 Am. St. Rep. 600 (1S94),
where the court limits the doctrine of the principal case to instruments affect-
ing realty and instruments requiring a seal for validity, intimating, however,
that the latter should not come within the rule.
Ch. 2) EXECUTION OF DEEDS 345
tq hig father, who resided at Keokuk, to come to Council Bluffs. On
the next day, Saturday, July 14, he learned that his father could not
come, and informed Richmond of the fact. On Sunday, the defend-
a^jts visited him at his home, and spent several hoiirs there. On the
same day, Richmond, James T. Lee, and his wife started for the home
of the plaintiff, where they arrived Monday. An interview was there
had, at which the plaintiff and his wife, the son and his wife, and Rich-
nlond were present during all or a part of the time. It resulted in the
execution by the plaintiff and his wife to Richmond of a deed for three
lots in the town ot Atlantic for the specified consideration of two thou-
sand dollars. The deed was given to Richmond, and was record_ed * ,
in the office of the recorder of Cass county. The plaintiff asks that f^^^^-*^^"'^'^
the deed be canceled, and for general equitable relief. The district [J ^.^tJfZ^
court decreed the deed to be void, and that the title to the lots was
vested in the plaintiff.
The plaintiff' alleges that the deed was executed in consequence of
the representations of Richmond, for himself and Fulton, that James
T. Lee had embezzled a large sum of money; and they had filed an
information against him, in which he was charged with the embezzle-
rnent of money and goods to the value of five thousand dollars ; that
the embezzlement had been confessed by him ; that the defendants
were his friends, and that for the sum of three thousand (;lnllar.s they
would Hi.smi?^^ the information, and restore him to his employment.
and he would have no further trouble; that, if the sum of thyge
thousand dollars was not paid at once, the prosecution would be carried
on, and he would be sent to the penitentiary. The plaintiff further
claims that at that time he and his wife, who is the mother of James
T. Lee, were old and feeble; that he was sick; that both were much
disturbed and frightened by what was said to them, and not knowing
the facts, and having no knowledge of such matters, they believed what
Richmond said to them ; that, when the deed was executed, Richmonil
agreed to submit it to Fulton, and, if it was not satisfactory to him.
to return it to plaintiff^ but that, if it was satisfactory, the rriminni
prosecution of his son would be dropped and eruled. Some of these
claims are denied by the defendants, but the preponderance of the evi-
dence shows the following facts : Until James T. Lee and wife and
Richmond arrived at the house of the plaintiff, he did not know of the
charges against his son. He was then about seventy years of age, had
been in poor health for several years, and was confined to the house.
He was subject to attacks of nervousness, and had been suffering from
one for several days. Richmond told him that the amount of the em-
bezzlerrjent was siy thousand dollars, but the defendants would drop
the prosecution for three thon'^^^nH dollars: that the preliminary hear-
ing was set for the next day, and would be prosecuted, unless a settle-
ment was effected. The son was present, but did not deny the charge
of embezzlement which Richmond made- The father and mother were
much frightened, and desiring to protect their son, and avoid the scan-
346 DERIVATIVE TITLES (Part 2
dal of a criminal prosecution, finally consented to give the deed in ques-
tion, if it would end the prosecution, and, with notes of the defend-
ants to the amount of about nine hundred dollars, which the son held
and proposed to surrender, would effect a complete settlement of the
matter in controversy. The deed was delivered under an agreement
to that effect, and on condition that, if it was not satisfactory to Ful-
ton, it was to be returned to the plaintiff. The notes held by the son
were surrendered to the defendants, but the prosecution of the_son_
was not stopped, although after the case reached the district court,
and after an indictment h;^d_bee" returned, it was dismissed on motion
of the county .attorney for want of sufficient evidence to convict. The
deed was retained by the defendants, but they insisted that the plain-
tiff should give his promissory notes for the sum of one thousand
dollars, which were sent to him repeatedly for his signature.
It is said that, if the claims of the plaintiff be.wpll fnimrjed. he con-
veyed his propertv for the purpose of compromising a criminal piiDS-
ecution and that, as that object was illegal, the law will leave all parties
to tile transaction where it finds then-L We should hesitate long before
refusing tho plaintiff relief on that ground, in view of the weakness of
his body and mind, the threats made, and the fear he was under
when the deed was given. Meech v. Lee, 82 Mich, 274, 46 N. W. 397.
But we prefer to place our conclusion upon the ground that the condi-
tion on which the deed was given to Richmond was never complied
with, and that the deed was not in law delivered, and, therefore, has
not taken effect as a conveyance. We refer to the condition that the
(Jeed and the notes surrendered by the son should be received in full
settlement of the claims made against the son by the defendants. Con-
ceding that some of the provisions of the agreement were illegal, yet
the deed was not to be regarded as delivered, unless the settlement
attempted was approved by Fulton, and, as it was not approved bv
him, there was never, in law, any delivery, and the deed is without
effect. Steel v. Miller. 40 Iowa. 406: Berkshire v. Peterson. 83 Iowa,
198. 48 N. W. 1035; Head v.. Thompson, 17 Iowa, 267, 42 N. W. 188;
Deere v. Nelson, 73 Iowa, 187, 34 N. W. 809. JThe JacUhaLsome j)or-
tions of tjie agreei;nent were illegal would not operate to annul the con-
ditions and make the delivery complete. §ince the deed ysi7{% never
delivered, nothing can be claimed under it. The decree of the dis-
trict court is in harmony with our conclusions, and is affirmed.-^
28 See. also. Ilaviland v. Haviland, 130 Iowa, 611, 105 N. W. 354, 5 L. R. A.
(N. S.) 281 (1905).
Ch.2)
fk f^ EXECUTION OF DEEDS r\ "^ fjtj 347
343, 65 xL. Dec. SU.) ^r~--->.
A 'j EXECUTION OF DEEDS jr\
\ 0 * EVERTS V. AGNES '^'
(Supreme Court of Wisconsin, 1S55. 4 Wis. 343,
Everts made a deed of the premises in controversy and deposited
same with Zettler witli instructions to deHver it to Agnes, the grantee,
upon Agnes making certain notes and mortgages. Without having
performed the condition Agnes secured possession of the deed aiiH
after having same recorded conveyed the premises by deed to Swift.
The action was by Everts against Agnes and Swift to set aside and
cancel these conveyances. Swift claimed to have taken as a bona fide
purchaser for value. The trial court dismissed the bill as to Swift,
and required Agnes specifically to perform his part of the contract
with Everts or show cause, etc. Complainant appealed.-*
By the Court, Smith, J. It is hardly possible to dispose of this case
without recapitulating some, and perhaps most of the material allega-
tions and facts involved therein; yet with the statement of the case
which will precede the conclusions to which we have here arrived, and
which will fully appear in the report of the case, it is only necessary to
recur to them incidentally as the discussion of the principles involved,
and of the points argued, shall seem to require.
On the 31st day of May, A. D. 1851, a written memorandum, very
informal and incomplete, was entered into between the complainant
Everts, and the defendant Every Agnes, for the sale of the premises
described in the complainant's bill of complaint. Whether or not that
written memorandum would be sufficiently definite and certain to au-
thorize or enable a court of equity to decree a specific performance
thereof is not absolutely necessary to inquire. It is, however, worthy
of remark, that from that memorandum alone, it would be difficult to
settle definitely the rights of the parties therejo. It is sufficient for the
purposes of this case to say, ^jiat it conveyed no title by FJ^verl;s, nor
djd Agnes obtain any title thereby ; at most an equitable interest in the
land, upon the performance of thf rnnfHtinn<; or stipulations therein
contained, on his part to be performed, and that he had, and could have
had, no legal rights conveyed by Everts in conformity with the memo-
randum or otherwise, whatever his equitable rights may have been. It
is apparent that the defendant Swift did not purchase any equitable
r^ht or title assuch, which Agnes may have had by virtue ot the con-
tract; but whatever he did purchase, was such interest, title or estate
as Agnes had in the premises, by virtue of his record or paper title
under the deed of Everts to Agnes, made and recorded as set forth in
tne pleadings^
It is not necessary, therefore, to inquire what would have been the
equitable rights of the defendant Swift, had the interest of Agnes de-
rived by virtue of tlie written memorandum or contract before men-
29 Tlds statement is substituted for the one in the report.
348 DERIVATIVE TITLES (Part 2
tioned, been assigned to him, and had he been the purchaser under the
same, and had reHed thereon in his answer. But he, Swift, derives
his title solely from the deed of A!S!"nes to him, conveyed through the
deed jjfJEverts to Agnes, without anv knowledge or considerationj)f.
or reliance upon the written contract or memorandum before jnen-
tiohed. and bases no claim thereon. So far, therefore, as Swift
is concerned, he stands precisely in the same condition as he
Avould have done, had no written contract ever existed between tb&
parties. Everts and Agnqs. It is tAie that S'wift admits in his answer
the said agreement, and avers that in pursuance thereof. Everts execut-
ed a deed conveying the title, but he sets up no claim under this alleged
deed, nor any equitable considerations growing out of the original con-
tract. He claims bv virtue of his deed from Apies and the deed of
Everts to Agnes. On them, and them alone does he base his rightsjjid
interests, and by them are thev to^ be adjudicated.
For the purposes of this case, it is wholly immaterial whether the
defendant Agnes was in a position entitling him to demand a convey-
ance from Everts or not. Were we to express an opinion upon that
subject, perhaps it would not go far to aid either of the defendants.
The conveyances under which Agnes pretends to claim are voluntary,
in contradistinction to those decreed to be executed upon a bill for
specific performance. The deed or deeds, therefore, executed by
Everts to Agnes, must be considered precisely the same as though no
previous contract or memorandum had existed, so far as their operative
effect upon the defendant Swift is concerned.
We regard the making and delivery of the two deeds as but one con-
tinuous act, having its consummation in the deposit of the last deed
with Zettler. We-do, not think., as is claimed by the counsel for tlie
defendant, that any title passed by the first deed. It was rather an
attempt to convey the premises, which was abandoned for anotEir,
and as was supposed, better and more perfect fomi. The rights of
the parties, whatever they are, must therefore depend upon the efi:'ect
of the last deed, and their respective relations to it.
We think JLlxere can be no doubt that the fraudulent means used
by Agnes to get possession of the deed from Zettler, the depositary.
are such as. .effectually preclude him from deriving any benefit from
it__Th^. testimony .on, .this. -branch of., jLbe case is satisfactory. The
deed was left with Zettler as an escrow, ..w.ith ...instructions not to
be delivered until certain securities should be given by Agnes. Until
the performance of the condition, it was, and must remain, a mere
scroll in writing, of no more efficacy than any other written scroll ; b^t
when, upon the performance of the condition, it is delivered to the
grantee or his agent, it then becomes a deed to all intents and purposes,
and the title passes irom the date of the delivery! The deli very to be
valid, must be with tlie assent ot the grantor. These are familiar prin-
ciples and do not require the citation of authorities to sustain them.
If the g'-^nlf^ nKfgjp p-^gsession of the escrow without performance_of
Ch. 2) EXECUTION OF DEEDS 349"
the condition, he obtains no title thereby, because there has been no
delivery with the assent of the grantor^ which assent is dependent
upon compliance with the condition,. The assent of the latter is with-
held until the condition is performed. The obtaining of it by fraud,
larceny, or any means short of performance of the condition, is against
the assent of the grantor; and as this assent is essential to delivery,
ajid a delivery is essential to the validity of the deed, it is difficult to
perceive how Agnes ever obtained any title whatever to the premises,
and of course, equally difficult to perceive how he could convey any,
by any conveyance which he might execute to another. The recording
of an escrow does not make it a deed. Suppose Zettler had procured
the deed to be recorded, and Swift had purchased of Agnes on the
faith of the record title, without any delivery of the deed to Agnes, will
it be claimed that Swift in such case would have obtained title? How
is the case made better by the wrongful possession of the escrow by
Agnes, obtained without the consent of Everts, and hence without any
delivery to him? It is true, all this might be done and Swift, the pur-
chaser, be quite innocent of any wrong. It is also true, that either
Everts or Swift must sufifer by the fraud of Agnes, the latter being
unable to make reparation. But which has the prior of superior
equity? Everts asks that he shall not be divested of his estate witji-
out his consent. Swift asks not only that Eyerts mnv he thus divested.
but that he, himself, may be invc^tprl with it- It is quite apparent that
the superior equity is with him who had the original title, with which
he has never voluntarily parted. Swift has his remedy upon the cove-
nants of his deed from Agnes. But were the equities equally balanced,
the legal title must prevail. That the leoal title never passed from
Everts, w^e think is clear, both from reason and authority. 2 Blk. Com.
— — ; 4 Kent, Comm. 459; 5 Greenlfs. Cruise, Title, Deed, 45, 46;
Jackson v. Catlin, 2 Johns. (N. Y.) 248, 3 Am. Dec. 415 ; Same v. Mc-
Kee, 8 Johns. (N. Y.) 429, 431; Frost v. Beekman, 1 Johns. Ch. (N.
Y.) 296 ; Jackson v. Rowland, 6 Wend. (N. Y.) 666, 22 Am. Dec. 557 ;
Carr v. Hoxie, 5 Mason, 60, Fed. Cas. No. 2,438 ; Jackson v. Sheldon,
22 Me. 569; Robins v. Bellas, 2 Watts (Pa.) 359; 1 Story's Eq. Juris.
par. 75, 76 ; Somes v. Brewer, 2 Pick. (Mass.) 184, 13 Am. Dec. 406 ;
Worcester v. Eaton, 11 Mass. 375.
But it is contended that Swift j'l pntitlpH tr> protertinn as a bona
fide purchaser without notice. This has been a point of some difficulty.
We have not been rei'erred to, nor have we been able to find an author-
ity directly in point. We are aware that courts of equity go to great
lengths to protect a bona fide purchaser for a valuable consideration
without notice. The plaintiff cannot set up the fraud of his grantee in
procuring a conveyance, to defeat the title of a subsequent bona fide
purchaser. But such, and all the cases referred to, differ from the
case at bar, in the important fact that in all of them the conveyance
was perfected by the voluntary act, and with the assent of the grantor.
He made the sale. He executed and delivered the deed, or caused the
^-
350 DERIVATIVE TITLES (Part 2
same to be done. All these acts were perfectly voluntary on his part,
and no matter what fraudulent representations may have induced him
to do these acts, an innocent third person shall not be made to bear his
misfortune, or suffer for his credulity. Cases of this kind are numer-
ous, and the principle on which they all depend is an equitable one.
But they all depend, nevertheless, upon the fact, that the party volun-
tarily parted with his property and executed and delivered the evi-
dences of its alienation. Not so, however, in the case of a forged or
stolen deed. The reason is obvious. In the latter case, there is no
assent of the alleged grantor. There is nn Hplivpry
it IS erroneous to suppose that Everts delivered the deed to
Zettler for Agnes, and thus made Zettler his agent, and is there-
fore bound by his acts. If the depositary of an escrow can be
considered the agent of the depositor at all (which we very much
doubt), he is only such within the scope of his authority. He is
as much the agent of the grantee as of the grantor. He holds
the scroll for both, to be delivered on performance of the condition.
He is as much bound to deliver the deed on pertormance of the con-
dition, as he is to withhold it until performance. The act of deljverv
cannot be considered the act of the grantor until the condition be com-
plied with. Without such compliance, there is no assent to the deliv-
ery. Toobtain the deed or scroll from the depositary without such
A^ compliance is as much against the assent of the grantor, as it would be
'^ to take it from the desk or drawer where the grantor has deposited it,
without his knowledge or consent. It would seem, therefore, that thgre
is a great and fundamental distinction between the case where bv
fraudulent representations, a person is induced to execute and deliver
a cleed^ and one where the deed ox.scroll is obtained trom a depositary
without the knowledge or consent of the depositor, or rnmp|iani-p with
the conditions on which the delivery depends.
*^— ~~^ II ,, I B^ I . I fll - — ^*— — ^'
It would seem that where a deed deposited as an ascrow is obtained
without performance of the conditions, by operating upon the fears or
credulity of the depositary, or by fraudulent collusion with him, or by
other undue means, it be^rs a closer analogy in i)rinciple to the case of
a^orged or stolen deed, than it does to that of a fraud practiced direct-
l^upon the grantor, by means of which he is induced to deliver it. In
the latter case, the legal tit[e passes, and a subsequent bona fide pur-
chaser is protected. In the former, no title passes whatever, and a
subsequent purchaser is not protected. In the one class of cases, there
is the voluntary assent of the grantor; in the other, there is no assent
at all.
If this reasoning be correct, the better opinion would seem to be.
that the fraudulent procurement of a deed deposited as an escrow,
y t%^ from the Hppn^itnry hy the txrantee named in the deed^ would not oper-
fj^^""^ ate to pass the title, and that a subsequent purchaser for a valuable
•^ ' consideration without notice, would derive no title and would not be
protected.
Ch. 2) EXECUTION OF DEEDS 351
But it is contended by the counsel for tlie complainant, that thede-
fendant Swift does not show himself, by his answer, to be a bona fide
purchaser. If this be so, we are relieved from the necessity of decid-
ing directly the other question. The answer of Swift alleges, "that he
paid to Agnes without fraud, a good and valuable consideration accord-
ing to a contract then made between them, and took from Agnes and
his wife a conveyance in the usual form of a warranty deed," etc. 'fhe
answer nowhere alleges what the consideration was, how rnuch, if any-
thinof. was paid, or when paid, though it does state, upon information
and belief, that from June, 1851, "the complainant was never heard to
set up his claims until after said Swift had obtained and recorded his
deed and paid the consideration, all of which occurred on or about the
8th day of October, A. D. 1851."
To entitle a party to the protection which a court of equity extends
to a subseciuent bona fide purchaser, he must n^' ke a full statement of
all the facts and circumstances of his case, so that the court may be
able to do perfect equity between the parties. It is not ^suBident
to allege that he has purchased for a valuable consideration with-
out notice, but the consideration must h-Ave hpen- nrtually paid
before notice. And if a part of the consideration only, has been paid
before notice, he will be protected only pro tanto. Hence it is neces-
sary that the actual consideration be stated, and the amount actually
paicL The mere averment that he is a purchaser for a valuable consid-
eration, and that the consideration is paid, is not sufficient, and no in-
stance, it is believed, can be found where such a statement in an an-
swer has been held sufficient^ Story's Eq. par. 64 et seq., and cases
there cited ; Whit^ and Tudor Eq. Ca. 77; Story's Eq. PI. §§ 28, 806,
852 et seq.^*" d,^.-S7^
30 iipp/Cc, G Wis. 45.*? nS57) ; Dixon v. Bank, 102 Ga. 401, 31 S. E. 96, 66 Am.
St. Pau< liK! (1^97): Jncksoii v. Lynn, 94 Iowa, 151. 02 X. W. 704, 5S Am. St.
Rep.^s() (lyn')) : llarkrender v. Clayton. 50 Miss. lis-A, :n Am. Rpp. PAIO (1S79) ;
Smitli V. South Royalton Hank, .''.2 Vt. .'141, 70 Am. Dee. 179 (lSo9), ace,
. See. also. Wood v. French. .'iO Okl. CS.'j, 130 Pac. 734 (19i:?).
v^"\ybetlier tl"^ gl-pntep nfipipd in n fjeed delivered as an pscfoAv. who has
\^n>iif,'fu!ty"'T)T47lill(''' '<• =i^ |"it it on reenid. can convey a pood title to n bona
fijle purcliaser. is a onyr'tilin in-rphitiim t-n ^|Y|ucll the authorities ai'e in eon-
tlict. In I'.lijiht V. Schenek, 10 Pa. 2N5. .51 Am. Dec. 47S (1,S49) the court held,
irrfr*full and well-reasoned opinion, that the title of a liona fide nnichiiser ennlil
not lie defeated hv |)ro()f that one of The deeds llifougii which he claimed title
w'as a wrdULcfnlly otifained and a wrongfully re( crded escrow. The court rested
it's decision on the fact that the custodian of an escrow is the a.wnt of the
grantor as well as the srantee. and if one of two innocent nersons must suifer
hv the wrouL^ful act of the ageiit^ lie who enndoys an unfaitliful atj:ent. and
nuts it in his iwwer to do the act, nmst hear tlie loss: that the apent has the
power to deliver the deed, and, if he delivers it contrary to his instructions,
he will be answerable to his prin'^ipal, and it is, therefore, reasonable that the ^ ^
latter, and not the iiniocent purchaser should bear the h^ss. In Everts v. Ag- C^L^^ fiyOjf^
pes. 4 Wis. H4.3, 05 Am. Dec. 314 (1S55). the contrary was held. But in the lat- fl^_ 9 "—tr
tei- case the court appears to have acted in Ignorance of the decision in the *^V***' ''
former case, and in ignorance of tlie ecpiitahle doctnne upon which it rests, al- CL^i/*^
though the former decision was made six years before the latter. This, as it "^T^
seems to us, was an unfortunate oversi'Jiht: for the former decision is snpnort-
0^ by reasoning so strong, and, as it tseems to us, so satisfactory, we cajiuut re-
352 DERIVATIVE TITLES (Part 2
SCHURTZ V. COLVIN.
(Supreme Court of Ohio, 1896. 55 Ohio St. 274, 45 N. E. 527.)
]\TiNSHALL, J.^^ There can be no question but that James E. Colvin
Avaived his Hen as a vendor by taking a mortgage on the granted^^g^"^"
ises and other lands of the grantee, to secure the purchase money.
Such is the settled law of this state. The court's conclusion of law as '
to this is correct, and not now questioned by the defendant in error.
So that th_e_qnly^^ue^tion here presented,_is_as_to whether it erred in
its second conclusion, that, upon the facts found, tlie mortgage^jof
James E. Colvin, being subsequent in point of time, is superior jn
equity to the Schurtz mortgage. Priority is claimed on the ground
that at the time the SchurTz mortgage was taken, James E. Colvin held
the legal title to his interest inthe premises, subject, however, to a
legal obligation to convey to James Colvin as purchaser, on his pay-
ing the 'purchase money or securing it to be paid. If the facts found
will bear this simple construction, then there can be no question as
to the correctness of the court's conclusion of law thereon. In such
case the legal title of James E. Colvin would have been notice to the
world of his rights in the property; and no one could have acquired
an interest in it superior to his by mortgage or otherwise.
The question, however, is whether the facts as found will bear this
construction as between James E. Colvin and the Schurtzs. lames B-
Colvin had by a verbal agreement made in 1884, sold his interest in
the premises to James ColviUj^ who went into possession under~ITre
agreement and was iii_ possession at the time the Schurtz loan was
made. Some time before the making of the Schurtz mortgage, James
E. Colvin with his co-tenant, Silas H. Colvin, executed a deed for the
land__toJames Colvin, the purchaser, and placed it in the hands q|^
third person, Howard Colvin, to be delivered when the purchase money
was paid or secured by mortgage^ Afterward, for the purpose of
enabling James Colvin to obtain a loan of money on the land, Howard
sist the conviction that if the attention of the court had been called to it, and
tlie 'principles on wliich it rests, a different conclusion would have' been^l'Mcfi-
ed_; and the subsequent decisions, v^-hich have followed the lead of that, would
have no existence. * * * Escrows are deceptive instrument!^ They are
not what they purport to be. They purport to be instniments which have been
delivered, when in fact they have not been delivered. They clothe the grantees
with apparent titles which are not real titles.^ Such deeds are capable of being
used to enable the grantees to obtain credit which otherwise they could not
obtain. Thej. are capable of being used to deceive innocent purchasers. And
the makers of such instruments can not fail to foresee that they are ITaljle to
be so used. And when the maker of such an instrument has voluntarily parted
■ with_the possession of it, and delivered it into the care. and keeping "of a pgt-
son of'his own selection, it seems to us that he ought to be responsible for tli^
use that may in fact be made of it^, and that in no other way. can the public b£
protected aLiainst the intolerable evil oFEaviug otu- public records encumbe^d
with sucii false and deceptive instruments." Hubbard v. Greeley, 84 Me. 340,
^24 Atl. 790, 17 L. R. A. 511 (1S92). ""^
31 The statement of facts is omitted.
Ch. 2) EXECUTION OF DEEDS 353
delivered the deed to him tliat he might obtain a description of the
premises and exhibit it as evidence of his tit_le. The facts found bear
this construction and none otlier. It is true that from the facts found
it was not to be regarded as dehvered. But the law has always at-
tached much importance to an overt act. It_contrayenes its spirit_to
allow that an act may be done-Aykfar-an intention contrary to Ae-act
itselL And whifst, as between parties, the intention may be shown,
it"seLSom permits this to be done, where to do so ^P^l^by^""^ ^ fraud
on innocent third persons. Here, whilst James C^mnwks in posses-*
sion of the land and of a deed to it by James E. Colvin, of whom
he had purchase^ the 'Schurtzs, on the faith of these appearances,
loaned him $6,500^and took a mortgage on the land to secure its^^^ay-
men't; and, as the court expressly finds, without any knowledge tha'
the deed had ever been held as an escrow by any one, and that it was
taken in good faith without any knowledge that James E. Colvin_Jiad
or claimed any interest in or lien on the land.
It would seem on the plainest principles of justice, that under these
circumstances James E. Colvin, as against the owner of the Schurtz
mortgage, should not be heard to say that the deed had not in fact
been delivered at the time the mortgage was made, and that his equity
is superior to it. He^ trusted Howard with the deed to be delivered
when the conditions had been j^erforrned^ Howard violated Jiis^ trust.
He delivered it to the grantee that the latter might obtain a loan on
the land "by exhibitjng it as evidence of his titlg. The loan was so
obtained of persons who had no knowledge of the facts and were en-
tirely innocent of any fraud in the matter. Who then should suffer
the loss ? It may be regarded as one of the settled maxims of the law,
that whereone of jwo innocent_pera£LQS,.must jjif|er from the wrong-
ful act of another, he must bear the loss who placed it in the power
^^ ^li^ £ersori as_ hjs_agent to^ commit the wron.q. Or, more tersely,
he who trusts most ought to suffer most. And it would seem, that
the rights of the parties in this case should be governed by this prin-
ciple, unless there is some rigid exception established by the deci-
sions, which forbids its application where a deed is delivered in escrow.
Before considering this question, it may be well to note that no
importance can be attached to the fact that the deed, on_the faith of
which the loan was made, Tiad not yet been recorded^ A deed on^e-
^iy5.''Y-£5§§£s_t^^^^^° '-^^^ ^^^^ whether recorded or noi^ It takes^-
fect on deliverv- The object of recording a deed is to give notice
to third persons, not to perfect it as a muniment of title. Where not
recorded it will be treated as a, fraud against third^j)ersons^ dealing
with the land without notice of rts existence. Hence, the first deed,
if delivered, having been duly executed, passed the title to James
Colvin. Recording it would have_added nothing to its effect as_j
deed; and the failure to record it in no way influenced the conduct
of any of the parties to the suit.
Aig.Prop.— 23
354 DERIVATIVE TITLES (Part 2
There are some cases which seem to hold that, where a deed is de-
livered as an escrow to a third person to be dehvered on the perftn'm-
ance of certain conditions, no title passes if delivered without the
conditions being performed : and that this is so as agamst an innocent
purchaser from the vendee. Everts v. Agnes, 6 Wis. 463, is such a
case. The argument there is that no title passes by deed without
delivery; that where a deed is delivered by one who holds it as an
escrow, contrary to the vendor's instructions, there is no delivery, and
consequently an innocent purchaser acquires no title. To tlie objec-
tion that if this be true .there is no safety for purchasers, the court
said that if it be not true, there is none for vendors. This seems to
be a misconception of the real situation of the parties. A vendor may
protect himself. He may either retain the deed until the vendee pays
the money or select a faithful person to hold and deliver it according
to his instructions. If he selects an unfaithful person, he should suffer
the loss from a wrongful delivery, rather than an innocent purchaser
without knowledge of the facts. In purchasing land, no one, in the
absence of anything that might awaken suspicion, is required, by any
rule of diligence to inquire of a person with whom he deals, whether
his deed had been duly delivered. Where a deed is found in the gran-
tee's hands, a delivery and acceptance is always presumed. Wash. Real
Property (5th Ed.) 312, pi. 31. The fact that under any other rule
"no purchaser is safe," had a controlling influence with the court in
Blight v. Schenck, 10 Pa. 285, 292, 51 Am. Dec. 478, In this case the
question was whether a deed had been delivered, the defendant being
an innocent purchaser from the vendee of the plaintiff. In discussing
the case the court used this language : "Here Curtis, who, it is alleged,
delivered the deed contrary to his instructions, was the agent of the
grantor. If a man employs an incompetent or unfaithful agent, Jie
is the cause of the loss so far as an innocent purchaser is concerned,
and he ought to bear it^ except as against the party who may be
equally negligent in omitting to inform himself of the extent of the
authority or may commit a wrong by acting knowingly contrary there-
to," And the case was disposed of on this principle.
The case on which most reliance is placed by the defendant in er-
ror, is that of Ogden v. Ogden, 4 Ohio St. 182. The facts are some-
what complicated. It seems to have grown out of an agreement for
an exchange of lots between two of the parties, each being the equita-
ble owner of his lot. The deed for the lot of one of them, David
Ogden, was to be delivered by the legal owner to the other on his per-
forming certain conditions, and was delivered to a third person to be
delivered on the performance of the conditions. It was delivered
without the conditions being performed; and was then mortgaged by
the grantee to the defendants, Watson and Stroh, who claimed to be
innocent purchasers for value. But it was charged in the bill that they
took their mortgages with notice and to cheat and defraud the com-
plainant; and it does not distinctly appear whether this was true or
Ch. 2) EXECUTION OF DEEDS 355
not. From the reasoning of the court it would seem that the deed
had been obtained from the party holding it in some surreptitious
planner. It is first conceded "that if David reposed confidence in Gil- *v/ *
bert. and he violated that contidence" and delivered the deed, and loss ^ (yf^^^ , S
is to fall on either David or the mortgagees, that David should"~sus-
tain_that_loss, and_j^t_Jiiejmioceni mortgagees/ Instances are then
given in which the rule would be otherwise — an innocent purchaser
from the bailee of a horse, or of stolen property, or from one who had
either stolen or surreptitiously obtained his deed. There is no room
for doubt in either of these cases. But the court then observes that,
"If the owner of land makes a deed purporting to convey his land to
any one, and such person by fraud or otherwise procures the owner
to deliver the deed to him, a bona fide purchaser from such Iraudulenf
grantee without notice of the fraud, might acquire title^_to_theJi3Jid."
This, we think, is equally clear ; but, unless the deed in the case had
been stolen or surreptitiously obtained, or the mortgagees were guilty
of the fraud charged, then, on the reasoning of the court, the decree
should have been in their favor. If the case is to be understood as
holding differently, then it is not in accord with the later decision in
Resor v. Railroad Company, 17 Ohio St. 139, Here the owner of
a tract of land contracted to sell it to the company, but refused to de-
liver the deed until paid. An agreement was then made by which the
deed was placed in the hands of the president, but it was not to be
considered delivered until payment had been complied with, and the
company went into possession. The president wrongfully placed the
deed on record, and the company then mortgaged its entire property
to secure an issue of bonds. The court held the bond-owners to be
innocent purchasers, and that the plaintiff was estopped from setting
up his claim as against them. It might be claimed that the delivery
by Resor was to the purchaser, tlie company; and that a deed cannot
be delivered as an escrow to the vendee. The latter statement is true.
But as a matter of fact i'Twas delivered to the president of the com-
pany and not to the company itself. There is no reason why the presi-
dent could not have held it as an escrow, and under the agreement,
must be regarded as having so held it. Railroad Co. v. Iliff, 13 Ohio
St. 235 ; Watkins v. Nash, L. R. 20 Eq. 262 ; Insurance Co. v. C-ole,
4 Fla. 359. The plaintiff trusted the president to hold tlie deed, and
it was his wrongful act that disappointed him.
The supreme court of Indiana in a well-considered case. Quick v.
Milligan, 108 Ind. 419, 9 N, E, 392, 58 Am, Rep. 49, the facts of
wl^ich are very similar to the case before us, held that where a deed / . ^
is delivered to a third_j)erson_to be delivered the grantee, who is 'uj J^^,^
already in possession of the land,. on payment of the purchase money, ^^
andis delivered without tfie condition being performed that the vendor
is estopped as against an innocent purchaser to set up his title. See,
aTso^'and to the same effect, the following cases: Bailey v. Crim, 9
356
DERIVATIVE TITLES
(Part 2
. -l.s
Biss. 95, Fed. Cas. No. 734 ; Haven v. Kramer, 41 Iowa, 382 ; Blight
V. Schenck, 10 Pa. 285.^^
It^isjthe^^eneral, if not universal, jaile of the courts, to protect the
innocent purclmseF~oFprope7ty Tor value, against such vices in the
title of their vendors^ as result from fraud practiced by them in^-
quirlng tb.e proi^erty. For in all such cases the party compraTfung is
found to have been guilty of some negligence in his dealings, or to
have trusted some agent who has disappointed his confidence and is
more to blame for the consequences than the innocent purchaser, so
that his equity is inferior to that of such purchaser. Hence, it is, that
the innocent purchaser for value from a fraudulent grantee, is always
projected in his__title as against the_eciuity_of the wronged grantpr.
In Hoffman v. Strohecker, 7 Watts (Pa.) 86, 32 .\m. Dec. 740, where
a sale has been made under execution upon a satisfied judgment, the
satisfaction not appearing of record, an innocent purchaser of the
person who purchased at the sale was protected in his title, although
the purchaser at the sale had knowledge of the facts, and acquired no
title. A similar holding had been made by the same court in Price
v. Junkin, 4 Watts (Pa.) 85, 28 Am. Dec. 685, and in Fetterman v.
Murphy, 4 Watts (Pa.) 424, 28 Am. Dec. 729. In the case of Price
V. Junkin it is said "An innocent purchaser of the legal title, without
notice of trust or fraud is peculiarly protected in equity, andchan^ry
never lends its aid to enforce a claim for the land againsTEIm?^
Most of the casescited and rehed on by the defendant are not in
point. W^erethe grantee wrongfully procures the holder oi_s._de§^d
as an escrow to dehver it to him, he acquires no title, or at Jea^..a
voidable onej but this is a very different case from where a third
person without notice, afterward and while the grantee is in posses-
sion, deals with him in good faith as owner. Again, it may be con-
ceded that the delivery of a deed by one who simply holds it as a
depositary, transfers no title; but if he holds it as an escrow, with
power to deliver it on certain conditions, a delivery, though wrongful,
is not in excess of his authority for, in such case, the act is within his
authority and binds the principal as against an innocent party. And
so a deed held in escrow, delivered after the death of the principal,
passes no title. It will readily appear, from reasons already given,
that such cases are without application to the case under review. Here
it will be conceded that as_ between the grantorand_the_grantee th e
latter took no title, because deliverej_J)y Howardcontrary to his in-
struction. But the plaintiff relies on the fact that, as found, he had
no knowledge that the deed had ever been held as an escrow and, in
good faith, loaned his money and took a mortgage on the land to se-
cure it; and that the defendant is therefore estopped from setting
up his legal title as against him.
82 See, also, Mays v. Shields, 117 Ga. 814, 45 S. E. 68 (1903).
Ch. 2) EXECUTION OF DEEDS 357
But it is claimed that, as the plaintiff relies on an estoppel, he should
have pleaded it. This rule, however, only applies where the party
has had an opportunity to do so. In this case he had none until the
evidence had been introduced. The defendant, in his answer and
cross-petition, set up tliat the deed from him had been placed in escrow
and wrongfully delivered to the grantee and that the plaintiff had
knowledge of the facts. The plaintiff then averred his want of any
knowledge or belief as to the facts stated by the defendant and denied
them. The court, however, found that the deed had been delivered
to Howard Colvin to be held as an escrow and was by him wrongfully
delivered to the grantee : but also found that the plaintiff was ignorant
of the facts, and an innocent piirrha<;pr fnr vnlne -yvithout notice. The
object of pleading is to inform the opposite party of the facts upon
which the pleader relies as the ground of his claim or defense. And
here, when the plaintiff denied knowledge of the facts as pleaded by
the defendant, he fairlyadvised the defendant that he relied on an es-
toppel, on the ground of want of notice^ should the facts as pleaded
be made to appear in the evidence ; for, that he was a purchaser for
value appeared from his petition, which was taken as true as it was
not controverted. Hence the claim of the plaintiff could in no way
surprise the defendantunlfiss he was ignorant of the law. The first
opportunity the plainnrtn^ to plead an estoppel as against fames
E. Colvin, was when the facts were fully made to appear in evidence ;
and he is not therefore precluded from doing so on the facts as found
\>v the court.
Judgment reversed _and judgment on the facts for_plaintiif in er-
\j' T1-i><^AMPBELL V. THOMAS, -^l^ ^s. ^zA^LI^..^*^
(Supreme Court of Wisconsin, 1877. 42 Wis. 437, 24 Am. Rep. 427.) O/^uvw /'<**'
Appeal from the Circuit Court for Racine County.
The case, stated most favorably to the plaintiff, is briefly as fol- ""^jUi
lows: The plaintjff and__Thpmas^entered_jnto,,a:paroJ_agreen^^
the sale by the latter to the formeiLilf certain^ land,. at_ a , stipulated '
price, to be secured and paid as JiereinaXtei men^ioned^ In accordance
with such parol agreement, the plaintiff paid Thomas a small sum on
account of the purchase money, and the latter signedi^-Sealed and duly
acknowledged a deed of the premises to the plaintiff (which was in the
usual term of a warranty,. deed), and delivered the same to Judge
33,where the custodian has. improperly handed the deed. oygT-tO the grajatoe
.J;fee granTOr^may have same caaceled. Anderson v. Goodwin, 125 Ga. 663, 54
S. E. 679 (19{X;); Bales v. Roberts, 1S9 IMo. 49. 87 S. W. 914 (1905). And the
registration of such a deed may be enjoined. Matteson v. Smith, 61 Neb. 761,
86 N. W. 472 (1901).
358
DERIVATIVE TITLES
H
(Part 2
'^ijt^ ^ Hand, his codefendant, with directions to deliver it to the plaintiff if
^ "^^ the latter should^ two days later, deposit wlthHand his notes for a
y^ ihA ' certain sum (part of the price of the land), and a mortgage executed
4^-
by him on the same land to secure the payment ot such note s, and
at the same time pay to Hand, for the use of Thomas, the balance gf
he asfreed price. These proceedings were all in accordance with
At the appointed time, the plaintiff deposited
such verbal agreement. , ^ , - . ^
N with Hand the notes, mortgage and money as agreed, and demanded
the deed of the land ; but, acting in obedience to instructions frojji
Thomas. Hand refused to deliver the deed... At the same time, Thomas
tendered to the plaintiff the money which the latter paid him when
the verbal agreement was made, and, on the refusal of tlie plaintiff
to receive it, left the same with .Tudge Hand for the plaintiff.
This action was brought to compel Tudge Hand to deliver to the
laintiff the deed thus deposited with him by Thomas. The circuit
court gave judgment for the plaintiff, that the defendant Hand de-
liver such deed to him, and that Thomas pay the costs of the action.
From this judgment Thomas appealed.
[The court concluded that the judgment should be reversed. A
petition for rehearing having been granted, the case was reargued, and
tlie following opinion handed down.]
Lyon, J. The controlHng question in this case is, whether it is es-
sential to the plaintiff's ngHt ot action that there was a valid execu-
tory contract between the parties~?oF the purchase and sale of the
land described in the deed of the defendant deposited with Judge
Hjnd. If this question be answered m the affirmative, the plaintiff
cannot recover ; for it is certain that no ijiote or memorandum of
the alleged agreement under which the plaintiff claims, expressing
the consideration thereof, was reduced to writing and subscribed by
the defendant. Rev. St. 1858, c. 106, § 8.
The learned counsel for the plaintiff has met this question squarely,
and, in his elaborate and most able arguments on the motion for a
rehearing and on tlie rehearing of the cause, has maintained the prop-
osition that "it is not true that a person must be under a previous
binding executory contract to convey the lands described in tlie deed
to the grantee, in order to place a deed thereof, delivered to a third
person on condition for the grantee, beyond the control of the grantor."
Undoubtedly there is a class of cases in which this proposition is
true. These are the cases where the deed has been delivered by the
grantor to a third person wnth instructions to deliver the same to
the grantee on the happening of a future certain event — as the death
of the grantor or some other person, — and such conditional delivery
is assented to by the grantee. In such a case, if the grantor reserves
no control over the deed, he cannot after such delivery recall it, but
the grantee is entitled to it upon the happening of the event, although
there is no valid executory contract to support it. The reason of this
is, that the first delivery of tlie deed passes to the grantee the title to
Ch. 2) EXECUTION OP DEEDS 359
the land, and thus relieves him of the obligation to make title through
any contract other than tliat expressed in the deed itself.
But byatl^of the authorities a deed so deposited with a third per-
sqnjLo^be delivered to the grantee on the happening of some event \'~f;;fu{ /^\^k.
in the~future which may or may not happen, does not pass title to
the lantj* described in it to the grantee until such event occurs, and
then onlY_from that time, or perhaps from the actual delivery of the J
deed to the grantee after tlie event has occurred. There may be ex^
ceptional cases, as where a man delivers his deed in escrow and dies f^j^^JpLcxi
before the conditions of the deposit are fulfilled. In such cases, it ,y- O^xa*.
has been said that from necessity after the conditions are fulfilled the
deed must take effect by relation as of the time of the first delivery.
This, however, is not one of the exceptional cases: and it must be.^ . ^^
conceded, we think, that the deposit of the deed with Judge Hand by \
the defendant with the assent of the plaintiff did not transfer title to A>w jL-j^ei-^
the plaintiff. ^ ^5^ ^ ^
Because such deposit did not divest the plaintiff of his title to the l^
land, there is no executed contract for sale ; and hence, it seems al-
most too plain to be questioned or doubted that, before the plaintiff
can obtain the delivery of the deed and the title to the land^jafter
the defenH^ipt Vias recalled the deed and repudiated thewhole tjjnsac-
tion, he miisL-SllQ^ that the defendant has made a valid and binding
agreement to.^dl and convey the land. And such an agreement can
be evidenced only by a written note or memorandum thereof, express-
ing the consideration and subscribed by the defendant.
In many of the cases cited, there was no valid executory contract
for the sale of the land, but the grantor permitted the deed to be
delivered by the depositary to the grantee upon performance of the
parol conditions of the deposit. Undoubtedly, tlie final delivery to
the grantee in such cases operated to pass the title ; as it would in
the present case had the defendant seen fit to allow his void parol
agreement to be thus consummated. In other cases cited, there was
a compliance with the statute of frauds. Everts v. Agnes, 4 Wis. 343,
65 Am. Dec. 314, is one of them. But we have not discovered a sin-
gle case in which it has been held that one who has deposited a deed
of land with a third person with directions to deliver it to the granted \^jJJii-
ojLiiiS^^PP^'^^S of. a given event, but who has made no valid execu- fisjsfi, /\JL^
tory contract to convey the land, may not- revoke the directions to tlie i « i
depositary and recall the deeci at any time before the conditions of 7\A^^yJ-^^
the deposit have been complied wuh ; provided those conditions are (Xa^ Aaj^
s^ch that the title does not pass at once to tlxe grantee upon delivery , iV-f- '
oTlhedeed to the depositary... t/rv^**AA-«|V
Tlie case of Welch v. Sackett, 12 Wis. 243 ; Brandeis v. Neustadtl, CfiJttJu^ M^
13 Wis. 142, and Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592, M
as well as that of Thomas v. Sowards, 25 Wis. 631, contain much ^*'V^'wv4 f^
doctrine in perfect accord .with the views here expressed. The latter >g^jCt/Civtir ^
of these cases, as w^as observed in the first opinion filed herein, is-j-, V>,j
-k
360 DERIVATIVE TITLES (Part 2
direct authority that in this case the plaintiff must show a vaHd ex-
ecutory agreement for the sale and purchase of the land, or fail in
the action. And here it should be observed that the language of the
opinion in Thomas v. Sowards which was commented on at some
length in the former opinion in this case, was manifestly employed
with reference, to the facts in that case, without any intention to lay
down a general rule of law applicable to other cases. In that view,
the language seems unexceptionable. So far as those comments are
concerned, I am still inclined to the opinion that the views there ad-
vanced a-re correct. The proposition that the executory_contract may
be j)royed b^Jhe deed (if it is stated therein) is, however, jiilLjQpen
in this court for argument and decision in a proper case^
Our conclusion is, that this case was correctly decided in the first
instance. The judgment of the circuit court must therefore be r^-
versed, and the cause remanded witli the direction to that court^to
dismis_s_the complaint.^* (^>u<i^.>^ ^t^ L<y^ (Ve6^...v-<^ ^\
^5 J 3 4 The conciirrincr opinion of rHh, C. J., is omitted. * -^
^ Fitcli V. Bunch, ?,0 Caj. 208 Q866) : Clark v. Caujphell, 23 Utah, 569, 65 Pac.
496, 54 L. R. A. 5(58, 90 Am. St. Rep. 710 (1901) ; Davis v. Brigham, 56 Or.
41, 107 Pac. 961, Ann. Cas. 1912B, 1340 (1910), ace. See, too, Anderson v. Mes-
senger, 158 Fed. 250, 85 C. C. A. 468 (1907) ; Brown v. Allbright, 110 Arli. 394,
101 S. W. 1030, Ann. Cas. 1915D, 692 (1913),
"Th£. yies^ , referredjto_jlhat exnre.ssed in Camnhell v. Thomas! has no con-
siderations of policy or convenience in its favor, and its liecessary result is coii-
sidera5Ty~fo^dgrn\Ct trom the practical utility nf ihP fiocrrine ot Conditional
(Mi^^^ One onjection to such a view would seem to lie in the fact that the
docmne of conditional delivery is not peculiar to conveyances of land, but is
recognized also incoTruectiou^yifli- contracts under seal and also bills and "notes,
it' there can be no conditional delivery of a conveyance in the absence 'o5 a
contract of sale, that is, a contract to execute a conveyance, it would seem a
reasonable inference that there can be no conditional delivery of a contract
under seal or a promissory note unless there is a contract to execute such an
instrument. There is _oo mere reason for requiring an auxiliary contract jn
thannt^ pnsp |]^an in tbr Y. t it h[\< never been su'^gestiKi, so rar as
t^Fwi-iter knows, that tlr e a eL>;iilii:Miial deliveiT of a conlracFunner
se;Vl 01- n iimnissMry note only when there is a legally valid contract "to execute
the ro!itr;Kt or iiufe. Another consideration adver.se to the view referred to
lies in the fact that, while the doctrine of deliveiT in escrow was recognized
at least as early as the first half of the fifteenth century (see Y. B. 13 Hen,
IV. 8; Y. B. 8 Hen, VI, 26; Y. B. 10 Hen. VI. 25\ a purely executory con-
tract, not under seal, was not then enforceable either in the common law
courts, or, it appears, in chancery. That being the case, the requirements of
an extraneous contract in order to make the delivery in escrow effective would,
in the fifteenth or sixteenth centuries, have necessitated a contract under seal,
and it seems hardly probable that such a delivery of an obligation or convey-
ance under seal was always accompanied by another obligation under seal call-
ing for its execution. The subject of deliveiy in.escrQW.Js. tmated with ^on-
gjfiprnhlP fullness in nt Innst *^^'^ "T ^"" ^'rii^i- book.sjCFerkins, Conveyancing,
§§" TyS-Il44 ; Sheppard's Touchstone, 58, 59), anil tiierg is not the slightest sug-
o-Pfitirrr] \r\ pit.hpr as to thCJaefiessJit^ .of-sudi an auxiliary contvart. It is, to say
tlie least, somewhat extraordinary that an integral element in a doctrine daTmg
from the commencement of the rifteenth century should have ixmiuiai'il to Jje
discovered by a California court in .th(; latter half of the nineleenth^^' U. T.
Tiffany, "Conditional Delivery of Deeds," 14 Col, Law Rev. 389, 399-400.
Ch. 2) EXECUTION OF DEEDS 361
HULL V. SANGAMON RIVER DRAINAGE DIST.
(Supreme Court of Illinois, 1906. 219 111. 454, 76 N. E. 701.)
Cartwright, C. J.^° This is an a^gealfrgn^jjil^j^gr^of the county
cour.t of McLean" county qngnizing^ the Sanga,mon River drainage dis-
trict, m said_county, and cmifirmino; an assessment of benefits against
appellant'.s lands hy tlie commissioners of said^district. The proceed-
ing was commenced by fiHng a petition for the organization of the dis-
trict under what is commonly known as the "Levee Act." 2 Starr &
C. Ann. St. 1896, p. 1500, c. 42, par. 29. Commissjoners wereappoint-
ed by the court, and they examined the lands proposed to be drained,
and over and upon which the work was proposed to be constructed, and
madea reports as required by section 9 of the act (paragraph Z7), rec-
ommending the organization of the district. .Appellant filed objections
to Jthe report, and his objections were overruled. "
It is first contended that the court erred in overruling the objections
and in not dismissing the petition, for the reason that it was riot signed
by a majority of the adult owners of the land within the district an d
vmo represented one-third in area of the lands to be reclaimed or ben-
efited. The petition was signed in the summer of 1903, and the hearing
was in the fall of that year, and Mark Banks, one of the signers, was
counted by the court as _the owner of 160 acres of land. He had previ-
ouslysigned and acknowledged a deed of the land to Harrison Frink
and Sheridan J. Frink, and hnr^^lpjgsjl^ed the. deed in the First National
Hanl^ ofElbomington, to be delivered on payment of the purchase price
on or before February 15, 1904. and in case of such payment he was to
deliver possession on or before March 1, 1904. The deed placed in
escrow conveyed nothing until the conditions for its delivery were per-
formed on FLliniary 15, 1904, when it was delivered to the grantees.
Leiter v. Pike, 127 111. 287, 20 N. E. 23. " The title did not pass out of
Mark Banks until the deed took eflFect and the grantees became the
owner of the land, and he was properly counted as an o\vner. * * *
The judgment is reversed, and the caus^ remanded. Reversed and
remandedJ^"
85 A portion of the opinion is omitted.
se^uppose the gi'nntee in an escrow deed, after performance of the condi-
'^tlons, in order to save the propertj' from tax sale^, I^ays the taxes which were
assessed against the'property after the deposit or the deed wifli fBe third par-
ty but before the performance of the condition. Has he anv remedy against
the grantor? Mohr v. Joslin, 162 Iowa, 3-1, 142 N. W. 981 (1913).
As_to the, deposit of a deed in escrowworkinga^'chajige in. interest In the
prgpert^ insured?' and so avoidlns an insurance policy on the property describ-
ed in the*"deeiarsee Pomerov v. .l':tna Ins. Co., 86 Kan. 214, 120 Pac. 344, 38 L.
R. A. (N. S.) 142, Ann. Cas. 1913C, 170 (1912).
See. also. Furaess v. Williams, 11 111. 230 (1849) ; Hoyt v. McLagan, 87 Iowa,
746, 55 N. W. 18 (1893).
302 . DERIVATIVE TITLES (Part 2
FARLEY V. PALMER.
(Supreme Court of Ohio, 1870. 20 Ohio St. 223.)
By the Court. Farley, the ghmtiff, seeksJto_reyerse Jhejiidsnient
of the court below, decreeing the'specmc execution of his*written gon-
tract^^made with Palmer and wife for the .purchase of her land. At
the time of making the contract a deed was executed by Palmer and
ife and placed in the hands of a third person^ and by the terms ofjhe
ontract this deed was to be delivered to Farley upon his paying jhe
stipulated purchase-money. Upon Farley's refusal to pay the money
and receive the deed at the time-agreed upon, Palmer and wife brqiight
their action for a specific execution. And now it is contended that Far-
ley was not bound by the contract, on the alleged ground that as Mrs.
Palmer, being a married woman, was not bound, there was no mutu-
ality of obligation. We think otherwise. Mrs^ Palmer was_bound.
She had no power to revoke the deed^ The person holding the deed
) was the agent of both parties, and his delivery, according to the terms
of the contract, without her consent, or even after her death, woiild
[ have been good. Indeed, the authorities show, that upon fulfilment of
^the condition by Farley the title would have vested in him, jpsq^ facto,
; without further delivery. The contract was executed on the part of
'TMrs. Palmer — the title had passed from her — subject only to the p.er-
formance of the condition on the part of Farley.
r
Motion overruled.^^
•4^^"^^^^
J^*
HALL V. HARRIS.
(Supreme Court of North Carolina, 1848. 40 N. C. 303.)
Cause removed from the Court of Equity of Montgomery County,
at the Spring Term, 1848.
The facts in this case are fully stated in a case between the same
parties, Hall v. Harris, 38 N. C. 289, and so much of them as is neces-
sary to the understanding of the decision now made is set forth in the
opinion of the Court here delivered.
Pearson, J. When_this case was before this Court at June Term
1844, it was decided, that an execution does not bind equitable interests
and rights of redemption from its teste, as in ordinary cases^ but from
37 What if the grantor flies before the condition if? performed^ See Guild
V. Althouse, 71 Kan. G04, SI Pac. 172 (1905); Nolan v. Otney, 75 Kan. 311, 89
Pac-. ti!>0, 1) L. R. A. (\. S.) 317 (1907).
Whnt if the depositary refuses to deliver the deed to the grantee after tlie
conditions Jiave been performed? See Tonihler v. 'Sumiiter. 97 Ark. 480, ^S-Fs.
W. Oiw (1911); Knopf v. Hansen, 37 Minn. 215. .33 N. W. 7.S1 (1887); Hujrhes
V. Thistlewood. 40 Kan. 232, 16 Pac. 629 (188S), where the retention of the deed
by the depositary was by direction of the jri-antor; Rej;an v. Howe, 121 Mass.
424 (1877), where the grantor had procured the deed from the depositary on
the statement that he intended to hand it to the grantee.
Ch. 2) EXECUTION OF DEEDS 3G3
the time of "execution served;" and it was declared tliat_tlie plaintiff
wouMbe entitled to a decree, provided the deed, under which_he
claimed, took effect before the execution, under which the ^deiendant
Harris claimed, was issued. 38 N. C. 289.
We are satisfied, that the view then taken of the case was correct.
The rights of the parties depend upon that single question.
The execution issued_.on_the 7th o^f_ March, 1840. The plaintiff al-
leges that the deed took effect on the 2d of March, 1840. The facts
are, that on the 2d of March the plaintiff and the defendant Morgan,
made an agreement, by which the plaintiff' was to give ]\Iorgan $725^
for the land, to be paid, a part in cash, and the balance in notes and
S£.ecific articles^ as soon as the plaintitt was able^ which he expected
would be in a few days^ and Morgan was to make a deed to the plain-
tiff, and hand it to Col. Hardy Morgan,^ to be by him handed to the
plaintiff, when he paid the price. Accordingly on that day the plaintiff Vw»-*-*-<-< '
paid to Morgan a wagon and some leather, which was taken atjthe /j^^^,^;;^-,^
price of $57.50 and Morgan signed and sealed the deed, and handed jt^ t-n'^ ^x.
to Col. Morgan to be handed to the plaintiff', when he paid the balance ^f " y
of the pri_ce. The deed was witnessed by Col. Morgan and one San-
ders, and is dated on the 2d of March. Afterwards^n the tenth of ,
March, the plaintiff paid to Morgan the balance of the $725, witliTlie ***^''*^ /
excejnion of $152, for which Morgan accepted his note, and the deed ^A^ i^. .
was then handed to the plaintiff by Col. Morgan.
I'he question upon these facts is, whether the deed takes effect from /
the 2d or from the 10th of March_?^ We are of opinion, that it takes *
effect from the 2d, at which time, according to the agreement, it was
signed, sealed, and delivered to Col. Morgan, to be delivered to the
plaintiff, when he should pay the price. Ihe effect of the agreement
was to give the plaintiff' the equitable estate in the land, and to give
Morgan a right to the price. The purpose, for whiclTthe^deed^was nu^^y^O-^n.
deljv^ered.4o_S_illinJ-P^son, instead 0^^6111^ delivered directly tojl)Q.Ar jT Q'
plaintiff, wasmerely tosccure the paynTcnt of tjie j^rice. When that *^ d"-*^
was paid, tiVeplalntiff had a right to the deed. The purpose, for which X*"*^'''^
it was put into the hands of a third person, being accomplished, the
plaintiff then held it in the same manner, as he would have held it, if
it had been delivered to him in the first instance. This was the inten-
tion, and we can see no good reason why the parties should not be al-
lowed to effect their end in this way.
It is true, the plainiiff_wasjTot absolutel¥...bQiind to pay the balarice
of the price. Perhaps, he had it in his power to avail himself of the
statute of frauds, and it would seem from the testimony, that, at one
time, he contemplated doing so, on account of some doubt as to the
title; bjjHj£Xomplied_w]thjlie condition and paid the pric^ His rights
cannot be affected by the fact] that he might lla^'c avojded_it. If the
vendor had died, after the delivery to the third person, and before the
payment, the vendee upon making the payment, would have been enti-
tled to the deed ; and it must have taken effect from the first delivery ;
364 DERIVATIVE TITLES (Part 2
otherwise, it could not take effect at all. The intention was, that it
should be the deed of the vendor from the time it was delivered to the
third person^ j)rovided the condition was complied with. If this in-
tention is bona fide and not a contrivance to interfere with the right of
creditors, of which there is no allegation in this case, it must be allowed
to take effect.
A distinction is taken in the old books, between a case, when a pa-
Iper, being signed and sealed, is handed to a third person, with these
words ; "take this paper and hand it to A. B. as my deed, upon condi-
tion" &c., and a case where these words are used, take "this deed and
hand ii to A. B. upon condition," &c. In the latter case it takes effect
presently ; while in the former, it is held, in most cases, not to take ef-
fect, until the second delivery. Touchstone, 58, 59.
The distinction, upon which this "diversity" is made, would seem too
nice for practical purposes, to be a mere play upon words. ^^ Thgja-
'*'fjJi^ tention of the parties, whether one set of words be used or the other.
V''^ 2 is' to make it a deed presently, but to lodge it in the hand of a third
'jTjuA * person, as a security tor the performance of some act. If it was not
to be a deed presently, provided the condition be afterwards performed,
the maker would hold it himself, and the agency of the third person
would be useless. Indeed the idea, that the third person is a-mere
agent to deliver the paper as a deed, if particular words be used, "es-
crow" for instance, even by the old cases, has many exceptions, and
*^ — . the deed is allowed, in such cases, to take effect. ,_As if the maker dies,
yHju"^*^ as in the case above put ; or becomes non c(:)^ii^os mentis ; or, being a
In ^^^JLX^'i^viiQ. sole, majyjjjgs; or if the vendor should create any incumbrance,
^__J.J--<^ as by making a lease ; in all such cases, when the jgaper was handed to
^/i^ ^^^"^ the third person to be delivered as a deed upon condition &c,, it is aj-
ij^c>**'^'*'t_JllQw£d to take effect from the first dehvery, in order to effectuate tlie
-^ V'*'^^ intention of the parties. In^otlier words, when it can make no differ-
^^^ ) ence, the deed takes effect from the second delivery, but if it does make
►^ a difference, then the deed takes effect from the first delivery. This
t^^^^^h jU^^^^'^^^y yields the question. The_]ast,.exceptiQix.,cited abov-C, asulojhe
X'^^/.r elation of the deed, in cases of "escrow" to avoid a lease, iakes^inihe
case tinder consideration; for it is the same, whether the incumbr;^jice,
to be avoided, proceeds from the act of the party, or from the eft'e^ct
of an execution, as the object is to make the deed effectual an^^to
qarr^out.,the intention^ State v. Pool, 27 N. C. 105.
But, in truth, the distinction cannot be acted upon — it is merely ver-
bal, and whether one set of words would be used, or the other, would
be the result of mere accident. The law does not depend upon the ac-
cidental use of mere words "trusted to the slippery memory of wit-
nesses." It depends upon the act, that a paper, signed and sealed, is
put out of the possession of the maker. It must be confessed, (and
with reverence I say it,) that many of the dicta to be found in the old
38 state BanK V. Evans, 15 N. J. Law, 155, 28 Am. Dec. 400 (1S35) ace.
Ch. 2) EXECUTION OF DEEDS 365
books, in reference to deeds, are too "subtle and cunning" for practical
use, and have either been passed over in silence, or wholly explained
away.
We are satisfied from principle and from a consideration of the
authorities, that when a paper is si^ied._and_iealedjajQd handed to a
third person to be handed to another upon a condition, which is after-
wards complied with, the paper becomes a deed by the act of parting
with the possession, and takes effect presentlv; without reference..io
the precise words used, unless it clean^^ppears to. be the intention.
that it should not then become a deed^^and this intention would be de-
feated by treating it as a deed from that time, as, if, no fraud being
suggested, tjie paper is handed to the tliird person, before the parties
have .concluded the bargain and fixed upon the terms ; which cannot
well be supposed ever to be the case ; for ip ordinary transactions, the
preparation of deeds of conveyance, which is attended with trouble
anjjexpensg^ usually come§. after the_agreeiiieiit t.Q_s_ell.
There must be a decree for the plaintiff, witli costs against the de-
fendant Harris. '^'~
Per Curiam. Decree accordingly.
39
f-^{f^-^-^
MAY V. EMERSON.
(Supreme Court of Oregon, 1908. 52 Or. 262, 96 Pac. 454, 1065, 16 Ann.
Cas. 1129.)
This is an actipa qf. ejecimenf, commenced on October 23, 1907, to
recover the possession of lots 35 and 36, in block 11, Stewart's second
addition to Baker City. The answer admits that defendant is in pos-
session, and alleges that he is the owner of the lots in fee simple ; an3
as a second defense alleges possession under a contract of purchase,
as disclosed in the stipulation of facts, which includes the following:
That on February 24, 1906. defendant purchasedjhe lots from Dugan
and wife, the price to be paid in monthly installments, continuing oy^r
a period of more than a year ; that a deed was executed by Dugan ^d
wife, and deposited in escrow with AI. S. Hughes, to whom payrnents
39 Whitfield v. Harris, 48 Jliss. 710 (1873) ; Dettmer v. Behrens, 106 Iowa,
585, 76 N. W. 853, 68 Am. St. Rep. 326 (1898), ace.
In Vorheis v. Kitcli, 8 Phila. (Fa.) 554 (1871), the wafe of the grantor who
had become such between the depositing of the deed in escTow and the per-
foi-mance of the condition was held not entitled to dower.
In Lewis v. Prather, 21 S. W. 538, 14 Ky. Law Rep. 749 (1893), it was held
that a deed made by the grantor after the deposit of the escrow deed but be-
fore the performance of the condition to a purchaser who knew of the escrow
deed was ineffective as against the first grantee upon the performance of the
condition. Leiter v. Pike, 127 111. 287, 20 N. E. 23 (1889), ace. See Cannon v.
Handley, 72 Cal. 122, 13 Pac. 315 (1887) ; Conneau v. Geis, 73 Cal. 176. 14 Pac.
580, 2 Am. St. Rep. 785 (1887) ; McDonald v. Huff, 77 CaI^_2t9;T!5Pac. 499
(1888). ~ ^'^
366 DERIVATIVE TITLES (Part 2
were to be made, and was to be delivered by Hughes when the pay-
ments were completedj that defendant was to have possession from the
date of the purchase; that on April 12, 1906, after the purchase and
-yj. before the delivery of the escrow deed, plaintill^Jn an action of debt
''"^'^^J^ against Dugan and wife, attached the said lots, which action resulted
A^ ^""^ I in judgment against them on April 25, 1906j that an execution sale of
JjlI*^^\ said lots was had on June 12, 1906, and confirmation thereof was haa
^jff^u^Gn June 22, 1906, and a sheriff's deed issued to the plaintiff on June
27, 1907; that plaintiff, at the time of the attachment, had knovyledge
of the contract of sale and escrow deed, and on July 15, 1906, notified
the defendant of said judgment and execution sale, and demanded that
payment of the purchase price be made tn birn ; that defendant paid all
the installments of the said purchase price to Hughes, according to the
agreement, and received the deed from him on or about September 14,
1907. From these facts the trial court found that plaintiff acquired
tlie title to the property free from any equity of the defendant, and
rendered judgment accordingly, and the defendant appeals.
Eakin, J. (after stating the facts as above). 1. The ffrsFlnatter for
> consideration is the effect of plaintiff's judgment lien and execution sale
) upon I defendant's prior possession, under his purchase and escrow
deed from Dugan and wife^defendant contending that when the con-
ditions under which the escrow deed was deposited with Hughes were
fulfilled, the deed related back to, or took effect from, the date of
such deposit, and thus cut off the lien of plaintiff's judgment. The sale
by Dugan to the defendant, and the deposit of the deed with Hughes,
created in the defendant an equitable interest in the property, such
that, upon full payment of the purchase price according to the escrow
agreement, the title would vest at once in the grantee, but pending the
completion of the purchase by the full payment of the price, the legal
title to the property remained in the vendor and was therefore sub-
ject to attachment, or the lien of a judgment against the ven^r to
the extent of his interest therein. _ Such lien, obtained with notice of the
escrow agreement, is subject to the equity of the vendee. The delivery
of the deed to the vendee being essential to pass the title, the escrow
agreement only becomes effectual for that purpose upon the fulfillment
of its conditions. The_general rule is that the title passes to the vendee
from the second delivery;j_ Devlin, Deeds, par. 328 ; Prutsman v.
Baker, 30 Wis. 644, 11 Am. Rep. 592. There are exceptions to this
rule, as stated in 4 Kent's Commentaries, 454. "Generally an escrow
takes eff'ect from the second delivery, and is to be considered as the
deed of the party from that time; but this, general rule does not apply
when justice requires a resort to fiction. _^The relation back to the first
delivery, so as to give the deed effect from that time, is allowed, in
cases of necessity, to avoid injury to the operation of the deed from
events happening between the first and second delivery. * * * But
ifjthefiction be not re^quired for any such purpose, it is not admitted,
and tHe deed operates^ according to the truth of the case, from the
(P^
Ch. 2) EXECUTION OP DEEDS 367
second delivery." Rathmell v. Shirey, 60 Ohio St. 187, 197, 53 N.
E. 1093, 1099; Devlin, Deeds, par. 328. In Prutsman v. Baker, 30
Wis. 644, 11 Am. Rep. 592, it is said: "This relation back to the firjt
delivery is permitted, however, only in cases of necessity, and where
no injustice will be done, to avoid injury to the operation of the
deed from events happening between the first and second delivccy;
as if the grantor, being a feme sole, should marry, or whether a feme
sole or not, should die or be attainted, after the first and before the
second delivery, and so become incapable of making a deed at the time
of second delivery, the deed will be considered as taking effect from
the first delivery, in order to accomplish the intent of the grantor,
which., would otherwise be defeated by the intervening incapacity.
But subject only to this fiction of relation, in cases like those above
supposed and others of the kind, and which is only allowed to pre-
vail in furtherance of justice, and where no injury will arise to the
rights of third parties, the instniment has no effect as a jdeed,._and_no
title passes until the second delivery ; and it has accordingly been held
that, if in the meantime the c>taie shrnild be levied upon by a creditor
of the grantor, he would hold by virtue of such levy, in preference to
the grantee in ihc dcedj_" Washburn, Real Prop. § 2181 ; Rathmell v.
Shirey, 60 Ohio St. 187, 53 N. E. 1098; Jackson v. Rowland, 6 Wend.
J) 667, 22 Am. Dec. 557.
2.>The second delivery cannot take effect by relation when the
Fantor is able to make, and the grantee able to receive, such second
delivery absolutelyl Jackson v. Rowland, 6 Wend. (N. Y.) 667, 22
Am. Dec. 557. It is held in Whitfield v. Harris, 48 Miss. 710, that this
fiction of relation will apply to ward off the intervening liens of cred-
itors; and Chinn v. Butts, 3 Dana (Ky.) 547, holds to the same effect.
But the weight of authority is the other way. 11 Am. & Eng. Enc. ^.^
Law (2d Ed.) 348, says: "But it seems to be the prevailing rule that. \ /\) C
in the interval of time between the first and second delivery, title re- / \Y^'^'^'^^
mams in the grantor, subject to the claims of his creditors, and that ' , (^
this doctrine of relation cannot be applied for the purpose of de- VCr^*^
feating such intervening^ claims." This text is supported by the au- J
thorities above cited, and also by Wolcott v. Johns, 7 Colo. App. 360,
44 Pac. 675; Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep.
291T >ioyt v. McLagan, 87 Iowa, 746, 55 N. W. 18.
, 3y/4t^is beyond controversy that the title remains in the vendormptil
S:he actual delivery of the deed. The vendor still has not only the
legal title, but also an interest in the property as security for the pay-
ment of the purchase price ; and this interest should be and is avail-
able to a creditor through the lien of his judgment, which lays hold
of such legal title, and thereafter payments made to the vendor by the
vendee are at his peril: Tomlinson v. Blackburn, 37 N. C. 509. ^
the p.urchase price is fully paid, although the deed is not actually de-
Ii\ered, the vendor having but the nak^^ leyal title, the judgment cred-
itor can acquire no more: Stannis v. Nicholson, 2 Or. 332; Riddle v.
368
DERIVATIVE TITLES
(Part 2
Miller, 19 Or. 468, 23 Pac. 807; Riddle's Appeal (Pa.) 7 Atl. 232; Uhl
V. May, 5 Neb. 157; Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109.
Reversed.*"
^
/ ., • (fJ '■ SCOTT. V. STONE. . '
(Supreme Court of Kansas, 1906. 72 Kan. 545, 84 Pac. 117.)
Graves, J. This was an action to recover damages for a breach
of the covenants of a warranty deed. TTTe transaction was evidenced
by a contract of sale^^ dated April 8, 1902, which specified the subse-
quent steps to be taken by each party in completing the conveyance.
The defendants in error were grantors, and the plaintiff in error^^
grantee.
The contract of sale, together with $1000 cash paid by the grantee
upon the purchase-price of the land, was placed in escrow with an
El Dorado bank to await the performance of the subsequent require-
ments of each party. It was stipulated that the grantors should fur-
nish an abstract of title and execute a warranty deed to the land, and
place them in the bank with the contract, there to remain until August
1, 1902, when the grantee should pay the remainder of the purchase-
money and receive the deed and aljstract of title. These conditioiis
were performed by each party, and the deed and abstract of title were
duly delivered to the grantee as stipulated.
At the date of the contract of sale the land was in the possession
of tenants. The cultivated portion was occupied by one Arnall, and
the pasture-lands by one Pirtle. Arnall paid his rent to the grantee,
and Pirtle paid to the grantoci. The grantee began this action^to re-
cover damages as a substitute for the Pirtle rent.
The case was tried to a jury. The controversy on the trial was
whether, if a recovery could be had at all, it should be for rent ac-
cruing_from the date of the contract of sale, or from the date when
the grantee actually received the deed, to November 1, 1902, when
the Pirtle lease expired,. The case was presented to the jury upon both
theories, and the amount returned in the verdict indicated that it was
intended to cover the longer period. The court, on a motion for a
new trial, decided that the finding sli^ould have been for the shorter
period, and thereupon offered to deny the motion if the plaintiff would
accept an amount stated, being the value of the rent after August
1, 1902; if not, the court indicated that it would grant a new trial.
The plaintiff declined the offer and the motion was allowed. * * *
We might let the case rest here, but, as a new trial is necessary
and the legal questions involved are controlling, we deem it best to
decide them now, and thereby save the parties the delay and ex-
pense of further litigation in this court. The trial court erred.jn hold-
40 See Lord's Oregon Laws, § 301.
Ch, 2) EXECUTION OF DEEDS 369
ing that the grantee could recover rent only from the date he actuajl^
received the deed — August 2, 1902. Where land is sold by a trans-
action involving a contract_of saje containing stipulations for the sub-
sequent performance of specified acts by each of the parties, pendi_ng
vifhich performance the contract is placed in escrow, and afterward
in compliance with such escrow the grantor executes and delivers his
deed, to be also held in escrow with the contract and delivered to the
grantee when payment has been made by him as stipulated, ^nd all the ^
provisions of the escrow are performed and the deed delivered to the j).A,<,A,«^»wf
grantee accordingly, such delivery completes the conveyance, and t he r ^ g -^ .
deed relates back to the date of the contract of sale and is not limited ^OlZ^t^a^
to the date when actual delivery is made to the grantee.
This doctrine of relation is of ancient origin, and has always been
applied, both at law and in equity, to meet the requirements of justice,
to protect purchasers, and to effectuate the intent of the parties to
contracts. 18 Vin. Abr. 286-293; 2 Greenl. Cruise on Real Prop.
441 • 24 A. & E. Encycl. of L. 275 ; Welch v. Button et al., 79 111.
465 ; Young v. Guy, 87 N. Y. 457; Sutherland v. Goodnow et al., 108
111. 528, 48 Am. Rep. 560; NelHs v. Lathrop, 22 Wend. (N. Y.) 121,'
34 Am. Dec. 285 ; Thompson v. Spencer, 50 Cal. 532 ; Cummings v.
Newell, 86 Minn. 130, 90 N. W. 311 ; Davis v. Clark, 58 Kan. 100, 48
Pac. 563.
It has been held that whether by this rule of relation the operation
of the deed will be carried back to the date of the contract of sale, to
the execution of the deed, or only to its actual delivery to the grantee,
wjU depend upon the inteiit.ollhe .parties as shown by the transaction.
1 Devlin, Deeds "(2d' Kd.) § 262. But whatever test may be applied to
this case, the result will be the same. It is necessary to protect J:he
grantee in, the enjoyment of the property which he has bought^-iuid
paid for, and it is necessary to carry out the manifest intention of_the
parties that this deed should relate back to the date of the contract of
sale..
The grantors purchased the land in controversy less than a week
before the sale in question. The grantee paid interest on Jthe gur- ^Vl^^-a^^-^-***
chase-price from the date of the contract. A vendor, in the absence^ f J) '^^^ ^
express stipulations therefor, cannot receive interest on the purchase- ^
price and the rents a]so. 29'A.^& E. Encycl. of L. 708; Siemers y . Jl^'*-*^"-^ ^^
Hu1^t728 Tex. Civ. App. 44, 65 S. W. 62, 66 S. W. 115. The grantors
knew when they executed the contract of sale, and on May 6, 1902,
when they placed their deed with full covenants of warranty in escrow,
to be delivered August 1, 1902, that tenants were on the land, but no
reservation or suggestion was made that they expected the rent. Jj; /P «a*a>w
must be presumed that they intended to convey by their deed every V/v,*^**^
right which its covenants covered.
Placing a deed in escrow practically withdraws the land from the
market, and renders the grantor powerless to convey or encumber it,
Aig.Peop. — 24
370 DERIVATIVE TITLES (Part 2
so far as the vendee is concerned. After the grantee had paid the pur-
chase-money in full, as agreed, including interest thereon from the
date of the contract of sale, it would be manifestly unjust to deprive
him of the rent conveyed by the covenants of his deed. Wecon-
clude that under the facts and circumstances shown in this case the
plaintiff is entitled to receive rents from the date of the contract_of
sale, April 8, 1902,
The order of the court granting a new trial^is affirmed, with di-
rection that on the further trial the views herein expressed be fol-
lowed. All the Justices concurrmg.**
BAKER V. SNAVELY.
(Supreme Court of Kansas, 1011. 84 Kan. 170, 114 Pac. 370.)
Smith, J. William Weisiger was the record ownjf. of the lots^in
question;^ On the 6th day of November, 1901, one Clarence Ford ob-
tained a tax deed to the lots, and his right thereto was conveyed_^to
John Baker, who subsequently, and on the 5th day of October, 1.905,
brought this action in the district court of Finney county to quiet Jiis
title to the lots against Weisiger and wife and others. Service was
made by publication. On the 21st day of November, 1905, judgment:
was rendered in favor of the plaintiff quieting his title.
On March 3, 1906, Weisiger and wife filed their motion and affidavit
to open the judgment, and also filed an answer to the petition of Baker,
in which they made a general denial of ,the allegationsof. the petition,
and, for a second defense, alleged that tlie tax deed upon which the
plaintiff based his title was null and void. On April 21^ 1906, the nio-
tion to open the judgment was allowed.
September 22, 1906, the Weisigers filed a motion to make S. C.
Thompson a party defendant, which motion was sustained November
30, 1906, and summons served on Thompson on December 2, 1906.
Permission was also given the Weisigers, on November 30, 1906, to
file an amended answer and cross-petition, in which, in addition to the
allegations of the former answer, they alleged that defendant Thomp-
son j)urchased the property in controversy, X)n or about Jh£..31 st dayjif
MaVch, 1906, from Noah B. MatkinSj to whom the plaintiff, John
Baker, on the same day had conveyed the property; that both trans-
fers were made with the full knowledge of -the interest of the ^Vei>i-
gers in the property, and were made for the purpose of defrauding thepi
out of their interest therein, and that such transfers were null and_void
^against them.
41 Cf. Oliver v. Mowat, PA U. C. Q. B. 472 (1874), where the grantor, between
the time the deed was handed to the depositaiy and the performance of the
condition, was allowed to distrain for rent
-J
■^1
Ch. 2) EXECUTION OF DEEDS 371
On August 23, 1907, by leave of court and with the consent of tlie
WeisigerS, Thompson filed an answer in which he admitted that he
claimed an interest in the property, and made a general denial to the
allegations of the cross-petition, alleging, in substance, that he pur-
chased the premises from Noah B. Matkins on the 10th of January,
1906; that Matkins executed a warranty deed conveying the premises
to him ; that at that time he was actually occupying the premises, and
has ever since continued in the possession thereof ; that he purchased
the property in good faith, after taking legal advice that the title to the
premises was in Noah B. Matkins, and after being advised by counsel
that the title to the property had been quieted in the action of John
Baker against Mary H. Suavely et al. ; that he made a payment on the
property, and took it subject to a mortgage for $1650, which he had
since paid off and discharged ; that at the time of the purchase he had
no notice of any claims by defendant William Weisiger, and bought
the property in good faith ; that the tax deed in question was recorded
in the office of the register of deeds, of Finney county on the 7th of
November, 1901, that five years had expired after the recording of the
deed prior to any pleading filed by defendant Weisiger against lliis
defendant; and that tlie action, as to him, was barred by .the five-year
statute oTlimitation.
Trial was had before Charles E. Lobdell, judge pro tern., and the
following findings of fact and conclusions of law were made :
"Findings of Fact.
"(1) That the defendant, Weisiger, is the owner of the fee_or patent
title to the property in controversy, unless such title is extinguishedjjy
the tax deed to Baker or by the judgment heretofore rendered in this
case and subsequent conveyances which are claimed to have been ac-
cepted in good faith and in faith of such judgni^nt.
"(2) That on November 21, 1905, the plaintiff, John Baker, obtained
judgment in this court and in this cause quieting title in him to the
land in controversy against the defendants, Weisigers.
"(3) That on November 28, 1905, John Baker executed a sufficient
deed of general warranty to the property in controversy to Noah B.
Matkins and placed the same in escrow for future delivery with G. L.
Miller.
"(4) That on March 3, 1906, the defendants, William Weisiger and
wife, file^, in., this court their motion, in proper form, to open up the
judgment thereinbefore ronderedjn favor of Baker as recitedjn find-
ing No. 2.
"(^JTliat thereafter, and on April 21, 1906, by the consideration of
this court such decree and judgment was fully set aside and open-
ed u£^
"^ That on March 31, 1906, the deed from Baker to Matkins was,
by Miller, delivered to Matkins.
372
DERIVATIVE TITLES
(Part 2
^
"(7) That on February 19, 1906, Noah B. Matkins, a single man,
executed a sufficient warranty deed to the property in controversy to
the defendant S. C. Thompson, which deed was placed in escrow with
G7 L. Miller, as was the deed from Baker to Alatkms.
"(8) That on tlie same date that the deed from Baker to Matkins
was deHvered by Miller the deed from Matkins to Thompson was by
Miller delivered to Thompson.
^^"That^TEompson took possession of the property in controversy
on January 6, 1906, and has been continuously in possession since that
timg.
' "(10) That the title of Baker at the Jime of_his_ludgment rested
upon the tax deed introduced in evidence.
"XTl) That a part of the consideration for the tax deed on which
Baker's title rested was what was known as 'current university tax/
levied for the year 1896.
"(12) That tlie so-called redemption notice for the lots in contro-
versy, published by the county treasurer of Finney county, contained
in the amount stated as necessary to the redemption of said lots the
sum of thirty-five cents as costs for^advertising-, and included-it. for
each of the tjiree years embraced in the noticejiecessary to redeem, ^nd
that the treasurer's fee of twenty-five cents was also included in the
notice for each
"Conclusions of Law.
"(1) That the tax deed to Baker J§. vnidahip and should be set aside
because of the facts stated in findings 11 and 12.
"(2) That the creation of the escraaLjadth reference _to the deeds
from Baker to Matkins and MatkiTic; tn Thnmp'^nn wa^; nnt in ^,w
delivery of the deeds.
"(3) That the delivery of such deeds, which actually took place on
March 31, 1906, caiijaotbemad^Jo. relate _back_s^ to relieve Thonip-
son and^Iatkina^Qi the.effe£EjQiJh5.nQti££jiii2pen.up4^ which
motion was filed before the escrow was terminated.
"(4) That at the time of the delivery of their deeds to them Matkins
and Thompson had jconstructive notice, ^yhich was binding upon^tlTjem,
of the motion tlien filed and pending in this cause to open up and va-
cate the judgment, and that neither of them was a purchaser in good
faith and inJaith af such jiidgm^niJ'
The contention of the appellees is that the deed from Baker and
wife to Matkins did not become a conveyance of the property until tlie
actual delivery thereof on the 31st of March, 1906, that the deed from
Matkins to Thompson did not become an actual conveyance until the
same date, and that Thompson had constructive notice of the pendency
of the action before the deed was delivered to him.
Upon the other hand, the ^appdl^it contends that both the_ deed
from Baker to Matkins and the deed from Matkins to him were_ex-
ecuted long before the motion to reopen Jhe judgment was filed, on
\ri^
Ch. 2) EXECUTION OF DEEDS 373
March 3, 1906.; that the considerations therefore were paid in part
at the time of the execution of the contracts, and the remainder in full
when the deeds were dehvered, on March 31, 1906; that they were in
escrow wi^Miller frprn the time of their execution until their actual
deUveix and that when the actual delivery was made, on March_31j
1906, the delivery dated back to the time of the original contracts and
partial payments. These adverse contentions constitute the only sub-
stantial question_in the case.
Whether a deed executed and placed in escrow relates back to the .
time of the contract and execution thereof, so as to vest the grantee ^Ojug[,^„X-*.<r^
with the full title from that time, or whether it becomes such convey- ^_ 7
ance only upon the full performance of the conditions, seems to de- ^f^"'^ •
pend upon which of Jhe two theories will proniote^ justice under all /v*-o-^ «
the circumstances of the individual case.
"This doctrine of relation (from the time of the second delivery to
the time of the delivery in escrow) is of ancient origin, and has always
been applied, both ^ Jaw a.n,d-m. .equily»Jj3 mj^gt thejieauirenieiit^.^
justice, to protect _£urchasers, and to eitectuateAe intent of th£_paxties
tfTcontracts.'^ "T^cott v." Stone". 72T;;anT 5457 548, 84 Pac. 117, 118, cit-
ing numerous cases.
The syllabus in that case states the rule strongly, without exception,
and holds that, under the circumstances of that case, the delivery dated
back to the time of making the contract. The same doctrine was up-
held in Davis v. Clark, 58 Kan. 100, 48 Pac. 563. In each of those
cases justice clearly reg^U2red_ that the conveyance be held as of the
date of the delivery in escrow and not as of the date_of the second de-
livery.
In a case similar to this. Hill v. Miller, 84 Kan. 196, 198, 113 Pac.
1043, as between the rights of a purchaser from a tax-deed holder and
the holder of the patent title, who had brought an action to set aside a
decree quieting the title, it was said :
"At all events he (the purchaser) was not protected by the statute
unless lie bou_ght and paid for the land prior to January 18, 19QS,_tiie
late when the proceeding wa&.l>£g-un to spt R'iide the dea:££,^i]if;ting
No finding is made by the court in this case in regard to any pay-
ment made' by the appellant prior to the delivery of the deed from the
party holding it in escrow, which was twenty-eight days after the filing
of the motion to set aside the judgment. Nor does the appellant dis-
close in his evidence how much he paid toward the purchase price, at
or prior to the time of the execution of the deed. The evidence is that
he made a payment. According to the evidence, he purchased seven-
teen lots for $3500, nearly $206 per lot, and assumed the payment of a
mortgage for $1650, which he afterward paid, leaving $1850, upon
which "a payment" was made at the time of purchase, and the remain-
der March 31, 1906. The three lots involved in this action would, at
the price, amount to about $618, leaving over $1200, less such payment
374 DERIVATIVE TITLES (Part 2
as he may have made, and the amount of which he does not disclose,
to protect himself against any failure of title. He was bound to take
notice, at the^tipis Jie actually received his deed and made final pay-
ment, of the proceeding to vacate the judgment quieting the title, and,
as he has failed to show that he was unable to protect himself from any
loss, if the title to the lots should eventually be shown to be in the
appellees, there is no reason for holding that the second delivery of tlie
deed related back to the time it was delivered in escrow.
On the other hand, the invalidity of the tax deed is not contested,
and the appellees' equities in the case are very strong. We think the
court correctly decided the case. We have not considered various
other assignments of error, as it seems to be conceded that ifie case
must turn upon this one question. The judgment is affirmecL*^ J
*2..B^kman made a deed of certain premises lo CorKgnd delivered same to
esteilo as an escrow^ to ljej]en\eretl_9v*^t-tQ ("orl iijiopMip l;itrei-s execiiflDn
of a iiiortgajre on the premises to Beekniiin and the deposit of tlie sniiie^th
^ Westerlo. Corl made a deed of the hiiid.s to Frost. Corl then executed tlie
Z/ mortfia^'e to lieekmaii, and upon delivering same to Westerlo received the deed
to tlie premises, rs'either Heekman nor Frost had any actual notice. Ht'ekmaa
having advertised the i>iemlses for sale under the provisions ofTTie niortgajie,
Frost sued to eujoiu such action. The opiuion of Mr. Chancellor Keut iu part
;j^ Is as follows:
"This case has led to the discnission of several important questions. (1) The
first in order is, whether the deed from Heekman to Coil was duly delivered,
and at what time, so as to pass the estate. The deed must he taken to have
been duly delivered from the time it was handed to Corl hy Westerlo, with
_ whom it had been deposited as an escrow. * * ♦ Every deed takes effect
4jU* /^« from the delivery] and the reasonable infereneg from the fi^fiisMctioii. is to tuu-
slcier the deed as operarnig onl.T-fl'Ohi the liTue of the |)eiforiiiaine uf the cou-
{ gition. and the actual delivery to tne grantee^ This is the Veneral rule, as stat-
£^^^ «<<,~c</ ed by rerkins (sect. l.'iS,) and u is only to be controverted when justice reipiires
.^ a resort to fiction. In Kutler and Haker's case, W Co. 85, b, :i(i, a (151U), it was
'^ /\ - resolved, and the law had. indeed, been so understood loim before. (Hro. tit.
Non est Factum, pi. 5,) that a dcn-d delivered as an escrow, aiid afterwards
./^ to the grantee, shall relate back to tlie tirsi drli\<'i-y, \\\w\\ that iclalinn is iiec-
.,.v-, I ' •" ^sary lU glvy ertect ro the deed, as if the gt-antor, liein.i; a feme sole,„.aiii)ulJ
y nyarry, or ii tlie i;raiitoi-, whether a feme sole or not, sliouUl die betweeij^the
f ( n--e '' first and second delivery; but that, in other eases, as wliere it would avoid a
lease, it SllilU not have ITiat relation, but shall onerate according to the truth
of the case from the second deliver^v. The fiction of carrying the deed back
by reianon is resorted to from necessity, to prevent injury, and to uphold the
deed ; or, as it is exi)ressed in the case from Coke, 'in such case for necessity,
- • / and ut res raagis valeat quam pereat, to this intent, by fiction of law, it shall
J^piA. ^^ ^ f^t'ed ab initio, and yet in truth it was not his deed until the second de-
"^ ^ livery.' In that case it was likewise resolved that, as to collateral acts, there
;': should be no such relation at all. Iji the present case, there is no necessity
was recorded in July, 1805. If the question was between Corl and the per-
sons to whom he sold, the deecfought to relate pacK, so as to give effect to bis
intermediary grants, and prevent him from defeatin^g thein. 'j'his is the amo u n t
of 'the doctrine in Jacksoii v. Bull.'l Johns. Cas. {.V. Y.) 81 (1790). Hut here is
a struggle between innocent persons, to avoid a loss, and we ought not to resort
to Hction to heln one against tlie other. Tlie transaction must be left to Test
upon Its simple and naked truth." Frost v. Beekiuah, I Jobxis. Ch. (KTY.) 288
(fST?j:
See Ames, Cases on Trusts (2d Ed.) 287-289.
Ch. 2) j EXECUTION OF DEEDS 375
-i-^ THOMPSON V. LEACII.
(Courts of Common rieas, King's Bench, House of Lords, 1C91. 2 Vent. 198.)
In an ejectment by Thomas Thompson against Sir Simon Leach and
divers other defendants, upon the demise of Charles Leach, of the
manor of Bulkworthy, and divers messuages, lands and tenements.
Upon not guilty pleaded, a special verdict was found to this effect,
That Nicholas Leach was seised in fee of the said manors, lands and
tenements in' the declaration; and by his last will in writing, bearing
date the 9th day of December, in the 19th year of the reign of the late
King Charles the Second, devised the premises to his brother Simon
Leach for life, remainder to the first son of the body of the said Simon,
andjthe heirs males of the body of such first son, and in like manner
to the second, third son. Sec. and for want of issue of the said Simon
Leach, the remainder_to Sir Simon Leach and the heirs males of his
body; and for default of such issue, to the right heirs of Nicholas the
testator for ever; and that the said Nicholas died seised of the prem-
ises, and after his decease the said Simon Leach entred and became
seised for life, with remainders over, as aforesaid;^ and being so seised
made a deed, bearing date the 23d of August, in the 25th year of the
rei^n of the said King Charles, sealed and delivered to the use of the
said Sir Simon Leach (but he was not present) which deed the verdict
sets forth in haec verba ; and by it he granted and surrendered to the
said Sir Simon Leach, his heirs and assigns, the said manor and prem-
ises, the reversion, and reversions, remainder and remainders of the
same ; to have and to hold the same to the said Sir Simon Leach and
his heirs, to the use of him and his heirs: and they find that the said
Charles Leach, lessorof the plaintiff, the first son of the said Sir
S imonXeacTTwas born the first of November, in the 25th~year of th^
reign of tbp c;atd King Charles, and not before ; and that Simon Leach,
from the time of his sealing the deed to the 25th of May, in the 30th
year of the said King Charles, continued possessed of the premises.
and that then, and not before. Sir Simon Leach accepted and agreed
tp the said surrender, and entred into the premises; and that after-
wards the said Simon Leach, brother of the said Nicholas the testator,
died, and the said Charles Leach his son, after his decease entred iaiQ
the premises, ancTBemised them to the plaintiff, who by virtue thereof
entred and became possessed, and so continued till the said Sir Sjmon
Leach and the^other defendants, by his command, elected him. But
whether upon the whole matter, the said Simon Leach did surrender
the said manor and premises to the said Sir Simon Leach, before the
said Charles Leach was born ; and if he did not surrender before the
birth of the said Charles Leach, then they find the defendants guilty;
and if he did surrender them before the birth, then they find for the
defendants.
376 DERIVATIVE TITLES (Part 2
And PoLLExFEN, Chief Justice, PowELL and RokEby, were of
opinion that here was no surrender till such time as Sir SimonJ_,each
had notice of the deed of surrender^ and agreed to it, and so the re-
mainder was vested in Charles the son ; and it was not defeated bjjhe
agreement of Sir Simon, after his birth, to the surrender.
But V'extris differed, and his argument was as followeth:
- Upon this record the case is no more than thus; Simon Leach, ten-
ant for life, remainder to his first son, remainder in tail to Sir Simon
Leach. Simon Leach before the birth of that son, by deed, sealed_and
delivered to the use of _Sir Simon, (^butv^ti his absence and without hi^
noting) surrenders his estate to Sir Simon, and continues the posses-
sion until after the birth of his son; and then Sir Smion Leach agrees
to the surrender, whether this surrender shall be taken as a good and
effectual surrender before tlie son born?
There are two points which have been spoken to in this case at the
Bar.
Firstj whether by the sealing of the deed of surrender the estaje
immediately passed to Sir Simon Leach? for then the contingent re-
mainder could not vest in the after-born son, there being no estate left
in Simon Leach his father to support it?
Secondly, whether after the assent of Sir Simon Leach, tho' it were
given af tor the birth of the son, doth not so relate as to make it a sur-
ren_d£r jrom_the sealing of the deed, an^ thereby defeat the remainder
which before such assent was vested^ in the son_?
I think these points include all that is material in the case, and I
shall speak to the second point, because I would rid it out of the case.
For as to that point I conceive, that if it be admitted, that the estate for
life continued in Simon_Leach till 'tFe^ssent"or Sir Simon, thatjhe
remainder being vested in Charles the seconcTscE^elore such assent,
there can be no relation that shall devest it.
I do not go upon the general rule, that relations shall not do wrong
to strangers. 'Tis true, relations are fictions in law, which are always
accompanied with equity.
But 'tis as true, that there _is_sometimesJoss and damage to third
persons consequent upon thernj jDUt then 'tis what tlie law ca.]Is__^m-
num absque"mjuriaj_ which is a known and stated difference in the law,
as my. brother Pemberton urged it. But I think there needs nothing
of that to be considered in this point
But the reason which I go upon is, that the relation here, letit j>e
never so strong, cannot hurt or disturb the rejnainder m Charles Lea.ch
in this case; for that the remainder is in him by a jtiLLe-aatecedent and
paramount to the deed of surrenxier. to which the assent of Sir Simon
Leach re.Iates,, so that it plainly over-reaches the relation.
If an estate in remainder, or otherwise, ariseth to one upon a contin-
gency or a power reserved upon a fine or feoffment to uses, when the
estate is once raised or vested it relates to the fine or feoffment, as if it
were immediately limited thereupon, 1 Co., 133, 156. So this remain-
Ch. 2) EXECUTION OF DEEDS 377
tier when vested in Charles, he is in immediately by the will, and out
of danger of his remainder being devested byjmy act done since, as
the surrender is.
I will put one case, I think full to this matter, and so dismiss this
point.
It cannot be denied, but that there is as strong a relation upon a dis-
agreement to an estate, as upon an agreement, where the estate was
conveyed without the notice of him that afterwards agrees or dis-
agrees; if the husband discontinues the wife's estate, and then the
discontinuee conveyes the estate back to the wife in the absence of the
husband, who (as soon as he knows of it) disagrees to the estate, this
shall not take away the remitter which the law wrought upon the first
taking the estate from the discontinuee. And so is Litt. cap. Remitter.
Co. 1 Inst. 356 b. The true reason is, because she is in of a title par-
amount to the conveyance to which the disagreement relates, tho' that
indeed was the foundation of the remitter, which by the disagreement
might seem to be avoided. This therefore I take to be a stronger case
than that at the Bar : | so that if there weTe"no surfehder before the
birth of Charles the son, there can be none after by any construction
ofla\v: for that wnnlH he in ^voidance of an estate settled by a title
antecedent to such .surrender^ whereas relations are to avoid mesne
acts ; and I believe there can be no case put upon relations that go any
further, and it would be against all reason if it should be otherwise.
But as to the first point. I am of opinion, that upon the making of
the deed__of surrender, the freehold and estate of Simon Leach did
immediately vest in Sir Simon^^ before he had notice, or gave any ex-
press consent to it ; and so it was a surrender before Charles was born,
and then the contingent remainder could never vest in him, there being
no particular estate to support it.
A surrender is a particular sort of conveyance that works by the
common law. And it has been agreed, and I think I can make it plain-
ly appear, that conveyances at the common law do immediately (upon
the execution of them on' the s^rantor's part) devest the estate outpf
him^_^n(l put it in the party to whom such conveyance is made^^ though .
in his absence, or without his notice, till some disagreement to such
estate appears. I speak of conveyances at the common law ; for I shall
say nothing of conveyances that work upon the Statute of Uses, or of
conveyances by custom, as surrenders of copyholds, or the like, as
being guided by the particular penning of statutes, and by custom and
usage, and matters altogether foreign to the case in question.
In conveyances that are by the common law, sometimgg a deed is
sufficient (and in surrenders sometimes words without a deed) without
further circumstance or ceremony; and sometimes a further act is
requisi^ to give them effect, as livery of seisin, attornment, and some-
times entry of the part^as in case of exchanges ; and as well in those
conveyances that require a deed only, as those which require some fur-
ther act to perfect them, so soon as they are executed on the grantor's
378 DERIVATIVE TITLES (Part 2
part, they immediately pass the estate. In case of a deed of feoffi-nent
to divers persons, and livery made to one feoffee in the absence of the
rest, the estat^e vests in them all till dissent,' 2 Leon. 23, Mutton's Case.
An"d so 223,~an estate made to a feme covert by livery, vests injier
beforeaiw agreement of'the husbancl,Tro. 1 inst. 356a. So of a grant
of a reversion after attornment of the lessee, passeth the freehold by
the deed, Co. 1 Inst. 49a; Litt. sect. 66. In case of a lease, the leasee
hath right immediately to have the tenements by force of the lease.
So in the case of limitation of remainders and of devises, (which tho' a
conveyance introduced bv the statute, yet operates accordrng to the
common law) the freehold passeth to the devisee before notice or as-
sent^ I do not cite authorities, which are plentiful enough in these
matters, because they that have argued for the plaintiff have in a man-
ner agreed, that in conveyances at the common law, generally the estate
passeth to the partv. till he devests it bv some disagreement.
But 'tis objected, that in case of surrenders, an express assent of the
surrendree is a circumstance requisite ; as attornment to a grant of a
reversion, livery to a feoffment, or execution by entry, in case of an
exchange.
To which I answer, that an assent i? not only a circumstance, but
'tis essential to all conveyances; for they are contracts, actus contra
actum, which necessarily suppose the assent of all parties : but this is
not at all to be compared with such collateral acts or circumstances,
that by the positive law are made the effectual parts of a conveyance;
as attornment, livery, or the like ; for the as'^ent nf the pnrty thaj_takes.
is impliedjn all conveyances, and this is by intendment of law, which is
as stron^as the expression of the party, till the contrary appears;
stabit p'sumptio donee probetur in contranum.
But to make this thing clear, my Lord Coke in his first Institutes,
fol. 50, where he gives instances of conveyances that work without
livery, or further circumstance or ceremony, puts the cases of lease
and release, confirmation, devise and surrenders, amongst the rest;
whereas if an express assent of the surrendree were a circumstance to
make it effectual sure he would have mentioned it. and not marshall'd
it with such conveyances, as I have shewn before need no such assent,
nor anv thing further than a deed.
The case of exchanges has been put as an instance of a conveyance
at law, that doth not work immediately ; but that can't be compared to
the case in question, but stands upon its particular reasons ; for there
must be a mutual express consent, because in exchanges there must be
a reciprocal grant, as appears by Littleton.
Having, I hope, made out (and much more might have been added,
but that I find it has been agreed) that conveyances work immediately
upon the execution of them on the part of him that makes them. I
wilLnow endeavor to shew the reasons, why they do so^ immediately
vest the estate in the party without any express consent ; and to shew
that these reasons do hold as strongly in case of surrenders, as of any
Ch. 2) EXECUTION OP DEEDS 379
other conveyances at law; and they consider the inconveniences and
ill consequences that have been objected, would ensue, if surrenders
should operate without an express consent ; and to shew, that the same
are to be objected as to all other conveyances, and that very odd con-
sequences and inconveniences would follow, if surrenders should not
operate without an express consent of the surrendree ; and then shall
endeavour to answer the arguments that have been made on the other
side, from the putting of cases of surrenders in the books, which are
generally mentioned to be with mutual assent, and from the manner
of pleading of surrenders. ^^
The reasons why conveyances do devest the estate out of the grantor (j\ju^.^t..fry^
before aay express assent or perhaps notice of the grantee, I conceive
to be these three : " ^
Fjrst^ because there is a strong intendment of law, that for a man to (^ J
take an estate it is for his benefit, and no man can be supposed to be
unwilling to that which is for his advantaee. 1 Rep. 44. Wiiere an act
is done for a man's benefit an_agreemern is implied, till there be a dis-
agreement. This does not only hold in conveyances, but in the gift
of goo^s, 3 Co. 26. A grant of goods vests the property in the grantee
before notice. So of things in action ; a bond is sealed and delivered
to a man's use, who dies before notice, his executors may bring an
action. Dyer, 167. An estate niadejlg^a feme covert vests injierjim-
mediately, tij^i the husband disagrees. So in my Lord Hobart, 204, in
Swain and Holman's Case. Now is there not the same presumption
and appearance of benefit to him in reversion in case of a surrender ?
Is it not a palpable advantage to him to determine the parVicuTar estate,
and to reduce his estate into possession? And therefore, why should
not his assent be implied, as well as in other conveyances? ^^-^
Secondly, a second reason is, because it would seem incongruous and (^ ^
absuTcT, TTTa! when a conveyance is compleatly executed on the grantor's
part, yet notwithstandinfi the estate should continue in hirn. The
words of my Lord Coke (1 Inst. 227a.) are, that it cannot stand with
any reason, that a freehold should remain in a man against his own
livery when there is a person able to take it. There needs only a capaci-
*Xl2J^'l^J^'s will to take is intended. Why should it not seem as un-
reasonable, that the estate should remain in Simon Leach, against his
own deed of surrender? For in case of & surrender, a deed, and some-
times words without a deed, are as effectual as a livery in case of a
feoffment.
Thirdly, the third and principal reason, as I take it, why the law
will not suffer the operation of a conveyance to be in suspence, and to
expect the agreement of the party to whom 'twas made, is Jo prevent
the uncertainty of the freehold. This I take to be the great reason why
a freehold cannot be granted in futuro, because that it would be very
hard and inconvenient that a man should be driven to bring his praecipe
or real action first against the grantor, and after he had proceeded in
it a considerable time, it should abate by the transferring the freehold
380 DERIVATIVE TITLES (Part 2
to a stranger, by reason of his agreement to some conveyance made be-
fore the writ brought; for otherwise there is nothing in the nature of
the thing against conveying a freehold in futuro; for a rent de novo
may be so granted ; because that being newly created, there can be no
precedent right to bring any real action for it. Palmer, 29, 30.
Now in this case, suppose a praecipe had been brought against Simon
Leach, this should have proceeded, and he could not have pleaded in
abatement till Sir Simon Leach had assented ; and after a long progress
in the suit he might have pleaded, that Sir Simon Leach assented puis
darrein continuance, and defeated all. So that the same inconvenience,
astothe bringing of real actions, holds in surrenders, as in other con-
veyances.
And to shew that it is not a slight matter, but what the law much
considers, and is very careful to have the freehold fixed, and will never
suffer it to be in abeyance, or under such imcertainty, as a stranger that
demands right should not know where to fix his action.
A multitude of cases might be cited ; but I will cite only a case put 1
Hen. VL 2 a, because it seems something of a singular nature, lord
and villain, mortgagor and mortgagee, may be both made tenants.
But it will be said here, tliat if a praecipe had been brought against
Sir Simon Leach, might not he have pleaded this disagreement, and so
abated the writ by nontenure ?
'Tis true ; but that inconvenience had been no more than in all other
cases, a plea of non-tenure; and it must have abated immediately; for
he could not have abated it by any dissent after he had answered to
the writ. Whereas I have shewn it in tlie other case, it may be after
a long progress in the suit.
Again, it's very improbable that he should dissent; whereas on the
other side, an assent is the likeliest thing in the world ; so tlie mischief
to the demandant is not near so great, nor the hundredth part so proba-
ble.
Now I come to consider those inconveniences that have been urged
that would ensue, if a surrender should work immediately.
It has been said, that a tenant for life might make such deed of sur-
render, and continue in possession, and suffer a recovery; and this
might destroy a great many recoveries, and overthrow marriage-settle-
ments, and defeat charges and securities upon his estate after such
deed of surrender.
These, and a great many more such like mischiefs, may be .instanced
in surrenders 1 but they hold no less in any other conveyance s^^ whereby
a man may (as hath been shewed before) devest himself of the estate,
and yet continue the possession ; and in this case the assent of the sur-
rendree, tho' he doth not enter, would (as it is urged of all hands) vest
the estate in him, Hutton, 95 ; Br. tit. Surrender, 50 ; tho' he cannot
have trespass before entry, and that assent might be kept as private,
and let in all the mischiefs before mentioned as if no such assent were
necessary.
Ch. 2) EXECUTION OF DEEDS 381
And this I think sufficient to answer to the inconveniences objected
on that side. /
Now let us^ee__what inconveniences and odd consequences would
follow, in case a smrender could not operate till the express assent of
the surrendree. therTno surrender could be to an infant at least, when
under the age of discretion ; for if it be a necessary circumstance, it
cannot be dispensed with no more than livery or attornment. So tho"
an infant of a year old is capable to take an estate, because for his
benefit he could not take a particular estate, upon which he had a re-
version immediately expectant, because it must enure by surrender.
If there be jointenants in reversion, a surrender to one of them enures
to both. 1 Inst. 192^_214 a. so there, as to one moiety, it operates with-
out assent or notice.
Suppose tenant for life should make livery upon a grant of his estate
to him in reversion and two others, and the livery is made to the other
two in the absence, and without the notice of him in reversion, should
the livery not work immediately for a third part of the estate? andjf^it
doth, it must enure as a surrender for a third part. So Ts Bro. tit.
Surrender, and 3 Co. 76.
If tenant for life should by lease and release convey the lands held
by him for life, together with other lands to him in reversion who
knows nothing of the sealing of the deed ; should this pass the other
lands presently, and the lands held for life not till after an express
assent, because as to those lands it must work as a surrender ? Plainly ,
an express assent is not necessary. For if the grantee enters, this is ^
sufSr.ipnt.
I come in the last place to answer those arguments that have been
made from the manner of putting the case of surrenders in the books,
and the form of pleading surrenders. Co. 1 Inst. ZZ7 b.
First, a surrender is a vielding up of the estate, which drowns by yLixy^/yjLtr^
rnutual agreement between them. Tenant for life, by agreement of . n ^y *■ j
him in reversion, surrenders to him ; he hath a freehold before he en- OiMf^*-'*^'^^
ters. And so Perkins, in putting the case of a surrender, mentions an
agreement ; and divers other books have been cited to the same purpose.
To all which I answer :
No doubt but an agreement is necessary. But the question is, wheth- p * -^
er an agreement is not intended where a deed of surrender is made in . >*^*^ -'^
the absence of him in the reversion ? whether the law shall not suppose C-^t-c-f *
an assent, till a disagreement appears:
Indeed, if he were present, he must agree or disagree immediately
and so 'tis in all other conveyances. The cases put in Perkins, sect. 607,
608, 609, are all of surrenders made to the lessor in person ; for thus
he puts them : the lessee comes to the lessor, and the lessee saith to the
lessor, I surrender, saith he, if the lessor doth not agree, 'tis void;
car il ne poit surrender a luy maugre son dents. And that is certainly
so in surrenders, and^ll othfr rnriY(^vances.;.i.o£.a^man cannoL
estate"put mto him mspight of hij
382 DERIVATIVE TITLES (Part 2
But I cannot find anyof the books cited that come to this point, that
whereV_deed oi surrender is executed^ without the notice of him in re-
versionT^at it slialLpass hoTHing till he consents l_so that It cannot ^e
said, that there is any express authority in the case.
Now, as to the form of pleading of a surrender, it has been objected,
that a surrender is always pleaded with acceptance ; and many cases
have been cited of such pleadings, Rastal's Entries, 176, 177 ; Fitzh. tit.
Barre, 262, which are cases in actions of debt for rent, and the de-
fendant in bar pleads, that he surrendered before the rent grew due,
and shews, that the plaintiff accepted the surrender; so in waste
brought, a surrender pleaded with the agreement of the plaintiff.
These and the like cases have been very materially, and I think fully
answered at the Bar by my Brother Pemberton ; that those actions be-
ing in disaffirmance of the surrender, and implying a disagreement,
the defendant had no way to bar and avoid such disagreement, but by
shewing an express agreement before.
The case of Peto and Pemberton in 3 Cro. 101, that has been so often
cited, is of the same sort : in a replevin the avowry was for a rent-
charge; in bar of which 'tis pleaded, that the plaintiff demised the land
out of which the rent issued, to the avowant. The avowant replies,
that he surrendered dimissionem praed. to which the plaintiff agreed.
This is the same with pleading in bar to an action of debt for rent;
but when the action is in pursuance of tlie surrender, then it is not
pleaded.
So is Rast. Entries, 136. The lessee brought an action of covenant
against the lessor, for entering upon him, and ousting 6t him.^~The
defendant pleads a surrender in bar, and that without any agreement
or_jLcceptance^
In Fitzherbert, tit. Debt, 149, where the case is in an action of debt
for rent, the defendant pleaded in bar, that he surrendered, by force
of which the plaintiff became seised : there is no mention of plead-
ing any agreement, notwithstanding that the action was in disaffirm-
ance of the surrender.
Therefore as to the argument which has been drawn against tlie form
of pleading, I say, that if an agreement be necessary to be pleaded:
then, I say.
First, that 'tis answered by an implied assent, as well as an express
assent. I would put the case f^uppose a lessee for life should make
a lease for years, reserving rent; and in debt for the rent the lessee
should plead, that the plaintiff before the rent grew due surrendered
to him in reversion, and he accepted it, and issue is upon the accept-
ance; and at the trial it is proved, that the plaintiff had executed a
deed of surrender (as in this case) to him in reversion in his absence;
would not this_turn the Prg_9f_upon the plaintiff ,_thaliie in reversion
disagreed to this surrender? for surelynhis agreement is^ prima facie
presuroed^-and then the rule is, stabit prsesumptio donee probetur in
contrariuin.
Ch. 2) EXECUTION OF DEEDS 383
Again, I say it appears by the cases cited that it is not always plead-
ed and when pleaded 'tis upon a special reason, as 1 have shewn be-
fore, i. e. to conclude the party from disagreeing; and it would be
very hard to prove in reason, that an agreement (admitting an express
assent to be necessary) must be pleaded; for if it were a necessary
circumstance to the conveyance, why then 'tis implied in pleading
sursumreddidit ; for it cannot be a surrender without it.
In pleading of a feoffment it is enough to say feoffavit, for that
implies livery ; for it cannot be a feoffment without it.
Now why should not sursumreddidit imply all necessary requisites,
as well as feoffavit? and therefore I do not see that any great argu-
ment can be drawn from the pleading. For,
1. It is not always to be pleaded.
2. It cannot be made out to be necessary so to plead it: f^T j^ ^'^-
sent be a necessary requisite, then 'tis miplied by saying sursunire.d -
didit, as livery is in feoffavit : and then to add the words of express
consent is as superfluous, as to shew livery after saving feoft'avit.
And again, if it v>^ere always necessary, it is sufficiently answered
by an assent intended in law : for presumptions of law stand as strong
till the^ontrary appears, as an express declaration of the party.
NoTTv. A writ of error was brought in tlie~King's Bench upon this
judgment and it was there affirmed by the unanimous consent of the
whole Court.
Memorand. Anno quarto Willielmi & Mariae: this case was
brought by writ of error into the House of Lords, and the judgment
was there rgYersgdjipon the reasons m the aforesaid argument.*^
43 See Standing v. Bowring, L. R. 31 Ch. D. 2S2 (1S85) ; Mallott v. Wilson,
[190:{| 2 Ch. AOL J,
/—■ •*Tt~i.s true, that judges have said, with more solemnity than I think the occa- --^-«-^
/sion wjirraiitiHl. that no one cnu linve an testate thrust ui.oii liim againstJijs
vvUl, and that, eniis.M|uciit ly a dclivci-y of a dct'd to a st i-a.u.L-'or, for the us(> of
the graiiteo, is of no crfcct, until assented to iiy the latter. How uuieh weTiHit
this ar.yunient is entitled to, may be judi^ed of Ij.v the fact that estates are every
day thrust u|ion people by last will and testament; and it would certainly
sound somewhat novel to say that the de\ises were of no effect until assented
to hy the devisees. Ifji /ather should die testate, devisiui^ an estate to liis
dau^diter, and the latter snouTTTaTterwa rd die witliout a knowiedjie' of_jQie
will, it would ha Idly he contended tiiat the devise heeanje void for want pf Mf-
ceptance, and tliat the heiis of the devisee nnist lose rhe estate. Neither will
it be detned that eciuitahle estates are every day thrust upon people liy deeds,
or assijiuments, made in ti'ust foi- their benefit, nor will it be said thatsuch
beneticiaries take nothing' until they ass^yj. Add to these the esiati's tliat are
tlu-ust upon i)eople by the statute of des-cent, and we bej:in to estimate the value
of the argument, that a man sliall not he made a property holder against liis
■will, and tliat courts slionid he astute to shield him from such a wrong. It is
certainly true, as a genejaJ rtde. that acceptance, by the Ljrantee, is necessary
to constitute a good delivery, for a man may refuse even a 'sWl^ Kut that such
acce]»tance need not lie manual is e(]ually ti'ue, and it is also certain that suu-
plejyissent to the conveyance, given even befoi-e its (-xi-eution, is a sulliciji]jt
acceptance. Thus, where a vendee had fully paid for the land and was entitled
t6"a conveyance, and liis vendor, witliout his knowle<lge, executed tiie deed and
delivered it to a stranger, not of the vendee's ai)pointraent, for tlie use of the
latter, it was held that the delivery was sufficient, and the deed tools effect
DERIVATIVE TITLES
(Part 2
w
^
WELCH V. SACKETT.
(Supreme Court of Wisconsin, 1860. 12 Wis. 243.)
ixoN, C. J.** * * * fhe question which was considered by
far the most important, and upon which the counsel bestowed the most
attention, citing nearly all the English and American authorities, calls
for the determination, in a case where a mortgage of_personal prop-
^l^ty fr^pi a '^'"1^^'^^^ creditor is executed in the absence and without
the knowledge of the latter, and delivered to a stranger for hiFUse,
of the time at which the title to tlie property mortgaged vests iri^the
immediately, although the vendee was wholly ignorant of what was do
ChurcTi V. <;ilnian, 15 TTeiKl. fN. Y.) G56 T^D Am. DVeV S2 (1836)]. *' gojoT'
dQpe,
afents^
for the iiublic lands are held to take effect as soon us issued, though they may
never ctJiue to the grantee's liauds, and were issued without any specific appli-
•-cation. J'or thenj. I'.ut the cases go still further, and, upon the soundest rea-
-/sous, hold that where a grant is plainly beneficial to the grantee, his accept-
•"pT IjaiKv of it is to be presumed in the absence of proof to the contrary. It is ar-
^"giied, liowever, that this is only a rule of evidence, and that where the proofs
show that the grantee has never had any knowledge of the conveyance the
presiunption is rebutted. If this ai'gument were limited to cases in which an
acceptance of the grant would impose some obligation upon the grantee, I am
not prepared to say that I would object to it, although the obligation mighty
fall far short of the value of the grant. ' But where the grant is a pureT.
aualifie±-gift. I ■thinly th^ true rule is tbat the presumption of acceptance can
be rebutted only by proof of dissent ; and it matters not that the grantee never
/ knew of tlu' conveyance, for as his assent is presumed from its beneficial cliar-
acter, the presumption can be overthrown only by proof that he did know^f
and rejected it. If this is not so, how can a deed be made to an infant
such tender years as to be incapable of assent? Is it the law, that if a father
make a deed or gift to his infant child, and deliver it to the recorder to be
recorded for the use of the child, and to vest the estate in it, the deed is of no
effect until the child grow to years of intelligence and give its consent? Max
the estate, in the meantime, be taken for the subsequently contracted debts
of the father, or will the statute of limitations begin to run in favor of a tres-
passer, upon the idea that the title remains in the adult? Or, will the con-
veyance entirely fail, if either grantor or grantee die before the latter assent?
I do not so understand the law. In such a case, the acceptance of the grantee
is a presiunption of law, nminCT t4i4aa,^the beneficial nature 6t 't!l(? "grant, and
not a mere presCTniptToh oTa^Q^-ai^tual^^cgglirra^^^ And tor lliy Bum's ryUl^on
thai: the'lffw'm^es"the"presuniptionrTr^es"'not aliow^ be disproved by any
thing short of actual dissent. I am fully aware thatTBSSeTte'U'S may seem op-
posed to many decided cases) but they are fully sustained by others that stand,
in our judgment, upon a more solid foundation of reason. The strict ness__pf
the. ancient doctrine, in respect to the delivery of deeds, has i^radnally worn
a^-ay. until a.doctrine'mdre consistent with reason antl the habits of the pres-
ent genera'tion now" prevails'.' Snider Y."^ackenour, 37 N. C. SCO [SS^^im. I5ec.
685 (1842)1 ; J^UingtCH v.'(Jurrie, 40 N. C. 21 (1847) Church v. Gilman, 15 Wend.
(N. Y.) 656 [30 Am. Dec. 82 (1836)] ; Tate v. Tate, 21 N. C. 26 (1834) ; Morrow
V. Alexander, 24 N. C. 392 (1842). It remains to be considered, whether the
deed in question was of that beneficial nature to the grantee, as to give rise to
the presimiption of which I have spoken. Upon its face it purports to be for
a pecuniary consideration paid to the grantor. Prima facie, therefore, it was
neither a gift nor advancement. But the proof satisfies us that the grantor
never received, or expected any pecuniary consideration for it. If he intend-
ed that his daughter should have the land, he intended it as a gift. I have
already said that upon the testimony we feel bound to say that he did intend
to convey it to her, and we must therefore consider the deed as a gift. Ap-
** The statement of facts and portions of the opinion are omitted.
Ch, 2) EXECUTION OF DEEDS 385
mortgagee, as between himand another cxedit or of the mortgagqrjvho
acc^uiredTan^TnterestTmit. by attachment^betweenjtlie time of the de-
livery to_the stranger and thf time whenjhe mortgagee actually re-
ceived notice of and accepted it. Whilst it must be admitted that there
irsome conflict in the adjudications upon this subject, still both natural
reason and the weight of authority tend to the same conclusion, which
is, \that the title in such case only vests from the time there is an ac-
ceptance in fact on the part of the mortgagee. On principle J think
it may be laid down as an indubitable proposition in such case, jthat the
title does not vest in fact until the mortgagee has actually assented to
the conveyance; and consequently, that until such assent it remains
in. the mortgagor. While all the courts acknowledge the correctness
of principles which lead unerringly to this result, and clearly and posi-
tively exclude any other, it is somewhat strange that any should have
been found to adopt a conclusion directly opposed to it. All agree that
it is necessary to the validitv of everv deed or conveyance, that there
be a grantee who is not only willing, but who does Jnjact accept it. It
is a contract, a parting with property on the part of the grantor, and
an acceptance of it by the grantee. Like every other contract, there
must be a meeting of the minds of the contracting p_arties^.ll]e on^
to sell and convey, and the other to purchase and receive, before the
agreement is consummated^. If there be anything in legal principles,
or m common sense, it is an unpardonable absurdity to say, that a
contract can be completed in the absence and utter ignorance of one
of the contracting parties j_^ that he can or does, under such circum-
stances, assent to, or agree to become bound by it. The idea that a
contract could be thus made, and that title to property could pass into
a party without his knowledge or consent, and out of him without
any motion or act of his signifying his willingness, but merely by his
refusal to receive it at all, had its origin at a period in the history of
the common law, when the legal mind, instead of being governed in
its conclusions by a steady application of the clear and rational prin-
ciples of the law to plain matter of fact^ and by arguments to be drawn
therefrom, was too frequently influencecLby a mysterious and fanci-
ful logic, that depended for its support upon artfully devised fictions
and falsehoods, vvhich for the most part were as reiuignant to reason
as they were unnecessary to the proper administration of jusJLi^g.
The discovery that such things could be done, is, I believe, attributa-
plying, then, the pripciples we have recognized, the titlp vested in Ellen Shan-
non when Owen" Shannon causpd the deed to be recorded. She was seized of
it during her intermarriasre with the lessor of the plaintiff, there was issue of
the marriage, and she died before the commencement of this suit. According
to the decision in Borland's Lessee v. Marshall, 2 Ohio St. 308 (1853), t_he les-
ror of the plaintiff hern me tennnt by the curtesy, evenifjth..e lands were ad-
^rseiy held dniiii- the cov(M-tnre^ It fnllowaJlint Hip plaintifF is entitlejL^
judgni'eiit." Mitchell v. Kyaii. suiirn, p. 2r)7. See, also. Derry Bank v. Webster,
44'?r"rTr!J64 (1862), where the deed contained a provision placing a burden up-
on the grantee.
Aig.PrOp. — 25
386 DERIVATIVE TITLES (Part 2
ble to the inventive skill of Justice Ventris, as exhibited in the case
of Thompson v. Leach, 2 Vent. 198, decided about the year 1690; at
^ ' least several courts and judges since that^time, with many compliments,
^ have agreed in giving him the credit of having proved something on
/this subject which none oi_ them could understand. The substance
( of his proposition is, that a ^eed of lands made to a party, without his
J knowledge or consent, and placed in the hands of a third person for
\ his use, is a medium for the transmission of the title to the grantee,
and takes effect so as to vest it in him, the instant the deed is parted
with by tlie grantor, and if the grantee, upon receiving knowledge of
it, rejects it, such rejection has the effect of revesting the title in the
\ grantor by a species of remitter. Inasmuch as this is the only attempt
at sustaining it by argument to be found in the books, the more recent
cases having, without discussion, gone off almost entirely on the
strength of the authorities, I propose to examine some of tlie positions
assumed by him, upon which his argument mainly depends, and from
which, I think, its fallacy and the incorrectness of his conclusions will
be clearly made to appear. He admits, what is universally conceded
to be an indispensable element of ever}^ grant, namely, that it shoujd
be accepted by the grantee, and says, "that an assent is not only a
circumstance, but it is essential to all conveyances ; for they are con-
tracts, actus contra actum, which necessarily suppose the assent of all
parties ;" but avoids the difficulty into which the admission of this
well settled principle brings him, by saying, "that because there is a
strong intendment of law, that for a man to take an estate is for his
bgnefit, and no man can be supposed to bejinwilling to that whioh is
for his advantage," therefore the law will presume that the grantee
has accepted a conveyance before a knowledge of its execution and
delivery has come to him. Upon the foundation of this hypothesis,
misnamed by him a presumption of law, tlie falsity and unreasonable-
ness of which are so self-evident that reasoning can hardly make them
plainer, he proceeds to the erection of his superstructure. Assent or
acceptance on the part of the grantee or other party to a deed or other
instrument, by means of which the title to property, whether real or
personal, is to be transferred to him, or by which he is in any other
manner to become bound, is a fact, the truth of which is to be establish-
ed by competent evidence, before such deed or other instrument can be
adjudged to have a legal existence. Like every other fact, it may be
established by direct evidence, or its existence may be inferred or pre-
sumed from other facts already in proof. But I deny that the ex-
istence of one fact is to be inferred or presumed from the existence
of others, when the connection between the former and the latter is
such that according to the course of nature it plainly appears that the
former cannot exist. In other words, I deny that the existence of any
fact may be shown by proving others which conclusively show its non-
existence, or that the legitimate mode of establishing the truth of a
matter is by indubitably proving its falsehood. Justice does not re-
Ch. 2) EXECUTION OF DEEDS 387
quire, nor does the law tolerate such an absurdity. The learned jus-
tice says, that where a deed is executed by the grantor and delivered
to a stranger for the use of the grantee, without the previous advice,
direction or authority of the grantee, and without his knowledge, the
law will presume that the grantee assents to it, the moment it is deliv-
ered to the stranger. Assent is an act of the mind— that intelligent
power in man by which he conceives, reasons and judges, and of which
it is a primary, invariable and most familiar law that it cannot act
with reference to external objects, until, through the medium of the
senses, it is impressed with or knows their existence. Hence, with-
out such impression or knowledge, there can be no assent, no actus
contra actum, and to presume it in opposition to the facts, is to pre-
sume that which is impossible; which the law, the rules and precepts
of which are m conformity with the unchanging truths of nature, will
never do.
"J^ presumption." says Mr. Starkie. "may be defined tn he .^n infer-
ence as to the existence of one fact, from the existence of some other
fact, founded upon a previous experience of their connection. To
constitute such a presumption, it is necessary that there be a previous
experience of the connection between the known and inferred facts,
of such a nature that as soon as the existence of the one is established,
admitted or assumed, the inference as to the existence of the other im-
mediately arises, independently of any reasoning upon the subject."
Presnmptinns thus defined, he says are either legal and artificial qt
natural, and may be divided into three classes. 1st. Legal presump-_
tions made by the law itself^ or presumptions of mere law! 2d. Legal
presumptions made by a_ jjjry, ..pr._presumptions of law and fact. 3d.
Mere natural presumptions, or presumptions of mere fact. The defini-
tion which he so clearly and accurately gives, although applied by him
to all presumptions, is perhaps more strictly applicable to the latter
class. The assent to a deed or other instrument by the grantee or other
party, being a matter of mere fact, it is obvious that to the latter class
also would belong a presumption in relation to such assent, in a case
where such presumption could properly be indulged. But, whether the
presumption be assigned to the one or the other of these classes, the
position of the learned justice is equally untenable; for in no instance,
not even the most artificial and arbitrary, does the law indulge in
presumptions which are_directlj_contradicted by the farts on which
they are predicated. The known facts, though often insufficient of
their own natural force and efficacy, to generate in the mind a con-
viction or belief of those which are inferred, are always, to say the
least, not inconsistent with or opposed to them. If for example we
take the case instanced by Mr. Starkie, of the presumption of the sat-
isfaction of a bond after the lapse of twenty years, without payment
of interest or other acknowledgment of its existence, while if a single
day less than the twenty years has elapsed, such presumption does
388 DERIVATIVE TITLES (Part 2
not arise, we find it to be extremely arbitrary and technical. No nat-
ural reason can be given why the lapse of the last day should operate
to produce in our minds a conviction or belief of payment, while the
lapse of all the days and years preceding it does not so operate. Such
is not its effect. But as from common experience of the affairs of
men, there arises in the mind, after the lapse of many years without
payment of interest or other acknowledgment, a^ strong probability that
a^debt has been satisfied, and as the law loves certamty and industri-
ously avoids doubts, it has from these motives arbitrarily fixed a period
of time at the expiration ni which this probability shall ripen into and
take effect as a presumption nf law, and at which the rights and posi-
tion of the parties in reference to such debt, flowing from the mere
lapse of time, unaccompanied by other circumstances, shall become
determined and certain. This presumption, which is in so many re-
spects artificial, is in no respect inconsistent with the fact from which
it is said to arise. On the contrary, though not conclusively sustained,
it is strongly corroborated by the fact; since experience teaches that
it is very improbable that the holder of the bond would, unless it were
satisfied. permit_such a space of time to elapse without receiving the
intere^ or obtaining from the maker some other evidence of its non-
payment. The same is true of that most purely artificial presumption,
that a bond or other specialty was executed upon a good consideration,
which is so peremptory and absolute in its nature that it cannot be
rebutted by evidence; whilst the consideration of another instrument,
executed and delivered under precisely the same circumstances, and in
the sam e words, but not under seal^ may be freely inquired into__an d
impeached ; yet there the conclusion that it was made upon a good
consideration is entirely consistent with the facts from which it is
drawn ; for tligre is much reason for supposing that without a good
consideration, it_would not ha,ve been sealed and delivered. Without
multiplying illustrations, I think it will be found that in no instance
(unless the present case is to form an exception) does the law infer
the existence of facts in clear and direct opposition to those upon
which the inference rests. It does not do so here. Reason rebels
against it, and neither justice nor equity demands it. The only result
of dropping the absurdity will be that, as in the present case, in a con-
test between two equally meritorious parties, the title to the property
of^hich a conveyance was sought to be made, will be adjudged to be
in him whom reason designates as the true owny.
^ The mistake of the learned justice consisted in his carrying the pre^i^^
sumption of law so far as to say that it presumes that a person has
consented to that of which he knows nothing, which is an impossibility^
instead of saying, what was more truly said by the more logical and
cautious courts and judges of his time, and by Lord Ellenborough, in .
Stirling v. Vaughn, 11 East, 623, namely, that, jf nothing appears jo
the contrary, the law presumes that he will accept that which is for his ,
Ch. 2) Execution of deeds 389
benefit, when he is informed of it, which assent, in tlie absence o£ in-
tgrveningnghts or eciuilies, will have i^latimWxi^ to the time.of_iie-
livery fcjr his use, and make his title goo^a^^m that date. After
a brief argument of this sort, he proceeds to say, "that very odd con-
sequences and inconveniences would fuUow, if surrcnder> sliould be in- /^ £.,^^_JU^
effectual till an~express consent of the surrenderee," and that most 5
disa_strous~effects upon estates and conveyancing in England would en- ,s^,tri'^.>C«^v-Zt
sue, unless her courts adopted and upheld his absurilily. It is said that J
one error surely gives rise to another and a greater. This saying was
never more aptly and forcibly illustrated, than by the fantastic feats
which the learned justice makes the common law, the sober common
sense of~ages, perform by way of getting the title back again in the
grantor in case the grantee refuses to accept the conveyance. He says
that after, by this kind of one-sided contract, it has got into him with-
out his knowledge, it remains with him without his consent until he
absolutely rejects and spurns the offer, and that then, by some magi-
cal power of the law, such rejection, without deed or other writing,
becomes an instrument of conveyance, by which the legal title to land
is conveyed from one who has it to one who has it not, against the
express wishes of the latter and in despite of his own deed, the high-
est and most solemn act known to the law, by which he could rid him
self of it. It is not surprising that the learned and logical Chief Jus-
tice Gibson, in Read v. Robinson, 6 Watts & S. (Pa.) 329, while com-
menting upon what he calls "the masterly argument of Justice Ventris,
in Thompson v. Leach," says, that "the difficulty is to comprehencijiow
the remitter can take^effect without _displacin^ intermediate interests
springing from the rejected deed;" and then, as if in despair of ever
comprehending it, he dismisses the subject from his mind by saying,
"but the authorities conclusively prove that it may." All agree that.
neither the grantor nor the stranger who consents to receive and hold
the deed, can, by their acjs, bind the grantee, and that the latter may,
on receiving notice 6T^, repudiate it altogether. If the title vests in
the grantee at once, it must, of course, vest according to the terms
of the conveyance, and in the case of an absolute conveyance, he would .
have an absolute title. If, after delivery to the_stranger^_and_befjQre
notice to the grantee, a creditorjof the latter should, fiisten upoj.l_iIie
property by execution or attachment, no reason can be given why he
could not hold it. If it is the property of the grantee, it follows, as "^ *"
of course, that the creditor would have this right, and that he would
at once acquire a lien to the extent of Kis demand. Suppose, after
this is done, that the grantee, on receiving notice, refuses to accept the
conveyance, what becomes of the property? Does the refusal unbind
and get the propert^_fj;:£e from the seizure of the creditors, and remit
the title at once back tojthe grantor ? Dr does the intendment of Jus-
tice Ventris step in, in behalf of the creditor as well, and say, because
the grant is presumed beneficial to the grantee, and he might, at some
390
DERIVATIVE TITLES
(Part
future period, accept it, that therefore he shall be deemed to have
accepted it before the seizure, and at a time when he was utterly ig-
norant of it, and thus enable the creditor to witlihpld the property from
the grantor, by which means it would happen that although_ it jvas
neither bought nor sold, the grantor would, without consideration, lose
it, and_the grantee enjoy the full benefit of it on the same terms?
Knowing of no rational or satisfactory answers which can be given
to these and various similar questions which will readily suggest them-
selves to the reader, I leave them to be replied to by those who main-
tain that the title to property, real or personal, may, without words
written or spoken, or other act of transfer, be thus mysteriously_passed
and re£assed between parties by contract. T deny that it ni^^jj___be.
It seems to me very plain, that it does not pass in^ fact untij the
grantee has actually consented to receive it; and, as of course, that it
. remains wi_lli_the_grantor, who is unable, without such consent, to vesl
/ iTin the grantee. No other conclusion is consistent with the doctrine
* that a grant is a contract, and that the assent of the grantee is neces-
sary to give it validity. The justice assumed the question in contro-
versy by saying that the execution and delivery of the deed to the
stranger passed the title out of the grantor, and then he was under the
necessity of resorting to these further absurdities, in order to account
for it; for he says, "that it is not a slight matter, but what the law
much considers, and is very careful to have the freehold fixed," and
not "under such uncertainty, as a stranger that demands right should
not know where to fix his action." 1/ he had considered that the op-
eration of the deed was suspended, or that it did not take eflfect until
the grantee had assented, he would have been saved the trouble of
drawing so largely on his imagination to show where the title was, and
how it was thereafter to be controlled. It is a matter of no small
mnmpnj-, anH nf just pride to the bench of England, that Justice Ven-
tris, at the time he wrote his wonderful argument, dissented, and that
the other members of the Court of Common Pleas, viz.^ ^olle2ci.en,
Chief Justice, and Powell and Rokeby, Associates, were of opinion
in the case, "that there was no surrender till such time as the sur-
renderee hadnotice of the deed of surrender and had agreed to i_t."
and tliat it was so adjudged by that court ; and that the case was after-
wards taken by writ of error to the King's Bench, of which Lord Holt
was at the time Chief Justice, and the judgment of the Common Pleas
"was there affirmed by the unanimous consent of the whole court."
It was afterwards brought by error into the House of L^nrHs, where.
i/Ct- ^^ it is said, upon the reasons contamed in Justice Ventris' argument.
xl^ /^^ the judgment pronounced in both superior courts was reversg.d. Thus
y(Jl^ y^ "'we have on. the one side the legal learning, and almost tne unanimous
■ "^ "TjLt opinion of the courts, and on the other the judgment of reversal of
the House of Lords, the great majority of whom knew very little,
and cared less, about the correct settlement of legal principles.
rU'<y^
w
Ch.2)
EXECUTION OP DEEDS
391
The argument is of a piece with that kind of reasoning once em-
ployed to prove that titles to estates were "in abeyance," "in nubibus,"
and "in gremio legis," the folly of which is so thoroughly exposed and
exploded by the severe and searching logic of Mr. Fearne, in his ad-
mirable treatise on Remainders. See pages 360 to 364, inclusive. It
was held, in case of a lease to one person for life, remainder to the
right heirs of another still living, that no estate remained in the
grantor ; and because there was no heir, for the reason that no one
can be heir during the life of his ancestor, but only after his death,
and because the tenant took only a life estate, the remainder was said
to be in abeyance, in the clouds, or in the bosom of the law. These
opinions were founded upon the very same assumption as tliat of Jus-
tice Ventris, namely : That the remainder passed out of the donor
at the time of livery, and consequently that no estate remained in him
tliereaf ter ; and because the title must always be somewhere, the ad-
vocates of the doctrine sent it to the clouds ; "though," says Mr.
Fearne, "by some sort of compromise between common sense and the
supposition of an estate passing out of a man, when there is no per-
son in rerum natura, no object beside hard and hardly intelligible
words, for the reception of it at the time of the livery, they are com-
pelled to admit such a species of interest to remain in the grantor,
as upon the determination of the estate before the contingent remain-
der can take place, entitles the grantor, or his heirs, to enter and re-
assume the estate."
The questions are so closely allied, and the substrata of the two
follies are so exactly alike, that Mr. Fearne's reasoning is fully in
point. And it is certainly refreshing, after a perplexing and vain
effort to understand that which never was and never will be intelligible,
to take up an author, who,_like Mr. Fearne, treats the subject upon
the principles of comrnon sense. He intimates a conviction, that in-
stead of the titles to estates being in the clouds, there is a much strong-
er probability ofcaput inter nubilia condit, of the head of the inventor
of the fiction having been buried or hidden in them! He says: "I"can-
nolTbut "thmk it ^ more arduous undertaking, to account for the
operation of a feoffment or conveyance, in annihilating an estate of in-
heritance, or transferring it to the clouds, and afterwards regenerat-
ing or recalling it at the beck of some contingent event, than to recon-
cile to the principles as well of common law as of common sense, a
suspension of the complete, absolute operation of such feoffment or
conveyance, in regard to the inheritance, till the intended channel for
the reception of such inheritance comes into existence," The same is
true of the deli.very of a deed to a third perspn for thg use of the
grantee, without his knowledge or previous direction. It is far more
compatible with common law and common sense, to say that its op-
emtmn is suspendedL until the happening^of the event indispensable in
the_JaAV to its validity, namely an acceptance by the grantee, than jo
392 DERIVATIVE TITLES (Part 2
make the law perform the wonderful exploits of vesting and recalling
the title contrary to its best settled and soundest principles. \I am of
opinjon theref oret_thjit_^the defendant^in_error took no interest in the
goods in question by virtue of their iTT^rtgages^ until after the plamtiff
in error had seized them uponjgrocess of attachment, and consequently,
that they cannot maintain their action.
Aluch was said in this case about the manner in which the mort-
gages were delivered. There can be no doubt that so far as the mort-
gagor was concerned, the delivery was good. They were placed by
him in the hands of a stranger, to be by him delivered to the mort-
gagees, and thus passed beyond his reach and control, unless the mort-
gagees, within a reasonable time after notice, should refuse their as-
sent. This made the delivery, as to the mortgagor, valid and binding,
which is all I understand the author of the Touchstone to mean, when
he says that a deed "may be delivered to any stranger for and in be-
half and to the use of him to whom it is made." B\;t a deliverv bv
the donor to a third person,, loxjlie use of tlie donee, and an acceptance
by the latter, are two very different things. By the former, the donor
signifies his willingness to part with the property, whilst by the latter
the donee makes known his assent to receiving it, and both. must con-
cur be fore^^thejitle^^^JTanged or affected. It was formerly, and may
perhaps by some be still supposeHTthat there can be no delivery with-
out at the same time an acceptance; that they are correlative, insep-
arable parts of the same transaction, and must both occur at the same
instant of time ; and hence, in part, the fiction of relation, by which
in case of a delivery by the grantor to a stranger, the slibsequent ac-
ceptance by the grantee was carried back in legal contemplation to the
time when the grantor gave the deed to the stranger, in order to save
the logic of the law and to preserve "the eternal fitness of things."
It seems to me that every case in which it has been adjudged that there
rnay^be'a delivery to a stranger, aii(J"Biat asubsequent ratification by
t^ie grantee will maTcie~tfie instrument ettectual for the purposes in-
tended, talsihes this notion and proves that in every sucircase there
may be, what there is in fact, a delivery by the grantor at one time
to a third party, and an acceptance by the grantee from such tliird
part}[^t a subsequent and dilterent time. Such is the common sense
of the transaction! and it is better and more rationally disposed of
without than with the aid of the fiction. But if the fiction must be
employed then the maxim, in fictione legis semper subsistit equitas, ap-
plies, and it will not be allowed to operate when it infringes or vio-
lates the rights of strangers. It is only resorted to in furtherance_p£
justice and to prevent injury. In this case the plaintiff in error is
a stranger to the mortgages. He represents the rights and interests
of the creditors of the mortgagor, who in good faith sued out and
levied their attachments upon the goods, thereby lawfully acquiring a
lien upon them ; and it cannot be said to be in furtherance of justice.
Ch. 2) EXECUTION OF DEEDS 393
to^postpone thejr demands thus legally secured, to those ofjhe mo rt-
gage creditors, which_are in no sense more equi^ble or just. The
struggle is between innocenf persons, to prevent loss, and the fiction
o u ght not to be resorted to_fQr_the purpose of helping one as again s t
the other. The transaction must be left to stand upon its siiii^le and
"^dJ^Diiib— '* * *
The judgment of the circuit court is reversed, and a new trial
awarded.*^
45 Hibberd v. Smith, 67 Cal. 547. 4 Pac. 47.3, 8 Pac. 46, 56 Am. Rep. 726 (1885) ;
Hulick V. Scovil, 4 Oilman, 1.59 (1847) ; Woodbury v. Fisher, 20 Ind. 387. 83 Am.
Dec. 325 (3863); Day v. Griffith, 15 Iowa, 104 (1863); Bell v. Farmers' Bank,
11 Bush (Ky.) .34, 21 Ani. Rep. 205 (1S75) ; Parmelee v. Simpson, 5 Wall. 81, 18
L. Ed. 542 (1866), ace. See Watson v. Hillraan, 57 INIich. 607, 24 N. W. 663
(1885); Meigs v. Dexter, 172 MjIss. 217, 52 N. E. 75 (1898). Buffum v. Green.
5 N. H. 71. 20 Am. Dec. 562 (1829) ; Wilt v. Franklin, 1 Bin. (Pa.) 502, 2 Am.
Dec. 474 (1809) ; Merrills v. Swift, 18 Conn. 257, 46 Am. Dec. 315 (1847), contra.
See Jones v. Swayze, 42 N. J. Law, 279 (1880).
i7c^
394 DERIVATIVE TITLES (Part 2
CHAPTER III
THE PROPERTY 1 CONVEYED
SECTION 1— BOUNDARIES
^^\ -
HARRIS V. WOODARD.
(Supreme Court of North Carolina, 1902. 130 N. C. 5S0, 41 S. E. 790.)
Action by J. W. Harris and others against the Woodard & Good-
ridge Company, heard by Judge Walter H. Neal and a jury, at Febru-
ary Term, 1902, of the Superior Court of Granville County. From
a judgment for the plaintiff, the defendant appealed.
Clark, J. The plaintiffs, holders of a second mortgage, seek to
enjoin sale under a prior mortgage executed by the mortgagor to cle-
fendants. because the descrip^on in the latter is too vague and indeH-
nitejo pass title to the defendants. Said description is as follows : "A
certain piece or tract of land, grist mill and all fixtures thereunto,
and one store-house, 28 by 100 feet long, lying and being in Brass-
field township, Granville County, N. C, and adjoining the lands of
Anderson Breedlove, J. C. Usry and Dora Harris, said lot to contain
three acres." There are forty acres in the tract on which the store
and grist mill are located. There is nothing to segregate this three
acres out of the forty, nothing to indicate a heginning, nor where
or in what direcfion the lilies^j to be run-^nothing whatever beyond
the inference — for it is not expressly stated that the grist mill and
store-house are to be located somewhere upon tlie said three acres when
laid off. ■
As was said by Gaston, J., in Massey v. Belisle, 24 N. C. 170, '^v-
ery deed of conveyance must set forth a subject-matter, either cer-
tain in itself or capable of being reduced to a certainty by recurrence
to something extrinsic to which the deed refers." Here there is no
subject-matter which is either definite in itself or capable of being
reduced to a certainty by recurrence to something to which the deed
refers. No beginning point, nor directions are given, nor distances,
and there is riothing._which authorizes anyone to lav off the lines Jjf
any particular three acres out of the forty in the tract, which tract
is bounded by the_parties named. The reference to them renders
1 The word, of course, is not used here in its narrow, technical sense of a
right, but in its broader, more popular sense of the external object over which
rights are exercised.
^^ a.
Ch-S)
THE PROPERTY CONVEYED
395
the forty-acre tract certain, but is no aid in rendering it possible to
select three acres out of said tract. This is not like the "twenty-nine
acres to be cut off of the north end" of a tract which was bounded
by straight, well-defined lines, and whose selection required merely
a knowledge of surveying, as in Stewart v. Salmonds, 74 N. C. 518, nor
a similar description in Webb v. Cummings, 127 N. C. 41, V7 S. E. 154.
The statute, Laws 1891, chap. 465, applies only where there is a
description which can be aided by parol, but not when, as in this case,
there is no description. Hemphill v. Annis, 119 N. C. 514, 26 S. E.
152; Lowe v. Harris, 112 N. C. 472, 17 S. E. 539, 22 L. R. A. 379.
In Lowe v. Harris there were the words "his land," which the minority
of the Court insisted could be helped out by parol evidence, but here
there is only an uncertain, indefinite, undefined and undefinable three
acres out of a tract of forty, and the Court properly held that thisjvas
too indefinite to be a conveyance of any three acres, and the mortgage
was, therefore, void as to the land. _ • ry
No error.2 Wmt^-Ca^^-^ -vrtr*-^
LEGO V. MEDLEY.
(Supreme Court of Wisconsin, 1891. 79 Wis. 211, 48 N. W. 375, 24 Am. St.
Rep. 706.)
Taylor, J. The questions arising in this case grow out of a fore-
closure action brouglit by the plaintiff and appellant against the re-
spondent and the other persons named to foreclose a mortgage, ^hg
mortgage sought to be foreclosed was given to the appellant by Richard
P. Medley, dated October 16. 1888. to secure the payment of .^500 and
the interest thereon. The property mortgaged was described in. the
mortgage as the W. % of the S. W. 14 of section 9, township 30 N., of
range 6 W., in Chippewa county. Wis. None of the defendants in the
acdon appeared in the case or defended the action, except the respondent
Rose Medley. She answered that she was the mother of the mortgagor,
Richard P. Medley, and that on the 9th day of April, 1884, she was the
owner in fee-simple of the W, 1/;. of the S. W. I/4 of said section 9, the
property described in said mortgage, and on said 9th day of April, 1884,
for love and affection for her said son, she conveyed to him, by an ordi-
nary warranty deed^ so much of said W. 1/2 of said section 9 as is
gescribed in said deed, and no more. The following is the description
contained in said deed from her to her said son, viz. : "The west half
2 Cathey v. Buchanan Lumber Co., 151 N. C. 592, 66 S. E. 580 (1909) ; King
V. Ruckman, 20 N. J. Eq. 316 (1SG9) ; Le Franc v. Ricbmond, 5 Sawy. 601, Fed.
Cas. No. 8,209 (1864), ace.
In Gaston v. Weir, .84 Ala. 193, 4 South. 258 (1887), the description in ques-
tion was "forty-seven and one-fourth acres of the west part of the north half
of the northwest fourth of section 1." It was held that the land could be lo-
cated. See, also, Tiernev v. Brown, 65 Miss. 563, 5 South. 104, 7 Am. St. Rep.
679 (1888) ; Osteen v. Wynn, 131 Ga. 209, 62 S. E. 37, 127 Am. St. Kep. 212;
(1908).
396 DERIVATIVE TITLES (Part 2
of the southwest quarter of section nine (9), township thirty (30),
range six (6), except one acre from the southeast corner of the south-
west quarter of the southwest quarter of said section, town, and
range, together with the buildings thereon."'
This deed was duly recorded in the proper register's office on the
10th of April, 1884. She also set forth in her answer that at the time
of and ever since the execution of said deed to her said son she was,
and since has been, in the actual possession of said acre of land, and
the buildings thereon, and is stiU Jn the possession of the_sarne_^ and
she further alleges in her complaint that the acre of land, with the
buildings thereon, excepted in her said deed, and which she has always
occupied and still occupies, is bounded as follows: "Beginning at the
boundary line of the highway which runs along the south side of said
southwest quarter of the southwest quarter of section nine (9^ afpre-
said, on the hne of division between the southwest quarter of the south-
west quarter, and the southeast quarter of southwest quarter, of sec-
tion nine (9) aforesaid ; thence west along the boundary line of said
highway seventeen rods and three quarters; thence north, at right
angles to the boundary line of said highway, nine rods ; thence east
to the boundary line between the southwest quarter of the southwest
quarter and the southeast quarter of the southwest quarter of section
nine (9) aforesaid, seventeen rods and three quarters; thence south,
along the boundary line between the southwest quarter of the south-
west quarter, and the southeast quarter of the southwest quarter, of
section nine (9) aforesaid, to the place of beginning; that said acre of
land so measured belongs to this defendant, and that she is the owner
thereof, and in the actual possession of same, and has been at all
times since the making of said deed to the defendant Richard P. Med-
ley, and of the dwelling-house and buildings situated ther£Qn. and \xas
in such possession at_the time o^jii^aking of Jli_e mort^^e_of_th^^
tiff herein, and that, the said Richard P. Medley had no right or title
in or to said land or buildings, and no power or authority to sell or
mortgage same; that thejlaintiff in this action has no ri_ght or power
or permission to sej][_or conyex.^iii.J.and and premises, or to exer-
cise any rights of ownership m_QrJ:p same." There was no demurrer to
the answer.
On the trial the plaintiff offered in evidence his note and mortgage,
and made the computations of the amount due thereon, and in addition
to such evidence he did in open court "release all claims whatever to
one acre from the southeast corner of the southwest quarter of the
southwest quarter of section nine (9), town thirty (30), range six (6),
in Chippewa county, Wisconsin, and the buildings thereon, and con-
sents that whatever judgment is rendered in the actions shall so de-
clare," and rested his case; and thereupon Rose Medley was called
as a witness in her own behalf. The plaintiff then objected to any
evidence under the answer of defendant Rose Medley, upon the
ground that the same does not constitute any defense whatever. And
Ch. 3) THE PROPERTY CONVEYED 397
the counsel for the plaintiff then said: "I want to say that, meaning
to release one acre in the corner square and bounded by four equal
sides." The court overruled the objection to the evidence offered, and
the defendant gave her testimony in the action. Thecourt, under
objections on the part of the plaintiff, permitted the defendant to show
that one acre, in the soutTieast corner of tlie eighty acres described
in her deed to her son, in t]ie^fqrm_of_9^^quare_wiiE iaur. equal sides,
w ould not include her dwelling-house .
After hearing the evidence, the court made the following findings of
fact and conclusions of law : The 1st, 2nd and 3rd findings relate
to the mortgage, and the amount due thereon. The court then makes
the following findings :
"(4) That the said defendant Richard P. Medley derived_h[s title
to. the mortgaged premrses__from_^def_endant Rose Medley, undgr..a
deed executed bv said Rose Medley several years prjnr tr^ th e_(^y er n ti nn
of said mortgage, and also recorded in the office of the register of deeds,
Chippewa county, Wis., prior to the execution of said mortgage ; that
in said conveyance said lands are described as follows : 'The west half
of the southwest quarter of section nine (9), town thirty (30), range
six (6), except one acre from the southeast corner of the soutliwest
quarter of the southwest quarter of said section, town, and range, to-
gether with the buildings thereon ;' that at the the time of the mak-
ing of said conveyance there was a dwelling-house, and some out-
buildings used in connection therewith, located near the southeast cor-
ner, and the said Rose Medley was in the 'actual possession of said
tract of land, and residing in said dwelling-house; that during all the
time after the making of said conveyance, up to the present, said
Rose Medley has continued to reside in said dwelling-house, and used
said outbuildings in connection therewith.
"(5) That at the time of making of said conveyance to Richard P.
Medley there was, and ever sincehas been, a strip of land two rods
wide off from the south side of said describiedlJand,_£Qnstitutog_part
of the public highw^ay, and tliat said land, as used and occupied by said
Rose Medley, was bounded on the south side by said highway.
"(6) That a square acre laid off from the southeast corner of said
land would not includethe said dwellin^-honse. ; and that an oblong
square acre lai^ otf from said corner, having for its southern boundary
the center of said , high way^^^ would include said dwelling-house, but
would not include all the other buildings referred to as used in con-
nection therewith ; but^n__acresolaM off f roni_said corner, ^excluding
the highwav. th?vt is, t,akmg for__Uie_corQ£i„Jiie^4)oint where the east
boundarv of said land intersects with the highway, would. include _all
of said buildings ; said acre would be sixteen rods long on the south
boundary, and ten rods wide on the east boundary."
And as conclusions of law the court finds as follows :
"(1) That said conveyance from Rose Medley to Richard P. Med-
ley should be rQnstriTpf1_y;ith reference tothe circumstanre?^ attend-
398 DERIVATIVE TITLES (Part 2
ing the transaction, the situation of the parties, state of the_property,
the locatiorT^r said dwelHng-house, and other buildings, and the exist-
enceof_tFe hig'hway; and, having regard for these circumstances, the
court holds that it was the evident intention of the parties, by the lan-
guage used in said conveyance, that the acre excepted should be laid
off from the southeast corner of said west half of the south west nnar-
ter in said section nine (9). excluding the highway, so as to^include_said
dwelling-house and said outbuildings^ used inconnectiontherewith as
the same were located at the time of the execution of said conveyance,
which^ said acre^ as__near as^can_bejietermijied f rom. the_testunony,_ is
boundecT as follows : Beginning at a point where the east boundary
line of the southwest quarter of the southwest quarter of section nine
(9), town thirty (30), range six (6), intersects with the highway on the
south side of said land; thence west along the said highway sixteen
rods ; thence, at right angles, north ten rods, to the said east bound-
ary line of said land ; thence at right angles south to the place of begin-
ning.
"(2) That plaintiff is entitled to judgrnent as prayed_for in the_copi-
plaint, except that said judgment should provide only for a salejof
the west half of the southwest quarter of said section nine (9), ex-
cepting one acre irom the southeast corner thereof, described as afore-
sajd."
The plaintiff excepted to the conclusions of law, but took no excep-
tions to the findings of fact. The learned counsel for the appellant
assigns two errors: (F'irst^hat it was. error to permit the defendant
Rose Medley to introduce any evidence under her answer, on the
ground that it does not state facts constituting a defense to the plain-
tiff's action, or to any part thereof ; tsecon3^>hat the court erred in
permitting parol_f'^'idpnf^_to^id in constTuTng the deed given by the
said defendant tgjjer son. He also assigns as error the allowance of
costs to the respondent.
The first objection, that the answer does not constitute a defpnsp^o
the plaintiff's action, or any part thereof^annot be sustained under
the rule established by this court in Wickes v. Lake, 25 Wis. 71 ; Roche
V. Knight, 21 Wis. 324; Newton v. Marshall, 62 Wis. 8, 17, 21 N. W.
803. These cases hold that when the plaintiff, in a foreclosure action,
makes any person defendant, alleging "that he claims to have some in-
terest or lien upon the mortgaged premises or some part thereof, which
lien, if any, has accrued subsequently to the time of said mortgage,"
such defendant may by his answer set up a paramounLxlaim to the
mortgaged premises, or'to some'par't thereof, and that such right may
be~tried~and adjudged in the foreclosure action. This rule is cer-
tamly the~correct rule, and the only way the plaintiff can avoid the trial
of the right of the defendant so brought into court by him, as to his
paramount title, is to discontinue his case as to such defendant so that
he may not be prejudiced by the judgment to be entered in the fore-
closure action. See Hekla F. Ins. Co. v. Morrison, 56 Wis. 133, 136,
Ch. 3) THE PROPERTY CONVEYED 399
14 N. W. 12. As the plaintiff did not offer to discontinue his action as
to the respondent_after she had filed her answer setting up her para-
mounjUtle^ he cannot now object to the trial of her right. He in fact
admitted her right, and offered to take judgment recognizmg her right
to the acre excepted in her deed, but insisted_thatthe^ excepted acre
should^ejn tlie. form of a square. He therefore waived his objection
to her asserting a right paramount to his mortgage, and insisted in
binding her to take the excepted acre in the shape which he claimed
was^ven to her by the law under her deed.
The learned counsel also insist that the court erred in permitting
respondent to introduce parol evidence of the situation of her build-
ings in the southeast corner of said west half of the southwest quar-
ter, mentioned in her deed to her son, for the purpose of locating
the acre of land so excepted from her deed; the claim being that the
exception in the deed is the exception of an acre in the southeast corner
in the form of a square, and that paj;^evjdence is inadmissible tQ.show
that any other form was intended by the parties. The rule con-
tended for by the learned counsel is undoubtedly the correct rule when
there is nothing else in the deed which calls for a different form. But
the rule does not apply to q £as£_khen the exception is of a certain
quantity of land, and the exception, from the tract described in the
conveyance, refers to other objects than mere locality. It is not de-
nied by the learned counsel that, if the exlreption" Had been of one
acre in the southeast corner of the tract conveyed, including the gran-
tor's dwelling-house situated thereon, that evidence would not be admis-
sible to show that one acre in a square form would not cover the
dwelling-house, and that in such case the bounds of the acre should
be so located as to include the dwelling-house, if this could be done,
and still locate the acre on the southeast corner of the tract conveyed.
The surroundings and the objects on the ground would control the
shape of the acre, which, in the absence of such surroundings and
objects called for in_the ^[^ed^ j:he law wouM conslrue _to„rriean„a
square acre. In such case there is no mistake in the description, which,
if corrected at all, must be corrected in an action brought for that
purpose. It is a mere question of the location of the tract excepted
in the conveyance.
But the learned counsel insists that an acre in a square form wall
cover all the material calls for boundary mentioned in the deed, be-
cause the evidence shows that an acre, in a square form, will include
some of the buildings of the defendant situate in the southeast corner
of the land described in the deed. That fact we do not think meets
the call for the buildings evidently intended by the parties to the deed.
Such acre would not include the defendant's dwelling-house, which
was evidently far the most valuable building situate on the southeast
corner of the land described in the. HppH ; and that fact, with the,
other evidence introduced, raises a fair presumption that t^^^ hm'M-
400 DERIVATIVE TITLES . (Part 2
ing, of all others, was^theone intended_by the parties as one of the
ouildings_which they intended the excepted acre should include.
It is true that the description of the excepted acre in the conveyance
from the mother to the son is not as particular and specific as it should
have been, but, under the evidence showing that at the time the con-
veyance was made the grantor owned an adjoining eighty acres, and
that her dwelling-house and outhouses were situate on the eighty
acres conveyed to her son, that these houses constituted her home at
the time, and that after the execution of the deed she remained in the
occupation of her dwelling and outhouses as she had' done before
claiming to own the same, strong1y_t£nd-tQ._show that _such__d well ing-
house_and other buildings were situate on the acre excepted in-llie
conveyance to her son ; and as an acre of land can be laid off in the
southeast corner of the tract described in the conveyance in a conven-
ient and useful form, so as to include the buildings, it seems to us that
the court properly directed that it sEoulHjBe~so laid oft' and bounded.
Thevvords m the'H^e"s'crTptibn are general, and not specific, and, in the
absence of anything indicating a dift'erent boundary, the law would
determine that the acre should be a square; but^ when there is any-
thing Jnth^ description wWcTi' would not be complied with by mak-
ing the acre a square, then the question as to what was TntencTed by
the parlies by the words used is to be determined by the surrounding
circumstances. In such case there is a latent ambiguity on the face
of the deed when applied to the facts existing at the time the convey-
ance was executed, and the intent of the parties in such case becomes
a question of fact, and not one^of lawT^nSe^eterniJned alone by^jjie
mere words used in^the conveyance.
The rule applicable to this case is well stated in Dunn v. English,
. 23 N. J. Law, 126, 128. In that case the court say: "Thejconstruction
■\ tk ^ I of the grant must, be favorable, and asnear the mind and i^^j^fltiLg" "^
v/"^^ # * / the parties as the rules ol law will adm^ and to ascertain thisjntention
(^/r parol evidence may be resorted to, not to cont^dicf omarv the words of
A^ the grant, but to show from the situation and condition of the subject-
mattcr wliat meaning the parties attached to .the words used..especial-
ly in matters of dcscriiition." The rule above stated was recognized
and approved by this court in the opinion of the late learned Chief
Justice Ryan in the case of Lyman v. Babcock, 40 Wis. 512. See, also,
Ganson v. Madigan, 15 Wis. 144, 82 Am. Dec. 659; Prentiss v. Brewer,
17 Wis. 635, 86 Am. Dec. 730; RockweU v. Mut. L. Ins. Co., 21 Wis.
548 ; and Sawyer v. Dodge Co. Mut. Ins. Co., ZJ Wis. 503. This rule
is peculiarly applicable to the case at bar. The parol evidence was
oft'ered to__show what the intention of the Barties_waS-as to the land ex-
cepted from the deed f rom tBernpther . to the son. It does_not c^nti;a;^
diet the langiaage ysedin jhe.iieedjjL)Ut tends to explain its meaning as
intended_by the £arties_at the^ time^ The fact that the respondent
IivecI7 at the time the conveyance to her son was made, in the southeast
corner of the eighty acres described in the deed, that she had no other
A
I
Ch. 3) THE PROPERTY CONVEYED 401
home, and owned a farm adjoining, explains what was intended by the
use of the words in the deed, "together with the buildings thereon,"
and it overcomes^the general presumption that, witlioutanyexplana-
tion, an acre, in the southeast corner of the_Xaild_c(m\^ey^ed, jnust be
construed to_rriean a square acre. We think there was no error in
permitting the introduction of the parol evidence allowed on the
trial. ^ :i= * *
By the Court. The jndp^ment ^f the, circuit court is affirmed.
MOREHEAD v. HALL.
(Supreme Court of North Carolina, 1900. 126 N. C. 21.3, 3.5 S. E. 428.)
Montgomery, J. This is an action for the recovery of tlie pns-
sessionjof a tract of l^nd. On the trial the plaintiff introduced a chain
of paper-title, beginning with a grant to John Benthall, dated October
30, 1765, and concluding with a deed from- Joseph A. Perry to John
M. Morehead, the plaintiffs being his heirs-at-law. dated July 17,
1856, and testimony gomg to show that the locus in quo was covered
by the descriptions in the conveyances, and that David B. Hall, one
of the defendants, was in possession of the land at and before the com-
mencement of the action.
There was no objection entered to any of the evidence, and at its
conclusion, as stated in the case on appeal, "the defendants jointly de-
murred to the evidence, and moved to dismiss the action under the
Act of 1897." The motion was allowed, and the plaintiffs appealed.
In each of the muniments of title, the whole of the land described in
the complaint was conveyed, except that in one of the deeds, the
one from Mary Bell and others, the heirs-at-law of David Bell, to H.
G. Cutler, the land was described as "a certain piece of land in the
f ojk of Newport.-Oii..the north side of the Southwest branch, adjoin-
ing the lands of William C. Wallace, deceased, and others, it being
one-half of a tract of land gi\-en by Malachi Bell, Sr.,_to^his son David
Bell, as will more f.iLUy appear by reference to the will of Malachi Bell
to David Bell, containing 200 acres more or less."
The counsel of the defendants contended here, as to the construc-
tion of that deed, first, that nothing was conveyed therein because of
a totally defective description of a particular portion of the 200-acre
tract, which was attempted to be conveyed; and second, that even
conceding tHat^tHere was conveyed in the deed a one-half undivided
interest in the 200-acre tract, yet the plaintiff's could recover n^ part of
the land, for the reason that they did not show on the trial who were
the owners of the other half of the tract in order that a judgment
mjght be rendered for them, and the plaintiffs as tenants in common.
3 The portion of the opinion relating to the matter of costs is omitted. -
Aig.Pkop.— 26
402 DERIVATIVE TITLES (Part 2
We think that the contention in neither of its forms can be sus-
tained. We are without a decision on the first point in our Reports,
nor have we been able, after a dihgent research, to find much in the
Reports of the courts of other States, and so we are left to ad^pta
construction of the deed, as best_we may, from the lightof reason.
We are ot the^opmion that there was conveyed in the deed~a one~^'half
undivided interest in the 200 acres. Some confusion, it is true, has
ariien out of the use of the words "a certain piece of land," but there
was no attempt to describe that "certain piece" by metes arid bounds,
or by any other definite description. If such an attempt, that is, an
attempt to convey a specific number of acres, by survey or by metes
and bounds, had been made, and the boundaries and description had
been fatally defective, then nothing would have been conveyed, for
such an attempted description would have shown in its own terms
that an undivided interest had not been attenjpted to be conveyed.
The deed on its face conveys only a part, one-half of a well-descriiied
tract, and makes_np pretense to describe the particular part conveyed,
we see no reason why the deed should not be construed as con-
*.*-'' Iveymg a one-half undivided interest in the land. That view is sup-
XA'^ ,,\ Iported by the opinion in Grogan v7 Vache, 45 J!lal. 610. But in Gibbs
( Ifi^ V. Swift, 12 Gush. (Mass.) 393; Jackson v. Livingston, 7 Wend. (N.
nl^iM' Y.) 136, and L. I. Railroad Co. v. Conklin, 29 N. Y. 572," a contrary
I doctrine is held, that is, tliat even if there 'was an attemptto convey
a given part of a larger tract of land, ancTthe deed„should fail to lo-
cate the quantity by a sufficient dp<;rriptinn^ ypt^ upon thp dpHvpry--nf
-j^' thejdeed, the_£rantee would become tlie owner, tenant m common \yith
\£f hjs__grantor. We adopt the other construction because we think it
^ the more reasonable, and more m conformity with the trejTd_of_our
decisions on the questions xiI_boundary and description. Either con-
struction, however, is against the defendants' contention." * * *
New trial. ^JU^<i-^J:-*^ ^^>^ ^>i-0^ ,
HOBAN V. CABLE. ^^^^-^^ f^^ '
(Supreme Court of Michigan, 1S94. 102 Mich. 206, 60 N. W. 466.)
Montgomery, J.^ This is an action of ejectment. The trial was had
before a jury, and a verdict rendered for the plaintiff. The defendant
brings error. The assignments of error are numerous, but have been
carefully grouped by the appellant's counsel, so that the questions may
be dealt with under a few heads. The diagram on the following page
will furnish an aid to an understanding of the points involved.
The record contains the substance of all the testimony, from which
it appears that plaintiff derived title from thejieirsj)j^ I^une„McLeod,
to whom a conveyance was made by Eliza R.^lcLeod^in 1862. Eli^a
If » ^ * So also in Cullen v. Sprigg, 83 Cal. 56, 23 Pac. 222 (1S90).
/j / iy^' 5 The balance of the opinion relating to other points is omitted.
f\ ^ ® Portions of the opinion relating to other matters are omitted.
a
$t
Ch.3)
N
THE PROPERTY CONVEYED
403
R. McLeod being then in possession, and the apparent owner. The
d e f endant claims title by adverse possession, and also claims that-by
a subsequent conveyance to him by Eliza R. McLeod of lot No. _293
the title passed to him, and in this connection contends that the deed
to Laurie IMcLeod contained no sufficient description of any prop-
erty, and that the record of the deed was, therefore, no notice to him
of any right in Laurie McLeod. * * *
As the deed to Laurie McLeod was first recorded, and as defendant
claims it in fact read when executed, the description of the land was
as follows:
"Beginning on Market street, between the lot hereby intended to be
conveyed and a lot confirmed by the government of the United States
404 DERIVATIVE TITLES (Part 2
to Ambrose R. Davenport; tlience north, 62 degrees 15 minutes west,
158.96 feet; thence south, 31 degrees west, 60 feet; thence south, 62
degrees 15 minutes west, 158.96 feet, to Market street; thence along
said street north, 27 .''^degrees 55 minutes east, to the place of begin-
ning." • e. '^■-' "
Was this a sufficient descriptiont_OjLjguist_the deedJb-e-ireated_as a
nullity ? The starting point is definite. The first hne, to point "b,"
is also certain, as. is the line between points "b" and "c." But, if
the direction of the next line is followed as given in the instrument,
the terminus is at "e," and tlie line named in the succeeding portion
of the description would end at "f." But the course given after reach-
ing point "c" is not the only means of identification adopHdT" ThaCline
is_described as_tenninating at Market street. If we exclude the words
indicative of the direction of the line, and carry the line in the most
direct course to Market street, we have not only a line answering to
the other terms of the deed, but one which, with its extension, incloses
something, which is, by the terms of the deed, "a. lot intended to be
conveyed," and which, to answer the terms of the portion of the de-
scription relating to the starting point, must lie next to "a lot confirmed
by the government of the United States to Ambrose R. Davenport."
To_niakethis clearer, the deed contains the statement that from the
terminus of the third llnenamed in the description the boundary shall
extend along_Market~street_to the place of beginning. We think the
intent of the grantor is clear, and that the deed is not a nullity for
want of a sufficient description_;__See Anderson v. Baughman, '7 Mich.
69774 Am. Dec. 699 ; CoopeTvrBigly, 13 Mich. 463 ; D wight v. Tyler,
i:, 49 Mich. 614, 14 N. W. 567.
•' A number of defendant's points depend upon this, and it becomes
unnecessary to treat in detail some of his assignments of error. . The
deed be.irg -^^^Ij^j to convey the laod^the recoiul-was notice to subse-
•^ quent purchasers.
One of the conveyances under which plaintiff claims contained a
description as follows:
"A lot 60. feet wide on Market street and 128.90 feet deep, being the
north end ofjot 293 ia_tliejdllag£-xif ^laddnac."
This is claimed to be insufficient, but we tUink there is no mistakmg
the land intended to_b£. rnnvpyed * * *
We think no error to the prejudice of defendant was committed.
The judgment will be affirmed, with costs, and the case remanded.'^
■t See Newbold v. Condon, 104 Md. 100, 64 Atl. 356 (1906) ; Whitaker v. Posteu,
120 Tenu. 207, 110 S. W. 1019 (190S) ; Peoria Gas & Electric Co. v. Dunbar,
234 111. 502, S5 N. E. 229 (190S) ; Nicolin v. Sclmeiderhau, 37 Minn. 63, 33 N.
W. 33 (1SS7I ; Mellor v. Walmesley, [19041 2 Cb. 525.
A deed contained tbe following calls: "Beginning on the southeast bank of
Toe river, two rods below the mill house, and runs west, north, east, and south.
to the beginning, so as to include the mill and site and two acres of land, it
being and i Deluding the land sold as the excess of the homestead of A. Wise-
muu." The laud contaiuediii_the>- calls given did not include the sawmill, nor
Ch. 3) THE PROPERTY CONVEYED 405
WHITEHEAD V. RAGAN.
(Supreme Court of Missouri, 1891. 106 Mo. 2.31, 17 S. W. .307.)
MacfarlanE, J. The contest in this case is overjhe location of the
division line between lots 1 and 4 of Kritzer and Ragan's subdivision
of a part of the east half of the northwest quarter of section 21. to:yvn-
ship 49, range 33.
About the year 1870 defendant, Mary Ragan, and one Virginia
Kritzer, being the owners of the whole tract, had it subdivided into
seyen lots numbered from 1 to 7. A plat of the subdiYi.sion was made
and recorded. The dimensions of each lot and the area were marked
on the plat. Lot 1 is designated on the plat as a parallelogram, eleven
and thirteen hundredths chains north and south, five and thirty-four
hundredths chains east and west, containing five and ninety-four hun-
dredths acres. This lot lay in the northwest corner of the tract. Lot 4
lay south oi and adjoining lot 1, but extending six and sixty-six hun-
dredths chains further east. The north and south line on the west
side of lot 4 as marked on the plat was eight and seventeen hundredths
chains, and the lot contained twelve and ninety-two hundredths acres.
On the first day of September, 1870, defen(iant_conveyed, by guit-
claim deed, to. Virginia Kritzer, all her interest in lots 1, 5 and 6, reclt-
ing in the deed that lot 1 contained five and ninety-four hundredths
acres, "as will appear by reference to the recorded plat of said sub-
division." March 17, 1885, Virginia Kritzer and husband conveyed to
Larkin and Blackmar, bvyii^^rjai^ty^^dgfid* lot 1 under the following
description: "Lot number 1 in Kritzer and Ragan's subdivision ^fjLhe
east half of the northwest quarter of section Zi, townshipjg^range 33, /, ^X ^- f
containing five and ninety-four hundredths acres more or less, incjud- ^ L^f"
ing thirty feet roadway." '' ^'^ \
April 22, 1886, Larkin and Blackmar conveyed, by warranty deed,
to plaintiff Whitehead, "lofT in Kritzer and Ragan's subdivision in
east half of the northwest quarter, section 21, township 49, range 35, in
Jackson county, Missouri." When he purchased he was not shown
the corners of the lot, but was referred to the plat for quantity, courses
and distances.
At the time of plaintiff's purchase, lots 1 and 4 were included in one
inflnsnrel_ Soon thereafter defendant built an east and west fence, as
she claimed, on the north line of lot 4 for the purpose of a separate in-
closure of that lot. Plaintiff claims that this fence is about thirty-£ve ^^U-^^i^ g^
feet too far north and included that quantity of lot 1. to recover which ^ ___^ ^ ^
this suit is prosecuted.
the gristmill, nor the mill site. B^ut if the first call, "west." were -to be read
"^a^t," the'descnpI'ioD wouldlncItTaeTEe-sawmill. ,arlstmill {ind mill sHS The
com-t'held "west' should he read as "east.' Wiseman v. Green, 127 N. C. 288,
37 S. E. 272 (1900). See also Scates v. Henderson, 44 S. C. 548, 22 S. E. 724
(1895) ; Rushton V. Ilallett, 8 Utah, 277, 30 Pac. 1014 (1892),
a^€U,r^
\
■I TJ^
■B
JU^^
406
DERIVATIVE TITLES
(Part 2
^
An accurate mp^gnrpmpflt of the north and south line of plaintiff's
lot 1, commencing at detendant's fence, shows ^l] j^pr^^^p ■^tinned short-
apre of thirtv-four and fifty-eight hundredths feet as compare^ wijh
Hie "wholeJlength^oQ^^ lot as_ shown on~The j)lat. All the foregoing
facts were shown by plaintiff, and are not disputed.
Defendant offered evidence which tended to prove that, when the
subdivision was made, stones were planted to mark the four corners qf^
1 ot Ij^that, after she conveyed her interest in lot 1 to Kritzer in 1870»
the line between the stones planted for the southwest and soutlieast
corners of lot 1 was adopted by them as the true division line between
lots 1 and4. and was so recognized and used until plaintiff purchased
JQt 1 ; that the north an^south TThes of the subdivision on the west side
were fifty-one feet shorter than was shown by the plat; and that tlae
division fence was on the line so marked, held and' recognized.
The circuit court, upon this evidence, directed ? vprHirt fjnr-plain-
tiff, ^Iru&Jiolding that the courses and distances, indicated _up^n__the
' pfat. ^hpu/cj[ prevail jvvprjjie lines actually s"urveyed and rnrnpr«; f^sjaJj-
h^lTedr^
I. When an authentic plat of a subdivided tract of land is referred
to in a deed conveying a subdivision of such tract, the plat itself, in
legal construction, becomes as much a part of the deed as if it had
been fulJjr'"^'"''poratedln it. Dolde v. Vodicka, 49 Mo. 100; 2 Devlin
on Deeds, § 1022.
II. While the deeds, under which plaintiff claims title to lot 1 in the
subdivision, must be construed as describing the land conveyed as being
of the full length shown by the plat, it does not follow that the particu-
lars of the description contained in the plat are conclusive of the cor-
rectness of such description. The plat is only in^en^^d to bp ^ reprp-
sentation of the actual survey as made upon theland itself. It -is in.
the nature of a certifiedcopy of an instrument which will be controlled
by the original. ISo it is held, "where there are no express calls that
determine a line with certainty, evidence aliunde is admissible to show
where the line was actually run to which the deed refers, or to which
it must have reference ; and its location so fixed, by extrinsic evidence,
will control the courses and distances named in the deed or in the
survey. The right to prove the true line of the survey to which the
deed refers, and which it follows, does not depend upon the rules ap-
plicable to ambiguities in written instruments. * * * It is not a
question of ccmstru(;:tion but a question oi_£a.ct." Kronenberger v.
^ffner, 44 Mo. 185 So in Dolde v. Vodicka, 49 Mo. 98, the court
says: "Had this (lot) been so staked out in the original survey, there
would be no difficulty, fo.r the division of the lines of the lots would
then have been actually located, and the location must govern."
It is a well-settled rule of construction that kgaaLU .and fi^ed monu-
rnents will control though they conflict with the courses and distances
called for in the deed. Myers v. St. Louis. 82 Mo.. 373; Orrick v.
Bower, 29 Mo. 210; Gray v. Temple, 35 Mo. 494; 3 Wash. Real Prop.
Ch. 3) THE PROPERTY CONVEYED 407
(4th Ed.) 405. While natural monuments are regarded of higher value
in determining boundaries than artificial ones, the latter will also con-
trol courses and distances. "The order of applying descriptions of
boundaries is, first, to natural objects ; second, to artificial marks ;
third, to courses and distances given in the deed." 3 Wash. Keal Prop.
(4tl7^(l.)""405.
If the line between lots 1 and 4 was located, upon the land when
surveyed and subdivided, and can now be ascertained and determined, v/^
that line will constitute the true division line between the lots though it
CQnfl'Ct^Yif4-litJ,;iS.dp'^^^'Pti"" p^iv^" J" the i^lat.
Where the boundary line was actually located was a question for the
jury, the evidence tending to prove a conflict between the calls in the
deeds and plat, and the survey as located on the land. The court com-
mitted error in directing a verdict for plaintiff, and in refusing to sub-
mit the issue of fact to the jury. --^~-
Reversed and remanded. All concur.* ( T'*^ ^^>C^^' J
LERNED V. MORRILL.
(Supreme Court of New Hampshire, 1820. 2 N. H. 197.)
This was a writ of entrv. in which the demandant counted upon his
own^seisin within twenty years and upon a disseisin by the tenant.
The^ause was tried here at April term, 1819, upon the general issue,
when a verdict was takeii_XQrJli£_d£mtmdant. subject to the opinion of
the court, upon the following facts.
Th^ tenan^.^l^v deed dated March 8, 1806, conveyed to the demandant
a tract of l^nH rjescribed in the deed as follows: "Being the westerly
part of lot No. 2, and contaJnin^^SOacres, beginning at the north-west
corner on Boscawen line; then south by Lerned's land to Contoocook
river to a poplar tree, thence by said river to a stake and stones, thence
northwardly a parallel line with the side line of said lot to a stake
and stones on Boscawen line, thence on said Boscawen line to the
bound first mentioned." The stakes and stones mentioned in the deed
were not erected at the time of making the deed ; but about eighteen
months afterguards, the parties went upon the premises with a sur-
veyor and chain-men to run out and locate the land, and they erected
the stakes and stones at the north-east and south-east corners of the
premises. The parties first measured the whole lot, divided it in the,
middle, anrl then mf^asnred off ten acres from the east half and adjoin-
ing the west half, and set up stakes and stones at the north-east and
south-easj^^prnprt; f)f thp bnr) sn mensured p ff , and run the Ime from
one stake and ^tgpes tn the other and set up stakes and stones at every
tally. The tenant immediately cleared his land up to the line and built
8 See in accord Cit.v of Decatur v. Niedenneyer, 16S 111. 68, 48 N. E. 72 (1897) ;
Olson V. Seattle, 30 Wash. 687, 71 Pae. 201 (1003).
408
DERIVATIVE TITLES
(Part 2
a fence upon it. The demandant also built
on the line.
ajnd the parties occupied and improved the land on each side of ihat
line till 1817. It was proved that the tenant said the demandant bought
ten acres more than half the lot. In the fall oi 1817, the defendant
surveyed the lot and finding that the demandant lia(Liiinrp tlian ejpjijy
acres, removed the fence, and yyent into possession of all but ei^htv
acres_, and this action is brought to recover the land, of which the ten-
.^nt thus took possession.
Pp;r Curiam. The question presented to us in this case for decision,
has long been settled, and must now be considered as entirely at rest.
AA/Kpt^ land Vf^^A^eenj^rmvfypclhiLui^^ anH_HTP^ descri plioiLoi Jjie la n d
indTe_dee^!_has_refejrerice to monument^not actually in exi^tence^
tTietime, but to be erected by the parties at a subsequent period : ■\vhgn
the pai tics liave-xmce-Leen upon the land and deliberately prprtprj" tl^
monuments, they will be as much bound bv them, as if they^had-b£en
erected before the deed was made. In this case, there was a reference
in the deed to monuments not actually existing at the time, but the
parties soon after went upon the land with a surveyor, run it out, erect-
ed monuments, and built their fences accordingly; and this is not all.
T^ev respectivelv pccupied the land according to the line thus estab-
lished, for nearly ten years. And there is now no evidence in this case
of any mistake or misapprehension in establishing the line. There_is
no^ pretence that the tenant _could lawfully remov^__moiuiments tlius
deliberately erected_and so long^ acquiesced in.
His claim to the demanded premises, for ought that appears in this
case, is without any foundation whatever, and there must be judgment
for the demandant." f ^jui^. ^"^^ <■»*'* ^ )
h/appjL4jL< BURKHOLDER V. MARKLEY.
Y- ,^ ,, ^ , . ,- . (Supreme Court of Pennsylvania, ISSl. 9S Pa. 37.)
Error to the Court of Common Pleas of Lancaster county; of May
Term, 1881, No. 74.
Trespass vi et armis, quare clausum f regit, by Jacob Markley against
M. J. Burkholder, for entering on tlie^aTntiff s land aijdigarinzjlewn
a fence. Plea not guilty, and liberum tenementum.
""On tHe trial, before Livingston, P. J., the following facts appeared :
The plaintiff and the defendantwere owners of adjoining tracts of
land, file location of the division line between which \yas the subject of
this dispule! "Both clamied~IifTe by niesne jconve^iauces from vSamuel
Mbyen The descriptions in all the deeds, under which both parties
claimed contained, inter alia, the following courses "STid distances :
"Thence by other land of said Samuel Moyer, north, seventy-five de-
grees west, three perches and four-tenths, to a post, thence by the same
9 Makepeace v. Bancroft, 12 Mass. 469 (1815), ace. Cf. Cleavelaud v. Flagg, 4
Cush. (Mass.) 76 (1849) ; Miles v. Barrows, 122 Mass. 579 (1S77).
L^c (L{_
Ch. 3) ' THE PROPERTY CONVEYED 409
north nineteen degrees east, tzventy-tJir.ce perches and five-tenths, to a
stone in said road," etc. The part in italics i'^ the division line in dis-
pute. This was a straig^ht line, upon or near to which a fence was
erected prior to the time of the conveyances from Moyer, and which
had remained standing until a portion of it was torn down by the de-
fendant. It wasjiotj however, alleged in the narr. to be a line fence.
Upon a recent survev of the Burkholder tract, it was found that the
line aTTTescnbed in the deeds runs through the corner of a shed aiiiL£;s-
ed to a hotel buildmg- on the land of Rurkhnlder, both of which build-
ings had been erected by Moj^^er.
The defendant offered to prove by Isaac Gingrich, his predecessor
in title and the immediate grantee from Moyer of the defendant's
tract, that by theagreement of purrha'^p het^/ppn l]ipiself and Mover
the hoteTand shed wp'rp"vv]-|n11y npnn thp trart purchased bv him, ^^nd
the boundary line in question was fixed uj}on the ground by Mo\-cr and'
J-o,
hjmself from twelve to eighteen inches outside the said shed, so that
the water falling from the roof of the shed would fall upon Gingrich's
(n|p^efendant's) land; that the end of the said line. ^,^ then run hv
tli^iir'
th^^urvevor on the p|-round, was marked hyastake and not a stone;
and that the line, as subsequentlv described in the deeds, djljers from
that line as so tixed and marked on the ground. Objected to; obiec-
tion sustained and offer rejected; exception.
The defendant also offered in evidence the deposition of Samuel
Moyer and the court, upon objection, ruled out the portions of it which
corroborated the facts stated in the above offer.
Verdid:. guilty ; damages assessed a^$25, and judgment thereon. "'"'V'
The defendant took thi'^ y/rit nf prfnr^ assio-nin°^ for error the rejection "
oj said offer, and of the portions of the deposition.
Trunkey, J. Samuel Moyer, by deed dated April 10th, 1865, con-
veyed part of a tractj)f iand^ to Isaac Gingrkh^jylTose title has been
vested in Burkholder. On the lOtli of May following, Moyer convey-
ed another part"o£said tracjto David ^ber, wjiich part is now vested / A
in Markley.^ The~line betw'een tli'ese parcels, being the one in dispute, I /V^-**-/^
is described in the deeds as running from a post north nineteen de-
g^;ees_ea^Jweiit^rtl\ree_£grpiLes.And fiyert^
Both parties agree that this is a straight line. They also agree that a
shed, built before Moyer conveyed, is still standing where it did at the
time of the conveyances. Markley .claims .that, the Hjne, ascertained
from the courses and disiances jet put in the deeds, passes thro^h
that^shed_so that a portion of it is on his land. Burkholder claims that
after Moyer had orally agreed to sell to Gingrich, and before he made
tfie deed to him, there was an actual survey, that the line ran from a
post direct to a stake, not jess than twelve nor more than eighteen ^ ^
inrhe.s from the .shed, and thnt the land was sold and bought by The OjPji^^^,^
parties with reference to said line,. If Durkholder s clann be true, then,
so far as tlie courses and distances in the deeds show" a line differmg
Jfi^
dUjJf-((lSi
410 DERIVATIVE TITLES (Part 2
The lines run and marked on the ground are the true survey^ and
when they can be found will control the calls for a natural or other
fixed boundary ; and also constitute the boundariesln]lhe ^rant^wSEre
they dlTFEflrom those produced b^_the_cgurses and distances stated in
the patent. This weli-settled rule in cases oi lands granted by the com-
monwealth, applies to grants by individuals. Blasdell v. Bissell, 6 Pa.
258; Craft v. Yeaney, 66 Pa. 210. In Craft v. Yeaney the testimony
of the original grantor was received, the court below saying, "while it
is true the deed cannot be changed, or construed, or affected by parol,
it is._,competent to prove oiitside the deed that the calls in the deed are
not on the ground, or that a line or boundary called for in the deed is jn
a different place from that contracted for by the parties, or that what
is caTTed tjie eastern line of warrant No. 4019 is not at the place sold
and Ijouglit to." Ag^d that was held .not_tp^b^.£i]:£^r.
Where a deed was for fifty acres of land, the quantity intended by
both parties, described by existing lines on three sides, and called for
a south "line to be run so far south from the north line, and parallel
therewith, as to include fifty acres of land," it was held compej^nUto
prove that the line agreed upon by the parties as the south line was__a
fence, thoUghTt differed from the onjg^produced by the description ip
the deed. THe"~gTantee objected to the deed because she did not know
that fifty acres would run to the fence, but the grantor assured her
that fifty acres would reach the fence, that the deed embraced it, and
she accepted the deed. I^was said to be of no consequence whether
the grantor was aware that he was making a misrepresentation^Jj^y
it the grantee did what she woumiot h"ave~done and was_iniured.
fiartle v. Vosbury, 3 Grant, Cas. 277. That decision rests on th_e prin-
it
a line on theground. fixed by the parties as the one sold and
bought to. controT^aTT^raTstances stated in the deed, wherever there
,^,^:^
is fraud or ~mislakg. The cases enforcing and illustrating the applica-
tion of this principle are numerous ; it would be idle to cite additional.
It may frequently occur that the location of a line, which was-asreed
upon, cannot be dete^rnnned for want of evidence. In such case_.the
location is settled by the deed. The lines produced by the calls, courses
and distances IrT the deed, are taken as correct, unless there be prooj
oTa different line on the ground, which the grantor and grantee ^^g^d
At the trial of this case considerable evidence was rightly. jceggivgd,
tending to showtliat the parties fixed a line at the time of the sale, and
its location on the ground. Otherj)ertinent and material evideri(;:£_iQr
the ^ame purpose was^^rejected. and for this the judgment must be
reversed. ~We"are of opinion that all of the offers of testimony, set
forth in the several assignments of error, should have been admitted.
Judgment reversed, and venire facias de novo awarded.^"
10 See Emery v. Fowler, 38 Me. 99 (1854) : Baxter v. Wilson, 95 N. O. 137
(1886) ; Kashman v. Parsons, 70 Conn. 295, 39 Atl. 179 (189S).
Ch.3)
THE PROPERTY CONVEYED
411
HALL V. EATON.
(Supreme Judicial Court of Massachusetts, 1885. 139 Mass. 217, 29 N. E. 6(50.)
Writ of Entry to recover a loLPLllQdJn„the_dt)L.QLWcuxester^
Plea, nul disseisin. Trial in the Superior Court, without a jury, be-
fore Blodgett, J., who allowed a bill of exceptions, in substance as fol-
lows :
The land in dispute was ^ triangular tract on the northerly ^de^ of
Dix Street, marked on a plan used at the trial, a copy pjwhjgJL is
printed in the margin, as "Demanded Premises." It appeared that all
the land lying next northerly of Dix Street and between Wachusett
Street on the east and Gouldincr Street on the west was_formerly own-
ed by Henry Goulding, and was divided into lots and sold byjiis- ex-
ecutors. The tenants' Jal was at the corner of Dix Street and Wa-
chusett Street, and tne denj^ndant's lot was part of the lot next west-
erly^ and tlT£ question was'as to the westerly boundarv of the tenant
lot and the easterly boundary of the demandant's lot, under the follov
ing deeds
On February 20, 1869, Gouldin^'s executors conveyed the corner lot
to Blackmer and Kellev. (under whom the tenants derive their title,)
by the following description : "A. certain lot of land situated in the cit
of Worcester, on the westerly side of Wachusett Street and northerly
side of Dix Street, bounded and described as follows, to wit : begin
ning at the southeasterly corner of the lot conveyed, and at the inter-
section of, said streets ; thence running northerly by Wachusett Street
one hundred and thirty-four feet, to land of the heirs of Henry Gould-
ing; thence running westerly by land of the heirs of said Goulding,
sixty feet; thence running southerly by land of said heirs aL ri_£ht
itherly by land of said heirs at rigl'
hundred and twenty-fiye feet to Di
angles to said Dix Street one hundred and twenty
(^t^pT^iT^pr./^ nipnincr easterly bv Dix Street si vty-one feet more or
less to the first-mentioned bound rontainingr 7770 feet more or less."
On October 8, 1869, said executors conyeyed the residue of the land
411
DERIVATIVE TITLES
(Part 2
h(^^w,g^rij_hp tprmnt«^' 1n( and Gouldino^ .Strept tn nne Kiri?T. by a deed
•which contained the foUowinig description : "Lot of land on the north-
erly side ot Uix SFreet, bounded as follows : beginning at the south-
easterly corner of the lot at a corner of land of Kelley and Bla^kjQier
ind running westerly on Dix Street one hundred and eightv^^^ to a
new street about to be made : thence turning and runnnig northerly on
said new street one hundred and twelve and a half feet, to land belong-
ing to the estate of the late Henry Goulding; thence turning and run-
ning easterly on said Goulding estate one hundred and eighty feet, to
land of Kelley and Blackmer ; thence turning and running southerly on
land of said Kelley and Blackmer one hundred and twenty-five feet,
to tlie place of beginning on said Dix Street.
It was agreed that the r[^\v afreet referred fn \vas Gjg^ldinp^ Street.
and\he corner of~Goulding Street and Dix Street was a known and
.fix"e3rbound.
m^Jm On May 8, 1871, King conveyed to the dernandant a pnrt of said Lnf.
[^^ fortv-five feet wide on T)ix Str-eet. hounded as Follows T "Beginning at
the~sbiftheasterly corner thereof at corner of land of Kelley and Black-
mer, and at^ a point one hundred and eighty feet distant from the ea^t-
e.rlv line of Goulding Street, thence northerly on land of Kelley and
\ Blackmer one hundred and twenty-five feet, to land of the estate of
I Henry Goulding; thence westerly on said land of Goulding forty-five
feet ; thence southerly and parallel with the first-described line one Ixun-
I dred and twenty-five feet more or less, to said Dix Street ;^hence eagt-
^ (^r]y on Dix Street forty-five feet, to the place of beginning."
The corner of Dix Street and Wachusett Street was a known and
fixed bound, and the northerljj line of Dix Street was a known and
^xed line.
'J
If the thij^^m^described in the deed of the executo_rs. to Blackrner
and Kelley is drawn at rio^ht an.jgles to Dix Street, it strikes a
^^-^^ _^ ^_
ic/hT ^^^O^'JU Dix Street eighty feet and fifty-two one-hundredths of a foot from
Imj y^Aa^**-*'"^ Wachusett Street, and one hundred and sixty-one feet and ninetv-four
ij^f^ one-hundredths of a foot from Goulding Street. In such case, the ten-
\ ^ ants' line on Dix_Street is ..eighty feet_and fifty-two one-hunclr'e^thg^of
rr^
^
^^</r^
^
a foot in length, and is shown by the westerly dotted line, and theirjot
contains 9101 squarefeet.
If the thiij^jyi^^escribed in said deed to_^lackmer and Kelley__is
drawn so as to strike Dix Street one hundred and eighty feet easterly
from Goulding Street, the tenants' line on Dix Street is sixty feet and a
hal.f in length, and their lot contains exactly 7770 square feet.
The demandant ofifered evidence tending to show that, before the
several lots were sold by the executors of Henry Goulding, they pre-
pared a plan of them, which was produced at the trial ; and it was testi-
fied by one of the pxerntnrg; that the Jots were sold bv^said plan, but
there were no nionuments at the corners of the^c^^— ^^^Iien-the deeds
were given ?m3pere was no e~i(lei-|rp that^ ^Blackmer and Kellev saw
tlie plan beiore they took their deecL Said plan showed the tenants' lot.
Ch. 3) ^- THE PROPERTY CONVEYED 413
to have a line of only sixty feet and a half on DIx Street^ and showed
that the westerly line did not make a right angle with Dix Street.
The demandant also offered evidence tending to show that, in the
year 1876. he erected a fence between his said lot and the tenan1„'^Mnt
(KeJley, who had bought I!lacl<mer's interest, then being; the mvner. of
the te_n ants' lot,)_and by Kellcy's consent it was placed on the line a9>-y , fi ^.^^^
claimed bv the demandant, and remained there several v^^s, and until ^^ "^
removed bv the tenants a short time before this suit was brnno-ht
The demandant asked the judge to rule that it was a question of fact,
on all the evidence, whether the tenants' westerly line was to be drawn
at right angles to Dix Street, and asked a finding in fact that it was to f ^ v/
be drawn at an angle to said Dix Street, so as to strike said street sixty [(jtf^/^^^
and a half feet from Wachusett Street. The judge ruled, as matter_of q^ m ^j^
law.that the said line was to be drawn a^angh^ngle to Dix Street,/y^ >,^
without, regard to the evidence outside of tn^^ea?; ana lound for the ^^ >t«*'-*'*'^
tenants. The demandant alleged exceptioii_s- C^^-y^^^*-^ /^^
W. Allen, J. The courses of the lines on Wachusett Street and
Dix Street are fixed on the land, and fix the angle contained by them.
Th.£££US_.pothing on the_land to fix the course of the second or of the
third Ijne^fqrjt does not appear that the line of the land of the heirs
of Henry Goulding mentioned is fixed. The description in the deed
gives the length of the first, second, and third lines, which there is noth-
ing to control, and the angle contained by the third and fourth lines.
There is go difficultv in locating this description upon the land, and it
makes the length of the fourth line eightv feet and fifty-two one-
tiundredths of a foot, and the contents of the lot 9101 scuare feet. The
description iii The deed gives the length of the fourth line as "si.xty-
one feet more or less," and the contents of the lot as "7770 feet more or
less." Thjs discrepancy of one third in the length of the front line of * "J
the lot, and one fifth in its content-^^ could not have been intended, al- 5<<a>c^ /i.*-*-*^
though the length and dimensions are only approxiniat^ely given, a.nd /^^aM a^^Cu^^
i t__is obvious t,hqt thf-rejs_a. mis{:ake^^ither in the angle given, or in^ the
Ifngth of the fourth line.
We do not regard the statement of tlie quantity of the land as very 7
material. It is the computation of the contents of the figure described
in the deed, but which cannot be produced on the land. The fact that
to give exactly the quantity of land mentioned when the other particu-
lars of the description are applied to the land, the third line must inter-
sect the fourth at an obtuse ano-le. and the fourth line must be sixtv
feet and a half in leno-th, p^oes to show, what is otherwise sufficientlv
apparent, that no such discrepancy in the length was intended. Xhere
was a mistake eitlier m the_imgl£^iven or in the length of the fourth
line- they cannot both be applied to tli£-land. though either of them/' ""^
mayl>e. and the question is which must be rejected. [ "^ )
The question to be determined is theiiitentiori_shown in the languageV^J___,/
of the deed, in the light of the situation of TITe land and the circum- ,
stances of the transaction, and sometimes with the aid of declarations
414
DERIVATIVE TITLES
(Part 2
and conduct of the parties in relation to the subject-matter. The rule,
/^V) ILi that monuments, in a description in a deed, control courses and dis-
%
^
dances, is founded on the consideration that that construction is more
tl vj^.xtr^*'*^ likely to express the intention of the parties.. The intention to run a
-^ line to a fbced^bject is more oDvious, and the parties are less likely to
be mistaken in regard to it than in running a given distance or by a giv-
en course. But, where tjie^circumstances show that the controlling in-
tention was otherwise, the rule is not applied. Davis v. Rainsford, 17
Mass7 207; Parks v. Loomis, 6 Gray, 467; Murdock v. Chapman, 9
Gray, 156. So far as the question is as to the relative effect to be given
to a course and a distance, neither has in itself any advantage over the
other as showing a governing intent. Whether the one in a given_£ase
shall outweigh the other, as showing the intention of the parties, must
depend upon the circumstances existing at the time.
The angle formed byTDix Street and Wachusett Street is an acute
angle ; the lot was a corner lot, the front on Dix Street. In laying it
out, it would be natural either to have the third line in the description
parallel to Wachusett Street, or at a right angle with Dix Street. The
latter is for the advantage of the purchasers. The deed shows that
the parties had that, and not the other, in mind. Not only is the third
line not_said to Jbe_parallel with Wachusett Street, but it ap^ars.-t£at
it "wasnot intended to be. I'he parties understood that the angle at
the corner of the streets was an acute angle, and that making the other
angle on Dix Street a right angle, would require the line on that street
to be longer than the rear line, and they said that the angle should
be a right angle, and therefore that the line should be longer. It was
not merely giving a course to the tliird line, but it was expresslv fixing
the shape of the lot. The length of the fourth hne was left indefinite,
and to be determined by the angle which was fixed. It is true that the
jSfiven angle requires a longer line than was supposed ; but the angle
and the shape of the lot, and not the length of the line, appear to have
been the controlling considerations. See Noble v. Googins, 99 Mass.
231.
It is contended by the plaintiff, that it is a case of latent ambiguity,
which may be explained by parol evidence. If the difference were be-
• — T\. tween a given course of the third Hne and measurement of the fourth,
it might present such a case, but neither is given. The course of the
third line was not run, but it was to intersect Dix Street at ^ right-an-
gle; the fourth line was not measured, but its length was^stimated^nd
apparently estimated as the distance between the point where the third
line must 'meet Dix Street to form a right angle with it_and__th.e first
corner. A mistake was made in the estmiate (^\ the distance. It would
seem that the anglewa^oTnalerTM^~particuTar Th" the description of
the lot, that the expressed intention in regard to it could not be made
doubtful by a mjstake in the estimate of the length of the fourthjine,
which was determined by it ; but it is not necessary to decide this. As,
V the case stood at the trial, and upon the evidence-JifiEered, the cou^t
^i^
^iJ^
Cll. 3) THE PROPERTY CONVEYED 415 O ,^^^^
prop.eiiv ruled t^r^^ ^g ^^\\f^ ^f 1,1^, t1-|^ third line \^^^ fn V»p ^t a right f^f (r^./fiA4^
angle with Dix Street, without reg^nrd to th(^ evidence outside the deed. , , p j
The plaintiff relied upon evidence that the executors of Goulding, ^-"^^ '— <nz«v
before the lot was sold, made a D]^n of this and other lots, by whicli it I a iv
appeared that the fourth line was sixty feet and a half in Icnglh, and
that the ang^le^jormed^ b}' the third line and Dix Street was an obtuse '\j/yi.c/^Jt Vati-
angle. This plan is not referred to in the deed^ and was not seen by the
purchasers. The only effect of this evidence would be to show that tlie
grantors knew that the lot described in the deed did not correspond
with the one on the plan, and did not inform tlie grantees.
Eight_months after the conveyance to Blackmer and Kelley;, the ex-
ecutors conveyed to one King the adjoining lot on Dix Street, extend-
ing westerly to a way to be laid out, called Goulding street, bounding
easterly on the land of Blackmer and Kelley and the line on Dix Street,
and the rear lines being each one hundred and eighty feet in length.
This evidence may tend to show that the executors intended that the
third line of the Blackmer and Kelley lot should be parallel with Gould-
ing Street, but such intention was not known to Blackmer and Kelley,
and was not expressed or indicated in the deed to them. The de-
mandant also relied upon evidence that King afterwards conveyed to $
the demandant alot adjoining Blackmer and Kelley. jjescribed as be- ^
ginning at a corner of their land on Dix Stree^ne hundred and eighty i
feet from Goulding Srreet..and that several years after, and seven years
after tlie conveyance to Blackmer and Kelley, and after Kelley had ac-
quired Blackmer's interest, the demandant put up a fence between his
lot and Kelley's, and, with Kelley's consent, put it on the line now
claimed by the demandant, where it remained for several years.
We do not see that any of this evidence is competent to control the
construction indicated by the deed itself. I.t is not sufficient to show
a. practical construction of the deed by the parties to it, nor an adrnis-
sion bv the tenants' grantor which can bind the tenants, nor a mutual
agreement as to the boundary and occupation accordingly. See Liver-
pool Wharf v. i^'rescott, 7 Allen, 494; Miles v. Barrows, 122 Mass. 579;
Lovejoy v. Lovett, 124 Mass. 270. Whether evidence of the construc-
tion of the deed by the acts of the parties by locating the third line on
the land, or fixing the point of its intersection with Dix Street by a
monument or otherwise, would present a question for the jury, we
need not consider, because the evidence offered was not suffiGient_j:o
show_such acts, nnd <h'° nn^'^t'^n^resented^wasone of law upon the
Q^nstruction of thp rlpprl
A majority of the court are of opinion that the ruling excepted to
was correct.
Exceptions overruled. ^^u *-> *fni t, ^yC^^Ux-f^CJi/y^ .
DERIVATIVE TITLES
(Part 2
TEMPLE V. BENSON.
/
le Jndicinl Court of Massachusetts, 1912. 213 Mass. 128, 100 N. E, Go.)
Fejition, filed Jn the Land Court on September 8, 1910, for the reg-
istration of the _titlej;o certain land on East Quincy Street itl_^JorLh
Adams.
In the Land Court the case was heard by Davis, J. The only issue
at Vie trial was the position of the_sQutherly line of the petitioner's land
as sfhmn on_ the sl<etch on tlie. nexL^page.
In 19^0 one Sylvester A. Kemp owned land which included the locus
nd landShnmediately east and south of it shown on the plan as land
o*f the resptsmdent, and conveyed to one Josiah Tinney the locus and
the^lot east ofot by a deed with the following description: "Situate
nearv, the North village of North Adams, bounded and described as
follows, to wit : Coh^Q^ncing on the squth_side of East Quincy Street,
"^n^r^^llXi^ at the ^22ijlL^i^^ -^"^^^^^^^^°" with Me_chanic Street (itow
Summit Avenue), so_calledjNthence^soutli 12 degrees west on the west
side of a xQntemplated street, sj^rod^ tp_ a stake, and stones ; thence
wester]^ejght'rad^^ail|L of J. MS|Uanedv ; thence northerly on lanas
q^^^^^^TTa^dy and M rs. Porter'^seven'rods to East Quhicy Street;
theiice easterly on the south side of said sheet, about eight and ,ope-
fgurth rpdSj to the place of begin ni,^g."
The same premises were conveyed by four mesne conveyances to
on£ Samuel Vadner, who received them in 1885, all tlie_degiis_£pn-
tajning,jlie~&aine description as that given above.
In 1887 Kemp conveyed to the respondent land south of that previ-
ously described, by a deed containing the following description : "^e-
ginning_on the west side of Summit Avenue, at the southeast corner
of land of Samuel Vadner, running westerly on the south line of said
Vadner's land, ei^ht rods to land of Charles Tower (formerly of L-M-
Canedy) ; thence southerlyon said Tower's land, sixty feet; thence_
easterly eight rods to Summit Avenue, thence northerly on the west
sMe of Summit Avenue, sixty_feet to the place of beginning."
On June 1, 1890, Vadner conveyed to the respondent the lot east of
the locus by a deed with the following description : *'CgnmTencing _at
the northeast, cornerjjf lands of said Benson, on the west side of Sum-
mit Avenue; thencg running northerly on the west line_ of. SuQlHHt
Avenue, about six rods to East Quincy Street ; thence westerly on
East Quincy StreetT sixty feet to stake andstpnes: thence southerly on
Ijne parallel with the first mentioned line, about =i?^ rn'^'=, t^ i?i"d of ^fiid
grantee; thenceeasterly on land of said JJcnson^ sixty feet to pla^£. of
beginmngj.'
In 1894 Vadner conyeyed the locus^^to the petitioner by a deed con-
taining the following description: "Eegmnmg on the gnntVi <;ir1p nf
'East Quincy Street, so called, at a point ot its intersection witJL i^^e-
•chanic Street (now Summit Avenue), so called; thence south twelve
Ch.3)
THE PROPERTY CONVEYED
?
417 jl^ ]
rpf^ <S RODS — Ar"
• JL/NE ACCORDJNG T£/ FkriTlONER*^ Ci.A»)4.
^%--.--
^1^^:^
z
o
2:
ui
CD
lii
Q
UJ
i:
bl
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z:
o
c,
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Tenement^
^ ^«^ ^^^-^ ^^^
Lm^ACCOROmCt to PBTITtOnBR'S C)LAI^^-
degrees west, on the wes^ side of a_contemplated street, six rods to a
stake and stone's^ thencewesterly eighFro^s, to land jormerlx owned
^bAJ^JSlTCanedy : thence northerly on said land and land of Mrs. Por-
ter,> seven rods to said East Quincy Street: thence easterly on the south
AiiS.rKOP. — 27
418
DERIVATIVE TITLES
(Part 2
-g^'
side of said street, about eight and one- fourth rods to place of begin-
ning, except what 1 have sold pfij^taining'tojJtiis lot ^f^ lanid to Fred E.
Bensonrof^'|ap^^;^oil'^]Ailam^ wi^ degHTdated JuneTstT 1890."
"In ISyTTneither^East Quincy Street nor Summit Avenue was a pub-
lic street. Kemp had opened East Quincy Street as a private way.
After 1£79 both^ streets _ffi£re public streets, East Quincy Street being
two rods wide. The bill of exceptions states : "The point of intersec-
tion nf V.^'^f Qm'nry Street, and Mechanic Street, or Summit Avenue,
in J ulXx_lBZQ,^was agreed to as the point m arked on the annexed sKetch ,
at, the northeast corner of the lot at the intersection of ^^'^^ Qninry
Street and Mechanir St^ppt__anH has never been changed and is the
point of intersection of the south line of East Quincy Street and west
line of Summit Avenue, as laid out by the City of North Adams, in
1879."
The westerly boundary line of the locus was fixed by a stone wall
wliich wasjjaraTlel to Summit Avenue.
The petitioner contended that the southerly line of East Quincy
Street as laid out by NorthAdams^wa? in a Hiff^xenLlocation fromjjie
southerly Jin£_of East Qumcy Street as it was understood tn he hpfnre
that time. The respondent contended that that line had not been
changed. Both parties offered evidence in support of their contentions.
The judge ruled as follows, subject to an exception by the respond-
ent : "The description in the petitioner's deed cannot as a physical
matter be Hterally applied in all its details to the ground. If the west-
erly end of the southerly line be taken fi*^ rnntpnrlpfj for by the re-
spondent at a point on the Canedv la^rl Hi'^tant pyartly seven rods frgpj
the southerly line of East Quincy Street, then the southerly line will
exceed eight rods in length. If on the other hand the westerly end of
said southerly line be taken at a point on the Canedy land distant ex-
actly eight rods from its point of departure, on the westerly line of
Summit Avenue, then the westerly line on land of Canedy and Porter
will exceed seven rods in length. * * * I rule that the deed is am-
bigiimisJ'
Subject to an exception by the respondent, the judge admitted in
evidence, "so far as it tended to show the location of East Quincy
Street," a deed by Kemp to one Frost dated in 1872. According to the
description in the deed, the north line of East Quincy Street extended
over the east side of Summit Avenue and ran south 79 degrees east,
and the street was three rods wide through the land of Porter.
Subject to afurther exceptionby the respondent, the judge allowed
TinneyTcalled^y the petitioner, to testlty^^ "that atlhe time he bo^ht
hisHand, previouslxld£Scribed, from Kemp and before the deed was
drawn, he went on the ground with Kemp ; tliat they began at the north-
east corner of the lot he was to buy, at the corner of Summit Avenue
and East Quincy Street, and measured south on Surrtmit Avenue, six
rods ; that from there they turned a right angle, because Kemp stated
he wanted 'to measure at right angles so thai all the lots would come
Ch. 3) THE PROPERTY CONVEYED 419
square,' and measured eight rods to the old stone wall on.Canedy land;
that they then measured_.dQ\yn the line of Canedy iand-sevea rods and
stopped there, in nrHp]-, Kpmp c;nir1 to leave room for a street, Kemp
stating he mi^ht throw the street to the north or to the south, and
that he would deed by the street so that if the street went to the north
Tmney would be the gainer ; that the measurements stopped about one
rod" short of the nearest wheel track, and tliat two or three days later
the deed was drawn, ex ecuted_and^ delivered."
The jud^efoun4^_forthe_pet^^ the respondent alleged ex-
ceptions.
BralEy, J. The petitioner by mesne conveyances and the respond- _
ent by direct grant derive title to their respective lands which are con-
tiguous on the south from a common grantor Sylvester A. Kemp, and
as the duly recorded deed from him to Toseph Tinney nndpr whnm
the petitioner claims, antedates his deed to the respondent, it follows
upon comparison of the descriptions, that when the position of the dis-
puted southerly line of the petitioner's lot has been ascertained the
northerlyline of the respondent's lot also will have been defined, and
the controversy determined.
It is a familiar rule in the construction of deeds, that, where the land -i^^ ^
conveyed is described by courses and distances and also by monuments
which are certain or capable of being made certain, the monuments
govern, and the measurements if they do not correspond must yield.
Howe V. Bass, 2 Mass. 380, 3 Am. Dec. 59 ; Pernam v. Wead, 6 Mass.
131 ; Mann v. Dunham, 5 Gray, 511, 514; George v. Wood, 7 Allen, 14;
Morse v. Rogers, 118 Mass. 572, 578; Percival v. Chase, 182 Mass.
371, 65 N. E. 800. In its application natural or permanent objects,
such as streams or rivers and the shore of the sea, nr highways or
other lands, or artihcial land marks or signs such as fences, walls, a
Ime, a building^ or a stake and stones, are to be treated as monuments
or boundaries. SStorer v. Freeman, 6 Mass. 435, 4 Am. Dec. 155 ; King
V. King, 7 Mass. 496; Flagg v. Thurston, 13 Pick. 145; Whitman v.
Boston & Maine Railroad, 3 Allen, 133; Paine v. Woods, 108 Mass.
160; Boston v. Richardson, 13 Allen, 146; Needham v. Judson, 101
Mass. 155; Pernam v. Wead, 6 Mass. 131 ; Smith v. Smith, 110 Mass.
302; Charlestown v. Tufts, 111 Mass. 348; Frost v. Angier, 127 Mass.
212. And their identity may be established by extrinsic evidence.
White V. Bliss, 8 Gush, 510, 512. The only exception recognized is.
where, by strict adherence to monuments, the construction is plainly
inconsistent with the imgn^gjj^ oTThe parties as expressed by all the
terms of the grant. Davi^^^ainsford. 17 Mass. 207: Murdock v.
Chapman, 9 Gray, 156; George v. Wood, 7 Allen, 14.
The petitioner had the burden of proving himself entitled to regis-
tration of the premises as described in the application. Bigelow Carpet
Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938.
On the face of the deed no uncertainty as to the distances or the lo-
cation of the monuments or boundaries is disclosed, yet upon applying
420 DERIVATIVE TITLES (Patt 2
the description to the land it became apparent that the southeriy line
must run at a njs^ht an^e westerjy frorn^ the stakes and stones in the
west side of Summit Avenue "to land formerly owned by J. M.^Can-
edj^ or the call for a distance of eight rods cannot be satisfied. But
if, as claimed by the respondent, this line should run from the stake
and stones to the Canedy land, the abuttal or boundary on the west, at
a point distant seven rods from the south side of East Ouincy Street,
the boundary on the north, it would exceed eight rods, and the area
ofjhe petitioner's land called for by his deed would fall correspond-
ingly short, as is clearly shown by the first sketch or plan forming part,
of the exception-s.
The parties agreed that, as marked on the plan, the starting point of
the lot was the northeast corner at the intersection of East Ouincy
Street with Summit Avenue, which never had been changed, ^ndjjie
respondent's exception to the admission of the de_e_d of Kemp to Pattie
D. Frost would seem to havebecome injtnaterial. It was, howeyer,
properly ad mitted! St the date of the deed to Frost East Quincy
Street, although a private way opened by the grantor was a boundary
common to the land conveyed to her as well as to the tract, a part of
which was later deeded to the respondent, and grants of adjacent prem-
ises even between strangers are admissible where the location of the
Ignd for which registration is sought is in dispute. Sparhawk v. Bul-
lard, 1 Mete. 95, 100; Devine v. Wyman, 131 Mass. 7Z.
The northerly boundary and point of beginning being certain, the
easterly boundary was the west side of the avenue, measuring six
rods to a stake and stones. The termini and length of the first course
were thus fixed, and the_ stake and stones from which the second or
southerly course starts locates andjcontrols the.easterlY_end. iTo fur-
ther description is given, and the presumption is that this course, what-
everJlijeJuterior angle may be, ran straight to the land on the west, al-
though it_coiild^not be (Reflected by parol evidence to ajpoint north of
the Canedy land. Allen v. Kingsbury, 16 Pick. 235; Jenks v. Morgan,
6 Gray, 448; Hovey v. Sawyer, 5 Allen, 554, 555. Henshaw v. Mul-
ens, 121 Mass. 143. The angle ofdeparture however is not given., and,
as the southerly line claimed jjy each party is not irregular, but when
projected extended directly from landmark to landmark, a material
discrepancy in the measurement of the third or westerly course would
be caused whichever position is taken. A latent ambiguity, as the
judge properly ruled, had been developed which could be removed only
by proof of extrinsic facts. Frost v. Spaulding, 19 Pick. 445, 31 Am.
DecTl 5U ; Stone v."Clark, 1 Mete. 378, 35 Am. Dec. 370; Stevenson v.
Erskine, 99 Mass. 367; Miles v. Barrows, 122 Mass. 579; Graves v.
Broughton, 185 Mass. 174, 69 N. E. 1083 ; "Haskell v. Friend, 196 Mass.
198, 81 N. E. 962 ; Weeks v. Brooks, 205 Mass. 458, 462, 463, 92 N.
E. 45. Compare Hall v. Eaton, 139 Mass. 217, 29 N. E. 660.
It appears from the chain of title that Kemp, when the owner of the
entire tract shown by the plan, first conveyed the portion lying north-
Ch. 3) THE PROPERTY CONVEYED 421
erly of the respondent's land to Joseph Tinney, and the declarations, of
Kemp to Tinnev made while measuring the land, and contemporane-
ous with the giving of the deed, "that from there/' meaning the stake
and stones, "thev turned a right angle because Kemp stated he wanted
to measure at right angles so that all the lots would come square, and
measured eight rods to the old stone wall on the Canedy land," was
clearly admissible. Abbott v. Walker, 204' Mass. 71, 7Z, 90 N. E. 405,
26 L. R. A. (N. S.) 814; Blake v. Everett, 1 Allen, 248; Davis v. Sher-
man, 7 Gray, 291. The subsequent_conyeyance _£OsggiP_to the re-
spondent also shows a rectangular lot, and thedescription is confirma-
toj-y of the grantor's previously expresseid purpose in fixing the shape
of the lots, that the respondent's northerlv line should run at a right . . 4jji-^ '
angle with the westerly side ot Summit Avenue, and not_at an acute^ "^
^HK'^.S- ^.^ th£^ respondent contends.
The adverse finding of fact of which the respondent complains, that
the southerly line should be established as contended for by the peti-
tioner, having been warranted by the evidence, is conclusive, and the
decision that the petitioner had theji^i^to have tusjitle ^onfiimed^ and
reg^istered as described in the application shows,, no error of law.
American Malting Co. v. Souther Brewing Co., 194 Alass. 89, 8Q N. E.
526 ; Rev. Laws, c. 128, § Z7, ^ / ^^ ^^/^^
Exceptions overruled. (jfictit^^<r*'-^'h^ Cl.^.'C^r^^u~e^ X^ --^"-^-t^
SIZER v. DEVEREUX. ' ^
(Supreme Court of New York, 1853. 16 Barb. 160.)
This action was brought to recover an undivided fourteenth part of
so much of the larfd (j-nvered bv the Devereux block in the city of
"L[tic^ as lies within the original lines of Hotel street. On the trial, at
the Oneida circuit, in October, 1851, before Justice Gridley, the de-
fendant's counsel, at the close of the testimony on both sides, moved
for a nonsuit. The justice granted it; remarking, among other things,
that as it appeared by the map referred to in the description of the
lands conveyed by the origmal deeds of 94 and 95, that those lots lay
upon the easterly line of Hotel street, a conveyance of the lots bv the
description and reference contained in the deed, gave to the grantee the
land lyingbetween the lots and the middle of the street. The plaintiffs
excepted, and on a bill of exceptions, moved for a new trial.
Gridley, J. Mrs. Sizer, one of the plaintiffs, is one of the heirs
at law of John Mappa, deceased ; and she seeks to recover in this ac-
tion, for her share as such, the one-fourteenth part of a piece of land
covered by a part of the building known as the Devereux block: and
being a part of Hotel street, in the city of Utica. The defendant owns
the premises situated on both sides of the street opposite tKe piece of
land in question! The plaintiff, however, insists that her ancestor never
'Yat^^^'
DERIVATIVE TITLES (Part 2
'parted with the legal title to the site of the street; and that she, as his
heir, is entitled to recover in this action her interest in it. Several ques-
tions were discussed on the argument, which we do not propose to
\>^,^^^^,^/^'^^\ _ examine. The case, we think, may be disposed of, without reference
to them.
Hotel street, in the city of Utica, was laid out as a public highway,
and recorded in the office of the town clerk of the town of Whitestown,
on the sixth day of April, 1801. Previous to the laying out of this
highway, the proprietors of the tract had procured a survey to be made,
and a map to be constructed, by Calvin Guiteau, and filed with the clerk
of the court in which a space was laid off, for Hotel street ; _ and lots
were laid out upon it ; from which map sales were made to purchasers,
and the lots were described in the deeds bv reference to that map and
survey. The premises in question consisted of parts of village lots 94
and 95, as designated on the map ; and were respectivelv described as
follows, in two deeds executed by the original proprietors, which title
has descended through several mesne conveyances to the defendant. _as
was admitted on the trial. The deed conveying lot 94, bears date on
the twenty-eighth day of April, 1803, in which the premises conveyed
are described in the following manner : "All that certain piece or par-
cel of land situate, lying and being in the village of Utica, county of
Oneida, and state of New York^ known and distinguished bv a survey
made thereof by Calvin Guiteau, in the year one thousand seven hun-
dred and ninety-eight, and on a map of said land filed in the clerk's
office of the county, by lot 94. Beginning at the S. E. corner of No. 93,
and runs from thence north fifty-three degrees and fourteen minutes,
W. fifty-seven feet. Thence S. 36 degrees 15 minutes, W. sixty feet.
Thence south fifty- three degrees fifteen seconds, East twenty-nine feet,
to tlie Genesee road. Then No. sixty degrees East along the side of the
same, to the place of beginning." Lot No. 95 was conveyed by defid.
bearing date September 24th, 1802. in which the premises were describ-
ed as "All that certain lot or piece of ground situated in the village of
Utica, and county of Oneida, known by a survey made thereof by
Calvin Guiteau, in the year one tliousand seven hundred and ninety-
eight, by lot No. 95. Beginning at the S. E. comer of 94, runs thence
north 53 degrees 45 minutes W. twenty-nine feet ; thence S. thirty-six
degrees 15 minutes west, sixty- four feet, to the Genesee road; thence
along the side of the same N. sixty degrees E. to the place of begin-
ning." It will be observed that though Genesee street is named in
these deeds, and the boundary of the landf^ rlp'^rrihpH k gtat^d t^ ^""
along the side of the Genesee road, ypt Hntpl qtrppt i<; not naryipd \v
either of tjiern; but the boundary of the lots is described as running
a certain course for a certain distance, referring to the survey and map
on file; which, on inspection, ghj2\v these lot^ bounded on the space lajd
out as Hotel street j, which descriptions are, by the »;ptt1pH rnnstpirtinn.q.
to be read_as though the boundary -b?id .been df"ifribfd ^° rnnmnor,' 'j^
Hotel street, and'aTong thesaid street," on the given courses, and f^
'Vs ^AJi ^iAcJ- cu^ "--^^
(I2--^Z"^^
Ch.'S) THE PROPERTY CONVEYED 423 '
tl^e given distances. This is a significant distinction, and as we shall
see by and by, is quite decisive of the rights of the parties in this cause.
We are to inquire what is the legal construction of deeds whicti de- _
scribe the boundaries, adjacent to Hotel street, bv courses and distances .
merely. Does such a description convey the land to the center of Hotel
street, or does it convey the land only up to the eastern side of it? ,
We believe the uniform construction of words, such as are employed
in this description,ig, that the convevance extends to the center of the ^
highway. Such words as are used to describe the premises on the side
next Hotel street, not only have never been construed to limit the grant
to the side of the street, but have been uniformlv regarded bv the courts
as a conveyance to the center of the street. The general rule on this
subject IS laid down in Kent's Commentaries, (3 vol. 432,) in these
words : "The law with respect to public highways and to fresh water
rivers, ij the same. The owners of the land on each side go to the cen-
ter of the road." The language oTthe court in Jackson v. Hathaway,
15 John. 454, 8 Am. Dec. 263, and the same is re-affirmed in the court
for the correction of errors, in Child v. Starr, 4 Hill, 369, is as follows :
"Where a farm is bounded along a highway, or upon a highway, or is
described as running to a highway, there is reason to intend that the
parties meant the middle of the highway." Ch. Kent says, (supra,)
•'The ijjea of an intention in a grantor to withhold his interest in .a
road to the mid^31e of it. after parting with all his right to the ad-
joining land, IS never to.be presumed : it would be contrarv to universal
practice.^^ JSlgygrtl^less ^ grant mav be so worded as to exclude the 2^
highwav from the termsof the convevance. And it was held in Child
V. Starr, 4Hnr, "359, and 5 Denio, 600, that where land is described '^^^-'-
as running to the side of a road, or to the bank of a river, and then -^-♦^^-^ •«'' v.
along th^ ■^iHp of fhp roarl or bank the road or bank is excluded by the /^^<^ -'^^-
terms of the grant. We see, therefore, that when premises are de- ,^^/^,^ y»'-^
scribed as running "to a road, and along a road," the grant includes
the road to the center ; whereas, if the boundary were to the side of
the road, and along the_.s.ide of the road, the road is excluded, by the
terms of the conveyance. The description of the lots in question, on
th^ side of Genesee street, running to the side of the street, and along
the side of the street, conveys no part of that street. That was a turn- — 4^1 ^^ C-lr-»-^
pike road; and the proprietors did not own it, and had no right to
convey it; and hence the significant phraseology of the deed. The
fact was not so, however, with respect to Hotel street. The proprietors
owned the soil of that street, and they adopt a description which by the
established construction, of the words carries the grantee to the center
of that streetjy The boundary on the side of Hotel street is equivalent
to a description in words of premises running "to Hotel street and
along Hotel street." It is fixed by courses and distances, without nam-
ing Hotel street at all. And in just such a case as this, the very point
was decided by the supreme court of Connecticut, in the case of
Champlin v. Pendleton, 13 Conn. 23, 25, 27. The question was, wheth-
c'J^^ o jr -
1^ cx^ . /t^ *i
424
DERIVATIVE TITLES
(Part 2
^
^
er a line not described as running on a street, but which was proved
on the trial to run on a street, in fact, was to be construed as carrying
the grant to the middle of such street, and the court held that it should
be so construed. The court, after saying that the general principle was,
that a description which carried the boundary "to a street, and along a
street," embraced the street, to the center of it, proceeded to lay down
the doctrine that where it turns out in the evidence that the courses
and distances given in a deed do, in fact, carry the boundary to a street,
and along that street, itis the same in law as though it were expressed
in words.
Applying that principle to the case at bar, we see that the courses
and distances given in the deeds do. in fact, carry tlie boundary to Ho-
tel street, and along Hotel street. It follows therefore that it is in law
the same as though the boundary were described to run "to Hotel
street, and along Hotel street," in words. The consequence is, that by
the settled construction of the words and phrases used in describing
the premises adjacent to Hotel street, the grant is carried to the center
nf that <;frpef
There is another view of this question that leads to the same con-
clusion and is equally conclusive in favor of the defendant. The de-
scription refers to the map made by Calvin Guiteau and on file in the
office of the clerk of the county. That map is in evidence, and exhibits
the premises in question as lying adjacent to Hotel street- This map
therefore is, by legal intendment, a description of the premises as
bounded on Hotel street, and demands a construction precisely the
same as though the description was so written out in words. This
principle is stated and illustrated in the case of Varick v. Smith, 9
Paige, 550, 553, where the premises, which consisted of two separate
pieces of land, were described, the one as "lot No. 7 laid down and
delineated on a map filed, &c., as adjacent and extending to the Os-
wego river ;" and the other as "blocks No. 78, 90, 99, 103 of the village
of West Oswego as the same have been surveyed and designated on the
map of the said village filed in the office of the secretary of state." The
jj/ice chancellor, in his opinion, in discussing this point, uses the follow-
ing language: "An exemplified copy of the said map has been given
in evidence, which exhibits"^ these blocks as adjoining the n^^pfi •^^^^i<'1i
I consider as equivalent to a description that, in terms bounds th^m
on the river?^ This position of the vice chancellor was denied by the
counsel of the defendant, on the argument of the appeal. But the chan-
cellor affirmed the doctrine asserted by the vice chancellor, and said :
"The patent for No. 7 refers for its location to the map of the town-
ship of Hannibal, filed in the surveyor general's office, and upon that
map the lot is bounded generally on the Oswego or Onondaga rivers.
This is the same, therefore, as if the patent had in terms bounded the
land granted by the river, without restriction or limitation, which
would legally have carried the grant to the center of the stream."
*'The patent for the blocks in West Oswego also refers in tlie same
Ch. 3) THE PROPERTY CONVEYED 425
manner, to a map on file in the office of the secretary of state, which
map bounds these blocks on the river, without restriction." This case
is therefore a direct and conclusive authority in favor of the principle
on which the question in this case turns.
Yhere is only one objection to this result, which remains to be con-
sidered ; and that is the fact that the distance given in the deeds would
only carry the grant to the side of Hotel street, instead of carrving. it
to the center. This objection, it will be seen, is founded on the idea
that whenever it appears by the express words of the grant, or by a j^
map which exhibits the premises as running to the road, the road itself
is excluded. This we have already seen to be an error. The road y fOm—^Jj oO
street is in the natui^g^ of a monument, and overrides and controls the. ^_ ^
courses and distances ; and by a fixed and settled construction premises Z**"*^**-^ ^
described as running to a road are carried by the conveyance itself to *« C. W-<rvu«u»
the center of the highway. The case of Herring v. Fisher, 3 N. Y.
Super. Ct. 344, 348, illustrates and answers the objection founded on
both these grounds. The deed in that case stated the premises as be-
ginning at a certain road and running along the road. Oakley, Ch. J.,
aftei* laying down the general rule to which we have adverted, proceeds
to remark that "if the deed of lot No. 9 had in express terms declared
the boundary to begin at the side of the road, still by virtue of the fol-
lowing words 'running along the road,' the line must be held to run
along the center of the road. The plaintiff, however, contends that
there are two circumstances that tend to indicate an intention to ex-
clude the road. It refers to the map ; and by the map the road is laid
down colored red, and the land appears to run up to the road and not
to the center of it ; and secondly, that the distance given of the line of
the premises running to the road, would exclude the road. But as to
the latter circumstance it is of little moment. The distances can never
be safely relied on as affording the means of correctly Inrating i-hp
landj and they are resorted to only when other means fail, as courses
and monuments. But the propriety of this rule is strongly illustrated
in the present instance. Two of the lines of lot No. 9 are incorrectly
given," "As to the map we do not consider it can affect the construc-
tion of the deed. It is not usual, when a map is made of a farm bound-
ed by a road, to include any part of the road within the lines. The
principal object of the map is to show the extent of the beneficial own-
ership of the proprietor,__and of his right to exclusive occupancy. ,JL
When a map has a road forming one of the sides of a farm, jp judg-
ment of law it includes one-half the road, thoup-h the line marked on
the map would seem to exclude^ it. A map in this respect is like a
deed." See also the same principle put forth in Hammond v. Mc-
Lachlan, 3 N. Y. Super. Ct. 323. This seems to dispose of the objec-
tions we have been considering. There are other questions — as, wheth-
er ejectment, being a possessory action, will lie for part of a street, and
also the questions arising on the dedication of the road to the public,.
426 DERIVATIVE TITLES (Part 2
and the implied exclusion of all right of the plaintiff to take possession
of it if he should recover it. But we do not deem it necessary to dis-
cuss these questions.
New trial denied.^* / /
BANGOR HOUSE PROPRIETARY v. BROWN.
(Supremo Judicial Court of IMaine, 1S51. 33 Me. 309.)
Trespass for tapping the plaintiff's aqueduct and drawing water
therefrom.
In 1829, the proprietors of a tract of land, in the city of Bangor,
caused one Bradley to draw a plan of it and to designate streets and
buildingJiils_thereon. They then recorded the plan in the registry of
deeds.
Sojan after the plan was made, one of said streets, now called Centre
street, was built by said proprietors, but it has not been kept in repaif,
aiid only one part of it is used asa street.
The lot No. 17, bounded southerly on Centre street, "as laid down in
said plan," was conveyed in 1832, by the proprietors to Elliott Valen-
tine. A part of No. 17, and bounded on the street, is now owned by Jhg
defendant under that conveyance, and his dwelling house stands upon jt.
A portion of Centre street, remote from tlie defendant's house, and
11 See Com'rs for Land Tax v. Railway Co., [1913] A. C. .Sf54, 379. where the
land conveyed was designated as colored pink on a map, the said colored por-
tion extending only to the side of the highway.
"Under the rule established by this court, as well as of other courts cited
below, th.e important fact in the conveyance which raises the presumption of an
intent to convey the bed of a navigable stream, or the street or highway, in
front of the land conveyed, is that the side of the street or BTglvvViry76r the
l5ank of the navigable stream, is in fact the boundary pn i-Iip sidp cff fbp binds
d'escrlbed in the deed next to such street or stream, or that S4ich si«Jp of tlie
street or bank of the stream is included within the boundaries mentioned in the
deed on the side next thereto, although the line of the tract as describeOn
the deed may extend beyond the side of thp strppt. or hnnk of the river inti)
the street or river. The fac-t that the line of the tract of land conveyed as
described in the deed is a straight line from point to point, by course and dis-
tance, on the side next the river or street, and that no mention is made of the
river or street, does not, of itself, overcome the presumption of an intent to
cmiveFTo tlie center of the river or street, if such line be in fact substantially
cpincident_with the side of the street or the bank o£ the river, and extends
tcTor into such river or gtrppf; " TVnrpvnss v'Cnlirfhs: 65 Wis. 599, 610, 27 N. W.
^(K), 5B Ain. Rep. t)42 (1S86),' per Taylor, J. The case involved the boundary
on a stream, the description by metes and bounds extending to the stream,
but not mentioning it. Railway Co. v. Piatt, 53 Ohio St. 254, 41 N. E. 243, 29
L. R. A. 52 (1895), acc
As to boundaries on railroad rights of way, see Center Bridge Co. v. Wheeler,
86 Conn. 585, 86 Atl. 11 (1913) ; Maynard v. Weeks, 41 Vt. 617 (1868).
As to boundaries on canals, see Goodyear v. Shanahan, 43 Conn. 204 (1875) ;
Lawson v. Mowry. 52 Wis. 219, 9 N. W. 280 (1881).
As to boundaries on natural ponds, see School Trustees v. Schroll, 120 111.
509, 12 N. E. 243, 60 Am. Rep. 575 (1887) ; Hardin v. Jordan, 140 U. S. 371, 11
Sup. Ct. 808, 8.38, 35 L. Ed. 428 (1891). See, also, Lowell v. Robinson. 16 Me.
357, 33 Am. Dec. 671 (1839), where the pond was formed by a mill dam. Cf.
Boardman v. Scott, 102 Ga. 404, 30 S. E. 982, 51 L. R. A. 178 a897).
Ch.3)
THE PROPERTY CONVEYED
427
that portion only, has been laid out and accepted by the city, as a pub-
lic street.
In 1834. the plaintiffs laid an aqueduct running along in Centre
street, at the depth of six feet below thp piirfapPj tr. *^f^ rpllar r>f tji^ir
hotelj
The evidence proved that the defendant cut the aqueduct pipe. Iving
within the northern half of the street, and in front of his own house.
The defendant contended, that as his premises were bounded upon
the street, his title extended to the centre of it, and gave him a right
to tap, and even to remove the aqueduct. The Judge ruled that the de-
fense was not made out, and the defendant excepted —
SheplEy, C. J. An aqueduct, owned by the plaintiffs appears to
have passed through a street, formerly called Centre street, in front of
the defendant's dwelling house, nearer to it than the centre of the
street^ and about six feet below the surface of the earth.
A lot of land numbered seventeen, a part of which constitutes the
defendant's house lot, was conveyed by the owners to Elliott Valentine,
on September 28, 1832, bounded "southerly on Centre street, there
measuring 120 feet," "as the same is laid down on a plan drawn by
Zebulon Bradley, in December, 1829." The title of the defendant is J
derived from Valentine.
The owners of land, including this lot, caused Bradley to draw a plan
thereof in December, 1829, and to designate upon it building lots and
sti-eets. They soon afterwards caused Centre street to be prepared for
use as a street or way.
As the law has been established in this State, when land conveyed is
bounded on a highway, it extends to the centre of the highway ; where
it is bounded on a street or way existing only by designation on a plan.
or as marked upon the earth, it does not extend to the centre of such
wa
The occasion of such difference in effect may be ascertained. The
owner of land, who has caused it to be surveyed and designated as
containing lots and streets, may not be able to dispose of the lots as he
anticipated, and he may appropriate the land to other uses ; or he may
change the arrangement of his lots and streets to promote his own in-
terest, or the public convenience in case the streets should become high-
ways. He does not by the conveyance of a lot bounded on such a way
hold out any intimation to the purchaser, that he is entitled to the use
of a highwav to be kept in repair, not at his own, but at the public ex-
pense, for the common use of all. While he does by an implied cove-
nant assure to him the use of such designated way in the condition in
which it may be found, or made at his own expense. By a repurchase
of that title, the former owner would be entitled to close up such way,
as he would also by obtaining a release of the right of way.
There is no indication in such cases of an intention on the part of . y
the grantor to dispose of any more of his estate dian is included by JijUC^
the description, with a right of way for its convenient use. —
/
C^. SSI -- m%-
sj c^, ia^ . is'C ■
yl>**^-«
428 DERIVATIVE TITLES (Part 2
When a lot conveyed is bounded on a highway expected to be per-
manent, the intention to have it extend to the centre of it is inferred,
(among other reasons noticed by this Court in former cases,) from
tlie consideration that the vendor does not convey or assure to the ven-
ee a right of way, the law affording him in common with others a
nore permanent and safe public way, to be kept in repair at ihe
^public expense. The vendor not being burdened by an implied cov-
enant, that the vendee shall have a right of way, has no occasion to re-
tain the fee of the highway for that purpose. Hence arises one motive
inducing him to convey all the rights, which he can convey to land
covered by the highway.
■ In argument for the defendant it is insisted, that Centre streets at
.^_,^^ the time of the conveyance had become a highway by dedication oiJ:he
owners of the land.
j^,^ fl It might be sufficient to observe, that such a position does not ap-
pear to have been presented at the trial, for decision by the jury or
iK^>'. . for instruction by the Court.
Without insisting upon this, the testimony presented in the bill of
exceptions does not sustain the position.
If an owner of land should cause it to be surveyed into lots and
streets, and a plan thereof to be made, and should also cause the
streets to be made convenient for use, and continue to keep the land
enclosed as his own property, it would not be contended, that a ded-
ication of it to the public could be inferred from these acts. Xjiere
rnust be some act of the owner, from which it can be clearly inferred.
J. that he intended to surrender it for public use, and not for the use of
certain persons only. The simple facts, that a person pursued such a
course respecting his land, and that he opened a way for the use of a
purchaser of a lot, would not, alone considered, authorize an infer-
ence that it was dedicated to the public for common use. . There should
be some evidence, that it was generally used with his knowledge, as
public convenience might require, to authorize such a conclusion.
Nor could the owner compel the public to accept and adopt such streets
as highways. There should be evidence that they had been commojily
used to authorize an inference, that they had been accepted as public
ways.__
In this case, there is not only no evidence that Centre street at the
time of the conveyance of the defendant's lot to Valentine had been
used as a public way, but there is evidence, that it was not kept in re-
pair^ and that part of it only is used as a street. x
Exceptions overruled, and judgment on the \&v6.\zt.^*( .^^ fi£4AA>*Xt^j
12 Hopkinson v. McKni?ht, 31 N. J. Law, 422 (1S66) ; Robinson v. Jilyers, 67 Pa.
d (1871) ; Plumer v. Johnston, 63 ]\Iich. 165, 173, 29 N. W. 6S7 (18S6), dictum,
ace. Johnson v. Arnold, 91 Ga. 659, 18 S. E. 370 (1893) ; Stark & Wales v.
Coffin, 105 Mass. 328 (1870) ; Bissell v. New York Cent. R. Co., 23 N. Y. 61
(1861) ; Jarstadt v. Morgan, 48 Wis. 245, 4 N. W. 27 (1879) ; Paine v. Consumr
ers Forwarding & Storage Co., 71 Fed, 626, 19 O. C. A. 99 (1895), contra.
Ch.3)
THE PROPERTY CONVEYED
429
SACCONE V. WEST END TRUST CO.
(Supreme Court of Pennsylvania, 1909. 224 Pa. 554, 73 Atl. 971, 24 L. R. A.
[N. S.] 539.)
Case stated in ejectment to determine title to the bed of an alley in
the' ninth ward of the city of Philadelphia. Before Audenried, J.
The following plan shows the situation of the alley:
3ouTH Pe.Hn Scxii'^RE-
The facts are stated in the opinion of the Supreme Court.
Error assigned was in entering judgment for defendants on the case
state4,
Potter, J. This was an amicable action of ejectment, brought to
recoy^.r possession of a strip of ground, three feet in width and eighty
feet in depth^ situated on the west side of Broad street, fifty-nine feet
south of its intersection with South Penn square, in the city of Phil-
adelphia. The parties agreed upon a case stated, which disclosed the
following facts : On April 21, 1832, Robert A. Caldcleugh conveyed to
various grantees, fiye lots of ground .situated on South Penn square
west of Broad street, each twenty feet in width, the corner lot and the
three lots nearest to it being fifty-nine feet in depth and the western-
most lot sixty-two feet deep. Each of the first four lots was described
in the deeds as extending "to a three feet wide alley laid out and
opened by the said Robert A. Caldcleugh for the accommodation of
this_ and other lots adjoining thereto and leading westward from the
said Broad street to the depth of eighty feet." Each of the five deeds
contained a grant of "the free use and privilege of the said three feet
wide alley as and for a passageway and water course in common with
.the owners and occupiers of the said adjoining lots/'
^a-^'f ^
4:30 DERIVATIVE TITLES (Part 2
From the date of the deeds each of the owners of the lots continued
to have, use and enjoy the free and uninterrupted use and privilege of
the allev as and for a passageway and watei^ course in rnmmnn yyith
the owners and occupiers of the other four lots.
On November 11, 1846, Robert O'Neill" acquired title to the prem-
ises adjoining the alley on the south and on Tune 26. 1848. Caldcleugh
subject to the uses and
/M''^^J^ ises aajommg me aiiey on me buum aiiu uii iu
'/^ con^^cHoQ^Nein the soil of the alley in. fee,
^ pmolegesg^nte^o the owners of the lots adjoining. On August 9,
//*/ 1849. O'Neill conveyed to one Wickersham the premises south of the
y * alley "together with the free and common use andprivilege of the
^.^A**'^ aforesaid three feet wide alley as and for a passageway and water
^^^/4^ course into and from Broad street at all times forever."
-^Z Subsequently, bv various conveyances, three of the lots next the
corner ongmally granted by Caldcleugh became vested in the West
End Trust Company and thp nthp-r two lots, as well as the premises
south of the alley, granted by O'Neill to Wickersham. became vestfd
in the Girard Trust Company. Both companies made use of the soil
of the alley in connection v/ith buildings erected on their respective
premises, and on October 6, 1905, they entered into an agreement
."Xf^ with each other.^'that the said alley be and the same is hereby aban-
\^J\J(^* ^»fdoned and vacated." The plaintiits are the heirs at law of Robert
^j[ji/^ r*0'Neill, grantee of Caldcleugh by the deed of June 26, 1848, and the
*Jl I defendants are the West End Trust Company and the Girard Trust
f^ yi^ (^ Company,
^ ^ ^ Upon the facts stated, the court below held that each of the grantees
>^,^^ "^ of Caldcleugh, under the four deeds of April 21. 1832. took, a fjfp sinrnje
^^ ^^^^ title to so much of the ground in dispute as lay immediately in the rear
v''^. ^ of the lot he bought, subject to an easement m the owners of the other
"^/f^"^ lots^and that Caldcleugh parted with all his interest at that time, and
V^ no title to the soil of the alley passed by the deed of Caldcleugh to
^ CyNeill on Tune 26. 1848. Judgment was entered on the case stated
•^ ^-^ ior the defendants, and the plaintiffs have appealed.
^f^ iJU^ If the alley in question had been a public highway, the grantees of
•^ '^ land bounded thereby would without doubt have taken the fee to the
center of the highway, if the grantor owned such fee, and had used
no language in his deed indicating an intention to retain the fee in
the highway. In one of our latest cases bearing on this question, Wil-
lock V. Beaver Valley R. R. Co., 222 Pa. 590, 595, 72 Atl. 237, 238,
our Brother Elkin said: "If the plan, pf lots in the present case had
been laid out by an individual in precisely the same manner as the com-
• monwealth had done, and lots had been sold with streets as bound-
aries, the title to the fee to the center o.f the streets would have passed
to the purchaser. This is the rule of our cases. from Paul v. Carver,
26 Pa. 223 [69 Am. Dec. 413], to Neely v. Philadelphia, 212 Pa. 551
[61 Atl. 1096]."
We_can see no reason why, thfi same rule should not apply to land
vvhichis conveyed as bounded by a private way. The doctrine was
CIi. 3)
THE PROPERTY CONVEYED
431
substantially adopted by this court, in Ellis v. Academy of Music, 120
Pa. 608, 623, 15 Atl. 494, 496 (6 Am. St. Rep. 739), where it was
said : "Nor did the court err in charging that parties who are entitled
to a free use of an alley, have the same right in it that the public has
in its highways, and that if the way in this case were vacated, the soil
would belong to the plaintiff and defendant as tenants in common.
By the several grants to these parties, their properties were not only
bounded on the alley in controversy, but it was made appurtenant to
those properties. Nothing, therefore, was left in the owner, and if
the fee did not vest in these grantees, it is hard to tell where it is. The
case is very much like that of Holmes v. Bellingham, reported in 7
C. B. (N. S.) 329, in which Cockburn, C. J., says : 'The direction com-
plained of is. that the learned judge told the iurv that there was a
presumption in the case of a private wav or occupation road between
tvyo properties, that the soil of the road belongs usque ad medium to
the owners of the adjoining property on either side. That proposi-
tion, subject to the qualification which I shall presently mention,
and which I take it, was necessarily involved in what afterwards fell
from the learned judge, is, in my opinion, a correct one. The same
principle which applies to a public road, and which is the foundation of
the doctrine, seems to me to apply with equal force to the case of a
private road.' As the doctrine here stated seems to be reasonable and
sound, we cannot understand why we should not adopt it. It seems to
he arlpiittpH thaf. were the alley public, its vacation would vest in each
of the parties the unincumbered one-half of the fee in severalty, and
why this should not apply to a private way, where, just as in the case
of a public way, by the grant it was made appurtenant to the several
properties, we cannot understand." The reference above to the plain-
tiff and defendant as being ^nants in common^of the soil in the alley
in case it was vacated, was^ prpbably a slip of the pen^s later in the
opinion it is stated that vacation would vest in each of the parties one-
half of the fee in severalty.
In Rice v. Clear Spring Coal Co., 186 Pa. 49, 40 Atl. 149, the rule
which was approved by this court was thus stated : "When the bound-
ary given in a deed has physical extent, as a road, street, or other mon-
ument having width, courts will so interpret the language of the de-
s^cription, in the absence of any apparent contrary intent, as to carry
the fee of the land to the center line of such monument." And in
Schmoele v. Betz, 212 Pa. 32, 61 Atl. 525, 108 Am. St. Rep. 845, a
case which involved the use of a private alley, the doctrine was again
cited with approval, that, in case of vacation, the rule which applies
tQ a public highway is to be applied as between parties entitled to the use
of a private alley."
13 See Fisher v. Smith, 9 Grav, 441 (18.57); McKenzie v. Gleason, 184 Mass.
452, 69 N. E. 1076, 100 Am. St. Eep. 566 (1904) : Freeman v. Sayre, 48 N. J.
Law, o7, 2 Atl. 650 (1886) ; Stockwell v. Fitzgerald, 70 Vt. 468, 41 Atl. 504 (1895)
(semble) ; Wiess v. (Joodhue, 46 Tex. Civ. App. 142, 102 S. W. 793 (1907), hold-
^i^**^25^i
^t-^ti^:?^
432 DERIVATIVE TITLES (Part 2
In some of our cases, the language used appears to sustain the con-
tention of appellants, that there is a distinction between a call for a.
public highway as a boundary, and a private street or alley, so desig-
nated. But yye think upon examination that these decisions were npt
intended to go further, than to hold that where l^rid i^; rnnvpyprl-^a^
bounded by an unopened street, the grantee takes the fee only to the
side line of the street, with an easement over its bed. Thus in Cole v.
Philadelphia, 199 Pa. 464, 49 Atl.* 308, the deed called for a street
which was unopened, and it was held that the call for an unopened
street as a boundary only conveyed the title to the side of the street
and not to the middle thereof. In Clymer v. Roberts, 220 Pa. 162, 69
Atl. 548, the deed called for "the middle line of Howard street fifty
feet wide ; thence along the middle line of said Howard street." How-
ard street was at the time an unopened street, but it was held that the
purpose of making the boundary to be the middle line of the street was
to vest the fee in the grantee as far as the center line, notwithstand-
ing the fact that the street was at the time unopened. In Robinson v.
Myers, 67 Pa. 9, where the rule with regard to unopened streets seems
to have been first laid down, this distinction is expressly made. Jus-
tice Williams, after stating the doctrine of Paul v. Carver, 26 Pa. 223,
67 Am. Dec. 413, and Cox v. Freedley, 23 Pa. 124, 75 Am. Dec. 584,
■ said, with reference to the case then before him: "But in this case
there was no alley or street by which the lots were bounded. The
recorded plan which is to be taken as a part of the defendant's title
shows that the ground in question is a lot, and not a street. • And it
is admitted that no alley was ever laid out over the lot, or ever used
by the public or by private individuals. There is then no ground or
reason for the application of the rule laid down in Paul v. Carver, to
this case." The case of Van O'Linda v. Lothrop, 38 Mass. (21 Pick.)
292, 32 Am. Dec. 261, cited in Robinson v. Myers, and also by Jus-
tice Mercur in Spackman v. Steidel, 88 Pa. 453, relied on by appellants,
was also a question of an unopened street. IMorton, J., said (21 Pick.
296, 32 Am. Dec. 261) : "The street did not then exist in actual use, but
only in contemplation." The decision there seems to have gone upon the
ing same rule applips whprp hn^^ndary is upon a private wav as in the cases in-
vbiYmg public ways. In Gould v. Wagner, 19(5 Mass. LJ70, 82 N. E. lO (lyU'O, tne
lot was described as situated "on" a way five feet wT.de; despite the fact that
the way was on the margin of the grantor's land, only half of it passed under
the deed. Two justices, however, dissented on the ground that the entire way
should have passed. See Albert v. Thomas, 7.3 Md. 181, 20 Atl. 912 (1890).
As to what will be sufficient to overcome the presumption that at least half
of the wav shall pass, see Stearns v. 'Mulien. 4 Gray (IMass.) 151 (18.55); Cod-
man v. Evans, 1 Allen CMass.) 443 (1861) ; Crocker v. Cotting, 166 Mass. 183, 44
N. E. 214, 33 L. R. A. 245 (1896) ; Mott v. Mott, 68 N. Y. 246 (1877).
That in case of boundaries unon private w^avs the same rule as i" the case
of pjiblic ways is not applicable, see Seery v. WaterbuiT. 82 Conn. 567, 74 Atl.
908, 25 LrR. A. (N. S.) 681, IS Ann. Cas. 73 (1900) ; Ames v. Hilton, 70 Me. 30
(1879) ; Winslow v. Reed, 89 Me. 67, 35 Atl. 1017 (1896).
See also Taylor v. Armstrong, 24 Ark. 102 (1863) ; In re Robbins, 34 Minn. 99,.
24 N. W. 856, 57 Am. Rep. 40 (1885) ; Ilealey v. Babbitt, 14 R. I. 533 (1884).
Ch. 3) THE PROPERTY CONVEYED i33:
ground that the deeds showed an intention by the grantor to exckide
the fee of the street from the grant.
In the present case the lang;-uage of the deeds frorii Caldcleugh, a<; set
forth in the case stated, shows that at the time of the conveyances the
alley was alreadv "laid out and opened by the said Robert A. Cald-
ckugh ; ■ and it further appears from the case stated that after the con-
veyances were made the owners of the lots continued the use of the JiJ^Ji*-u yO*'-*'^
alley, and it was not abandoned or vacated until October 6, 190.S, a. pe- ^^^ yS ^
riod of over seventy-three vears. So that the facts of this case dis- — "
tinguish it clearly from Robinson v. Myers, supra, and the subsequent
cases relating to unopened streets and highways. When Justice Mer-
cur, in delivering the opinion of this court, in Spackman v. Steidel,
88 Pa. 453, said : "Where the street called for a boundary is not a pub-
lic highway, nor dedicated to public use the grantee does not take title
in fee to the center of it, but by implication acquires an easement or
right of way only over the lands/' and then cites the cases which we
have above referred to (Van O'Linda v. Lothrop, and Robinson v.
Myers), we think it is apparent that he had in mind cases where the
deed called for a street that was unopened, as the two cases which he
cites had reference to such unopened streets.
The authorities are uniformly to the effect that the question .of
whether the grant includes the fee to the bed of the highway, is
one of intention. The grantor in the present case did not expressly
■except fronTTiis conveyances the fee of the alley in the rear of the lots
conveyed, and it is hardly reasonable to suppose that he intended to
reserve a strip at the end of the four lots, three feet wide and eighty "^
feet lon.s^._ which hp wa<; ctnbjprting to easements which, so long as
claimed by the grantees. _would prevent him from making any beneficial
use of the fee in the strip, We think it is apparent that Caldcleugh in
1832 intended to part with his entire interest in the property, and that
the alley was laid out and opened as stated in his deeds "for the ac-
commodation of this and other lots adjoining thereto." It will be re-
called that the westernmost lot. No. 5, was described as being sixty-
two feet in depth, and that Caldcleugh did not reserve the three feet at
the rear of that lot. If he had intended to reserve to himself the fee • ^^^^
in the alley, he would naturally have reserved the same space in the KO X4m*««v-«^«^
rear of lot No, j. But he evidently conveyed that lot to its full depth ^^^ t^j^k.^^^ •/ *
because, as it was at the head of the alley, access could be had thereto .....y. \i^ TT"., .^
without any such reservation. Neither the language of the deeds nor , ^. ^«l5
the situation of the ground, nor the circumstances connected with the*"'tc2JU ^
conveyances, indicate any intention on the part of Caldcleugh to retain
the fee to the bed of the alley, when he made the conveyances in
1832.
The assimments of error, are overruled. a,nd the judgment is af-
AIG.PK0P.-I-28 T^ -^
qi^
y^^..
L/iT » ttO
434 DERIVATIVE TITLES (Part 2
GEDDES COARSE SALT CO. v. NIAGARA, LOCKPORT &
ONTARIO POWER CO.
(Court of Appeals of New York, 1913. 207 N. Y. 500, 101 N. E. 456.)
HiscocK, J. This action was brought as one of ejectment to com-
pel the appellant to remove wires used for conducting high power elec-
tric currents and strung above the boundaries of a highway, as shown
upon a map which will be referred to. The facts which define the con-
^ troversy are as follows :
In 1902 the state issued to the respond epf- Iptters patent wherebv it
granted and conveved to it certain lands theretofore r^^Tr^titnting part
of the Onondaga Salt Springs Reservation and amongst which was one
j^/ti^ "parcel, alone involved in this action, described as "Subdivision No. 17
(of_Farm Lots 4.S and 46) containing 13 42-100 acres/' as said subdi-
vision was laid down on a rnap of the farm lots in question made by
one Greene, deputy surveyor m August, 1849, and during said month
filed in the office of the secretary of state. Said map showed said
subdivision 17 as abutting at its southerly boundary on a road four
rods wide, and which road in turn had for its southerlv boundary the
blue line of the enlaro^ed Erie canal then in process of construction,
the distance from this blue line to the base line of the canal as finally
3u^/^ / constructed and used being upwards of thirty feet. Fpr some time
.-> / ^^r* before the grant in question said road apparently was not used bv the
J? public in the portion bounding subdivision 17 aforesaid, but at least
some part of it seems to havp bppri nrrnpied by a storehouse belong-
/inp- to the respondent. The letters patent and the map to which ref-
erence has been made gave the area of subdivision 17 and other parcels
then being conveyed and such statement of such area is satisfied with-
out incorporating in the grant any portion of the hi.jyhway. Under
these circumstances the question has arisen whether the respondent
"^ accjuired title to all or to part of said highway as subdivision 17 abutted
• on the same^ and this question by consent was disposed of by the trial
court as a question of law, it holding that the respondent acquired title
to the bed of the entire highway.
^^Jc_ ( '^^^ general rule is that a conveyance by reference to a map which
Y^^^fCi* \ shows the premises being conveyed as abutting upon a highway, as
( (Ra^-*^ I between the grantor and grantee, conveys to the latter title to the fee
V of the highway tojhejcentgr Ijjlg thereof. This is the rule as r^mm^t
the state as well as against a private grantor, and it applies even
though at the time of the conveyance the highway as shovyr^ upon the
map has not been accepted and used bv the public as such, and aJtho^iorh
the grant by its terms or by reference to a map gives an area of the
premises being conveyed which is satisfied without resort to the land
included in the hjo^hwav. Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61 ;
Matter of Ladue, 118 N. Y. 213, 23 N. E. 465 ; Trowbridge v. Ehrich,
191 N. Y. 361, 84 N. E. 297; Paige v. Schenectady Ry. Co., 178 N.
^//^/^^^
Ch. 3) THE PROPERTY CONVEYED 435
Y. 102, 111, 70 N. E. 213; Van Winkle v. Van Winkle, 184 N. Y.
193, 204, 77 N. E. ZZ.
I see no reason for attempting to build up an exception to this gen-
eral rule upon the facts presented in this case, but think that the re-
spondent's title extended to the center of the highway opposite said
subdivision 17. as shown upon the map.
The respondent, however, is not satisfied with this but insists that ^*:i^±2!^_^
under its grant it took titje to the fee of the entire highwav. and thus c^^*'^ ^f"*^
it has so far been held. lyJ^cJU "A«-4^
The theory upon which it bases this contention is that the state was y^^rx.,*,*' *-^
not the owner of or interested in land on the <;pnthpr1y gide ni thi^; ^
highway in such manner as would justify the presumption that it in- '<==Z
tended to retain title to the fee of such southerly half nf g^^irl hjpj^- C^,,^^ ***■ ^^
way. The cases especially relied on in support of this theory are those
of Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 611,
and Johnson v. Grenell, 188 N. Y. 407, 81 N. E. 161, 13 L. R. A. _(N.
S.) 551. Each of these cases involved the principle so far as applica-
ble to this discussion that where a highway has been constructed up-
on the margin of the grantor's land his subsequent grant of the abut-
ting land should be deemed to include the fee in the whole roadbed be-
cause it will not be assumed that he intended to retain the fee to pne-
half of the roadbed under such circumstances.
In the Grenell Case the grantor being the owner of an island in the
St. Lawrence river constructed on its shore a road extending to the
waters of the river, and thereafter made a conveyance of land abut-
ting on said roadway, and it was said by Judge Gray in writing for the
court that "there is no sufficient reason appnrent to infer an intention
by the grantor, when parting with her title to the only land adjoining
the road, to reserve any interest in \\\e. fee of the road itselT! Mani-
festly, from the facts, an inducement to the purchaser of the lot was
its being shown, and stated, to lie upon the shore of the island and
the enjoyment of the riparian advantages conferred a distinct value.
The ordinary presumption is that, in the absence of contradictory
terms, the grantor does not intend to retain Jhe fee of the soil in the
jFeet.;^ 18"8 nTy. 410. 81 N. E. 161.' 13 lTr. A. (N. S.) 551.
I do not regard the facts presented in those cases as so parallel with
the ones arising here as to compel or justify the adoption of the re-
spondent's contention. The state is the owner of the canal and as
already stated between the base line of the canal and the blue line which
bounds the highway on the south there is a strip of land of consid-
erable width~ Under these circumstances it does not follow as a con-
clusion of law that when the state made its conveyance to respondent
it had no interest in retaining the fee to the southerly half of the road- ^^j-^^^^ .^^^^ ^
way or that such retention would secure a useless and barren right. ^On i^*''*'^ .^ ,
tlie contrary, it seems to me that the ownership of this extra strip oi^Mc/^^^^"*^ f, ^^^
t^iirtv-three feet adjoining the canal lands may be a right of much *-< '^^^
value and convenience. Thus again I feel that we should follow the /t^Zi***-* -^
436
DERIVATIVE TITLES
(Part 2
general rule prevailing In the case of grants of land abutting on high-
ways and that no sufficient reason exists for awarding^ to respondent
the title to the fee of the entire roadway instead of one-half thereof.
These views lead to the conclusion that the judgment appealed from
should be so modified as to determine that respondent acquired title
t^ the northerly half of the highway onwhich its said premises aSut
according: to saidGreene map,Jand that it have ejectment against
appellant as to said premises, and as modified affirmed, without costs
to either party on this appeal.
CuLLEN, C. J., and Gray, Willard Bartlett, Cuddeback, and
HoGAN, JJ., concur. Mili^SR, J., not sitting.
Judgment accordingl-^.^*
CHICAGO & E. I. R. CO. v. WILLARD.
(Supreme Court of Illinois, 1910. 245 111. 391, 92 N. E. 271.)
Hand, J. This was an action of ejectment brought by the appel-
lant in the circuit court of Williamson county against the appellees
to re£gver a strip of land described as commencing at the north-west
corner of the south-west quarter of the north-west quarter of sec-
tion 19, township 8. rajige 3 _east, running thence south 275 feet, thence
east 16 feet, thence north 275 feet, thence west lo teet tcTllie place of
beginning, in Williamson county, Illinois; The p-eneral issue was filed,
and upon a trial, at the close of the plaintiff's evidence, the jury, under
the direction of the court, returned a verdict in favor of the defend-
ants, upon which verdict the court rendered judgment, and the rec-
ord has been brought to this court by appeal^ for review.
"The parties claimed title from a common source. It appears from
the record that on April 24, 1894, Felix G. Henderson ^Yifi ^^^ ^^^'^i^^i-
in fee of the south-west quarter of the north-west quarter of said
section 19; that the Chicago, Paducah and Memphis Railroad Com-
pany had located its right of way across said tract of landj that on
that day Henderson conveyed a lOQ-foot strip across said tract, and the
forty-acre tract lying immediately south of said tract, to said railroad
company by the following description : "I hereby sell and convey to
the said Chicago, Paducah and Memphis Railroad Company a strip
100 feet wide across my land, to-wit : Where the hne of said railroad
is now surveyed and located on the west side of the S.W.N.W.qr. and
the N.W.S.W.qr. Sec. 19, Town 8, South, Range 3, East of the third
14 See Banks v. Ogden, 2 Wall. 57, 17 L. Ed. SIS (1S64) ; SclioU v. Eniericli,
36 Pa. Super. Ct. 404 (190S).
A., the owner of lands boimded on the east by a river with a highway run-
ning along the river bank, the east side of the highway being the west water
line of the river, made a deed of a portion of said lands to B., describing the
part conveyed as being "bounded on the east by the highway." By accretion a
considerable tract of valuable land has been formed on the east side of the
highway. The new land is claimed both by A. and B. To whom does it be-
long?
Ch. 3) THE PROPERTY CONVEYED 437
P.M., subject to public road as it now runs, being; 50 feet on each side
of line as now located ;" that on the west line of section 19 there was
located a highway 40 feet wide; that 20 feet of said highway was
upon the Henderson land ; that the west line of the right of way strip
conveyed by Henderson to the railroad company was situated 16 feet
from the section line ; that in 1897 the Chicago, Paducah and Memphis
Railroad Company conveyed all its property, including the right of
w^y purchased from Henderson, to the appellant : that on March 23,
1897, the appellant purchased a strip of land 9D feet wide and 788
feet long adjoining the strip in controversy ^ and other lands on the
\vest, and the old 40-foot highway on the section line was aban-
doned and a new highway 50 feet wide and parallel to and 40 feet
west of the section line was laid out in lieu of the old highway ; that
in 1905 ^Felix G. jienderson conveyed to A. L. Willard the 16-foot
strip in controvers:^ and Green Hindman is in possession of the same
as the tenant of VVillar<j[^.
It is the contention of the appellant that the title to said 16- foot
strip lying between the section line and the west line of appellant's
right of way passed by the deed from Henderson to *the Chicago,
Paducah and Memphis R?iWq^(\ r.nmpany antj frnm that railroad com
pany to the appellant, subject to the right of the public to use the san^e
as a highway, and that the appellant is the owner in fee of said strip,
and that the highway having been abandoned, it is entitlpd tn ihe, pos-
session of said premise^s. The appellees contend that the deed from
llenderson to the Chicago, Paducah and Memphis Railroad Company
only conveyed a 100-foot strip, and that the title to said 16-foot strip
remained in Henderson until it y/^as transferred by him to Willard,
» ^nd that the appellant has no interest in said strip^ and that Willard,
b;^' his. tenant, is lawfully in possession of the same.
It has repeatedly been announced as the law of this State, that where
the fee to the center of a public street or highway is in the adjoining
owner, the fee to the center of the street or highway will pass to jf , O^
a grantee of the premises abutting upon the street or highway unless A^^^^lfx -^-^
there are words in the deed which limit the operation of the deed to the
margin of the street or highway. Hamilton v. Chicago, Burlington &
Ouincy R. Co., 124 111. 2J57TrN. E. 854 ; Thomsen v. McCormick, 136
111. 135, 26 N. E. 373; Henderson v. Hatterman, 146 111. 555, 34 N.
E. 1041; Clark v. McCormick, 174 111. 164, 51 N. E. 215; Davenport
& Rock Island Bridge Ry. Co. v. Johnson, 188 111. 472, 59 N. E. 497 ;"
Huff V. Hastings Express Co., 195 111. 257, 63 N. E. 105 ; Eisendrath
& Co. V. City of Chicago, 192 111. 320, 61 N. E. 419; Brewster ^- /-^
Cahill, 199 111. 309, 65 N. E. 233. The question therefore in this cas^^ )
is^ wasjhe grant limited to the 100- foot strip in the deed from Hender-v>l>^
son to the Chicago, Paducah and Memphis Railroad Company ? We
think an examination of the deed shows th^t^^twas^ The deed does
not in terms describe the premises conveyed as abutting upon the
highway. On the contrary, it conveys "a strip 100 feet wide across
438
DERIVATIVE TITLES
(Part 2
my land," that is, "50 feet on each side of line as now located." At
the time the deed was executed the railroad company was limited to a
right of way strip 100 feet wide. The west hne of the 100-foot strip
was 16 ft. east of the section line, and the east four leet of the 40-
foot highway was thereby conveyed to the railroad company by tlie
Henderson deed. We thifik it probable the words "subject to public
road as it now runs," were inserted in the deed to cover the part of the
highway which was included in the 100-foot strip. The grantor in
the deed manifestly intended to convey to the railroad company^a
strip 100 feet wide across his land, and'no more, for right of way pur-
poses. The strip conveyed was not described as being on, upon or
along the highway, hut the west margin of the strip was four feet in
the highway. We therefore conclude that the title to said 16-foot strip
remained in Henderson until he conveyed the same to Willard, and
that, the appellant having failed to show title in itself to said prem-
ises, the court properlv instructed th^ jury tn return a verdict for
appellees.
The judgment of the trial court will be affirmed. Judgment af-
firmed.
LOW V. TIBBETTS.
r^npreme Jiidicial Court of Maine, ISSl. 72 Me. 92, 39 Am. Rep. 303.)
On Report. Trespass for hauling certain loads of stone upon the
locus which is within the limits of a town way, and the plaintiff claimed ^^_^^
to own the fee. The question presented, called for the construction/? J)
of a deed from the plaintiff to the defendant, dated June 26, 1857. The^--^
description is given in the opinion.
At the trial, the presiding justice was of the opinion that the fee
was in the defendant, and a nonsuit was .oni^red "which is to be set
aside, if such construction of the deed was erroneous."
Barrows, J. The question is, w^hether the fee in the locus (vA^hich
is a strip about twelve rods in length, by forty-four feet in width, bein^
section of a duly located street in the village of Spring Vale, runnjng
blong the bank of Mousam river, cutting a lot formerly owned by the
pjamtiff very unequally, and leaving the largest part of it on the side
farthest from the river, and a little irregularly shaped land between
treet and river) is in the plaintiff, or in the defendant.
After the street was built, plaintiff conveyed his lot to defendant, de-
scribing first_the_more important part, as '^uate in the village of
S£ring__Vale * * * beginning on the north easterly side of the
new road leading from the Province Mills Bridge to the cotton mill,
and at the southerly corner of the lot as now fenced belonging to school
district number one, * * * ^nd running (course given) by said
road * * * to a stake," and thence around the rear of the lot, "to
Ch. 3) THE PROPERTY CONVEYED 439
the place begun at ; also the land now owned by said Low between said
roa.d_and Mousam river."
The well settled doctrine in this State is, that a grant of land bound- \ /^
ed on a highway, carries the fee in the highway to the centre of it. if /C^Z^*"^*"
the grantor owns to the centre, unless the terms of the conveyance / (J (X^j,^^ ^
clearly and distinctly exclude it. so as to control the ordinary presump- \
tjon. Oxton y. Groves, 68 Me. 372, 28 Am. Rep. 75. Here the prin-^
cipal piece is bounded by the road as a monument or abuttal. So is
the land lying opposite "between the road and the river." /^ \
Is there enough in the language used, to exclude the street froin/^ I
the conveyance? The mere mention in the description of a fixec^-^^
point on the side of the road as the place of beginning or end of
one or more of the lot lines, does not seeiTK to be of itself sufficient.
Ciottle y. Young, 59 Me7 105, 109; Johnson y. Anderson, 18 Me. 76;
nor will similar language, with reference to monuments standing on
or near the bank of a stream, in lines beginning or ending at such
stream, prevent the grantee from holding ad medium filum aquae:
Pike y. Monroe, 36 Me. 309, 58 Am. Dec. 751; Robinson v. White,
42 Me. 210, 218; Cold Spring Iron Works v. Tolland, 9 Cush. (Mass.)
495, 496. The case of Sibley y. Holden, 10 Pick. (Mass.) 249, 20 Am.
Dec. 521, cited by plaintiff, was commented on by this court, in Buck-
nani y. Bucknam, 12 Me. 465, and that of Tyler v. Hammond, 11 Pick.
(Mass.) 193, in Johnson y. Anderson, 18 Me. 78 ; and the apparent
force of these decisions is somewhat restricted and explained, by the
learned court which pronounced them, in Newhall y, Ireson, 8 Cush.
(Mass.) 598, 54 Am. Dec. 790, and Phillips y. Bowers, 7 Gray (Mass.)
24; although it is apparent from the last case and from Smith v. Slo-
comb, 9 Gray (Mass.) 36, 69 Am. Dec. 274, that the Massachusetts
court lays less stress upon the ordinary presumption, and requires less
distinctness in the terms of the deed to obviate it, than we have
done in the cases above cited from the 18th, 59th, and 68th of our own
reports. See also, Perkins' note to Sibley y. Holden, in the second edi-
tion of Pickering's Reports, vol. 10, p. 251.
Had the plaintiff run his first line "by the north easterly '=^'^de■ line of
said road/' instead of "by said road," and conveyed the land "lying
between the southwesterly side line of said road and Mousam river,"
instead of that "lying between said road and Mousam river," a differ-
ent question would have been presented.
In the absence of the very f ew y^ord.^ which were necessary to make
plain an intention on the part of the plaintiff to, reser\^e the fee in the ^
land covered by the street to himself, we think the ordinary presump-
tion and construction must prevail.
Nonsuit confirmed. ^° f t^iryi AmA^ \
16 In Sibley v. Holden, 10 Pick. (]Mass.) 249. 20 Am. Dec. .521 (1830), referred
to above, tbe court said : "From this description, we are all of opinion, that
the line must begin on the side of the road, and at that point exclude the road; /^^ ^\
then the question is, whether when the description returns to the road agajpy ' \
e
A
440 DERIVATIVE TITLES (Part 2'
SALTER V. JONAS.
r
r
CTj (Court of Errors and Appeals of New Jersey, 1877. 39 N. J. Law, 469, 23
Am, Eep. 229.)
In Error to the Supreme Court.
This was an action of ejectment for a small strip of land, being one-
'^ half of what had been a public street, in front of a lot of land which
the plaintiS had conveyed to a certain person, and which lot had come.
b}^ divers mesne conveyances, to the defendants. The plaintiff's deed
i conveyed the premises by the following description, viz :
I "All that certain lot or parcel of land, situate, lying and being in
the township of Bergen, .in the county of Hudson and state of New
! ^J^ersey, butted and bounded as follows : Beginning at a stake^ standing
* * * at the junction of tlie easterly line of Rowland street with the norther-
ly line of Johnson street, as laid down on the map of said Salter's
premises, and running thence (1) along the northerly line of Johnson
- street south, twenty-three degrees forty minutes, east, fifty (50) feet,
to a stake; thence (2) norths sixty six degrees east, one hundred (100)
feet, to a stake, thence (3) norths twenty-three degrees and forty min-
utes west, fifty (50) feet, to a stake in the said easterly line of Rowland
street; thence (4) along the same south, sixty-six degrees west, one
hundred (100) feet, to the beginning."
After Rowland street had been used for some time, it became use-
less, in consequence of another street having been opened, and the de-
fendants had proceeded, thereupon, to take in and enclose to the mid-
dle line of the street in front of the lot above described.
At the trial in the Hudson Circuit, the court instructed the jury that
the defendant's deed covered the land in the street which was in dis-
pute, and there was a verdict accordingly. 7^*-u^t*/ Je^ CttJ^ -
The opinion of the court was delivered by "
Bdasley, C. J. This case, as it stands before this court, presents,
/ \ in a distinct form, the question whether in a conveyance of lands
/ <^ \ which, in point of fact, abut upon a street or highway, anything short
/ , j orevprp<;<; wnrHg pf pyrin sign will prevent the title from extending jo
the rnedium filum of such street or highway, the grantor, at the date
it shall be taken to mean the side or the center of the road. If constmed to be
the center, then the remaining line would neither be by the side of the road
nor the center, but by a diagonal line from a point in the center to a point on
the side. This would not only be obscure and inconsistent with any supposed
intent of the parties, but repugnant to the last clause in the description, which
is, 'by said road to the place of beginning.' A^ one point in this lifif is fiv-p^n
by the description to the side of the road, we nrp s.ntisfipri that, bv ^ lust and
necessary construction, the other point must be taken to he at the side of fhp
roaa, and thererore that the soil or the road was not included.'' Cf., how-
everflVIcK^Zirv. Gleason, 1S4 Mass. 452, 69 N. E. 1076, 100 Am. St. Rep. 560
(1904).
See In re Parkway, 209 N. Y. 344, 103 N. E. 508 (1913), where the beginning
point was "at the northwesterly corner of Walnut street and Second avenue."
Ch. 3) THE PROPERTY CONVEYED 441
of such conveyance, being the owner of such street or highway to that
extent.
This is a subject with respect to which the views of judges are much
at variance. The general opinion appears to he that there is so strong /If, ^, ^^ -
a presumption of an intention to convey the soil of the highway when Y(^^*^ iT
the premises granted actually border upon it. that v,g)i'^Ji]ali^^i^ca- ^ (S^-*--**-*-*'
tions of a contrary purPOse^^aT^pj-egn^^ Under the V
operation of such a test, the present deed would not embrace the land
in dispute, for the descriptive words cannot be extended from their
intrinsic force, so as to have so wide a reach.' The jvvordg. here used
will not, if interpreted in their familiar sense, and^standing by them-
selves, admit of being^ taken as deHneatory_o£_any part of the street.
The only point for consideration, therefore, is whether, when the terms
used have this restrictive force, tliey are to lose that force in the pres-
ence of the great presumption to the contrary, which is inherent in the
position of affairs where a lot thus located is granted.
There are, undoubtedly, decisions which tend very strongly to this
point, and others which apparently reach it. The leading cases are
carefully collected, and the general subject judiciously handled in the
notes of Mr. Wallace, appended to the case of Dovaston v. Payne, 2
Smith's Lead. Cas. (7th Ed.) 160. In this series stands prominently
the case of Paul v. Carver, decided by the Supreme Court of Pennsyl-
vania, 26 Pa. 223, 67 Am. Dec. 413.^^ In that instance, the description
carried the lot conveyed by so many feet to a designated street ;
"thence southeasterly along the northerly side of said street," and the
street thus referred to was afterwards vacated, and it was held that
half of it passed with the lot that was thus bounded by its northerly •
side. This result was justified on the broad ground "tliat the par-
amount irit^gy^(j)f the parties, as disclosed from the whole scope of the
conveyance, and the nature of the property granted, should be the
controlling rule.'' A number ot decisions, bearing a similar aspect,
are cited in this opinion, which also displays, with much clearness, the
impolicy of the opposite view. The commentator, with reference to
this case, and other decisions, thus sums up the result: "The rule,
therefore, which the Pennsylvania courts regard as the true one, and y^
which, perhaps, on the whole is the wisest one, would seem to be that Ud. • Q^-Kt^Q'
nothing short of an intention expressed in ipsis verbis, to 'exclude' the "
soil of the highway, can exclude it."
And this doctrine, although it cannot be said to be sustained by the
greatest number of decisions, is, I think, the one that ought to be adopt-
ed in this state. In our practice in the conveyance of lots bounded by
streets, the prevailing belief is, that the street to its centre is conveyed
with the lot. Among the mass of the people it is undoubtedly supposed
that the street belongs, as an appurtenance, to the contiguous property,
and that the title to the latter carries with it a title to the former. This
16 See, also, Cox v. Freedley, 33 Pa. 124, 75 Am. Dec. 5S4 (1859),
442 DERIVATIVE TiTt.ES (Part 2
belief is so natural that it would not be easily eradicated. As a general
I^ractice, it would seem preposterous to sever the ownership to these
several particles of property. Under ordinary circumstances, the
tl^ead of land constituting the street is of great value to the contiguous
lots, and it is ot no value separated from thenT It would rarely occur
that the vendee ot a city lot would be willing to take it separated in
ownership from the street, and it would as rarely occur that a vendor
would desire to make such severance. In my own experience, I have
never known such an intention to exist, and it is safe to say that when-
ever it does exist, the conditions of the case are peculiar.
And it is the very general notion that these two parcels of property
are inseparably united, and pass as a whole by force o-f an ordinary
conveyance, that accounts for the absence of any settled formula in
general use for the description of city lots in a transfer of their title.
Upon an examination of such conveyances, it would, I am satisfied, be
disclosed that the utmost laxity in this respect prevails. The property
conveyed is indiscriminately described as going to the street and run-
ning along it, or as going to one side of such street and thence running
alon^cr such side. Such discriminations are not intentional, the purpose
being to convey all the interest that the seller has in the property and
/ in its belongings, and the mode of accomplishing this purpose is not
the subject of attention, the street lot, as I have said, being regarded
as a mere adjunct of the property sold, and worthless for any other
use. Tjiis being undeniablv the practice and general understanding.
to give a close and literal meaning to the descriptive terms employed
in such instances would serve no useful purpose, but its tendency
would be to defeat the object in view, and to call into life a vexatious
litigation. The particular words should, in such transactions, be con-
trolled and limited by the manifest intention which is unmistakably dis-
played in the nature of the affair and the situation of the parties.
When the conditions of the case are altered, as if the vendor should,
in a given case, have an apparent interest to reserve to himself the par-
cel of street in question, a different rule of interpretation might become
proper. So if the abutting street referred to in a conveyance should
be such only in contemplation, and should be contingent on the will of
the vendor, the rule now adopted might not, and probably would not,
be applicable. But where the street is an existing highway, or has been
dedicated as such by the vendor, or in case, by the eftectof his con-
\'^yance, he imposes on himself the obligation to devote the street to
the public use, the rule then becomes the criterion by which the sense
of the deed is to be ascertained.
The only case in our books that I deem entirely_apposite to the pres-
ent inquiry, is that of Hinchman et al. v. Paterson Horse Railroad
Co., 17 N. J. Eq. 75, 86 Am. Dec. 252. The extreme fitness of this de-
cision, as an authority at this time, does not appear upon reading the
report of it; but I have looked at the original papers on file, and have
found that in some of the deeds in that proceeding, the descriptions of
Ch. 3) THE PROPERTY CONVEYED 443
the boundaries of the lots are not distinguishable from the one now
under our view. Those lots were described as beginning at a fixedj
point on a designated side of the street, and thence along such designat-
ed side, &c., as in the present instance. The descriptive words, there-
fore, were clear, and if they were not overruled by the predominant
presumption of intent arising out of the nature of the act done, it was
impossible to hold that any part of the street passed to the vendee.
But Chancellor Green did hold that the parcel in the street passed,
saying: "It is objected, by the defendant's answer, that the complain-
ant's titles do not extend to the middle of the street, because the lots,
as described, are bounded by the sides of the streets. But the estab-
lished inference of law is. that a conveyance of land, bounded on a
public highway, carries with it the fee to the centre of the road, as part
and[ parcel of the grant."
I do not know how this decision is to be sanctioned, except upon the
ground already marked out. I regard the case as directly in point, and
it is unnecessary to sav that it is of the highest authority.
The result to which I have come is. therefore, that this conveyance
embraces the parcel of land in the street, for the reason that there are
no express words of exclusion of such parcel.
^'I'lie consequence is, the juagment of the court below should be af-
firmed. with costs.^'' ^A/^itit^*^ <|^^v d'*^ . ~"
17 See Bu^k v. Squiers, 22 Vt. 4S4 (1850), contra. Redfielri, .T.. dissenting.
"Coiuinir. then, to the ca«e in hand, I find nothing to exdude the bed of the
stream, except the va}:ue words, 'h?etrinniiig at n noint in tlie easterly bank of
tlie I'assaic,' and the furtlier words, 'to tlie easterly line of the Passaic river
and thence along the easterly line of the~l';issaic river the several courses there-
of.' etq. These words are no^inore indicative of an intention to excluile the
stream than were the corresnondTiig words 1(1 billter v. Juilil^. To ^■Vt7rrnJg~t he
street. In both "the easterly line' is declared in terms to be the boundary. Hut,
looking at the surrounding circumstance^ 1 find no more reason for giving
them an exclusive effect in the one t-ase than in the other." Simmons v. City
of I'aterson, 84 N. J. E(i. 28. 2i), 94 Atl. 421. 424 (1915). But see Whittier v.
Montpelier Ice Co. (Vt.) 90 Atl. 878 (191<J), contra.
"The defendants contend that the clause in the deed from Baldwin to Reeves
and from Reeves to the plaintiff, "thence northeasterly on the river shore,' lim-
its and restricts the grant to the hank or shore of tlie river. In Woodman v.
Spencer. 54 N. H. 507 (1874) this question was considered in respect to land
bounded bv a highway, ana it was there held that thp pyprpssjnns 'on the high-
way' and 'by the side of the nigmvay' were identical in meaning and effect ;
and this view is fully sustained by IJovaston v. I'aine, i; sm. L. C. (H. & W.
is'otes) 21. 'i, 217, 2!W, '2.84. '285, 2:17, 2.88 (179.-j) ; Motley v. Sargent, 119 Mas.s. 281
(1875) ; Peck v. Denniston, 121 Mass. 17 (ls7f.) ; O'Connell v. Bryant, 121 Mass.
557 (1877). The rule is a presumed understanding of the parties that the
grantor does not retain a narrow strip of land under a stream or other highway,
hppnnse the title Of it left in him would generally be of little use, except roFa
purpose of annoyance and litigation." Sleeper v. Laconia, 60 N. H. 201, 49
Am. Rep. 311 (1880). Starr v. Child, 20 Wend. (N. Y.) 149 (188S). ace. ; Brou-
son, J., dissenting. In the Court for the Correction of Errors, Starr v. Cliild
was revei-sed by a vote of 11 to 10. 4 Uill, 809 (1842).
\ ]{UduJi4L
DERIVATIVE TITLES
TROWBRIDGE v. EHRICH.
(Part 2
(Court of Appeals of New York, 190S. 191 N. Y. 361, S4 N. E. 297.)
Haight, J. This action was brous^ht to determine the title to a
Triangular piece of land lying at the intersection of Westchester
and Stebbins avenues, bounded on the west by Stebbins avenue, on
the southeast by Westchester avenue, which intersects Stebbins avenue
diagonally, and on the north by the southerly line of three lots owned
by the defendants Ehrich, Spaeth and the Hudson Realtv_Xompanv.
'The property in question was formerly owned by the plaintiff and was
'located in the twenty-third ward of the city of New York. In the year
1882 she caused a map of her property to be made and Jiled in the
office of the register, showing the location of the streets existing and
proposed, with which her property was bounded and intersected. Tl^is
map corresponded with a prior map filed in 1878 by the park commis-
sioners of the city showing the proposed location of streets in that part
of the city, which the commission designed to have opened as streets
of the city and upon which Don^an street, as mapped, intersected West-
chester avenue and extended ma straight line to Stebbins avenue, cov'
enrip^ the triancrnlar parcel in dispute. Thereafter and in the year 1882
the plaintiff conveyed to Bertha Eck a parcel of land designated, on the
map filed by her in the office of the register No. 892, as lot number one
in block 513 on said map and particularly described as follows.: Be-
ginning at a point where the northerly line of One Hundred and Sixty-
Third street intersects the easterly line of Stebbins avenue ; running
thence easterly along the northerly line of One Hundred and Sixty-
Third street 30 feet; thence northerly and parallel with Stebbins
avenue 128.71 feet; thence westerly and parallel with One Hundred
and Sixty-Third street 30 feet and thence southerly and along the
easterly line of Sfebbins avenue 128.71 feet to the point or place of be-
ginning. One Hundred and Sixty-Third street had not been opened
through to Stebbins avenue. Had it been, its lines would nearly have
corresponded with those ^ven upon the map filed by the park commis-
sioners as Dongan street, which was followed Dy the plaintiff in the
rnap hied by hen We, therefore, conclude that the plaintiff, in her
reference to One Hundred and Sixty-Third street had reference to the
northerly line of the street as given upon the map filed by her. The
d^^£jidajat Ehrich, through subsequent mesne conveyances from Bertha
Eck, has become the owner of the lands so deeded to. _hei\
The trial court has found that the defendant Ehrich has become the
owner in fee of that portion of the premises described as Dongan
street in front of those specifically described in the deed. We readily
concede the correctness of the contention that where an owner of real
estate files a map of his premises in the office of the register, upon
which is laid out streets and avenues, either existing or proposed, and
deeds with reference to such streets and avenues, running to such
^b^^^
Ch. 3) THE PROPERTY CONVEYED '44&
streets and along such streets it will be construed to have been the in-
tention of the grantor to convey to the center of such streets or ave-
nues. But this case is distinguishable. The plaintiff has been careful
to commence her ^description of the jjroperty conveyed at the intersec-
tion of the northerly li^ie of One Hundred and Sixty-Third street with
the easterly line of Stebbins avenue. The commencing point, there-
fore, is at the external line of the street and continues ea'^fpfly alaao-
tlie northerlv line of the street. Had she commenced at the intersec-
tion of the two streets and thence ran along the street it would have
been apparent that she intended to convey to the center of the street, ,
but as we have seen, she_has placed the boundary at the northerly line. \ m^Tm^^^!(,j^^^^^
tluis indicating an indention not to include the fee of the proposed ^^;»^ *
street. It is true that she has executed this deed in accordance with the Vi*^ A^Aa**^
provisions of the map filed by her, upon which she designated this •t^i. ^ yL'^-*' *^
space as a street and by reason thereof the grantee acquired an ease- *w«^ *
ment in it of light, air and access, but not the fee. ff'^''**^*^
The trial court, in determining that the grantee acquired the fee as
well as the easement in the street, relies upon the cases of Matter Q.f "i ^* ^P Cjbt^
Ladue. 118 N. V. 213. 23 N. E. 465. and Hennessv v. Murdock. 137 % •
N. Y. 317, ZZ N. E. 330, but in neither of those case's were the bounda- Aa^U*^--*^^
ries given of the property conveyed limited to the exterior lines of the C^ ■*■»■* /^v-^r*
street, and that is the distinguishing feature between those cases and
this. It is said that she had no reason for reserving the fee to this
particular parcel, It is quite apparent to us that she had a reason ; a
map had been filed by^ the officers of the citv. bv which it was proposed j-4xA /'t-*«'«»*»<'^
to take this identical parcel for the purposes of a street : when so taken
she would be entitled to compensation from the citv for the value
thereof. She, therefore, in executing this deed saw fit to limit the fee
conveyed to the exterior boundary of the street, but by conveying the
land with reference to the street she necessarily included the easements
of light, air and access.
On the 12th day of October, 1886, the plaintiff conveved to Mathew
Farrell another parcel of land embraced in the map filed by her as lots
numbers 3, 4 and 5 of block 513. beginning at a point formed by the " *
intersection of the northerly side of Westchester avenue with the west-
erly side of Rogers place ; running thence along the westerly side of
Rogers place 33.82 feet ; thence westerly and at right angles to Rogers
place 176 feet; thence southerly and parallel with Stebbins avenue
128.71 feet; thence easterly at right angles to Stebbins avenue 40 feet
and thence northerly along the northerly side of Westchester avenue
166.93 feet to the point of beginning. The third course, .running
southerly and parallel with Stebbins avenue 128.71 feet, in fact carried
the line to the street marked upon her map, and thence easterly at right
angles, to Stebbins avenue 40 teet^ in fact carried the line along such
stre^t^ This was equivalent to a designation of the street in the run-
ning of the line, as. tp and along the same. Van Winkle v. Van Winkle,
184 N. Y. 193, 204, 77/N. E. 2>Z ; Hennessy v. Murdock, 137 N. Y. 317,
446
DERIVATIVE TITLES
(Part 2
5
A
4>
323, 33 N. E. 330; Sizer v. Devereux, 16 Barb. 160; Champlin v.
Pendleton, 13 Conn. 23, It will be observed that, by the description
given in this deed, the exterior lines of the streets are also followed ;
but bv a subsequent clause she states that the convevance is to include
all the right, title and interest which she has to that portion of West-
cnester avenue and Rogers place "Ivinp;- in front of and adjacent to
said lots to the center of said avenue and place, as laid down on said
map, ' tnus indicating an intent to convev to the center of the streets.
Again, on the 23d day of August, in the year 1890, the plaintiff con-
veyed to Tames G. Patten and William H. Sutcliff another parcel of
land described upon the map filed by her as lot number 2 in block ^13,
beginning at a point on the northerlv side of Westchester avenue, dis-
tant 30 feet easterly from the corner formed by the intersection of said
northerly side of Westchester avenue with the easterly side of Steb-
bins avenue ; running thence northerly parallel with said Stebbins ave-
nue 128.71 feet; thence easterly and at right angles with said Stebbins
avenue 30 feet; thence southerly and again parallel with Stebbins ave-
nue 128.71 feet to said northerly side of Westchester avenue, and
thence westerly along said northerly side of Westchester avenue 30
feet to the place of beginning. In this deed she has designated tJie
s^eet which. she marked upon her map as Westchester avenue, which
in her first deed she called One Hundred and Sixtv-Third street. By
a subsequerit clause of her deed she provides that it includes all of her
right, tide and interest^^. in and to that portion of Westchester ave-
nue lying in front of and adjacent to said lots to. the center of said
avenue," thus indicating an intent to convev a fee to the center of Jhe
avenue.. The defendant Spaeth, by subsequent mesne convevances. has
acquired the title of Patten and Sutcliff and the defendant, the Hudson
RealtyjCompany, has. acquired the title of Farrell.
Our conclusion, therefore, is that the judgment appealed from should
be modified in so far as lot number 1 is concerned, owned bv the de-
fendant Ehrich, so as to limit his title in the lands in controversv, to
the easements of li.ght^ air and access, with the right to have such lands
kept open and used as a street, and that as so modified, the judgment
should be affirmed as to him and the other respondents, with costs to
the respondents Spaeth and the Hudson Realty Company, but without
costs to either party as to the respondent Ehrich.
CuLLEN, Ch. J., and Gray, Vann, W^erner, Willard Bartle:tt
and Chase, JJ., concur.
Judgment accordingly.
Ch. 3) *HE PROPERTY CONVEYED
u>^n
DODD V. WITT. ^^v^ / / ^^ ■ '^
N: k 47^, '^^^^
(Supreme Judicial Court of Massachusetts, 18S5. 139 Mass. 63, 29
52 Am. Rep. 700.)
Writ of entry to recover a parcel of land in North Adams. Plea, nul
disseisin. Trial in the Superior Court, before Gardner, J., who di-
rected a verdict for the demandant, and reported the case for the de-
termination of this court. The facts appear in the opinion.
Field, J. Thp dem^udeA premi'^P'; are a__s1jip tvyn yods wide on the , ,,^
westerly end of the lot described in the demandant's deed. The de- H^ic*-'''***'*'**'
mandant derives title from Reuben Whitman, who in May, 1866, con-
veyed the premises to Thomas H. Lidford by a description as follows :
"Commencing on the road at the southeast corner of the land that I •
gave D. H. Raymond a bond to convey; thence west 22 deg. 30 min. 1-Ia.aA**^**^ j '^
N. ten rods; thence south 22 degrees 30 minutes west four rods; ^-^^^^^^j^^
thence east 22 degrees 30 minutes S. ten rods ; thence soutTi" on the (j^ ' ^^ —
road to the place of beginning." The descriptions in the inesne con- yt^yC^ ^*»*-r
veyances are substantially the same. The road was four rods wide,
and Reuben Whitman when he executed his deed owned the fee of
^W— ^i^—— < ^ 11 >i*— — ■^■w— ^^^i.— — ■ II I !■ I—.— —i— 1,11 11 ■■■■■■II iiwi» I la^i— — ^iWWi—^—
i_t. The deed therefore conveyed the land to the centre line of the
highway. Peck v. Denniston, 121 Mass. 17; O'Connell v. Bryant, 121
Mass. 557.
The tenants contended, that, by the construction of the deed, the
side lines of the demanded premises extended ten rods from the centre
line of the highway, or ei.ght rods from the westerly side of the high- [/^^^^^ ^"^"^
way; or, if this were not the true construction, that there was an -fg-z^^^^
a^rimguitv in the description ; and they offered "John Lidford, father
of said Thomas H. Lidford, as a witness to prove that at the time of
the execution of the above-mentioned deed from Reuben Whitman to
Thomas H. Lidford, the said witness was present; and that said Whit-
man measured on the west line .of the road above mentioned westerly
ei^ht rods, and fixed a monument :Ht ^^""^ nnrthA,vpst corner of the lot;
thence soutlifrly four rods to the southwest corner, and fixed a monu-
ment: thence southerly eight rods to the west side of the highway;
thejice on the highway to the place of beginning; that his son Thomas
H. Lidford and himself built a fence ^rrn^< th<^ yrect pnH nf said lot
from corner to corner, as indicated by the monuments thus erected, at
the time of said deed to Lidford, which f^nce remained until after the
demandant went into possession under his deed; that the land inchided
within said measurement was all that Thomas H. Lidford purchased %
as he understood it at the time, except that he was told by Whitman "^ (jXP^^*^ ^
that his grant really extended to the centre of the highway, which Jie ^ • /^ ^
was told was four rods wide." The court excluded this testimony. i^''*-V^'^ '^ j
arid ruled "that there was no ambiguity in t"h'e deeds offered by the *
plaintiff; that the monument called for 'on the road' was by the side
of the road, and not the centre of the road;" and directed the jury
448 DERIVATIVE TITLES (Part 2
to render a verdict for the demandant. This is a ruling that, by the
t^ y^>-vtr»«^cqn.struction of the deed, the lines extended ten rods from the westerly
^1^1^^ 1/ 'jj sjde of the road.
>v^^'*-^ ^^^f) In Peck V. Denniston, ubi supra, Chief Justice Gray says : "The
jrZ< /VO"**"^ general rule is wgll settletj that a boimdary on a way, public or pri-
vate, includes the soil to the centre of the way, if owned by the grantor,
and that the way, thus referred to and understood, is a monument
wnich controls courses and distances, unless the deed by explicit state-
ment or necessary implication requires a different construction. New-
hall V. Ireson, 8 Cush. 595, [54 Am. Dec. 790]; Fisher v. Smith, 9
Gray, 441; Boston v. Richardson, 13 Allen, 146; White v. Godfrey,
97 Mass. 472; Motley v. Sargent, 119 Mass. 231."
Not one of these cases, however, considers the construction to be
given to a deed in which a highway is a point of departure for a meas-
In Newhall v. Ireson, ubi supra, the line was "running northerly
seven poles to the county road, and from thence upon the road twenty-
two poles to the first-mentioned bound." The seven rods terminated
on the north at an old wall, which formerly constituted the southerly
boundary of the road. The court held that the line ran to tlie centre
of the road, although this was more than seven rods.
The rule is stated in Motley v. Sargent, ubi supra, as follows : "It
t /^^L^-^^s a general rule of construction that where there is a boundary upon
^^•^•^^•^y' ^ a fixed monument which has width, as a way, stream, or wall, even if
jtj.jL'^^ the measurements run only to the side of it, the title to the land cot^-
\^ , veyed passes to •Qie line, which would be indicated by the middle^
"^ the monument." ~ ~~~~ '
I ... M
The rule is then well established when the road is the terminus ad
quem, but there is little authority when it is the terminus a quo, and
tliere is no monument at the other end of the line.
A majority of the court is of opinion, that it is a common method
of measurement in the country, where the boundary is a stream or
way, to measure from the bank of the stream or the side of the way;
and thjt there is a reasonable presumption that the measurements
were made in this way, unless sometliing appears affirmatively in^^e
d^ed to show that they began at the centre line of the stream or Vv^ay.
The ruling of the court, in the construction of the deed, was therefore
prima facie correct, as there was no monument to determine the other
end of the line. But this presumption can be controlled by evidence
that the parties at the time of the convevance established monuments
of the boundaries. Without determining whether, in this case, there
can be said to be a latent ambiguity in the deed, (see Hoar v. Gould-
ing, 116 Mass. 132), or merely an indefiniteness in the description, we
lyu are of opinion that the acts of the parties contemporaneous with the
' \ delivery of the deed in fixing the monuments, and the subsequent fenc-
. » ing of the lot and the occupation in accordance therewith, are admissi-
J-
cA
(t*'
r
Ch. 3) THE PROPERTY CONVEYED 449
ble in evidence upon the constracliOB to be g^iven to the deed. Blaney
V. Rice, 20 Pick. 62r32"Am7Decr204 ; Stewart v. Patrick, 68 N. Y.
450; Hamm v. San Francisco (C. C.) 17 Fed. 119.
New trial. —^<^. /-
SECTION 2.— EXCEPTIONS AND RESERVATIONS
DORRELL v. COLLINS.
(Court of Queen's Bench, 1582. Cro. Eliz. 6.)
Ejectione firmas. Upon not guilty, the jury found that the master
and scholars of the college of Sinkford were seised in the time of
Hen. 8 of the manor of Hodley, of which the place, &c. is parcel, and
let all their lands in Lambehurst (except the manor of Hodky., -in
Kent, and Sussex) to T. S. for years: and they further find, that the
master and scholars had no other lands in Lambehurst than the said
manor. The question was, if the manor passeth by the lease? And
all the Court held, that it being found they had no other land than the
manor, the exception is void, because it goeth to the whole thino-
demised ; otherwise of an exception of part * ♦ * i» ^
^U*-^'
WHITAKER v. BROWN.
(Supreme Court of Pennsylvania, 1S63. 46 Pa. 197.)
Error to the District Court of Allegheny county.
This was an action of trespass vi et armis, by Anthony Whitaker
against William H. Brown, to recover damages for breaking and en-
tering the plaintiff's close, and for digging, mining, and carrving awav
thirty-nine thousand six hundred and twentyfive bushels of bituminous
coal, and converting and disposing of the same to his own use.
After the plaintiff had offered all his evidence, the defendant's coun-
sel moved the court to enter a peremptory nonsuit under the Act of
Assembly, which was done, and this was the error assigned here.
The facts of the case are sufficiently stated in the opinion of the
court.
Woodward, J. On the 14th of March 1853, Boyle Irwin and wife
conveyed by warranty deed, six and a half acresjof land in Allegheny
18 The remainder of the ease is omitted.
Cf. Foster v. Rank, 109 Pa. 291, 58 Am. Rep. 720 (1SS5) ; Adams v. Warner,
23 Vt. 395 (1851).
A conveyance is made of a tract of land, describing same "excepting one acre
with the buildings thereon." What would be the result thereof?
Aig.Prop.— 29
^ cfCc^
> t .
<S^<?>^
450
y%
DERIVATIVE TITLES
(Part 2
county, to ATlthony Whitaker in fee, "he, the said Boyle Invin, saving
and reserving nevertheless for his own use, the coal contained in the
said piece or parcel of land, together with tree ingress and egress bv
wagonroad to haul the coal therefrom as wanted." Boyle Irwin is
dead, and his rights in the coal, if descendible, are vested in his heirs,
the defendant justifies his entry to take coals.
V*^^--"^ . IIT
It is argued that the above clause of the deed constituted a strict
and tprhniral rpsprvafinn^ whirh, having no words of perpetuity, died
with Irwin, and t^"'^r'^f''"'f th?t \\'1iitnl'pr now has a several and ex-
clusive title to all the rnnl in the land conveyed to him. On the Other
hand, the argument is, that it was iiot a reserv'ati^n biit an exception,
nd therefore that no title to the coalpassed to Whitaker by the deed.
he question is. whether the words of the deed constituted a reserya-
lon or an exception.
Although they were apt words to constitute a reservation, yet so far
as they affect the coal, they must operate as an exception, because the
coal was a corporeal her.£ditamgut, in^^^sse at the date of the deed,
part of the land itself, and therefore not the subject ofa reservation.
Says Lord Coke, "note a diversity between an exception (which is
ever of part of the thing granted and of a thing in esse) and a res-
ervation, which is always of a thinof not in esse, but newly created, or
reserved out of the land or tenement demised." And his criticism
upon the word reserve is as follows: "Reserve cometh of the Latin
word reserve ; that is, to provide for store, as when a man departeth
with his land, he reserveth or provideth for himself a rent for his
own livelihood. And sometimes it iiath the force of saving or ex-
cepting." 2 Thomas's Coke Litt., star page 412. And so in Shcp-
pard's Touchstone we read that "a reservation is a clause of a defd.
whereby the feoffor, donor, lessor, grantor. &:c.. doth reserve some
new thing to himself out of that which he granted before. . This doth
differ from an exception which is ever a part of the thing granted,
and of a thing in esse at the time ; but this is of a thing newly created,
or reserved out of a thing demised that was not in esse before,
so that this doth always reserve tliat which was not before, or
abridge the tenor of that which was before.^® If one gr?^nt land yield-
ing for rent money, corn, a horse, sours, a rose, or any such things, tliis
is a good reservation ; J)ut if the reservation be of the grass, or of
the vesture of the land, or of a common or otlie^jrofit to be taken
19 See Emerson v. RIooney, 50 N. IT. 315 (1S70), which determined the extent
of the iiliiintiff's ri^lit to t;ike water thruUKh ;in ;iT|iiHiiii(r nolli !i wt^il uii ilije
defeiulaiit s land! Tlie pliiintiff had duii a well on the land Avhicb later came
to the defendant, and liail laid an aqnednct from the well to certain Imildiiigs
on.otiier lands. A conveyance had been made by plaintilf to the defendant's
prede<vssor of all "rijrht. title, and interest in and unto {lie acjiieduct well, and
aquednct leadinj; therefrom, to the places liefore mentioned, •pxct^ptin r tlie
branch taken and carried to Dudley Barker's shed. .nj^Mvealily to Ins deed from
me dated November 1), A. I). 184.']. and ilTso all my ri;;ht of usina all necessary
w'^Ter~at my taKe-onis. viz..' etc. It was held that plalutilt's right: to, the
water was not limited to his lifetime. *" ~
Ch. 3) THE PROPERTY CONVEYED 451
out of the land^hen these reservations are void." Touchstone, p.
80, et seq. Void, I take it the meaning is, as reservations, but capable
of support as exceptions. In the case of The Earl of Cardigan v.
Armitage, 2 B. & C. 197, the words of the deed were "except and al-
ways reserved," and they were applied, among other things, to all the
coals in the land granted, together with right of way to take them.
Bayle, J., treated this^s an exception of the coals which were part
PL the thing granted, part of the land, and in esse at the time, and
because they were nevei^out of the grantor, would have remained
to him and his heirs, even without the word heirs, which happened
in that instance to be added. In respect to tlie right of way, he quoted
the rule from the Touchstone, that when anything is excepted, all
things that are depending on it, and necessary for obtaining it, are ex-
cepted also. *
This case is very much in point — indeed it is a direct authority for
the ruling below, and it has been recognised and followed in subse-
quent cases. Fancy v. Scott, 2 Man. & Ryl. 335 ; Douglass v. Lock,
4 Nev. & Man. 826.
In cur own case of Shoenberger v. Lyon, 7 Watts & S. (Pa.) 184,
the words "excepting and reserving" were construed an exception, but ^
were set aside on the prmciple that every saving in a deed as lar'ge as
the grant, is void.
Thus it appears, upon sufficient authority, that words of reservation
rnay operate by way of exception, and to have any effect, must do so
when the subject Of the reservation is not something newly created,
as a rent or other interest strictly incorporeal, but is a thing corporate
and m esse when the grant is made. That the coal in question was
land is not to be doubted, since the case of Caldwell v. Fulton, 31 Pa.
475, 72 Am. Dec. 760. As such, it would have passed under Irwin's
deed to Whitaker, had it not been excepted out of the grant. At the
date of the deed, Irwin held it in fee simple, and because it did not
pass by the conveyance, he continued to hold it in fee. The word
heirs was not necessary in the reservation, for an estate of inl-|pp'taru:p.
existed already in Irwin, and, unimpaired bv the conveyance, it de-
scended to his heirs at his death. And so also the right pf_way, ex-
pressly annexed to the estate in the coal, was saved by the exception.
and descended to the heirs. The law would have given it if the par-
ties had not expressly reserved it.
But what was the extent of the coal reservation ? It is an undoubted
rule that an exception in a deed is to be construed most strongly
against the grantor, and most favourably to theg^rantee. And upon
tliis principle it is claimed, that it was only a special and temporary
use of the coal that was reserved to Irwin himself, a right to use the
coal during his life, but which ceased at his death. We cannot so
read the clause. "The coal contained in said piece or parcel of land"
was the subject of the reservation. If that means less than the whole,
how much less? what proportion of the coal was reserved? Words
452
DERIVATIVE TITLES
(Part
not larger than these were construed to mean the whole of a coal right
in Caldwell v. Fulton, and we confess we should not know by what
rule to restrict these words if we felt called upon to impose a restric-
tion where the parties imposed none. Do tlie words "for his own
use" amount to a restriction? Sometimes the use is limited in point
of duration, as while the grantee is tenant of a particular messuage,
or so long as he manufactures a specific producl;ion ; but here it is as
general and absolute as so few words could make it. "For his own
use," means, in such a reservation, the same dominion and proprietor-
ship over the coal that he would have had if he had made no deed for
tie land. He held it for his own use in all the forms that it was ca
pable of being used at the date of his deed — he held it just as absolutely
after his deed was delivered
'The judgment is affirmed.^^" {^fiu,J2^ ^>»^>v<u^
U^ \*jlJU
55
d^HA^
KISTER v. REESER.
(Supreme Court of Pennsylvania, 1881. 98 Pa. 1, 42 Am. Rep. 608.)
IVegpass .fluare claiisum f regit, by Isaac Kister against George Rees-
er et al. On the trial, before Fisher, P. J., the following facts ap-
peared :
By indenture dated September 30th, 1865, William Reeser and wife
granted and conveved to Henry H. Drorbaugh and his heirs a tract of
land containing about nineteen acres^part of a larger tract of land
owned by the said William Reeser in fee. This deed contained the
following clause : "The said William Reeser doth_reserve a road ten
feet wide along the line of Joseph Burger, to be shut at each end by
a bar or gate." Burger's land formed one of the boundaries of the
tract granted.
By indenture dated November 13th, 1867, Drorbaugh and wife
granted and conveyed the said tract to Isaac Frazer and his heirs.
This deed contained the following recital : "This being the same tract
of land tliat William Reeser deeded to Henry H. Drorbaugh by deed
dated the thirtieth day of September A. D. one thousand eight hundred
and sixty-five, wherein said William Reeser reserves a road ten feet
in width along thelmeof Joseph Burger's land, to be shut at each end
with a bar or gate/*
By indenture dated December 9th, 1867, Frazer and wife granted
and conveyed the same tract to Isaac Kister and 1^;§ heirs. This deed
also contained the last-mentioned recital.
2 0 In Fancy v. Scott, 2 Mann. & R. 335 (1828), there was a declaration in
trespass for breaking and entering the plaintiff's close, spoiling the grass, and
digging peat and turf. The defendant in his plea, set up that he had leased
the said close to the plaintiff resendng all pits, quarries, and mines, etc^ To
this plea there was a demurrer. In sustaining the demurrer Bajley, J., said,
"The pleas are clearly bad. A landlord cnnnof. r(;^aerve a component part of tlie
land demised or granted, as he iias done here."
Ch.3)
THE PROPERTY CONVEYED
453
William Reeser died in March, 1872. Prior to his death the said
William Reeser, by indenture dated March 3d, 1872, granted and con-
veyed to his son, George Reeser. Sr.. one of the defendants, another
portion of the said large tract of land. This deed contains no mention
of the privilege of the said' road reserved by the said William Reeser , .
in his deed to Drorbaugh. George Reeser, Sr., however, claims under /» '*< •'^'^'©^'^'^
the said reservation the use of a ten-feet-wide way over tlie land of.
Isaac Kister along the line of Joseph Burger.
In April, 1880, Isaac Kister placed a permanent fence at each end
of the line of reservation mentioned in the deed of William Reeser to
Drorbaugh. A short time afterwards George Reeser, Sr., and the
other defendants, broke down the said fences, entered upon Kister's
land, and drove a wagon across the same. For this alleged trespass
(X(k^UU>.0UA
Igaac Kister brought this suit. ' ' \2^
The plaintiff requested the Court to charge, substantially, that the **-^L4« X^H^
right to a road reserved by William Reeser in his deed to Drorbaugh O
not jTaying'beepreserved to the hei rs and assigns of ^Villi^im Reeser.
ceaseTanH determined' on the deathT^ William Ree-^er in ATarc|i^ 187^. C^rfjt^^ g€c^
4n^!^thaTTuch reservation was no justificationiif the trespass commit=-^- (JjC^i.a-aX
ted by the defendant., TheCourt declined so to charge. O'^
The defendants submitted, inter alia, the following point :
2. That under the legal effect of the reservation in said deed from ^ #/c«».rf^d^
William Reeser to Drorbaugh, the portion of land ten feet wide along iTTl* •
the line of Joseph Burger, for the use of a road, is excepted out of the ^Crvt-^CtC^uc-en
grant, and remained as it was before for tlie purposes of a road ; that
the evident purpose of said reservation was to furnish egress and rer
gress from the other lands of the gj^rantor to and from the public rQgd
leading to Goldsboro', and the defendant, being the owner of those
other lands, had a legal right to pass in and out to said public road, over
the said land reserved in said deed, and committed no trespass in do-
ing so.
Answer. Under the reservation in the deed of William Reeser and
wife to Henry H. Drorbaugh for nineteen acres and thirty-five perches,
dated September 30th, 1865, the defendant had a legal right to pass
over the road reserved Jn said deed, and did not commit a trespa^
by entering as he did the premises of the plaintiff.
The Court further instructed the jury that the plaintiff was not en-
titled to recover, and directed them to find for the defendants-
Verdict accordingly for the defendants, and judgment thereon. The
plaintiff took this writ of error, assigning for error the answers to
points as above, and the instruction to find for the defendants.
Trunkey, J. William Reeser, by deed dated September 30th, 1865,
conveyed to Drorbaugh part of a tract of land which he then owned,
and Drorbaugh's title has been vested in the plaintiff. The deed con-
tains this clause: "The said William Reeser doth reserve a road ten
feet wide along the line of Joseph Burger, to be shut at each end with
a bar or gate.'' Prior to the conveyance there was neither a public
454 DERIVATIVE TITLES (Part 2
nor private road over the land. The owner in fee of land may travel
over it when and where he pleases, and it would be vain to speak of
his right of way within his lines. William Reeser died in 1872. The
court properly treated the question as one of law ; for, aside from the
conceded facts, there was no evidence to affect the construction of the
deed or clause of reservation. If tha^laus^^r^xception of land
ten feet wide, next to Burner's ime^n^pIamtir^va^To^CTtitled to
recover! But if it is a reservation of a way over said land, the def en d-
ants were tresj^sers. i'he land was granted in fee and a road re-
served next Burger's line. This was to be shut at each end, and, sub-
ject to the grantor's use for a road, the grantee could enjoy it for all
purposes. The word road has never been defined to mean land ; it
is difficult to find a definition which does not include the sense of way,
though the latter word is more generic, referring to many things be-
sides roads. Road is generallv applied to highway, street, or lane,
often to a pathway, or private way, yet strictly it means only one par-
ticular kind of way. Its sense in this deed is very clear. Taking the
entire clause, with reference to the grant, it means the ^gse^v^tion of
a way. This is as plain as if the word way were in place "of™ oad.
Lawyer and layman alike would understand the word road in this
clause in the same sense as it is used in the statutes providing for grant
of "private roads." A private road, obtained bv proceedin^'-s under
those statutes, is a rnere wav. the owner of the vyny hnvin,o- no interest
in the land.
^'^ A private way is an incorporeal hereditament of a real nature, en-
tirely different from a common highway; it is "tine right of going over
another man's ground." Where land is granted and the right of way
reserved, that right becomes a new thing, derived from die land : and
although, before the deed, the grantor had the right of way over the
land whenever he chose to exercise it, yet when he conveyed the land
the reservation was a thing separated from the right of the grantee in
the land : State v. Wilson, 42 Me. 9. A reservation is the creation of a
rjght or interest which had no prior existence as such in a thinr.-Qr
part of a thing granted. It is distinguished from an exception in that
it is of a new right or interest. An e^xcgg]jgjj| is always of part of the
-^ /^^v*. thing granted, it is nf the whole nf th* part_oxrepted. A reservation
^•'^['3--— 1 may be of alright or_interest in the particular part which it affects.
• v^^^t^ These terms are often used in the same sense, the technical distinction
\^ being disregarded. Though ^pt words of reservation be u<^p<\ thev
wjll be construed as an exception, if such was the design of the parties.
Thus, when a deed in fee of land was made, the grantor "saving and
reserving, nevertheless, for his own use the coal contained in the said
piece or parcel of land, together with free ingress and egress by wagon-
road to haul the coal therefrom as wanted," it was held that the saving
clause operated as an exception of the coal. The coal was land and the
reservation of that part of the land excepted it from the grant. It
was a thing corporate, existed when the grant was made, and differed
Ch. 3) THE PROPERTY CONVEYED 455
from something newly created, as a rent or other interest strictly in-
corporeal : Whitaker v. Brown, 46 Pa. 197. H,ere. the saving clause Ji^
created the way over part of the land granted, a right strictly- incor-
RQreal, and is not an exception of part of the land contained in the
grant.
judgment reversed, and venire facias de novo awarded.^*
...^fU^ .- ^ DEE V. KING. '^ ^Vui JtyjCcA-^ZC^n^' ^
(Supreme Court of Vermont, 1905. 77 Vt. 230, 50 Atl. 830, GS L. R. A. SCO.)
Watson, J. When tliis case was here before {7Z Vt. olh, 50 Atl.
1109,) the decree was reversed pro forma and the cause remanded for
ac^ditional findino-s of fact by the special master, as to the time when.
with re_ference to March 16. 1882. [^ared Dee asked and obtained per-
mission of the defendant to c^ross his ^hree-acre piece of land on the
east side of the Central Vermont Railroad. On tlie hearing before the
master for this purpose, the orator introduced no further evidence.
The defendant testified in his own behalf, and from his testimony the
fact is found that Tared Dee first asked and obtained of the defendant
pp^f-missinn fn rrnss that land in January. 1882. The orator seasonably
objected and excepted to the defendant's testifying to any conversation
had between him and Jared Dee on this point, because Jared Dee was
dead.
The defiendant was called and used as a witness by the orator at the
first hearing, upon the question, among other things, whether Tared^t-^^^i^ <^^^ f
Dee passed through and over the three-acre piece, his habit and custom !• - • /)
jn so doing, to what extent, under what circumstances, and for what .yA-*.4.**»-*'<-*-4^ '
purpose. The orator made the defendant a general witness upon that to
question, and he thereby waived the statutory incompetency of the
21 "It is to be observed that a rjprht of yay cannot, in strictness, be roade the ^
subject either of exception or reiser vatlo'n. It is neither parcel of tlie tiling — '' /- -
granted, nor is it issuinj; out of the thing granted; the former being essential ^.c*^-v<tv
to an exeeiJtiou, and the latter to a reservation. A riglit of way reserved (using
that woid in a somewhat popular sense) to a lessor, as in the present case,
is. in strictness of law, an easement newly created by wnv of grant from tlie
g;rantee or lessee, in the same manner as a right of snoiting or tisliing. which
has been lately much considered in the cases of Doe (iein. Itouglas v." Lock,
2 A. <X: ]<:. 70.T (1835), and Wickham y. Hawker, 7 M. & W. 03 (1.S40). It is not,
indeed, stated in this case that the lease was executed by the lessee, which
would be essential in order to establish the easement claimed by the lessors
as in the nature of a grant from tlie lessee; but we presume that in fact the
deed was, according to the ordinary practice, executed by both parties, lessee
as well as lessors." Railway Co. y. Walker, 2 A. & E. (.\. S.) 940, 'Jo7 (1S42),
per Tindal, C. J. But Cf. May v. Belleville, [IDOo] 2 Ch. G05.
It has been held that, even though the statute has made uitnecessary the _ns^
of the \vord "heirs" to create a tee simple, a reservation of a rigut m ree re(niires
d. ntoss y. McCee, OS Md. 381)? b(> Atl. It:^^ (1!>04) ; IvarnnilU
^\1-^ -mLC- ■V't^tJ- L-i.
^^magic vvprd. TRoss v. McCee, OS Md. 380, b(> Atl. IT^S (l!)U4) ; Karnniiier
^^rotz.ls Iowa, 352 (1S(J5) ; Euhnke v. Aubert, 58 Or. 6, 113 I'ac. 3S (1011),
contra.
Uf. Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 701 (1802).
456 DERIVATIVE TITLES (Part 2
defendant as a witness. Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042 ;
Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805, — and he could not after-
wards complain because the defendant gave testimony in his own be-
half more fully upon the same subject matter.
Tared Dee having obtained permission of the defendant to cross the
three-acre piece within fifteen years next after March 16. 1867^ the
orator can haveno prescriptive way over it. A right of way over this
land is neither^sef forth nor claimed by the orator in his bill; yet in
one aspect of the case whether he has such a way is material.
The only right of wav claimed ^ ^ ]|j,m^jy^r over the defendant's
land so far as appears by the bill, is over the one-half acre piece on the
\vest side of the Central Vermont Railroad, as reserved by Jared Dee
in his deed October 7, 1862, conveying that land to William W. Pet-
tingill. In that deed immediately following the description of the land
conveyed is the clause "reserving the privilege of a pass. from the high-
way past the house to. the railroad in. my usual place of crossing."
The defendant contends that these words are only a resen^ation of a
personal privilege to Jared Dee which could not pass to his heirs or
assigns because no words of inheritance or assignment were used in
connection therewith; while the orator contends that the clause has
the force of an exception, and that the servient estate thereby created
passed to the subsequent owners of the dominant estate without such
words of limitation being used. Much depends upon the construction
given in this regard, in the disposition. of the case. Lord Coke says
that "reserving" som_etimes has the force of saving or excepting, "so
as sometime it serveth to reserve a new thing, viz. a rent, and some-
time to except part of the thing in esse that is granted." Co. LitL
143, a. Sheppard says that "a reservation is a clause of a deed whereby
the feoffor, donor, lessor, grantor, etc., doth reserve some new thing to
himself out of that which he granted before. And this doth, most com-
monly, and properly, succeed the tenendum, * * * This part of
the deed doth differ from an exception, which is ever of part of tjie
thing granted, and of a thing in esse at the time, but this is of a thing
newly created or reserved out of a thing demised that was not in esse
before, so that this clause doth always reserve that which was not be-
fore, or abridge the tenure of that which was before." Shepp. Touch.
80. Again the same author says, that an exception clause most com-
monly and properly succeeds the setting down of the things granted;
yt, that the thingjexcepted is exempted and does .not pass by the grant.
Page 77 . The same principles were largely laid down by this Court in
Roberts v. Robertson, 53 Vt. 690, 38 Am. Rep. 710. There the deed
given by the plaintiff contained a specific description of the land con-
veyed, and a clause "reserving lots * * * 32^ 33^" etc. Under
this clause the plaintiff claimed title to the two lots above named. The
court, after stating the offices of an exception and of a reservation the
same as above, said these terms, as used in deeds, are often treated as
synonymous and that woxds creatinjs;' an exception are to have that
Ch, 3) THE PROPERTY CONVEYED 457
effect, although the. word reservation is used. It was held that the
clause should be construed as an exception.
In England it has been held that a rig^ht of way cannot in strictness i^^i^^^JsL.
be made the subject of either an exception or a reservation ; for it is ^?^^|V^ '
neither parcel of the thing granted, an essential to an exception, nor is ^ .
it issuing out of the thing granted, an essential to a reservation. Doe -*''^^'^tP''^*_
v. Lock, 2 Ad. & E. 705 ; Durham, etc., R. R. Co. v. Walker, 2 Q. B. •U/4-«^»>u'^
945. But there, as in this country, quasi easements are recognized in
law, such as a visible and reasonably necessary drain or way used by
the owner of land over one portion of it to the convenient eniovment of
another portion, and there has never been any separate ownership of
the quasi dominant and the quasi servient tenements. As such ease-
ment, a drain is classed as continuous, because it may be used continu-
ously without the intervention of man ; and a right of way as noncon-
tinuous because to its use the act of man is essential at each time of
enjoyment. In Barnes v. Loach (1879) 4 Q. B. D. 494, it was said re-
garding such easements of an apparent and continuous character, that
if the owner aliens the quasi dominant part to one person and the
quasi servient to another, the respective alienees, in the absence of ex-
press stipulation, will take the land burdened or benefited, as the case
may be, by the qualities which the previous owner had a right to attach
to them. And in Brown v. Alabaster (1888) Z7 Ch. D. 490, it was said
that although a right of way by an artificially formed path over one A(t#<* "^
part of the owner's land for the benefit of the other portion, could not JL^^^^^^X*
be brought within the definition of a continuous easement, it might_be
governed by the same rules as are apparent and continuous easements.
"Cases involving quasi easements~have been beTore this Court. In
Harwood v. Benton & Jones, 32 Vt. 724, the owner of a water privilege,
dam, and mill, also owned land surrounding and bordering upon the
mill pond and mill, which he subjected to the use and convenience of
the mill privilege and mills. A part of these adjacent lands thus sub-
jected was conveyed without any stipulation in the deed that any servi-
ent condition attached thereto. The condition of the estate had been
continuous, was obvious, and of a character showing that it was design-
ed to continue as it had been. The Court said this was a palpable and
impressed condition, made upon the property by the voluntary act of
the owner. It was held that, without any stipulation in the deed upon
that subject, the law was that the grantee took the land purchased
by him, in that impressed condition, with a continuance of the servitude
of that parcel to the convenience and beneficial use of the mill. It was jV
there laid down as an umquestioned proposition that "upon tlie sever- 3^*2 V*,
ance of a heritage, a grant will be implied of all those continuous and
apparent easements which have in fact been used by the owner during
the umty, though they have had no legal existence as easements ;"_apd
that tlie doctrine was equally -\vell settled that the law will imply a re.s-
ei^^^^iion of like easements in favor of the part of the inheritance retain-
ed by the grantor. In Goodall v. Godfrey, 53 Vt. 219, 38 Am. Rep.
458 DERIVATIVE TITLES (Part 2
671, a "visible, defined way in use for the obvious convenience of the
whole building"' was in question, consequent on a division of the prop-
erty among the representatives of the deceased owner, and the same
principles of law were applied. And in Willey, Admx., v. Thwing, 68
Vt, 128, 34 Atl. 428. applying the same doctrines, a right of way was
upheld under an implied reservation.
In this country it is commonly held that a wav may be the subject of
a reservation, and in many cases courts of high standing have held
that it mav properly be the subject of an exception in a grant. While
it is true that an owner of land cannot have an easement in his own es-
tate in fee, he may as before seen have a quasi easement over one por-
tion in the character of a visible, travelled way reasonably necessary
to the convenient enjoyment of another portion, and when such a way
exists, there would seem to be no substantial legal reason why it may
not be treated as a thinjg in being, and as a part of the estate included
in the descri])tion of the grant be made an exception in a deed of the
land over which the way is, when such appears to havp hepn tl2Li!l!-1"'
tion of the parties. I'hat this is the principle upon which a clause re-
serving a way is construed as an exception appears from Chappell v.
N. Y., N. H. & H. R. R. Co., 62 Conn. 195, 24 Atl. 997, 17 L. R. A.
420, which is more particularly referred to later. There the Court
said : "Then too the right to cross was, in a certain sense, a ri^ht
existing in the grantors at the date of the deed. It was a part of their
full dominion over the strip about to be conveyed by the de^fl, nnd nnt-
a right to be, in effect, conferred upon them by the grantees. It was
something which the 'reservation' in effect 'excepted' out of the opera-
tion of the grant." „^rrr:=^.T: "-
The distinction between a reservation and an exception of a way is
best understood by an examination of cases involving clauses very simi-
lar to the one here under consideration, yet so unlike as to re(|uire cHf-
ferent constructions in this regard. In Ashcroft v. Eastern R. R. Co.,
126 Mass. 196, 30 Am. Rep. 672, the clause was "reserving to myself
the right of passing and re-passing, and repairing my aqueduct logs
forever, through a culvert * * * to be built and kept in repair
by said company; which culvert shall cross the railroad at right
angles," etc. It was held that the provision that the grantee should
build and keep in repair the culvert was an essential part of the grant.
and clearly_indicated that the intention of the parties was to confer
ujjon the grantor a. new right not before vested in him, which, there-
fore, cmild not be the subject of an exception. In Clatlin v. Boston &
Albany CCo., 157 Mass. 489. Z2 N. E. 659, 20 L. R. A. 638. the clause
was '"reserving to ourselves the right of a passage way to be construct-
ed and kept in repair by ourselves." There was no evidence of an
existing way across the land. It was held to be a reservation and not
an exception.22 In Chappell v. N. Y., N. H. & H. R. R. Co. before
22 But see Railey v. Affawam Nat. Bank. 100 lMas5?. 20. 76 N. E. 449. .3 L. R.
A. (X. S.) 'JS, 1\2 Am. St. K^p. 296 (1906), where there was involved the con-
Ch. 3) THE PROPERTY CONVEYED 459
cited, John W. and Benjamin F. Brown, in 1851, owned a piece of land
in New London fronting on the river Thames and lying between that
river and Bank street. On the river front was a wharf and docks.
Between the wharf and Bank street was about one and one-half acres
of land used by the Browns in carrying on a coal and wharfage busi-
ness. The wharf was valuable. In that year the Browns conveyed,
for railroad purposes, a strip of this land, twenty-five feet wide, run-
ning through the land and separating the wharf from the land lying
westerly of the strip conveyed, and rendering it inaccessible except by
crossing the strip. This right of crossing was indispensable to the
Browns and all who might thereafter own the premises then owned by
them. The deed thus conveying this strip contained the clause 'VAiid (,^2 C&%>%^%>^ .
w,e reserve to ourselves the priviles^e of crossing and re-crossing saicl
piece of land described, or any part thereof within said bounds."
Thevv;ay at the tinie of the date of the deed was an existing one
plainly ^sible, necessary, and in almost constant use. _The clause was
construed to be an exception. In Bridger v. Pierson, 45 N. Y. 601, the
defendant convevTcnancTto the plaintiff and immediately following the
description the deed contained the clause "reserving always a right of
way as now used on the west side of the above described premises
* * * from the public highway to a piece of land now owned by"
R. It was held to be an exce^ion. In White v. N. Y. & N. E. R. R.
Co., 156 Mass. 181, 30 N. E. 612, the action was tort for the obstruc-
tion of a private way claimed by the plaintiff over the location of the
defendant's railroad, under a clause in a deed which read "reserving
the passway at grade over said railroad where now made." This way
had existed as a defined roadway or cart track, and had been used in
passing to and from a highway to and from parts of tlie lot north of
the tracks before the railroad was located, and before the deed re-
ferred to was given. The clause was held to be an exception. These
are but a few of the many decisions in different jurisdictions which
might be referred to upon this question, but more are unnecessary.
The language of the clause under consideration cannot be said to be
unequivocal. We therefore look at the surrounding circumstances
existing when the deed containing it was made, the shuation of the
parties, and the subject matter of the instrument; and in the light /; j^ •yf'-
thereof . the clause should be construed according to the intent of the ^^^"y^ -^
parties. At tlie time of making this deed Jared Dee was the owner of 'li/t^tcyCf " lU
stmctinn of the follov^irifr provision in a deed from INfoore to TTenry: "A pas- ^^r'^*'^''^
sa^ewciy is to be k e i it open and for use in common between the two houses ten
feet ill widtn, Hye T^et or said passageway to be furnisht^d bv said Llenry and
five feet bv me fron^ land Iving east of the h^nd here conveyed." There w^tsiio
passaijeway in^'existence at tlie time of the deed. Henry later conveyed the
same land 'to ttie defendant, who in turn conveyed it by deed with full cove-
nants for title to the plaintiff. T^e case arose upon a claim for damages for
breach of the covenant against incuinliralices. U iT^j^Jjiintiff was allowed tojie-
covei~. despite the "Tact that JNToore had diiHlTefore the deed to the piamTlg.
See, also. Ch'iids v. BoslOn & M. K. U., iiia xUass. 'Jl, UO N. E. 957, 48 U R. A.
(N. S.) 378 (1912).
460 DERIVATIVE TITLES (Part 2
land on the opposite side of the railroad, consisting of a three-acre
piece of tillage land, and a hill lot adjoining it on the north, chiefly
valuable for its sugar works, for its pasturage, and as a wood and tim-
ber lot. The last named lot is traversed its entire length from north
to south and about a third of its width from west 'to east by a consid-
erable hill, more or less ledgy and making it extremelv inconvenient to
cross from the grantor's own land north of the Fairbanks land. ,but
easily reached by the now disputed right of way arross the one-half
acre piece, and over the three-acre piece of tillage land. The greater
portion of Jared Dee's sugar orchard, timber, and wood was on top
and east of this hill. There was no wav to or out of the hill lot except
oyer the hill on Tared Dee's own land west of the Fairbanks land, or
out through the three-acre piece and the one-half acre piece onto the
public highway leading westerly to Jared Dee's house. For more than
ten 3'ears next prior to the time when Jared Dee gave the deed to
Pettingill, the Dees had passed over the one-half acre piece and
through the three-acre piece almost exclusively for all purposes whejir
ever they went to or from the hill lot, whether with team, on foot, or
in any other-mRn4^€4^. except when they got wood on the west side of
the lot they went from the highway across the Fairbanks farm west of
the railroad, thence over the railroad at the "middle crossing" onto
the hill lot. And on rare occasions they used still another route fur-
ther north wholly over Dee's land. It appears from the deed itself
that in crossing the one-half acre piece they had a particular place of
travelling then known to both the grantor and the grantee, for the
words used in the deed in describing it are "from the highway past the
house to the railroad in my usual place of crossing." Thus showing
the intentioi^ of the parties to be that the grantor should retain the
right to pass through this land over a visible, travelled way then in
existence, and that no new way was thereby being created for his bene-
fit
Clearly under the law and in the light of the foregoing circumstanc-
es, the clause must be construed, not as a reservation, but as an excep-
v( tiP-"' When given this construction, technical wor3s of limitation are
not applicable, for the part excepted remained in the grantor as of his
former title, because not granted. Cardigan v. Armitage, 2 Barn. &
C. 197; Chappell v. N. Y., N. H. & H. R. R. Co., before cited; Win-
throp V. Fairbanks, 41 Me. 307. We think the parties intended that by
this provision the grantor should permanently retam from the grant
for the benefit of his land east of the railroad, the wav over the one-
C^ half_acre piece, which he had been accustomed to use in crossing that
landTto and Jrom the land first name"d The way, thus retained became
an easement over the half-acre piece of land and an appurtenant to the
^ other land ; and witli the latter it would pass by descent or assignment.
Subsequent to conveying the one-half acre lot to Pettingill, Jared
Dee sold and conveyed the three-acre piece, which through mesne con-
( vejyances has become the property of tlie defendant. But this cannot
Ch. 3) THE PROPERTY CONVEYED 461
affect the easement as an appurtenant to the hill lot ; for a right of way
appurtenant to land attaches to every part of it. even though it may go
into the possession of several persons. Lansing v. Wiswall, 5 Denio
(N. Y.) 213 ; Underwood v. Carney, 1 Cush. (Mass.) 285.
The master finds that if upon the facts reported the orator has a
right of way or a right to cross over defendant's land to the hill lot,
then the orator has suffered damage by reason of the acts of the de-
fendant complained of in the bill, to the amount of sixty-five dollars.
The orator can recover only such damages as he ha<; siiffered by acts
of the defendant in obstructing the way across the one-half acre piece,
considering fhe. fact that the orator had no ris^ht of wav^ver or right
to crossthe defendant's three-acre piece. Upon this basis the damages
have not been assessed. The report should therefore be recommitted
for that purpose, and upon such damages being reported, a decree
should be rendered that the injunction be made perpetual, and that the
defendant pay to the orator the damages found with costs in this Court.
The costs in the court below should be there determined.
The decree dismissing the bill with costs to the defendant is re-
versed and cause remanded with mandate.^^
SMITH'S EX'R v. JONES.
(Supreme Court of Vermont, 1912. 86 Vt. 258, 84 Atl. 866.)
Case for obstructing a private way. Plea, the general issue. Trial
by court on an agreed statement of facts at the September Term, 1911, '
Franklin County, Waterman, J., presiding, judgrnent for the plaintiff'.
The defendant excepted. The opinion states the case.
MuNSON, J. The plaintiff sues as executor of Francis Smith to re-
cover damages for the obstruction of a private way which crosses the
defendant's land, called the Pratt farm, to a wood lot immediately ad-
ioising'. which belongs to Smith's estate and is in the possession of
th^ executor. In 1867 Smith, then the owner of both parcels, con-
veyed the farm to a grantor of the defendant by a deed which contained
the following clause: "Reserving the right at reasonable times and in
a reasonable way to cross said land below the road to my wood lot."
There is no similar clause in the succeeding deeds, but each of these
contains a reference to the deed immediately preceding. Since the con-
veyance of Francis Smith the owners of the wood lot have had_no
other means of reaching it than the claimed right of way. The par- >?^
ties submit the question whether this easement ceased with the life of / ^ J
Francis Smith, or inures to the benefit of his heirs and estate. L^"""^
There is nothing in the agreed statement to show that at the date
23 See Smith v. Furbish, 68 N. H. 123, 44 Atl. 398, 47 L. R. A. 226 (1894) ;
York Haven Water & Power Co. v. York Haven Paper Co., 201 Fed. 270, 119
C. C. A. 508 (1912).
462 DERIVATIVE TITLES (Part 2
of the Francis Smith deed there was a defined and visible way across
the grantor's farm to his wood lot. So the way mentioned in the deed
•^ must^bg taken to be a new way, not in being previous to the pyfrntinn
of the deed. I_fjhere had been an existing road, the provision in ques-
tion could be construed as an exception, and thus accomplish a re-
tention of a right of way. Dee v. King, 77 Vt. 230, 59 Atl. 839, 68 L.
R. A. 860. The terms "reservation" and "exception" are often used
as synonymous when the thing to be secured tn thp grantor is a part of
the granted premises, and when so used they are to be construed ac-
cordingly- 2 Wash. Real Prop. *645. If given their technical mean-
ing, an exception is something withheld from a grant which otherwise
would pass as~a~part of it, while a reservation is some newly created
right which the grantee impliedly conveys to the grantor. Ashcroft
v. Eastern R. R. Co., 126 Mass. 196, 30 Am. Rep. 672; Bailey v. Aga-
wam Nat. Bank, 190 Mass. 20, 76 N. E. 449, 3 L. R. A. (N. S.) 98,
112 Am. St. Rep. 296. The extreme technicality of the latter concep-
tion is apparent. It would be easier and nearer the truth to say that a
reservation is an interest which the grantor creates and 'excepts orjrg-
y^ serves from his grant. Then the interest classed as a reservation
would remain in the grantor, and an easement in fee would arise with-
out the use of the word "heirs."
It is still the rule of the common law that an easement in fee caji-
npt be created bv~way of a reservation without wdr'ds of inheritajic e .
• But it has been held that term<; pf reseryation may be construed as
constituting an exception wheiT^ this is necessary to effe£tua te_tli e
"^ Pi'IPQse„ o_f_ the parties"""^ It seems to be considered that the parties
may use the term in a sense different from its technical meaning, and
that their intent, if ascertainable from the subject of the grairLand
the surroundmg circumstances, should control rather than the legal
implication. 1'he primary and natural meaning of the word is in-
consistent with the effect given it in the law of this subject. To reserve
is to keep in reserve, to retain, to keep back, not to deliver or make
over. Its meaning in law, as given by Webster's New International,
is "to withhold from the operation of a grant or agreement." Unless
saved by the rule of construction above stated, this inconsistent tech-
nical meaning of a word in common use and a forced implication
therefrom will determine whether an easement, essential to the use and
value of an estate, shall end with the life of tlie then owner or go
with the estate in perpetuity.
After Smith conveyed the Pratt farm his wood lot was entirely sur-
rounded by the '^'^x^<^'^'\ of others. There is nothing to indicate that he
had any personal interest in securing a' right of way distinct from
his interest as owner of the lot. His interest as owner required that
he secure a right of way available after his death. . The value of jhe
lot to Smith as its then owner, irrespective of use, depended upon the
perpetuity of the_ means of reaching it. In ordinary circumstances
there is no ground for supposing that a grantor intends to limit a
Ch. 3) TnE puorEUTY conveyed 463
right- of this nature to the uncertain period of his life, and thereby
materially lessen the value of his land as property in the market or as
an asset of his estate. The purpose of reserving^ a ri°;ht of way to that
part of the property retained by the grantor is manifest to the grantee,
even though there is no definite and visible way impressed upon the
^ojj ; and the purpose is one that points directly to an intention on the
part of the grantor to reserve a right co-extensive in duration with
ins estate in the land. The purpose and nnderstandinsf of the parties
in creating an easement of this nature are so nearly universal, that
those using terms of reservation may properly be held to have intended
an easement in fee, when there are no circumstances or restrictive
words indicating" a contrary intention.
Judgment affirmed. ^_
IIAVERIIILL SAVINGS BANK v. GRIFFIN.
(Supreme Judicial Court of Massacluisctts, 1903. 1S4 Mass. 419, G8 N. E. S39.)
Bill in equity, filed August 17, 1901, to restrain the defendant from
us'ing and maintainin<y a drain from certain l:ind on the east side of
Auburn Street, in Haverhill, owned by the defendant, through land
on the_.south side of Sixth Avenue in that city owned by the plain-
tiff, and praying that the plaintiff be authorized to close the portion
oT^^fhe drain upon its land.
In the Superior Court Stevens, J., made a decree granting the relief
prayed J^ ; and the defendant ai)peaLed. At the rec|uest of the de-
fendant the judge reported the material facts found by him, in accord-
ance with R. L. c. 159, § 22>.
The report was in substance as follows : The defendant is the own-
er of the land described as hers in the bill, bounded on the north by
the land of the plaintiff also described in the bill. Both parcels of
land were owned on and before November, 1883, by one Algernon /^^^ a-'^* "^
P. Nichols, who had died before the filing of the bill. The land owned^^^^^^,^^ ^^-t^^-v-c
byllie""defen3anr'wascoi^^ /a.,».-A-cx
in common form dated November 4, 1885. The land owned by the V
plaintiff was conveyed to one Warren Hoyt by Nichols, by a warranty
deed in common form dated July 12, 1886. In this deed the plain-
tiff's lai]d was described as bounded on the south by land of Caroline
Griffn about one hundred and seven feet more or less, and contained
the following clause /"And reserving to the lot next southerly owned
by Griffin the right to^ enter a drain into a private sewer now on said
l^ild*!' )The plaintiff acquired its title through a mortgage given by
I:ioyt-^:o the plaintiff and foreclosed by the plaintiff. The mortgage
di^ not contain any words relating to the drajn. After the conveyance
to the defendant, a drain was constructed by her from the lot owned
by her into and through the Nichols land, afterwards conveyed to
464
DEKIVATIVE TITLES
(Part 2
0
Hoyt. This drain connected with the sewer on Hoyt's land, and from
the aucumn of 1885 was in continuous use draining the defendant's
lot.
The deed from Nichols to Hovt containing the clause above quoted
was as follows, omitting the portion after the habendum clause which
contained the ordinary covenants of a warranty deed :
"Know all men by these presents that I, Algernon P. Nichols, of
Haverhill in the County of Essex and Commonwealth of Massachu-
setts, in consideration of two thousand dollars paid by Warren Hoyt.
of said Haverhill, the receipt whereof is hereby acknowledged, do here-
by give., grant bargain sell and convey unto the said Warren yinyt a
certain parcel of land in said Haverhill on the southerly side of Sixth
street and bounded on the North by said St. one hundred and ten feet
more or less, on the east by land of the Children's Aid Society, about
one hundred feet more or less, on the south by land land of Caroline
Griffin about one hundred and seven feet more or less, and on the West
by Auburn street about one hundred feet. Saving and reservino- nev-
ertheless to myself and my heirs and assi^gns forever for the use of
said Children's Aid Society a right to pass and repass upon and oven a
strip of land four feet (4 it.) wide and seventy-five feet long, ex-
tending_southerly from Sixth St. and next to land of said Society, so
as to make a passage way for the exclusive benefit — the adjoining
estates twelve feet wide including the eight feet in width which I re-
■ served for such use in my deed to said Society, and reserving to. the
lot next .sjQUtherlv owned by Griffin the right to enter a drain into a
private sewer now on said lanch To have and to hold the granted
premises with all the privileges and appurtenances thereto belonging
to the said Hoyt and his heirs and assigns to their own use andbe-
BralEy, J. At the time the defendant obtained title to her land the
drain was not in existence and the deed under which she holds is silent
as to any right to lay and maintain such a drain through the land^f
the plainHll^ Neither does it appear that this alleged right whereby
the defendant would be entitled to connect her premises with the
public sewer, can be said to arise by implication. See in this connec-
tion Bumstead v. Cook, 169 Mass. 410, 48 N. E. 767, 61 Am. St. Rep.
293.
The case falls within the well recognized General rule that where
an_ easement is not set out in the instrument under, which the parlv
claiming the privilege holds title, it must be sho^^fn to be actually in
pvi^pnrf f)pd f:r'""'"'tpd with the estate conveyed in order to pass^as
appurtenant by implication. Philbrick v. Ewing, 97 Mass. 133 ; Bass
V. Edwards, 126 Mass. 445, 449.
In order therefore to maintain her claim she is necessarily obliged
to rely on the clause in the deed to the plaintiff's grantor which is in
these words, "and reserving to the lot next southerly owned by Griffin
the right to enter a drain into a private sewer now on said land," and
Ch. 3) THE PROPERTY CONVEYED 465
the rights of the parties must be determined on the construction to be
given to this clause.
At the date of this deed so far as the facts appear by the record
no such right had been p^ranted to or prescriptive! v acquired bv the
defendant, and wliich mig^ht be prpservpd for her use by the language
t^sed, on the ground that thereby an exception was created and hence
the easement claimed was excepted from the grant. But ^they must
bp^ ron.'^triipd as an attempt to vest in the grantor a new interest or
right that did not before exist and therefore constitute a reservation
rather than an exception. Wood v. Boyd, 145 Mass. 176, 13 Tvl. E.
476; White v. New~Yo?k & New England Railroad, 156 Mass. 181,
30 N. E. 612.
As the defendant was not a party but a stranger to the deed she
could gain no rights under the reservation which enured solelv to the
grantor, and for this reason she did not acquire an easement under it.
IVlurphy V. Lee, 144 Mass. 371, 3^4,11 N. E. 550.
It follows that the decree entered in the Superior Court was right
and should be affirmed. Decree affirmed.^ _:\
24 Cf. Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453 (190S) ; Martin v. Cook,
102 Mich. 267. 60 N. W. 679 (1894) ; Corning v. Troy Iron & Nail Factory, 40
N. Y. 191 (1869) ; Bartlett v. Barrow^s, 22 E. I. 642, 49 Atl. 31 (1901) ; Wall v.
Wall, 126 N. C. 405, 35 S. E. 811 (1900).
Aig.Pbop.— 30
^
/
o^-r
4CG DEEiVATivB TITLES (Part 2
CHAPTER IV
CREATION OF EASEMENTS BY IMPLICATION »
COPPY V. I. DE B.
(1406. Y. B. 11 Hen, VII, 25, pi. G.)
William Coppy brought an action on the case against J. de B., and
counted that according to the custom of London, wh.ere there were
two tenements adjoining, and one had a gutter running over the tene-
nient of the other, the other cannot stop it, though it be on his own
1 The or(1ipn|-Y w'nY fif fr^'vt'rT p-^ements and
[jrofits of ronrse is Irv grnnt.
sealed iiistrmueiit. Tiie prul »-
\yhicll. according'- f "^'"^ f^nininun hiw, mt^Miif liu !i gM
leuis tif diHkulty tliat arise in connection wirli such express grants are in i;en-
eral the same prulileais that arise in conveyances hy deed y;enerall\'. and are
sntticieiitly treated inider otlier lieads. IIqwpvpi- '" H't^ martcr of tiie suttlciency
o f tlie words in the ?;rant to serve to create de novo un easementThere ariae ue-
cnsio!i;inv (pit'ijtions of snecial dirnciiLJv.
••W'itli tlie appurtenances'' does not serve to create an easement de novo, even
where the easement claimed had a de facto existenc-e prior to the convey-
ance. Wliailey v. Thompson. 1 Hos. & P. 371 (IT'-IO); Gayetty v. Hetlnme. il
]\Fass. 4!>. 7 Am. Dec. ISS (1.SJ7); I'arsons v. .Johnson. PS X. Y. K\2.. 2:'> Am. Uep.
141) (1S77). Compare James v. riant, 4 A. & V.. 1V,\ (lN:!(i). "Tliere are, linw-
ev^M-. ani.-mnrds for tlie nurnose t>fi)assinj such an ea.sement ; and, if you will
oiTTyinsertJJii^ words 'or thereNvTrii ll^ed and Ull.loyed. the riyht would pass."
HiiyTeiv. I'... in i^arlow v. Kliodes. 1 (J. & M. 4:!9, 448 (18:'.:{T TTus was said with
reference to a (yi^isj <'=^^^j)|'^iit- wjijch once had been a real easement but which
had hecii extiug^uished as iiULti by unity of ownership of domiuaut: and servi^ut
tenenu'iits.
"Whcu the owner of a piece of land has a risht of way over adjacent land,
so that lie may maintain at any time an action for an olstruction. if afterwards
by inheritan<e or purchase both pieces of land come to one and the same own-
er, the ri.i^ht fs necessarily at an end, the enjoyment thenc\>forth being the mere
exercise of a riuiht of property on his own land. But if. at a later |)eriod. the
M^rtir^i aifinii t'nll into the ownership and pos.scssion of different person.s^
'icTTii the conyeyajiC£_aL-the land to whicli tlie wav was formerly att:;uheJ.
the words are toum] •tog.^ther^wini all ^\i'|VS| eft;-, ust^nJ or enioyed therewijji.'
the effect of these \voros i>< ro revive tlie right! tliat formerly existed, and whicii
has been not extint-Miished. bnt only suspended. But since it does not api)ear
here that at any antecedent time there existed a right over one of these pieces
of land, attached to the other piece of land, the effect of tb^^sp wmw]..^ (-jii^imf-
make or revive a right of wav tliat never before existed." Kelly, C. K., in
Langlev v. Hammond, L. R. 3 Ex. 161, IfiS (1868). Until the cases of Watts
y. Kelson, I.. R. 6 Ch. App. 166 (1S70), and Kay v. Oxley, L. R. 10 Q. B. 360
(187.5). it -seems to have been considered that general words of the sort referred
to would operate to create an easement only where riiere had once been a true
easement wiiicli. though extinguished in law by uiuty of ownei-ship, had beea
cTTntinue(Tiis a de' tact(7eT>^ehi^ht in connection with the use of the (piasi doiu-
liiant teiTenreiit up to the time of its coiivevance. (Joddard, Easements (Ben-
nett's I'^d.) lU.'i. In Kay y. Oxley. Blackburn, J., after reviewing some of the
earlier cases limiting the doctrine as above stated, states what would seem to
be the proper view: "It cannot make any difference in law, whetiier the right
pt way was only de facto used and enjoyed, or whether it was originally created
befoi-e the unity of possession, and then ceased to exist as a matter of right,
Ch, 4) CREATION OF EASEMENTS BY IMPLICATION 407
land ; and counted how he had a tenement and the defendant another
tenement adjoining.
Rede [for the defendant] : "We say that since the time of memory
one A. was seised of both tenements, and enfeoffed the ^ilaintjtif of the
one and defendant of tiie other."
Wood [tor'ilie plaintiff] : "This is not a good plea, for the defend-
ant seeks to defeat the custom by reason of an unity of possession since
the time of memory ; and that he cannot do in this case, for such a
custom, that one shall have a gutter running in another man's land is
a custom solemnly binding the land, and this is not extinct by unity oi UjLMf^
possession^: as if the lord purchase lands held in gavelkind, [still] both
sons of the lord shall inherit, just the same as if the land had remained
in the possession of the tenant, because [the custom of J gavelkind is
solemnly binding on the land."
TowxsiiEND. "Jf a man purchase land of which he has the rent,
the rent is gone by the unity of possession, because a man cannot have
a rent from himself; but if a man has a tenement from which a gutter
runs into the tenement of another, although he purchase the other tene-
ment, the gutter remains, and [s as necessary as it was before."
Kede: "He who was the owner of the two tenements might have de-
stroyed the gutter; and that if he had done so, and then made several
feoffments of the two tenements, the gutter could not have revived."
Davero: "Jf that were so, you might have pleaded such destruction
specially, and it would have raised a good issue."
Towxshexd: "Amend your plea, for we will not argue with ycu
any longer/'
Whereupon Rede pleaded new matter.
ROBBIXS V. BARXESr
(Court of Coraruon rieas, IGlCr' Ilobart
lobart, 1.11.) ^
Rohhins brought a quod permittat against Barnes, prosternere quan-
dam domum, &c., and counts, that he was seised of an ancient house Z
and yard ; and whereas in the east part of the said house there is, and » J^U
time out of mind hath been, a window of such length and breadth ; the t^jkM^^^\
defen^gjjt hath erected a certain house ot such length and breadth ^^^'y '
upon his own freehold so near the said east part of the said house,
tliat it overhangs the same and stoppeth his light, &c The defendant *
pleads, that one Richard Allen was seised of tlie plaintift''s house and
so that in the one case it would be created as a right de novo, in the other
Die rely revived, mit it uinKes a jireat uirrei-eiK-e. as iiiarter ot evidence on the
question, wliether the way was used and enjoyed as appurtenant." It \v;is tiiere
held tluit the ri^bt to use a way wliich had had no existence ]u-ior to any unitv
of'oWnersbi]!. hut which tlie grantee of tlie quasi dominant tenement, as lessi;e
thercdr. Had heen using in connection with his occupiincy. [mssed as an ease-
uieut under general words of the character under consideration;.
y#r
468 DERIVATIVE TITLES (Part 2
yard, and was also seised of a certain house, standing in the place
where the said house of the defendant now standeth, which did over-
hang the house of the now plaintiff, in tarn amplis modo and forma,
as the said now house of the said defendant doth. And he. saith. that
he pulled down that house, because it was ruinous, and built this house
in the place of it._ The plaintiff maintains his count and traverseth,
that the old house superpendebat, &:c., in tarn amplis modo & forma
prout, &c. And the jury found for the plaintiff. And now it was said
in arrest of judgment, that this was an unperfect issue; for there ought
no more of the new house to be prostrated, than did indeed overhang
more than the former house did, which was granted by the Court, if
it had been wisely pleaded. For it was agreed by the Court, that
though one of these houses had been built overhanging the otlier
wrongfully before they came both into one hand ; yet after when thev
came both into the hand of Allen, that wrong now was purged : so that
if the houses came afterwards into several handsr yet neither partv
could complain nf a ^yrnng before : SO that in this case it was plain,
tliat the plaintiff could have no cause of action, but for the increase
of the overhangmg. Yet because he had not expressed and distinctly
limited that in his plea, but took issue generally as before, which was
^^^ found against him, the Court must now give judgment according to the
complaint as true, because they can take no other knowledge; for the
j ury hath not found that the former house overhanged so much, an d
not the rest; yet out of their discretion thev gave the plaintiff judgment
for tlie whole, and execution for damages and costs presently ; but
staid execution, as to the abating of the house till it might be viewed
what was overhanging de novo; because the Court was informed, that
in truth it was but a small matter. If I have an ancient house and
lights, and I purchase the next house or ground, where yet no nuisance
is done to my former house ; now it is clear, that my privilege, against
that I have purchased, ceaseth ; for I may use mine own as I will.
Now then suppose I would lease my former house, I may build upon
the latter, or if I lease my latter, he may build against me, as it may
seem.
But note, there is a great difference between interests and profits, as
y^ rents, commons, &c., and bare easements, such as are lights, air, gut-
yfw^ ters, stillicidia and the like; for though while thev are in one hanjl
f\/^ a/ they may be stopped, or foredone. because a man cannot be said tn
""^ wrong himself, yet if they be divided. t;hinjy«; gi that nature (still jn
being) do revive, because they are of no less use of themselves in-jQne
hand tbaa-kudiyefs, being equally (rebus stantibus in •the same use and
occupation) necessary for the several houses to which they belong, ^t
clearly, if even such things be foredone or altered, while they are m
one hand^and s^ being the Houses be again divided, tliey cannot be
restoreTByTaw, but must be taken as they were at the time of the con-
veyance.
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 469
PALMER V. FLETCHER.
(Court of King's Bench, 1663. 1 Lev. 122.)
Cas,e was brought for stopping of his lights. The case was, a man
erected a house on his owiajands, and after sells the house to one, and
thelands adjoining to another, who by putting piles of timber on the
land, obstructed the lights of the house; and it was resolved, that al-
though it be a new messuage, yet no person who claims the land by^ . »
purchase under the builder, can obstruct the lights any more than the~ ixV-C-*'^**'^
builder himself could, who cannot derogate from his own grant, by
TwYSDEN and Wyndham, Justices, Hyde being absent, and ivEL-
YNGE doubting. Forthe lights are a necessary and essential part of the
house. And Kelynge said. Suppose the land had been sold first, and
the house after, the vendee of the land might stop tlie lights ; Twysdex
to the contrary said, Whether the land be sold first or afterward, the
vendee of the land cannot stop the lights of the house in the hands of
the vendor or his assignees ; and cited a case to be so adjudged ; bjit_all
agreed, that a stranger having lands adjoining to a messuage newly
erected, may stop the lights, for the building of any man on his lands,
cannot liinder his neighbour from doing what he will with his own
lands ; otherwise if the messuage be ancient, so that he has gained a
right in the lights by prescription. And afterwards in Mich. 16 Car.
II, B. R. a like judgment was given between the same parties, for
erecting a building on another part of the lands purchased, whereby
the lights of another new messuage were obstructed.
PINNINGTON V. GALLAND.
(Court of Exchequer, 1853. 9 Exch. 1.)
This was an action on the case for the disturbance of a right of way,
which came on to be tried before Coleridge, J., at Nottingham Sum-
mer Assizes, 1852, when a verdict was found for the plaintiff, dam-
ages 40s., subject to the following special case : ^ * * *
Martin, B. This is a special case, which was argued before us
during the last Term ; and the question is, whether the plaintiff, as oc- /'"^Yi
cupier of two closes called the Rye Holme rlo^^es^ iq entitled to a ri^ht/ ^ )
of way over certain lands of the defendant. V *^-^
The material circumstances are these: In the year 1839 a property
consisting of five closes belonged to a Mr. Dickinson. Two of them
were the Rye Holme closes, and they were^ separated by two ^fjthe
others from the only available highway, the Town-street of Suttpn-
upon-Trent. From the year 1823 the road over which the plaintiff /lA^J^f *^ dJTk
2 A portion of the statement of facts is omitted.
C^^J^
jwJ^^ ^ and ov
470 DERIVATIVE TITLES (Part 2
now claims the right of way was that which was used bv Mr. Dickin-
son's tenant for the occupation of the Rve Holme closes. From a
plan, which forms part of the case, the road apj^ears to be the short-
est and most direct access from the highway to the closes ; and it
having been used for so many years by the tenant who occupied the
entire property, we tliink we may safely conclude that it wa's. and is,
the most convenient road.
In 1839 the property was sold by IMr. Dickinson in three lots. A
I\Ir_. Moss purchased the Rve Holme closes, a Mr. Newboult purchased
one of the other closes, and a Mr. Dearie purchased the remainder
of the property, which includes that now belonging to the defendant,
and over which the way in question goes. The deeds of conveyance
to the three purchasers, although bearing different dates, were all ex-
Jl- ecuted on the same day, the 8th of April. 1840. and it cannot now be
» . ^ ^^ ascertained in what order of priority they were executed. No special
-^jXA*^^--* .'^grant or reservation of any particular way is contained in any of them ;
1^"^ ^^f^iii^ but in the conveyance to Mr. Moss, whose tenant the plaintiff is, there
^ /l**^ is comprised the usual words, "tog;ether with (inter alia) all ways,
Q {y)ads, paths, passages, rights, easements, advantages, and appurtenanc-
qI/^^^*''^^ i es whatsoever to the said closes belonging or in any way appertain-
I ^ i ing7' Mr. Dearie executed the deed of conveyance to him.
For several years after the execution of the conveyances the occupier
of the Rye Holme closes condnued tn w^^ \\\e road in question ; but
in 1843 the deifudant. who had purchased fronLiMr Dearie part of
tlie land conveyed tlnus by Mr. Dickinson^ ^nd nver whirh the wn.y
in question goes, disputed the plaintiff's right to use it._ Attempts
were made for arrangement, whTcH^taiTed, and we are now required
/} to decide the point ; and vve are of opinion that the plaintiff, as_gc-
IL-'^^'^ cupier of the Rye Holme closes, is entitled to the right of way claimed.
' •/ -A^^^ -^t *^ impossible to ascertain the priority of the execution of the two
^UtI conveyajices (that to the third purchaser may be put out of considera-
I + tion), and the plaintiff having to establish his right, is bound to show
J^- that, whichever was tlie first executed, he nevertheless is entitled to
I the right of way.
Fjrst, assume that the conveyance to Mr. Moss was executed be-
forethatjo Mr. Dearie. In this case there would clearly be the right
of way. It is the very case put by Mr. Serjt. Williams in his note
to Pom fret v, Ricroft, 1 Wms. Saund. Z2l, viz., "where a man, hav-
ing a close surrounded with his land, grants the close to another in
feg, tor iite, "or for years, the grantee shall have a way over thp gran-
tee's land, as mcident to thegrant, for without it he cannot have-^ny
benefit fromthe grant," and "the way would be the most direct and
convenient, which we think we may properly assume the one in ques-
tion in the present case to be. This is founded upon the legal maxim,
"Ouando aliquis aliquid concedit, concedere videtur et id sine quo res
concessa uti non potest," which, though it be clearly bad Latin, is, we
think, good law.
P^ fa
JJ/VOU^
Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 471
Secondly, assume that the conveyance to Mr. Dearie was executed
the first. In this case the Rye Holme closes were for a short period
of time the property of Mr, Dickinson, after the property in the land
conveyed to Mr. Dearie had passed out of him. There is no doubt,
apparently, a greater diflkulty in holding the right of way to exist in
this case than in the other ; but, according to the same very great au-
thority, the law is the same, for the note proceeds thus : "So it is
when he grants the land and reserves the close to himself ;" aiTcThe
cites several authorities which luliy bear him out: Clarke v. Cogge,
Cro. Jac. 170; Staple v. Heydon, 6 Mod. 1 ; Chichester v. Lethbridge,
VVilles, 72, note. It no doubt seems extraordinary that a man should
have a right which certainly derogates from his own grant ; but the
law is distinctly laid down to be so, and probably for the reason given
in Dutton v. Taylor, 2 Lutw. 148, that it was for the public good, as
otherwise the close surrounded would not be capable of cultivation.
According to this law, therefore, the right of way would a^'''nie to
Mr. Dickinson upon the execution of the conveyance to ^Ir. ^^pal•le■
and it would clearly pass to Mr. Moss under his conveyance, for }p
would be a way appurtenant to the Rye Holme rinses, and would pass
under the woras^aiTways to the closes belonging or appertaining. ' '
and, indeed, probably without them. The plaintiff has vested in him,
as Mr. Moss's tenant, all his rights of way; and, for the above rea-
son, we think that he is entitled to the judgment of the Court.
There is a statement in the case respecting another road described
in the plan as from C to D, which tlie defendant contends was the
plaintiff's proper way. But it is perfectly clear, that, whatever may
be the rights of the occupiers or owners of the two closes further to
the east, called Maples and Catlifife closes, and which were sold and
conveyed by Mr. Dickinson before the sales to Mr. Moss and Mr.
Dearie, Mr. Moss or the plaintiff his tenant, upon the statement in
the present case, has no right to the useof it ; and, except by one
nr ntlipf nf ihf roads, tlie case states that the plaintiff could not get
to the Rye Holme closes without being a trespasser upon land otlier
than ^Ir. Dickinson s,
~ Judgment for tlie plaintiff.*
3 See D.ivies v. Sear, L. R. 7 Eq. 427 (ISfinK where at the time of convey-
ance it was not necessary to use the {iranted land as means of acci'ss to re-
tained land, Imt it wns apparent from circuinstauces and a I iiildiii<; i»laii. known
t? tllP y^'^'^'tpp, that certain buildiug ouerations. wlieu com^neteu. woaia cut otf
all yttier nmnn.s of access.
472 DERIVATIVE TITLES (Part 2
PYER V. CARTER.
(Court of Exchequer, 1857. 1 Hurl. & N. 910.)
The declaration stated, that before and at the time of committing
the grievances, &c., the jTJaintiff was lawfully possessed of a messuage
and premises with the appurtenances, situate in St. Anne Street, Liver-
pool, and by reason thereof was entitled to a drain or sewer, and. pas-
sage for water, leading from the said messuage and premises, in,
through, and under certain adjoining land at Liverpool aforesaid,
through which the rain and water from the plaintiff's said messuage
and premises of right had flowed, and still of right o^^r^t to flow, away
from the plaintiff's said messuage and premises : Yet the r|pfpnr);^nt
wrongfully stopped up the said drain and sewer, whereby divers large
quantities of rain and water which of right ought to have flowed, and
otherwise would have flowed, through the same drain, sewer, and pas-
sage for water, were prevented from flowing .from the plaintiff's said
messuage and premises^ and flooded, soaked into, and injured_Uie
s^ame^^x^
Pleas. First, riotJ[iii|ty. Secondly, that the plaintiff was noj^^mti;;,
tled_to_thg^said^ain, sewer, and passage for water; nor did the rain
and water from the plamtiff's said messuage and premises of right
flow, nor ought to flow, away from the plaintiff's said messuage and
premises through the said drain, sewer, and passage for water as al-
leged. Issues thereon.
At the trial, before Bramwell, B., at the last Lancashire Summer As-
sizes, it appeared that the plaintiff and defendant were owners of ad-
joining houses situated in St. Anne Street, Liverpool. These hollses
,had been formerly que house, and had belonged to a person of the
jname of Williams, who converted them into two houses. In July,
1853, Williams conveyed the defendant's house to him in fee. This
conveyance contained r^ reservation of any easement. In September,
1853, Williams conveyed the plaintiff's house to him in fee. At the
time of these conveyances a jlrain or sewer ran under the plaintiff's
ll^use and thence under the defendant's house and discharged itself
into the common sewer in St. Anne btreet" Water from tlie eaves of
the deiendant's house fell on the plaintiff's house, and from thence
flowed down a spout into the drain on the plaintiff's premises, and so
into the common sewer. The defendant blocked up the drain where
it entered his house, and in consequence, whenever it rained, the plain-
tiff's house was flooded. The defendant stated that he was not aware
of the drain at the time of the conveyance to him. It was proved that
the plaintiff might construct a_drain directly from his own house into
the common sewer at a cost of about £6.
It was submitted on the part of the defendant, that the plaintiff had
no right to the use of the drain under the defendant's house. The
T^*^-
Ch.4)
CREATION OF EASEMENTS BY IMPLICATION
473
learned Judge directed a verdict for the plaintiff, reserving leave to
the defendant to move to enter a verdict for him.
Watson, B. This was an action for stopping a drain that ran un-
der both the plaintiff's and defendant's houses, taking the water from
both. The cause was tried at Liverpool, before Baron Bramwell,
when a verdict was entered for the plaintiff, and a motion was made
to enter a verdict for defendant in pursuance of leave reserved at
the trial.
The plaintiff's and defendant's houses adjoined each other. They
had formerly been one house, and were converted into two houses by
the owner of the whole property. Subsequently the defendant's house
was conveyed to him, and after that conveyance the plaintiff took a
conveyance of his house. At_the time of the respective conveyances
th^ drain ran under the plamtiff's house and then under the defend-
ant's house, and_discharged itself into the common sewer. Water
from the eaves ofthe defendant's house fell on the plaintiff's house,
and then ran into the drain on plaintiff's premises, and thence through
the drain into the common sewer. The plaintiff's house was drained
through this drain. It was proved that bv the expenditure of £6.,
the plaintiff might stop the drain and drain directly from his own land
into the common sewer. It was not proved that the defendant. _at
the time of his purchase, knew of the position of the drains.
Under these circumstances we are of opinion, upon reason and
upon authority, that the plaintiff is entitled to our judgment. We think
that the owners of the plaintiff's house are, by implied grant, entitled
to have the use of this drain for the purpose of conveying the water
from his house, as it was used at the time of the defendant's purchase.
It seems in accordance with reason, that where the owner of two or
more adjoining houses sells and conveys one of the houses to a pur-
chaser, tnat such house in his hands should be entitled to the benefit
oi all the drains from his house, and subject to all the drains then
necessarily used for the enjoyment of the adjoining house, and that
^iSteHL-^tiK^^^"'£^^^^MiQA-.-^-§>'^^"n' ^"^smuch as he purchases the
housesuchasit is. ifthatwere not so! the inconveniences and nui-
sances in towns would be very great. Where the owner of several ad-
joining houses conveyed them separately, it would enable the vendee
of any one house to stop up the system of drainage made for the bene-
fit and necessary occupation of the whole. The authorities are strong
on this subject. In Nicholas v. Chamberlain, Cro. Jac. 121, it was
held by all the Court that, "ij^one erects a house and builds a con-
duit thereto in another part of his land, and conveys water by pipes to
his house, and afterwards sells the house with the appurtenances, ex-
cepting the land, or sells the land to another, reserving to himself the
house, the conduit and pipes pass with the house, because it is neces-
sary and quasi appendant thereto^ and he shall have liberty by law to
dig in the land for amending the pipes or making them new as the
case requires^ {So ii a lessee for years of a house and land erect a con-
k
474 DERIVATIVE TITLES (Part li
duit upon the land, and after the term the lessor occupies them togeth-
er for a time, and afterwards sells the house with the appurtenances,
to one, and the land to another, the vendee shall have the conduit and
the pipes, and liberty to amend them." Shury v. Pigott, Popham, 166,
s. c. 3 liulst. 339, and the case of Coppy v. I. de B., 11 Hen. VII, 25,
pi. 6, support this view of the case, that where a gutter exists at the
time of the unity of seisin of adjoinincr houses it remains when IJiey
are aliened by separate conveyances, as an easement of nejz^ssity.
It was contended, on the part of the defendant, that this pipe was
not of necessity, as the plaintiff might have obtained another outlet for
the drainage of his house at the expense of £6. We think that the
amount to be expended in the alteration of the drainage, or in the con-
structing a new system of drainage, is not to be taken into considera-
•^ tjon, for the meaning of the word "necessity" in the cases above cited
-• and in Pinnington v. Galland, 9 Exch. 1, is to be understood the neces-
sity at the time of the conveyance , and as matters then stood with out
alteration : and whether or not at the time of the conveyance there
was any other outlet for the drainage water, and matters as they then
stood, .must be looked at for the necessity of the drainage.
It was urged that there could be no implied agreement unless the
easement was apparent and continuous. The defendant stated he was
not aware of this drain at the time of the conveyance to himl 5ut it
is clear that he must have known or ougTmo have known that some
drainage then existed, and if he had incjuired he would have known
of this drain; therefore it cannot be said that such a drain could not
have been supposed to have existed ; and we agree with the observa-
tion of Mr. Gale (Gale on Easements, p. bZ, 2d Ed.) that by "apparent
signs" must be understood not only those which must necessarily be
seen, but those which may be seen or known on a careful inspection by
a person ordinarily conversant with the subject.
We think that it was the defendant's own fault that he did not as-
certain what easements the owner of the adjoining house exercised
at the time of his purchase; and therefore we think the rule must
be discharged.
Rule discharged.
POLDEN V. BASTARD.
(Court of Queen's Bench, 1SG3. 4 Best & S. 238.)
The declaration stated that the defendant broke and entered the
close of the plaintiff, situate at &c., and tnere broke_Qpen a door nnd
cut dowri and desFroyed a w^ooden fence, and took and carried away
large quantities of water belongmg to the plaintiff.
Pirst plea, except as to cutting down and destroying the wooden
fence, that before the committing of the acts complained of, and before
the plaintiff had any estate or interest of or in the close in which &c..
Ch. 4)
CREATION OF EASEMENTS BY IMPLICATION
475
Rachel Polden Bonnel was seised in fee, as well of and in the close in
which &c., and of a pump and well therein, as of and in a certain dwell-
ing house, outhouse and garden, and, being so seised, duly made and
published her last will and testament Sec. ; and by the said will devised
to Clementina Polden, and her heirs and assigns for ever, the house,
outhouse and garden, together with a way on foot from the house, out-
house and land unto, into, through, and over the close of the plainti,ff
to the pump and well, for the purpose of the said Clementina Pol-
den. her heirs and assigns, having, taking and fetching-^ 7\x\i\ fnr her
and them to have, take, and fetch, water from the pump and well, and
so back agam frcm the pump and well in, through, over and along the
close of the plaintiff unto and into the house, outhouse and garden
of Rachel Polden Bonnel, at all times of the year &c. ; and RacliSl
Polden Bonnel being so seised afterwards died without revoking her
will ; and thereupon Clementina Polden became seised in fee of the
house, outhouse and garden, with the appurtenances, together \\\\\\ the
right and easement by the will given and devised to her ; and Clem-
entina I'olden, being so seised, by deed, duly bargained, sold, granted y^^^^ Jo-OO--
and assigned to the defendant the house, outhouse and garden, with >q ^ uril
theaiopm]tenances^ together with the right antTeasement, and she ceased \J''''^'^'^*^>
to have any estate or interest therein, and the defendant became and -Y^^g^ Aasv^^J.
was seised in fee of and in the house, outhouse and garden, with the
appurtenances, and the right and easement, and at the times of the
cojnmitting the acts complained of continued so seised, and one James
Dennis was in occupation thereot, as tenant thereof, together wnth the
right and easement to the defendant, the reversion of the same be-
longing to the defendant; and the trespasses complained of, to which
this plea is pleaded, were a use and exercise by the defendant of the Ljx-»*yC^ >iA>t
way^right, and easement, the said water being water in the pump and . ^ /% ,^
well. The plea proceeded to justify the breaking of the door in the'*'^ *^'*^'
use and exercise of the right and easement of having, taking, and CjJL *^ I^C.A-<
fetching water from the pump and well, and for the protection of the
defendant's reversionary right.
There were other pleas iustifyinp- nn thp p-munds respective1y_pf
ajrescnptive righ t of way, of a right of way for twenty years, a n d
of a rigliT of way tor ^orty years, on foot through the close of the
plaintiri:'~to the pump and well, for the purpose of having, tnkinfy and
1 etching ^vateF theref romT Also pleas justifying the trespass to the
fence, because it obstructed the defendant's right to light and air.
Issues were joinedon all the pleas.
On the trial, before Williams, J., at the Dorsetshire Summer Assizes
in 1862, it appeared that, on the 26th May, 1834, Rachel Polden Bon-
nel, being the owner in fee of three cottages, made her will, by which
she devised as follows: "I give to my. nephew R. B. Polden. all that III /}
my freehold cottage and garden at Charlton Marshall, now occupied by j'^M. ^ct/W<^
W. Wills, to him and his heirs and assigns for ever. To my nephew I
W. Polden" (the plamtiff) "I give the house I now live in, with the out- |
476 DERIVATIVE TITLES (Part 2
house and garden and orchard, in my own occupation, to him and his
heirs and assigns forever. Also the sum of ilO. I give to mv niece
Clementina Polden the house and outhouse and g-arden as now in the
occupation of Thomas Answood,. junior, to her and her heirs and as-
signs for~ever.^ The house in the occupation of the devisor had a
pump belonging to it, which stood under a shed at the back of an out-
house belonging to the house occupied by Answood ; there was no
fence between his house and the land on which the shed stood ;_ he oc-
cj^ied thatliouse for two years as tenant from vear to year of the
devisor by apa_rol letting, and was accustomed with her knowledge to
go to the pump and draw water from it for his use ; there was no
other pump or well on his premises, but there was a river within 150
yards and a road to it. The devisor died in 1848. and in Septemloer.
1849, Clementina Polden^ who survived her, conveyed the cottage de-
visedJtoJjgi^ojthe^jdeffiniiaiiXit^^
The jury found a verdict for the defendant on the pleas as to the
rig[ht_Jfl..Iight andair^_and the learned Judge directed a verdict to be
entered forthe defendant on the pleas as to the enjoyment of the
,pump and~well, reserving leave to move to enter a verdict for the
plaintiff for 40s on those pleas.
n A In the following Michaelmas Term, Collier obtained a rule accord-
jj^ V-*"^^ ( ingly. on the ground that the right to the use ot the pump did not
g-'^XJt, I pass under the will of Rachel Polden Bonnel to Clementina Polden
'V^f^^'*^ ( under whom the defendant claimed.
V^WiGHTMAN, J. I am of opinion that this rule should be made ab-
solute. Mj\Kingdon has been unable to furnish us with any case
which goes to the extent ot saying that sucn words as are used in^his
devise create an easement. Pyer v. Carter, 1 PI. & N. 916, is open to
the distinction that the easement there was continuous. If the will
had contained words shewing that the cottage was intended to be de-
vised "as usually enjoyed before," it might have been contended that
the right to use the pump, which had been enjoyed by the tenant of
the cottage for two years, would pass, though not properly an ease-
ment. But there are no such words ; the devise is simply of ^the
house and outhouse and garden as now in the occupation of Thomas
Answbo(|/^ The circumstances ot the present case stiew that the pump
was not used byliim in the^xercise of a right to use it as an easement.
Crompton, J. I also think tliat my brother Williams was right in
holding that an easement was r^ot ^created by the terms of this de-
vise. The distinction between easements which are in their nature
continuous and apparent, such as drains, &c., and other easements,
such as ordinary rights of way, and that in question here, is well point-
^ji^itA/f ed out in Gale on Easements (3d Ed., by Willes) pp. 76, 77 ; the former
^^^ tjL/J^ *' I^ass with the devise or conveyance of a house as appurtenant thereto,
jt>4 "^^ and will pass without general jwords : but that does not apply to
-TJi^ , things not continuous in their nature, — in order to pass them there
must be the creation de novo of a new easement. I adhere to what
Ch.4)
CREATION OF EASEMENTS. BY IMPLICATION
477
I am reported to have said in Worthington v. Gimson, 29 L. J. O. B.
116, 120, 6 Jur. N. S. 1053, 1054, which was approved by this Court
in, Pearson v. Spencer, 1 B. & S. 571, 583. This is not a continuous
easement, nor an easement belonging to the cotta^j^e but a mere en-
j Q^men^ fnr twn years bv the tenant of the privilege of using the
Pjinip. If this had been an old easement attached to the cottage it
would pass by the words "appertaining or belonging;" but to create
a new easement which did not exist before the will must have devised
the cottage "with the pump therewith enjoyed." It is said that the .
words "as now in the occupation of Thomas Answood" are equivalent
to that ; but I am of o^pitnon that they are not.
Blackburn, J. I am of the same opinion. So long as the defend-
ant's cottage and the plaintiff'.g; p^arden with the pump in it belonged
to the devisor, who was seised in fee, there could be no easement. •
When the two cottages were severed, whether by will or grant of the
owner, an easement might exist, but. there must be worH;^ in the will |V0 X^^"^'^'^
or grant to create it. If this had been a continuous easement, as a flow ^/it^^iJi, Ju-U
of water to the cottage, or a drain carrying water from it, the prin- ' ^
ciple which has been called the principle of disposition of the owner -^^^-'^''^^ !-•*«%«
of two tenements would apply. But this right of wav to go to and Vxrw \y4' JSUU
return fromja pump is no such continuous easement as wDuld pass ujpon ij-. u. m^^"^
that principle ; and therefore it is necessary to shew words sufficient , ^
to express an intention by the devisor to create this easement de novo, /*'<^'^*-^|'''M >
and annex it to the cottage devised. There are no such words : there JtyjbiAj&^ Aj^
oi^ly is a devise of the cottage itself, "as now in the occupation of . „.«. >fc^
Thomas Answood;" and he had enjoyed merely a license to go to the
pump. ^ ^fM^^i^c^^^^^t^J^-^ '^*-«^
Rule absolute.*
4 In Pearson v. Spencer, 3 B. & S. 761 (1863) an owner of a farm rliviflprl jf:
by tjifs wfl] ipto "two portions, aevising them to A. and Jj. respectively. ^The
portion of B. was landlocked. The devisor, during his li'^e hnc,! used ^ wav in
a certain aireetion over tne property devised to A. in order to reach tlie por-.
tlon devised to B. It was claimed hy B. that he acQuired,;;v Irnnlicntion an ease-
ment of a way over the land of A. in the devisor's accustomed line of travel. TRie
court held that, such an ea.sement had heen acquired, not as a wav of neces-
sity. :^p^ this was a particular way, but on the basis of the general impli£ation.
Ei-le, C. J., said: "It falls under that class of implied grants'~where there is
no necessity for the right claimed, but where the tenement is so constructed
as that parts of it involve a necessary dependence, in order to its enjoyment
in the state it is 'in when devised, upon the adjoining tenement. There are
rights VFhiclT are' implied, and we think that the farm devised to the party
under whom the defendant claims could not be enjo^red without dependence
on the plaintiff's land of a right of way over it In the customary manfler."
"Hi P'Om V.-MyLl-op(jhraU'TraTrt\'ay (Jompanles, ii <J. b. D.12 (1886), a house
was divided into a front and back block ; and A. was lessee of three rooms on
the first floor in the back block. The lease did not expressly grant any mode
of ^cess. Access to the rooms demised to A. was gained from the street by
pass^g^rough a hall or vestibule, and then up some stairs. The front block
was taken under eminent domain pr^cppflipgp, and A. claimed compensation.
TI:;\ecourt"Beld tnat A. was entitled to compensation, ir ror no other reason,
formterTgrence witn iiis easement through the hall, thoughrstrictiv speaking,
if was" not a wav of nei'&fesitv. Bowen, L. J., said : ^'K'ow, it seems to me, that
tlie access to the demised premises falls distinctly within the class of rights
\i
DERiyATIVB TITLES
(Part 2
WHEELDON v. BURROWS.
(Court of Appeal in Chancery, 1S70. r^ R. 12 Ch, D. 31.)
TiTiCSiGER, L. J." The material facts of this case are short and sim-
ple. Rrior to the month of November, 1875, a person of the name
of_ Samuel Tetley was the owner of certain property in Derby, which
included a piece of vacant land having a frontage to the street, and
a silk manufactory and certain workshopj_at^ the rear of and abutting
upon that vacant land, having in one of the workshops certain windows
which opened upon that land. Owning this property, Tetley was
minded to sell it, and appears to have put it up in several lots for sale
by auction ; and in respect of some of the lots, including a lot which
was afterwards sold to the defendant, the sale by auction was aborTi ve.
However, an agreement was made at the auction to sell one of the lots
to the plaintiff's husband, and that lot was conveyed to him upon the
6th day of January, 1876, with these general words, "together with all
\valls, fences, sewers, gutters, drains, ways, passages, lights, water-
courses," and the other general words, "easements and appurtenances
whatsoever to the said piece of land and hereditaments belonging or
in anywise appertainjm;." The conveyance contains n^jjesgrvaUon in
express terms oi any right to the grantor in respect of liis other
land. On the 18th of February, a contract was made bv which Tetley
contracted to sfH to the dgfertdant the silk manufactory and the work-
s l^op which had the windows opening upon the land previously sqI d
and conveyed to the plaintiff's husband. This action arises from a
claim on the part of the defendant to have as of right the light en-
ter into those windows, or, to put it in another way, to prevent the
plajntiff from obstructing these windows by building on her land. Up-
on the matter coming before the Vice-Chancellor, he held that no right
in respect of the windows was reserved, either impliedly or expressly,
under the conveyance of January, 1876; and, consec|uently, that_tlie
defendant, as privy in estate with the grantor of the land whujii
\vas the subject of the conveyance, was entitled to no right of light
through those windows ; in other words, he decided that the plain-
tiff was entitled to build upon her land, although the result of _that
building might be to obstruct these lights. I am of opinion, both upon
principle and upon authority, that the Vice-Chancellor decided rightly.
We have had a considerable number of cases cited to us, and out of
alluded to in Wheeldon v. Burrows (1870), 12 Ch. D, ."il. Rv the p;rnnt- of nart
of^a tenement it is nuw well known tliat there will pass to the grantee all
Mmsp fyiitnnnoiis-fliul npjiMi'^iil wi.;^nents over TTie fitH^l' Hart or rne tenement,
■ wl^ich are necessary to tlie enjoyment ol tne part granted and have been uitiier-
to iise<l rnerewirn."" ~~ ~ ^"^
And see Brown v. Alabaster, L. R. 37 Ch. D, 400 flSS7). where a right of way
through a walled-in passagewa.y, with gates oi»ening into the same from the
quasi dominant estate, was rl^nined to have been created by implied grant up-
on conveyance of the nuasi dominant estate.
5 The statement of facts is omitted.
Ch. 4)
CREATION OF EASEMENTS BY IMPLICATION
479
>i^/u-A
them T think that two propositions may be stated as what I may call the
general rules governino; cases of this kind. The first of these rules
is, that on the grant by the owner of a tenement of part of that
tenement as it is then used and enjoyed, there will pass to "tlie
grantee all those continuous and annarent |^^yUJP"'ts Cbv which, of
course, I mean quasi easements), or, in other words, all those easc;
ments which are necessary to the reasonablp- pninY'''"i^'''<^ <^^ tli£--p4^-i-
erty granted, and which have been and are at the time of the grant
u sed by the owners of the entirety for the benefit of the part grante d .
The second proposition is that, if the grantor intends to reserve any'
right over the tenement granted, it is his duty to reserve it ex]:)resslv
in the grant. Those are the general rules governing cases of this
kind, but the second of those rules is subject to certain exceptions.
One of those exceptions is the well-known exception which attaches
to cases of what are called \\^^ia^^^fjece^it^ and I do not dispute
for a moment that there may be, and probably are, certain other ex-
ceptions, to which 1 shall refer before I close my observations upon
this case.
Both of the general rules which I have mentioned are founded upon
a maxim which is as well established by authority as it is consonant ^
to reason and common sense, viz.. [that a grantor shall not derogate V-*--*-*— »—
from his grant.'. It has been argued before us that there is no dis-
tinction between what has been called an implied grant and what
is attempted to be established under the name of an implied reser-
vation ; and that such a distinction between the implied grant and
the implied reservation is a mere modern invention, and one wliich runs
confrary, not only to the general practice upon which land has been
bought and sold for a considerable time, but also to authorities which
are said to be clear and distinct upon the matter. So far, however,
from that distinction being one which was laid down for the first time
by and wbich is to be attributed to Lord Westbury in Suffield v. Brown,
4 D. J. & S. 185, it appears to me that it has existed almost as JjLr
back as we can trace the law upon the subject; and I think it right,
as the case is one of considerable importance, not merely as regards
the parties, but as regards vendors and purchasers of land generally,
that I should go with some little particularity into what I may term
the leading cases upon the subject.
The first case to which I refer is Palmer v. Fletcher, 1 Lev. 122,
where the first proposition which I have stated as a general rule was
laid down or decided. * The other proposition was mooted, but there
was a difference of opinion amongst the members of the Court upon
it, and it was not decided. [His Lordship then read the report.] It
appears therefore that upon_the^j3roposition that if a man wishes. to 1 /4^</</>2Z
derogate from his grant or to reserve any right to himself he should
state so in the grant itself, there was a difference of opinion in the
Court, and that point was not decided.
The next case of importance is Nicholas v. Chamberlain, Cro. Jac.
^e^
480 DERIVATIVE TITLES (Part 2
121." [His IvOrdship then read the report, calling attention to the
words "necessary et quasi appendant thereto."] Now if that determi-
nation is held to mean that in all cases this doctrine of implied reser-
vation stands upon exactly the same footing as the doctrine of implied
grant, I think it will be found that over and over again that has been
overruled. But it is clear, as I have already suggested, that to the
second rule under which a man is prevented from derogating from
his grant there are certain exceptionsTone of those being in regard
to easements which have been called of necessity; and if Nicholas v.
Chamberlain only decides that point it appears to me to be quite right.
That Nicholas v. Chamberlain was not meant to decide more than
what I have suggested is, I think, shewn by the next case, Tenant v.
Goldwin, 2 Ld. Raym. 1089, 1093. There Lord Holt, in delivering the
judgment of tlie Court, deals. with that very point which had been
mooted in Palmer v. Fletcher, 1 Lev. 122. ; and he says, "As to the
case of Palmer v. Fletcher, if. indeed, the builder of the house sells the
house with the lights and appurtenances, he cannot build upon the
remamder of the ground so near as to stop the lights of the house;
and as he cannot do it, so neither can his vendee. But if he had sold
the vacant piece of ground, and kept the house without reserving the
benefit of the lights, the vendee might build against his house. But in
the other case, where he sells the house, the vacant piece of ground is
by that grant charged with the lights." I think it will be found that,
putting aside the case of Pyer v. Carter, 1 H. & N. 916, there has been
no distinct decision which in any way affects the principle laid down
in those clear and distinct terms by Lord Holt.
The next case to which I will refer is Swansborough v. Coventry,
9 Bing. 305, which has been cited on both branches of the argument
addressed to us by Sir Henry Jackson. That was a case of a sale by
auction of different lots to different persons at the same time, and it
was argued (and I particularly direct attention to this) that such a case
must stand upon exactly the same footing as if the land in respect of
which the easement was claimed had been conveyed first ; consequently
the case would be one in which a grant of the easement would be im-
plied. Now observe what that admits, and the argument so dealt with
upon that footing. It admits that priority in time of the conveyance
was a material point for consideration, because, if it had not been ad-
mitted, then the Court might have gone to the general question, not
whether the conveyances were at the same time, not whether one
preceded the other by a few minutes, or a few days, or by a few years,
8 The case is reported in Cro. Jac. 121 (1606), as follows : "Trespass. It was
held by the court upon demurrer, That if one erect a house, and build a con-
duit thereto in another part of his land, and convey water by pipes toThe
lipuse. ana afterwarg_sell the house with the appurtenances, pyr>p[>ting the lanS.
Of sell the Jaiid to~anolher, reserving to nuuseif the house, the^conduit "and
piposjass with tiie bouse ; because it Is necessary, et quasi appendant thereto ;
and lie shau have liberty by law to dig in the land for amending the pipes._or
making them new, as the case may require,'' etc; ' ^
Ch. 4) CREATION OF EASEMENTS BV IMPLICATION 481
but whether upon the severance of the property there was this (if I
may use the expression) continuous and apparent easement in respect
of which a reservation might be claimed, or an impHcation of a grant
might be made. Lord Chief Justice Tindal deals with the matter, as it
appears to me, upon the supposition tliat the general maxim is thatUi" ^ .
/ man who conveys property cannot derogate from his grant by reserv- ^X^f-M-*-!: rW<
/ ing[ to himself impliedly any continuous apparent easements; he says (j
(Id. 309), "It is well established by the decided cases that where^ie
same person possesses a house, having the actual use and enjoyment of \^ ^J0 §a^(^alIX^
certain lights, andaJso possesses the adjoining land and sells the house ^^ ^
to "another person, although the lights be new he cannot, nor canany VJ^-'*-'"^-^
one who claims under him, build upon the adjoining land so as to ob-
struct or interrupt the enjoyment of those lights. The principle is laid
down by Twysden and Wyndham, JJ., in the case of Palmer v. Fletch-
er, 1 Lev. 122, 'that no man shall derogate from his own grant.' The
same law was adhered to in the case of Cox v. Matthews, 1 Ventr. 237,
by Chief Justice Holt in Rosewell v. Pryor, 6 Mod. 116, and lastly, in
the later case of Compton v. Richards, 1 Price, 27. And in the present
case, the sales to the plaintiff and the defendant being sales bv the
same vendor and taking place at one and the same time, we think the
rights of the parties are brought within the application of this general
rule of law." It appears to me, therefore, that this is a decision which
fortifies the previous decision of Lord Holt.
I now come to ^yer v. Carter, 1 TJ .Rr N. Q1(S, which seern<; t" hfpak
the hitherto unbroken current of authority upon this point, and there
can be no doubt thatSir Henry Jackson is justified in saying that if that
case is right this appeal ought to be allowed. That was a case of a
somewhat special character. A house was conveyed to the defendant
by a person who was the owner of that house, and also of the house
which was subsequently conveyed to the plaintiff; and there had been
during the unity of the ownership the enjoyment of the easement of a
spout which extended from the defendant's premises over the plaintiff's
premises, and by which water was conveyed on to the latter. But it is
material to observe that the water when it came on to what were sub-
sequently the plaintiff's premises was conveyed into a drain on the
plaintiff's premises, which drain passed through the defendant's prem-
ises, and in that way went out into the common sewer. Subsequently
the house over whichvthis easement existed was conveyed to the plain-
tiff, and upon an obstruction of the drains in the defendant's house,
which, be it observed, immediately caused a flooding of the plaintiff's
house by the very water coming from the defendant's house the plain-
tiff brought his action, and it was held there that the plaintiff was enti->^
tied to maintain his action, and that upon the original conveyance to>4>*i^ *• CA'^ICx
the defendant there was a reservation to the grantor of the right to ^
carry jiway this water which~came trom the defendant's premises by
the medium of the drain which also went through his premises.
Aig.Pkop. — 31
182 DERIVATIVE TITLES (Part 2
Though those circumstances were special in their character, tliere is no
doubt that the principles laid down by the Court of Exchequer were
as wide as possibly could be. That Court laid down that there was no
distinction between implied reservation and implied grant; and this,
as it appears to me, broke the hitherto unbroken current of authority
upon this subject.
Now, although it is possible that tlie actual decision in Pyer v. Car-
ter, 1 H. & N. 916, was not exactly overruled, the principles there laid
down were clearly and distinctly overruled by the same Court in
White v. Bass, 7 H. & N. 722, the facts of which case were these:
A man was the owner of certain land and of a certain house which had
windows through which the light, not as an easement but as a matter
of enjoyment had come for some timiC. He let the land (reserving the
house) to trustees, subject to certain covenants by which they were to
build in a particular manner upon the land, and if those covenants had
been complied with, and they had built in the specific manner, there
would have been no obstruction to the lights of the house which the
grantor or the lessor reserved. Therefore, if we were entitled in these
cases to go back to matters which existed before the time of the con-
veyance, we should have found here, as clearly as could be shown, an
intimation on the part of the lessor that if building was to be -permit-
ted on the adjoining land, it was only to be permitted under such con-
ditions as would prevent the lights of the house being obstructed. But
that being originally the position of matters it was fpllowed by a con-
veyance of the reversion in the land to the trustees, and subsequently
to that conveyance tlie house was conveyed to another person, and
buildings having been put upon the land occupied by the trustees con-
trary to the terms of the original covenant, and of such a kind as ob-
structed the lights of the house, an action was brought by the person
to whom the house was conveyed. In that action it was decided that
the defendant held his land unfettered by the original covenant, and
unfettered by any implied reservation, and that he was entitled to build
in such a way as he thought proper on his land, although the effect of
what he did might be to obstruct the lights of the plaintiff. In giving
judgment Lord Chief Baron Pollock says this (7 H. & N. 730) : ''My
brother Petersdorff "has cited no authority for the precise matter which
he has urged before us, and I think that in construing a conveyance
of land we must collect what the parties intended from the language
they have used. It seems to me that we cannot look into the lease of
the 2d of October, 1855, for it is merged in the fee, a conveyance of
the reversion having been made to the lessees, and we must look to that
rnriArpyanrpalnnp in order to ascertain the rights of the parties. In
that conveyance there is no covenant by the^ purchasers not to build on
the land so as to nhstrnrt the light and air coming to the wirnjowq of
the plaintiff's house, nor indeed any limitation of the right to use the
land." Now, no case^an be more clear and distinct upon. the point
which we have to decide to-day, and the case is admitted by Sir Henry
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 483
Jackson to be such, but he suggested that we ought to overrule it as
being an exception to the general current of authority. So far from
that being the case, Pyer v. Carter, 1 H. & N. 916, appears to me to
have been the exception, and not White v. Bass, 7 H. & N. 722.
The latter case was followed by Suffield v. Brown, 4 D. J. & S. 185.
A good deal has been said about that case; and the principles upon
which this Court ought to act in dealing with decisions of Courts of co-
ordinate authority have been also discussed. I think I may say for
myself (and I believe I am expressing the views of the other members
of the Court) that we ought not to lay down as an absolute rule that
decisions of Lord Chancellors, at all events sitting alone, are to be
taken as decisions of the Court of Appeal, and absolutely binding on
this Court so as to prevent us from even looking into the grounds or
considering the case which was before the particular Lord Chancellor.
But no doubt the greatest weight ought to be given to such decisions,
and unless they are shewn to be manifestly wrong or manifestly con-
trary to the general current of authority on the point decided, it appears
to me that we ought not to take upon ourselves to overrule them.
That being so, let us look a little more narrowly into that case. First,
we have to see what was decided — and by that I do not mean what was
absolutely necessary to be decided, but what really the Lord Chancel-
lor took upon himself to decide, and, although he might have decided
the case upon other grounds, put as his ratio decidendi. Upon that
point there can be no doubt. We have only to read the close of his
judgment to see that he put it entirely upon this principle, which I
have stated as the second of the general rules applicable to cases of this
kind, that a man cannot derogate from his own grant, and that as a
general rule no implication can be made of a reservation of an ease-
ment to the grantor, although there may be an implication of a grant
to the grantee. The Lord Chancellor closes his judgment by saying
(having dealt witli some of the authorities as to continuous and appar-
ent easements) : "But this is irrelevant to my decision, which is
founded on the plain and simple rule that the grantor, or any person
claiming under him, shall not derogate from the absolute sale and
grant whirji he ha-^ m^c]e_" Although, therefore, it is perfectly true
tliat, looking to the special circumstances of that case, it might have
been decided upon those special circumstances so as even to admit the
proposition for which Sir Henry Jackson contends, it is equally clear
that the Lord Chancellor did not so decide the case, but decided it upon
a distinct negative of that proposition. If we were to stop here, it
seems to me that, looking to the fact that this was not a case in which
this point in question was mooted for the first time, but that the point
had been mooted and decided as early as the third year of the reign
of Queen Anne, we should not be justified in doing anything but fol-
low the principles enunciated by Lord Westbury.
But Suffield V. Brown, 4 D. J. & S. 185, has been confirmed by an
equally high authority, for in Crossley & Sons v. Lightowler, Law
484 DERIVATIVE TITLES (Part 2
Rep. 2 Ch. 478, Lord Chelmsford as Lord Chancellor had to deal with
a similar question, and he there says: "Lord Westbury, however, in
the case of Suffield v. Brown, refused to accept the case of P^^ v.
Carter, 1 H. & N. 916, as an authority, and said.Vtt seems to be mor?
w, ( reasonable and just to hold that if the grantor irftends to< reserve any
IJbJt^^ ' \ right over the property ^g^ranted it is his dutv to reserve it. expressly
Vj" /yv^ -\ in the grant rather than to limit and cut down the operation of a plain
{\/^ I grant (which is not pretended to be^otherwise than in conform]ty_with 1
/ the contract between the parties) bvthe fiction of an implied reserva- V
"v*^^ I tion? Tentirely agree with this view. It appears to me to be an im- 1
Pj/^ material circumstance that the easement should be apparent and con-
\' tinuous, for non constat that the grantor does not intend to relinquish
it unless he shews the contrary by expressly reserving it. The argu-
ment of the defendants would make, in every case of this kind, aji '■
implied reservation by law ; and yet the law will not reserve anything \
out of a grant in_£aYOur of a ^antor except in case of iiece^^sityJ' . \
Now the only case in the Court of Appeal which is suggested as be-
ing contrary to this high authority of two Lord Chancellors, is Watts
v. Kelson, Law Rep. 6 Ch. 166, 174, and no doubt there are observa-
tions of Lord Justice Mellish to the efifect that the order of conveyance
in point of date is immaterial, that Pyer v. Carter, 1 H. & N. 916, is
good sen^e and good lav/, and that most of the Common Law Judges
have not approved of Lord Westbury's observations. But, putting
(Oj^ aside for the moment that this was a mere dictum of the Lord Justice
^ . VP^ ^ during the argument, I must observe that this is not exactly so, as in^
^ ^jiF^^ Whifp V Rnqq^7 H. ^r \.\.J7?. the TnHo-p<; nf thp Cnnrt of Exchequer
0 f^^ J, , had distinctly, jii,jD£§aijds_the.r'"^'^^^^n IT "f ^Y^^ v- Carter, overruled
f^^ - ^ that case. No doubt, also. Lord Justice James says, "I am satisfied
^^jHT with the decision in Pyer v. Carter." But in the considered judgment
'.^^^ of tlie Court, when if it had been intended to say that Suffield v.
^^^ Brown, 4 D. J. & S. 185, was not law, one would have thought there
would have been something distinct upon the point, there is not one
word to the effect of that which had been said by the Lords Justices
during the argument. All that is said about it is this, Lord Justice
Mellish, who delivered the judgment, after referring to Nicholas v.
Chamberlain, Cro. Jac. 121, said, "This case has always been cited with
approval, and is identical not only in principle but in its actual facts
with the case now before us. It was expressly approved of by Lord
^ Westbury in Suffield v. Brown, 4 D, J, & S. 185, where, though he ob-
rA^ jected to the deQJsion in Pyer v. Carter, 1 H. & N. 916, in which it was
^»^^ bp|r] th^^- a ria{jt to an cxistcut continuous apparent easement was im-
^jJ^ |i) pjiedly reserved in the conveyance by the owner of two houses in the
^ jLy^^ allejo^ed serviejii:.iiQii^_es.^vet he seems to agree that the right to such
an easement would pass by implied grant where the domijiant tenement
is conveyed first ;" and that is what the Court of Appealhad to decide
in Watts v. Kelson, Law Rep. 6 Ch. 166. Therefore Watts v. Kelson
is no authority to justify us in overruling Suffield v. Brown, still less
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 485
for overruling it, supported as it is by the case of Crossley & Sons
V. Lightowler, Law Rep. 2 Ch. 478. Thus, then, as it appears to me,
stand the principal authorities on the general rules of law which I
stated at the commencement of this judgment.
Other cases which have been cited during tte- argument illustrate the
exceptions to the second of those general rules. As I have already
said, there is an undoubted exception in cases where the easement is
what is called a way of necessity. Thus in Pinnington v. Galland, 9
Ex. 1, 12, which was a case for disturbance of a right of way, there
were five closes, two of them called the Holme Closes, which were sep-
arated by the others from the only available highway, and which were
conveyed subsequently in point of time to the conveyance of the re-
maining closes through which this way de facto ran. In deciding that
the way still existed, Baron Martin appears to me to have put the case
entirely upon the exception to which I am referring. He says this :
"Secondly, assume that the conveyance to Mr. Dearie was executed
the first. In this case the Rye Holme closes were for a short period of
time the property of Mr. Dickinson after the property in the land con-
veyed to Mr. Dearie had passed out of him. There is no doubt appar-
ently a greater difficulty in holding the right of way to exist in this case
than in the other ; but according to the same very great authority the /^ • * ^
law is the same, for the note 1 Wms. Saund. 323. n., proceeds thus: (|*4v***>~V^'*'
'So it is when he grants the land and reserves the close to himself ;' /^ y//.^
and he cites several authorities which fully bear him out: Clark v. 'V*'^^'^'^
Cogge, Cro. Jac. 170; Staple v. Heydon. 6 Mod. 1; Chichester v. (/
Lethbridge, Willes, 72, n. ft nn dnnht- sppms extr^nrdinnry tVinf n mnn
should have a right which certainly derogates from his own grant ; but
the law is distinctly laid down to be so, and probably for the reason
given in Dutton v. Taylor, Lutw. 1487, that it was for the public good,
as otherwise the close surrounded would not becapable of cultivatign."
Now those last words clearly shew that the whole foundation of the
judgment in the case of Pinnington v. Galland, 9 Ex. 1, 12, was that
the way claimed in the case was a way of necessity, and it is equally
clear, as it seems to me, that Baron Martin and the Court whose judg-
ment he delivered in no way disputed the general maxims to which I
have referred. The case of Davies_v^ear, Law^ep. 7 Eq. 427 ...431.
also appears to me to have been decided onjthe^same^asis. There a
rnan, a builder, had got a lease of land for the purpose of building upon
that land, and he proposed to build upon it in such a way as that
through an archway, which was, at all events, standing to such an ex-
tent as to shew that it was intended to be used for a passage — that
through that archway should be the only means of communication
with certain stables which were to be erected. That being the position
of tilings, a portion of the land was sold to a third person, and the ques-
tion arose whether it was open to that person to build upon his land in
such a way as to obstruct this one only way into the stable. The Mas-
ter of the Rolls (Lord Romilly) held that it was not. And why? He
^'
i86 DERIVATIVE TITLES (Part 2
founded his opinion upon the basis of this exception to which I am re-
^) ferring. He says: "The question is, whether the defendant has a
Zr right to shut up the archway, and to intercept all access to Erskine
Mews through this passage. This depends upon whether this ease-
ment is reserved by impilication on the assignment of the house to' the
defendant: and this depends upon whether the easement is apparent,
and also is a way of necessity."
These cases in no way support the proposition for which the appel-
lant in this case contends ; but, on the contrary, support the propositions
that in the case of a grant vou may imply a grant of such continuous
and apparent easements or sucheasements as are necessary to tlie jea-
sonable enjoyment of the property conveyed, "and have in, fact been en-
joyed during the unity of ownership, but that, with the exception which
I have referred to of (easements of necessitv.^vou cannot imply a simi-
lar reservation in favour of the grantor of land.
Upon the question whether tliere is any other exception, I must refer
both to Pyer v. Carter, 1 H. & N. 916, and to Richards v. Rose, 9 Ex.
218, and, although it is quite unnecessary for us to decide the point, it
seems to me that there is a possible way iri which these cases can be
supported without in any way departing from the general maxims upon
which we base our judgment in tliis case. I have already pointed to
the special circumstances in Pyer v. Carter, and I cannot see that there
is anything unreasonable in supposing that in such a case, where the
defendant under his grant is to take tliis easement, which had been en-
joyed during the unity of ownership, of pouring his water upon the
grantor's land, he should also be held to take it subject to the reciprocal
and mutual easement by which that very same water was carried into
the drain on that land and then back through the land of the person
from whose land the water came. It seems to me to be consis_t£iiL^vith
reason and common sense that these reciprocal easements should be im-
plied; and, although it is not necessary to decide the point, it seems
to me worthy of consideration in any after case, if the question whether
Pyer v. Carter is right or wrong comes for discussion, to consider that
point. Richards v. Rose, although not identically open to exactly the
same reasoning as would apply to Pyer v. Carter, still appears to me to
be open to analogous reasoning. Two houses had existed for some
time, each supporting the other. Is there anything unreasonable — is
there not, on the contrary, something very reasonable — to suppose in
that case that the man who takes a grant of the house first and takes
it with the right of support from that adjoining house, should also
give to that adjoining house a reciprocal right of support from his own?
One other-point remains, and that I shall dispose of in a very few
words. It is said that, even supposing the maxims which I have stated
to be correct, this case is an exception which comes within the rule
laid down in Swansborough v. Coventry, 9 Bing. 305, and Compton v.
Richards, 1 Price, 27, namely, that, although the land and houses were
not in fact conveyed at the same time, they were conveyances made as
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 487
part and parcel of one intended sale by auction. It seems to me that
that proposition cannot be supported for one moment. We start here
with an absolute conveyance in January, 1876. What right have we to
look back to any previous contract or to any previous arrangement ^>-:p»
between the parties? If it had been the case of an ordinary contract, ^--i-^
and there had been parol negotiations, it is well-established law that
you cannot look to those parol negotiations in order to put any con-
struction upon the document which the parties entered into for the
purpose of avoiding any dispute as to what might be their intentions in
the bargain made between them. The same rule of law applies, and
even more strongly in the case of a conveyance, which alone must reg-
ulate the rights of tlie parties. In the cases which have been cited the
conveyances were founded upon transactions which in Equity were
equivalent to conveyances between the parties at the time when tlie
transactions were entered into, and those transactions were entered
into at the same moment of time and as part and parcel of one trans-
action. There mav be. and there is. according to Swansborough v.
Coventry. 9 Ring. 305. another exception to the rule which I have men-
tioned ; but here the sale by auction was abortive as regards the defend-
ant's property. There was a conveyance in January of the plaintiff's
property without any reservation, and there' was no contract of pur-
chase on the part of the defendant until more_tl'ian a month after that
conveyance had been complete! TtTdieveTTamexpressing the view of
the other members of the Court when I say that it appears to the Court
that under such circumstances there is no exception to the general rule.
For these reasons, therefore, the appeal should be dismissed.
James, L. J. The Lord Justice has been kind enough to express
the judgment of the Court. I only want to say something in addition,
that in the case of Nicholas y. Chamberlain, Cro. Jac. 121, the Court
seems to have really proceeded on the ground that it was not an in-
corporeal easPTTipnf^ hnt fhnt the whole of the conduit through which
the water ran wa'^ ^ corporeal part of the house, just as in any old city
there are cellars projecting under other houses. They thought it was
not merely the right to the pnssngp of \v7\\er, but that the conduit itself
passed as part of the hpuse. just like a flue passing through another
man's house. The appeal is dismissed with costs.
BaggalIvAY, L. J., concurred.
PHILLIPS y. LOW-
(Cliancery Division, 1S91. [1S92] 1 Ch. 47^227^
The plainti£E-^Arthur Phillips was the owner in fee of a messuage
known as Meadowcroft^t Catford, in the county of Kent, and the
plaintiff Buck was the lessee thereof.
The defend§,nt5; were tht;^ rvwners in fee of the land lying to thf^ north
o^and adjoining" Meadowcroft. and had obstructed the light and air
488
DERIVATIVE TITLES
(Part 2
^ Ti
coming thereto by erecting a buildin.£^ and placing hoardings on the
land close to the messuage.
The messuage anH InnH formerly both, belonged to one T- J- Stainton,
who died possessed thereof in the year 1R7?| hp having previously built
the messuage as a washhouse, stables, billiard room, and observatory,
and it was the access of light and air to a door and windows in such
niessijage which the_defeiidants had nbstriicted.
At the time the messuage was built and down to the time of the
death of J. J. Stainton the only building standing on the land to the
north of the messuage was a cottage called JLaurel Ijudger-surrounded
by a garden occupied by one G. T. Williams, and not interfering in any
way with any light or air coming to the messuage.
. J.J. Staintori_inade his w411 dated the 30th of June, 1875, and there-
by devised to G. T. WiTTiams the cottage called Laurel Lodge. ^together
with the Jand thereto adjoming up to the boundary of Meadowcroft.
and devised all the residue of hi^ freehold property to trustees upon
trust for sale.
The plaintiff EJyllips became entitled to Meadowcroft under an ex-
ercise of the trust for sale contained in the said will. Tbe defendants
purchased Lnuu^l Lod^e and tlip ndioining land from G. T. VVilliams.
The plaintiff Buck resided in one part of Meadowcrot't, and carried
on business as a coachbuilder on the other part thereof.
In August, 1890, the defendants commenced to build a lodge on the
north side of Meadowcroft within a few inches thereof which almost
entirely obstructed the light and air coming to the door and wind^w^
in sucn messuage.
Complaints were made by the plaintiffs to the defendants that they
were not entitled to build the lodge, and the defendants insisting that
they had such right, the writ in this action was issued on the 26th of
January, 1891, and on the 29th of January the defendants commenced
to erect, and shortly afterwards completed a hoarding painted black
within six inches of most of the windows and openmgs in Meadow-
croft,
A motion was made in this action for an injunction to restrain the
obstruction to the access of light and air as aforesaid, whereupon the
defendants undertook without prejudice to remove the hoarding and
the motion was ordered to stand till the trial.
The plaintiffs__claimed that the defendants might be restrained from
ot^structing or interfering with the access of light and air coming_to
Meadowcroft, and that they might be ordered to remove the building
already erected by tliem, or to pay to the plaintiffs damages for ob-
structing and interfering with the access of such light and air.
The action now came on for trial.
ChiTty, J. Nothing turns on the particular language of the wilL—
that is admitted. The circumstance that the devise of the defendants'
tenement is__£:^ressed to be made free of incumbrances^ that it is a
specific devise in form, and that the plaintiff's' tenement is comprised
Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 489
in a residuary devise of messuages, are all immaterial, and rightly ad-
mitted to be so. The term "incumbrance" does not affect the question
of light; and a devise of land, though in form residuary, is specific.
Lancefield v. Iggulden, Law Rep. 10 Ch. 136.
The question, then, may be stated in this simple form : A man being
seised in fee in possession of a house with windows, and of an adjoin-
ing fieldoveT~wHinrtITeTTght required for the windows passes, devises
the house to one and the field to another; does the right to the light
over the field pass to the devisee of the house, or is the devisee of the
field entitled to block up the windows ?
If the owner of the house and field by deed for v^lue grants the
house but retains the field, it is settled law that a right to the light re- J-J ennr*>jux/ a^
quired for the enjoyment of the house passes to the grantee? Why? / /-^y^TA
The reason stated in Palmer v. Fletcher, 1 Lev. 122, the leading case . , ^
on the subject, is that "the lights are a necessary and essential part of ^-*-*'^^*
the house." In other words, what is conveyed is not a mere brick or
stone building with apertures called windows, but a house with win-
dows enjoying light. This is the broad, substantial reason which com-
mends itself at once to the common sense of mankind. Worked out
soniewhat more technically, the conveyance operates as an implied
grant of the light. Blocking up the windows by the grantor is regard-
ed as an attempt on his part to derogate from his grant — a form oi
expression which assumes that the right to light has passed to the
grantee. The implication does not necessarily arise upon a mere
perusal of the deed itself. Generally the situation and ownership of
the adjoining field is not disclosed; but the implication of grant arises yjJ^^,^*^ >LAj
pr^ma facie so soon as the facts are ascertained that the light required « - • — ^'
for the windows passed over the field, and that the grantor was owner ^^**^'^V^ '^^
oi the field at the time of the grant. On these facts being known, and ' '
in the absence of any other special circumstances, the law imputes jo
the parties an intention that the easement of light should pass with the
house bv virtue of the grant As I have recently stated with more ful-
ness my opinion in regard to the subject of the implied grant in the
case of Bcddington v. Atlee, 35 Ch. D. 317, I refrain from repeating
what I there said. When all the surrounding circumstances which may
legitimately be inquired into are made known, the result may be dif-
ferent— the prima facie implication or inference may be wholly dis-
placed or considerably modified, as was held in the case of the Birming-
ham, Dudley and District Banking Company v. Ross, 38 Ch. D. 295.
Where the implication arises, the easement which passes is an easement
created de novo.
The principle of the decision in Palmer v. Fletcher, 1 Lev. 122, ap-
plies where the house and the land are sold and conveyed to two differ-
ent grantees_contemporaneously, as stated by the late Master of the
Rolls (Sir O. Jessel), in his judgments in Rigby v. Bennett, 21 Ch. D.
559, 567, and Allen v. Taylor, 16 Ch. D. 355. ' '
It was argued for the defendants that the principle applies only
490 , DERIVATIVE TITLES (Part 2
where the conveyance is by deed for valuable consideration. No au-
thority was cited in support of this contention, which appears to me to
be absolutely without foundation. The implied grant does not arise
from the consideration for the grant, but from the grant and the sur-
rounding circumstances, whether the intention of both the grantor and
grantee under a voluntary deed is regarded, or the intention of the
grantor alone is regarded, the result is the same. The intention to be
imputed is that a house with lights shall pass.
This argument as to a voluntary conveyance was a step towards the
^^yy J, defendant's main. contention, that the principle does not apply to a will.
'iT''^' / . ."In mv opinion, it does apply to a will. No authoritv for this conten-
,,^^^0sjA'%n ti^n on the defendants' part was cited. All the reasoning on the sub-
i.^%jf iK'iH^'' ject appears to me to apply to a will where the intention of the testator
• alone is regarded. A will operates as a simultaneous conveyance of
the house and the field to the two devisees! The question is covered,
or all but covered by two authorities cited for the plaintiffs. In Barnes
V. Loach, 4 Q. B. D. 494, it was decided that the easement of light
passed witli the house without express words, the ground of the de-
cision as stated in the judgment of the Court being, that if the owner
of an estate bag hppn in the habit of using quasi easements of an ap-
parent and continuous character over the one part for the benefit of
the other part of his property and aliens the quasi dominant part to one
person, and the quasi servient to another,Jhe respective alienees, m the
absence of express stipulation, take the land burdened or benefited as
the case may be, by the qualities which the previous owner had a right
toattach to them. .Pearson v. Spencer. 1 B. & S. 571 : 3 B. & S. 761.
was a case of a will. The testator had unity of possession of an estate
I which he divided by his will into two farms, devising one to the plain-
tiff and the other tp the person under whom the defendant claime d .
The way claimed by the defendant was the sole approach which had
been used by the testator for the house and farm devised to the person
through whom he claimed. It was decided that this way passed to the
devisee of the defendant's farm, although there were no express words
of gift of the way. In delivering the judgment of the Court of Queen's
Bench, Blackburn, J., after referring to the distinction between con-
tinuous and discontinuous easements, stated that Pheysey v. Vicary,
16 M. & W. 484, was an authority that the rule in this respect applied
as well to a will as to a deed. In delivering the judgment of the
Exchequer Chamber, Erie, J., stated that the judgment of the Court
below was upheld on the construction and effect of the will taken in
•connection with the mode in which the premises were enjoyed at the
time of the will. He said that the case fell under that class of implied
grg^s where there isno necessity for the right claimed, but where_the
tenement is so constructed as that part of it involves a necessary de-
pendence, in order to its enjoyment in the state it was when devised.
upon the adjoining tenement. Upon the facts of that case, the Courts
held that the way passed under the will. The ground of this decision
Ch. 4)
-ty^-i^^-
CREATION OF EASEMENTS BY IMPLICATION
491
applies to the present case. The house devised to the i>ersons through
whom the plaintiffs claim contained windows so constructed as to in-
volve a necessary dependence, in order to its enjoyment of light^ upo.n
the adjoining tenement. Light is an apparent continuous easement.
Gale on Easements (4th Ed.J p. 22. The case of Polden v. Bastard,
Law Rep. L Q. B. 156, which related merely to the easement or quasi
easement of a way which is a discontinuous easement, is not in point.
It was part of the argument for the defendants, that the basis of the
doctrine laid down in Palmer v. Fletcher, 1 Lev. 122, and developed by
subsequent authorities, was contract, or implied contract on the part
of the person retaining or taking the field that he would not obstruct
the lights, and that where there was no contract, the doctrine was in- rf*/^ C^v^Zfc*^
applicable^and consequently that as there was no contract between a
testator and his devisees, there was no ground for applying the doctrine
to the case of a will. In support of this contention, certain expressions
of the Lord Justices in their judgments in the case of the Birmingham,
Dudley and District Banking Company v. Ross, 38 Qi. D. 295, were
cited. It is unnecessary to deal with them at length. It is sufficient to
say, that in^mv opinion the Lords Justices did not intend to alter, the
law as to implied grants, and that my decision in this case is not affecte.d
by anything which fell from them ; and further, assuming that where
there is a deed between parties, the doctrine ought to be explained
theoretically as resting on contract as its basis. I see no difficulty in
applying by analogy, in the case of a will, an obligation, or condition,
orduty (whichever may be the right term) on the part of the devisee,
or imposed on him by the testator, not to obstruct the access of ligh t
to the house devised to another. I prefer, however, to rest my judg-
ment on the broad principles already statedj
RAY V. HAZELDINE.
(Chancery Division. [1904] 2 Ch. l^^Jw >j ' ^At^^^K^^f^^"^
Pripr to the date of the indenture next hereinafter meiytloned. tne
defendant was the owner in fee simple of two adjacent nouses in
Cheadle Hulme, Cheshire. By an indenture dated October 18, 1895,
the defendant conveyed one of these houses to the plaintiff's husband
in fee simple, and this house was subsequently conveyed by him to the
7 Milner's Safe Co. v. Great Northern & City R. Co., [1907] 1 Ch. 208 ; Gor-
ton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 97 N. E. 54, 38 L. R. A. (N.
S.) 882 (1912), ace. So, also, in Mason v. Horton, 67 Vt. 26G, 31 Atl. 291, 48
Am. St. Rep. 817 (1894); Johnson v. Gould, GO W. Va.-84, 53 S. E. 798 (1906),
where the severance was brought about by partition among heirs of the common
owner.
In Maynard v. Esher, 17 Pa. 222 (1851), the properties were sold separately
at the same public sale. It appeared that the deed of the quasi servient tene-
ment had been made just prior to the deed of the quasi dominant tenement.
An instruction to the jury tliat under such circumstances the conveyances
should be deemed as made simultaneously was held erroneous.
492 DERIVATIVE TITLES (Part 2
P:laintiff. In the western wall of the house retained by the defendant
there were two windows overlooking a yard forming part of the plain-
tiff's premises! Neither of the windows was an ancient light, nor was
any right to light in respect of either of the windows reserved in favour
of the defendant by the indenture of October 18, 1895.
The plaintiff recently commenced to erect a wall in her yard close
to these windows, so as completely to block the access of light thereto ;
but the defendant knocked down the wall from his own premises, and
it was again erected and knocked clown,. '
The plaintiff brought this action for a declaration tliat she was en-
titled to build on her premises so as to obstruct the light to the two win-
dows in question, and for an injunction to restrain the defendant from
throwing down the wall, and for damages!
. The defendant pleaded that the access of light to these two windows
was absolutely necessary for the enjoyment and use for habitation jif
the part of his house which was lighted by these windows. Of these
two windows one lighted a pantry and the other lighted a landing
immediately over the pantry. The evidence shewed that the landing
could be lighted by making a skylight in tlie roof, and that the pantry
could be lighted by making a window into the scullery which adjoined
the pantry, thus obtaining a borrowed light through the scullery ; but
it was admitted in cross-examination by the plaintiff's surveyor that
the blocking up of the existing window would ren der the pantry usele s s
as_ajDantr}^.
Kkkewich, J. If a vendor of land desires to reserve any right in
the nature of an easement for the benefit of his adjacent land which he
is not parting with, he must do it by express words in the deed of con-
veyance. That is settled law, and expresses the result of the decision
in Wheeldon v. Burrows, 12 Ch. D. 31, where the Court of Appeal
affirmed the decision of Bacon, V. C. That is the general rule, but the
rule is subject to^certai'i pyrf^^tion'^ One of them is the well-known
exception of an easement of necessity — that is to say, where the en-
joyment of the alleged right over the adjoining land is necessary to the
property which is not conveyed, then the Court will consider the ease-
ment as impliedly reserved, though it has not been reversed bv express
^yords. Such easement, or right in the character of an easement, may
be a right to the access of light to a particular window. In a large
majority of cases a window which lights a room is deemed necessary
to the lighting of that room and is, on the whole, essential to the com-
fortable enjoyment of tliat room, but it does not follow that the right
to access of light to that window is an easement of necessity. Where
are you to draw the line? Supposing the blocking up of tlie window
largely interferes with the comfort and enjoyment of the room, is the
grantee of the adjacent land entitled to block it up, or does the exception
stand ? It seems to me that the line to be drawn is pointed out by Stir-
ling, L. J., in Union Lighterage Co. v. London Graving Dock Co.,
[1902] 2 Ch. 557, 572. His Lordship makes a distinction between an
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 493 *
easement of necessity and an easement necessary to the reasonable en-
joyment of property. After referring to the two rules laid down in
Wheeldon v. Burrows, 12 Ch. D. 31, 49, and the exceptions thereto he
says : "The appellants did not dispute that there is no express reserya-
tion in the conyeyance to the plaintiffs, but they contended that the
easement claimed by the defendants is an 'easement of necessity' with-
,in the recognised exception to the second rule. Now, in the passages
cited the expressions 'ways of necessity' and 'easements of necessity' '
are used in contrast with the other expressions, 'easements which are
necessary to the reasonable enjoyment of the property granted,' and
'easements * * * necessary to the reasonable enjoyment of the
property conyeyed,' and the word 'necessity' in the former expressions
has plainly a narrower meaning than the word 'necessary' in the latter.
In my opinion an easement of necessity, such as is referred to. means
an easement without which the property retained cannot be used at
all, an^noLimfe. ia£i:g|y riecessao: to the reasonable, enjoyment of that
property." Then, after pointing out that the lights in Wheeldon y.
Burrow57l2 Ch. D. 31, 49, were reasonably necessary to the enjoy-
ment of the workshop, he says : "So here it may be that the tierrods
which pass through the plaintiffs' property are reasonably necessary
to the enjoyment of the defendants' dock in its present condition ; but
the dock is capable of use without them, and I think that there cannot
be implied any reservation in respect of them." That seems to me to
draw the distinction between what is absolutely necessary and what is
reasonably required for the enjoyment of the land and building as it
stands. In my judgment this is a window to which the access of light
cannot be reseryed by implication upon the ground that the light is
necessary to the pantry. It cannot be that there is any necessity by
reason of its being used as a pantry, since it can be used for other pur-
poses. It cannot be said that a special use of light attaches to it as a
pantry, and to say, as the defendant does, that access of light to that
window is reseryed to him by necessity is giying to the wor4 "neces-
sity" a meaning which it does not properly bear in this connection.
[His Lordship made a declaration that the plaintiff was entitled to
build on her hereditaments in such a manner as to obstruct the lights
- : . ■■ ' r^
of the two wmdows m question.]^
8 As to the creation of the easement of lisrht and air by implication in the I JtC ^*^ /
United States, see Kennedy v. Burnap, I2n_rnl. 4.-^^ 52 Pac. 843, 40 L. R. A. '
476 (1898) ; Keating v. Springer, 146 111. 481, ?A N. E. 805, 22 L. R. A. 544, 37
Am. St. Rep. 175 (1893) ; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80 (1874) ;
Mullen V. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379 (1869), conclyding that such
easement caiuiot be so created. Janes v. Jenkins, 31 Md. 1, 6 Am. Rep. 300
(1871) ; Greer v. Van Meter, 54 N. J. Eq. 270, 33 Ati. 794 (1896), contra.
"As to light and air, I am fx'ee to say that I do not believe the rule, as ap-
Tjlied" to our situatlAl^ and pirpimmfmipps. ^ sound one, which holds that under
any circimistances this ripht can by implication be burdened upon ^w afl^oin-
mg estate, as to preveht the MVht^i' tlKJI'^Of I'J'OllI building upon or improving
il as he pleases. I would reverse the rule and hold that hfi who claims rhnt
ten, twenty or thirty feet adjoining him (which in cities may be ypry yfllnnhlpt
shall remain vacant and unimproved, should found such claim upon an express
494 DERIVATIVE TITLES (Part 2
BRIGHAM V. SMITH.
(Supreme Judicial Court of Massachusetts, 1S55. 4 Gray 297, 64 Am, Dec. 76.)
Action of tort for trespassing on a close to which the plaintiff claim-
ed title under a deed of warranty from William Sherman. The de-
fendant justified under a way of necessity attached to adjoining land,
belonging, at the time of said deed, to Sherman, from whom the de-
fendant also derived title. At the trial in the court of common pleas,
it appeared that Sherman, at the time of the first deed, retained no
other way to his remaining lot except over the land g^ranted. But Per-
kins, J., ruled that the defendant could not justify under a way of
necessity over land which he had conveyed by deed of warranty. The
jury returned a verdict for the plaintiff, and the defendant alleged ex-
ceptions.
Thomas, J. If A. conveys land to B., to which B. can have access
only by passing over other land of A., a way of necessity passes by the
grant. If A. conveys land to B., leaving other land of A. to which he
can have access only by passing over the land granted, a wayof_neces-
sity is reserved iiL-lIie-g-pa4rt^ These points are settled, as well in the
cases cited for the plaintiff, as those cited for the defendant.
Is the rule affected by the fact that the grantor conveyed by deed
of warranty ? We think not. If the way were expressly reserved in
the deed, the covenants must apply to the premises granted, that isTan
estate with a right of way reserved or carved out of the fee.~rri the
present case, the law does for the parties the same thing, and the cove-
nants apply to an estate^ ^^th this way o^ necessity reserved.
Exceptions sustains
[ate^witn tnis way ot ne
grant or covenant." Dillon, C. J., in Morrison v. Marquardt, 24 Iowa, 35, 60,
ti2 Am. Dee. 444 (1S6S) .
In Rennyson's Appeal, 94 Pa. 147, 39 Am. Rep. 777 (ISSO), the court said that
the easement of light and air would not arise by implication unless there was
u""real necessity." See, too, Kohinson y. Clapp, 05 Conn, 366, 32 Atl. 939, 29
L. R. A. 582 (1S95) ; Doyle y. Lord, 64 N, Y, 432, 21 Am. Rep. 629 (1876),
In Manning y, N, J, Short Line R. R. Co,, SO N, J, Law, 349, 78 Atl. 200, 32
L. R. A. (N. S.) 155 (1910), the plaintiff in n nroceeding for an award in con-
demnation nroceedings whereby the defendant had taken a strip of land for
purposes of a right of way, claimed the award should include compensation
for lateral support for the right of way burdened artificially by the railroad
for railroad puriwses, it being contended that upon the acquisition of the right
of way the company acquired by implication an easement of such lateral sup-
port.
9 "It is not the necessity which creates the right of wnv. bnt ^^^^^jj^^jflfl-
struction of the. acts of the parties! Jso necessity will justify an enBry^upon.
ano?B?T^nHfTff^ii""a man cab' be supposed to hold land without any right of
access to it, a grant of it would not convey to the grantee any right to pass
over the adjoining land, howeyer necessary it might be to the enjoyment of the
thing granted. He would acquire nothing more than his grantor held. The
necessities of the parties would ada notnnig to It, uuuon y, Tayler, 2 Lutw,
1487, But the true principle is, that nothing will pass, as incident t.O' tbf> grant.
except it be necessary to the enioyTupni- of flip principal thing granted. fTf^nce
«-[)P prrnntpc r>t n r-i^^P surrounded by the grantor's land, is entitled only to a
ceuyenient way over the grantor's land, and will haye no right to i>a.ss oyer Jjb
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 495
DABNEY V. CHILD.
(Supreme Court of Mississippi, 1909. 95 Miss. 585, 48 South. 897.)
Dabney, appellant, was complainant in the court below. Child,
appellee, was defendant there. From a decree in defendant's favor the
complainant appealed to the supreme court. The facts are sufficiently
stated in the opinion of the court.
Mayeis, J., delivered the opinion of the court
The complamSTcmu^^case
-Lilt ^^wiiiplamOTt in fltis case executed to Child a warrantv deed to l,
one acre of land in section 6, township 15. range 5 E.. in Warren i^ /"IM^C^xa^
county, and the deed contains no reservation of any easement what-
wherever lie pleases. He may select a suitable route for his way, but in doing
it be must regard the interest and cpnvenience of the owner of the laiid, and
when he has done it, he will be coutiued to the same way ana may not change
its course according to his wishes or caprice. Russell v. Jackson (1824) 2 Pick.
(Mass.) 574; Jones v. Percival (1827) 5 Pick. (Mass.) 485 [16 Am. Dec. 415].
Although generally a man can acquire, as incident to a grant, only onp rJL^ht
of way to the same close, vet the same nrincinie of necessity which raises the
implication of one may extend it to two or more. Where a man should grant
a tract of land surroupded by his own, so divided into parts by an impassable
mountain, river or other barrier, as that there could be no passing from one
part to the other, he would by necessary implication convey a right of way to
each separate part, because without this some portion of the thing granted
would be entirely useless to the grantee. P.ut these implications of grants are
looked upon with jealousy and construed with strict ness. It is only the neces-
sity of the ca.se which will carry one way ; and certainly the necessity must
be not less strong to carry two. It is not pretended that the bluff across the
defendants' land is impassable; but only tbat it is 'exceedingly difhcult to
pass it, and that it would be much more convenient to the defendants to pass' over
the plaintiff's land. Here is no such necessity as will raise an implication of
a grant of different ways from dilferent parts of the defendant's lot. Con-
venience, even great convenience is not suthcient. If the defendants, when they
purchased, had desired a separate way for this small section of their lot, they
should have stipulated for it and had it expressly inserted in their deed." Mor-
ton, J., in Nichols v. Luce, 24 Pick. (Mass.) 104, 105, 35 Am. Dec. 302 (1834).
In Pettingill v. Porter, 8 Allen (Mass.) 1, 85 Am. Dec. 671 (1864), there had
been an instiniction as follows: "The deed under which the plaintiff claimed
conveyed whatever was necessary to the beneficial enjoyment of the estate
granted, and in the power of the grantor to convey ; that it was not enough
fry thp pliiinfifT <-»» piT»vc> thni tlip wny claimed would be convenient and beue-
ticial. but she must also prove that no other way could be conveniently maae
from the highway to her intestntp's linupe, without unreasonable Itibor and
expense; that unreasonable labor and expense means excessive and dispropor-
tionate to the value of the property purchased ; and that it was a question
for the jui'y. on all the evidence, whether such new" way could be made with-
out such unreasonable labor and exnenseT" Held a correct instructiom To
same effect is Crotty v. New River & Pocahontas Oonsol. Coal Co., 72 W. Va.
68, 78 S. E. 233, 46 L. R. A. (N. S.) 156 (1913).
In Hildreth v. Googins, 91 Me. 227, 39 Atl. 550 (1898), where in order to get
to the land as incident to which the way of necessity was claimed it was neces-
sary to go either over other lands of the grantor or over a portion of the ocean,
it was held, there being no evidence offered as to the unnvailnhilitY nf the ocean
as a hLghway^ang means or access, that there w^as no w^ay of necessit.v oy^r
the grantor s otner lands. See, also, Staples v. Cornwall, 99 N. Y. isupp. 1009
(1906): ~
As to w'ays of necessity where there are other possible means of access, see,
generally, Corea v. Higuera, 153 Cal. 451, 95 Pac. 882, 17 L. R. A. (N. S.) 1018
(1908). '■^—
/^^ iia^. ^i /
^
«^..
s.-^
DERIVATIVE TITLES (Part 2
ever. The object of this suit is to have the court declare that when this
conveyance was made there was an implied reservation in the deed that
complainant should have a right of way to his own premises over the
land conveyed^ on tlie idea that it is a wav of necessity.
The complainant has not brought himself within that rule of law
which would warrant the court in declaring that there was any way of
necessity reserved by implication in the deed, since the bill itself shows
that the way sought to be established is no more than a way of con-
venience, and in no sense one of necessity, since Child has already
given him another way by which he has free access to and from his
premises. One of the charges in the bill is that complainant is al-
lowed "to pass to and from his land over land belonging to Child
north of the one acre, but that this is by sufferance of said Child, and
which, it avers, the complainant has no right to, but enjoys merely
at defendant's will, and alleges that he has a right of way over the
strip, which Child denies, and refuses to allow him to cross for this
purpose, and that he seeks herein to have this court decree him this
right." It is thus seen that the complainant already has a way_,of
necessity open to him, over which he may go to the very land in ques-
tion, and there can exist no rig-ht to claim another and ditferent way
as a way of necessity, even though the route now used may be at ihe
sufferance of Child. If the appellant desires a private and permanent
right of way. Code 1906, § 4411, provides an adequate remedy whereby
. he may have a private way laid out.
In 11 Cyc. p. 1171, a clear statement of the law in regard to implied
reservations in deeds is made, supported by a great many authorities,
and we quote the statement with approval. It is there said: "If the
grantor intends to reserve any right over the tenement granted, it is
his duty to reserve it expressly in the grant. To say that a grantor
reserves to himself in entirety that which may be beneficial to him,
but which may be most injurious to his grantee, is quite contrary to
the principle upon, which an implied grant depends, which is that a
•' grantor shall not derogate from or render less effectual his grant, or
-J» render that which he has granted less beneficial to his grantee. Ac-
• j^Jr" cordinglv. where there is a grant of land, with full covenants of war-
ranty, without express reservation of easements^ the best-considered
r^jjr jf^- cases hold that there can be no reservation by implication, unless the
*jky \a ^ easement is strictly one of necessity ; for the operation of a plain
^ ^ ' grant, not pretended to be otherwise than in conformity with the con-
^^ Hti/\' tract between the parties, ought not to be limited and cut down by the
jy^\ fiction of an implied reservation.
^A*^ We do not think that the case of Pleas v. Thomas, 75 Miss. 495,
22 South. 820, is at all in point under the facts of this case. In the
case just referred to the way claimed was one of necessity, well marked
out, and had been in use for a considerable space of time. Not so
here. The way is not one of necessitv. and it is not shown that it was
ever in use as a right of way. The court said in Pleas v. Thomas:
Ct-ut
^ yOw-tfkXv.*^ ./VX/|-C-nyvr»-fcMS^
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 497
"The principles of law governing the case are not doubtful, but their
application to peculiar facts is difficult and delicate." We repeat the
same here ; but we do not think that appellant has shown any such
facts as would authorize us to declare that there is an implied reser-
vation of a way gf necessity in the deed of conveyance, when no
necessity exists. /Implied reservations, as against the express cove-
nants of a deed, are not favored by the courts, and are to be limited to
ways of strict necessity. /The fact that the land was practically given
to Child by Dabney irfno way alters the principle.^"
SEIBERT V. LEVAN.
(Supreme Court of rennsylvania, 18-48. 8 Pa. 383, 49 Am. Dec. 525.)
In error from the Common Pleas of Berks county.
The facts of this case are fully set forth in the charge of the court
below; and, as no other exceptions were argued in this court, either
upon the argument in 1847, or upon the reargument in 1848, but those
taken to the charge, it will be sufficient to present the case to the pro-
fession, as it was presented to this court by the court below. Upon the
trial there, Jones, P. J., charged the jury as follows :
"This is an action on the case.for obstructing a certain race through
which the water flowed to the plaintiff's clover-mill.
"In 1830, George D. B. Keim was seised of a tract of land in this
county through which flowed a stream of water, formed by the conflu-
ence of springs arising on the land, and of a stream of water flowing
into it from land situated above it. The stream thus formed, flowed
in its natural rliannel, tlrmiip-h the lower part of the meadow on Keim's
land, into the tract below, and was used by him at the proper season
' o^ the year for the purpose of irrigating the meadow, by means of a
ditch on the higher part nf the, men now, nnd so much of it as was
not consumed, flowed back again into the natural channel, by which
it entered the farm adjoining below, the property of John Esterly.
10 Land was lenspfl nnri together therewith a right of way over other lands
of the lessor. Under its powers of eminent domain a railroad comi)anj' erected
an embankment across the lessee's right of way in such manner as to make im-
possible the further use of said way. The lessee had no other means of access
nnlpss lip bad ^ right to pass nvt^v tliP nthpr lnT]:ds of his lessor in some other
lUie,. Did he have such right? See Cornell-Andrews Smelting Co. v. Boston
& P. E. Corp., 202 Mass. 585~ 89 N. E. 118 (1900).
A strip of land cuffing across the grantor's farm was conveyed in fee to a
railroad company, with no rcservijfion. except, as a part of the consideration.
tnat the grantee should make a good crossing or roadway. Gas was later dis-
covered on the part of the farm separated from the grantor's house by the
railroad. Tl;e grantor claimed tbe right to put in a pipe line leading from the
^^ells througnThe right of way to the house. The company objected, on the
ground that pueh rigbt was not included in the reservation, is there any
ground upon which the right so to locate the pipe line may be supported? See
Uhl V. Ohio River R. Co., 47 W. Va. 59, 34 S. E. 934 (1899).
Aig.Prop.— 32
.^
498
DERIVATIVE TITLES
(Part 2
^^>C^'
j:i^
w<)
?/(»A«3^
"By his deed of the 23d ]\Iarch, 1830, Tohn Esterly conveyed to
Keim, in fee, the said farm adjoining him below, containing about tw o
hundred acres. Keim, having thus become the owner of both farms, in
A the same year erected on the lower farm a mill for cleaning clover-
yc>t^^L, ^"y^^^**^ seed, &c., and for the purpose of supplving this mill with water, con-
^ structed a long ditch or race, principallv on the upper fann. with a
A^ ^^^8-t/»»«^ pond or dani near the mill (which pond was also on the upper farm),
' through which the water of the stream before mentioned was con-
ducted out of its natural channel for the purposes of the mill at
^such times as it was thought necessary to put the mill in operation.
C "On the 31st December, 1841, Keim conveved that tracL-QJ 1?md,
on which the race and dam were, to Messrs. IMuhfehburg & Schwartz,
whose deed was recorded on the 9th April following. On the 6th Au-
"' gust, 1842, Keim mortgaged that tract of land on which" the mill was,
to Jacob Bechtel and" others. On the 22d October, 1842, Muhlenberg &
Schwartz, entered into articles of agreement with the defendants,
acting as the agents of their mother ; whereby they covenanted J:o
convey to her a certain portion of the tract purchased by them of Keim,
on which portion were the race and dam in question ; and, in pursuance
of those articles, they executed their deed- to her on the 29th April,
1843. By virtue of a levari_faaas^ on a judgment confessed by Keim
upon the scire facias issued on the mortgage given bv him to Bechtel
and others, that tract still held by Keim, and on whirh wa«; the ml]]
w^as sold by the sheriff to the plaintiff, who received the sheriff's deed
therefor, on 5th November, 1844.
' ' In neither of those deeds to Muhlenberg & Schwartz, or jrom
them, is a;^y mention whatever made of this race and dam : noris
there ^ny reservation to Keim_and his heirs or assigns of any right
whatever to have the water flow through that race to the mill, or to
enter upon the land now of the Levans, for the purpose of repairing-,
cleaning, or doing anything else to this race and dam. By the first of
those deeds, the land passed absolutely, and ivithoiU any restriction or
reservation whatever in favour of Keim, to his grantees, who ac-
quired the most entire and perfect dominion over iL the largest and
most comprehensive known to our lazt's. Whatever may have been
the relations and understanding between Keim and his immediate
grantees, zvith regard to this land, Mrs. Levan, in purchasing of them,
zvas not required to go further than their recorded deed in fee: which
was equally notice to Keim's mortgagees of the lower tract, and to the
purchasers from Keim's grantees of the upper tract, of the extent of
the rights of these last. Thai deed reserving no right to this race — >
no right to have the waters Uoiv through it to the mill — no such right
remained in Keim. or in those claiming under him, by any subscouent
conveyance or encumbrance of thnf. Imvpr trnrt Mrs. Levan took the
upper tract from Muhlenberg. & Sclm'arta, as their deed conz'eyed it
to them, as fully and as amply, as free and as exempt from all reserva-
tions in favour of the owner of the lozver tract, as they had held it:
u<i<:^k^^'
Ch. 4) CREATION OF EASEMENTS BY
IMPLICATIOlS 499
and consequently she had a right to £11 up that race, or divert its 7va-
ters, at her own mere will and pleasure; and for the doing of this, no
action can he maintained against her, or those claiming under her.
"The plaintiff has submitted to us six points, agreeably to which,
we gj:e requested to charge you. We will take them up in their order :
/ "lyAt is true that the rights of the plaintiff, who purchased at sher-
"-tffs sale, under the mortgage by Keim to Bechtel and others, are jh e
same as those of Keim, on the 6th of August, 1842, which was the
date of the mortgage. Whatever right, title, or interest, Keim had in
the lower tract on that day, was bound by this mortgage, which became
the measure of the right, title, and interest of the sheriff's vendee,
under pr?)ceedings upon it. If Keim had then a right to the flow of
v^ater through that race, as appurtenant to the mill, or by virtue, of
any previous reservation or grant, such right would, we take it, have
been bound by the mortgage, and would have passed to the sheriff's
vendee of the mortgaged premises. But, before that day, Keim had
conveyed the upper tract, on which were the race and dam, in fee,
without any reservation of such right, and on that day he had no such
right that he could bind by inorTQUqe. he Had no nqlit to the fiowincf
of the water in that race; norTqlit to enter upon that upper tract to
clean or repair the race, or for any purpose whatever, save only by
the s}tff^rance of Muhlenberg and Schwartz.
y2y^\iQ plaintiff i'^ not pntitlprl tp recover under the sheriff's deed,
and that whether the defendants did or did not give notice, as they
allege : The right in this case does not in any manner depend upon the
fact of the defendants having given notice at the sheriff's sale, that
they-ei^imed this race.
/[Z.yllo'^^vtr necessary and incident to this mill, this race rnay be,
and notwithstanding it was occupied EyThe servants or tenants of Keim,
and by the plaintiff, for fifteen years before suit brought, still, if
Keim conveyed away the land, on which it is, in fee, when he had a
rio-ht to do so. and made ^o reserypfi^n -^f it, all right to the easement
here^claimed was lost by him and by those claiming it under him.
3^^/The mortgage and sheriff's deed given in evidence, do not con-
vf^ tXie race in controversy as incident and appurtenant to the mill. If
Keim had mortgaged the lower tract on which the mill is, before he
conveyed the upper tract in fee, that might alter the case. But he
could not have claimed incidents or appurtenances to his own land,
in land by him conveyed to another in fee, without having reserved
them in his deed tn that other.
"The cases of ways of necessity, cited from Cro. Jac. 170, and 2
Lutwyche, 1487, held to exist in favour of grantors, are of doubtful
authority. The necessity here is self-created, and such a necessity
could not be, in the words of Sergeant Williams, either in law or rea-
son any justification of a trespass committed on another's lands ;
Pomf ret v. Pycraf t, 2 Wms. Saund. 323, n. 6 ; and if it could not afford
500 DERIVATIVE TITLES (Part 2
a justification for a trespass, supposing Seibert to be a defendant here,
of course it can aftord him no foundation for a right to recover, being
a phrifTtiff.
y^5^^J<iuh\enherg and Schwartz's consent to Keim and his tenants
iTgmg the danTahd race atter his deed to them and up to the date of
hb mortgage to Bechtel and others, as Keim had nrcnpipH anH nc(pH
it before his deed to Muhlenberg and Schwartz, does not entitle the
plaintiff to recover. They might have permitted this use or not, as
they pleased ; it might have been even an adverse use^^but whether
permissive or adverse, it can give no right as against the JLe^ans.
ITiey are not bound bv the mere permission, express or implied, of
Muhlenberg and Schwartz, nor are they bound by any adverse use
short of twentv20ne_y£ars,— The moment the Levans came in they had
a right to do with this land, whereon the race and dam are, what they
pleasp4v
y^'^6>xWe_cannot say, that, under all the circumstances in thij^case. the
law will imply a reservation ot the right to the race by Keim when hv^
conveyed to Muhlenberg and Schwartz. We cannot distinguish this
case in principle from CoUam v. Hocker, 1 Rawle, 108. And having
that as a rule laid down to us by the highest tribunal in. the state, it is
our and your duty to conform implicitly to its authority.
'" Your verdict should he for the defendan ts."
Verdict and judgment for defendants, whereupon this writ of error
was sued out, and in this court those parts of the charge printed in
italics, as well as the afiswers to the second and subsequent points of
the plaintiff, were assigned for error.
Gibson, C. J. \Ve have before us a case in which the proprietor
of two adjoining tracts of land, through which ran a water-course to
his mill on the lower one, part of which was the natural bed of a small
stream, and part of it a trench from a neighbouring creek, conveyed
tliejipper tract expressly;^ without reserving the water-right,'^ to a party
w ho has obstructed the trench and cut off the supply o f water from__tbe
creek. Such a watercourse is analogous to a way of necessity, which
is not extinguished by unity of seisin, the only difference being that in
the latter the right has not been created during the unity, but existed
antecedently to it. But the time, not of creating the right, but of part-
ing with the land to which it was attached, is the material circumstance.
When the owner of a way sells the land through which it leads to a
market, or a ville, or a church, he retains the way without an express
reservation of it.; and why? Because, as appears in Jordan v. At-
wood, Owen, 121, and the several cases collected in Woolrych on Ways,
71, the law presumes he wQilld not have parted with a part of the prop-
erty to the ruin of the rest of it; and the presumption is practically
founded in ju'^tire ^fid truth. Is not a water-course as necessary to a
mill as a way is to a ville or a church? Yet when the land is sold, the
easement is retained on the principle of implied reservati9n^ A right
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 501
of way and a rjo-ht of water-course^beiiig alike subject to the general
law of easements, are not distinguishable from each other in any es-
sential particular. But we are not driven to analogies from association,
however intimate; for it will be seen that there are several decisions,
in cases of water-right, directly on the point before us. '''^
The three principal ones adduced on the part of the defendant are
Burr v. Mills, 21 Wend. (N. Y.) 292; Preble v. Reed, 17 Me. (5 Shep.)
175 ; and Hayes v. Bowman, 1 Rand. (Va.) 420. In the first of them,
a small part of the tract above, which was sold by the owner of the
mill, was covered by the pool of the dam; and in an action for the
damage, Mr. Justice Cowen, delivering the opinion of the court, said :
"It can make no difference that there was then a dam built which
flowed this land. If a man convey land which is covered with his rmjlH
pond, without any reservation, he loses his right to flow it. There is|
no room for inTpli_e_d reservation. A man makes a lane across one farm
to another, which he is accustomed to use as a way; he then conveys
tlie former, without (expressly) reserving a right of way ; it is clearly
gone, /^man cannot, after he has absolutely conveyed away his land, u^ y AAAJA^
rstilTretain the use of it for any purpose,^ without an express res_^rva-
Vtion. The flowing, or the way, is but a mode of use; and a grantor -^'''Mp'*-*''*'^*~W
might as well claim to plough and crop his land." An argument, by an ^ • v
analogy, to a right of water-course from a right of way, which, we
have seen, may be retained without being expressly reserved, is merely
a petitio principii ; and the doctrine of the entire paragraph, being as
applicable to natural as to artificial water-courses, would justify the
filling up of a natural pond, used as a reservoir; which is surely not
the law. Nor does the claim of a water-course of necessity bear any
resemblance- to a claim to plough and crop another's land, which would
merely be an idle and extravagant pretension. He admitted that the
land would have remained subject to the easement, had the owner of it
retained it and sold the mill ; for which distinction, he cited Nicholas
V. Chamberlain, Cro. Jac. 121 ; which clearly proves the particular
position, but as clearly disproves his conclusion from it, as well as the
whole doctrine predicated by him ; for it was held by all the court,
"that if one erects a house and builds a conduit thereto in another pact
of his land, and conveys water by pipes to the house, and afterwards
sells the house, with the appurtenances, or sells the land to another,
reserving to himself the house, the conduit and pipes pass with the
house." As the reservation of the house is not an express reservation
of the pipes, it must be an implied one ; and as we have seen that a
vendee may set up an implied grant of a thing lying out of the limits
of his conveyance, on the ground of necessity, w.e may infer that a
vendor may, on the same ground, set up an implied reservation of
something within them.
It is not by force of the word appurtenances that a water-course, like
the present, would pass by the grant of a mill, but by force of the
502 DERIVATIVE TITLES (Part 2
principle that the grant of a thing includes all the means in the gran-
tor's power to attain it ; for the means shall pass inclusive without the
words "cum pertinentiis," or words equivalent to them : Touchstone,
89. The grant of the means, therefore, is an implied one, for it is cer-
tainly not expressed ; and there is no imaginable reason why there
should not be an implied reservation where the land is sold and the mill
is retained. But to return to the defendant's cases. The second of
them, Preble v. Reed, is a decision of the same stamp, in which the
same doctrine is asserted without a reason or an authority given for it,
excepting an instruction reported to have been given on a supposed
state of facts in Hathorn v. Stinson, 10 Me. (1 Fairf.) 224, 25 Am.
Dec. 228, which seems, it was said, to have met the approbation of the
whole court. In the third of them, Hayes v. Bowman, it was barely
held that a man who had granted a part of his land divided from the
rest of it by a river, and expressly to the middle of the stream, had not
a right to erect a dam from shore to shore for the better enjoyment of
his mill-seat; but the court did not determine what would have been
the law of the case had a dam been erected before the land was sold.
The decision is a sound one, but it does not touch the point before us.
The preceding cases make up the sum of what has been adduced as
authority for the defendant; and we will now turn to the authorities
on the part of the plaintiff. Besides Nicholas v. Chamberlain, which
is full to the point, we have Sury v. Pigott, Palmer, 444, more fully
reported in Popham, 166, and more intelligibly stated in Nov, 184. It
seems from the last, that the case was this : A., seised of Whiteacre,
with a house, curtilage,and hop-yard through which ran a stream to a
pond in the curtilage for watering cattle, enfeoffed P., oi the hop-yard
above, and leased tlie house and curtilage to S. P. stopped the stream ;
and S. brought an action on the case for it; and the court held that
the right of water-course had not been extinguished bv the, unity of
seism. Yet there, as here, the defendant obtained title to the ground
above by the earlier grant. It was said by Dodderidge, that if "a
man having a mill and water-course over his land, sells a portion""of
the land over which the water-course runs ; in such case, by necessity^
the water-course remaineth to the vendor, and the vendee cannot stop
it;!! and Crew, Chiet Justice, said that it had been adjudged accord-
ingly in Day and Drake's Case, 3 Jac. 1, in the King's Bench. The
opinion of Chief Justice Popham in Lady Brown's case was also cited
by him, in which it was held that if one "hath a stream of water which
runneth in a leaden pipe, and he buys the land where the pipe is, and
he cuts the pipe and destroys it, the water-course is extinct because he
thereby declares his intention and purpose that he does not wish to
enjoy them together"; the inference from which is, that if he had
sold the land without cutting the pipes, the easement would have re-
mained, and he instanced the case of a dve-house with water running
to it, in which it was held that a purchase and subsequent sale of the
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 503
land on which the water was current, by the owner of the dye-house,
did not extinp^uish the easement.
These are ancient cases, but they seem to have been deeply consider-
ed, and founded in the soundest ma>:ims of tlie laws. It is admitted
that the owner of adjoining tracts traversed by a natural water-course,
is as much entitled to the use of the water, having sold the upper one
as if he had not owned it. The vendee would be entitled to a reason-
able use of it, returning it, when it had served his purpose, to its for-
mer channel, so as to make it enter the tract below at the point where
it entered it at the time of the sale ; and what difference could there be,
whether the channel to lead it to that point were made by water or
by the hand of man ? There is no particular charm in a gully cut by
natural agents. While the grantor was lord of the whole, he might
assign a permanent channel to the stream, and as regards himself or
those to claim under him, impress it with any character he should see
proper. There is no peculiar sanctity in the natural bed of a stream,
which is perpetually changing its course from accidental causes. Had
the connexion with the natural water-course leading from the springs
to the mill, been made by a flood tearing its way through the bank of
the creek, it would not have been pretended that the grantee, having
purchased with the fact before his eyes, would have been at liberty to
destroy it. But that it would have been entitled to no consideration as a
dispensation of Providence, is shown by the undoubted right he would
have to mend a breach made after his purchase. It is true the rule is,
that water shall flow ubi currere solebat et consuevit ; but that regards
the duty of returning it, and not the nature of the channel. It was
said by Dodderidge, in Sury v. Pigott, that as water descends it is al-
ways current, et aut invenit aut facit viam ; and he asked, "Shall such
a thing be extinguished which hath its being from creation ?" And
Crew said. "A water-course is a thing natural, and therefore by unity
it shall not be discharged," but that these things were said of the ele-
ment without reference to the nature of its channel, is evident from
Nicholas v. Chamberlain, and Lady Brown's case, in which the ease-
ment was not lost though the water was conveyed through leaden pipes.
The sum of the matter in regard to disposition by the act of an owner
of two tenements, is thus condensed in Gale and Whatley's Law
of Easements, 52 : "It is true that, strictly speaking, a man cannot
subject one part of his property to another by an easement for no
man can have an easement in his own property, but he obtains the same
object by the exercise of another right, tjte general right of property;
but he has not the less thereby altered the quality of the two parts of
his heritage ; and if, after the annexation of peculiar qualities, he alien
one part of his heritage, it seems but reasonable, if the alterations thus
made are palpable and manifest, that a purchaser should take the land
burthened or benefited, as the case may be, by the qualities whichjii£
previous owner had undoubtedly the right to attach to it." Th'^-^a^e^
ment in the case at bar was palpable and permanent; and the defend-)
I4f JU..»<
t Street
\3yvwj^^!^
504
,'ATIVE TIflLES
(Part 2
ant was not at liberty to disturb it. As the exceptions to evidence have
not been separately argued, it is unnecessary to examine them in detail.
Judgment reversed, and a venire facias de novo awarded.^^
Rogers and Coulter, JJ., dissented. ,
IMITCHELL V. SEIPEL.
(Court of Appeals of Maryland, 1879. 53 Md. 251, 36 Am. Rep. 404.) -
Miller, J.^^ This action was brought in December, 1878, by the
appellee against the appellant to recover damages for closing and ob-
structing an alley between two houses then separately owned by^tj^e
respective parties. The case presents an important and interesting
question respecting the law of easements.
The facts necessary to be stated, and about which there Is no dispute
are these : In the year 1839, Daniel Collins became the owner under a
lease for ninety-nine years renewable forever of a lot of ground in the
City of Baltimore, fronting thirty feet on West street, and extending
back eighty ieet to Gould lane, a public alley twenty leet wide. The
lot was then vacant, but soon after his purchase Collins erected thereon
two brick houses trontmg on West street. These houses were built
u ■
about the same time, the first having a front of fifteen feet, and
the second a front in the lower story of twelve feet and six
inches, and in the upper stories of fifteen feet, thus leaving an
alley of two feet and six inches between them:, covered by the
joists which supported the second floor of the second house. These
joists projected over the alley and into the adjoining wall of the first
house. The alley thus covered was open to the street, and extended
back between the houses about thirty feet. At its inner terminus two
gates_jixi£_plac£d, which opened respectively into the rear premises
and yards of each house, and it was used by the occupants of each_as
a common passageway to and from the street. Each house had, as
usual, a front door opening upon the street, and from the end of the
alley a fence was built which extended back to Gould lane, and divided
the lot into two parts, giving to each a width of fifteen feet. During
his life. Collins continued the owner of the w^hole property and occu-
pied one of the houses. After his death his widow became the owner
under his will, and so continued until the year 1865, when by an order
11 Cihak V. Klokr. 117 111. 643, 7 X. E. Ill (1SS6) (hut cf. Povi-ers v. Heffernan,
233 111. 597, 84 N. E. 661. 16 L. R. A. (N. ?;.) 523, 122 Am. St. Rep. 109 (1908) ;
Znamauacek v. Jelinek, 69 Neb. 110. 95 N. W. 2S, 111 Am. St. Rep. 533 (190:1);
Dunklee v. Ry. Co.. 24 N. H. 489 (1852); Kelly v. Dunning, 43 N. J. Eq. 62, 10
Atl. 276 (1887); Lampnian v. Milks. 21 N. Y. .505 (1860), overruled by Wells
V. (Jarbutt, 132 N. Y. 430, 30 N. E. 978 (1892) ; Harwood v. Benton, 32 Vt 724
(1860), but see Howley v. Chaffee, 8S Vt. 4t;8. 93 Atl. 120 (1915), repudiating
illctuni in Ilarwood Case ; Bennett v. Booth, 70 W. Va. 264, 73 S. E. 909, 39 L.
R. A. (N. S.) 618 (1912), accord.
12 The statement of facts and a portion of the opinion are omitted.
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 505
eLr'f^
^(pd*^^^^-^
of the Orphan's Court, and in pursuance of a power contained in the
will, the executor of Collins sold and conveyed the entire property to
George T. Waters.
While the unity of possession thus continued, it is very clear no ease-
ment in respect to this alley existed. A party cannot have an easement
in his own land, inasmuch as all the uses of an easement are fully com-
prehended in his general right of ownership. Oliver v. Hook, 47 Md. ^^^
308. But this unity of ownership was severed on the Rth of Tune. C^^^^'J
1865, bv Waters the owner, who on that day sold and conveyed the 3?^ -^^«^t/-
second house and lot to George W. Chandler, from who'T^ ^-^t^, flpfpnrl-
ant^ thrP-Ugh several mesne conveyances derived his title to the same.
This conveyance was an absolute and unqualified grant, describing the
property by metes and bounds, which included the whole of this allev.
and contamed n^^serT^j^jyj^of the right to use the same for the bene-
fit of the hnnsT'anrHn^^^ed hv the grpntnr Waters retained
ownership of the first house and lot until the 29th of July, 1868, when • ^z /
he sold and conveyed the same to the plaintiff by a similar g-rnnt. which jA^r^-^-t^ ^
embraced no part of the alley. The defendant obtained his title to the — ^v-*,-*.-*-*^
second house and lot, (as before stated by mesne conveyances from ^ .
Chandler, the first grantee thereof,) in October, 1874, and shortly {/^t^ ^>* <^^^
before this suit was brought, prevented the plaintiff from using the ^y
alley, by placing upon it buildings and other obstructions. There is no
pretence that the plaintiff had acquired a prescriptive right to use the
alley, nor is the case complicated by any easements of drainage or
sewerage. There are no pipe.-^ nr drains, either underground or other-
wise, from one house to the other, and thence to a common outlet, nor
does the surface drainage pass through the alley. The proof shows
that the natural flow of surface water, and that from the hydrants on
both premises is in the opposite direction, towards and to Gould lane, t/uf^ A CAyvy
The alley_was therefore simply ^JSSSum^^^'^^ "^-^ffi^^^ way. Without f ^j\
doubt it was open and apparent, and was made and designed by Collins, \kA^\j AXJt;^*
for the common use and benefit_aLl)nth houses, and was in fact so y
used by the occupants of both, until obstructed by the defendant, but
it is equally clear that Collins and those who succeeded him in the .own-
ership of both could have closed it, and re-arranged the pr^riises.^
pleasure. _ The real question in the case then is : l^oes the la\ attach
to the unqualified grant in 1865, from Waters to Chandler, of tNe sec-
ond house and lot, by metes and bounds, which include the whole of
this alley, an im.plied reservation of the use of it for the benefit of the
hou^e_and premises retained by the grantor? Upon this point, our
investigations have led us to an examination of the large number of
authorities cited by counsel, as well as many others, and upon no
question have we found so great a contrariety of judicial opinions and
dicta, if not of actual decisions. * * *
In short, after a careful examination of the numerous authorities
in this country to which our attention has been called, we have found
but one prominent decision by a Court of last resort, in which the doc-
506 DERIVATIVE TITLES (Part 2
trine of implied r^asrvation in a case analogous to the one before us
has been sustained, where the facts were such as fairly to present the
question for determination. That is the case of Seibert v. Levan. 8
Pa. 383, 49 Am. Dec. 525, in which the opinion of the Court sustaining
the doctrine was delivered by Gibson, Ch. J., in his usual forcible and
vigorous style. Two, however, of the five Judges dissented, and in the
course of his opinion the Chief Justice was obliged to set aside the
opposing authorities of Burr v. Mills, 21 Wend. (N. Y.) 292, and
Preble v. Reed, 17 Me. 175. Against this case may be placed tlie dgci-
sipn in Carbrev v. Willis. 7 Allen CMass.^ 364. 83 Am. Dec. 688,
(where also tlie facts presented tlie question,) in which it was said
!by the Supreme Court of Massachusetts : "But where there is a grant
of land by inetes and bounds without express reservation, and with full
covenants of warranty against encumbrances, we think there is no
just reason for holding that there can be any reservation by implica-
tjon, unless the easement is strictly one of necessity. Where the ease-
ment is only one of existing use and great convenience, but for which a
substitute can be furnished by reasonable labor and expense, the gran-
tor may certainly cut himself off from it by his deed, if such is the
intention Qf_tli£_parties. And it is difficult to see how such an inten-
tion could be more clearly and distinctly intimated than by such a deed
and warranty." In a subsequent case in the same State. (Randall v.
McLaughlin, 10 Allen [IMass.l 366.) notice is taken of the fact that the
authority of Pyer v. Carter [1 H. & N. 916] had then recently been
wdiolly denied by the Chancellor of England, in the opinion given in
Suffield V. Brown [4 De G., J. & S. 185], which, says the Court, "con-
tains an elaborate review of the whole doctrine, resulting in conclusions
substantially like those to which we came in Carbrey v. Willis."
But the decision of our predecessors in McTavish v. Carroll, 7 Md.
352, 61 Am. Dec. 353, has been pressed upon our attention by the
appellee's counsel. That was a case peculiar in its facts and circum-
stances. A father who owned a large tract of land on which there was
a mill, mill-dam, race and roadway for repairing it, conveyed by a
voluntary deed of gift, the portion on which the dam, race and road
were situated, to his daughter without reserv'ation, and subsequently
by a like deed, conveyed the portion on which the mill was located to
his son, and in both deeds reserved a Hfe estate to himself. The Court
held that the grantee of the portion on which the mill was situated, was
entitled to the use of the dam, race and road upon the principle of legal
necessity, but also adverted to the fact as distinguishing that case from
the authorities there cited, that the two deeds gave the grantees the
right of possession at the same time, viz. ; upon the death of the gran-
tor, he having reserved to himself a life estate in both parcels of land.
• There was in fact, therefore, no antecedence of title of one grantee to
the oth^r^ and in view of the authorities to which we have referred, the
decision of that case might well have been rested on that point alone.
But it was in other respects materially dift"erent from tlie present case,
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 507
and cannot control its decision. Neither in that case nor in that of
Oliver v. Hook, 47 Md. 301, were the views of Gale on Easements,
adopted further than in reference to implied grants, and in the latter
case, it was held upon abundant authority, that even the doctrine of
implied grants had no application to the case of an ordinary, open and
unenclosed way, not being at the time of the grant an existing ease-
ment.
Finding then no binding decision of this Court, and no decided pre-
ponderance of authority in this country, to prevent us from following
the law as it has recently been settled by the decisions in England, and
being satisfied the distinction so clearly drawn in those decisions be-
tween what has been called an implied grant, and what has been
attempted to be established under the name of an implied reservation,
is not only founded in reason, but has existed almost as far back as the
law upon the subject can be traced, we shall aPDly it to the case be-
fore us.
It rernains then to ascertain whether this alley is a way of necessity,
so as to fall within the exception to the second proposition stated in
Wheeldon v. Burrows. Among the cases coming under this exception,
reference may be made to Pinnington v. Galland, 9 Excheq. 1, and
Davies v. Sear, Law Rep. 7 Eq. 427. In those cases the ways in ques-
tion were ways of necessity, and the decisions went upon that ground.
But we are all clearly of opinion this allev is not such a way. We
adopt as entirely applicable to the present case, what was said in Dodd
v. Burchell, 1 Hurl. & Colt, 11-3, by Wilde, B., viz., "It appears at the
time of the grant in respect of which the right of way is claimed, there
was a way from the house into the garden, and that way now exists.
But it is said the way now claimed is more convenient than the other.
Then comes the question whether the plaintiff can claim it as a way of
necessity, on account of its great superiority over the other way. It
seems to me that it would be most dangerous to hold, that where a deed
is silent as to any reservation of a way, the one that is more convenient
to use than another way, must exist as a way of necessjtx.. There is
no foundation whatever for such a doctrine." When the deed of 1865
from Waters to Chandler was executed, access to the yard and kitchen
of the house retained by the grantor could be had, not only through
the front door of the house, but from Gould lane in the rear. Such
public lanes or alleys are to be found in almost every part of the City
of Baltimore, and were made for the very purpose of affordiiig_a£cess
to yards and kitchens which could not otherwise be reached save
through the front doors of the houses. Most of the dwellings in that
city have such alleys in the rear, and no entrance from the front ex-
cept a door which opens into a hall or front room. It is true the proof
shows there was a brick stable on the plaintiff's lot fronting on Gould
lane, but it was built by the plaintiff himself, and not until after the
year 1872. If this obstructed access from Gould lane, it was the plain-
tift"'s own fault. He certainly could not by his own act, without con-
508 DERIVATIVE TITLES (Part 2
sent and against the rights of the defendant, convert this alley from a
way of convenience to a way of necessity. Whether it is a way of
necessity or not, must depend upon the state of things existing at the
date of the deed of 1865, and not with reference to the changes subse-
quently made by the plaintiff on his own premises. At that time the
alley was, as it is now, useful and convenient, but it was not what the
lg.w regards as a way of necessity.
But it has been further argued, there ought to be an implied reserva-
tion of this alley, because that part of the house granted by the deed
of 1865, which is above the alley, is supported by the wall of the house
retained by the grantor. The contention on this point i'^, that ihe alley
and this support afforded the granted house make a case of reciprocal
easements. But we do not see how the fact, that there may be an im-
plied grant of this easement or right of support, can be held to take
from the grantee the ground used for the alley, which was expressly
granted to him without reservation. The two are not necessarily^r
inseparably connected. The case is not like that of Richards v. Rose,
9 Excheq., 218, where a block of houses on a plot of ground were so
built together by the same owner as necessarily to require mutual sup-
port. In that case it was held that there was, either by a presumed
grant or by a presumed reservation, a right to such rhutual support,
so that the owner who sells one of the houses as against himself grants
such right, and on his own part also reserves the right, and consequent-
ly the same mutual dependence, of one house upon its neighbor's still
remains. This furnishes another instance of an easement of necessity
within the exception to the general rule forbidding implied reserva-
tions. The present case, however, is quite different. It does not come
up to that case, nor does it touch the cases or the law of party walls,
nor even that of an alley situated and constructed in the manner de-
scribed in the case of Dowling v. Hennings, 20 Md. 179, 83 Am. Dec.
545. ■
It follows that there was error in granting the instruction given by
the Court, and for this the judgment must be reversed. The Court,
however, was clearly right in excluding, at the instance of the defend-
ant, the^ agreement, under seal, between Chandler and Waters, of the
8th of June, 1865, which professes to grant the common use of this
alley. That instrument was never recorded, and was not embodied in
or referred to by the deed of the same date. It can have no effect in
determining the construction or operation of that deed, nor can it .in
any wise affect the rights of the parties to this suit. It, therefore,
plainly appears, from the record before us, that the plaintiff" has no
ground of action, on account of the obstruction complained of, and it
hence becomes the duty of this Court not to award a new trial.
""Judgment reversed, and new trial refused.
Ch.4)
CREATION OF EASEMENTS BY IMPLICATION
509
MANCUSO V. RIDDLEMOSER CO. OF BALTIMORE CITY.
(Court of Appeals of Maryland, 1911. 117 Md.
1914A, 84.)
53, 82 Atl. 1051, Ann. Cas.
Urner, J.^^ The aroellpg corporation is the owner of a six-story
industrial building- in Baltimore City, fronting on the south side of
Fayette street and abutting in the rear on an alley known as Bank
lane. On July 27th, 1908, the company leased to the appellants a ware-
room on the first floor of the building together with a part of the
basement lying immediately north of the alley and south of a designat-
ed wall. The lease was for a term of two years. Sometime during
the first year the tenants, in consideration of a reduction in the rent,
surrendered to the landlord the north half, approximately, of the base-
ment area covered by the lease, and the new division line was indi-
cated by a wire screen partition then constructed. On February 11th,
1910, the parties executed a new agreement for the leasing to the ap-
pellants of tlie room and cellar space they then occupied for the term
of five years, beginning September 1st, 1910, with an option to the
lessee to renew for successive terms. In each of the leases it was
s tipulated that the premises should be used only as a barber shop an d
bathing establishment and for certain incidental purposes, and there
was a covenant that the landlord should supply all hot and cold v/a-
ter and all electric current and heat reasonably required by the ten-
ants in the prosecution of their business. The section of basement
leased to the appellants appears to have been mainly ust^d by th-r^m
for access to a toilet and for the storage of empty boxes. In the base-
ment retained by the landlord, and partially under the wareroom ten-
anted by the appellants, is located the steam and electric plant by which
the appellee's building is supphed with heat, light and power. There
are numerous lessees who are dependent upon this service. The en-
tire second floor is occupied by a business college, and the floors
above by various manufacturing industries, while the first floor ac-
commodates several business enterprises in addition to that conducted
by the appellants.
At the rear of the basement leased to the appellants is a doorway
five feet wide opening into Bank lane. It is equipped with outer doors
of iron, with inner doors of glass, and with intermediate, doors of wire
screen. Until a short time before the filing of the present bill this
doorway had been used continuously by the employees of^the appelke
in going to and from the steam and electric plant and in moving sup-
pnes and repairs, and the iron and glass doors^ had been kept open in
order to aid ventilation and reduce the temperature. There were
openings provided for the same purposes through the w^all and screen
partition located between the plant and the rear portion of the base-
ment. It appears without dispute that the temperature of the base-
Afeygr/g
fSAmf< A
13 A portion of the opinion is omitted.
510 DERIVATIVE TITLES (Part 2
ment, with the Bank lane doors open, is usually about one hundred
and eight degrees in winter and sometimes as high as one Irundred
and forty-five degrees in summer, and that when these doors are closed,
at any season of the year, the thermometer rises about forty degrees.
This is shown by the evidence to be considerably above the tempera-
ture at which the men can remain at work and the machinery be op-
erated with safety. The testimony is that when the heat reaches one
hundred and fortv-five or one hundred and fiftv degrees there is dan-
ger that the wiring and insulation on the electric generators will ^be
destroved. This would necessarily cause a stoppage of the plant and
of all the machinery which it supplies with power and would require
heavy expenditures for repairs. It is proven also that in the event
of a sudden discharge of steam, which may result from the bursting
of a pipe or the blowing out of a gasket, the only way of escape for
tlie employees in the basement would be through the door opening
on Bank lane. There is a narrow passage leading by the boiler and
fire pit to a stairway in the front of the building, but an accident of
the character described, which has already once occurred, would cut
ofif this means of exit.
The conditions we have indicated were existing and apparent when
the appellants entered into possession under their first lease. They
knew that the employees in charge of tlie steam and electric plant
were daily using and depending upon the alley doorway for ingress
and egress. They must have been aware also that the system of ven-
tilation which the appellees had provided for the basement of their
building could not be effective if the door in question were keptclosed.
They m.ade no objection for nearly three years to the use of the door-
way by the appellees for the purposes we have mentioned, and it was
not until after this Inng period of acquiescence that tliey locked^the
door and asserted that its exclusive control belonged to them under
their lease. They assumed this attitude for the first time early in
]\Iarch, 1911, and when they then closed and fastened the door the
temperature of the basement rose to about one hundred and forty de-
grees, and according to the testimony of the engineer in charge "it
absolutely got dangerous to run the machines, and it was dan&erous
not only to the machines but to the help, and you simply suffocated in
there, and if anything were to happen you were caught like rats in
a trap and couldn't get out." After this condition had existed for
about two weeks the City Inspector of Buildings notified both the ap-
pellants and appellees "to keep free and open the rear exits of the
heating plant in the bpilding, as it appears they are now locked and
bolted. It is a menace to the men operating the plant and must be
done immediately." This was followed a few days later by the pres-
ent bill for an injunction to restrain the appellants from keeping_jlie
doorway closed A preliminary writ was granted, and upon final hear-
^^^.f^ ing the injunction was made perpetual.
In support of their position the appellants rely upon the fact that
^
Ch.4)
CREATION OF EASEMENTS BY IMPLICATION
the lease under which they hold contains no express re.serv^_gj;i to th e
appellee of any right to fhe use of the; doorway now in dispute, and
they invoke the well settled principle that easement by implied reserva-
tion will not be sustained except in cases of strict necessity. Jay v.
Michael, 92 Md. 210, 48 Atl. 61 ; Burns v. Gallaglii7r62 Md. 472;
Mitchell V. Seipel, 53 Md. 269, 36 Am. Rep. 404. It is insisted that
the conditions shown by the record are not such as to make the present
case an exception to the general rule. The contention is that the use
by the appellee of the doorway in controversy is not necessary, with-
in the meaning of the rule staTed. because it is possible that other
means of access and ventilation may be provided through other por-
tions of the basement. The evidence, however, does not support this
theory. It is shown by the proof tliat no adequate provision could be
made in substitution for the use of the opening into the alley without
injuriously encroaching upon the rights of other tenants in possession
of adjacent sub-divisions of the basement under prior leases. When
the appellants acquired their leasehold interest, the doorway on Bank
lane was the only way under the control of the appellees by which a
draft of air could be obtained for the area occupied by the steam and
electric plant and by which a safe exit could be secured for the engi-
neer and fireman. This doorway was then, and thereafter continued
to be, in actual and necessary use for these vitally important purposes.
Under such circumstances it is clear that a reservation to the appellee
of the right to such user must have been understood and intendedJjy
both the parties to the lease. In tlie decisions we have cited it was
held that:QTt is only in cases of strictest necessity, and where it would
not be reasonable to suppose that the parties intended the contrary,
that the principle of implied reservation can be invoked." I In the case
before us it would be altogether unreasonable to suppose that there
was any intention on the part of the lessor company or of the lessees
that the former should surrender the only available means of insur-
ing the safety of the employees in charge of the plant in the basement
and of obtaining the ventilation required for its satisfactory operation.
In our judgment, under the conditions presented in this case, the use
of the rear doorway in connection with the steam and electric plant
must be held to be one of strict and absdute necessity. * * *
Decree affirmed, with costs.
511
and^tt/**^ •
BROWN V. FULLER.
(Supreme Court of MieMgan, 1911. 165 I^.Iicli. 162, ir>0 N. W. 621, 33 L. R. A.
[N. S.] 459, Ann. Cas. 1912C, 853.)
Complainant and defendants were, respectively, owners of adjoin-
ing^ lots facing Burdick street, in the city of Kalamazoo. Upon com-
plainant's lot, which was 22 feet wide and about 230 feet deep, ex-
tending to Farmer's alley, there had stood for many years a three-
'^
liJyJL^^fU I M
512 • DERIVATIVE TITLES (Part 2
story brick block, running east from Burdick street about 90 feet.
To the east and in tlie rear of said brick building, a one-story build-
ing extended eastward to the alley, about 130 feet. The sewage_jrom
the brick block was conducted under the one-story building to a lateral
sewer in Farmer's afley! The roof drainage of the block was carried
onto the roof of the one-story building and thence to the alley. De-
fendants desired to erect a theater, and, their own lot not affording
suthcient'area for their purpose, negotiated with complainant for tlie
purchase of tlie rear or easterly 130 feet of her lot. On November
9, 1908, a warranty deed of said^ parcel with full covenants against
incumbrances was executed by complainant to defendants for the con-
sideration of $5,000. This deed contains the following agreement:
"It is understood and agreed between the parties hereto, as a part
of the consideration of this deed, that the second parties are to build
a wall on tlie west side of the land above conveyed, about 16 inches
thick and about 40 feet in height, and that the party of the first part
is to own said wall jointly with the second parties, and it is to be
used as a party wall. The center of the said wall to be on tlie west
line of the land above conveyed,"
Defendants, after said purchase was complefedj proceeded to tear
down the one-story building which stood on the lot conveyed, and
commenced excavation for the basement under the proposed theater.
In excavating, the sewer from complainant's block was uncovered, and
as defendants desired to make a basement nine feet deep, which was
three or four feet deeper than the sewer, the sewer was cut, and the
excavation proceeded. In the negotiations complainant did not ad-
vise defendants of the existence of the sewer, and the record does not
show that they or either of them knew it was there.
After the sewer was cut, complainant filed her bill of complaint,
praying for a mandatory injunction compelling defendants to resto.re
the sewer connection and roof drain-pipe, and for a permanent in-
junction restraining defendants from breaking or interfering with tlie
sewer and from interfering with the passage of tlie roof drainage over
said lot. A preliminary mandatory injunction was granted ex parte
which the court refused, on motion, to vacate. This injunction was
granted on January 5, 1909. The cause came on to be heard on the
merits October 17, 1909. In 'the meantime, defendants had completed
the theater building, and, in obedience to the mandate of the coyrt,
had taken care of the complainant's sewage and roof drainage, at
considerable expense. Upon final hearing, tlie preliminary injunction
was made permanent. The decree further provides tliat the expense
of maintenance and repairs of the sewerage connection and tlie storm
pipe shall be borne equally by the parties. From this decree defend-
ants appeal.
Brooke, J. (after stating the facts). The sole question for deter-
^/'^mination here is whether or not there is an iiiiplied reservation of an
/^"^ Vasement over the land sold by complainant to defendants. It is said
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 513
that in reaching the conclusion he did, the learned circuit judge re-
lied upon the case of Smith v. Dresselhouse, 152 Mich. 451, 116 N.
W. 387. An examination of the facts in that case will at once demon-
strate that it differs vitally and fundamentally from the case here con-
sidered. There the owner of two adjoining tenements, located upon
either side of a river, upon each of which stood a mill, sold one of
the tenements to the complainant in that case, and, as appurtenant to
the tenement conveyed, sold the water rights. The owner and his
grantees continued to operate the mill on the other side of the river,
using the water for that purpose. Complainant filed his bill to enjoin
the use of the water. This court held tliat, as to the water, complain-
ant was a tenant in common with the owner of the adjoining tenement
on the opposite bank of the stream. Mr. Justice Ostrander, in stat-
ing the general rule, there said :
"It is a general rule of the law of easements that where the owner
of two tenements sells one of them, the purchaser takes the portion
sold with all the benefits and burdens which appear at the time of the
sale to belong to it as between it and tHe property which the vendor
retains."
The matter under consideration was a grant, not a reservation, and
in discussing the effect of the grant he further said:
"We should not expect that a grant of the land on one side of the
river only, the grantor retaining the land and mill on the other side,
and using the water there appurtenant, conveyed an exclusive right
to the entire water power. The terms of the grant to complainant are
express and seem to be unambiguous. The land is described by metes
and bounds. One boundary is the center of the main channel of the
river. The mill tract and the mill are within the boundaries. It is the
mill privilege and water power 'there situate,' i. e., appurtenant to the
land conveyed, which is deeded, with the right to flow lands and to
*use and make usd of the water power there situated.' "
Assuming, therefore, that tlie rule was correctly stated, the case was
determined, not by any application of the rule, but by a construction
of the terms of the grant. Nor is it applicable to tlie case under con-
sideration. Here, the sewer was under ground. It was not apparent,
and defendants are not shown to have had any knowledge of its ex-
istence under the land purchased by them. But, if they had such
knowledge, that fact would not be controlling, because complainant
knew that tlie use to which this property was to be devoted would
uncover the sewer and, as it existed, destroy it.
Even if it could be said that a grantor under any circumstances could
by implication reserve the right to continue an underground sewer in
the premises granted, which we do not determine, it would not aid
complainant. Here, it is sought by implication to reserve the right to
have the existing sewer destroyed and rebuilt in the air througkJihe
basement of the tenement to be erected upon the demised lands. Sim-
Aig.Pbop.— 33
514 DERIVATIVE TITLES (Part 2
ply to state such a proposition v^ould seem to be a sufficient answer.
The rule apphcable to implied reservations of easements is stated in
14 Cyc, p. 1171, as follows:
"As regards implied reservations of easements, the matter stands on
principle in a position very different from implied grants. If the
grantor intends to reserve any right over the tenement granted, it is his
duty to reserve it expresslv in tlie grant. To say that a grantor re-
serves to himself in entirety that which may be beneficial to him, but
which may be most injurious to his grantee, is quite contrary to the
principle upon which an implied grant depends, which is that a grantor
shall not derogate from or render less effectual his grant or render
that which he has granted less beneficial to his grantee. (^Accordingly,
here there is a grant of land with full covenants of warranty wjth-
express reservation of easements, the best considered cases hold
f^^""^"^ jA^*^^ that there can be no reservation by implication, unless the easement is
^ ^^^ ^ ^strictly one of necessity." "S
^ ^^^sesare cited from many jurisdictions in support of this statement
/■-I . jy . of principle, and we think it is in accord with the weight of modern
~fA/9^*^^l authority. The great weight of authority touching the question, with
*^^ ' ^, reference to subterranean drainage, is to the effect that, if tlie owner
ff^i \ of the land under which there is such a drain conveys a part of it^mth
ixr***^ "T^£>^' f"l^ covenants of warranty without reference to the drain, no easement
[ CAt^'^ is reserved.
!/«' The grantor and his privies, under such circumstances, are estopped
to claim any interest in the premises so granted. To permit such a
claim would be to allow the grantor to derogate from the terms of
his grant which, by every applicable principle, is forbidden. The au-
thorities upon the subject are collected and discussed in 10 Am. &
Eng. Enc. Law (2d Ed.) p. 42. See, also, 14 Cyc. p. 1169, and cases
there cited, and Farnham on Waters & Water Rights, vol. 3, pp. 2454,
2455.
In the recent case of Covell v. Bright, 157 Mich. 419, 122 N. W.
101, which upon principle much resembles the case at bar, we said:
"To entitle the complainant to a decree, the burden was upon him
to establish that the servitude was apparent, contijiuous, and strictly
necess^rx.to the enjoyment of nis lands citingcases.
In New Jersey, a different doctrine for a long time obtained, based
upon the ruling in the celebrated case of Pyer v. Carter, 1 Hurlst. &
N. 916, and those cases which followed the rule there laid down. _Pys.r
v. Carter hasu-frequently been severely criticised, and wa^; finally dis-
tinctlx--QY£rrule_d_iii_Eiigland. The case of Toothe v. Bryce, 50 N. J.
Eq. 589, 25 Atl. 182, contains a review of the English and American
cases, questions the soundness of the doctrine announced by that court
in its earlier decisions, and seems to recognize the distinction between
an implied p^rant of an easement and an jmplied reservation.
While it is apparent from the record that it will be somewhat ex-
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 515
pensive to dispose of the sewage from complainant's building otherwise 'jf^B*. '^
than over deiendants' land, it by no means appears that it is impos- 7^1/^^^^'^
sible to do so. There is not made out, therefore, a case of strict neces- ^j(
sjty, . '
The case presents this alternative : Either complainant at some, per-
haps considerable, expense to herself, must take care of her own sewage
and storm waters, or the defendants who purchased and paid for a
tenement warranted to be free from all incumbrances, must take that
tenement charged in perpetuity with an incumbrance of a very serious
character and one which is liable, through the breaking or stoppage
of the drain, to cause serious annoyance and damage.
Why should defendants be compelled to accept this burden? Why
should they be charged in perpetuity with the duty of defraying one- •
half of the expense of maintaining complainant's sewer as well as the
cost of its original construction? So far as the record discloses, they
have done no act which was not fully warranted by the terms of the
grant to them. Thev have sought to make use of the granted tene-
ment in a lawful manner and in a manner and for a purpose known'
bv cnmplninant before the sale.
Touching the disposition of the storm waters, it is clear that, by
the sale of the one-story building upon which it had theretofore been
carried to the alley, with the knowledge that said building was to be
immediately demolished, complainant must have known that such
drainage would be interrupted. The very terms of her written con-
tract show this, because she stipulated for the erection of a brick wall
between the premises granted and those retained. This wall was to
be 16 inches thick and about 40 feet in height. It is obvious that she
could not have contemplated the carrying of her roof waters over that
wall. At that moment it was apparent that some new arrangement
must be made to care for this water. D^efendants did not contract to
build a new drain and carry it across their own property to the alley.
nor did they agree to construct a new sewer, and we know of no_Erin-
ciple of equity which would compel th.em to do so.
The decree of the court below is reversed, and the bill of complaint
is dismissed, and, inasmuch as the record discloses that defendants have
expended certain sums of money in obedience to the mandate of the
court in caring for complainant's sewage and water, the record will
be remandpH fnr thf> pnrpn<;p nf aqrertaining the exact f^mnnnf of f^nrh
expenditure which, when ascertained, shall be decreed to be a debt due
from complainant to defendants for the collection of which execution ,
OsTRANDER, C. J., and H^OKERfM^xv^Y^BSiCSid^T^ JJ., 'yCM C^^^'
concurred with Brooke, J.
Bird, J." (dissenting). I am of the opinion tliat the trial court
readied a right conclusion upon the law and facts in this case and that
it migh\ to be- affirmed by this court.
In the case of Smith v. Dresselhouse, 152 Mich. 451, 116 N. W. 387,
\{jJiA, A^ ^ aK 0^ JU\i^,^\A£iu{_^^ '
516 DERIVATIVE TITLES (Part 2
Mr. Justice Ostrander, discussing the doctrine of implied reservations,
quoted, with approval, the following general rule of easements :
* 'It is a general rule of the law of easements that where the owner
of two tenements sells one of them, the purchaser takes the portion sold
witli all the benefits and burdens which appear at the time of the sale
to belong to it as between it and the propertv which the vendor retains.
Seymour v. Lewis, 13 N. J. Eq. 439, 78 Am. Dec. 108. Kvery grant
of a thing naturally imports a grant of it as it actually exists. United
States V. Appleton, 1 Sumn. 502, Fed. Cas. No. 14,463."
Mr. Justice Selden, in speaking of this rule, said:
"This is not a rule for the benefit of purchasers onlv. but is entirely
reciprocal. Hence, if. instead of a benefit conferred, a burden has been
irnposed upon the portion sold, the purchaser. provideH the marks^of
this burden are open and visible, takes the property with the servitude
ujpon it." Lampman v. Milks, 21 N. Y. 505.
If we are to take the foregoing rule as our guide in determining this
case, I am very firm in the conviction that defendants took the deed of
the premises burdened with the sewer. In arriving at this conclusion,
the distinction made by Mr. Justice Brooke, in his opinion, between im-
plied grants and implied reservations, has not been overlooked. Al-
though there is a difiference of opmion in the cases as to the degree of
necessity required to create them, the better rule seems to be, andjlie
one supported by the weight of authority is, that a reasonable necessity
is sufiicient to raise an impliedgi^nt : whereas, a strict necessity is nee-
essary to raise an implied reservation^ This court has adopted the
strict necessity rule i^Tovell v. Ei-igritV157 Mich. 419, 122 N. W. 101.
The question therefore arises whether the rirrnmstances of this case
are such as to bring it within the rule of strict necessity. A study of
the record has persuaded me that they do. To establish her case it
was necessary for complainant to show that the easement claimed jaas
apparent, continuous, and strictly necessary.
"^ vVas the easement apparent .'' Apparent easements" have been de-
^ fined to be those the existence of which appears from the construc-
'^'''^"'*''**^ I tion or condition of one of the tenements so as to be capable of being
^IxyytA.'t'vS'K . \seen or known on inspection. 10 Am. & Eng. Enc. Law (2d Ed.) p.
v 405. To this class of easements belongs the bed of a running stream.
r) an overhanging roof, a pipe for carrying water, a drain, or a sewer.
Fetters v. Humphreys, 18 N. J. Eq. 262. And the mere fact that a
drain or aqueduct, as the case may be, is concealed from casual vision,
does not prevent it from being "apparent" in the sense in which that
word is used in that connection. Larsen v. Peterson, 53 N. J. Eq. 88,
30 Atl. 1094.
Defendant testified that he did not know that the sewer extended
through the premises conveyed to him. If he had no actual knowledge,
he djd have constructive knowledge of that fact. He had owned for
upwards of 25 years premises side by side with the premises in ques-
tion, with like improvements. He knew there was a sewer which served
Ch. 4) CREATION OF BASEMENTS BY IMPLICATION 51T
complainant's premises because he had the front portion of them under
lease nearly two years before he purchased the rear portion, and at the
time there were five water-closets in the portion he had under lease.
He knew that the sewer from his own premises was discharged into the
Farmer's alley sewer, and must have known that there was no other
sewer into which it could be discharged and, if he did, it would not be
unreasonable to assume that he knew the same thing was true of com-
plainant's premises. On one occasion, prior to his purchase, a portion
of the floor in the rear part was taken up, which disclosed the sewer,
and defendant was present at that time. Defendant had, before pur-
chasing the property, talked and planned with complainant's husband
about building a theater where he has since erected one, and, in doing
so, undoubtedly considered the question of plumbing among other ques-
tions of construction and arrangement. A knowledge of these facts
was sufflcient in the law to put defendant upon inquiry and to charge
him with notice that the sewer traversed that portion of the premises
purchased by him.
Is the easement continuous? The sewer had been in existence for
-J
^20 years, was of a permanent nature, was in use at the time, and was
susceptiSTe of being used and enjoyed without making an entry on de-
fendant's premises, except for the purpose of repair. These facts
would clearly bring it within the definition of a "continuous easement."
Larsen v. Peterson, supra.
'♦.^y Is the easement strictlv necessary to the enjoyment of complainant's
^ Y premises? The sewer in Farmer's alley is the only one aypil^blp fnr
•****» . her use. The city engineer testified that one might be constructed to
l^^ \. De Visser alley, but that it would be impracticable for the reason that,
-^ where it would discharge into that sewer, it would be only 18 inches
underground. The topography of that part of the city is such that no
other sewer can be constructed which will serve these premises without
a prohibitive expense. A cesspool was suggested by complainant; but
the city authorities would not permit it. She then made an efiiort to
byy the right of her neig[-hbor on the north to go through the partition
wall and connect with his sewer^ which also discharges into the Far-
mer's alley sewer; but to this her neighbor would not consent. We
have then a situation where complainant must be permitted to use the
sewer which has served her premises for 20 years, if her building is to
have any sewer service. If this situation, which nature has so fashion-
ed that the sewage can be directed only in the direction of Farmer's
alley, does not bring it within the rule of strict necessity, it would, in-
deed, be difficult to suggest one. If greater exigency than here exists
is^required before the strict necessity rule can apply, there would be
little use for the existence of the rule, as its use would be so infrequent
a^o render it useless.
In my opinion, the trial court found his way to a very equitable ad-
justment of the entire matter, and I think his decree should be affirmed.
Moors, J., concurred with Bird, J.
518
DERIVATIVE TITLES
(Part 2
««<
BUSS V. DYER.
(Supreme Judicial Court of Massachusetts, 1878. 125 Mass. 287.)
Tort for tearing down, refuainf^ ^^ ^f^^^uld- Siud preventing the ijjain-
tiff from rebuilding, a chimney, in which the plaintiff claimed an ease-
ment. Writ dated March 16, 1875. Trial in the Superior Court, be-
fore Pitman, J., who allowed a bill of exceptions in substance as fol-
lows:
The plaintiff introduced evidence tending to prove that previously
to July 12, 1844, John E. Thay£j:_and Nathaniel Thaver biiilt_aj2lork
of five wooden houses on land owned by them on Meridian Street. East
Boston : that these houses were then or afterwards numbered from 61
to 69 on said street, inclusive ; that the chimney in question, at the lime
tlie block was built, was placed between the houses numbered 63 ajid
65^ but whollv upon the premises of No. 65. for the use of both houses,
and was constructed with connections or stove-holes for each house;
that on July 12, 1844, the Thayers conveyed by simultaneous cL|^ds
(which contained covenants against all incumh];g^ps made or suft'ered
by them) tlie premises No. 63 to QHver Lewis, and the premises No._65
to Martin Lewis, both deeds describing the premises by metes and
bounds ; that by mesne conveyances the (^ijj^iff) became, on March 5,
Ib/Jpthe owner of the premises No. 63 : that on November 14, 1874,
the chimney in question was torn down by the ^efgndant, (to whom
the house No. 65 was conveyed on October 7, 1874, by the heirs of
Martin Lewis.) and was never rebuilt ; and that the defendant pre-
vented the plaintiff' from rebuilding, and refused to allow him to re-
build it. In none of the deeds or mesne conveyances above ceferjed
to; was any specific mention made of any ri^ht to use the chimHeyJn
questio_n_^thoug[h in each the premises were, ror^veved with "all rio-hts-.
easements, privileges and appurtenances to ^he said land belonging."
The plaintiff' claimed no right to use the chimney by prescription.
For the purpose of showing that a right to use the chimney passed
by the deed from the Thayers to Oliver Lewis, by implication, as an
appurtenance to the house on the premises so conveyed, the plaintiff
introduced evidence tending to show that, at the time Oliver Lewis
became the owner of the premises No. 63, a suitable chimney, which
would be a substitute for the chimney in question, could not be built
wholly upon his premises at a reasonable j:ost and expense ; but this
was contradicted by the defendant. As bearmg upon this question,
evidence was introduced by both parties to show what would be the
cost and expense of building such a chimney at the tirhe of the trial and
at the time when the chimney was torn down.
For the purpose of showing that the right to use the chimney in
question had not been lost or extinguished, the plaintiff introduced ev-
idence to prove that the chimney and the houses of himself and the
defendant were in good condition up to the time when the chimney was
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 519
torn down : that they had not been destroyed by the elements or mere
lapse of time; and that they were not in such a condition that they
needed to be rebuilt from the bottom; and the defendant introduced
evidence to prove the contrary, and that the plaintiff could have built a
suitable chimney upon his own estate as a substitute for the one torn
down at a very small cost, especially soon after the chimney had been
torn down.
The plaintiff asked the judge to rule as follows: "If the plaintiff
ac quired a right to use tlie chimney in quesLiOn-^nder the deed from
the Thayers to Oliver Lewis, such right so acquired was not lost or
terminated until both the chimney and the houses of the plaintiff and
defendant were destroyed by the elements or mere lapse of time, or
were in such a condition that they had to be rebuilt from the bottom."
The judge refused so to rule ; but instructed .the jury that if such a
right was acquired by the plaintiff through the deed from the Thayers
to OHver Lewis, yet if the chimney at the time it was torn down was
unsafe and needed to be rebuilt from the bottom, the defendant had
a right to tear it down, and the plaintiff could not recover. No in-
structions were given as to whether or not the condition of the houses
of the plaintiff and defendant, or either of them, had anything to do
with the duration of the alleged easement, or right to use the chimney
in question, and the instructions given were objected to only on the
ground of that omission. The jury were fully instructed on the other
questions of law in the case; and, among other things, were instructed »
that no servitude, as claimed, could be created by implication of law l-M*'*'***'''*^
unless there was a reasonable necessity therefor : and that if the plain-^f^t^^ "jf^
tiff,' with reasonable labor and expense, could have built a suitable v
chimney on his own estate, he rniild nnf rlnim ^, right to use that upon
the defendant's premigpc;
The jury were further instructed to answer the following questions,
and that if the second question was answered in the afifirmatiye they
need not answer the third question, but should return a verdict for the
defendant: "1. Did the houses now occupied by the parties respec-
tively exist upon the estates at the time of the deeds from the Messrs.
Thayer? 2. Could the pininfiff at a rpa^^nnahlp cost have built a suita-
ble chimney upon his own estate, as a substitute for the one he claimed
to use on the estate of the defendant? 3. Was the chimney in question *^
so defective and unsafe as to require the defendant to take it down?"
The jury answered the first and second questions in the affirmative; ^ ^
and returned a verdict for the defendant. The plaintiff alleged ex- T^Ol 4-*^
ceptions.
SouLE, J. The deed of the Thayers, under which the plaintiff
claims, was made and delivered when they were owners of the prem-
ises of the defendant. It makes no mention of any rights in the chim-
ney on the adjoining premises. Their deed of the defendant's premises,
given at the same time, contains covenants against incumbrances made
or suffered by the grantors, and of warranty against all persons claini-
^iC-^
p^
520 DERIVATIVE TITLES (Part 2
ing under them. Each deed describes the lot of land conveyed by metes
and bounds, without mentioning any buildings. The grantors having
built the houses and the chimney, and being owners of both parcels,
these covenants are as strong an expression of intention to convey the
defendant's premises free of the easement claimed by the plaintiff as
covenants of general warranty would have been. The words, "and all
rights, easements, privileges and appurtenances to the said land belong-
ing," in the deed of the plaintiff's premises, are of no effect to carry
the easement in question, because no easement existed, while the fee of
oth parcels was held by the same owners. Ammidown v. Granite
Bank, 8 Allen, 285. Moreover, the title conveyed by that deed is not
older than the title conveyed by the deed of the defendant's premises,
which covenants against any incumbrance created by the grantors. __If,
therefore, an easement .to use the chimney was created in favor of the
premises, of the plaintiff, it was created by implication, as being abso-
lutely necessary to the enjoyment of the estate.
We are aware that it has been held in some English cases, that a deed
of premises carries the right to continue to enjoy, as easements, all
privileges or conveniences in and upon adjoining lands of the grantor,
which were apparent, and had been used by the grantor in connection
with the premises before the conveyance ; that the conveyance is a con-
veyance of the premises "as they are." A leading case to this eff'ect is
Pyer v. Carter. 1 H. & N. 916. Similar doctrine has been held in New
York. Lampman v. Milks, 21 N. Y. 505. We do not regard this as a
correct view of the law.
It is a well established and familiar rule that deeds are to he rnn-
strued as meaning what the language employed in them imports, ^nd
that extrinsic evidence may not be adduced to contradict or affecLiliem.
nd it would seem that nothing could be clearer in its meaning than a
deed of a lot of land, described by metes and bounds, with covenants
of warranty against incumbrances. The great exception to the applica-
tion of this rule to the construction of deeds is in the case of ^Y^^iJ^
necessity, where, by a fiction of law, there is an implied reservation or
grant to meet a special emergency, on grounds of public policy, as it has
been said, in order that no land should be left inaccessible for pur-
poses of cultivation. This fiction has been extended to cases of ease-
ments of a different character, where the fact has been established that
the easement was necessary to the enjoyment of the estate in favor of
which it was claimed, /y^^j^^t^^
In this Commonwealth, grams by implication are limited to cases of
stricj^ ng(^^ity. Carbrey v. Willis, 7 Allen, 364, 83 Am. Dec. 688, and
cases cited; Randall v. McLaughlin, 10 Allen, 366. The case of Pyer
v. Carter was denied by Lord Chancellor Westbury in Suffieli v.
Brown, 4 De G., J, & S. 185, which has_been since recognized as con-
taining~the correct doctrine.- Crossley v. Lightowler, L. R. 2 Ch. 478;
Watts V. Kelsol^TLTRTa Ch. 166.
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 521
The case seems to have been tried in the Superior Court oti the as-
sumption by both parties that the obstacles, if any, to the erection of
a chimney on the plaintiff's premises, were the same when the Thayers
conveyed as when the chimney m question was taken down, and the
question to the jury, and the instructions, appear to have been framed
in accordance with that assumption, and without any objection or sug-
gestion to the contrary by the plaintiff. We cannot, therefore, consider
the objection now made, for the first time, that the question of neces-
sity was to be detennined by the state of things existing when the con-
veyance was made by the Thayers,
In this view of the case, it. appears that the jury found that the use
of the chimney was not npreg;sarv to the enjoyment of the premises
owned by the plaintiff. This being so, no easement in ting (^j^jrpnpv wa^.
reserved by implication in the deed to the detendanFs o-ranto?-. and the
defendant, in destroying the chimney, merely exercised a right of own-
ership^ ~~
It is unnecessary, therefore, to consider the question raised by the re-
fusal to give the instruction asked for by the plaintiff. On the facts
found by the jury, no easement in favor of the premises of the plaintiff
having been created, the ruling as to how such easement could be de-
termined, if it existed, became immaterial.
. TOOTHE V. BRYCE.
(Court of Chancery of New Jersey, 1S92. 50 N. J. Eq. 5S9, 25 Atl. 182.)
On order_to show cause why an injunction should not issue.
Heard upon bill and answer and accompanying affidavits.
The complainant, by his bill, seeks to establish and protect his right
to the benefit of a flow of water to his premises from the defendant's
premises, through two several pipes laid underground and forced^JUC
by two hydraulic rams, situate, with the spring that drives them, on
the defendant's prei-nise.-Y.
The facts as they appear in the pleadings and affidavits, or are ad-
mitted by the parties, for the purposes of this motion only, are as
follows : Before and on the 13th of April, 1892, the defendant was j4 jJ 6
the owner of a tract containing about forty-five acres, which comprised tAVp* • *|*^
both tenements, situate in Madison, Morris county. New Jersey, and /l.^-,^ JIt^
on that day" entered into a written contract with the complainant, by
14 Still well V. Foster, 80 Me. 333, 14 Atl. 731 (1S8S), ace. In Bussmeyer v.
Jablonsky, 241 Mo. 681, 145 S. W. 772, 39 L. R. A. (N. P.) 549, Ann. Gas. 1913C,
1104 (1912), the court helfl that nn p.nspmpnf. fhert;^ plaimed had not hppn pi-e:iti^fl
by implied grant, do showing that there was any ''reasonable" aecessity therg-
fgr having been niaae, thougn tne evidehce prob;il)iy ^sLablislied that tne ngnt
pinirfied was a nnnvenience. So, also, in ijanatora v. jkoss. Yt3 i\. Jdl. 4V(>, 8fAtL ^ *
936, 42 L. R. A. (N. S.) 629 (1912). oljJ^^^*^
dfc^
522 DERIVATIVE TITLES (Part 2
which the defendant, in consideration of $13.000, ag^reed to sell and
convey to complainant, and complainant agreed to purchase and~pay
that price for the tract in question, consisting of forty-five acres and
twenty-three one-hundredths of an acre, excepting thereout ajiouse and
HjtA/^ A barn and lot whereon they stood, containing one acre, the deed of con-
^^^ M^^ veyance to be delivered and the purchase-money paid^ on the lalh-dav
tjy/^^^^A, of May, at eleven o'clock in the morning, at a specified place in New
iJk ' At the date of the contract there were upon the whole tract two
\ dwellings, two_barns, and a green or hot-house, a spnng of water and
A^ / two hydrauhr rams driven hy it*; water';^ with a pipe leading from
each, one to the green-house and one to one of the barns. One dwell-
ing and one barn and the green-house were on the partcontractedjo
be conveyed ; the other dwelling and barn, the sprmg and rams were
on the lot of one acre reservedT Included in the sale were a lot of
hot-house plants in the hot-house.
At and before the date of the contract the water was flowing con-
tinuously at both the barn and green-house, in the latter of whirh wprp
the hot-house plants. The water was discharged at the barn into an
open trough from which the cattle and horses drank, and at the green-
house into a tank from which it was used in watering the plants. This
flow was observed by the rnmplainant, and he knew it was due to thej^c-
tjon of a ram (he supposed there was but one) on the lot reserveiLand
such fl ow formed, in_ co.mpl_ai nantj. mind, a feature _ q£ _ vaJxi e in the
premises. The pipes and flow of water to the barn had existed for
several years, but that to the green-house had been in use for less than
two years. The ram which supplied it had been in place and use for
many years, and carried the water in a pipe along the road in front
of the premises in question to a property adjoining it on the other side,
which property was sold by the defendant in 1890 to another party, and
the flow of water to it was cut oflF and the pipe turned from the road
up to this green-house, and was in use there from that time on.
The corporate authorities of Madison have recently erected water-
works for the use of the town and its inhabitants, but no main has as
yet been laid in the street in front of these premises.
The negotiations for the purchase and sale were carried on between
the complainant in person and an agent of the defendant, and n
was sajdjjy either in their course about th^ flow nf yater. Such" flow
contniuedup to the date of the delivery of the deed. Before ten
o'clock on the morning of that day defendant directed his employee
in charg^e of the premises to stop the operation of the rams, and then
proceeded by train to New York to deliver the deed, which was done
about eley^jiVlnek The man in charge stopped the ram supplying
the barn at once, but left the one supplying the green-house running
until three o'clock in the afternoon. So that in point of fact the wa-
ter was probablv not running to the barn at the moment the deed was
delivered^but .was.j'jyLOniiig_iQ_Uie_^eer>House. No notice was gi ven
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 523
to the complainant at the delivery of the deed that the flow of the water
had been stopped, nor was any mention made of it by either party.
Tiie^deed contained the usual verbiage as to appurtenf^"?^.'', inelud-
ing"waYa>-WAters, privileges/' &c.
The springs driving the rams are about fifteen feet lower than the
barn and green-house, so that the water would not run naturally t^^
either. The difference in height between the spring and the rams
does not appear.
The parties agreed that the court should act upon its personal knowl-
edge of the peculiarities of hydraulic rams, which, so far as necessary
for present purposes, are as follows : By the use of this machine the
power due to the fall from a given height of a given quantity of water is
utilized to lift a comparatively small fraction thereof to a height greater
than the source or head. The effect of the machine is precisely the
same as would be that of a water wheel driving an ordinary pump.
The advantage of the use of the ram is its extreme simplicity and dur-
ability._ It works automatically and in theory should run without stop-
ping or touch by -the hand of man until its parts were actually worn out.
It is, however, liable to stop and requires the hand of man to start it
again. I'his liability is due to several causes, none of which are of any
importance, and all can be guarded against by proper care in setting
it and in preventing substances other than water from passing through
it, except one, viz., a necessary part of the machine is a chamber of
confined air which acts as a cushion. This air comes in contact with
and is liable to be absorbed by the water and exhausted, and when the
air-chamber becomes filled with water the ram works defectively and
is liable to stop. The tendency of the air to be exhausted varies with
the character of the water and the height or head to which it is lifted.
If the water is lifted to a great height there is a corresponding pres-
sure of the water upon the air and the absorption of the air by the wa-
ter is increased thereby, but' with a small height to lift against, like
fifteen, twenty or thirty feet, rams may run for weeks and months
wTthouT stop£mo[. The process of recharging the airchamber with
air is very simple and may be done by any person in a few minutes.
An hydraulic ram, properly set, may run for one or more years with-
out any repair, and the operation of repair or renewal is very simple.
Pitney, V. C. The complainant rests his right to the continued
flow of the water upon the fact that such flow was apparent and con-
tinuous at the time of the purchase, and constituted a valuable adjun^
to the premises, rendering their use more beneficial and valuable.
Against the case thus made defendant makes three points — first,
that the use of the water in the way described was not necessary to Cj j/jf Aiff^
the enjoyment of the premises; second, that it was not in actual use ^^*^'^'^'
at the moment when the title passed ; third, that it was not in its na-
ture continuous, since the water did not run by gravity, but by machin-
ery, which required the intervention of the hand of man, upon the land
of the grantor, the defendant
524 ' DERIVATIVE TITLES (Part 2
I. Asjto the element of necessity. I think some inaccuracy of
thought and expression has arisen in the discussion by bench and bar of
this doctrine of the creation of an easement by impHcation upon the
severance of a tenement, as to the' importance ot the element of neces-
sity, by faihng to distinguish between that class of cases where it has
been held or claimed that an easement is reserved by implication in
favor of that portion of the tenement which is retained by the grantor
in and upon that portion conveyed, and that other class of cases where
it has been held that an easement was granted in favor of the part con-
veyed in and upon the part reserved. In the former class of cases the
grantor is usually claiming an easement in direct derogation of his
own grant, while in the latter it is well held to be in accordance with,
and to flow naturally by implication from, his grant.
In fact it has been suggested that the grant in such cases is not by
implication, but that the quasi-easement passes with the quasi-dominant
tenement as, in substance, a part of the thing conveyed, and without
any regard to the element of necessity. On the other hand, in the case
of a reservation, it has been held that there can be no •implied reserva-
tion of an easement in theland granted when the grantor has conveyed,
as he generally^does. all his riglit,'^title and interest therein, except such
gmi easement as is absolutely necessary to any enioyment of it whatever,
as m the case of a way of necessity. Gale & W. Easem. *72 ; Godd.
^asenTcAm. Ed.) 266, 267; Nichols v. Luce, 24 Pick. (Ma'ss.) 102. 35
Am. Dec. 302; Oliver v. Pitman, 98 Mass. 46; Washb. Easem. *163,
*164, and cases.
Toi_permit_the grantor to claim such reservation is to permit him
to derogate from his own grant. So rigid was this rule held that in the
older cases the reservation of a right of way to and from the close
retained by the grantor out of the conveyance of the land surround-
ing it was put on the ground of the interest that the public had that
the close so surrounded should not be unused and unproductive. The
conveyances in common use in this country contain an express con-
veyance of all the right, title and interest of the grantor in andJ^
the premises conveyed, and it is difficult to perceive on what ground
short of absolute necessity any easement could be reserved.
This distinction between a grant and a reservation by implication
seems to be founded in logic and, as will appear further on, is
now thoroughly established in the English tribunals, and it seems to
me to furnish the true test as to the value and importance of the ele-
ment of necessity in the establishment of easements upon the division
of tenements.
My examination of the authorities has led me to the conclusion that
where the right to the easement is based upon the ground that it
passes^, as in substance, a valuable adjunct to the land conveyed, the
eleni£nt_of^ece^sity is not a requisite, and to use the word "neces-
sary" in connection with it is to misuse it. In saying this, I may
say that I am, in appearance at least, going contrary to what has
Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 525
been said and decided in many cases; but I think that an exami-
ination of them will show that in most, if not all, of those instances
where the case was that of an implied grant of an easement in rnnner-
tion with the conveyance of a quasi-dominant tenement, the so-called
"necessity" upon which the judges relied was, in fact, no necessity at
all, but a^rnere beneficial and valuable convenience, and that this eleva-
tion of a mere convenience to the level of a necessity was the result
of an attempt to obliterate the distinction between an implied grant
and an implied reservation, before referred to. and to place implied
reservations and implied grants upon the same footing, and to hold
that upon the severance of a tenement one part of which had been
subjected to a quasi-servitude, which was continuous and apparent, in
favor of the other, the easement would be preserved, whether it be by
grant, when the dominant tenement is conveyed, or by reservation,
when the servient tenement is conveyed ; and as the latter could only
occur where the element of necessity was present, it was held that such
element must also be present in the former case.^® * * *
These cases in our own state have probably established the doctrine
here — certainly in this court — that in these cases of ^B^,^^^"ent ^^^
continuous easements, upon the severance of the tenement, a reserva-
tionof a guasi-easement will take place on the conveyance of the ser-
vient pa rt_^Yh££ey_erJt would pass by way, of grant on the conveyance
of the dorni'^^"^ PP^ti ^"d that in each case the eleniejij^ofnecessity is
a requisite. But for myself, I desire to repeat, by way of protest, that
my examination of the authorities has led me to the conclusion that
this doctrine of rnutuality is not founded on solid ground and is mis-
chievous in its tendencies, and also that it is a misapplicatiorLj;:^. tjie
word "necessary" or "necessity" to apply it to such a case, and leads
to uncertainty and confusion in attempting to define diflferent degrees
of the element, when, in fact, strictly speakmg, it is not capable of be-
ing graded.
It seems to me that the proper inquiry in such cases is w)iether the
apparent and contmuous easement in question forms a part of the ten-
em_enj;, and is beneficial to and adds to its value for use, and will con-
tinue to do so in the futur^, If it is, then the grantee is, upon plain
principles, entitled to have it continued. He is. entitled to enjoy the
tl]ing as it was when he bought it, with all its apparent appurtenances,
ifjhose apparent'appurtenances are apparently permanent, and are use-
ful and add to its value.
■■!».' I III I "III
In tlie case in hand, I think there can be no doubt that the flow
of the water at the bam or stable and at the green-house are val-
uable additions to the ^Ero2erty^ increase its beneficial use^ and also
that it is necessary in the sense in which that word has been used in
that connection, and is defined by Vice-Chancellor Van Fleet in Kelly
15 A portion of the opLnion, in wbich the court reviews many English and
American cases, is omitted.
526 DERIVATIVE TITLES (Part 2
V. Dunning, 43 N. J. Eq. 62, 10 Atl. 276; and I adopt the language
of Lord-Justice Mellish in Watts v. Kelson, L. R. 6 Ch. App. 166, above
quoted, as applicable to this case.
It would be no answer to say, if it were truf, thcit tlip ^m-nplainant
may procure water to supply these places from the public water-
works at a comparatively trifling expense. That expense, though
trifling, is continuous, and it was the relief from its burden which
formed the element of value in the water which was actually flow-
ing-
II. The second objection made presents little difficulty. Complain-
ant is clearly entitled to have the premises in the condition which
they were at the time he made the contract — April 13th, 1892. His
right to them vested at that date. As the contract was positive and
binding on both parties — defendant being bound to convey and the
complainant to purchase and pay the price — the familiar rule in equity
is that from that time on, the premises in question belonged to the com-
plainant, subject to the lien of the purchase price, and that the pur-
chase price belonged to the defendant. It would be monstrnns, inHeerl,
to. hold that the defendant might, at the very moment that the-cked
w^ being dehyered in New York^ by his agent in Madison destroy
an_apparent and continuous easement and deprive'^e^'compTMnant
of the benefit oi_it>-
Nor can the defendant, as the case now stands, deny the right of
' his agent to sign the contract for him as his agent. The execution
of the deed in pursuance of it was in ratification and adoption of
^ V *» the previous contract, with all its burdens as well as its benefit.
yj III. The third question presents more difficulty. Was the ease-
A ty ment in its nature continuous, considering the fact that the water
* jT did not run by gravity, in the ordinary sense of the term, but was
Kjr forced up by a machine driven by the power of the fall of a greater
■' quantity, and that it would be necessary for the complainant to enter
on the servient tenement from time to time to readjust, repair and
renew this machine?
All cases of this character deal with artificial structures, situate
in whole or in part on the servient tenement, which are liable to fall
into disorder and decay, and all the adjudged cases hold that the owner
of. the dominant tenement may enter upon the servient tenement for
the purpose of repairing and renewing those artificial stnirtnrps. It
was so declared in Nicholas v. Chamberlain, and Mr. Gale quite
properly calls this right of reparation and maintenance a "second-
ary easement" (Gale & W. Easem. *323 ; Washb. Easem. *24, *25),
which is appurtenant to the primary or actual easement.
If, in the case in hand, the water ran by gravity in an artificial
ohannel, complainant would have the right to enter from time to
time upon defendant's land, and repair and renews such part of it as
was there situate. So if the water — supposing it to be practicable
—were raised by a dam instead of a ram tp the height necp«isarY to
Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 527
m^l'p it f nvy |^ tlip ham ^nc\ gTPf^n-house, the rjcfht of reparation and
renewal of this dam y^nnlfl he inrln^pf]^ and, in such a case as this, the
head or power would be employed to carry it.
These secondary easements, however, are not the easement which
passes with the conveyance by implied grant because apparent and
continuous. They are, as before remarked, merely incidents thereto,
and, because of their non-continuous and desultory character, the
principal easement is none the less continuous.
In this connection, what is said by Mr. Gale in his treatise is not
without import (*50) :
"An easement is a quality superadded to the usual rights, and,
as it were, passing the ordinary bounds of property ; and, with the
exception of those easements the enjoyment of which depends upon
an actual interference of man at each time of enjoyment, as of a
right of way,^ it is attended with a permanent alteration of the two
heritages affected by it, showing that one is benefited and the other
burdened by the easement in question."
His idea oi a non-continuous easement is one whose enjoyment de-
pends upon an actual interference of man at each time of enjoyment
as in Polden v. Bastard, supra [4 Best. & S. 257, L. R. (1 Q. B.) 156].
And it seems to me that that is the correct test, and that the mer£- fact
that a machine is used which is substantially self-acting, and does not re-
quire the constant attention of man, does not make it non-continuous,
any more than the propulsion of the water by a dam through an ar-
tificial channel would have that effect. It is said that the owner of
the servient tenement will be subjected to the servitude of a more
frequent entrance upon his land for the purpose of adjusting and re-
pairing the ram than he would in case of an artificial ditch or pipe or
dam. But I think the difference is one of degree and not of char-
acter, and it is hardly necessary to say that a mere difference of de-
gree will not alter the case.
I will advise that an injunction issue. • ^ .__^ , t v
LIQUID CARBONIC CO. v. WALLACE.
(Supreme Court of Pennsylvania, 1908. 219 Pa. 457, 68 Atl. 1021, 26 L. R. A.
[N. S.] 327.)
Bill_ in equity for an injunction. Before Shafer, J.
The facts are stated in the opinion of the Supreme Court.
Error assigned was decree awarding an injunction.
Mitchell, C. J. The legal principle governing this case is thus
expressed in Grace M. E. Church v. Dobbins, 153 Pa. 294, 25 Atl.
1120, 34 Am. St. Rep. 706: "Where an owner of land subjects part of
it to an opjgn. visible, permanent and continuous servitude or easement
in lavor of another part^no^en aliens either, the purchaser takes
i
528 DERIVATIVE TITLES (Part 2
subject to the burden or the benefit, as the case may be." See, also,
Manbeck v. Jones, 190 Pa. 171, 42~Atr33d;
The facts are not in material dispute. In 1890 Wallace, one of ap-
pellants. became the owner of a large lot of ground in the twendelh
ward of the city of Pittsburg! It was bounded by three 'strppt'TanH
the Pennsylvania Railroad, but being hilly and uneven, access to parts
of it was difficult or very inconvenient. Wallace began to grade_it,
and in the course of so doing roads were worn here and there over
the property by the hauling incident to grading, the principal road
so worn or constructed being in substantially the same position as
that over which the plaintiff now claims a right of way. In 1891,
Wallace conveyed to the plaintiff a portion of said tract, bounded by
the Pennsylvania Railroad, two streets and other lands of Wallace
afterwards conveyed to the Duquesne Reduction Companv. At the
time of sale by Wallace to plamtirf the said road was used upon the
ground and appellants admit that stone quarried upon other land of
Wallace and sold to the plaintiff was hauled down over it. Appellee
used it in the erection of its buildings and claims that it was in gen-
eral use by the owners of the adjacent properties for access, and it
appeared that it had continued in such use until 1906, when appellants
built a fenceacFoss it and plaintiff filed this bill.
The court found that it was the only wagon road on the lot, and th^t
access from the streets by which the appellee's lot was bounded was
impracticable for loaded wagons at most points, and very incon-
venient for any other purpose.
The learned court below refused to find the road a way of neces-
sity, because there were other ways of access and egress however in-
convenient, citing McDonald v. Lindall, 3 Rawle, 492.
The court, however, found that "the road was apparent on the
ground and there was nothing on the ground to indicate that it was not
intended to be permanent. He therefore found that the right to the
f use of the road passed by implication as an easement, appurtenant to
\\j)Ut^ tlie^^rant.
l**^ The argument of the appellant rests mainly on the view that the road
having had its origin in temporary convenience to the owner of the
larger lot was never intended to be permanent,' and that the inten-
tion was an essential element in the creation of a servitude. The
principle in general may be conceded, and so long as the ownership of
the dominant and servient lands remains in the same party the ap-
plication of the principle may be determined by his actual personal in-
tent. But on a severance a question of conflicting rights arises and the
iiTtent which lies at the bqsis of the creation of a servitude is no longer
//* the grantor's actual and perhaps undisclosed intent,^ but the rnutipl
.jr^
^
A. 249, 15 Am. St. Rep. 235 (cited though in a different connection
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 529"
in Bank v. North, 160 Pa. 303, 28 Atl. 694). "The intention to be
sought is not the undisclosed purpose of the actor, but the intentii:)n
implied and manifested by his act. It is an intention which settles,
not merely his own rights, but the rights of others who have or may
acquire interests in the property. They cannot know his secret purpose,
and their rights depend, not upon that, but upon the inferences to, be
dravyn from what is external and visibly."
The facts as found by the court in the present case were that Wal-
lace was at the time of the sale "the owner of the land over which the
way is claimed and of the land to which it is now claimed to be ap-
purtenant. Before the grant. Wallace had laid out and opened_jn2fln
the ground the road in question, and it was the only road by which it
was practicable to have access to the land. The road was apparent on
the ground, and there was nothing upon the ground to indicate that
it was not intended to be permanent." The natural inference from
these facts would be that the road was intended to be permanent.
That inference the grantee was entitled to draw without rpp;arrl tn tVip
grantor's actual but undisclosed intent, and it therefore became the law
of the case.
Decree affirmed at the costs of appellant.^' ^/^tJO^KJU^ ^S/^-'O-^^
ADAMS V. GORDON.
(Supreme Court of Illinois, 1914. 265 111. 87, 106 N. E. 517.)
Appellant filed her bill in chancery in the circuit court of Lake coun-
ty, Illinois, against appellee, for an injunction to restrain him from in-
terfering with her in the exercise of her rights which she claimed in
16 In Martin v. Murphy, 221 111. 632, '77 N. E. 1126 (1906), and German Sav-
ing & Loan Co. V. Gordon, 54 Or. 147, 102 Pac, 736, 26 L. II. A, (N. S.) 331
(1909), quasi easements of passage evidenced by board walks and in part to
fences, were held to be turned into re^ easements bv implication upon sevev-
ance of ownersnlp! So, also, in Kollo v. i\ersoii, 34 Utah, ' 116, W Pac. 263, 26
L. K. A. (JN. S.) 315 (1908), where the quasi easement was evidenced by a cement
walk. See Polden v. Bastard, and note thereto, supra.
In Baker v. Rice, 56 Ohio St. 463, 47 N. E. 653 (lSi37), the court had to de-
termine whether an easement of a way had been created by implication, the
deeds severing the common ownership having been delivered simultaneously.
The way was "plainly obvious and appai'ent." The court held the easement
was created by implication. ]\Iinshall, J., said: "But it is claimed, that only
such easements as are termed 'continuous' will pass by implication in a grant,
and tiiat sucn as are termed 'discontinuous' will not^ This is a distinction of
the civn law, and has been incorporated in the law of some of the states, par-
ticularly Maine and Massachusetts. The former are such as operate without
the intervention of man, such as drains and sewers ; the latter require the in-
tervention of man in their use, such as ways. Tl;ie distinction is somewhat
arbitrary and is not uniformly adopted, slh vvill appear from the cases cited.
The bgttgrmlA and the one now more generally adopted, is not to conslder"tbe
Aig.Pbop
530 DERIVATIVE TITLES (Part 2
the nature of an easement in certain water facilities and a way thereto,
situated on the lands of appellee. A demurrer was sustained to the
bill, and appellant electing to abide by her bill, a decree was entered
dismissing the bill for want of equity. She prayed and perfected an
appeal to the Appellate Court for the Second District, which has trans-
ferred the cause to this court pursuant to the statute, for the reason
that a freehold is involved.
It appears from the allegations of the bill that prior to November
29, 1911, appellee was the owner of a tract of about one hundred or
more acres of land situated on what is known as Deerpath avenue, in
the vicinity of Lake Forest, Illinois! November 29, 1911, he entered
into a contract with John F. Tracy for the sale of a portion jof this
land, in which he contracted, among other things, that the purchaser
should have the right to the uig_Qf the_well located on his adjacenj
property, together with the pump, gasoline engine and tank situated
thereon, until such time as public water mains should be installed in
Deerpath avenue, with the right to use a path.- not exceeding eight feet
in width, from a gate on the west line of the property leading in a_di-
rect line to the well, the purchaser to maintain the well, pump, engine
and tank at his own expense and furnish water for the use of appellee
without charge or expense to him, and should said Tracy fail to so
maintain and furnish water, his right to the use of the well and pump
might be terminated by the vendor and all obligations under the con-
tract canceled. On the same day the contract was made appellee con-
veyed the land described in the contract to said Tracy bv warranty
^^jL.A^ deed, in which no reference whatever is made to the provision in the
- -y^. " contract in relation to the use of water facilities as above set forth.
^^'^^ >^ At the time the contract was made between appellee and Tracy appel-
V4A'^*^^^ lant was a tenant on the property under a lease expiring on November
'^^^y^'^^ 30, 1911. January 4. 1912. Tracy conveyed the land purchased by him
U^ to appellant by warranty deed in all respects the same as the deedJie
had received from appellee, the deed making no mention whatever of
the easement contained in the contract between appellee and Tracy.
Appellant alleges the omission of this matter was due to the mistake
of the scrivener in drafting the deed, but she does not ask that the deed
be reformed. For some years the water facilities located on appellee's
land have been used by him and his tenants, includino- apppiia.nt, tor
the purpose of supplying the premises now owned by her with water
for domestic purposes and to supply water for the stables, lawns and
gardens thereon, said water facilities being absolutely necessary and
essential to the full enjoyment of her premises. Appellant charges that
one of the important factors inducing her to purchase the premises was
the fact that she should have the right to the free and unobstructed
use of the water facilities mentioned in the contract between said Tracy
and appellee. The pump, pump house, tank and engine are located on
appellee's premises about one hundred feet from the west line, of ap-
pellant's property, and the water is conveyed from there to her premises
x^.
J-
Ch. 4) CREATION OP EASEMENTS BY IMPLICATION 531
and buildings by means of an underground pipe leading from the tank
on appellee's property to die house, stable, lawn and garden on appel-
lant's premises. The pipe is visible on appellee's land between the point
where it leaves the tank and enters the ground, and also visible on
appellant's premises where it emerges from the ground and connects
with the faucets, plugs, Hush-boxes and hydrants on her land A view
of the premises at the time of- the purchase by Tracy and of her pur-
chase from Tracy would have disclosed that the faucets, plu^s. flush-
boxes and hydrant on her property were connected with the tank on
appellee's land, and that the pump, pump house, engine and tank situ-
ated thereon were used as the means of supplying these premises with
water, and that the water facilities thus provided were highly beneficial
to her property. No public water mains have been installed or con-
structed in Deerpath avenue leading to this property, and it is indis-
pensable to its use and enjoyment by appellant that she have the ad-
vantage of water facilities provided for it, situated on appellee's land.
After appellant became a purchaser appellee permitted her to con-
tinue to use the water facilities for some time without protest and
from time to time to make the necessary repairs thereon. Shortly
before filing the bill he demanded of her the payment of $50 which he
claimed was due on a former tenancy by her, and when she refused to
pay, on the ground that it was without any foundation, appellee refused
to allow her servants to make repairs, on the engine used for pumpmg
water into the tank, locked the door to the pump house, shut the water
ofif, forbade appellant or her servants to use the well or the pathway
thereto and blockaded the same by installing posts and wires across
the pathway, and threatened violence to appellant and her servants if
they attempted to obtain water from the well or to use the pathway
leading thereto. The bill prayed for an injunction enjoining the ap-
pellee from interfering with appellant's rights in the premises and in
the use of the water, pump house, engine and tank and other water fa-
cilities as above set forth, and for general relief. A general demiirrer
was sustained to the bill, setting forth the above facts. Appellant elect-
ed to abide by her bill and a decree was entered dismissing the bill for
want of equity. This appeal followed. ,
The errors assigned are, (1) that the court erred in sustaining the
demurrer to the bill ; and (2) that the court erred in dismissing appel-
lant's bill for want of equity.
Craig, J.^'' Appellant by her bill asserts and seeks to establish and
maintain a right in the nature of a perpetual easement in the adjoining
lands of the appellee in the use and maintenance of certain water fa-
cijities located thereon, by means of which her house, barn, garden
and premises are supplied with water. This right, if it exists, is an
easement appurtenant to an estate in fee, and a bill filed for the pur-
pose of establishing such an easement involves a freehold, and the case
17 A portion of the opinion is omitted.
(^
532 DERIVATIVE TITLES (Part 2
was therefore properly transferred to this court Tinker v. Forbes,
136 111. 221, 26 N. E. 503 ; Foote v. Marggraf, 233 111. 48, 84 N. E. 42;
Foote v. Yarlott, 238 111. 54, 87 N. E. 62; Espenscheid v. Bauer, 235
111. 172, 85 N. E. 230.
Appellant insists that she is entitled to the benefits of the cojitiact
of November 29. 1911, between Tracy and appellee, and also that the
water facilities on appellee's land constitute an open and visible ease-
ment appurtenant to her premises, which passed by the deed of con-
veyance of the land from appellee to Tracy and from Tracy to her.
Appellee insists that no rights passed to appellant under the contract
withTracy, tor the reasons it was never executed by Tracy, that it
was a personal contract, and that it became merged into and extin-
guished by the_deed subsequently made conveying the land to Tracy.
The appellee further insists that in order for an easement to pass as
appurtenant to land, it must be open, visible and continuous and such
as does not require the interference by man. We do not deem it nec-
essary to pass upon each one of these contentions separately, but the
substance of each and all of these contentions will be given full con-
sideration.
The object in construing and interpreting an instrument is to-ascer-
tain and make it speak the true intention and meaning of the parties
at the time it was made, and where any doubt exists as to its sense and
meaning, resort may "be had to the circumstances surrounding i^s_ex-
ecution, for the purpose of ascertaining the subject matter and the
standpoint of the parties m relation thereto. Without this knowledge
it would be impossible to fully understand the meaning of an instru-
ment or the effect to be given to the words of which it is composed.
Goodwillie Co. v. Commonwealth Electric Co., 241 111. 42, 89 N. E. 272.
This knowledge is almost as indispensable as that of the language in
which the instrument is written, and a reference to the actual condition
of things at the time as they appeared to the parties themselves will
often afford the court great help in construing such language and ar-
riving at the true intent and meaning of the agreement they have made.
By referring to the situation of the parties and a condition of the prem-
ises at the time appellant became a purchaser of the same, we find she
had been a tenant thereof for some years, the length of time not being
stated in the bill, and during all of that time had used and enjoyed all
of the privileges which she now claims as an easement appurtenant to
her premises. In purchasing;- the property she had a right to assume
and expect she was buying itin its then condition and would havT^
ri^ht to use and enjoy alFof those necessary conveniences which had
been placed thereon by the owner and were used in connection therg-
witb^ and were recognized by the owner as beiiify ^ppnrt-pn;^nt to the
premises and passing with a lease under which she had enjoyed the
same as a tenant.
The rule is, where _the owner of lands divides his property into two
parts and disposes of one part, he by implication includes in his grant
Ch. 4) CREATION OP BASEMENTS BY IMPLICATION 533
all siirVi (^a 'cements in the remaining part as were necessary for the
reasonable enioyment pf the part which he grants in the form in which
it was at tlie time he transferred the property, the general rule of law
being, that when a party grants a thing, he by implication grants what-
ever is incident tojt and necessary to its benp.fidal enioyment.. Newell
y. Sass, 1421004^31 N. E. 176; Keegan y. Kinnare, 123 111. 280, 14
N. E. 14 ; Foote y. Yarlott, supra ; Feitler y. Dobbins, 263 111. 78, 104
N. E. 108S; Martin y. Murphy, 221 111. 632, 11 N. E. 1126; Hankins
V. Hendricks, 247 111. 517, 93 N. E. 428; Powers y. Heffernan, 233
111. 597, 84 N. E. 661, 16 L. R. A. (N. S.) 523, 122 Am. St. Rep. 199.
And it is not necessary that the easement claimed by the grantee l)e
absolutely necessary to the use and enjoyment of the property: "it is
sufficient if it is highly^ convpnipnt and beneficial therefor." (Newell
y. Sass, supra ; Powers y. Heffernan, supra!) Where an owner sells a
portion of his land he is presumed to intend that the purchaser shall take
it in its then condition. (14 Cyc. 1166.) This intention is to be sought,
not in the undisclosed purpose of the vendor, but in what is manifest
and implied from his acts. Liquid Carbolic Co. y. Wallace, 219 Pa.
457, 68 Atl. 1021, 26 L. R. A. (N. S.) 327; Hopewell Mills y. Savings
Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep.
235. In Feitler y. Dobbins, supra, the rule is stated as follows : "The
law applicable to the situation here is, that where the owner of entire
premises arranges for ways, light, etc., for the benefit of the different
parts or portions of the premises, and afterwards the premises are
severed and the title vested in separate owners, each grant will carry
with it, without being specifically mentioned, the rights and burdens and
advantages imposed by the owner prior to such severance. The doc-
trine is founded upon the principle that the conveyance of a thing im-
ports a grant of it as it actually exists at the time the conveyance is
made, unless a contrary mtentiojT^js m^nifestpd tn fhe gra,pl- This doc-
trine has often been applied by this court. Morrison v. King, 62 111.
30; Clarke v. Gaffeney, 116 111. 362 [6 N. E. 689] ; Newell v. Sass, 142
111. 104 [31 N. E. 176] ; Plankins v. Hendricks, 247 111. 517 [93 N. E.
428] ." The following are a few of the cases which will illustrate how
that doctrine has been appHed by the courts in analogous cases :
In Larsen v. Peterson, 53 N. J. Eq. 88, 30 Atl. 1094, it was held
that a water pipe leading from a driven well in a yard to a sink in the
kitchen of a dwelling house, there ending in a pump by which water
could be habitually drawn from the well to the kitchen for domestic
purposes, would pass by a conveyance of the dwelHng house, alone, by
the owner of both house and yard, although the well and water pipe
were both hidden from view, and that the same result would follow
a simultaneous conveyance of the house to one person and the yard
and well to another, if the latter took with notice of the connection
between the well and pump. In this connection see, also, 14 Cyc. 1183,
where the rule is stated to be as follows : "If the owner of land devises
a system of pipes or conduits through which water is conveyed from a
<^-^
534 DERIVATIVE TITLES (Part 2
sprin^.on one portion of his premises to another portion fnr the benefit
of the latter and then alienates the portion to which the water is thus
conveyed, the right to receive water through such pipes or conduits
over the land conveyed will pass to the grantee by ?^n^'"aJ wnrrk"
In Ingals v. Plamondon, Th 111. 118, a furnace flue projected eight
inches through a party wall. The owner of the two lots divided by the
wall sold one of them and afterwards sold the other. A question arose
between the first and the second grantees as to the right to maintain
the flue. The flue was shown to be necessary to the maintenance of
the furnace and its existence apparent to the second vendee when the
premises were purchased, and the easement was upheld as appurtenant
to the premises.
In Powers v. Heffernan, supra, it was held that where the owner of
a building, upon erecting a new building on an adjoining rot, uses the
stairway and hall of the old building for many' years as the only means
of access to the second floor of the new building, an easement attaches
in favor of the new building upon a sale of the old building, although
the only reservation in the deed is the right to one-half the party wall
between the two buildings. This holding is based on the principle that
^where the owner o_f_a building, while he was seized of the entire tide,
made certain arrangements with reference to access, heat, light an d
ajr which are high lybeneficial and convenient to the use and enjoy-
ment of the property and enhance its value, sells a portion of the build-
ing he sells it in its th en condition, and each portion of the severed
premises is subject to the burdens or advantages thereby imposed or
conferred upon the other-by the owner.
In Foote v. Yarlott, supra, we held that where the owner of a flat-
building executed two trust deeds for the north and south halves of the
building, respectively, and afterward installed a heating plant so as to
heat the whole building, the heating plant being located on the north
half, an easement was created in favor of the south half in the benefi-
cial use and enjoyment of that part of the heating plant located in the
north half, which right could be asserted by anyone who might become
the owner of the south half under the trust deed. It was there said :
"After the trust deeds were executed, and before the extension of the
time of payment, the owner of the property put in the steam heating
plant, with its pipes and radiators, to heat the entire' building. While
it was designed for the benefit of every part of the building, that por-
tion where the steam heat was generated was on the north half. If
the plant had been in the building at the time of the making of the trust
deeds an easement for the enjoyment of the heating plant by anyone
who should become owner of the south twenty feet upon foreclosure
would have passed although not expressly stated, on the principle that
when a party grants a thing he grants everything pertaining to it nec-
essary to its enjoyment. The owner could not create any charge or
easement on the north half, after the execution of the trust deeds, to
the detrmient of the owner of that half, but the natural conclusion
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 535
would be that the installing of the heating plant subject to the right of
the owner of the south half to the beneficial use of the same plant con-
stituted an addition to the security as to the north half, and so far as
appears that is true. The owner installed the heating plant, which in-
creased the value of both parcels and which was necessary for the
convenient and comfortable enjoyment of both, in such a way that the
portion of the plant designed to generate the steam heat was on the
north half, and the advantages and burdens of the arrangement attached
to the property. Even more liberal principles ought to be applied in
such a case than in case of the implied reservation sustained in Powers
V. Hefifeman, 22>^ 111. 597, 84 N. E. 661, 16 L. R. A. (N. S.) bZo, 122
Am. St. Rep. 199. In our opinion the trust deed incjudes the easement
of the beneficial use of that part of the heating plant located on the
north twenty feet, and the owner of said north twenty feet must per-
mit such beneficial use by anyone who may become the owner of the
south twenty feet under the trust deed."
Nq^ distinction, in p^'nriplg^ exists or can be made in the application
of the law of easements, between easement of heat, light qnd air of of
ingress and egress, and the right to the use and enjoyment of tlie water
rights and facilities shown in the case at bar. Nor can it well be said
that an easement in the beneficial use and enjoyment of the heating
plant in Foote v. Yarlott, supra, was more open, visible and continuous,
and susceptible of being operated, used and enjoyed without the inter-
ference of man, than the water facilities, pump and engine are in the
case at bar. The aid of man to put them in operation and keep them in
repair is equally necessary and essential in both cases. The above cases
so conclusively answer appellee's contentions upon this question as to
render a further discussion of them at this time wholly unneces-
sary. * * *
For the reasons given, the decree will be reversed and the cause re-
manded to the circuit court of Lake county, with directions to overrule
the demurrer, and for further proceedings in accordance with the
views herein expressed. Reversed and remanded, with directions.
BUTTERWORTH v. CRAWFORD.
(Court of Appeals of New York, 1S71. 46 N. Y. 349, 7 Am. Rep. .352.)
Appeal from judgment of the General Term of the Court of Com-
mon Pleas, for the city and county of New York, affirming judgment
entered upon the report of a referee.
The facts of this case, as found by the referee, are as follows : Hen-
ry Vulkening in 1864 owned two houses adjoining each other on the
north side of Forty-Sixth street, in the city of New York, known as
Nos. 83 and 85 West Forty-Sixth street. While such owner, he dug
536
DERIVATIVE TITLES
(Part 2
.H''
^^F"
<i^-
and formed a vault, extending partly into the yard of each house,
and constructed^ drain from such_yault, running through the Jot of
house No. 85, to the sewer in Forty-Sixth street. He then built a
division fence between the yards of the two houses, extending from
the rear of the houses to the rear of the lots, which fence was upon
the division line, and crossed the vault in the center. He constructed
an outhouse on either side of such division fence, over the vault for
said house respectively, the roof of such outhouse extending a few
inches above the fence.
After constructing such vault and outhouses, on the 11th dav of
December. 1865. he conveyed the house and lot No. 85 West Forty-
Sixth street, to the defendant in this action, by full covenant jwar-
rantee deed.
The defendant, immediately on the receipt of such deed, took pos-
session of the said premises. Thereafter, on the 26th day of Janu-
ary, 1866, Vulkening conveyed said house, known as No. 83 West
Forty-Sixth street to the plaintiff.
In the summer of 1866, tVie defendant built a privy on his premises
No. 85 West Forty-Sixth street, about twelve feet further towards
the rear of his lot, and extended the drain to the vault of such privy,
and then cut off the connection between that portion of the vault on
the plaintiff's lot and the said drain.
The defendant upon the trial offered to show, that there was noth-
ing in the appearance of the premises at the time he bought, to give
notice that the privy was drained through his lot. This was refused
by the referee,""and the defendant's counsel excepted.
The defendant's counsel also offered to prove, that the defendant
had no notice when he bought, that the privy was drained through liis
lot. This was rgfused by the referee, and the defendant's counsel duly
excepted.
The referee, as conclusions of law, decided : That the defendant
had no right to cut off or obstruct the communication, from that part
of the vault on the plaintiff's lot, through the drain on the defendant's
premises to the sewer in the street. ~ ~
That the plaintiff was entitled to judgment, restraining the defend-
antfriiai--eOTTtifrumg such obstruction, and requiring the defendant to
open such drain, and to restore the same to the condition it was in at
the time of the said conveyance to the plaintiff.
Rapallo, J. We have come to the conclusion that the drain in
controversy didjciot constitute an apparent servitude or easement, and
that consequently the case does not present the question so fully ar-
gued before us, whether when a dominant and servient tenement are
owned by the same person, and he makes a conveyance of the servient
tenement first, with covenants of warranty, and against incumbrances,
and without the express reservation of any easement, such conveyance
will preclude him or his assigns from afterward asserting in favor of
Ch, 4) CREATION OF EASEMENTS BY IMPLICATION 537
the dominant tenement, which he retains, the benefit of the easement
in the premises so conveyed. We therefore refrain from expressing
an opinion upon that point.
All the authorities cited on the argument, by the learned counsel
for the respective parties, concur in holding that the rule of law which
creates an easement on the severance of two tenements or heritages,
by the sale of one of them, is confined to cases where an apparent
sig^n of servitude exists on tlie part of one of them in favor of the
other ; or as expressed in some of the authorities, where the mark$
of the burden are open and visible.
Unless therefore the servitude be open and visible, or at least, un-
lesj; there ^<^ ^ome apparent mark or sign, \vbirh would inrlirate its
existence to one reasonably familiar with the subject, on an inspection
of the premises, the rule has no application.
There was nothing in the situation or appearance of the premises
to indicate that there was any drain from the privies in question.
Drains are not ^^3. necessary accompaniment of privies constructed as
these were. In cities, municipal regulations provide for their being
cleansed by licensed public scavengers, and this practice is frequently
brought to the notice of the inhabitants i'n a very obvious manner. No
evidence was introduced to show that drains from them were usual
in the locality in question. But had such evidence been given, it does
not appear that there was any thing to indicate that the privy of
the neighboring house was drained through the lot sold to the defend-
ant.
In the case of Pyer v. Carter, 1 Hurl. & Nor. 916, which was much
relied upon on the argument, and in the opinion of the learned court
below, the dominant and servient tenement had originally been one
house. This house had been divided into two parts. The drainage
was of the water which fell upon the roof, and it may well be, that
the situation and arrangement of the building were such as to indicate
that some drain necessarily existed as an appurtenant to the house,
and that upon the division of the house into two parts, that drain be-
came common, and afforded drainage for both of the parts through
one of them.
Such seems to have been the fact; for the court says, in. rendering \
judgment, that "the defendant must have known, or ought to have
known, that some drainage existed, and if he had inquired, would have
known of this drain." ^~
That decision recognizes the necessity of establishing that the servi-( j;L.^>^/ ^« /^ ^
tude is apparent, or that there is an apparent mark or sign of it, and Q ^-'«-t^
seems to be based on the ^ct that the situation and construction of
the premises afforded such a sign.
In Washburn on Easements (2d ed.), p. 68, the learned author, after
reviewing the cases on this subject, states that he considers the doc-
-trine of Pyer v. Carter confined to cases where a drain is necessary
538 DERIVATIVE TITLES (Part 2
to both houses, and the owner makes a common drain for both; and
' . . ; — • i ' «^
this arrangement is ajicaxgilt and nhviniT, to an observer.
If Pyer v. Carter goes farther than that, or, at all events, if it ap-
plies to cases where there is no apparent mark or sign of the drain, it
is not in accordance with the current of the authorities.
The bearing of that case upon the question, whether the alleged ease-
ment was one of necessity, upon the point as to the order in which the
tenements were sold, and upon the other questions, which were argued
before us with so much learning and ability, need not now be consid-
ered, as we do not propose at this time to decide those questions ; and
for the same reason we forbear reviewing the numerous other au-
thorities to which we have been referred, ba_sing our decision upon the
single ground that the servitude claimed was not apparent.
The judgment should be reversed and a new trial granted, with
costs to abide the event. All concur.
Judgment accordingly.
(^n.c^,J
WEEKS V. NEW YORK, W. & B. RY. CO.
(Court of Appeals of New York, 1912. 207 N. Y. 190, 100 N. E. 719.)
Appeal from a iud;:;^ment of the Appellate Division of the Supreme
Court in the second judicial department, entered June 13, 1911, af-
firming a judgment in favor of defendant entered upon a dismissal of
the complaint by the court on trial at Special Term.
The nature of the action and the facts, so far as material, are stated
in the opinion.
CiiASK, J. On July 30, 1906, the plaintiff purchased two lots of
land in New Rochelle which were in part described in the deed as
follows : "known and distinguished as lots numbers fifty-seven and
fifty-eight (57 and 58) on a certain map entitled 'Map of Property
Belonging to W. Chalmers, J. C. Wilson and Others, New Rochelle,
N. Y.,' dated December, 1904, made by Horace Crosby, C. E. filed in
the Westchester County Register's office, which lots arg iI''Q'"P pn^'tim-
larly bounded and described as follows : Beginning at a point on the
westerly side of Cedar street as shown on said map (detailed descrip-
tion omitted), to the said westerly side of Cedar street and running
thence southeasterly along the said westerly side of Cedar street,
eighty-one and one one-hundredths (81.01) feet to the point or place
of beginning."
The defendants subsequently became the owners of all the other lots
frontinp^ on the so-called street, north of Orchard street m said city,
ancl they commenced the erection of an embankment across said so-
called street, north of Orchard street, so as to obstruct the plaintiff's
ri^ht of access to her said lots.
Ch. 4) CREATION OF BASEMENTS BY IMPLICATION 539
This action was commenced and the complaint alleges in detail the
plaintiff's ownership in fee of said lots, and the acts of the defendants,
including an allegation, "That said railway company, its agents or
employees, have caused to' be erected across said Cedar street, same
being a public street, and are now erecting said embankment so as to
completely obstruct the right of access of this plaintiff through said
"Cedar street to her said property." The complaint demands judgment:
"(1) That the defendants be enjoined and restrained from in any way
interfering with the free use of said Cedar street by tliis plaintiff. (2)
That defendants be compelled to remove from said Cedar street all
obstructions now erected thereon interfering with the free access of
plaintiff to her premises through said street."
The plaintiff's failure to recover a judgment protecting her right
of access to said lots has apparently resulted from the extraordinary
attitude of her counsel in insisting that the so-called street is a pub-
lic street or highway when he was wholly unable to sustain such posi-
tion. The court did, however, find the following facts :
"Second. That in or about the month of December, 1904, W.
Chalmers, Frederick A. Steele and J. C. Wilson, at that time the own-
ers of the so-called Maple Park tract in New Rochelle, duly filed a
map of said tract, surveyed by Horace Crosby, in tlie office of the
Register of Westchester county.
"Third. That the description of the premises in the deed of Chalm-
ers et al. to plaintiff, bounds same as abutting on Cedar street as in-
dicated on the map filed by said Chalmers et al. in December, 1904,
the abutting lot being described in said deed and on said rr"p as lot
number 58."
"Sixth. That the defendant the City and County Contract Company
is owner in fee of all the land or right of way over which the line of
the defendant New York. Westchester & Boston Railway Company
hgs been constructed, or is about to be constructed in the, said Maple
Park Tract, and more particularly is owner in fee of the lots 11, 12,
13 and 14, and that part of Cedar street over which the line of the
defendant, New York, Westchester & Boston Railway Company passes,
and also of all of Cedar street north of Orchard street, except that
portion opposite lot 58 to the center of said Cedar street.
"Seventh. That defendants have caused to be placed on Cedar street
aforesaid near Orchard street, obstructions consisting of stone, which
completely block access over Cedar street northerly from said Orchard
street, and placed said stone there before the commencement of this
action."
"Tenth. That plaintiff by the obstruction of stone aforesaid, is de-
prived of all access to her premises, lots 57 and 58. over said Ce^r
street from Orchard street, and has been so deprived before the com-
mencement of this action."
"Twelfth. That plaintiff after delivery of deed to her of lots 57 and
540 DERIVATIVE TITLES (Part 2
58, used Cedar street more or less each year since, for going to and
coming from said premises, to and from Orchard street.
"Thirteenth. That plaintiff has not at anv time consented to the
closing of Cedar street by defendants or their agents.
"Fourteenth. That at the time of delivery of deed, Exhibit 1, to
plaintiff, Chalmers et al. the owners of the entire tract, still owned all
the lots abutting on Cedar street north of Orchard street, and did not
convey the balance of said lots until after plaintiff owned and had pos-
session of lot 58 under the said deed and said deed was filed of rec-
ord."
The plaintiff requested the court to find, as conclusions of law : "14.
That the proof shows that plaintiff is entitled to some relief and that
the court should therefore have given judgment for plaintiff." "17.
That plaintiff is entitled to a judgment directing defendants to xt-
move all obstructions from Cedar street and enjoining defendants
from further obstructing the said street and interfering with plaintiff's
free access over Cedar street to her property described in the com-
plaint." The court refused to find the conclusions of law requested
by the plaintiff, but did find that the complaint states facts sufficient
to constitute a cause of action, and that tlie plaintiff has no adequate
remedy at law. It also found that that part of Cedar street north of
Orchard street is not and never has been a public street, and that the
defendants are entitled to judgment dismissing the plaintiff's complajnt
upon the merits, and judgment was entered accordingly.
The facts found show that the plaintiff had a private easement ovgr
the so-called Cedar street. Her rights as the owner of such "easement,
a§ between herself and tfie defendants, are similar to the rights of an
abutter upon a public street or highway.
In Lord V. Atkins, 138 N. Y. 184, 191, 33 N. E. 1035, 1037, the
court say : "It is well settled that when the owner of land lavs itout
into, distinct lots, with intersecting streets or_avf.njaes,_and sells the
lots with reference to such streets, his grantees or successors cannot
afterwards be deprived of the benefit of having such streets kept
open. When, in such a case, a lot is sold bounded bv a street, the pur-
chaser and his grantees have an easement in the street for the_jny-
poses of access, which is a property right." See, also, Reis v. City of
New York, 188 N. Y. 58, 80 N. E. 573 ; 'india Wharf Brewing Co. v.
B. W. & W. Co., 173 N. Y. 167, 65 N. E. 985; Story v. N. Y. Elev.
R. R. Co., 90 N. Y. 122, 165, 43 Am. Rep. 146; Bissell v. N. Y. C.
R. R. Co., 23 N. Y. 61; Gerard on Title to Real Estate, 551, 821;
Jones on Easements, § 430; Elliot on Roads and Streets, §§ 18, 144.
Upon a trial before a court or referee an exception to a general
finding of law, holding that one party is entitled to recover against
the other, raises the question as to whether, upon all the facts found,
the successful party was entitled to judgment. Hemmingway v.
Poucher, 98 N. Y. 281.
Ch. 4) CREATION OP BASEMENTS BY IMPLICATION 541
The plaintiff, upon her pleadings and upon the facts found, was
entitled to a jud.gment recognizing her private easement and granting
her some relief on account of the invasion of her rights.
The judgment should be reversed and a new trial granted, with costs
to abide the event.
CuLLEN, Ch. J., and Gray, Wi;rner, Willard Bartlett, His-
cocK and Collin, JJ., concur.
Judgment reversed, etc.^*
CITY OF BATTLE CREEK v. GOGUAC RESORT ASS'N.
(Supreme Court of Michigan, 1914. 181 Mich. 241, 148 N. W. 441.)
Bill by the city of Battle Creek against the Goguac Resort Associa-
tion Limited, and others for an injunction. From a decree for com-
plainant, defendants appeal.
Bird, J. The complainant, as well as the defendant association, are
rijarian owners on Lake Goguac. This lake is near the city of Bat-
tle Creek, and covers 360 acres, and is fed by subterranean springs.
Complainant purchased a parcel of land bordering on the lake in 1886,
and commenced to take therefrom its water supply in 1887. From
that time on, its consumption of the water increased, until it reached
upwards of 3,000,000 gallons per day at the time this suit was filed.
The defendant association 'is the owner of lands bordering on the lake
adjoining those of complainants. It maintains a summerresort and
batliing^ beach during the summer months. Complainant has for some
time objected to the bathing at the resort, on the theory that it pol-
luted and rendered the water unfit for the use of its inhabitants. Its
protests were not heeded by the association, nor by the other defend-
ants who own and manage it. In order to enforce what it conceived
to be its rights, this bill was filed to perpetually restrain the defendants t^i^^c^ Xt-lA^
from operating their bathing beach. The chancellor who heard the
case granted the relief prayed, and the defendants have appealed. The
18 What would be the situation if the deed made no mention of streets, but
referred for description to a plat which showed contemplated streets touching
the property conveyed?
Land is sold and conveyed, reference being made for description to a plat
showing a great many pi-oposed new streets, only one of which, however, touch-
es the property conveyec^ In which of sucn contemplated streets, if any, does
tne purchaser acquire rights ? What rights, if any, does he acquire? See Dan-
ielson v. Sykes. 157 Cal. 6S6. 109 I'ae. 87, 28 L. R. A. (N. S.) 1024 (1910) ; Har-
rington v. City of Manchester, 76 N. H. B47, 82 Atl. 716 (1912).
What would be the situation if lots are sold and conveyed after reference to
a plat which shows contemplated streets, but no reference is made to such plat
In the deed, nor is there any reference m the deed to the proposed streets?
See Pyper v. Whitman, 32 R. I. 510, SO Atl. 6, 35 L. R. A. (N. S.) 938 (1911) :
Danielson v. Sykes, supra.
What if the grantor does not own the land on which the contemplated streets
are to be laid out?
ieiC€^.(
542 DERIVATIVE TITLES (Part 2
most serious question raised by defendants is that the complainant has
no such right to the use of the water as entitled it to the relief granted.
Both complainant and defendants are riparian owners, and as such,
in common with others, they own the bed of the lake, and by virtue
of such ownership both have a right to a reasonable use of its waters
for domestic, agricultural, and mechanical purposes. Clute v. Fisher,
65 Mich. 48, 31 N. W. 614; 40 Cyc. p. 635. Unless the complainant
can show that it has some right other than that which arises by reason
of riparian ownership, it has no greater right in the waters than have
the defendants. As a riparian owner, the complainant has no right
to divert the water for the purpose of selling it to the inhabitants of
Battle Creek. Stock v. City of Hillsdale, 155 Mich. 375, 119 N. W.
435 ; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393 ;
Ulbricht V. Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11
Am. St. Rep. 72; Lord v. Water Co., 135 Pa. 122, 19 Atl. 1007, 8
L. R. A. 202, 20 Am. St. Rep. 864; Sparks Manfg. Co. v. Town of
Newton, 57 N. J. Eq. 367, 41 Atl. 385.
The question therefore gets around to this: Whether one riparian
>wner is entitled to equitable relief as against another riparian owner,
0 aid him in diverting the water to uses other than for riparian pur-
poses. If this were a suit by complainant to protect its right to some
reasonable use of the water incidental to its riparian ownership, it
would present a dififerent question, byit when it seeks relief oi tl;iis
character to facilitate its business of unlawfully diverting the water .^it
prays for relief to which it is not entitleH as a mere riparian owner.
But counsel argue that the complainant's right is something more than
a riparian right, and point to a legislative act whereby the city was
authorized to go beyond its corporate limits to acquire water rights
and, when acquired, to protect such rights against pollution. Act No.
428, Local Acts of 1887. We are unable to see how this act has any
force in these proceedings. That act authorized the complainant^to
go beyond its corporate limits and acquire water rights by purchase or
condemnation, which right it did not then have until the act was passed.
Houghton Common Council v. Mining Co., 57 Mich. 547, 24 N. W.
820. In pursuance of this act, the city purchased a small parcel of
land on the shore. Tlie city has never exercised its authority under
this act, except to become a riparian owner. If in pursuance of this
act complainant had acquired all the water rights at Goguac Lake, ei-
ther by purchase or condemnation, it would then be in a position to
insist upon what it is now insisting upon. The act does not attempt
to enlarge the riparian rights of the complainant at the expense of the
other riparian owners^ and indeed the legislature would have no _au-
thority to confer such rights upon the city without compensation, be-
ing made therefor.
Another claim made by complainant is that it has acquired the
right by prescription to take its water supply from the lake. De.£end-
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 543
ants' riparian rights began in 1885. before complainant's did. When
complainant purchased, it was with the view of putting down wells;
later it installed an intake. As the use of the water by the city increas-
ed, the lake was lowered to such an extent that defendants filed a bill
to restrain complainant from lowering the water and interfering with
their riparian righTs! The city recognized the rights of the defendants
and other riparian owners by diverting Minges brook into the lake,
which action brought the lake back to its normal level, since which
time it has been so maintained. After diverting Minges brook into the
lake, the chancery suit was discontinued by stipulation. The record
shows no such adverse use of the water as would ripen, into a prescrip-
tive right : but, even if we assume to the contrary, the right acquired
would be no more than the right to take the water subject to the use
which the defendants and their predecessors in title have made of
it since the resort was established in 1885. The prime object of the
ci_ty in filing this bill was not to establish its own right to use the wa-
ter as it has been using it, but to restrain defendants from making the /}^u£P
u^e of it which they have made since 1885, If this relief is to be
granted, it should be based upon some right. The city has shown no
prescriptive right, and as a riparian owner it would be entitled to no
such relief. Were the city attempting to establish its right to take
the water as it has done in the past, other questions might arise which
are not important on this record.
In view of the conclusion reached upon this question, it will be un-
necessary to consider the other questions raised. The decree of the
tjial ^ourt will be reversed, and the bill dismissed, with costs to de-
a<Jj>Y
Pendants. ( J^t-O dU^- I
Stone, OstimndKr, and IV^orE, JJ., concurred with Bird, J.
Brooke, J. I find myself unable to agree with the conclusions of >Ok
my Brother Bird in this case. In addition to the facts stated by him Yj
in his opinion, it should be noted that the complainant city of Battle f^^^tj^ V *
Creek purchased the land upon which it located its water-works from ^^*fc^
one Surby, who was at that time and for many years had been con- /
ducting a summer resort in a small way upon the banks of the lake.
He sold to the city a portion of his land with the knowledge that the
city intended to erect a pumping station thereon and to supply its citi-
zens with drinking water from the lake. His resort business at that
time was insignificant, though the record tends to show that bathing
by his patrons was indulged in to some extent. Surby not only stood
by_and sa\v_the city expend a large amount of money in the establish-
merU of its plant, but actually sold the land to tlie city to be used
for that purpose. Some time after the city had placed in operation its
waterworks, the defendant resort association purchased from Surby
his adjacent lands, and rebuilt the buildings and added many attrac-
tions in order to induce large patronage ; among these was the estab-
lishment of a bathing beach with dressing rooms and otlier necessary
544 DERIVATIVE TITLES (Part 2
accommodations for its patrons. It further appears tliat at the time
the city estabHshed its pumping station upon the shores of the lake,
the lake had no visible inlet or outlet, but was supposed to be fed by
springs. The use of the water by the complainant city had a tendency
to reduce tlie mean level in the lake, and after some years the reces-
sion of the waters became so marked as to cause much complaint from
other riparian owners, whereupon the city secured tlie right to divert
a small stream called Minges brook from its natural course into the
southerly end of the lake, since which time it has been able, through
a proper manipulation of the waters of such brook, to maintain the lake
at its normal level, although in the meantime the daily consumption
of the city has reached something like 3,000,000 gallons. It will thus
be seen that the taking of the water from tliejake by the complainant
inflicts no injury upon the defendant or other riparian ownejs. It
further appears that since the establishment of said plant the city lim-
its of the city of Battle Creek have been extended so that they now
embrace the entire site of the waterworks plant upon the banks of the
lake as well as a further very considerable frontage, apparently used
as a public park.
My Brother Bird's opinion proceeds upon tlie theory that the use
complainant is making of the waters of this lake is both unreasonable
and unlawful. Under the circumstances disclosed by this record, I
find myself unable to agree with him on either proposition. No per-
son has a property right in water. The right is usufructuary only,
and the modern authorities all tend to establish the principle thatjone
riparian owner may not restrain the use of the water by anotHer ri-
parian owner for nonriparian purposes, unless such use results in
injury to the first. The very recent case of Stratton v. Mt. Hermon
Boys' School, 216 Mass. 83, 103 N. E. 87, 49 L. R. A. (N. S.) 57,
Ann. Cas. 191 5 A, 768, is instructive upon this point. There the de-
fendant, a riparian owner, took the water from a running stream and
diverted it to nonriparian lands upon a different watershed, for use
upon lands wholly separated from its riparian lands. The case con-
tains a very full review of all the authorities. It is there said:
".The question in such a case is not whether the diversion, being
for a legitimate use, is in quantity such as is reasonable, having regard
to all the circumstances, as it is in cases of distinctly riparian uses,
but only whether it causes actual damage to the person complaining.
* * * That there can be no recovery for a diversion of water
for a proper use, so small in quantity and of such character that it
occasions no injury to the present or future use of the lower riparian
land is recognized in other jurisdictions" — citing cases.
I am further of the opinion that the complainant is entitled to the
relief prayed upon the ground of estoppel, As before pointed out,
the parties held title as riparian owners from a common grantor, Sur-
by. It is to my mind entirely clear that Surby, having sold a part
Ch. 4) CREATION OF EASEMENTS BY IMPLICATION 545
of the land belonging to him upon the shore of the lake for the pur-
pose of enabling the city to establish a system of waterworks for the JjtjJ^xJljty ^
supplying of drinking water to its inhabitants, would not be heard to -^.^^^a/T
say that he had the right to make such use of the waters upon his ^^^SS^*^^^9^'
adjoining lands as would render waters taken by the city unfit for^V-*^ **-*-^-
the contemplated use. When the resort association purchased from
Surby, it purchased with constructive knowledge that the city had ^jfj^^y}/ ^u^t^t^
bought from its grantor, and with actual knowledge of the fact that \0\ - — ^
the city was then taking its supply of drinking water from the lake -<-a.>&«.^"v*
by means of its plant, plainly yisible. Under the circumstances I am ^aJulXK A^^*""^
of opinion that Surby's grantee is under exactly the same disability j^^ 1^-C4_
that would attach to Surby had he attempted to render his grant value- /" .
less by a pollution of the waters immediately after the grant was •
made.
I am further unable to agree with the proposition that the use which
the defendant resort association is making of the waters of the lake
is, under the circumstances, either reasonable or lawful. In the case
of People V. Hulbert, 131 Mich. 156, 91 N. W. 211, 64 L. R. A. 265,
100 Am. St. Rep. 588, the court held, though with some apparent dif-
ficulty, that Mr. Hulbert, a riparian owner, could not be punished for
bathing in this lake, although his act was in violation of a legislative
enactment. Act No. 428, Local Acts 1887. Whatever may be said
of the propriety of this decision, and its soundness is questioned by
complainant, it is apparent that the court was mindful of the possi-
bility of future developments when it very carefully limited the ef-
fects of the decision to the single point then in issue. Mr. Justice
Moore, in concluding his opinion, said : ,
"In what we have said we do not mean to intimate that an upper x /k^^ .A-a^
proprietor may convert his property into a summer resort, and invite / ^
large numbers of people to his premises for purposes of bathing, .gjtd I / 3 / "M*"*^* '
give them the right possessed only by the riparian owner and his f am- j
ily. We are undertaking to decide only the case which is presented-^
here."
This court thus clearly foreshadowed its probable action if such a
case arose. It is unnecessary to predicate complainant's right to re-
lief upon the fact that the health of 30,000 people is endangered by
defendants' unlawful acts. The city as a riparian owner, with but a
single resident upon the land who used or was entitled to use the wa-
ters of the lake for drinking purposes, would have the absolute right
to enjoin his neighbor from making such use of the water as would
render it unfit for drinking purposes.
Defendants filed a cross-bill, in which it asks that complainant be
restrained from diverting any of the waters of the lake through its
pipes. Even if complainant's use of the water was wrongful, injunc-
tive relief would be denied. Stock v. City of Hillsdale, 155 Mich. 375,
119 N. V/. 435.
Aig.Pkop. — 35
546 . DERIVATIVE TITLES (Part 2
Tam of Qninilin t^^^ <^^P dprree of the rirnn't rntirl" sliniilrl he- af-
firmed, with costs to complainant.
McAlvay, C. J., and Kuhn and Steere, JJ., concurred with
Brooke, J."
19 See Tabor v. Bradley, 18 N. T. 109, 72 Am. Dec. 49S (1S5S), wliere_a_iaslit
to^ flood remaining laruls of the grantor was claimed to have passed bv im|f},fed
grant ji noil couveyajee of g^ tract of land with mill and milldaui thereon. The
land conveyed was described by metes and bounds, with no mention of the mill
or dam. It appeared that the grantor had no knowledge of the existence of
the mill and dam, and of course no knowledge of the flooding.
See, also, Pwllbach Colliery Co. v. Woodman, [1015] A. G. 634, where prop-
erty was leased with power to carry on thereon the trade of miners. Other
premises were leased by the same landowner to a butcher. The colliery c<mi-
pany erected on the premises demised to it a screening ajtparatus, the operation
of which resulted In the deposit of dust upon the butcher's buildings. It was
f-oyfptirlptl, iiitpr ■•ilin, by fhp fnllierv comi'iin.\. in an action against it furjnii-
sance. that the grant of the privilege to carry on the trade of miners author-
ized the comlEIssxon or a nuiaance as against the lessor and titose claiming
under liim!
'' — / ^. ^ I c
Ch. 5) ESTATES CREATED 547
CHAPTER V IQ^ J^-ZiA^
ESTATES CREATED L^^^^ .
SECTION 1.— ESTATES IN FEE SIMPLE
LITTLETON'S TENURES.
Tenant in fee simple is he which hath lands or tenements to hold to
him and his heirs for ever. And it is called in Latin, feodum simplex,
for feodum is the same that inheritance is, and simplex is as much as
to say, lawful or pure. And so feodum simplex signifies a lawful or
pure inheritance. Quia feodum idem est quo hsereditas, et simplex
idem est quod legitimum vel purum. Et sic feodum simplex idem est
quod hsereditas legitima, vel hsereditas pura. For if a man would pur-
chase lands or tenements in fee simple, it behooveth him to have these
words in his purchase, to have and to hold to him and to his heirs : for
these wor^s^iis heirs) make the estate of inheritance.^ For if a man
purchase lands by these words, To have and to hold to him for ever;
or by these words, To have and to hold to him and his assigns for ever ;
in these two cases he hath but an estate f or jerm_ofJ.ife,. for that there
lack these words (his heirsjj which words only make an estate of in-
heritance in all feoffments and grants.*
Section 1.
1 In many states the necessity of usinjr the word "heirs" hns been done away
either expressly or Indirectly by statute. Tlie state statutes sliould be con-
sulted. Section 51 of the Conveyaiieiiig Act (St. 44-45 Vict c. 41) provides
that in deeds executed after I)e(einl)er 31, ISSl, it shall be suttioient, in the lim-
itation of an estate in fee simple to use the words "in fee simple," without tlie
word "heirs." In re Etliel and Mitchell's and Hutler's Contract, [1901J 1 Cli-
945, held the words "in fee" not sutiicient under the statute.
Even at common law there were exceptions to the rule requiring the word
"heiis." See 2 Bl. Comm. •lOS, *109.
2 "The grant 'to A. and his heirs' and a grant 'to A. for life and after his
decease to his heirs,' according to the primitive force and effect of the expres-
sions, were manifestly identical, inasunich as they both conferred life estates
upon A., and upon the persons designated as his heii*s in succession. They
were still construed as identical, notwithstanding the change in the position
and interest of the heir consequent upon the enlarged power of alienation in
the ancestor; the limitation 'to the heirs,* in both cases, ceased to confer di-
rectly any estate upon the persons answering to that designation, and was re-
ferred to the estate of the ancestor, which, though expressed to be in the first
place for life, it enlarged to an estate of inheritance, so that the heir took only
by descent. This is the oiigin and simplest form of the rul^e in Shelley's Case,
an ancient rule of great importance in construing the Timitations of estates,
which will be noticed more fullv hereafter." I>eake, Law of Property in Land
[Randall's Ed.J 24. See 29 L. R. A. (N. S.) 9G3 et seq.
548 DERIVATIVE TITLES (Part 2
(j^^U) McCULLOCK V. HOLMES. '^^^^^^<-j
(Supreme Court of Missouri, 1802. Ill Mo. 445, 19 S. W. 1096.)
Barclay, J. This is an action of ejectment involving the title to a
piece of land in Lincoln county.
Tlie facts are admitted.
The case turns upon the effect to be given to the following clause in
a deed from Oliver Holmes (the common source of title) and his wife
to Azra A. Holmes, dated, April 11, 1855, and duly recorded about the
same time, viz. :
"To have and to hold * * * unto him the said Azra A. Holmes
for and during his natural life and then to his two children, Laura
Eliza and Mary Emily Holmes, and their heirs and assigns forever,
and if either of said children shall die without issue in the lifetime of
J^ their father, then all of said lands is to go to the survivor."
, . The chronology of the principal facts, affecting the controversy, is
as follows :
First. Mary Emily Holmes died without issue, some years before
Azra A. Holmes.
Second. Azra died in April, 1888.
Third. He left his widow, the defendant in possession, and his
daughter, Laura Eliza, one of the plaintiffs, who has intermarried with
Mr. McCullock, the other plaintiff.
The fact that the limitation above quoted appears only in the "haben^
" dujn^clause of the conveyance to Azra A. Holmes does not deprive it
of its legal force or effect. All parts of the deed should be considered
***'^' in gathering its meaning, and the true intent it designs to express,
throughout, should be eft'ectuated.
In the premises of this deed "A. A. Holmes" is named as grantee,
while in the habendum the extent of his estate is defined, and the re-
mainder now in consideration carved out.
All parts of an instrument are to be construed as consistent with
each other, if such construction be possible.
Where land is conveyed to an individual, without adding to his
name, as grantee, the word "heirs" or other words of inheritance, the
fee thereby passes to him under the law of Missouri, "unless the in-
tent to pass a less estate shall expressly appear or be necessarily im-
plied in the terms of the grant." Rev. S't. 1889, § 8834. Thejntent
to pass a less estate is very evident in the present case, and is lawfully
expressed, Farrar v. Christy's Adm'rs (1857) 24 Mo. 453 ; Spyve v.
Tophani (1802) 3 East, 115.
Even under the strictest common-law rules of conveyancing, a
stranger to those mentioned in the premises of a deed might be in-
troduced in the habendum as a grantee in remainder. 1 Wood on Con-
veyancing (6 Eng. Ed.) Habendum (B), p. 336.
The limitation in the case at bar is not uncertain or obscure. Azra
Ch. 5) ESTATES CREATED 549
took a life estate in possession. During its currency, one of the pos-
sible remaindermen died. The other, the present plaintiff, survived
Azra. She is plainly entitled to the estate, the contingency having been
resolved in her favor. The trial court so held. Its judgment is affirm-_
ed. Sherwood, C. J., and Black and Brace, JJ., concur.^
3 In Palmer v. Cook, 159 111. 300, 42 N. E. 796, 50 Am. St. Rep. 165 (1896)
lands were conveyed by one Thomas Stewart to Ms two children. Following
the description of the property was the follo\ving clause: "And I, Thomas
Stewart, as for myself, retain possession and reserve the use, profits and full
control during my life ; and further, in case either of the grantees dies with-
out an heir, her interest to revert to the survivor." The court said : "This
deed eifected an absolute fee simple conveyance by the first clause of the deed
and vested the estate. By the last clause an attempt is made to mount a fee
upon a fee, which can only be done by executory devise. Smith v. Kimbell, 153
111. 368, 38 N. E. 1029 (1894) ; Fowler v. Black, 136 111. 363. 26 N. E. 596, 11
L. E. A. 670 (1S91) ; Giiswold v. Hicks, 132 111. 494, 24 N. E. 63, 22 /^ni. St.
Rep. 549 (1890). It is a further principle of construction of deeds, that if the
terms used vest a fee in the first taker, other parts of the instrument showing
an intention to give a less estate will not control. Carpenter v. Van Olinder,
127 111. 42, 19 N. E. 868, 2 L. R. A. 455, 11 Am. St. Rep. 92 (1889). Under the
statute, the conveyance being to the grantee and her heirs and assigns, the
terms have, in law, a definite meaning. By the use of terms of a definite legal
meaning the intention can be determined from the language used. If that
language means a certain thing and nothing else, then the only reasonable con-
struction is that what was intended was expressed in the language used. The
language used did not create an estate in joint tenancy nor a life estate. Un-
der these principles this deed reserved to tlie grantor a life estate and vested
a fee in the grantees, and the clause, 'and further, in case either of the grantees
dies without an heir, her interest to revert to the survivor,' must be held to be
inoperative, as a limitation of the fee."
In Cover v. James, 217 111. 309, 75 N. E. 490 (1905), lands were conveyed to
two of the grantoi'"s children, with the follomng provision immediately fol-
lowing the description of the premises: "In case of the death of either A. Ford
Cover or Bessie Cover, the other to have the whole of said property without
litigation." A. Ford Cover died before Bessie Cover, and the question was
whether the heirs of said A. Ford Cover took any interest. The court, inter
alia, said : "Section 13 of chapter 30 of Hurd's Revised Statutes of 1903, page
441, provides that 'every estate in lands which shall be granted, conveyed or
devised, although other words heretofore necessary to transfer an estate of
inheritance be not added, shall be deemed a fee simple estate of inheritance,
if a less estate be not limited by express words or do not api^ear to have been
granted, conveyed or devised by construction or operation of law.' Here the
deed does expressly state that in case of the death of either of the grantees
the survivor shall have the whole of the property, thus clearly limiting the es-
tate granted to both jointly for life, with the right of survivorship. It is in-
sisted, however, by counsel for appellees that this last provision cannot be giv-
en effect because it does not appear in the granting clause of the deed, or, as
is said, does appear in the habendum, and reliance is placed upon the case of
Palmer v. Cook, 159 111. 300, 42 N. E. 796, 50 Am. St. Rep. 165 (1896). In that
case a deed somewhat similar to the one now before the court was construed
as conveying the fee simple title to the grantees, and it was held that the ex-
pression, 'in case either of the grantees dies without an heir her interest to re-
vert to the survivor,' was an attempt to mount a fee upon a fee, and was there-
fore void. The granting clause of that deed was held to convey the fee sim-
ple title under the provisions of section 9 of chapter 30, supra. If a fee simple
title was in fact granted, it is clear that that estate could not be limited or
qualified by the subsequent language. Merely because the deed was substan-
tially in the form prescribed by section 9, however, a fee simple title was not
necessarily conveyed. That section prescribes the form of the deed, and pro-
vides that every deed substantially in that form shall be deemed and held to be
a conveyance in fee simple to the grantee, etc. ; but it must be construed in
550 DERIVATIVE TITLES (Part 2
CARLLEE V. ELLSBERRY.
(Supreme Court of Arkansas, 1907. S2 Ark. 209, 101 S. W. 407, 12 L. R. A.
[N. S.] 956, lis Am. St. Rep. 60.)
Battle, J; This case involves the construction of so much of a
deed executed by John T. Hamblett and wife to Georgena EUsberry
as is in the following words :
"Know all men by these presents, That we, J. T. Hamblett and Cor-
delia P. Hamblett,- his wife, for and in consideration of the sum of
one dollar to us in hand paid, and for the love and affection we have
connectiqn with section 1^, supra, under which, if a less estate he limited by
express words or appear to have been granted, conveyed or devised by construc-
tion or operation of law, the conveyaiue, not using words heretofore necessiiry
to transfer an estate of iiilieritnnce. shall not be deemed to convey a fee sim-
ple estate. * * * That the position of counsel for aiinellee and the decision
of the conrt below do violence to his expressed intention must be conceded.
In Mirtel v. Karl. i:« 111. 05. 24 N. E. 55*'., S I.. U. A. C5."5 (L^90), a warranty
deed by John IMittel conveyed premises to 'Maria Jobst and Michael .lobst. her
husband, and the survivor of them, in her or his own right.' In construing
that deed, after holding that the words 'the survivor of them,' etc., could not
be ignored, we say (i:!.*? 111. OS, 24 N. E. 554. S h. R. A. 655) : 'These words were
placed in the deed by the contrarting piirties for a purpose, and they cannot
arl)itrarily lie rejected. In the construction of written contracts it is the duty
of the court to ascertain the intention of the parties, and the intention, when
ascertained, must control; but in arriving at the intention, effect must be
given to each clause, word or term emi)loyed by the party, rejecting none as
meaningless or surplusage' — citing Lehndorf v. Cope, 122 111. 317, VA N. E. 505
(1887). And after discussing the question as to whether that deed convened
an estate in joint tenancy, we further said (I'-VA 111. 70. '24 N. E. 5.55. 8 L. R. A.
655): "We think the language of the deed, when properly understood, will ad-
ndt of but one construction, and that is, that the premises were conveyed to
Maria and .Michael Jobst for life, with a contingent remainder in fee to the
survivor. I5y the language of the grant, to "Michael Jobst and Maria Jobst,
and the survivor of them, in his or her own right,'" it was doubtless intended
that the one who should die first should take only a life estate in the premises,
with the remainder in fee to the survivor and his heirs.' The authorities cited
in support of this position, as well as the reasoning of the learned judge who
wrote the opinion, fully supjmrted it. It is there further said: 'There is no
way in which it can be held that Jobst and his wife took the fee as tenants
in connnon without rejecting the clause in the deed providing that the survivor
should take the fee, and we are aware of no rule of construction under which
that can be done. As is said in Riggin v. Love, 72 111. 55:5 (lS74i a construction
which requires us to reject an entire clause of the deed is not to be admitted
except from unaveidable necessity: but the intention of the parties, as mani-
fested by the language employed in the deed, should, so far as practicable, be
carried into effect.' So in this case, whether the father understood the differ-
ence between the estates in joint tenancy and tenancy in conunou or not, he
marufestly did understand what his desire was, that is, that the survivor of
his children, the grantees, should have the entire estate; and under the rule
announced in Mittel v. Karl there is no difficulty in giving effect to that in-
tention. We think the court below was in error in holding that A. Ford Cover
and Bessie Cover took the estate as tenants in common and in sustaining the
demurrer to the bill of the appellant, Bessie Cover. Under the views here ex-
pressed it is clear that the coniplainanrs in the cross-bill were entitled to no
relief under the same, and whether, technically, the motion to strike it from the
tiles was proper or not, is unimportant." See, also, Baunian v. Stoller. 2;!5 111.
480. 85 N. E. 057 (1008); Buck v. Garber, 261 111. 378, 103 N. E. 1059 (1914);
Graves v. AY heeler, 180 Ala. 412, 61 South. 341 (1913), ace.
Ch. 5) ESTATES CREATED ■ 551
for our daughter, Georgena Ellsberry, we hereby convey, sell, give and
bequeath to the said Georgena Ellsberry, and unto her heirs and assigns
forever, the following lands lying and being situate in the county
of Woodruff and State of Arkansas, to-wit : Lots numbered twelve
(12), thirteen, (13) and fourteen (14) in block number fourteen (14) in
the town of Augusta, to have and to hold the same unto the said
Georgena Ellsberry and unto her heirs and assigns forever, with all
the appurtenances thereto belonging. Provided, however, that should
the said Georgena Ellsberry die without issue and before her husband,
Wm. M. Ellsberry then the property herein conveyed is to revert unto
the said Wm. M. Ellsberry."
The granting clause of the deed conveys the lands described to the
grantee in fee simple. The habendum defines the estate the grantee is
to take to be the fee simple, with a proviso limiting the estate in cer-
tain contingencies to a life estate. ThejDroviso or condition is repug--
jriantjto_the_grariting cliiuse. Which prevails?
In Maker v. Lazell, 83 Me. 562, 22 Atl. 474, 23 Am. St. Rep. 795,
the court said : "There is one rule pertaining to the construction of
deeds, as ancient, general and rigorous^^s_any other. It is the rule
that a grantor cannot destroy his own grant, however much he may
modify it or load it with conditions, — the rule that, having once grant-
ed an estate in his deed, no subsequent clause, even in the same deed,
can operate to nullify it. 11 Bac. Abr. 665; Shep. Touch. 79, 102.
We do not find that this rule has ever been disregarded, or even seri-
ously questioned, by courts. We find it often stated, approved, and
sometimes made a rule of decision. In Duke of Marlborough v. Lord
Godolphin, 2 Ves. S'r. 74, Lord Chancellor Hardwicke, 'in whose judg-
ments equity shone resplendent,' declared that the courts either of law
or equity should not adopt such a construction of an instrument of de-
vise as would defeat the interests given. In Cholmondeley v. Clinton,
2 Jac. & Walk. 84, which was a case most elaborately, argued and con-
sidered, it was said by the court that where a limitation in a deed is
perfect and complete, it cannot be controlled by intention collected
from other parts of the same deed." To support this rule of construc-
tion, the court cites and comments upon the following cases : Budd v.
Brooke, 3 Gill (Md.) 198, 43 Am. Dec. 321 ; Ackerman v. Vreeland,
14 N. J. Eq. 23 ; Wilder v. Davenport, 58 Vt. 642, 5 Atl. 753 ; Cutler
v. Tufts (Mass.) 3 Pick. 272; Wilcoxson v. Sprague, 51 Cal. 640;
Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N. W.
382, 42 Am. Rep. 701.
In Green Bay & Mississippi Canal Co. v. Hewett, 55 Wis. 96, 12 N.
W. 382, 42 Am. Rep. 701, Mr. Justice Lyon, delivering the opinion
of the court, said : "Which of these two conflicting clauses in the deed
of 1873 should prevail? This question must be determined by rules
of law * * * governing the construction of deeds. One of these
rules is that a deed is always construed most strongly against the gran-
tor. 4 GreefarCruise, Real Prop. p. 352, tit. 32, ch. 20, § 13. Another
/(^Cc
^
552 DERIVATIVE TITLES (Part 2
is that where there are two clauses in a deed, and the latter is contra-
dictory to the former, the former shall stand. This is an application
of the_ancient rule or maxim that 'the first deed and the last will shall
operate.' * * * jf ^^g subsequent clause in the deed of 1873 is
regarded as a habendum, then we have this rule laid down by Citiise
in the title above cited (chapter 21, %^75, 76): '\VlLere the habendum is
repugnant and contrary to the premises, it is void, and the grantee will
take the estate given in the premises. This is a consequence of the
rule already stated, that deeds shall be construed most strongly against
the grantor ; therefore he shall not be allowed to contradict or retract,
by any subsequent words, the gift or grant made in the premises.
Thus, if lands are given in the premises of a deed to A. and his heirs,
habendum to A. for life, the habendum is void, because it is utterly
repugnant to and irreconcilable with the premises.' " * * * *
The conveyance in fee simple carries with it the power to dispose
of the estate by deed or will. The power of alienation is an insepara-
ble incident of such an estate. So the deed in question conveyed to
Mrs. Ellsberry tlie estate in fee simple with the power to disposejof_it
The limitation of it to a life estate was repugnant to the granting
clause, and was void. ,
Reversed, and remanded for proceedings consistent with this opin-
ion.^ / / /
FIRST UNIVERSALIST SOCIETY v. BOLAND.
(Supreme Judicial Court of aiassachusetts, 1892. 155 Mass. 171, 29 N. E. 524,
15 L. R. A. 231.)
Bill in equity^ filed, in the Superior Court, for the specific perform-
ance of an agreement by the .plaintiff to sell and by the defendant to
purchase land. The case was submitted to the Superior Court, and,
4 A portion of the opinion, in whicli tlie court reviews a number of cases, la
omitted.
5 Prindle v. Orphans Home, 153 Iowa, 2.34. 133 N. W. 106 (1911), ace.
But see Wilsob v. Terry, 130 ]\Iich. 73, 89 N. W. 566 (1902) ; Jacobs v. All
Persons, etc., 12 Cal. App. 163, 106 Pac. 896 (1909) ; Midgett v. Meekins, 160 N.
C. 42, 75 S. E. 728 (1912) ; Johnson v. Barden, 86 Vt. 19, S3 Atl. 721, Ann. Cas.
1915A, 1243 (1912) ; Wood v. Logue, 107 Iowa, 436, 149 N. W. 613 (1914) ; Ken-
ner v. State (Arlv.) ISO S. W. 492 (1915).
Lands were conveyed to X., "his heirs and assi,?ns forever, subject to the
limitations hereinafter expressed as to part thereof," etc. In the habendum
the estate of the grantee as to one-half Avas limited "to his own use, benefit,
and behoof during his natural life, and at his decease * * * to descend to
and the title thereof vested in the children" of said X. by him lawfully begot-
ten. The question was as to the estate acquired by X. Tyler v. Moore, 42 Pa.
374 (1862).
By deed lands were conveyed to M., "her children and assigns forever," with
habendum to M., "her heirs and assigns forever." Held that M. took a fee
simple, and not as tenant in common with her children. Bines v. Mansfield,
96 Mo. 394, 9 S. W. 798 (1888). Cf. Karclmer v. Hoy, 151 Pa. 383, 25 Atl. 20
(1892) ; Morton v. Babb, 251 111. 4S8, 96 N. E. 279 (1911).
As to the propriety of declaring trusts in the habendum, see Nightingale v.
Hidden, 7 R. I. 115 (1S62).
Ch. 5) ESTATES CREATED 553
after judgment for the plaintiff, to this court, on appeal, on an agreed
statement of facts, and was as follows :
On April 9, 1842, Joseph D. Clark and twenty-five or thirty other
persons formed the plaintiff society, with a constitution which adopted
as the basis of its religious faith the profession of belief accepted by
the General Convention of the Universalists at its session at Win-
chester, New Hampshire, in 1803, and provided for three trustees to
be the executive power of the society and to see that all votes of the
society were carried out. On April 3, 1854, Clark for the expressed
consideration of nine hundred dollars conveyed the land in question
by a deed containing the usual covenants to the plaintiff society, "to
have and to hold to the said First Universalist Society and their as-
signs, so long as said real estate shall by said society or its assigns be
devoted to the uses, interests, and support of those doctrines of the
Christian religion embraced in the Confession of Faith adopted by the
General Convention of Universalists held at Winchester, New Hamp-
shire, in the year eighteen hundred and three. And when said real
'estate shall by said society or its assigns be diverted from the uses, in-
terests, and support aforesaid to any other interests, uses, or purposes
than as aforesaid, then the title of said society or its assigns in the
same shall forever cease, and be forever vested in the following named
persons, and such persons shall be the legal representatives of any of
such persons at the time the same so vests as aforesaid in the following
undivided parts and proportions, to wit: to Stephen M. Whipple
^*°/iooo, Alanson Cady ^^''/looo, John F. Arnold ^^Yiooo, Joseph D.
Clark ^"/looo. [Here followed the names of thirty-seven others after
each of which was placed a fraction in thousandths.] To have and to
hold the above granted premises, with the privileges and appurtenances
thereto belonging, to the said grantees, their heirs and assigns, to them
and their use and behoof forever, as aforesaid."
On December 16, 1885, Clark executed and delivered to the plaintiff
society a quitclaim deed of the same premises, "intending hereby to
vest in said society absolutely and in fee simple the title to said prem-
ises free and discharged of all the conditions, restrictions, and re-
straints as to the uses, interests, and purposes for which said premises
are to be used and enjoyed by said society, as set forth in my said deed
of April 3, 1854, and to enable said society to sell, lease, or otherwise
use and dispose of said premises to all intents and purposes as if no
restraints or contingent interests had been created by my said deed or
referred to therein."
Upon the land so conveyed to the plaintiff a church was erected,
which from the time of its erection to the present time has .been occu-
pied and used for religious worship by the plaintiff society, without
any change in the profession of faith mentioned in the deed of April
3, 1854, or in its constitution. The agreement in question was made
by the parties on April 20, 1891, but the defendant, upon the tender of
a deed to him from the plaintiff, refused to cai*ry it out, on the ground.
554 DERIVATIVE TITLES (Part 2
among others, that the plaintiff society never was seised in fee simple,
but at most obtained only a qualified or conditional fee, and could not
convey a good and clear title.
The parties having ascertained that between April 3, 1854, and
December 16, 1885, C[ark had gone into bankruptcy, the plaintiff waiv-
ed any rights which it might have under the deed of December 16,
1885, and relied for its title upon the deed dated April 3, 1854.
Ar.LEX, J. The limitation over, which is contained in the deed of
Clark to the plaintiff in 1854, is void for remoteness. Wells v. Heath,
10 Gray, 17, 25, 26; Brattle Square Church v. Grant, 3 Gray, 142,
152, 63 Am. Dec. 72}i. The fact that the grantor designated himself
as one of the persons amongst many others to take under this limi-
tation, does not have, the effect to make the limitation valid. He was
to take with the rest, and stand upon the same footing with them.
Where there is an invalid limitation over, the general rule is that
the preceding estate is to stand, unaffected by the void limitation. The
estate becomes vested in the first taker, according to the terms in which
it was granted or devised. Brattle Square Church v. Grant, 3 Grav,
142, 156, 157, 63 Am. Dec. 725; Sears v. Russell, 8 Gray, 86, 100;
Fosdick v. Fosdick, 6 Allen, 41, 43; Lovering v. Worthington, 106
Mass. 86, 88; Lewis on Perpetuity, 657. There may be instances
in which a void limitation might be referred to for the purpose of giv-
ing a construction to the language used in making the prior gift, pro-
vided any aid could be gained thereby. In the present case, we dc
not see that any such aid can be gained. The estate given to the first
taker does not depend at all upon the validity or invalidity of the
limitation over, and the construction of the language used is not
aided by a reference thereto.
The grant to the plaintiff was to have and to hold, etc., "so long
as said real estate shall by said society or its assigns be devoted to
the uses, interests, and support of those doctrines of the Christian
religion," as specified. "And when said real estate shall by said
society or its assigns be diverted from the uses, interests, and support
aforesaid to any other interests, uses, or purposes than as aforesaid,
then the title of said society or its assigns in the same shall forever
cease, and be forever vested in the following named persons," etc.
These words do not grant an absolute fee, nor an estate on condi-^
tion, but an estate which is to continue till the happening of a certain
event, and then to ceas_e. That event may happen at any time, or
it may never happen. Because the estate may last forever, it is a
fee. Because it may end on the happening of the event, it is what
is usually called a determinable or qualified fee. The grant was not
upon a condition subsequent, and no re-entry would be necessary;
but by the terms of the grant the estate was to continue so long as
the real estate should be devoted to the specified uses, and when it
should no longer be so devoted, then the estate would cease and deter-
mine by its own limitation. Numerous illustrations of words proper to
<3h. 5) ESTATES CREATED 555
create such qualified or determinable fees are to be found in the books,
one of which, as old as Walsingham's Case, 2 Plowd. 557, is "as long
as the church of St. Paul shall stand." Brattle Square Church v. Grant,
3 Gray, 142, 147, 63 Am. Dec. 725; Easterbrooks v. Tillinghast, 5
Gray, 17; Ashley v. Warner, 11 Gray, 43; Attorney General v. Mer-
rimack Manuf. Co., 14 Gray, 586, 612; Fifty Associates v. Howiand,
11 Mete. 99, 102; Owen v. Field, 102 Mass. 90, 105; 1 Washb. Real
Prop. (3d Ed.) 79; 2 Washb. Real Prop. (3d Ed.) 20, 21 ; 4 Kent,
Com. 126, 127, 132, note; 2 Crabb, Real Prop. §§ 2135, 2136. 2 Flint.
Real Prop. 230, 232; Shep. Touchst. 121, 125.
A question or doubt, however, has arisen, though not urged by
counsel in this case, whether after all there is now any such estate
as a qualified or determinable fee, or whether this form of estate
was done away with by the statute Quia Emptores. See Gray, Rule
against Perpetuities, §§ 31-40, where the question is discussed and au-
thorities are cited. We have considered this question, and whatever
may be the true solution of it in England, where the doctrine of tenure
still has some significance, we think the existence of such an estate
as a qualified or determinable fee must be recognized in this country,
and such is the general consensus of opinion of courts and text writ-
ers. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 168; Leonard
V. Burr, 18 N. Y. 96 ; Gillespie v. Broas, 23 Barb. (N. Y.) 370 ; State
V. Brown, 27 N. J. Law, 13; Henderson v. Hunter, 59 Pa. 335 ; Wig-
gins Ferry Co. v. Ohio & Mississippi Railway, 94 111. 83, 93; 1
Washb. Real Prop. (3d Ed.) 76-78; 4 Kent, Com. 9, 10, 129. See,
also, of English works in addition to citations above, Shep. Touchst.
101; 2 Bl. Com. 109, 154, 155; 1 Cruise Dig. tit. 1, §§ 72-76; 2
Flint. Real Prop. 136-138; 1 Prest. Est. 431, 441; Challis, Real
Prop. 197-208.
Since the estate of the plaintiflf may determine, and since there is
no vaHd limitation over, it follows that there is a possibility of re-
verter in the original grantor, Claik. This is similar to, though not
quite identical with, the possibility of reverter which remains in the
grantor of land upon a condition subsequent. The exact nature
and incidents of this right need not now be discussed, l^ut it repre-
sents whatever is not conveyed by the deed, and it is the possibility
that the land may revert to the grantor or his heirs when the granted
estate determines. Challis, Real Prop. 31, 63-65, 153, 174, 198, 200,
212; 1 Prest. Est. 431, 471; Newis v. Lark, 2 Plowd. 403, 413;
Shep. Touchst. 120; 2 Washb. Real Prop. (3d Ed.) 20, 579: 4 Kent,
Com. 10; Smith v. Harrington, 4 Allen, 566, 567; Attorney General v.
Merrimack Manuf. Co., 14 Gray, 586, 612; Brattle Square Church v.
Grant, 3 Gray, 142, 147-150, 63 Am. Dec. 725; Owen v. Field, 102
Mass. 90, 105, 106; Gillespie v. Broas, 23 Barb. (N. Y.) 370; Gray,
Rule against Perpetuities, §§ 33, 34, 39, and cases cited.
Clark's possibility of reverter is not invalid for remoteness. It has
been expressly held by this court, that such possibility of reverter
556 DERIVATIVE TITLES (Part 2
upon breach of a condition subsequent is not within the rule against
perpetuities. Tobey v. Moore, 130 Mass. 448; French v. Old South
Society, 106 Mass. 479. If there is any distinction in this respect be-
tween such possibility of reverter and that which arises upon the de-
termination of a qualified fee, it would seem to be in favor of the
latter. But they should be governed by the same rule. If one is
not held void for remoteness, the other should not be. The very
many cases cited in Gray, Rule against Perpetuities, §§ 305-312, show
conclusively that the general understanding of courts and of the pro-
fession in America has been that the rule as to remoteness does not ap-
ply; though the learned author thinks this view erroneous in prin-
ciple.
We have no occasion to consider whether the possibility of re-
verter would or would not pass to an assignee in bankruptcy or in-
solvency, because the plaintiff expressly waived any right it might
have under the second deed from Clark, and we have not, therefore,
felt at liberty to consider the second deed, and have been confined to
the construction and effect of the first deed. See Rice v. Boston &
•Worcester Railroad, 12 Allen, 141. This being so, the plaintiff's titk
must be deemed imperfect, and the entry must be: Bill dismissed.
-ff-v
AU
SECTION 2.— ESTATES IN FEE TAIi;
STATUTE DE DONIS CONDITIONALIBUS.
First, concerning lands that many times are given upon condition,
that is, to wit, where an}'- giveth his land to any man and his wife, and
to the heirs begotten of the bodies of the same man and his wife,
with such condition expressed that if the same man and his wife die
without heir of their bodies between them begotten, the land so given
shall revert to the giver or his heir; in case also where one giveth
lands in free marriage, which gift hath a condition annexed, though
it be not expressed in the deed of gift, which is this, that if the hus-
band and wife die without heir of their bodies begotten, the land so
gi,ven shall revert to the giver or his heir ; in case also where one giveth
land to another and the heirs of his body issuing, it seemed very hard
and yet seemeth to the givers and their heirs, that their will being
expressed in the gift was not heretofore nor yet is observed. In all the
cases aforesaid after issue begotten and born between them, to whom
the lands were given under such condition, heretofore such feoffees
had power to aliene the land so given, and to disinherit their issue
of the land, contrary to the minds of the givers, and contrary to the
form expressed in the gift. And further, when the issue of such
Ch. 5) ESTATES CREATED 557
feoffee is failing, the land so given ought to return to the giver or his
heir by form of gift expressed in the deed, though the issue, if any
were, had died; yet by the deed and feoffment of them, to whom
land was so given upon condition, the donors have heretofore been
barred of their reversion of the same tenements which was directly
repugnant to the form of the gift : wherefore our lord the king, per-
ceiving how necessary and expedient it should be to provide remedy
in the aforesaid cases, hath ordained, that the will of the giver ac-
cording to the form in the deed of gift manifestly expressed shall
be from henceforth observed, so that they to whom the land was
^iven under such condition shcill have no power to aliene the land so
given, but that it shall remain unto the issue of them to whom it was
given after their death, or shall revert unto the giver or his heirs if
issue fail, either by reason that there is no issue at all, or if any issue
be, it fail by death.-the.,heir„of such issue failing. . Neither shall the
second husband of any such woman from henceforth have anything
in the land so given upon condition after the death of his wife, by
the law of England, nor the issue of the second husband and wife
shall succeed in the inheritance, but immediately after the death of
the husband and wife, to whom the land was so given, it shall come
to their issue or return unto the giver or his heir as before is said.
And forasmuch as in a new case new remedy must be provided this
manner of writ shall be granted to the party that will purchase it.
* * * The writ whereby the giver shall recover when issue fail-
eth is common enough in the chancery. And it is to wit that this
statute shall hold place touching alienation of land contrary to the form
of gift hereafter to be made, and shall not extend to gifts made before.
And if a fine be levied hereafter upon such lands it shall be void in
the law, neither shall the heirs or such as the reversion belongeth unto,
though they be of full age, within England, and out of prison, need
to make their claim.
Westm. II, c. 1, 13 Edw. I, A. D. 1285.
LITTLETON'S TENURES.
Tenajitjn fee_ tail is by force of the statute of W. 2, cap. 1, for be-
fore the said statute, all inheritances were fee simple ; for all the
gifts which be specified in that statute were fee simple conditional at
the common law, as appeareth by the rehearsal of the same statute.
And now by this statute, tenant in tail is in two manners, that is to
say, tenant in tail general, and tenant in tail special.
Section 13.
558 DERIVATIVE TITLES (Part 2
COKE UPON LITTLETON.
"Before the said statute all inheritances were fee simple." Here
fee simple is taken in his large sense, including as well conditional
or qualified, as absolute, to distinguish them from estates in tail since
the said statute. Before which statute of donis conditionalibus, if
land had been given to a man, and to the heirs males of his body, the
having of an issue female had been no performance of the condition ;
but if he had issue male, and died, and the issue male had inherited,
yet he had not had a fee simple absolute; for if he had died without
issue male, the donor should have entered as in his reverter. By hav-
ing of issue, the condition was performed for three purposes : First,
to alien : Secondly, to forfeit : Thirdly, to charge with rent, common,
or the like. But the course of descent was not altered by having issue ;
for if the donee had issue and died, and the land had descended to his
issue, yet if that issue had died (without any alienation made) without
issue, his collateral heir should not have inherited, because he was
not within the form of the gift, viz. heir of the body of the donee.
Lands were given before the statute in frank-marriage, and the donees
had issue and died, and after the issue died without issue; it was
adjudged, that his collateral issue shall not inherit, but the donor shall
re-enter. So note, that the heir in tail had no fee simple absolute at
the common law, though there, weje^ divers descents,
If lands had been given to a man and to his heirs males of his body,
and he had issue two sons, and the eldest had issue a daughter, the
daughter was not inheritable to the fee simple, but the younger son
per formam doni. And so if land had been given at the common law
to a man and the heirs females of his body, and he had issue a son and
a daughter, and died, the daughter should have inherited this fee
simple at the common law ; for the statute of donis conditionalibus
createth no estate tail, but of such an estate as was fee simple at the
common law, and it is descendable in such form as it was at the com-
mon law. If the donee in tail had issue before the statute, and the is-
sue had died without issue, the alienation of the donee at the common
law, having no issue at that time, had not barred the donor.
If donee in tail at the common law had aliened before any issue
had, and after had issue, this alienation had barred the issue be-
cause he claimed a fee simple; yet if that issue had died without issue,
the donor might re-enter, for that he aliened before any issue, at
what time he had no power to alien to bar the possibility of the donor.
In gifts in tail these words (heirs) are as necessary, as in feoffment^
and grants ; for seeing every estate tail was a fee simple at the com-
mon law, and at the common law no fee simple could be in feoffments
and grants without these words (heirs), and that an estate in tail is
but a cut or restrained fee, it followeth, that in gifts in a man's life-
time no estate can be created without these words (heirs), unless it
Ch. 5) ESTATES CREATED 559
be in case of frank-marriage, as hereafter shall be shewed. And where
Littleton saith (heirs), yet heir in the singular number in a special
case may create an estate tail, as appeareth by 39 Ass. p. 20. hereafter
mentioned. And >et if a man give lands to A. et hseredibus de corpore
suo, the remainder to B. in forma prsedicta, this is a good estate tail to
B. for that in forma prasdicta do include the other. If a man letteth
lands to A. for life, the remainder to B. in tail, the remainder to C.
in forma preedicta, this remainder is void for the uncertainty. But if
the remainder had been, the remainder to C. in eadem forma, this had
been a good estate tail ; for idem semper proximo antecedenti ref ertur.
If a man give lands or tenements to a man, et semini suo, or exitibus
vel prolibus de corpore suo, to a man, and to his seed, or to the issues
or children of his body, he hath but an estate for life; for albeit that
the statute provideth. that voluntas donatoris secundum forman in
charta doni sui manifeste expressam de caetero observetur, yet that
will and intent must agree with the rules of law. And of this opinion
was our author himself, as it appeared in his learned reading afore-
mentioned upon this statute, where he holdeth, if a man giveth land to
a man et exitibus de corpore suo legitime procreatis, or semini suo, he
hath but an estate for life, for that there wanteth words of inheritance.
"Of his body." These words are not so strictly required but that
they may be expressed by words that amount to as much : for the ex-
ample that the statute of W. 2 putteth hath not these words (de cor-
pore) but these words (haeredibus) viz. : Cum aliquis dat terram suam
alicui viro et ejus uxori et hseredibus de ipsis viro et muliere procreatis.
If lands be given to B. et hseredibus quos idem B. de prima uxore sua
legitime procrearet, this is a good estate in especial tail (albeit he hath
no wife at that time) without these words (de corpore). So it is if
lands be given to a man, and to his heirs, which he shall beget of his
wife, or to a man et hseredibus de carne sua, or to a man et haeredibus
de se. In all these cases these be good estates in tail, and yet these
words de corpore are omitted.
It is holden by some opinions, that if there be grandfather, father
and son, and lands are given to the grandfather, and to his heirs be-
gotten by the father, the father dieth, the grandfather dieth, the son
is in as heir to the grandfather begotten upon the body of his father,
and the wife of the grandfather in that case shall be endowed. But
certain it is, that in some cases one shall have the land per formam
doni that is not issue of the body of the donee, which see Section 30.
"Begotten." This word may in many cases be omitted or expressed
by the like, and yet the estate in tail is good : as hseredibus de carne,
hseredibus de se, hsered' quos sibi contigerit, &c. as is aforesaid; and
where the word of Littleton is, ingendered or begotten, procreatis, yet
if the word be procreandis, or quos procreaverit, the estate in tail is
good ; and as procreatis shall extend to the issues begotten afterwards,
so procreandis shall extend to the issues begotten before.
Co. Litt. 19a, 20a, b.
560
DERIVATIVE TITLES (Part 2
EWING V. NESBITT.
(Supreme Court of Kansas, 1913. SS Kan. 70S, 129 Pac. 1131.)
BuRCH, J. In the year 1893 John Ewing made his will. The fourth
paragraph reads as follows :
"Fourth: I will and bequeath to my daughter, Mary A. Nesbitt, nee
Ewing, and to the heirs of her body, the south half (y^) of the north-
west quarter (i/4) of section No. twenty-one (21), township thirteen
(13), of range twenty-four (24), in Johnson county, Kansas."
Devises using the same language were made to the testator's other
children, four in number. Besides these the will contained four other
devises, which were expressly stated to be "free and clear of all en-
tailment," thus clearly indicating the intention of the testator to cre-
ate estates tail by the phraseology employed in paragraph 4 and those
like it In 1895 John Ewing died, leaving as his heirs the five chil-
dren who were the beneficiaries of his will. The will was duly pro-
bated, the estate was administered and closed, and Mary A. Nesbitt
entered into possession of the tract of land devised to her. In the
year J 909 she died without having borne children and was survived by
her husband, William J. Nesbitt, who continued in possession of the
land. Soon after Mary A. Nesbitt's death her brothers and sisters
commenced an action of ejectment, and for rents and profits, against
William J. Nesbitt, claiming to be owners in fee simple. He answered
claiming a one-fifth interest in the land and praying for partition.
Judgment was rendered for the defendant and the plaintiffs appeal^
The will contained a residuary clause in which the testator gave to
his children surviving him, share and share alike, "all other property,
goods, chattels, moneys, stocks, credits, and effects" of which he might
die seized. The defendant claims that his wife was the donee of an
estate tail ; that the donor retained a reversionary interest in fee sim-
ple expectant upon the estate tail; that if, by virtue of the residuary
clause of the will, this reversion was not disposed of it descended,
upon the death of the donor, to his heirs, one of whom was his daugh-
ter, Mary A. Nesbitt; and that upon her death the defendant, as her
surviving husbajd,, took her ^.hare^af the fee.^which was gneifif tli^.. If,
however, the residuary clause of the will was effectual to devise the
reversion to the testator's children, Mary A. Nesbitt took a one-fifth
interest which, upon her death, descended to the defendant. Under
either theory the defendant's claim to a one-fifth interest in the land
is valid if the law of tliis state recognizes estates tail as they existed
under the common law of England at the time of the colonization of
this country.
Under the early common law a grant to a man and the heirs of his
body was a grant of a fee on condition that he had heirs of his body.
The fee so granted was designated a conditional fee. If the donee
Ch. 5) ESTATES CREATED 561
had no heirs of his body, the condition was not performed arid the land
reverted to the donor. If heirs of the donee's body were bom, the
condition was regarded as performed and the donee was at liberty to
make a conveyance which would bar him, his issue, and the donor's
reversion. He could likewise charge the land with rents and encum-
brances which would bind his issue, and the estate was forfeitable
for his treason. If the condition were performed but the donee made
no conveyance, the land descended, upon his death, to the specified
issue, who were at liberty to convey. If they made no conveyance
the land reverted to the donor. If the condition were performed but
the issue died, and the donee then died without having made a con-
veyance, the land reverted to the donor. In order to_barJ:he pos-
sibility of reverter to the donor and to restore the descent to its or- •
dinary course under the common law, donees of conditional fees were
in the habit of making conveyances as soon as issue was born and
taking back warranty deeds. To stop this practice, which evaded the
condition and defeated the intention of the donor, the nobility of the
realm, who were desirous of perpetuating family possessions, procured
the passage of the statute of Westminster II, known as the statute y_
_^de donis conditionalibus." 13 Edw. I, c. 1, June 28, 1285. This. "^^
statute took away, the power of alienation and declared that the will of
the donor, plainly expressed, should be observed, and that tenements
givelrTto a man and the heirs of his body should go to his issue, if there
were any, and if not should revert to the donor. The" judges inter-
preted this statute to mean that the donee no longer took a conditional
fee capable of being disposed of as soon as issue was bom, but that
he took a particular estate, denominated an estate tail, and that in-
stead of a possibility of reverter only remaining in the donor, he had
a reversion in fee simple expectant upon the failure of issue. Some
of the social consequences of this statute are thus described by Black-
stone :
"Children grew disobedient when they knew they could not be set
aside ; farmers were ousted of their leases made by tenants in tail ; for
if such leases had been valid, then under colour of long leases the issue
might have been virtually disinherited ; creditors were defrauded of
their debts ; for, if a tenant in tail could have charged his estate with
their payment, he might also have defeated his issue, by mortgaging
it for as much as it was worth ; innumerable latent entails were pro-
duced to deprive purchasers of the lands they had fairly bought; of
suits in consequence of which our ancient books are full : and treasons
were encouraged, as estates-tail were not liable to forefeiture, longer
than for the tenant's life. So that they were justly branded, as the
source of new contentions, and mischiefs unknown to the common
law; and almost universally considered as the common grievance of
the realm." 2 Commentaries, *116.
Notwithstanding these mischiefs, the statute forms one of the fun-
Aig.Prop. — 36
5G2 DERIVATIVE TITLES (Part 2
damental institutes of the land law of England which three and a quar-
ter centuries later was transplanted in the New World.
Before the settlement at Jamestown, in the fourth year of James I
(1607), a number of statutes had been passed whereby the privileges
attending estates tail were much abridged They were made forfeit-
able for treason. 26 Henry VIII, c. 13. Certain leases by the tenant
in tail not prejudicial to the issue were allowed to be good in law. 32
Henry VIII, c. 28. The statute of fines (4 Henry VII, c. 24) was
construed to permit the tenant in tail and his heirs to be barred by levy-
ing a fine {32 Henry VIII, c. 36). Such estates were chargeable with
the payment of certain debts due the king (33 Henry VIII, c. 39),
and by construction of the statute, 43 Eliz. c. 4, an appointment to
charitable uses by a tenant in tail was held to be good, 2 Bl. Com. 117
et seq. The most serjous blow, however, to the evils fostered by es-
tates tail under the statute de donis was struck by a bold piece of
judicial legislation. In Taltatum's case, reported in Year Book. 12
Edw. IV, 19 (1472), the judges, upon consultation, held that a com-
mon recovery suffered by a tenant in tail accomplished the complete
destruction of the estate tail.. This mode of barring estates tail is
thus described in 1 Washburn on Real Property (6th Ed.) § 186:
"This was a fictitious suit brought in the name of the person who
was to purchase the estate, against the tenant in tail who was willing
to convey. The tenant, instead of resisting this claim himself, under
the pretence that he had acquired his title of some third person who
had warranted it, vouched in, or, by a process from the court, called
his third person, technically the vouchee, to come in and defend the
title. The vouchee came in as one of the dramatis personce of this
judicial farce, and then without saying a word disappeared and was
defaulted. It was a principle of the feudal law adopted thence by
the common law, that if a man conveyed lands with a warranty, and
the grantee lost his estate by eviction by one having a better title, he
should give his warrantee lands of equal value by way of recompense.
And as it would be too barefaced to cut off the rights of reversion as
well as of the issue in tail, by a judgment between the tenant and
a stranger, it was gravely adjudged, 1st, that the claimant should have
the land as having the better title to it ; and 2d, that the tenant should
have judgment against his vouchee to recover lands of equal value on
the ground that he was warrantor, and thus, theoretically, nobody was
harmed. If the issue in tail or the reversioner, or remainder-man,
lost that specific estate, he was to have one of equal value through
this judgment in favor of the tenant in tail, whereas in fact the
vouchee was an irresponsible man, and it was never expected that he
was anything more than a dummy in the game. The result of this,
which Blackstone calls *a kind of pia fraus to elude the statute De
Donis,' was that the lands passed from the tenant in tail to the claimant
in fee simple, free from the claims of reversioner, remainder-man, or
Ch. 5) • ESTATES CREATED 5G3
issue in tail, and he either paid the tenant for it as a purchaser, or
conveyed it back to him again in fee-simple."
The precedent of fictitious suits as means of acquiring or conveying
property was found in the Roman law, and the practice of resorting to
them was supposedly introduced in England by the clergy to evade the
statute of mortmain. Spence's Equitable Jurisdiction of the Court of
Chancery, p. 141, note. The solemn piece of jugglery already described
later became more involved.
"Complex, however, as the proceedings above related may appear,
the ordinary forms of a common recovery in later times were more
complicated still ; for it was found expedient not to bring the collusive
action against the tenant in tail himself, but that he should- come in as
one vouched to warranty. The lands were, therefore, in the first place
conveyed, by a deed called the recovery deed, to a person against whom
the action was to be brought, and who was called the tenant to the
praecipe or writ. The proceedings then took place in the Court of
Common Pleas, which had an exclusive jurisdiction in all real actions.
A regular writ was issued against the tenant to the prrecipe by another
person, called the demandant; the tenant in tail was then vouched to
warranty by the tenant to the praecipe. The tenant in tail, on being
vouched, then vouched to warranty in the same way the crier of the
Court, who was called the common vouchee. The demandant then
craved leave to imparl or confer with the last vouchee in private, which
was granted by the Court; and the vouchee, having thus got out of
Court, did not return; in consequence of which judgment Vvas given
in the manner before mentioned, on which a regular writ vyas directed
to the sheriff to put the demandant into possession." Williams on
Real Property (17th Ed.) p. 108.
In all cases there was an agreement or understanding that the person
who acquired an estate tail by means of a common recovery should
pay for it, or convey it to the original tenant in tail in fee simple, or
dispose of it as such tenant might direct. The result was that estates
tail and all remainders over and the reversion were effectually barred
As Blackstone said, by long acquiescence and use, these recoveries came
to be looked upon as a legal mode of conveyance by which a tenant in
tail might dispose of his land. 2 Com. *117. This rightof convey-
ance became, in contemplation of the law, an inherent and j^nseparable~
incident of an estate tail and covenants and conditions attempting to
^e^train the exercise of the tight were held to be void. 1 Washburn
on Real Property (6th Ed.) § 188. The same purpose was accomplished
by the equally fictitious proceeding of fine.
In volume 4 of his Commentaries (14th Ed.) p. *14, Chancellor Kent
said :
"Estates tail were introduced into this country with the other parts
of the English jurisprudence, and they subsisted in full force before
our Revolution, subject equally to the power of being barred by a fine
or common recovery."
564 DERIVATIVE TITLES (Part 2
These estates are now very generally changed by legislation into fee
simples, or reversionary estates in fee simple, or may be converted intq_
fee simples by ordinary conve3^ance, 2 Bl. Com. 119 (Cooky's note).
In the pages following the above quotation from Kent much of this
legislation is referred to.
The territorial legislature of 1855 passed an elaborate act relating
to conveyances. Stat, of Kan. Terr, 1855, ch. 26. Section 5 of this
act reads as follows :
"That from and after the passage of this act, where any conveyance
or devise shall be made whereby the grantee or devisee shall become
seized in law or equity of such estate, in any lands or tenements, as
under the statute of the tliirteenth of Edward the first, (called the stat-
ute of entails) would have been held an estate in fee tail, every such
conveyance or devise shall vest an estate for life only in such grantee
or devisee, who shall possess and have the same power over and right
in such premises, and no other, as a tenant for life thereof would have
by law ; and upon the death of such grantee or devisee, the said lands
and tenements shall go and be vested in the children of such grantee
or devisee, equally to be divided between them as tenants in common,
in fee ; and if there be only one child, then to that one, in fee ; and if
any child be dead, the part which would have come to him or her shall
go to his or her issue ; and if there be no issue, then to his or her heirs."
This, of course, constituted a deliberate legislative modification of
the common law relating to estates tail. In 1859 the territorial legis-
lature completely revised the act of 1855 relating to conveyances, mak-
ing radical changes in its substance and content. Laws 1859, ch. 30.
The subject matter of the section quoted was entirely omitted and
nothing whatever was substituted for it either in tlie revision or in any
other statute. The result was that section 5 was repealed by implica-
tion, and since the legislature had its attention specially directed to es-
tates tail by that section the purpose evidently was to restore the com-
mon law on the subject. This intention is made more apparent by
the passage of the following act at the same session :
"The common law of England and all statutes and acts of Parlia-
ment in aid thereof, made prior to tlie fourth year of James the First,
and which are of a general nature, not local to that kingdom and not
repugnant to or inconsistent with the constitution of the United States
and the act entitled 'An act to organize the Territory of Nebraska and
Kansas,' or any statute law which may from time to time be made
or passed by this or any subsequent Legislative Assembly of the Ter-
ritory of Kansas, shall be the rule of action and decision in this Ter-
ritory, any law, custom or usage to the contrary notwithstanding."
Laws 1859, ch. 121, § 1.
The constitution adopted in July, 1859, under which the state was
admitted to the Union on January 31, 1861, contains nothing which
bears upon the subject either directly or remotely, and the legislature
has not since dealt with it. Nothing is to be found in the acts relatins:
Ch. 5) ESTATES CREATED 565
to conveyances, descents and distributions, or wills, incompatible with
the existence of such estates, and in their unfettered form such estates
are not out of harmony with the conditions and wants of tlie people of
Kansas. On the other hand, they exactly meet the requirements of tes-
tators in the situation of John Ewing. He desired to give his daugh-
ter an estate for life, in order to secure to her a home and some meas-
ure of comfort and welfare while she lived. After that he desired that
the remainder should go to her children in fee. But he did not desire
that his_^9n-in-la_w should take the whole gift should she die childless,.to
be enjoyed by him and perhaps a strange second wife and their chi]-
dren. The court knows of no reason in law, morals, or public policy
why these sentiments should not be respected, and they were clearly
and fully expressed by tlie language of the will, interpreted by the
common law. The overweening propensity to perpetuate family name
and family property which made estates tail so obnoxious in the middle
ages is fairly curbed by the right of a tenant in tail to convert his ten-
ancy into a fee simple, and is not a menace to the general welfare of
the people of this state ; and it will be remembered that this right be-
came one of the characteristics of the estate. Fines and recoveries,
however, are not adapted to any of our needs, are inconsistent with the
code of civil procedure and consequently can not be resorted to, as por-
tions of the common law, in aid of the general statutes of this state.
Gen. Stat. 1909, § 9850. The effect of these indirect, fictitious and
operose proceedings was merely that of a deed of record, and the same
end may now be accomplished by an ordinary conveyance. The fiction
and the form alone are obsolete. The substance of the proceeding — a
conveyance — and the essential character of the estate tail — the right to
convert the estate into a fee simple by a conveyance — are preserved.
If, therefore, Mary A. Nesbitt had chosen, in her lifetime, to make_a
conveyance of the land devised to her, she would thereby have barred
herself, her issue, born and unborn, and her father's reversion.
While the mere possibility of a reverter such as attended conditional
gifts under the ancient common law is not a subject of disposal by will,
reversions in fee under the statute de donis may be devised. The re-
sult is that Mary A. Nesbitt was given by the will an estate tail in the
land in controversy. She also took by virtue of the residuary clause of
the will, one-fifth of the reversion in fee expectant upon her death
without issue. Upon_ her__death this interest passed to her husband,
the, defend ant. ■
The judgment of the district court is affirmed.'
6 Estates in fee tail are recognized in Delaware as still subsisting. In Haz-
zard ^. Hazzard (Del. Super.) 94 Atl. 905 (1915), it was held that upon a levy
and sale under an execution against a tenant in tail the purchaser acquired a
fee simple ; the statute (Rev. Code Del. 1915, § 4365) providing that such pur-
chaser should acquii'e such estate as the judgment debtor might convey. By
section 3235, Rev. Code 1915, it is provided that a person having an estate tail
shall have power to alien the lands in fee simple or for other less estate by
deed. See, however, the same case reversed in 97 Atl. 233 (1916).
5CG • DERIVATIVE TITLES (Tart 2
DUNGAN V. KLINE.
(Supreme Court of Ohio, 1010. 81 Oliio St. 371, 90 N. E. 93S.)
On October 27, 1906. Etta Kline commenced an action in tlie court
of common pleas of Pickaway county against the plaintiff in error,
Harriet Dungan and others, asking for the partition ot certain real
estate in her petition described. Thereafter, to-\vit, on November 22,
1906, Adolph G. Wilson also brought suit in said court of common
pleas against said Harriet Dungan and others, asking partition of the
same lands. On motion these cases were consolidated and tried as one
case. The lands of which partition was asked consisted of three tracts,
two of which, by the will of Titus Dungan, had been devised to "Eliza-
beth Wilson and the heirs of her body," and the other tract had been
devised to said "Elizabeth Wilson and the heirs of her body" by one
]\Iary Ann Kirkendall. The devisors Titus Dungan and Mary Ann
Kirkendall both died prior to June 18, 1883, and the will of each had
been duly admitted to probate prior to that time. The devisee Eliza-
beth Wilson had seven children, among whom were two sons, William
T. and George H. Wilson. William T. Wilson died on January 16,
1887, his mother Elizabeth Wilson surviving him. She died October 27,
1906. On July 4, 1878, during the lifetime of his mother, William T.
Wilson deeded to one George Dungan an undivided one-seventh inter-
est in the premises which had been devised to Elizabeth Wilson and
the heirs of her body, and thereafter said George Dungan deeded the
same to the plaintiff in error, Harriet Dungan. On June 18, 1883,
George H. Wilson, his mother being then in full life, also deeded an
undivided one-seventh interest in said lands to George Dungan, which
interest was subsequently deeded by said George Dungan to one John
Schleyer and by the latter to Harriet Dungan, the plaintiff in error.
George H. Wilson died in October, 1896, ten years prior to the death
of his mother Elizabeth Wilson. The deeds of William T. and George
H. Wilson, although containing no covenants of general warranty, con-
tained recitals that would perhaps estop each of them, if living, from
asserting title to the property therein described.
The controversy in this case is between the children of William JT.
and George H. Wilson on the one side, and Harriet Dungan the plajn-
tiff in error on the other side. The children of William T. and
George H. Wilson claim to be the owners of, and entitled to such in-
terest in the real estate to be partitioned, as would have descended
to their fathers WilHam T. and George H. Wilson respectively, if they
had survived their mother Elizabeth Wilson, the first donee in tail.-
Harriet Dungan, plaintiff' in error, claims title to the same premises
under arid by virtue of the alleged conveyances made as aforesaid by
said William T. and George H. Wilson in their lifetime, and she fur-
ther contends that the children of the said William T. and George .H.
Wilson, because of the recitals in said conveyances, are now estopped
from claiming any interest in or title to the premises sought to be par-
Ch. 5) ESTATES CREATED 5G7
titioned. In both the court of common pleas and the circuit court —
to which latter court the case was taken on appeal — this claim of Har-
riet Dungan was determined against her. She now prosecutes error
to this court asking a reversal of the judgment of the circuit court.
Crew, J.^ If the estate tail devised to Elizabeth Wilson was not
alienable by tlie issue in tail during her life, subject to her tenancy
therein, then the grants made by William T. Wilson and George H.
Wilson, who both died before their mother, were wholly void and no
estoppel thereunder can be invoked against their children. Therefore
the decision of this case, upon the facts as presented by the record
herein, depends primarily upon whether or not William T. and George
H. Wilson during the lifetime of their mother, wei"e severally seized
of a fee simple estate in the' premises which they respectively assumed
to convey to George Dungan. That under the wills of Titus Dungan
and Mary Ann Kirkendall, Elizabeth Wilson, as devisee, took an es-
tate tail in the premises in controversy, is conceded, and the contention
of Harriet JDungan, plaintiff in error, is, that under the devises therein ■ ■
madejo, Elizabeth Wilson and the heirs of her body, that William T.
and George H. Wilson as her cliildren, upon the death of said testa-
tors, each immediately, by force of the provisions of Section 4200, Re^
vised Statutes, became entitled to and vested with an absolute estate
in^fee simple to a one-seventh part of the premises so devised to their
mother, Elizabeth Wilson, as first donee in tail. Onjhe other hand, it ■ ,'^, C^^
is claimed by the children of William T. and George H. Wilson, all of -w/"
whom are defendants in error herein, that their fathers, during the life-
time of Elizabeth Wilson, had no estate or interest in said premises
which they of right could alienate or convey, that until the death of
said Elizabeth Wilson, the interest of William T. and George H. Wil-
son in said premises was that of a mere possibility or expectancy which
could ripen into title and become a vested estate or interest, only in the
event that they survived their mother, Elizabeth Wilson, the first donee
in tail. In both the court of common pleas and in the circuit court, the
contention of Harriet Dungan was held to be erroneous and was de-
termined against her, and in this we think therewas no error.
Section 4200, Revised Statutes, provides as follows : "No estate in
fee simple, fee tail, or any lesser estate, in lands or tenements, lying
within this state, shall be given or granted, by deed or will, to any per-
son or persons but such as are in being, or to the immediate issue or
descendants of such as are in being at the time of making such deed or
will ; and all estates given in tail shall be and remain an absolute estate.,
in Jee simple to the issue ^f the first donee in tail." Counsel for plain-
tiff in error, in discussing the effect of this statute, say in their brief :
"The first part of the section, preceding the semi-colon, permits the
granting of a limited estate tail and it forbids the granting of the same
to persons who are in fact more remote than the immediate issue of
persons in being at the time said grant is made." This claim, ignoring
7 Part of the opinion is omitted.
568. DERIVATIVE TITLES (^^art 2
as it does the word "descendants" found in the statute, is in part at
kast clearly erroneous. It will be observed that by the language of the
first clause of this section the entailment by deed or will, is not re-
stricted to persons in being, or to the immediate issue of such as are in
being, but the limitation is, to persons in being, "or to the immediate
issue or descendants of such as are in being at the time of making such
deed or will." * * *
That, during the life of Elizabeth Wilson, first donee in tail, her chil-
dren William T. and George H. Wilson had no estate or interest_m
the premises devised to her which they of right could alien or convey
while not heretofore directly decided by this court has, we think, by
necessary implication, been so determined in several cases. In Pollock
V. Speidel, 17 Ohio St. 448, in discussing the scope and effect of the
act of 1811 (now section 4200, Revised Statutes), Scott, J., says : "The
statute recognizes the first donee in tail as holding an estate for life
only, as tenant in tail ; and does not convert the estate into a fee simple
till it reaches the hands of his issue." While it would seem to be, and
was, incorrect to speak of the first donee in tail as holding an estate for
life, as tenant in tail, this apparent inaccuracy of statement is suffi-
ciently, and we think correctly explained in Harkness v. Corning, 24
Ohio St. 428, where the court say: "A somewhat similar expression
is used by the learned judge delivering the opinion of this court in Pol-
lock V. Speidel, 17 Ohio St. 447. The controversy in that case was be-
tween the issue of the donee and the defendant, claiming under a con-
veyance from the donee, and the question was as to the quantity of in-
terest conveyed. The judge said the 'statute recognizes the first donee
in tail as holding an estate for life only, as tenant in tail.' The idea in-
tended to be expressed was that the donee, holding only as tenant in
tail, could not convey an estate that would endure beyond his own fife.
To give to the expression the meaning claimed by plaintiff's counsel,
that the donee took a mere life estate, would render the opinion not
only inconsistent with itself but with the fourth proposition of the syl-
labus." This case of Harkness v. Corning, supra, is also decisive of the
proposition, that the statute does not become operative until the estate
passes by the first donee in tail and reaches the issue of such donee,
when, as said in the opinion (24 Ohio St. at page 426), on the determina-
tion of the interest of such donee and of such rights as the law annexes
to his interest while held by him, the statute then enlarges the estate tail
in the hands of such issue into an absolute estate in fee simple.
When the case of Pollock v. Speidel, supra, was a second time before
this court, 27 Ohio St. 86, the court, in considering and discussing the
eft'ect of the last paragraph of the statute which reads, "and all estates
given in tail shall be and remain an absolute estate in fee simple to the
issue of the first donee in tail," say that the issue of a tenant in tail
"has no legal rights in the premises during the tenant's life. The issue
takes, if at all, by descent as heir of the body, and the maxim is 'nemo
est hseres viventis.' " The action was one in ejectment, and was
Ch. 5) ESTATES CREATED 569
brought by the children of one James Pollock, who was the son of John
Pollock, Jr., first donee in tail, against the defendant to recover posses-
sion of certain real estate of which they claimed to be seized in fee
simple as heirs of said James Pollock. The defendant denied the title
of plaintiffs and alleged title in himself under a conveyance from said
James Pollock by deed of general warranty executed June 30, 1831.
While it does not positively and affirmatively appear at what time John
Pollock, Jr., the first donee in tail died, and the court in the opinion
so state, yet it does appear from the agreed statement of facts therein :
"III. That John Pollock, Jr., left some five children besides James
Pollock, the grantee in the deed dated June 30, 1831." We therefore
conclude that the fair and reasonable inference is, and that the fact
was, that John Pollock, Jr., the father of James, died before he did,
and as, upon the death of his father, James as issue in tail would there-
upon take, by force of the statute an absolute estate in fee simple, with
full power of alienation, he would of course, as would also his heirs,
be estopped by his deed of June 30, 1831, which was a deed of general
warranty, and this would be so, as said by the court in that case, even
though John Pollock the first donee in tail was living at the time of its
execution. Upon no other theory, than that James survived his father,
can the decision in this case be reconciled with other decisions of this
court, or be supported and upheld.
Our statute of entailments. Section 4200, substantially in its present
form, was copied from the statute of Connecticut, and the precise ques-
tion we are now considering was decided by the supreme court of that
state in Dart v. Dart, 7 Conn. 250, where it is said by Peters, J. : "2.
What estate passed from the plaintiff, by his deed to the releasees?
By the common law, a release is a secondary conveyance, and is a dis-
charge of a man's right in land or tenements to another, who hath some
former estate in possession. Shep. Touch. 318, 2 Bl. Com., 328. But
in this state, a release is considered as a primary conveyance, and pass-
es all the right of the releasor to the releasee, provided no other person
be in possession adversely ; and operates as a conveyance without war-
ranty. 1 Sw. Dig. 133. But if he have no right, nothing passes, not
even a chose in action. What esta];£,..,tfa£n^. liad th e issu e o i the fir.st ,
donee in tail, during his life? My. answer is, none. The plaintiff could.,,
therefore, convey none. Such issue is only an heir apparent or pre-
sumptive. His title is the bare possibility, or mere chance, of becoming
eventually the heir in tail; for the maxim is, 'nemo est haeres viventis.'
And it is a well settled rule, that a rnere £ossibility cari not be released
_orconyeyed ; and the reason thereof is, that a release supposes a right
IrTBemg; Shep. Touch. 319; Bac. Abr. tit. Release, H."
It follows from the foregoing, we think, that the judgment of the cir-
cuit court in the present case was right and should be affirmed. Judg-
ment affirmed.^ /7 ^^/f- 7^ <? ,
8 In many states statutes relative to estates tail have been passed. See 1
Stimson, Am. St. Law, § 1313; Brewster on Conveyancing, § 143^ In Mich-
570 DEEivATiVE TITLES (Part 2
SECTION 3.— LIFE ESTATES
I. Conve;ntional
LITTLETON'S TENURES.
Tenant for term of life is, where a man letteth lands or tenements
to another for term of the life of the lessee,,or for term of tlie^Jife_of
another man. In^ this case the lessee is tenant for ternL.oi life.. But by-
common speech he which holdeth for term of his own life, is called ten-
ant for term of his life, and he which holdeth for term of another's
life, is called tenant for teim of another man's life (tenant pur terme
d'autre vie.)
Section 56.
COKE UPON LITTLETON.
"Or for term of the life of another man." Now it is to be under-
stood, that if the lessee in that case dieth living cesty que vie (that is he
for whose life the lease was made), he that first entereth shall hold the
land during that other man's life, and he that so entereth is within
Littleton's words, viz. tenant pur autre vie, and it shall be punished
for waste as tenant pur auter vie, and subject to the payment of the
rent reserved, and is in law called an occupant, because his title is by his
first occupation.® And so if tenant for his own life grant over his
estate to another, if the grantee dieth there shall be an occupant. In
like manner it is of an estate created by law; for if tenant by the cur-
tesy or tenant in dower grant over his or her estate, and the grantee
dieth, there shall be an occupant. But against the king there shall be
no occupant, because nullum tempus occurrit regi. And therefore no
man shall gain the king's land by priority of entry. There can be no
occupant of anything that lieth in grant, and that cannot pass without
deed, because every occupant must claim by a que estate and aver the
life of cesty que vie. It were good to prevent the uncertainty of the
estate of the occupant to add tliese words (to have and to hold to him
igan the statute is as follo\rs: "All estates tail are abolished, and every estate
'Uhic'h would be adjiidfied a fee tail, ac-cording to the laws of the territory
of Michi^^an, as it existed before the second day of March, one thousand eight
hundred and twenty-one, shall for all i>un'f^«^s be adjudtred a fee simple; and
if no valid remainder he limited thereon, tshall be a fee simjile alisohilc." IIow-
eirs Ann. .'^t. 1912, § 10(525. There are many states in which the statutes are
substantially as above, omitting the italicized portion; tlie part in italics,
though not so conimon, is found in several statutes.
» See 1 Stimson's Am. St. Law, § 1335; Howell's Ann. Mich. St. 1912, |
10628 ; St. 7 Will. IV & 1 Vict. c. 26, ss. 3, 6 ; St 60 & 61 \'ict. c. 65, part 1.
Ch. 5) ESTATES CREATED 571
and his heirs during the life of cesty que vie) and this shall prevent
the occupant, and yet the lessee may assign it to whom he will ; or if he
hath already an estate for another man's life witholit these words, then
it were good for him to assign his estate to divers men and tlieir heirs
during the life of cesty que vie. * * *
You have perceived, that our author divides tenant for life into two
branches, viz., into tenant for term of his own life, and into tenant for
term of another man's life ; to this may be added a third, viz., into an
estate both for term of his own life, and for term of another man's
life.
As if a lease may be made to A. to have to him for term of his own
life, and the lives of B. and C. for the lessee in this case hath but one
freehold, which hath this limitation, during his own life, and during the
lives of two others. * * *
If a man grant an estate to a woman dum sola fuit, or durante
viduitate, or quamdiu se bene gesserit, or to a man and a woman during
the coverture, or as long as the grantee dwell in such a house, or so
long as he pay xl. &c. or until the grantee be promoted to a benefice,
or for any like uncertain time, which time, as Bracton saith, is tempus
indeterminatum : in all these cases, if it be of lands or tenements, the
lessee hath in judgment of law an estate for life determinable, if livery
be made; and if it be of rents, advowsons, or any other thing that lie
in grant, he hath a like estate for life by the delivery of the deed, and
in count or pleading he shall allege the lease, and conclude, that by
foric thereof he was seised generally for term of his life.
If a man make lease of a manor, that at the time of the lease made
is worth £20. per annum, to another until £100. be paid, in this case
because the annual profits of the manor are uncertain, he hath an estate
for life, if livery be made determinable upon the levying of the £100.
But if a man grant a rent of £20. per annum until £100. be paid, there
he hath an estate for five years, for there it is certain, and depends
upon no uncertainty. And yet in some cases a man shall have an un-
certain interest in lands or tenements, and yet neither an estate for life,
for years, or at will. As if a man by his will in writing, devise his
lands to his executors for payment of debts, and until his debts be
paid ; in this case the executors have but a chattel, and an uncertain in-
terest in the land until his debts be paid; for if they should have it for
their lives, then by their death their estate should cease, and the debts
unpaid ; but being a chattel, it shall go to the executors of executors
for the payment of his debts ; and so note a diversity between a devise
and a conveyance at the common law in his life time. And tenant by
statute merchant, by statute staple, and by elegit, have uncertain inter-
ests in lands or tenements, and yet they have but chattels, and no free-
hold, whose estates are created by divers acts of parliament, whereof
more shall be said hereafter. And so have guardians in chivalry which
hold over for single or double value uncertain interests, and yet b'Jt
chattels.
572 DERIVATIVE TITLES (Part 2
If one grant lands or tenements, reversions, remainders, rents, ad-
vowsons, commons, or the like, and express or limit no estate, the lessee
or grantee (due cei*emonies requisite by law being performed) hath
an estate for life. The same law is of a declaration of a use. A man
may have an estate for term of life determinable at will; as if the king
doth grant an office to one at will and grant a rent to him for the
exercise of his office for term of his life, this is determinable upon the
determination of the office.
A., tenant in fee simple, makes a lease of lands to B. to have and
to hold to B. for tefm of life, without mentioning for whose life it
shall be, it shall be deemed for term of the life of the lessee, for it shall
be taken most strongly against the lessor, and as hath been said an es-
tate for a man's own life is higher than for the life of another. But
if tenant in tail make such a lease without expressing for whose life,
this shall be taken but for the life of the lessor, for two reasons.
First, when the construction of any act is left to the law, the law
which abhorreth injury and wrong, will never so construe it as it shall
work a wrong; and in this case, if by construction it should be for the
life of the lessee, then should the estate tail be discontinued, and a new
reversion gained by wrong; but if it be construed for the life of the
tenant in tail, then no wrong is wrought. And it is a general rule, that
whensoever the' words of a deed, or of the parties without deed, may
have a double intendment, and the one standeth with law and right,
and the other is wrongful and against law, the intendment that stand-
eth with law shall be taken.
Secondly, the law more respecteth a lesser estate by right, than a
larger estate by wrong; as if tenant for life in remainder disseise ten-
ant for life, now he hath a fee simple, but if tenant for life die, now is
his wrongful estate in fee by judgment in law changed to a rightful
estate for life.
Co. Litt. 41b, 42 a, b.
LITTLETON'S TENURES.
And it is to be understood, that there is feoffor and feoffee, donor
and donee, lessor and lessee. Feoffor is properly where a man in-
f eoffs another in any lands or tenements in fee simple, he which
maketh the enfeoft"ment is called the feoffor, and he to whom the feoff-
ment is made is called the feoffee. And the donor is properly where
a man giveth certain lands or tenements to another in tail, he which
maketh tlie gift is called the donor, and he to whom tlie gift is made is
called the donee. And the lessor is properly where a man letteth to
another lands or tenements for term of life, or for term of years, or to
hold at will, he which maketh the lease is called lessor, and he to whom
the lease is made is called lessee. And every one which hath an estate
in any lands or tenements for term of his own or another man's life.
Ch. 5) ESTATES CREATED 57S
is called tenant of freehold, and none other of a lesser estate can have
a freehold; but they of a greater estate have a freehold ; for he in fee
sim2le hath a freehold, and tenant in tail hath a freehold, &c.
Section 57.
ROSSE'S CASE.
(Court of Common Pleas, 1600. 5 Co. 13.)
Between Peter Rosse and Aldwick in an ejectione firmse, which be-
gan Pasch. Z1 Eliz. Rot. 499, the case was such ; a lease is made to A.
and his assigns, habendum to him during his life, and the lives of B.
and C. and if this limitation during the life of B. and C. were void or
not, was the question. And it was adjudged, that the limitation was
good; for where it was objected that when a man hath two estates in
him, the greater shall drown the less, and that an estate for his own
life is higher than for the life of another ; and therefore an estate for
his own life, and for the lives of others cannot stand together. To
that it was answered and resolved that in the case at Bar, the lessee
had but one estate, which hath this limitation, scil. during his life, and
the lives of two others, and he hath but one freehold, and therefore
there^cannot be any drowning of estates in the case, but he hath an
estate of freehold to continue during these three lives, and the survivor
of them.**
In re AMOS.
CARRIER V. PRICE.
(Court of Chancery. [1891] 3 Ch. 159.)
Originating summons by the executors of the will of James Amos,
asking for the determination by the Court of questions arising in the
administration of his estate.
By his will, dated the 20th of October, 1888, the testator appointed
Robert Carrier and J. N. Clark to be his executors. And he gave,
devised, and bequeathed unto Thomas Price a leasehold house known
as 27, Bath Terrace, "the conditions to be as follows : that the prop-
erty be left to him for his life and for the life of his heir, after which
it becomes the property of the Boiler Makers and Iron Ship Builders
Society." There followed similar gifts in precisely similar terms, and
subject to exactly similar conditions, of two other (freehold) houses
to Henry Poole and Thomas Henry Williams respectively. The will
continued thus, "that each of the above keep the property held by them
in good repair, and shall pay to the trustees the sum of 4s. per week,
10 See Brudnel's Case, 5 Co. 9a (1592).
574 DERIVATIVE TITLES (Part 2
until the whole of the mortgage be paid. And tliat the further sum of
£3 6s. 8d. each per annum be paid by them to be disposed of as follows :
viz., i5 per annum to the Boiler Makers Benevolent Fund, and £5
per annum to the executors. Should either of the parties refuse or
fail to comply with the foregoing conditions they shall forfeit all rights
to the property, and the executors shall cause the same to be handed
over to the Boiler Makers Society forthwith."
The attesting witnesses to the will were the two executors.
The Defendants to the sumrhons were the three devisees. Price,
Poole, and Williams; the Boiler Makers and Iron Ship Builders Soci-
ety; and the Boiler Makers Benevolent Fund; and Elizabeth Reece,
the wife of J. H. Reece, who was the heiress-at-law and one of the
next of kin of the testator.
The Boiler Makers Society was registered under the Trade Union
Acts, 1871 and 1876. It was governed by an executive council. The
rules provided for the payment by members of monthly contributions
for the purpose of forming a fund for providing weekly pay for the
members during sickness, super-annuation allowances, and other pe-
cuniary benefits. There were also provisions relating to strikes and
trade disputes. Rule 39 provided for the formation of a Benevolent
Fund for the benefit of the widows and children of members. This
fund was under the control of the executive council.
The summons asked that a construction might be put upon the de-
vises, bequests, and directions in the will contained of and concernirig;^^
the three houses given to Price, Poole, and Williams respectively, and
that the effect of the gift of £5 per annum to the Boiler Makers Benev-
olent Fund and £5 per annum to the executors might be determined.
North, J.^^ * * * 'j^|-,g Qj^|y remaining question is^ what inter-
est do the tenants for life take? I confess I do not understand what
the testator had in his mind ; and I can only construe his language as
I find it. In my opinion, the property is given to each devisee or
legatee for a limited interest, which is described as "for his life and for
the life of his heir." For the devisee's own life the gift is clearly good.
The question is, whether the interest which he takes comes to an end
"upon his death, the interest for the life of his heir being too vague to
be recognized. I do not see any reason in point of law which prevents
the gift from being good. There is no hiatus of any kind ; the gift to
the devisee for his Hfe would necessarily come to an end at his death.
_But at the very moment of his death the person who is his heir is as-
certained, and there is nothing discontinuous in the limitation which
prevents it from being good. I see no ground for saying that the heir
takes beneficially. In my opinion, it is a limitation to a tenant for two
lives, the lives being his own and that of his heir in each case. I think
that is the meaning of the testator's words, and I can see nothing in
law to prevent their taking effect.
11 Part of the opinion is omitted.
Ch. 5) ESTATES CREATED 575
The two annual payments to the executors and to the Benevolent
Fund are void. The payment of these sums is a condition subsequent,
and, as the person who takes the land cannot legally pay them, he is
not liable to forfeit his land by reason of his not doing that which he
cannot legally do.
THOMPSON V. BAXTER.
j'X
(Supreme Court of Iklinnesota, 1909. 107 IVIinn. 122, 119 N. W. 797, 21 L. K. A.
[X. S.J 575.)
Brown, J. Proceedings in forcible entry and unlawful detainer,
instituted in justice court, where _defendant had judgment. Plaintiff ,
appealed to the district court, where a like result followed. From the
judgment of that court she appealed to this court.
The action inyolves the right to the possession of certain residence^
property in the city of Albert Lea, and was submitted to the court
helow upon the pleadings and a stipulation of facts. It appears that
jilaintjff is the owner of the premises; that she acquired title thereto
by purchase from a former owner, who had theretofore entered into
a contract 5y~ which he leasecTand dernised the premises to defendant
at an agreed monthly rent of twenty-two dollars; and plaintiff's title
is subject to all rights that became vested in defendant thereby. The
lease, after reciting the rental of the premises and other usual condi-
tions, contained upon the subject of the term of the tenancy, the fol-
lowing stipulation : "To have and to hold the above-rented premises ^
unto the said party of the second part (the tenant) his heirs, executors,
administrators, and assigns, for and during the full term of while he
shall wish to live in Albert Lea, from and after the first day of Decem-
ber, 1904." The only question involved under the stipulation is the
construction of this provision of the lease. Defendant has at all times
paid the rent as it became due; but, if plaintiff has the right to termi-
nate the tenancy and eject him, proper notice for that purpose has been
given. __Ap£ellant contends that the lease created either a tenancy at
will, at sufferance, or from month to month, and that plaintiff could
terminate the same at any time by proper notice. The trial court held^,
in harmony with defendant's contentioUj, that the contract created a
li f e est^ate in defendant, terminable only at his death or removal from
Albert Lea. Appellant assigns this conclusion as error.
A determination of the question presented involves a construction
of the lease and a brief examination of some of the principles of law
applicable to tenancies at will, at sufferance, from month to month, and
life estates. Deeds, leases, or other instruments aft'ecting the title to
real property are construed, guided by the law appHcable to the par-
ticular subject, precisely as other contracts are construed, and eft'ect ,
given the, intention of ..the_^arties. Lawton v. Joesting, 96 Minn. 163,
576 DERIVATIVE TITLES (Part 2
104 N. W. 830; Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 979, 8 Ann.
Cas. 443, and extended note. The contract before us, though some-
what £ecuhar and unusual as to the term of the tenancy intended to be
created, is nevertheless clear and free from ambiguity. It granted the
demised premises to defendant "while he shall wish to live in Albert
Lea." The legal effect of this language is, therefore, the only question
in the case.
Tenancies at will may be created by express words, or they may
arise by implication of law. Where created by express contract, the
writing necessarily so indicates, and reserves the right of termination
to either party, as where the lease provides that the tenant shall occupy
the premises so long as agreeable to both parties. Richardson v. Lang-
ridge, 4 Taunt. 128; Say v. Stoddard, 27 Ohio St. 478. ^uch ten-
ancies arise by implication of law where no definite time is stated in
the contract, or where the tenant enters into possession under an
agreement to execute a contract for a specific term and he subsequently
refuses to do so, or one who enters under a void lease, or where he
holds over pending negotiations for a new lease. The chief charac-
teristics of this form of tenancy are (1) uncertainty respecting the
term, and (2) the right of either party to terminate it by proper notice ;
and these features must exist, whether the tenancy be created by the
express language of the contract or by implication of law. An accu-
rate definition is given in 1 Wood, Landlord & Tenant, 43, in the fol-
lowing language: '_^A_tenant at will is one who enters into the posses-
sion of the lands or tenements of another, lawfully, but for no definite
term or purpose, but whose possession is subject to termination by
the landlord at any time he sees fit to put an end to it. He is called
a tenant at will 'because he hath no certain or sure estate, for the les-
sor may put him out at what time it pleaseth him.' "
A tenancy at sufferance arises where the tenant wrongfully holds
over after the expiration of his term, differing from the tenancy at
will, where the possession is by the permission of the landlord. 4
Kent, Com. 117; Edwards v. Hale, 9 Allen (Mass.) 462. He has a
naked possession without right, and, independent of statute, is not en-
titled to notice to quit. 1 Wood, Landlord &. Tenant, § 8. It also arises
where a mortgagor holds over after the expiration of the period of
redemption on foreclosure. Stedman v. Gassett, 18 Vt. 346. In fact,
this relation exists in all cases where a person who enters lawfully into
the possession wrongfully holds possession after his estate or right
has ended. Kinsley v. Ames, 2 Mete. (Mass.) 29; Jackson v. McLeod,
12 Johns. (N. Y.) 182; 2 Blackstone, 150; 1 Wood, Landlord & Ten-
ant, 7.
A tenancy from month to month or year to year arises where no
definite time is agreed upon and the rent is fixed at so much per
year or month, as the case may be, and is terminable at the expiration
of any period for which rent has been paid. Finch v. Moore, 50
Minn. 116, 52 N. W. 384. This form of tenancy can never exist where
Ch. 5) ESTATES CREATED 577
the lease or contract prescribes a fixed tinie.^ The mere fact that rent
is payable monthly does not alone determine the character of the ten-
ancy. The monthly or yearly payments and an intention to limit the
term to a month or year must in all cases concur to create this species
of tenancy.
From these general principles of the law of tenancy it is quite clear
that the lease under consideration does not come within either class
mentioned. Its language does not expressly define it as a tenancy at
will, and no such relation arises by implication, for the reason that the
term is not indefinite, within the meaning of the law on this subject, nor
is the right to terminate the lease reserved to the lessor. Indefiniteness
or uncertainty as to the term of the lease is illustrated by instances
where one occupies land by the naked permission of the owner (Hull
V. Wood, 14 Mees. & W. 681 ; Williams v. Deriar, 31 Mo. 13; Larned
V. Hudson, 60 N. Y. 102), or a person who holds under a void deed
(Stamper v. Griffin, 20 Ga. 312, 65 Am. Dec. 628; Executors v. Hous-
ton, 16 Ala. Ill), or where he enters under an agreement for a lease
not yet executed (Emmons v. Scudder, 115 Mass. 367), or under a
lease until the premises are sold (Lea v. Hernandez, 10 Tex. 137; Ela
V. Bankes, Zl Wis. 89), and under various circumstances wiiere no
time is specifically agreed upon. In the lease under consideration the
tenancy^is limited by the time defendant sliall continue to dwell in Al-
bejt^^ea, and this limitation takes the case put of the class of tenan-
cies at will. It is equally clear that a tenancy at sufferance was not
created by the contract. There has been no wrongful or unlawful
holding over after the expiration of the term. Nor does tlie rule of
tenancy from month to month apply for the reasons already pointed
out.
We therefore turn to tlie question, the turning point in the court be-
low, whether the instrument created a life estate in defendant within
the princTpIes'of law applicable to , that branch of land titles. It is
tEoroughly settled that a life estate may be created by a deed, lease, or
devise, either witb or without a stipulation for the payment of rent.
This class of tenancies differs in many essential respects from tenancies
at will, or from year to year, or at sufferance; the principal distinction
being that the former confers a freehold upon tbe tenant, and the lat-
ter a mere chattel interest. Tbe lease under consideration embodies all
the essentials of a life tenancy. . It contains the usual words of in-
heritance, necessary at common law, running to defendant, "his heirs,
executors, administrators, and assigns," and grants the right of occu-
pancy for the term stated therein.
Life estates or life tenancies are clearly defined in the books, and
the lease here involved brings it within this class of estates. 1 Taylor,
Landlord & Tenant, §§ 52, "^Z, states the rule as follows: "An estate
for life may be. createjd either by express limitation or by a grant in
general terms. If made to a man for the term of his own life, or
Aig.Pkop. — 37
y
VQ.
(^
578 DERIVATIVE TITLES (Part 2
for that of another person, he is called a tenant for life. But the
estate may also be created by a general grant, without defining any
specific interest, as where a grant is made to a man, or to a man and
his assigns without any limitation in point of time, it will be considered
as an estate for life, and for the life of the grantee only. * * *
Where a grant is made, subject to be defeated by a particular event,
and there is no limitation in point of time, it will be ab initio a grant.
of an estate fqrjife, as much as if no such event had been contem-
plated. Thus, if a grant be made to a man so long as he shall inhabit a
certain place, or to a woman during her widowhood, as there is no cer-
tainty that the estate will be terminated by the change of habitation or
by the marriage, respectively, of the lessees, the estate is as much an
estate for life, until the prescribed event takes place, as if it had been
so granted in express terms."
The author's statement of the law is sustained by the otlier writers
on the subject (4 Kent, Com. 27; 2 Blackstone, 121), and by the ad-
judicated cases. In Warner v. Tanner, 38 Ohio St. 118, a life estate
was held to be created by a lease for a yearly rent extending during
the time the lessee should continue to occupy the premises for a par-
ticular purpose. In Mickie v. Woods' Ex'r, 5 Rand. (Va.) 571, 574,
the grant was to continue so long as the tenant should pay the stipulated
rent. It was held a life estate. A grant "so long as the waters of the
_Pelaware shall rvui" was held in Foster v. Joice, 3 Wash. C. C. 498,
]^ Fed. Cas. No. 4,974, to create a life estate. In Hurd v. Gushing, 24
Mass. (7 Pick.) 169, the premises were leased at a fixed yearly rent
for the term "so long as the salt works" to be located thereon should
continue in operation. It was held a life estate. In Thomas v. Thomas,
17 N. J. Eq. 356, it was held that a right given by a will to occupy
at a specified annual rent certein premises so long as the devisee "may
desire to occupy the same as a drug store" amounted to an estate for
life. See also to the same effect, 16 Cyc. 614; Maverick v. Gibbs, 3
McCord (S. G.) 315; People v. Gillis, 24 Wend. (N. Y.) 201; Rose-
boom V. Van Vechten, 5 Denio (N. Y.) 414; Ely v. Randall, 68 Minn.
177, 70 N. W. 980.
The lease in the case at bar conies within the rule of these authori-
ties, and the trial court properly held that it vested in defendant a
_ life estate, terminable only at his death or his removal from Albert
Lea.
Judgment affirmed.^' ^^ , -.^^jlJ' .
12 Beauchamp y. Runuels, 35 Tex. Civ. App. 212, 79 S. W. 1105 (1904), contra.
By act of Parliament tlie fee of certain lands was vested in a board of
deputies, which was authorized to allot portions of the lauds to persons to hold
same so long as they should be willing, and pay a specified annual rent, and
conform to the orders and regulations to be made from time to time by the
deputies. The seventeenth section of the act empowered the deputies to dis-
pose, by absolute sale, any portion of the premises, freed from any claim by
any resident allottee. By t'he twenty-second section no sale was to be effected
without the consent of the majority of tlie allottees in regular meeting as-
Ch. 5) ESTATES CREATED 579
II. Legai,
(A) In Tail After Possibility of Issue Extinct
LITTLETON'S TENURES.
Tenant in f ee^ tail after possibility of issue extinct is, where tene-
ments are given to a man and to his wife in especial tail, if one of
them die without issue, the survivor is tenant in tail after possibility
of issue extinct. And if they have issue, and the one died, albeit that
during the life of the issue, the survivor shall not be said tenant in
tail after possibility of issue extinct; yet if the issue die without
issue, so as there be not any issue alive which may inherit by force of
the tail, then the surviving party of the donees is tenant in tail after
possibility of issue extinct.
Also, if tenements be given to a man and to his heirs which he shall
beget on the body of his wife, in this case the wife hath nothing in the
tenements, and the husband is seised as donee in especial tail. And in
this case, if the wife die without issue of her body begotten by her
husband, then the husband is tenant in tail after possibility of issue
extinct.
And note, that none can be tenant in tail after the possibility of issue
extinct, but one of the donees, or the donee in especial tail. For
the donee in general tail cannot be said to be tenant in tail after
possibility of issue extinct : because always during his life, he may by
possibility have issue which may inherit by force of the same entail.
And so in the same manner the issue, which is heir to the donees in es-
pecial tail, cannot be tenant in tail after possibility of issue extinct,
for the reason abovesaid.
And note, that tenant in tail after possibility of issue extinct shall
not be punished of waste, for the inheritance that once was in him,
10 H. 6. 1. But he in the reversion may enter if he alien in fee, 45 E.
3. 22.
Sections 32, 33, 34.
sembled. Under a statute alloaving only freeholders to vote at a certain elec
tion, was an allottee of such lands entitled to vote?
Under a devise "to M." of "my cottajre and all it contains at Nahant — to use
for the term of five years or longer," what estate did M. take? -t _^ .
Land was leased at a certain rent "for such time as the lessee, his heirs and
assigns, may occupy the same for a sawmill yard." There was a provision that
possession should be yielded to the lessor, "his heirs or assigns, at the time of
the expiration of the occupation of said premises for sawmill purposes." What
estate did the lessee have? See Gilmore v. Hamilton, 83 Ind. 196 (1SS2).
580 DERIVATIVE TITLES (Part 2
(B) Husband's Interest in Wife's Realty
LITTLETON'S TENURES.
Tenant by the curtesy of England is, where a man taketh a wife
seised in fee simple or in fee tail, general, or seised as heir in tail espe-
cial, and hath issue by the same wife male or female born alive (oyes
ou vife,) alheit the issue after dieth or liveth, yet if the wife dies, the
husband shall hold the land during his life by the law of England.
And he is called tenant by the curtesy of England, because this is used
in no other realm but in England only.
And some have said, that he shall not be tenant by the curtesy, un-
less the child, which he hath by his wife, be heard cry ; for by the cry
it is proved, that the child was born alive. Therefore Ouxre. Sec-
tion Zd.
MONTGOMERY v. TATE.
(Supreme Court of Indiana, 1S59. 12 Ind. 615.)
WoRDEx, J. This was an actio'n by the appellee against the appel-
lant, to recover the possession of a certain piece of laud described in
the complaint. There are two paragraphs in the complaint, one claim-
ing a fee simple, and the other a life estate in the land.
Answer in denial. Trial by jury; verdict and judgment for plain-
tiff, over a motion for a new trial.
By a bill of exceptions it appears, that on the trial the plaintiff
proved, prima facie, a title to the land in herself, either in fee simple
or for life; but whether her evidence established, prima facie, a fee
simple interest in her, or a life estate merely, it is wholly unnecessary
to determine for the purposes of this case ; therefore we shall express
no opinion in reference to it.
After the plaintiff' became seized of the premises, she intermarried
with one John B. Tate, who is still living, and the husband of the plain-
tiff. Afterwards, in September, 1840, Bates and Abrams recovered a
judgment in the Fayette Circuit Court against William Tully and the
said John B. Tate, for the sum of 177 dollars, 60 cents, besides costs
of suit, on which an execution was afterwards issued, which was levied
upon the property in controversy, as the property of said John B.
Tate, "for and during the natural life of Ursula Tate, wife of said John
B. Tate," and the property, on a venditioni exponas, was afterwards
sold, according to law, to satisfy the judgment and costs.
James Miller and San ford P. White became the purchasers at the
sheriff's sale, and received his deed for the premises, conveying
Ch. 5) ESTATES CREATED 581
to them the interest of said John B. Tate therein during the life-
time of his wife, Ursula Tate. This took place in 1842. Miller and
White afterwards conveyed to Elisha Vance, and Vance to the defend-
ant^ Montgomery.
On these facts, the Court charged the jury, "that if they believed the
evidence, it would be their duty to find for the plaintiff."
The defendant asked several charges, to the effect that if the jury
believed the propositions relied upon by defendant in support of his
title (substantially those contended in the evidence), it would be
their duty to find for the defendant. These were refused, and the
defendant excepted to the ruling of the Court in giving and refusing
the charges.
At common law, by the marriage of Ursula with John B. Tate, he
became entitled to an, estate in her lands during their joint lives.
This estate is as absolute and perfect in him during that period, as,
if accfuired by conveyance, or in any other mode. Itjs subject to sale
on execution against him, and may be conveyed by him. Vide 2
KenFs Com. 131; Butterfield v. Beall, 3 Ind. 203; Junction Railroad
Co. V. Harris, 9 Ind. 184, 68 Am. Dec. 618.
But it is contended that the law of 1838 (R. S. 1838, p. 276, § 1),
in force at the time of the sale in question, subjecting property to
sale on execution, does not authorize such estates to be sold on ex-
ecution. It provides, "that the personal and real estate of every in-
dividual," &c., "including his, her, or their goods, chattels, lands, tene-
ments and hereditaments, be and the same are hereby made subject to
execution," &c.
The counsel say that, "Nowhere do they find any law authoriz-
ing the selling of the wife's interest in land for the debts of her hus-
band." No interest of the wife is sold; for the entire estate in the
land is, by the marriage, vested in the husband during their joint
\\yes_. During .their joint lives she has no estate in the lands. Such
estate being vested in the husband, it is very clearly within the terms
of the statute, and subject to sale on execution against him.
Subsequent legislation has, perhaps, changed this rule. See Acts
of 1847, p. 45, and 1 R. S. p. 321, § 5. But these acts can have no
influence on the case at bar, as the sale here took place before either of
them was enacted.
A contingency may arise that will abridge the term conveyed by the
sheriff's deed, to a less period than that of the life of said Ursula.
The death of said John B. leaving her surviving him, would, perhaps,
terminate the estate conveyed ; but this does not at all vitiate the deed.
It would be good for whatever interest he had in the premises, not
extending beyond the lifetime ofsaid Ursula.
Both husband and wife being still alive, the term conveyed b.y the
sheriff's deed is not yet expired, and the defendant's title to premises
derived from such sale, still subsists.
582 DERIVATIVE TITLES (Part 2
The ruling of the Court was wrong, and the judgment must be re-
versed.
The judgment is £eversed with costs. Cause remanded for a new
trial/3 "■ ; /
/
MATTOCKS V. STEARNS. S^— ^i^l
(Supreme Court of Vermont, 1837. 9 Vt. 326.)
This was an action of ejectment for about seven eighths of an
acre of land in the village of Danville.
Plea, severally, not guilty, and issue to the jury. On trial the
plaintiffs introduced a deed from Josiah Bellows to Caleb Wheaton,
dated 10th May, 1828, containing the land in question. He also in-
troduced, a levy of execution upon the same land in his favor, against
,j John Stearns, one of the defendants, dated August 5th, 1834. He then
^ •/ «A«.p*^ introduced evidence, tending to prove, that Caleb Wheaton was the
\ father of John Stearns' wife, the other defendant, and that he died
^ seized and possessed of the premises sued for, and that his estate
y / was nearly settled and the debts all paid, and that he left a wife and
two children living, to wit: Mrs. Stearns and Zalmon Wheaton.
The plaintiff further introduced evidence tending to show, that
John Stearns had absconded to Canada, about two years ago, and a
short time before the levy, and that his wife and children lived on and
t*/l6 took care of the premises.
y. \ The plaintiff' then produced two written notices, one to Mrs. Steams,
""^'''f^ ^ and one to C. Davis, defendants' counsel, requiring them to produce
a deed, from said Zalmon Wheaton to Mrs. Stearns, of the premises,
and no deed being produced by defendants and no copy of any
deed being offered by the plaintiff, he offered Zalmon Wheaton
as a Avitness to prove the contents of a deed, executed by him ; which
testimony was objected to by the defendants but was admitted by the
court, and said Zalmon was sworn, and testified that he, on the 5th
October, 1832, executed a quit claim deed of the premises to his sister,
j\Irs. Stearns, and that she, at the same time, executed a quit claim
deed to the witness of some other real estate left by their father, and
that there was no distribution of the real estate among the heirs by
decree of the probate court, and that the widow of Caleb Wheaton
. had relinquished her right of dower, in consideration of a support,
' '^ guarantied by the witness. Here the plaintiff rested his case. It was
13 "We are still living under the common-law rule which gives the husband
a freeihold estate for the joint lives of himself and his wife in her lands which
she held at the time of her maniage, except such as she held to her sole and
separate use. In this land, therefore, the petitionee has such a freehold inter-
est. In that sense and to that extent it is his estate. He is entitled to the
rents and profits thereof." Hubbard v. Hubbard, 77 Vt. 73, 76, 58 Atl. 969, 67
L. R. A. 969, 107 Am. St. Rep. 749, 2 Ann. Cas. 315 (1904), per Stafford, J. See,
also, Ballantiue & Sons v. Fenn, 88 Vt. 166, 170, 92 Atl. 3 (1914).
4^
) oUiid'
Ch. 5) ESTATES CREATED 583
admitted the defendants had issue born ahve. The defendants re-
quested the court to instruct the jury, that upon this evidence the
plaintiff was not entitled to recover against both defendants, or either.
But the court instructed the jury, that if they believed the said testi-
mony, the plaintiff was entitled to recover possession, of the premises,
and costs, against both defendants ; to which decision of the court, in
admitting parol evidence, in relation to the deed to Mrs. Stearns, and to
the said instructions to the jury, the defendants excepted.
RedfiEld, J.^* * * * The freehold title of the wife being made
out, and the plaintiff's levy being admitted to be formal, and it being
also admitted, that the defendants had issue born alive, it only remains
to inquire whether the defendant, John Stearns, had such an estate in d
the Tand, as was liable to be levied upon by his creditors.
The "statute." pro vide"s. that, "any estate, held by the debtor in his
own right in fee, or for his own life, or the life of another, paying no
rents therefore," shall be subject to be levied upon.
We see no difficulty in considering this an estate, which the debtor
jield in his own right. The title was, indeed, derived through the right
of his wife, but, by virtue of the marriage, he, as husband, acquires cer-
tain rights, among^jyhich, the use of the freehold estate of inheritance
of the wife, during the covcrture,_is__one. After issue born alive, this
estate is enlarged and extends not only during the coverture, but
till the death of the husband, except in one event, which will be named
hereafter. This, in England, after the death of the wife, was denom-
inated an estate by the curtesy, but is strictly an estate, which the hus-
band hofcTi in his own right, whether before or after the death of the
wife. He may bring trespass or ejectment in his own name, for any
injury to the usufruct during the continuance of his estate.
The next inquiry is, whether this is an estate for the life of the debt- ' ■
or. It is undoubtedly true, that this estate might be determined by
a divorce, a vinculo, before the death of either husband or wife. But
this is a contingency of so remote expectation, as not to enter into
the ordinary calculations of the duration of the relation of married
life. It is one of those extreme cases, which, like earthquakes and
tempests in the natural world, or like public executions in the history
of individual existence, do, indeed, sometimes occur, but which no one
feels bound to expect or to provide against.
14 Only a portion of the opinion is given here.
In Canby v. Porter, 12 Ohio, 79 (1813), the plaintiff in ejectment claimed un-
der an execution sale upon a jiidignient against the defendant. The land in
question was owned in fee by defendant's wife. Issue had been born. In up-
holding plaintiff's contention the court said : "'We have been furnished \^'ith no
argument by the defendant; but the plaintiff's right to recover seems plain.
For the interest of the husband is a legal estate; it is a freehold during the
joint lives of himself and wife, with a freehold in remainder to himself for
life, as tenant by the curtesy, and a remainder to the wife and her heirs, in
fee. It is a certain and determinate interest, whose value may be easily as-
certained by reference to well-known rules. It is, in every sense, his 'land,'
■within the meaning of the statute, and liable to respond for his debts."
K2
584 DERIVATIVE TITLES (Part 2
This, then, is an estate for the Hfe of the debtor, depemiing upon
this remote contingency, which no honest or prudent man could antic-
ipate in his own case, and which the law cannot regard until it occurs.
And should the contingency happen, and thus the estate of the levying
creditor be determined, it is no detriment to the debtor, nor has he
any just cause of complaint. His debt is paid, and the loss and risk,
if any, fall upon the creditor.
But if this were a contingency still less remote, it would not change
the character of the estate.
An estate to a woman durante viduitate, or dum sola, or to a man, so
long as he shall dwell in a particular house, are all estates for life,
although each particular class of those estates is liable to be determined
any hour, and that during the life time of the person, by the term of
whose existence the estate is otherwise to be measured. 1 Cruise's Di-
gest, 77. 1 Institutes, 42, a. * * *
The judgment of the County Court is affirmed. ,^jla/ J^^' "
FOSTER V. MARSHALL.
(Superior Court of Judicature of New Hampshire, 3S.51. 22 N. IT. 401.)
Writ of entry. The facts in this case are sufficiently stated in the
opinion of the Court.
Bell, J. The principal question arising in this case, is as to the
effect of the Statute of Limitations upon the demandant's right of
action. It appeared that the demanded premises were set off by a
committee of partition, appointed by the Court of Probate, to Mary
Foster, formerly Mary Eastman, the mother of the demandant,_as her
share of the estate of her father, Samuel Eastman, deceased, on the
14th of May, 1814. Mary Foster was then tine wife of Frederick Fos-
ter, by whom she then had one or more children. Frederick Foster
died in 1834, and his wife in 1836. They had six children, whose
rights are said to be now vested in the plaintiff.
The defendant proved, that in 1817, one Morrill was in possession,
claiming to be the owner of the demanded premises. He conveyed
the same by deed, dated July 3, 1817, to one Marshall, who entered and
occupied, claiming title, till April 30th, 1847, when he conveyed to
the tenant, who has since remained in possession. The tenant claims
that he has a perfect title by thirty years undisturbed and peaceable
possession. The demandant alleges that his right is not barred, be-
cause at the time when tlie disseisin occurred, in 1817, Mrs. Foster
was a feme covert, and up to 1834 her husband had an estate for life
in the premises and she had no right of entry until his decease, and
consequently no right of action till then, and that since that time twenty
years have not elapsed.
Under the Statute of Limitations, which was in force in this State
before the Revised Statutes, it must be considered settled, that the
Ch. 5) ESTATES CREATED 585
Statute did not affect the T\ght of a remainderman or reversioner, dur-
ing the continuance of the particular estate; and that neither the acts
nor the laches of the tenant of the particular estate could affect the
party entitled in remainder. Wells v. Prince, 9 Mass. 503; Walling-
ford V. Hearl, 15 Mass. 471; Tilson v. Thompson, 10 Pick. (Mass.)
359.
No right of entry or action accrued to, or vested in the heirs of the
wife during the continuance of an estate by the curtesy. Jackson v.
Schoonmaker, 4 Johns. (N. Y.) 390.
But the party entitled is not barred, until tlie usual period of limita-
tion after the termination of the life estate. Heath v. White, 5 Conn.
228; Witham v. Perkins, 2 Greenl. (Me.) 400.
If, then, the husband had, in this case, an estate by the curtesy, or
any interest in the land which would entitle his wife, who survived,
to be regarded as seised only in remainder or reversion, she and her
heirs would have the full period of twenty years after the death of tlie
husband, to commence their action.
To constitute a tenancy by the curtesy, the death of the wife is one
of the four things required. The estate of the husband is initiate
upon the birth of issue. It is consummate on the death of the wife.
4 Kent's Comm. 29; Co. Litt. 30, a. r 2fcv^ »/ -^
By the intermarriage, the husband acquires a freehold interest, dur- .'. JHe*^ .
ing the joint lives of himself and his wife, in all such freehold prop-
erty of inheritance, as she was seised of at the time of marriage, and
a like interest vests in him in such as she- may become seised of dur-
ing the coverture. The husband acquires jointly with the wife, a
seisin in fee in the wife's freehold estates of inheritance, the husband
and wife being seised in fee in right of the wife. Gilb. Ten. 108; Co.
Litt. 67, a; Palvblank v. Hawkins, 1 Saund. Rep. 253, n. ; s. c. Doug.
350.
This interest may be defeated by the act of the wife alone ; as if,
at common law, the wife is attainted of felony, the lord by escheat
could enter and eject the husband. 4 Hawk. P. C. 78; Co. Litt. 40, a ;
Vin. Ab. Curtesy, A; Co. Litt. 351, a.
After the birth of issue the husband is entitled to an estate for his
own life, and in his own right, as tenant by the curtesy initiate. Co.
Litt. 351, a, 30, a, 124, b; Schermerhorn v. Miller, 2 Cow. (N. Y.)
439. He then becomes sole tenant to the lord, and is alone entitled to
do homage for the land, and to receive homage from the tenants of
it, which until issue born must be done by husband and wife. 2 Black.
Comm. 126; Litt. § 90; Co. Litt. 67, a, 30, a.
Then he may forfeit his estate for life by a felony, which, until is-
sue born, he could not do, because his wife was tlie tenant. 2 Black.
Comm. 126; Roper, Hus. & Wife, 47.
If the husband, after the birth of issue, make a feoffment in fee, and
then the wife dies, the feoffee shall hold the land during the husband's
586 DERIVATIVE TITLES (Part 2
life; because by the birth of issue, he was entitled to curtesy, jvhich_
beneficial interest passed by the feoffment.. Co. Litt. 30, a.
If such feoffment is .made before issue born, the husband's right
to curtesy is gone, even though the feoft'ment be conditional and be
afterwards avoided. And if in such case the husband and wife be
divorced a vinculo matrimonii, the wife may enter immediately. Gune-
ley's Case, 8 Co. Rep. 7Z.
The husband's estate after issue born, will not be defeated by tlie.at
tainder of the wile,, for his tenancy continues, he being sole tenant.
1 Hale, P. C. 359; Co. Litt. 351, a, 40, a; Bro. Ab. Forf. 78.
y/ The obvious conclusion from these views of the nature of the in-
terest of a tenant by the curtesy initiate is, that such tenant is seised
of a freehold estate in his own right, and the interest of his wife is^
mere reversionary interest, depending upon the life estate of the hus-
band. The necessary result of this is, that the wife cannot be preju-
diced by any neglect of the husband, and of course she may bring her
action, or one may be brought by her heirs, at any time within twenty
^ears after the decease of the husband, when his estate by the curtesy,
whether initiate, or consummate, ceases, and her right of action, or
that of her heirs, accrues. In tliis respect there is no distinction be-
tween curtesy initiate and curtesy consummate. Melvin v. Locks &
Canals, 16 Pick. (Mass.) 140.
So far as we are aware, this principle has never been questioned,
where the inheritance of the wife has been conveyed to a third per-
son, either by the deed of the husband alone, or by a deed executed by
husband and wife, which from some defect did not bind the interest
of the wife. Miller v. Shackleford, 3 Dana (Ky.) 289; Culler v.
Metzer, 13 Serg. & R. (Pa.) 356, 15 Am. Dec. 604; Fagan v. Walker,
27 N. C. 634; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165;
Melius V. Snowman, 21 Me. 201 ; Meraman v. Caldwell, 8 B. Mon.
(Ky.) 32, 46 Am. Dec. 537; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177;
Melvin v. Locks & Canals, 16 Pick. (Mass.) 140. But it has been held,
(Melvin v. Locks & Canals, 16 Pick. (Mass.) 161 ; Kittredge v. Locks
& Canals, 17 Pick. (Mass.) 246, 28 Am. Dec. 296,) that where a dis-
seizin has been committed upon the wife's estate, the disseizin is done
alike to the husband and wife; that a joint right of entry and of ac-
tion accrues to both for the recovery of it, and that if such remedy
is not prosecuted within twenty years, it is barred.
This is true where the husband has acquired no estate by the cur-
tesy, and is seized merely in the right of the wife of her estate. Such
are the cases of Guion v. Anderson, 8 Humph. (Tenn.) 298; Melius
V. Snowman, 21 Me. 201.
And if the husband is tenant by curtesy, as he and his wife are
seized of the fee in right of the wife, the action must be brought by
husband and wife, and a joint seizin in fee alleged in them in her
right. Anon., Buls. 21. Their joint right pj action is barred by the
Ch. 5) ESTATES CREATED 587
J^apse of twentyyears after it accrues. But it by no means follows,
"that the reversionary right of the wife, accruing in possession after
the estate of her husband has ceased, is also barred. It is well settled,
that the same party may have several and successive estates in the
same property, and several rights of entry by._virtu£„oi_those estates,
and one of those rights may be barred without the others being af-
fec^d. Hunt v7Burn, 2 Salk. 422; Wells v. Prince, 9 Mass. 508;
Stevens v. Winship, 1 Pick. (Mass.) 318, 11 Am. Dec. 178; Tilson v.
Thompson, 10 Pick. (Mass.) 359.
And every reason, which can exist in favor of the right of any re-
versioner, applies equally in this case, namely, that a reversioner has
as such, no right of entry and no right of action during the particular
estate, and consequently is not barred until twenty years after his own
right of entry accrued. 2 Sugd. V. & P. 353 ; 3 Steph. N. P. 2920,
n. 10; Wells v. Prince, 9 Mass. 508; Stevens v. Winship, 1
Pick. (Mass.) 318; Wallingford v. Hearl, 15 Mass. 471; Tilson v.
Thompson, 10 Pick. (Mass.) 359; Jackson v. Schoomaker, 4 Johns.
(N. Y.) 390, before cited. Besides, the wife by reason of her dis-
ability can make no entry to revest her estate during the coverture.
Ijitt. p. 403 ; Co. Litt. 246, a. Coke says, in express terms, "after cover-
ture, she (the wife,) cannot enter without her husband."
In Jackson v. Johnson, 5 Cow. (N. Y.) 74, 15 Am. Dec. 433, and
Heath v. White, 5 Conn. 228, this question arose, and was decided in
accordance with our views, and we think upon sounder principles than
the cases in Massachusetts, to which we have referred.
We have compared the provisions of the Revised Statutes with the
older Statutes, and do not perceive, that there is, as to the point in
question, any difference in their effect. Under neither would the plain-
tiff propose to claim any advantage from the proviso. His ground is
not that the ancestor was a married woman, when her right accrued ;
but that her marriage and the birth of one or more children had vested
a life estate in her husband, and that the disseizin was done to him,
and that no right of action accrued to her in virtue of the reversionary
interest, under which her heirs now claim, until she became a widow,
and the husband's estate had terminated ; and that the action is
brought within twenty years after that event. This appears to us a
correct view of the case, and of the law ; and the verdict must there-
fore be set aside, and a
New trial granted. ^/
58S DERIVATIVE TITLES (Part 2
BORLAND'S LESSEE et al. v. MARSHALL.
HUNTER'S LESSEE v. DURRELL.
(Supreme Court of Ohio, 1853. 2 Ohio St. 308.)
Both these cases depend on the same question. They are wrltS-oi
errorjtfi the court of common pleas of Hamilton county, and are part
of the series to which belong the cases of Buchanan v. Roy's Lessee,
2 Ohio St. 251, and Fowler's Lessee v. Whiteman, 2 Ohio St. 270.
In the case of Borland's Lessee v. Marshall, it was proved by the
plaintiffs, that Isabella Hill, a sister of Timothy Trimble, deceased,
acquired title to one-seventh of one-half of the land in controversy,
by the decease of her brother in 1810. That Isabella died leaving is-
sue, of whom Isabella, wife of Charles Borland, was one, and that on
the death of her mother, in 1837, Isabella Borland acquired title, by
descent, to one-fourth of one-seventh of one-half of the land. That
Isabella, the younger, was married to Charles Borland in 1819, and
that she died intestate in 1845, leaving two children as her heirs at
law, who are the lessors of the plaintiff in this case. These facts they
prove by Charles Borland, the husband of Isabella, and the father of
the children.
It was also proved, or admitted by the plaintiffs, that at the date
of the adverse possession of Mr. Longworth, the lands were wild and
unsettled.
In the case of Hunter's Lessee v. Durrell, it was proved by the
plaintiffs, that Elizabeth Trimble, a sister of Timothy Trimble, was
married, in 1790, to Samuel Hunter, by whom she had lawful issue.
That Elizabeth Hunter died about the year 1838, leaving issue, who
are the lessors of the plaintiffs, and that her husband and the father
of the plaintiffs was living when this suit was brought. The lands
were wild, and all the lessors of the plaintiffs were non-residents of
the State of Ohio.
The plaintiffs then rested their cause, and a motion was made by
the defendant in each suit for non-suit on the ground that, by the plain-
tiff's own showing, a freehold estate was outstanding in Messrs. Bor-
land and Hunter, respectively, as tenants by the curtesy, and that no
recovery could be had on the demises of the present plaintiffs during
the existence of the estates by the curtesy. These motions the court
allowed, and directed judgment of nonsuit, which were accordingly
entered.
The_plaintiffs in each case took a bill of exceptions to the action
of the court in granting the judgment of nonsuit, and to review that
action of the court upon these motions these writs of error are prose-
cuted.
Thurman, J. The decision of this cause depends upon the answer
that shall be given to the following question : Is a man entitled to
Ch. 5) ESTATES CREATED 589
curtesy in lands, the title to which descended to his wife during cover-
ture, but which were in the actual possession of an adverse claimant
from the time her title accrued until her death ? It is very clear that.
by the strict rule of the common law, he is not; and for the reason
tliat neither the wife, nor the husband in her right, was, at any time
during coverture, actually seized of the premises. Four_things. ac-
cording to the common law, are necessary to create an estate by the
curtesy, viz: marriage, seizin of the wife, issue, and death of tlie wife.
Co. Lit. 30a. And where the wife's title is derived by inheritance, or
any other mode requiring an entry to perfect it, the seizin must be
in deed, and not merely in law. Co. Lit. 29a; Jackson v. Johnson, 5
Cow. (N. Y.) 98, 15 Am. Dec. 433.
But it is contended, that in Ohio seizin is unnecessary ; and this
leads us to inquire: L What is the reason of the common-law rule
requiring seizin? 2. Does the reason exist in this state. 3. If it does
not, is the maxim applicable, "cessante ratione, cessat ipsa lex," the
Reason ceasing, the law itself ceases?
The books generally, and with but few exceptions, give but one rea-
son for the rule making seizin indispensable to curtesy, namely, that
as, by the common law, livery of seizin was necessary to the transfer
of a freehold estate by deed, and an entry necessary to perfect the
title to such an estate, of an heir or devisee, it followed that unless the
wife, or the husband in her right, was actually seized, her issue could
never, as her heirs, inherit the lands ; for, owing to the want of
actual seizin, she never acquired an inheritable estate. But unless she
had an estate of inheritance there could be no curtesy, as it was in-
dispensable to the existence of curtesy that the mother be seized of an
estate which might descend to her heirs, and "the tenancy by curtesy
is an excrescence out of the inheritance." 3 Bac. Abr. 11 (Bouvier's
edition).
Thus, Littleton says (section 52) : "And memorandum that, in ev-
ery case where a man taketh a wife seized of such an estate of tene-
ments, etc., as the issue which he hath by his wife, may by possibility
inherit the same tenements of such an estate as the wife hath, as heire
to the wife; in this case, after the decease of the wife, he shall have
tlie same tenements by the curtesie of England, but otherwise not."
Commenting on the above expression, "as heire to the wife," Coke
says : "This doth implie a secret of law, for except the wife be actually
seized the heire shall not (as hath been said) make himself heire to
the wife ; and this is the reason that a man shall not be tenant by tlie
curtesie of a seisin in law." Co. Lit. 40a.
And, in illustration of the law that the wife must have an estate in-
heritable by her issue, the following case is put: "If lands be given
to a woman and to the heires males of her body, she taketh a hus-
band and hath issue a daughter and dieth, he shall not be tenant by
the curtesie ; because the daughter by no possibility could inherit the
mother's estate in the land; and therefore where Littleton saith, issue
590 DERIVATIVE TITLES (Part 2
by his wife male or female, it is to be understood, which by possi-
bility may inherit as heir tO' her mother of such estate." Co. Lit. 29b.
Blackstone puts the same case, and adds : "And this seems to be the
principal reason why the husband can not be tenant by the curtesy of^
any lands of which the wife was not actually seized, because, in order
1:0 enl;itle himself to such an estate, he must have begotten issue that
may be heir to the wife ; but no one, by the standing rule of law, can_
be heir to the ancestor of any land, whereof the ancestor was not. actuj_
alTy seized." 2 Bla. Com. 128.
In a subsequent passage, he suggests an additional reason. It is
as follows : "A seizin in law of the husband will be as effectual as a
seizin in deed, in order to render the wife dowable : for it is not in
the wife's power to bring the husband's title to an actual seizin, as
it is in the husband's power to do with regard to the wife's lands ;
which is one reason why he shall not be tenant by the curtesy, but of
such lands whereof the wife, or he himself in her right, was actually
seized in deed." 2 Bla. Com. 132. The only authority referred to by
Blackstone, in support of the above, is Co. Lit. 31, where the diversity
between dower and curtesy is noticed, but no such reason as Black-
stone gives for denying curtesy is stated, although it may be inferred.
What Coke says is as follows : "For a woman shall be endowed of a
seizin in law. As where lands or tenements descend to the husband,
before entry he hath but a seizin in law, and yet the wife shall be en-
dowed, albeit it be not reduced to an actual possession, for it lieth not
in the power of the wife to bring it to an actual seizin, as the husband
may do of his wife's land when he is to be tenant by tlie curtesy, which
is worthy the observation."
As before observed, it is only by inference that this passage sup-
ports Blackstone's remark. It is to some extent fortified, however,
by the following language in 7 Viner's Abr. 149, namely : "Feme shall
be endowed of a seizin and possession in law, without seizin in deed,
quod nota; for otherwise it is of tenant by the curtesy, and the rea-
son seems to be, inasmuch as the baron may enter in jure uxoris, but
the feme can not compel her baron to enter into his own land."
On the other hand, the following extract from 3 Bac. Abr. 12, is
certainly opposed to the existence of this reason, as the idea is re-
jected that the allowing or disallowing curtesy is dependent on the
ability or inability, industry or negligence, of the husband. "But now
of such inheritances, whereof there can not possibly be a seizin in fact,
a seizin in law is sufficient ; and therefore if a man seized of an advow-
son or rent in fee, hath issue a daughter, who is married and hath
issue, and he dieth seized, and the wife dieth likewise before the rent
becomes due, or the church becomes void, this seizin in law in the wife
shall be sufficient to entitle her husband to be tenant by the curtesy,
because, say the books, he could not possibly attain any other seizin,
as indeed he could not ; and then it would be unreasonable he should
suffer for what no industry of his could prevent. But the true reason
Ch. 5) ESTATES CREATED 591
is, that the wife hath these inheritances which lie in grant, and not in
hvery, when the right first descends upon her; for she hath a thing
in grant when she hath a right to it, and nobody else interposes to
prevent it."
In Davis v. Mason, 1 Pet. 507, 7 L. Ed. 239, the foundation of the
rule is thus stated in the opinion of the court: "As it relates to the
tenure by curtesy, the necessity of entry grew out of the rule, which
invariably existed, that an entry must be made in order to vest a free-
hold (Co. Lit. 51), and out of that member of the definition of the
tenure by curtesy which requires that it should be inheritable by the
issue. When a descent was cast, the entry of the mother was neces-
sary, or the heir made title direct from the grandfather, or other per-
son last seized."
A careful examination of the authorities makes it quite apparent that
this is a correct statement of the principal, if not the only, reason of
the rule. No other reason is found in the books, except the suggestion
before referred to, that curtesy is refused where there was no actual
seizin, because the husband might, by diligence, have obtained such
seizin. But this idea, as we have seen, is not universally admitted.
Our next inquiry is, Do thej^e reasons, or either of tliem^_exist_in^ ^^
Ohio?
That livery of seizin has never been essential, in Ohio, to the crea-
tion of a freehold estate, nor an entry necessary to perfect the title
of an heir or devisee, is well known to every lawyer. The most com-
mon instrument of conveyance is a deed^ofbargain_arads_ale,. which,
without the aid of a statute of uses, transfers both the legal and equita-
ble estate. Nay, further, a mere deed of quitclaim, or release, is suffi-
cient, even where the releasee has no prior interest in the land. But
our departure from the English law does not stop here ; for an adverse
possession does not prevent the transfer of title, either by deed, de^
scent, or devise. Whatever title is held by the grantor, ancestor, or
testator, may be thus transferred, notwithstanding the lands are ad-
versely held by another. Holt v. Hemphill, 3 Ohio, 232 ; Helfenstine
V. Garrard, 7 Ohio, 275, pt. 1, Hall v. Ashby, 9 Ohio, 96, 34 Am. Dec.
424. It might seem, from what was said in Holt v. Hemphill, that
an adverse possession would be fatal to a deed ; but that such posses-
sion in no wise affects it, was expressly decided in Hall v. Ashby.
As, then, a freehold estate is created in Oh^o without entry, it is
manifest that the principal, if not the only reason, of the rule requir-
ing actual seizin to give curtesy does not exist in this state.
But allowing that the minor reason before stated did exist in Eng-
land, does it exist here? Ought a husband to be denied curtesy in
Ohio upon the ground that he might have entered upon the land dur-
ing coverture, and that if he did not, he was guilty of a fault that de-
servedly bars his right? There may have been much reason for say-
ing so in England, when the rule requiring seizin was established ;
for, by the failure of the husband to enter, the wife and her issue
y
592 DERIVATIVE TITLES (Part 2
might lose tlie estate, which it was plainly his duty to prevent, if pos-
sible. j.)Ut in Ohio her title is as perfect before as after entry; and.
in general, it would be nothing less than absurd to make a man's right
depend upon whether he had gone for a moment upon the land and
"broken a twig," or "turned a sod," or "read a deed." There is, how-
ever, one case, and perhaps but one, in which, if curtesy exists, the
heirs of the wife might be prejudiced by a failure of the husband to
obtain possession, namely, when by such failure the bar of the statute
of Hnu'tations becomes perfect against them. But this would probably
occur so rarely as to furnish but a slight foundation for the rule we
are considering. Nor is it the only case in which a remainderman, or
reversioner, may be powerless to preserve his estate. If A, tlie owner
in fee of lands in the adverse possession of B, devise or convey them
to C for life, with remainder to D, it is manifest that, as the statute
of linn'tations began to run against A, and therefore continues to run
against C and D, the latter may lose his estate through the neglect
or failure of C to obtain possession. So, when the statute begins to
run against a feme sole, and she afterward marry, she may lose her
land by the nesflect or inability of her husband to recover it.
These possible cases of hardship it is the province of legislation to
guard against, and not of the courts. Were we to say that there shall
be no curtesy where the possession was held adversely during the cov-
erture, because to give it m.ight, by possibility, result in the loss of the
estate to the heir, it is very probable that, in guarding against hardships
on the one side, we would open the door to quite as much, or more,
hardship on the other. For it is very far from being true that the
failure to obtain possession during the coverture, is always attributable
to the husband's neglect. He may have freely spent his time, labor,
and money to recover the land, and yet, without any fault of his, be
unable to succeed in the lifetime of the wife. Decide as we may, and
doubtless there will be room for cases of hardship to arise; but, as was
truly said by Duncan, J., in Stoolfoos v. Jenkins, 8 Serg. & R. (Pa.)
173: "Courts can not usurp legislative functions, or new-model the_
law according to their own ideas of natural justice, or redress hard-
ships in each particular instance." And it is never to be forgotten that
all wise laws are framed with a regard to what is likely to occur, rather
than to that which is only possible.
On the whole, the conclusion to which we have arrived is, that nei-
ther of the reasons given for making actual seizin indispensable to
curtesy, affords any sufificient foundation for the rule in Ohio. It re-
mains to be considered whether the reason of the rule having ceased,
or rather never having existed in this state, the rule itself exists here.
Tenancy by the curtesy has always been known to our law and is recog-
nized by our statutes. We can not deny its existence ; but may we not
deny the necessity of a requisite, that properly enough formed a place
in the common law, but has no reason to support it in our jurispru-
dence? We are materially aided in this inquiry by the American deci-
Ch. 5) ESTATES CREATED 593
5ions upon the subject of curtesy. These decisions may be reduced into
three classes :
1. Those in which there being no adverse possession, the husband
and wife were held to be constructively seized in deed, and such con-
structive seizin deemed sufficient.
2. Those in which there was an adverse possession ; but a recover}-
in ejectment, on the demise of the husband and wife or the husband
alone, took place during the coverture ; and in which there was held to
be curtesy, although no actual possession followed the recovery.
3. Those in which an adverse possession was decided to be no bar
to curtesy.
Of the first class, Jackson v. SelUck, 8 Johns. (N. Y.) 262. and Davis
v. Mason, 1 Pet. 506, 7 L. Ed. 239, may properly, perhaps, be called
the leading cases. . Many others might be cited, for the general current
of American authority certainly admits curtesy in this class of cases.
Of the second class, Ellsworth v. Cook, 8 Paige (N. Y.) 643, is the
leading case.
To the third class, belong Bush v. Bradley, 4 Day (Conn.) 298, ap-
proved in Chew v. Comm'rs of Southward, 5 Rawle (Pa.) 160, etc.
Now, a careful scrutiny of these cases will show that, in nearly all
of them, the decisions were arrived at by an application of the ma.xim
"cessante ratione, cessat ipsa lex." It was so expressly declared in
Davis V. Mason. That case respected lands in Kentucky. After giving,
in the passage hereinbefore quoted, the reason of the rule requiring
seizin, the judge, who delivered the opinion of the court, went on to
say: "But in Kentucky, we understand, the livery of seizin is un-
heard of. Freeholds are acquired by patent, or by deed, or by descent,
without any further ceremonies ; and in tracing pedigree, the proof of
entry, as successive descents are cast, is never considered as necessary
to a recovery, or in any mode affecting the course of descent. If a
right of entry therefore exists, it ought by analogy to be sufficient to
sustain 'the tenure acquired by the husband, where no adverse posses-
sion exists ; as it is laid down in the books relative to a seizin in law,
'he has the thing, if he has a right to have it.' Such was not the an-
cient law ; but the reason of it has ceased. It has been shown, that in
the most remote periods exceptions had been introduced on the same
ground ; and in the most modern, the rule has been relaxed upon the
same consideration. We ought not to be behind the British courts in
the liberality of our views, on the subject of this tenure."
So in Jackson v. Sellick the court said: "We must take the rule -Ar
(requiring seizin) with such a construction as the peculiar state of new
lands in this country require."
Both these cases seem to proceed on the ground that the wife, though
not actually, was yet constructively seized in deed. Hence the allusion,
in. each case, to the fact that there was no adverse possession to rebut
the presumption. The question whether an adverse possession would
Aig.Peop.— 38
594 DERIVATIVE TITLES (Part 2
be fatal to the claim to curtesy was not presented. The cases in effect
decide, not that seizin in deed is indispensable, but that, if there must,
^ be seizin, a constructive seizin is sufficient. But in Bush v. Bradley,
the question was directly raised. The premises, during the whole pe-
riod, of the coverture, were adversely held by a third person. Yet the
husband was adjudged to be tenant by the curtesy. The real estate
law of Connecticut was, in all respects material to the present inquiry,
the same as that of Ohio; and the court held that, as the reason of the
rule requiring seizin did not exist, seizin was unnecessary, and that the
symmetr}^ of the law required this decision. To the same effect is the
following language of the court in Stoolfoos v. Jenkins, 8 S. & R. 175 :
"The actual seizin of the husband during coverture is necessary to enti-
tle him, as tenant by the curtesy, by the common law ; though such ac-
tual seizin by the husband is not necessary by our law, if there be a
potential seizin, or right of seizin. This has been decided to be suffi-
cient in this state." This ruling, as well as the case of Bush v. Bradley,
was approved in the case in 5 Rawle, 160, before cited, the court hold-
ing that it was sufficient to entitle the husband to curtesy, that the wife
owned the land and had a right "to demand and recover the immediate
possession thereof." ^^
In the light of these decisions, and the considerations upon which
they rest, we can hardly err in holding that the reason, or reasons, of
the rule requiring seizin in deed, having no existence in Ohio, the rule
^ itself does not exist. And, certainly, tlie symmetry of our law demands
this. It would be strange indeed, and only lead to confusion and per-
plexity, if, while every other tenancy may be created in this state with-
out entry, or regard to the fact of adverse possession, a tenancy by the
curtesy could not. Nor does a rule strongly commend itself to the good
sense of men that makes the existence of the estate depend upon an
almost, or quite, imaginary distinction between seizin in law and con-
structive seizin in deed. The constructive seizin relied on in Jackson
V. Sellick, Davis v. Mason, and Ellsworth v. Cook, was in substance
nothing but a seizin in law. It is a mere fiction to say that a man is
actually possessed of that v\'hich is in no one's possession, and it is
plainly untrue to say so when the thing is in the possession of another.
The reasoning of the courts in all these cases, if carried to its legiti-
mate result, makes seizin in deed, either actual or constructive, wholly
unnecessary ; and this result is not in conflict with the principles of the
common law. For even at common law, a seizin in law is sufficient to
give curtesy in all inheritances created without entry. 3 Bac. Abr. 12 ;
Jackson v. Johnson, 5 Cow. (N. Y.) 98, 15 Am. Dec. 433; Ellsworth
V. Cook, 8 Paige (N. Y.) 643. It is therefore a mere application of a
common-law principle to say that a seizin in law is sufficient in Ohio,
where in no case is an entry necessary to create an inheritance. In the
case before us, Mrs. Borland was seized in law, for "seizin in law is a
right to lands and tenements, though the owner is by wrong disseized
IS Buchanan v. Duncan, 40 Pa. 82 (1S61), ace.
Ch. 5) ESTATES CREATED 595
of them." 6 Jacob's Law Die. 41. Her husband, there being issue
born, became tenant by the curtesy, and as he was yet in life when the
ejectment was brought by her heirs, the common pleas did right to
nonsuit them.
The decision of this case also decides the case of Doe ex dem. Hun-
ter et al. V. Durrell ; the only difference in tlae cases being that there was
an adverse possession in the one and not in the other. ^"^
J^J^ ^ WATSON V. WATSON. - -
(Supreme Court of Errors of Connecticut, 1839. 13 Conn. 83.)
This was an action of ejectment; tried at Hartford, September term,
1838, before Bissell, J.
In the life-time of Ann Watson, and until her death, the demanded
premises were owned by her in fee; and the plaintiffs are her children
and heirs at law, by John Watson, to whom she was lawfully married,
and who is still living. The plaintiffs claimed, that John Watson had
not an estate by the curtesy in the premises ; and to establish this point,
they offered in evidence the following writing, under his hand and seal,
dated the 23rd of February, 1837, after the death of his wife: "Know
all men, by these presents, that I, John Watson, do hereby publish, de-
clare and make known, to all whom it may concern, and especially the
heirs and children of my late wife, Ann Watson, that I have not, at
any time hitherto, and now do not claim, demand, possess, or in any
manner or to any extent whatever, have, or pretend to have, any right,
title or interest in three pieces of land (describing the premises) but do
now fully, absolutely and without any reservation, disclaim and reject
any and all right, title and interest in the same, which I might or could
have had, by operation of law or otherwise, by reason of my surviving
my said wife, or any title to said premises which she had during her
16 See De Grey v. Richardson, 3 Atk. 469 (1747).
Lands are conveyed to A. for life, remainder in fee to B., a woman. B. mar-
ries, issue is born, and B. dies, all during tJie lifetime of A. Is B.'s husband en-
titled to an estate by the curtesy? See Todd v. Oviatt, 58 Conn. 174, 20 Atl.
440, 7 L. R. A. 693 (1SS9) ; Redus v. Hayden, 43 Miss. 614 (1870) ; Dozier v.
Toalson, 180 Mo. 546, 79 S. W. 420, 103 Am. St. Rep. 586 (1904) ; Ferguson v.
Tweedy, 43 N. Y. 543 (1871) ; Watkins v. Thornton, 11 Ohio St. 367 (1860).
As to the rights of the husband of a trustee or cestui que trust, see Kenne-
son's Cases on Trusts, 223 et seq. ; Ogden v. Ogden, 60 Ark. 70, 28 S. W. 798,
46 Am. St. Rep. 151 (1894) ; Carson v. Fuhs, 131 Pa. 256, IS Atl. 1017 (1890).
Lands are conveyed to a woman and the lieirs of her body ; she marries,
has issue which dies, and then she dies mthout issue, leaving her husband sur-
viving. Is her husband entitled to curtesy? See I'aine's Case, 8 Co. 34 (1587).
An estate is devised to a woman in fee, with limitation over, in case she dies
under the age of twenty-one, without issue ; she marries, has issue which dies,
and then she dies under twenty-one, leaving her husband surviving. Is lie
entitled to curtesy? See Buckworth v. Thirkell, 3 Bos. & P. 652, note (1785).
See, also, Buchannan v. Sheffer. 2 Yeates (Pa.) 374 (1798) ; Weller v. Wener,
28 Barb. (N. Y.) 588 (1858) ; Hatfield v. Sneden, 54 N. Y. 280 (1873) ; Withers
V. Jenkins, 14 S. C. 597 (1880).
596 DERIVATIVE TITLES (Part 2
life." This writing was signed and sealed by John Watson, attested by-
two witnesses, acknowledged before a justice of the peace, and recorded
in the town records. It was admitted by the plaintiffs, that John Wat-
son was tenant by the curtesy of the demanded premises, and that they
could not recover in this action, unless by operation of this writing, he
had no such estate. The defendant objected to the admission of it in
evidence to the jury; and the court rejected it; and a verdict passed,
for the defendant. The plaintiffs thereupon moved for a new trial.
Waite, J. The object of a disclaimer, is, to prevent an estate pass-
ing from the grantor to the grantee. It is a formal mode of expressing
the grantee's dissent to the conveyance before the title has become
vested in him. In some cases, it may be highly proper; as where a
deed is made conveying an estate to one for life, with a remainder to
another in fee. Here, in the absence of all evidence to the contrary, the
law would presume the assent of the grantee in remainder, upon de-
livery of the deed to the grantee for life, for the benefit of both. But
if the remainder-man chooses not to take the estate, he may disclaim,
and thereby remove all presumption of assent. So, where a deed is
executed to several persons, and delivered to one for the benefit of all,
if one dissents, he may disclaim, and furnish evidence that his share
still remains in the grantor. Treadwell et al. v. Bulkley et al., 4 Day,
395.
But if the grantee once assents, and the title thereby becomes vested
in him, he cannot, by any disclaimer, revest the estate in the grantor.
For if he could, the disclaimer would have the effect of a deed, which_
it cannot have; the object of the latter being to transfer property, of ^
the former to prevent a transfer.
But in a case of descent, the heir cannot, by any disclaimer, prevent
the estate from passing to him. It vests in him immediately upon the
death of the ancestor; and no act of his is required to perfect his title.
He cannot, by any act, cause the estate to remain in the ancestor ; for
the latter is incapable of holding it, after his death. Nor can he, by a
disclaimer, transfer the estate to any other person, as tlie heir of the
ancestor : for, as has already been observed, the object of a disclaimer
is not to convey, but to prevent a conveyance. He is, therefore, in the
same situation, upon the death of the ancestor, as a purchaser, who has
assented to the conveyance. In both cases, a transfer can only be made,
by some instrument adapted to the conveyance of real estate.
A devisee, however, stands in the same situation as a purchaser. If
he dissents, the estate passes to the heir, in the same manner as if no
will had been made. It is entirely optional with him to take or refuse
the estate devised. Townson v. Tickell et al., 3 Barn. & Aid. 31.
In the present case, the disclaimer was made by one who was entitled
to the property as tenant by the curtesy. Is he, in this respect, like a
grantee, or an, heir ? This species of estate has sometimes been classed
with those acquired by purchase. But it is rather an estate thrown
upon tlie tenant by operation of law. Co. Litt. 18b. It partakes more
Ch. 5) ESTATES CREATED 597
of the character of an estate acquired by descent than by purchase.
Immediately upon the death of the wife, the estate vests in him. Like
the heir ,"Tie cannot, by refusing to take it, cause it to remain in the
wifej_ nor can he, by a disclaimer, transfer it to others. The estate
thus vested in him, becomes immediately liable for his debts ; and he
cannot, by any refusal to take the property, defeat the claims of his
creditors.
The disclaimer offered in evidence could have no effect in shewing
a title in the plaintiffs; and was properly rejected by the court.
We are, therefore, satisfied, that no new trial should be granted.
In this opinion the other Judges concurred.
New trial not to be granted. ^^
(Q Wife's Interest in Husband's Realty
LITTLETON'S TENURES.
Tenant in dower is, where a man is seised of certain lands or tene- . ' c
ments in fee simple, fee tail general, or as heir in special tail, and taketh // y
a wife, and dieth, the wife after the decease of her husband shall be / ^ .^-C*^^*^
endowed of the third part of such lands and tenements as were her €C~ ^
husband's at any trme during the coverture, to have and to hold to /
the same wife in severalty by metes and bounds for term of her life,
whether she hath issue by her husband or no, and of what age soever
the wife be, so as she be past the age of nine years at the time of the
death of her husband, (for she must be above nine years old at the
time of the decease of her husband,) otherwise she shall not be en-
dowed.
Section 36.
BROUGHTON v. RANDALL.
(Court of Queen's Bench, 1596. Cro. Eliz. 502.)
Error of a judgment in Wales in dower. * * *
Note here, the title of the feme to recover dower was, that the fa-
ther and son were joint-tenants to them and the heirs of the son ; and
they were both hanged in one cart ;. but because the son (as was deposed
by witnesses) survived, as appeared by some tokens, viz., his shaking
his legs, his feme thereupon demanded dower. And upon this issue
nunques seisie dower, this matter was found for the demandant.*"
17 See In re Starbuck's Estate, 137 App. Div. 866, 122 N. Y. Supp. 584 (1910; ;
Id., 201 N. Y. 531, 94 N. E. 109S (1911) ; Crenshaw v. Moore, infra, p. 616.
"Curtesy is abolished or modified, in many states, by statutes which must be
consulted." 4 Kent's Comm. *29, note.
ISA part of the report relating to another point is omitted.
598 DERIVATIVE TITLES (Part 2
HOLEROOK V. FINNEY.
(Supreme Judicial Court of Massachusetts, ISOS. 4 Mass. 5G6, 3 Am. Dec. 243.)
This was an action for dower in several parcels of land which Han-
nah Holbrook demands on the seizin of her deceased husband Ezra
Finney during the coverture.
The cause came before the court on a case stated by the parties, in
^"-^"-^^ which it is agreed that John Finney, the father of Ezra and of three
other sons, was seized of the premises in fee, and on the 13th of
Alarch, 1786, by his deed of that date, in consideration of £400. con-
fj ^^^^. veyed the premises with other parcels of land to his said four sons in
equal proportion in fee simple, the demandant then being the wife of
^ Ezra ; that immediately and by a deed of even date with the deed from
John, the four sons mortgaged the same lands to their father in fee,
to secure to him the payment of the said sum of i400. with interest,
and also a maintenance during his life; that these deeds were duly
acknowledged on the same day, and registered the day after; that in
December in the same year^zra, the husband of the demandant, died;
that in 1787 the mortgagee foreclosed the mortgage,, the conditions
thereof having been broken; that in 1790, by virtue of the levying of
an execution to satisfy a judgment recovered against John Finney the
father by the present tenant, he became seized in fee of the premises
described in the writ; and that the execution of the said deeds was in
pursuance of a previous agreement to the same effect made between
the parties.
Upon these facts it was submitted to the court whether the demand-
ant was entitled to recover her dower.
Parsons, C. J. [After reciting the substance of the case as agreed
by the parties:] The question before the court upon these facts, is
whether Ezra Finney the husband was, during the coverture, so seized
of the premises, that the demandant has a right to her dower. He was
not so seized, unless from the operation of tlie deed from his fatlier
to himself and his three brothers.
The tenant has made two objections. 1. That this conveyance was
of an estate to jointenants, of which the demandant's husband was not
the survivor. 2. That her husband had that instantaneous seizin only,
which will not entitle her to dower.
It is settled that if an estate be devised to two or more equally to be
divided, they are tenants in common. The same construction is applied
to a devise to two or more share and share alike. Show. Pari. Cas. 210.
Also the words equally to be divided in a covenant to stand seized, or
in the surrender of a copy-hold, or in a deed appointing uses, create a
tenanc)' in common. 2 Vent. 365, 6; 1 Salk. 391 ; 1 Wils. 341, 2. This
construction has been adopted, because the words in equal shares, or
equally to be divided, import a division in futuro.
The words in this deed are in equal proportion; and it is said that
Ch. 5) ESTATES CREATED 599
they do not imply a future division, but are applied only to the re-
spective interests in the thing conveyed. On this ground they must be
considered as wholly inoperative ; for without them, the grantees would
have taken an equal interest in the lands granted. To give them opera-
tion, may they not be considered as equivalent to the words in equal
purparties or shares, and thus contemplate a future partition?
But it is not necessary now to decide this point, for by the statute
of 1785, c. 61, passed three days after the execution of these deeds, it
is enacted that all estates which had been, or which should be aliened
to two or more persons, shall be deemed to be tenancies in common,
unless it be manifestly the intent of the alienor that they should be held
as joint estates ; with a saving to the survivor of any estate in jointen-
ancy before created and already vested in him. This statute has a re-
trospective effect, and comprehends this conveyance ; and there seems
to be no constitutional objection to the power of the legislature to alter
a tenure, by substituting another tenure more beneficial to all the ten-
ants.
If this objection had been pressed, it would have been unnecessary
to consider it, as the statute of 1783, c. 52, in force when the deeds
were executed, although repealed by the last cited statute, had abolished
the principle of survivorship among jointenants, and had enacted, that
on the death of a jointenant, the joint estate, of which he was seized,
should descend to his heirs. In consequence of these provisions, the
wife of a jointenant is dowable, as on the death of her husband there
could be no survivor, who would be in by a title paramount to her claim
of dower.^®
The demandant must therefore recover, unless the second objection
should prevail. It certainly is law that where thfe husband is seized but
for an instant, of this seizin his wife shall not be endowed. The seizin
for an instant is where the husband by the same act, or by the same
conveyance, by which he acquires the seizin, parts with it. Thus if
tenant for life make a feoffment in fee his wife shall not be endowed,
for by making the same feoffment which passed the fee, he acquired a
fee. 2 Cro. 615. And if a joint-tenant make a feoffment, his wife shall
not be endowed, for by the feoffment he was seized of a several estate
but for an instant, which he acquired and parted with by the feoffment.
So if a feoffment be to B. and his heirs to the use of C. and his heirs,
the wife of B. shall not be endowed, for he was but an instrument; and
the same feoffment, which gave him the seizin, by the statute of uses
transferred it to C. Nor shall the wife of the conusee of a fine be en-
dowed, when by the same fine the estate is rendered back to the conu-
sor. 2 Co. 77 , a.
Let us now compare the present conveyances with these principles,
for the previous agreement may be laid out of the case. If the deeds
19 Davis V. Logan, 9 Dana (Ky.) 185 (1839), ace. State statutes not uncom-
monly have abolished the survivorship feature of joint tenancies.
600 DKuivATivii TiTLKs (Part 2
pursue it, it is useless: an-l if they do not, we myst he £^overried wholly
by the construction of the deeds. T]]*^ mortgage back to the father,
from the terms of it, is of even date with the conveyance from him^
They are therefore to be considered as parts of the same contract, and
as taking elT['ect_a.t the same instant, The conveyance from the father
took effect when he delivered his deed ; the mortgage back took effect
when the mortgage deed was delivered ; but both being of even date
vyere delivered at the same time. The mortgagors were therefore seiz-
ed but for an instant, taking an absolute estate in fee, and instantane-
ously rendering back a conditional estate in fee. T^hese two instru-
ments must therefore be considered as parts of one and the same coji-
tract between the parties ; in the same manner as a deed of defeazance
forms with the deed to be defeated but one contract, although en-
grossed on several sheets ; and no interval of time intervened between
the taking, and the rendering back of the fee.
But if the husband had continued seized for any portion of time^.
however short, his wife would have been entitled to dower; as if the
conveyance back had been made posterior in point of time, or by a
deed distinct from the first grant. There is the case of Nash v. Preston
reported in Cro. Car. 190, illustrating and supporting these principles.
In that case J. S. seized in fee bargains and sells the land to the hus-
band for £120. in consideration that the bargainee shall redemise it to
the bargainor and his wife for twenty years, rendering a nominal rent,
with a condition that if the bargainor at the end of twenty years paid
back the £120. the bargain and sale should be void. The bargainee ac-
cordingly redemised it and dies. His wife shall have dower because
the land by the bargain and sale was vested in the husband. But it
would have been otherwise if the land was in, and was out of the hus-
band by one act. In the case at bar, the execution of the two deeds,
they being of even date, w^as done at the same instant, and constitutes
but one act.
The demandant therefore cannot support her claim, as her husband
was never so seized as to entitle her to dower. According to the terms
of the agreement submitting the case to the court, the demandant must
become nonsuit. , ir /
shoe:maker v. walker.
(Supreme Court of Pennsylvania, 1S14. 2 Serg, & E. 554.)
Case stated for the opinion of the Court. By the last will and
testament of Phcebe Shoemaker, deceased, dated the 2d August, 1788,
and by a deed of trust from Benjamin Shoemaker and Elizabeth his
wife, to John Reynell, bearing date the 31st October, A. D. 1765,
Charles Shoemaker, "was vested with, and entitled to the remainder
of one-eighth of all the real estate in the said deed mentioned after
Ch. 5) ESTATES CREATED 601
the life estate thereby given to his mother, EHzabeth Shoemaker, shall
have expired," &.c.
On the 4th June, 1792, Charles Shoemaker, by deed in considera-
tion of a debt of above 4,000 pounds sterling to Hathrip & Co. and
to secure the same, also of 20 shillings, granted, &c. to John White-
sides "all his estate, right, title, interest, claim and demand, of, into,
and out of all the residue of the remainder of the said one-eighth
of the real estate above-mentioned, as well as all and every the real
estate of him, the said Charles Shoemaker, wheresoever the same may
be, and whether it be in possession, reversion, or remainder."
The demandant was married to Charles Shoemaker on the 7th i- 1 - ^
January, A. D. 1798.
Elizabeth Shoemaker, the mother of Charles, died the 23d April, ■'-■'
1798.
Charles Shoemaker died the 4th April, 1807, leaving a widow and
children.
John Whitesides, in the life-time of Elizabeth Shoemaker, viz. on
the day of granted and conveyed the estate in question
to the defendant.
The question submitted to the decision of the Court is, whether
the widow is entitled to her dower in the estate so devised to Charles.
Shoemaker? If the Court shall be of opinion in the affirmative, then
judgment to be entered for the demandant for an amount to be ascer-
tained by the counsel. Otherwise, judgment to be for the defendant.
TiLGHMAN, C. J. In this case two questions are made. 1. Whether % '■'^
a widow is entitled to dower of a trust estate. 2. Whether she is en-
titled to dower of an estate, the remainder of which in fee was vested
in her husband, dependent on an estate for life in a third person,
which said remainder her husband had aliened during the coverture.
1. In England a woman is not dowerable of a trust estate although
a husband may be tenant by the curtesy. This is the more remark-
able, as dower is the favourite of the common law. A woman has
her dower where the husband had only a seisin in law, but a man can-
not be a tenant by the curtesy unless there was a seisi^n jii Jact. .\'o
good reason has been assigned for excluding the wife of her dower
in a trust estate. It rests upon usage, which though not now ap-
proved cannot be altered by any authority less than the parliament.
In Pennsylvania the usage has been more reasonable and more anal-
ogous to the general principles of dower. The husband and wife
are placed on an equal footing. He has his tenancy by the curtesy,
and she has her dower. I do not know that the question has ever
been brought to a decision in this Court. The reason of this I take
to be, that it has never been doubted. I have frequently heard it
taken for granted, but never seriously questioned. I do not under-
stand that the learned counsel who now makes the point, supposes
the law to be in his favour. But he wishes it to be settled by a sol-
emn decision. It is best that it should be so. My opinion is, that
602 DERIVATIVE TITLES (Part 2
by the usage and law of Pennsylvania a woman is dowable of a trtist_
estate.^"
2. By the common law there can be no dower, unless the husband
is seised Tn^act or in law of the freehold, as well as the estate of
inheritance, during the coverture. This is not questioned by the
counsel for the demandant. But he supposed, that in this state the
law might be different, in consequence of some provisions in our
intestate acts. He has, however, very candidly and very proper-
ly declared, that upon examining the act of assembly he finds, that
its provisions are not applicable to a case where the husband had
aliened his whole interest by deed. That is the present case. The
jemandant^ therefore, is not entitled to a recovery of ^ower.
Ydat^s, J., and Brackenridge, J., concurred.
BATES v. BATES.
(Court of Common Pleas, 1697. 1 Ld. Raym. 326.)
Dower. The tenant pleads, that the husband ne unques fuit seisie
que dower. Upon which issue being joined, the jury find, thit Ralph
Bates, husband of the demandant was seised of the lands now dtiiianded
for life, remainder to A. and B. trustees for ninety-nine years, re-~
mainder to the heirs of the body of Ralph Bates, &c. et si, &c. And
it was argued for the demandant, that the husband died seised of an
estate tail executed ; for the intervening estate being for years, ought
not to be regarded. That the feoffment of the husband would have
discontinued the intail, which proves that he was seised of it. See
2 Bulstr. 29, 30; Cro. Car. 233, 234; 1 Roll. Abr. 632; 8 Vin. 516,
b, pi. 2, and that his warranty would have been lineal to a son, which
proves that the son is in by descent. ^_contra it was argued for thg^
jtenant^ that dower was allowed by the law for the support of the wife
and her children; and therefore where by such allowance the wife and
her children cannot be supported, no dower can be allowed, for lex
non facit inutilia. Then dower in these cases, where the mesne term
might be for a thousand years, would be so remote, that it would be
of no avail to the wife. And as to the objection, that the heir was in
by descent; it was answered, that that signifies nothing, because if the
intervening estate had been for life, the heir had been in by descent,
and yet in such case without doubt the wife is not dowable.
This case- was thrice argued at Bar, and at the first argument the
Court doubted, because the estate tail is so disjoined by the intervening
lease, and though it be vested, it is not executed; and perhaps (they
said) the feoffment of the husband would not have discontinued the in-
tail. At the second argument Treby, Chief Justice, was of opinion
2 0 As to the rights of the widow of a trustee or cestui que trust, see Kenne-
son. Cases on Trusts, 223 et seq.
Ch. 5) ESTATES CREATED 603
for the demandant, because at the instant of the death of the husband
there was but an estate for years in the trustees, and the estate tail
was in the husband; and (by him) the instant should be divided in
favour of dower, as Cro. Eliz. 503, Broughton v. Randall. But upon
the third argument judgment was given for the demandant upon this
reason, becausejhe husband had a freehold and inheritance in him, and
the_ intervening estate, being only for years, ought not to be regarded.
For at common law such a term was a precarious thing, the freeholder
might have destroyed it at his pleasure by a feigned recovery. A
descent, which tolls an entry, does not disturb a term ; and if tenant
for Hfe commits waste, such an intervening term will not obstruct the
action of waste, as an intervening estate of freehold would do. And
therefore all the Court was of opinion, that such intervening term
would not hinder dower, as it would have done if it had been an estate
for ITfe,^^ according to the opinion of Perkins, 336, the only au-
thority in the books for that resolution, jjidgment was given for the,
demandant.
-^y^-
EDWARDS V. BIBB.
(Supreme Court of Alabama, 1875. 54 Ala. 475.)
Appeal from Limestone County Court.
Heard before Hon. R. S. Watkins.
This was a bill in equity, filed by Ann C. Edwards and her hus-
band, against Mary P. Bibb individually, and as administratrix of
the estate of David Porter Bibb, deceased, and certain of his heirs
at law, seeking to have dower allotted to her in certain lands in
their possession.
The complainant, Ann C, in the year 1857, intermarried with one
Thomas Bibb, Jr., and continued to live with him as his wife until
his death, and afterwards intermarried with her present husband and
co-complainant, Julian T. Edwards. Her claim of dower in said
lands arose in this wise: Prior to the year 1840, Thomas Bibb, Sr.,
(the father of Thomas Bibb, Jr., complainant's first husband,) was
seized of a valuable tract of land in Limestone county, the lands in
question, known as the "Belmina estate."
Thomas Bibb, Sr., died on the 23d day of April, 1840, leaving a
last will and testament, which was duly admitted to probate in that
county. The will, among other provisions not necessary to be here
noticed, devised said Belmina estate, with the exception of a small por-
tion, (which he had conveyed to one Jackson,) to testator's wife, Par-
melia Bibb, during her natural life, and at her death "untO' my eldest
son, Thomas Bibb, and his lawful male issue, and in case my said
21 What would be the situation if the intervening freehold were a conttn-
gent estate?
604 DERIVATIVE TITLES (Part 2
son Thomas should die, leaving no lawful male issue, or leaving such
male issue, the same should become extinct, before he or they shall
arrive at the age of twenty-one years, and likewise leaving no male is-
sue, then, and in that case, my will and desire is, that said estate,
with the property named and devised to my said wife, shall be-
come the property of my son, David Porter Bibb, to descend to the law-
ful male issue of him my said sOn Porter."
This clause of the will was once before construed in this court, in
3,n ejectment suit brought to recover the lands, in which dower is
souglit, from the heirs of David Porter Bibb. See Edwards and Wife
V. Bibb et al., 43 Ala. 666.
About the year 1855, said Parmelia departed this life, after taking
possession of the lands devised to her for life, and thereupon said
Thomas Bibb, Jr., entered and took possession, and so remained until
his death in 1861, leaving a daughter, the fruit of his marriage with
complainant, but never having had any male issue. He left a will from
which his widow duly dissented, and which in the view the court
took of this case need not be further noticed. In 1865 the said David
Porter Bibb entered into possession and so remained until his death
in the latter part of that year, intestate. The appellees, Mary P. Bibb,
his widow and administratrix, and his heirs at law, were in possession
of said lands at the time of the filing of said bill, and had made par-
tition among themselves.
The chancellor dismissed the bill on demurrer, and hence this ap-
peal.
[For subsequent opinion, see Bibb v. Bibb, 79 Ala. 437.]
Stoxe, J."^^ In the case of Edwards & Wife v. Bibb et al., 43 Ala.
666, die question considered and decided was, whether under the will
of Thomas Bibb, Sr., Thomas Bibb, Jr., took an absolute title in fee to
the i)roperty therein described as a portion of the Belmina estate, or
did it pass to David Porter Bibb on the death of Thomas Bibb, Jr.,
'JJeaving^ no lawful male issue." Thomas Bibb, Jr., had died "leaving
no lawful male issue." It was then ruled that the words of the will con-
stituted a valid "executory devise" of the estate over to David Porter
Bibb. An application for a rehearing in that cause was overruled, and
the decision became final, settling for all time the rights of the parties
to that suit to the property involved therein.
The present is an aj^plication by the widow of Thomas Bibb, Jr., for
dower in the same lands, the title to which, it was determined in that
suit, passed from Thomas Bibb, Jr., and his heirs, by his death,
"leaving no lawful male issue." We are asked to review the decision
pronounced in that cause. * * *
It results from what we have said above, that under the will of
Thomas Bibb, Sr., Thomas Bibb, Jr., took an estate, determinable on his
dying "leaving no male issue" ; and that inasmuch as he did so die, the
22 A portion of the opinion is omitted.
Ch. 5) ESTATES CREATED 605
executory devise over to David Porter Bibb took effect at the death
of the former. We shall, consequently, in the discussion of the re-
maining questions presented by this record, deal with the subject as
if there were no words of entailment in the devise we are consider-
ing.
Under this will thus construed, Thomas Bibb, Jr., either took a fee
simple, having another fee engrafted upon it by way of executory de-
vise, to come into being on the happening of an event therein provided
for as a conditional limitation, or he took only a life estate, and at his
death, his lawful male issue, if he had left such, would have taken as
purchasers. If the latter be the true construction of the devise, no one
will contend that Thomas Bibb's widow would be dowable of the
lands. Supposing, then, that the estate of Thomas Bibb was a de-.
feasible fee, the question comes up, is his widow entitled to dower, the
estate of her husband having expired with his life?
Few questions of the law have been more discussed, or have given
rise to more perplexing distinctions than that of the widow's right
to (lower in lands, the title to which passed out of her husband con-
temporaneously with his death, by force of some limitation, rever-
sion or remainder. The case in hand is one of remainder, which has
taken effect. The question is thus stated by a very accurate writer:
"Is the widow entitled to dower after the estate of her husband has
determined, before its natural expiration, by the happening of an
event i)articularly mentioned in the instrument creating it, but without
disturbing or overreaching his prior seisin?"
The case of Buckworth v. Thirkell, is one of the first cases on this
question. 3 Bos. & Pul. 652, note. That case came before Lord Mans-
field, one of England's greatest jurists, and it was determined that the
husband was entitled to curtesy. The rule in regard to dower is the
same on this question as that in regard to curtesy.
The case of Buckworth v. Thifkell has not had the good fortune
of commanding universal assent. Mr. Butler, in his note to Coke
upon Littleton, page 141, while conceding that upon the termination
of an estate tail by the failure of issue, the right of curtesy or dower
will attacli as a prolongation of the estate, yet contended that when
a fee simple is determined by a valid executory devise, neither curtesy
or dower ensues. Other writers contend for the same distinction.
See very full discussions of this question in Park on Dower, page
157 et seq.; 1 Scrib. on Dower, 284 et seq. To follow them through
the shadowy mazes of their disquisitions would tend rather to be-
wilder than instruct. The human mind is not wont to rest satisfied
w^ith distirictions when it can find no substantial differences to rest
them on.
Speaking of dower, as affected by conditional limitations. Chan-
cellor Kent says : "The estate of the husband is, in a more emphat-
ical degree, overreached and defeated by the taking effect of the
limitation over, than in the case of collateral limitation;" and, he
606 DERIVATIVE TITLES (Part 2
adds, "the ablest writers on property law are evidently against the
authority of Buckworth v. Thirkell, and against the right of the dow-
ress when the fee of the husband is determined by executory devise, or
shifting use." 4 Kent's Com. 50.
Mr. Jacob, in his learned note published in the appendix to 2 Bright
on H. & W. p. 468, says : "Upon the introduction of conditional lim-
itations by way of use and executory devises, it became a question
whether dower or curtesy should cease when the estate was determined
by either of these modes. Upon principle, it would seem that the deci-
sion of this question ought to be guided by analogy to the general rule
of the common law, and not by analogy to the excepted case of
an estate tail. * * * The conditional limitation destroying-
the estate, defeats the whole of that which is expressly granted. It
would be singular, if that which is included in the grant by implica-
tion only, could be preserved." He adds, "The supposed rule, (speak-
ing of Mr. Preston's attempt to justify the rule laid down in Buck-
worth v. Thirkell,) rests on very doubtful grounds."
In New York, it was decided by Chancellor Walworth that where
an estate in fee was terminated by the happening of a conditional lim-
itation, and the executory devisees took as purchasers, the widow of
the first devisee could not have dower. See Adams v. Beekman, 1
Paige (N. Y.) 631.
In the case of Weller v. Weller, 28 Barb. (N. Y.) 588, the same
question arose as in Adams v. Beekman, supra. The court said, "The
widow takes her estate through the husband, and not from him like
one who inherits ; for he can do no act which will divest her right.
And when the estate of the husband is determined by the happening
of an event which defeats its further continuance, the estate in dower
must be determined with it. It is a part of the same estate of free-
hold and inheritance of which the husband was seized, and, to the ex-
tent of it, so much abstracted from what would otherwise descend to
the heirs at law. * * * The wife's right to dower ceased with the
estate out of which it could only proceed. This conclusion conflicts
with Lord Mansfield's judgment in Buckworth v. Thirkell. It is the
rule, however, given by Mr. Cruise in his treatise on the law of real
property, and is the rule now sustained by Mr. Park with singular
ability in his work on the law of dower."
Washburn, in his work on Real Property, vol. 1, p. 212, says : "There
is a class of cases where, what at first sight might seem to be an incon-
sistent doctrine is applied. Thus, in the familiar case of tenant in
tail dying without issue, although the estate, as one of inheritance, is
determined, and the remainder over upon such a contingency takes
effect, yet, it having been an estate of inheritance in the tenant, his
widow, if he dies, will be entitled to dower, it being by implication
of law annexed to such an estate as an incidental part of it, a portion
of the quantity of enjoyment designated by the terms of the limitation
itself. And the doctrine is broadly laid down by writers upon the sub-
Ch. 5) ESTATES CREATED G07
ject, that wherever the husband is seized during coverture of such an
estate, as is in its nature subject to the attachment of dower, the right
of dower will not be defeated by the determination of that estate by
its regular and natural limitation." He adds : "This class of cases
has given rise to much ingenious speculation and grave diversity of
opinion, where the estate of the husband is one of inheritance, but
ceases at his death by what is called a conditional limitation."
The case of Buckworth v. Thirkell was followed in Moody and Wife
V. King, 2 Bing. 447; and in this country, in the cases of Milledge v.
Lamar, 4 Desaus. (S. C.) 617; Evans v. Evans, 9 Pa. 190, and North-
cut V. Whipp, 12 B. Mon. (Ky.) 65. In a later case in South Carolina,
Wright V. Herron, 6 Rich. Eq. 339, the court of errors was equally
divided, and no decision was pronounced. This case presented the
same question as the one presented in Buckworth v. Thirkell.
In the case of Evans v. Evans, supra, the opinion of the supreme
court of Pennsylvania was pronounced by Chief Justice Gibson — one
of the ablest jurists that ever sat on that bench. It will be seen that
he was laboring to break down the imaginary distinction attempted
to be drawn by Mr. Butler and others between the cases of remainder-
over, made and provided to take effect after the termination of an es-
tate tail by failure of issue, and the termination of an estate in fee
simple by failure of heirs, with a valid limitation over by way of
executory devise. He says : "I can not apprehend tlie reason of his
[Mr. Butler's] distinction between a fee limited to continue to a par-
ticular period at its creation, which curtesy or dower may survive, and
the devise of a fee simple, or a fee tail, absolute or conditional, which,
by subsequent words, is made determinable upon some particular
event, at the happening of which curtesy or dower will also cease." He
propounds, and in eft'ect answers, the following pertinent inquiry,
"How to reconcile to any system of reason, technical or natural, the
existence of a derivative estate, after the extinction of that from
which it was derived, was for him [Mr. Butler] to show; and he has
not done it."
Any attempt to maintain a distinction between the claim of dower
or curtesy, when the inheritance in an estate tail has failed, and a
limitation over has taken effect, per formam doni, and the same result
when an estate in fee has been determined by the happening of the
event upon which a conditional limitation over was made to take
effect, by the terms of the instrument creating the title, is too artifi-
cial and technical to command our assent. Dower is a derivative
estate; it is derived from the estate of the husband. It is the creature
of the law, not of contract. While the husband lives, there is no es-
tate in dower. It is an interest, carved out of, or abstracted from the
inheritance ; or out of the estate of the husband's alienee, if the wid-
ow survives, and has not delinquished her dower. The husband, by
any conveyance made, or recovery suffered by him, cannot bar, or
impair her right.
608 DERIVATIVE TITLES (Part 2
When, however, by the very terms of the conveyance or devise, le-
gal in form and purpose, the estate of the husband expires with him,
cutting off per formam doni, the heritable quality of his estate, and
the title passes to another as purchaser by a valid limitation over, the
primitive estate is gone, and there is nothing left from which dower
can be derived. We do not declare what would be the result, if the
case were one of mere reversion to the devisor or grantor. It will
be time enough to consider that question when it arises.
Decree affirmed.
Chief Justice BrickEll, having been of counsel, not sitting.^'
ELLIS v. KYGER.
(Supreme Court of Missouri, 1SS6. 90 Mo. COO, 3 S. TV. 23.)
Black, J. This is a suit for the assignment of dower. One of the
plaintiffs, Polly Ellis, and her former husband, Isaac Jacobs, on the
thirteenth of November, 1859, conveyed to Frederick Billum, in trust
for the Pacific railroad, a parcel of land twelve hundred and sixty-
seven feet in length by an average width of five hundred feet. The deed
recites that it is made "upon the condition that if the Pacific Rail-
road Company shall not construct the said railroad through said tract,
or if, when constructed, they shall not establish a freight and pas-
senger station upon said tract, then the conveyance shall be null and
void, but otherwise to remain in full force and eff'ect." Isaac Jacobs
died in 1863. The railroad was completed to a point beyond the
tract of land in question in 1865. There was evidence, the bill of
exceptions recites, tending to show that the company failed to per-
form the conditions in the deed, and evidence to the contrary effect.
In 1869, Asa Whitehead procured deeds from some of the heirs of
Jacobs, and in that year built a house upon the lots in question, which
was destroyed by fire. Neither Jacobs in his lifetime, nor his heirs,
ever entered or made any effort to recover the property for condition
broken. In 1878, Coventry, Cockrell and Zoll, who had acquired the
title of Whitehead and the other heirs of Jacobs, quit-claimed a part
of the premises described in the deed to the trustee of the railroad
company, and the company at the same time quit-claimed the residue to
them, from whom defendant acquired his title.
The trial court gave an instruction that, upon the evidence the
plaintiffs could not recover. That the conditions in the deed for
the construction of the railroad through the land therein described,
and the establishment of a freight and passenger depot thereon, were
conditions subsequent, is too clear to call for the citation of author-
ities. The trustee became seised of the premises, though the estate
in him continued defeasible until the conditions were performed,
23 See notes to Lessee of Borland v. Marshall, supra, 5S8.
Ch. 5) ESTATES CREATED 609
waived, released, or barred by the statute of limitations, or by estop-
pel. As no time was fixed within which the conditions were to be per-
formed, the law would allow the company a reasonable time. 2 Wash.
Real Prop. (4th Ed.) 1. Since the railroad was completed to a point
beyond the land in question, in 1865, a reasonable time has long since
elapsed; and we must assume, under the instructions given, that the
company has failed to perform the stipulations in the deed to the
trustee.
It is well settled that an action of ejectment may be maintained by
the grantor or his heirs for condition broken, without any entry or
demand of possession. Austin v, Cambridgeport Parish, 21 Pick.
(Mass.) 215; Plumb v. Tubbs, 41 N. Y. 442; Cowell v. Spring Co.,
100 U. S. 55, 25 L. Ed. 547. Our statute with respect to actions of
ejectment leads to the same conclusion. R. S., 1879, §§ 2240-47. But
it is equally well settled that non-performance of the condition alone
does not divest the estate. Performance of the condition may be
waived ; and the estate continues in the grantee after the breach until
he, who has a right to insist upon performance, elects to declare a
forfeiture. The estate continues with its original incidents until entry
or some act equivalent to it. 4 Kent, 127; 2 Wash. Real Prop. (4th
Ed.) 12; 1 Smith's Lead. Cas. (8th Ed.) 130; Memphis & C. R. Co.
V. Neighbors, 51 Miss. 412 ; Kenner v. Contract Co., 9 Bush (Ky.) 202 ;
Knight V. Railroad, 70 Mo. 231. The grantee in the deed of trust,
therefore, continued to be the owner of the premises at and after the
death of Jacobs, who was not seised at any time after the delivery of
the deed. A widow is entitled to be endowed in all the lands of which
her husband, or any person to his use, was seised of an estate of in-
heritance at any time during the marriage, to which she shall not
have relinquished her dower. R. S. 1879, § 2186. As the plaintiff
here relinquished her dower by deed duly acknowledged, and her hus-
band did not enter for condition broken, and was, therefore, not seised
of the premises in dispute at any time after the delivery of the deed,
it would seem to follow that the plaintiff is not entitled to dower.
Washburn says, it is enough that the husband had a seisin in law, with
the right to an immediate corporal seisin. If it was not so, it might
often be in the husband's power, by neglecting to take such seisin, to
deprive his wife of her right to dower. 1 Wash. Real Prop. (4th Ed.)
215: But here the husband made no entry, nor was he seised in law.
The same author in the same connection says, if, at common law, the
husband had not, during coverture, anything more than a mere right of
entry or of action to obtain seisin, it would not be sufficient to entitle
his widow to dower. The mere right of entry upon lands was not
suf^cient to give dower. 1 Scrib. on Dower, 243. If the husband dies
before entry, in a case of forfeiture for condition broken, his wife is
not dowerable, because he had no seisin, either in fact or law. 4 Kent
(13th Ed.) 38. In Thompson v. Thompson, 46 N. C. 431, the court said,
Aig.Pbop. — 39
610 DERIVATIVE TITLES (Part 2
by way of illustration: "So where one makes a feoffment upon con-
dition, and dies after condition broken, but without revesting his es-
tate by entry, and afterwards the heir enters and revests the estate,
the widow is not entitled to dower."
It results from what has been said, both upon principle and au-
thority, that the plaintiff is not entitled to dower in the premises in
question. The result would be the same had the heirs of Isaac Jacobs,
and not their grantees only, entered for breach of the condition in the
deed to Billum.
It is further insisted by the appellants that the defendant is estop-
ped from denying plaintiff's right to dower. This contention is based
upon the fact that the defendant's grantors acquired possession and
claim of title, at least, from Whitehead, who made claim and took
possession alone under his deeds from the heirs of Isaac Jacobs.
The authorities all show that the right to enter for condition broken
descended to the heirs of Jacobs, the right not having been exercised
by him in his lifetime. But though this be true, it does not follow
that the widow would, for that reason, be entitled to dower. We
have seen that she would not be entitled to dower because her husband
was not seised, either in fact or law. There is, therefore, nothing in-
consistent between a claim under them, and the claim that the widow
should not be endowed.
It is urged that the general common law rule, which confined the
right to take advantage of the non-performance of a condition sub-
sequent annexed to an estate in fee to the grantor or his heirs, has
been modified by our statutes with respect to conveyances. We do
not stop to consider this question, for it cannot affect the result before
reached in this case.
The judgment is, therefore, affirmed. All concur.
WALLIS V. DOE ex dem. SMITH'S HEIRS.
(High Court of Errors and Appeals of Mississippi, 1844. ? Smedes & M. 220.)
Appeal from the circuit court of Holmes county.
This was an action of ejectment, brought by the heirs at law of
Chafin Smith, to the October term, 1839, of the circuit court of Holmes
county, to recover a tract of land lying in that county. The declara-
tion and notice were served on Joseph Wallis, who, at the July special
term, 1840, appeared, and caused himself to be made defendant, con-
fessed the lease, entry, and ouster, &c., and pleaded not guilty. On
the trial it was proved that the plaintiffs were the heirs at law of Chafin
Smith, who in his life-time was admitted to have had title to the land
in dispute, that he lived upon it, and, at the time of his death, it was
his homestead ; that Joseph Wallis purchased it, at sheriff's sale, under
an execution against Jane Smith, who was the widow of said Chafin
Smith, and claimed it by virtue of said purchase ; that at the time of the
Ch. 5) ESTATES CREATED 611
commencement of the suit, the land was in possession of one Martin,
who held and claimed it as his own; that Joseph Wallis sold it to said
Martin, but none of the witnesses knew of any written contract be-
tween them, or conveyance to Martin.
The defendant's counsel then read to the jury the execution, sheriff's
return thereon, and the deed under which he purchased and claimed.
It was admitted that the widow was still living.
No further evidence being offered by either party, the defendant's'
counsel moved the court to instruct the jury.
1st. That if they believed, from the evidence, that Jane Smith was
the widow of Chafin Smith, and that he owned and lived upon the
lands in dispute, at the time of his death, and that the same have been
purchased by the defendant, under executions against her, and that she
is still living, that unless they are satisfied, from the evidence, that her
dower in his lands has been assigned to her, they must find for thf
defendant.
2d. That the widow of a decedent is, by law, entitled to the posses-
sion of the tract of land constituting the homestead of her husband, at
the time of his death, until her dower in his lands is assigned to her.
3d. That unless the jury believe, from the evidence, that the defend-
ant was in possession, at the time of the service of the declaration in
this cause, they must find for the defendant.
4th. That the deed of the sheriff conveys only such title as Jane
Smith herself could lawfully have made.
All of which the court refused to give, and, at the request of the
plaintiff's counsel, instructed the jury, "That if they believe, from the
testimony, the defendant, either in his own person, or by another
claiming under him, was in possession of the land, at the time of
bringing the suit, it is sufficient proof of possession, to entitle the plain-
tiff to recover, so far as possession is concerned." To all of which the
defendant's counsel excepted. The jury found for the plaintiffs, and
the court rendered judgment accordingly. The defendant's counsel
then moved for a new trial ; his motion was overruled, and he appealed
to this court. The errors assigned are, the refusal of the court below
to give the instructions asked by the defendant, and giving that asked
for by the plaintiffs.
Clayton, J. This was an action of ejectment, brought by the de-
fendants in error as the heirs of their ancestor, to recover a tract of
land in Holmes county. Two errors are assigned for reversing the
judgment.
It is first objected that the land was the homestead or place of resi-
dence of Smith, the ancestor, at the time of his death, that he left a
widow who, under the statute, is entitled to the premises until her
dower is assigned to her, and that the plaintiff in error claims under
the widow as the purchaser of her interest at execution sale.
At common law the widow had a right to remain in the mansion-
house of her deceased husband for forty days after his death, within
612 D'ERivATivE TITLES (Part 2
which time it was the duty of the heir to assign her dower. But before
such assignment she could not maintain ejectment for it. Adams on
Ejectment, 65 ; 1 Th. Coke, 601 ; 2 C. & P. 430. She has no vested es-
tate for Hfe in any particular part, until after allotment. 4 Kent, 62.
The right of quarantine, or the right to remain in possession of the
mansion-house, is by our statute extended, so as to enable her to retain
it free from molestation and rent, until her dower is assigned. H. &
'H. 353. Under a similar statute in New Jersey it has been decided,
that an action of ejectment will not lie against her, unless her dower
had been previously assigned. Den v. Dodd, 6 N. J. Law, 367, This
decision is against the weight of English and American authorities,
in states in which no such statute exists ; but it may be a just construc-
tion, and applicable to our own statute.^* But be this as it may, this
right of enjoyment of the mansion-house, we regard as a mere personal
privilege, one which cannot be transferred to a third person ; and that
such third person claiming under her may be put out by the heir, and
driven to the remedy to recover the dower. Until assignment the wid-
ow has no estate in the lands, and her claim is a mere charge or incum-
brance upon them. We think therefore, that this defence cannot be
sustained. See 4 Kent, 61.^** * * *
Judgment is therefore reversed and a new trial granted.
FLYNN V. FLYNN.
(Supreme Judicial Court of Massachusetts, 1S9S. 171 Mass. 312, 50 N. E. 650,
42 L. R. A. 98, 6S Am. St. Rep. 427.)
Lathrop, J. The land in which the plaintiff had an inchoate right
of dower was taken by the city of Boston by right of eminent domain,
for the purposes of a schoolhouse, the city acting by virtue of and in
accordance with the provisions of the St. of 1895, c. 408. This act, in
sec. 2, gives the board of street commissioners of Boston, at the request
of the school committee, power to "take by purchase or otherwise such
lands for school purposes as said school committee, with the approval
of the mayor, shall designate, and to take any lands under the right of
eminent domain." The board is also required to "sign, and cause to be
recorded in the registry of deeds for the county of Suffolk, a statement
containing a description thereof as certain as is required in a common
conveyance of land and stating that the same are taken for school pur-
poses ; and upon the recording of any such statement the lands described
therein shall be taken in fee for said city." We assume that all the for-
malities required have been complied with, and that the city now owns
the land in fee.
24 See Callahan v. Nelson, 128 Ala. 671, 29 South, 555 (1900).
26 The balance of the opinion, in which the court concluded that the portion
of the c'harge regarding the sufficiency of the proof of possession to entitle the
plaintiff to recover was erroneous, is omitted.
Ch. 5) ESTATES CREATED 613
The question then is whether an inchoate right of dower is such an
interest in land that, when the land is taken by the right of eminent
domain, the wife may apply to a court of equity to have in some way
the benefit of such interest. We are not aware that this right has ever
before been asserted in this Commonwealth, and this is the first time
that the question has been presented for our decision.
It is declared by the Pub. Sts. c. 124, § 3, as follows : "A wife shall
be entitled to her dower at common law in the lands of her deceased
husband." This chapter makes many provisions in regard to dower,
but there is none which relates to the question before us.
At common law, "a woman is entitled to dower out of all the lands
whereof her husband was seised in fee simple, at any time during the
coverture." 1 Greenl. Cruise, 175.
There is no doubt that the inchoate right of dower is an encum-
brance upon land. Shearer v. Ranger, 22 Pick. 447. The release of
such a right of dower is a good consideration for a promise. Bullard
v. Briggs, 7 Pick. 533, 19 Am. Dec. 292; Holmes v. Winchester, 133
Mass. 140; Nichols v. Nichols, 136 Mass. 256. It is a contingent right,
which the wife during coverture may have the assistance of the court
to establish or protect. Burns v. Lvnde, 6 Allen. 305 ; Davis v. Weth-
erell, 13 Allen, 60, 90 Am. Dec. 177; Madigan v. Walsh, 22 Wis. 501;
Clifford v. Kampfe, 147 N. Y. 383, 42 N. E. 1 ; Buzick v. Buzick, 44
Iowa, 259, 24 Am. Rep. 740. So, too, a wife having an inchoate right
of dower may maintain a bill in equity to redeem land from a mortgage
in which she has joined with her husband to release dower. Davis v.
Wetherell, 13 Allen, 60; Lamb v. Montague, 112 Mass. 352. See Pub.
Sts. c. 124, § 5. But if the mortgage contains a power of sale, and the
wife has joined in the deed with her husband in release of her dower, a
sale of the land in pursuance of the power bars all claim and possibility
of dower. Pub. Sts. c. 181, § 19.
While a wife may, under Pub. Sts. c. 124, § 6, bar her right of dower
by releasing the same in a deed executed by her husband, or by a subse-
quent deed executed either separately or jointly with her husband, yet
she cannot convey her inchoate right of dower to a person to whom
her husband has not conveyed the land. Such a deed is void. Mason
V. Mason, 140 Mass. 63, 3 N. E. 19. See also Reiff v. Horst, 55 Md.
42. In Mason v. Mason, it was said by Mr. Justice Devens : "While
the inchoate right of dower is a vested right of value, dependent on the
contingency of survivorship, it is not that separate property which
passes by conveyance, but a right which one entitled thereto may, un-
der certain circumstances, release. It is of a peculiar character, and,
before assignment, the wife has no seisin." While the word "vested"
is used in this case, it would seem that the word "contingent," which
was used by Chief Justice Parker in Bullard v. Briggs, 7 Pick. 533,
539, 19 Am. Dec. 292, would more accurately describe the nature of the
estate. After an assignment of dower is made, the widow acquires no
new freehold, her seisin being deemed in contemplation of law a con-
614 DERIVATIVE TITLES (Part 2
tinuation of her husband's seisin. Windham v. Portland, 4 Mass. 384,
388.
Even after the death of the husband, a creditor cannot at law attach
the right of the widow to have her dower assigned to her, or take the
same on execution. McMahon v. Gray, 150 Mass. 289, 22 N. E. 923, 5
L. R. A. 748, 15 Am. St. Rep. 202. Until dower has been assigned to
her, a widow has no estate in the land of her deceased husband. Smith
V. Shaw, 150 Mass. 297, 22 N. E. 924; State v. Wincroft, 76 N. C. 38.
Nor can she object to a partition of the land among the tenants in
common. Motley v. Blake, 12 Mass. 280; Ward v. Gardner, 112
Mass. 42.
There can be no doubt that the inchoate right of the wife is always
subject to any encumbrance or infirmity in the husband's title existing
at the time he became seised ; and we are also of opinion that it is
subject to any incident attached to it by law. The land may be sold
on a petition for partition, if the husband is a tenant in common. Pub.
Sts. c. 178, § 65. When this happens, it has been held in a well con-
sidered case in Indiana that the wife is not a necessary party to the
partition proceedings, and is not entitled to share in the fund derived
from the sale. Haggerty v. Wagner, 148 Ind. 625, 48 N. E. 366, 39
h. R. A. 384.
Land may be sold for taxes, and if there is a surplus it is to be paid
"to the owner of the estate." Pub. Sts. c. 12, § 35 ; St. 1888, c. 390, §
40. In a case arising under a New York statute, which directed that
any surplus arising on a tax sale "shall be held for the use of and paid
over to the person legally entitled upon his establishing his right there-
to," it was held that the owner of the land was entitled to the surplus.
People V. Palmer, 10 App. Div. 395, 41 N. Y. Supp. 760. It was also
held in this case that the interest which the wife of the owner had in
the land by virtue of her inchoate right of dower, although a valuable
interest, was not an "estate" in the land which would give her a right
to redeem from the tax sale, under a statute giving a right to redeem
to "any person or persons having an estate in, or any mortgagee of"
any land sold for taxes.
It is also an incident of land that it is liable to be taken by the right
of eminent domain, and we are of opinion that when it is so taken in
the lifetime of the husband, the wife is not entitled, on account of her
inchoate right of dower, to have any portion of the money received for
the land either paid to her directly, or set aside for her benefit on the
contingency of her surviving her husband. If the land had not been
taken, the husband could have done what he pleased with it during his
life. He might have sold it for its full value, yet the wife could not
interfere, or deprive him of the use of any part of the purchase money.
In case the husband survived the wife, the purchaser would have a good
title, which the heirs of the wife could not interfere with. If the chief
value of the estate should consist of a building on the land, which was
insured by the husband, and the building should be destroyed by fire.
Ch. 5) ESTATES CREATED 615
no one would contend tliat the wife had any interest in the insurance
money, or that a court of equity would compel a part of the money to
be set aside for her benefit unless the husband would agree to rebuild
the house. Again, if a parcel 'of land should be washed away by the
negligent maintaining of a dam, and the owner of the land should
recover as damages the full value of the land, would not the money so
received be his to do with as he pleased?
The only case in support of the doctrine contended for by the peti-
tioner which has been decided by a court of last resort is that of Wheel-
er V. Kirtland, 27 N. J. Eq. 534, decided in 1875 by the Court of Errors
and Appeals in New Jersey. It laid down a new doctrine, which has
not since been recognized except by a court of inferior jurisdiction,
and which we are of opinion is opposed to sound principles.
The case of Wheeler v. Kirtland was partly decided on the ground
that the rule laid down in Moore v. New York, 8 N. Y. 110, 59 Am.
Dec. 473, had been repudiated or modified in later decisions in that
State, citing In re Central Park Extension, 16 Abb. Prac. 56, 68, and
Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523. In Moore v. New
York, 8 N. Y, 110, 59 Am. Dec. 473, lands in which the wife had an
inchoate right of dower were taken by the right of eminent domain.
After the husband's death, his wife claimed dower in them. The stat-
ute under which the land was taken authorized commissioners to make
"a just estimate of the damage to the respective owners, lessees, par-
ties, and persons respectively entitled unto or interested in the hands."
It was said by Gardiner, J. : "The question is whether the possibility
of dower accruing to the wife after marriage, but before the death of
the husband, is an interest in law, within the purview of this statute.
* * * Such a possibility may be released, but it is not, it is be-
lieved, the subject of grant or assignment, nor is it in any sense an in-
terest in real estate."
It was held in In re Central Park Extension, 16 Abb. -Prac. 56, 69, on
the authority of Moore v. New York, that the inchoate right of dower
was not an interest in real estate, Judge Ingraham, however, added,
after quoting the remarks of Gardiner, J. : "It might have been added
to that case, that the right was transferred from the land to the money
received for the land by the husband, if the wife survived him."
The case of Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523,
merely decides that, if a husband is induced to part with his land by
fraud, his wife has such an interest that she can join witli him in an
action against the fraudulent purchaser.
The rule laid down in Moore v. New York, so far from being re-
pudiated or modified in that State by later decisions, has been recog-
nized and affirmed by the Court of Appeals, Witthaus v. Schack, 105
N. Y. 332, 11 N. E. 649, where it is said by Ruger, C. J. : "The settled
theory of the law as to the nature of an inchoate right of dower is that
it is not an estate or interest in land at all, "but is a contingent claim
arising not out of contract, but as an institution of law, constituting
616 DERIVATIVE TITLES (Part 2
a mere chose in action incapable of transfer by grant or conveyance,
but susceptible only during its inchoate state of extinguishment. By
force of the statute this is effected by the act of the wife in joining
with her husband in the execution of a deed of the land. Such deed,
so far as the wife is concerned, operates as a release or satisfaction of
the interest and not as a conveyance, and removes an encumbrance in-
stead of transferring an interest." See also Hammond v. Pennock, 61
N. Y. 145, 158.
The only case which has been brought to our attention that has fol-
lowed Wheeler v. Kirtland is In re New York & Brooklyn Bridge, 75
Hun, 558, 27 N. Y. Supp. 597, and 89 Hun, 219, 34 N. Y. Supp. 1002.
But the view taken of the nature of the inchoate right of dower in
this case does not seem to be in conformity with the cases above cited
from the higher courts of New York.
In the cases of Bonner v. Peterson, 44 111. 253, and In re Hall's Es-
tate, L. R. 9 Eq. 179, cited by the plaintiff, the husband had died, and
the widow's right of dower was no longer inchoate when the land was
taken.
For the reasons before stated, we are of opinion that the bill should
be dismissed. So ordered.^*
CRENSHAW v. MOORE.
(Supreme Court of Tennessee, 1911. 124 Tenn. 528, 137 S. W. 924.)
Lansdun, J. William R. Moore died in Shelby county testate, and
his widow, Mrs. Charlotte Blood Moore, dissented from his will.
Such proceedings were had in the county court of Shelby county that
she was assigned a year's support, to the value of $20,000, and dower
of one-third of his real estate. The complainant brought this suit to
collect from her an inheritance or succession tax on both her year's
support and dower, under the act of 1893 (Shannon's Code, section
724), as amended by chapter 479 of the Acts of 1909.
The act of 1893 imposed a tax upon "all estates, real, personal, and
mixed, of every kind whatsoever, situated within this State, whether
2 6 Cf. French v. Lord, 69 Me. 5.S7 (1S79) ; Borough of York v. Welsh. 117 Pa.
174, 11 Atl. 390 (1SS7). See Benton v. City of St. Louis, 217 Mo. 687, 118 S.
W. 418, 129 Am. St. Rep. 5G1 (190S).
In BroAvn v. Brown, 82 N. J. Eq. 40, 88 Atl. 186 (1913), the court entertained
a bill in equity by a wife to protect her inchoate dower in certain lands held
by the defendant in trust for her husband against a possible conveyance to an
innocent purchaser. See, too, Brown v. Brown, 94 S. C. 492, 78 S. E. 447 (1913).
where it was held that under some circumstances a court of equity would inter-
fere to protect a wife's inchoate dower against waste. But see Rumsey v. Sul-
livan, 166 App. Div. 246, 150 N. Y. Supp. 287 (1914).
In Whiting v. Whiting (Me.) 96 Atl. 500 (1916), the plaintiff, who had been
induced by fraudulent representatiois of her husband to join in a deed of his
land, was held entitled to maintain a bill in equity against him to have him
declared a trustee of a certain portion of tlie purchase price for her benefit.
The plaintiff's only interest in the laud was her contingent interest provided
for by the statute in place of the common-law dower.
Ch. 5) ESTATES CREATED 617
the person or persons dying seized thereof be domiciled within or out
of this State, passing from an)' person who may die seized or possessed
of such estates, either by will or under the intestate laws of this State,
or any part of such estate or estates, or interest therein, transferred
by deed, grant, bargain, gift, or sale, made in contemplation of death,
or intended to take effect in possession or enjoyment after the death
of the grantor or bargainor," passing to collateral kindred of the own-
er ; and section 20, ch. 479, Acts of 1909, provided "that inheritances
not taxed under the present laws shall pay a tax as follows : All in-
heritances of $5,000 and over, but less than $20,000, a tax of one per
centum of their value. All inheritances of $20,000 and over, a tax
of one and one-fourth per centum of their value, to be collected by
the county clerk of each county."
This is a privilege tax imposed on the right of acquiring property
by succession. State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L-
R. A. 178; Knox v. Emerson, 123 Tenn. 409, 131. S. W. 972. Like-
wise it is a special tax, and the rule is that laws imposing such taxes
are to be construed strictly against the government, and favorably to
the taxpayer. English v. Crenshaw, 120 Tenn. 531, 110 S. W. 210,.
17 L. R. A. (N. S.) 753, 127 Am. St. Rep. 1025.
The widow's year's support is given her by statutory provision,
which is found in sections 4020 and 4021 of Shannon's Code. It is
inconceivable that the legislature intended to levy the tax in question
upon this bounty of the widow, given her by the law out of her hus-
band's personal estate. She does not succeed to the husband's title
to the property set apart to her as a year's support, but acquires it ad-
versely to his administrator by virtue of the statute. By the act of
separation of the personalty assigned to her by the commissioners, and
the subsequent confirmation of their report by the court, the title to the
specific property thus set apart becomes absolutely vested in the widow.
The obvious intention of the legislature in passing this statute was to
provide a temporary support for her and her family immediately on
the death of her husband. It is an extension by law of her right of
support out of the personal estate of her husband for one year^after
his deatli, and is founded in a sound public policy, which has for its
purpose a conservation of the family upon the death of the husband.
The widow does not succeed to the right of the husband, nor does she
take the property under the intestate laws of this State. It is a spe-
cial provision made for her in the law for the support of herself and
her family. Bavless v. Bayless, 4 Cold. 363 ; Railway Co. v. Kennedy,
90 Tenn." 185, 16 S. W. 113.
Nor do we think that the widow's dower is subject to this tax. By
the common law, if a husband acquire an estate which is subject to
descend to his heirs, the wife, at the same time the husband acquires
his title, has vested in her the right of dower ; and although the hus-
band aliened the estate, the wife's dower would attach. By the acts of
1784 and 1823, carried into Shannon's Code at section 4139, the widow
618 DERIVATIVE TITLES (Part 2
is dowable in one-third part of all the lands of which her husband
died seized and possessed, or of which he was equitable owner. In
all other respects, the widow's right of dower in this State is the same
as it was at common law. It has the same qualities as the common-
law right of dower, but its quantity was cut down by the statutes re-
ferred to. This right originates with the marriage. It is an incum-
brance upon the title of the heir at law, and is superior to the claims
of the husband's creditors. Its origin is so ancient that neither Coke
nor Blackstone can trace it, and it is as "widespread as the Christian
religion and enters into the contract of marriage among all Christians."
"By a fiction of law, the estate in dower relates to the marriage.
It is adjudged in Ful wood's Case, 4 Co., 65, that the widow shall
hold her dower discharged from all judgments, leases, mortgages, or
other incumbrances made by her husband after the marriage, because
her title, being consummated by his death, has relation to the time of
the marriage, and, of course, is prior to all other titles. She claims by
and through her husband, has the oldest title, is under him for the
valuable consideration of marriage, the best respected in the law, and
cannot be disturbed by any other claiming under the husband." Combs
V. Young, 4 Yerg. 226, 26 Am. Dec. 225.
The preamble to the act of 1784, which was the first passed in this
State reducing the quantity of the widow's dower estate, recites, in
substance, that the dower allotted by law in lands for widows, in the
then unimproved state of the country, was a very inadequate provision
for the support of such widows; that it was only just and reasonable
that those who, by their prudence, economy, and industry had con-
tributed to raise up an estate to their husbands, should be entitled to
share in it — thus showing that the legislature recognized that the
widow's dower under this act had the same origin and was of the
same quality as her dower existing at common law.
So, it is seen that, whether it be considered that the widow holds
her dower in the nature of a purchaser from her husband by virtue
of the marriage contract, or whether it be merely a provision of the
law made for her benefit, it cannot be considered that her right is in
succession to that of her husband upon his death, or that the husband
bestows it upon her in contemplation of death. While it is true that
her right to dower is not consummated until the death of the husband,
and that it is carved out of only such realty as he owned at his death,
it does not follow from this premise that the widow succeeds to his
title by the intestate laws. She derives it by virtue of the marriage,
and in her right as wife to be consummated in severalty to her upon
tlie death of her husband. Boyer v. Boyer, 1 Cold. 14.
The supreme court of Illinois, in Billings v. People, 189 111. 472,
59 N. E. 798, 59 L. R. A. 807, upon a construction of the inheritance
tax law of that State, together with tlie laws governing the descent and
distribution of the property of persons dying intestate reached a dif-
ferent conclusion from that reached by us. The reasoning of tliat
Ch. 5) ESTATES CREATED 619
court is predicated chiefly upon a construction of the statutes of that
State, which are essentially different from those of this State. It is
stated, however, that, while the husband cannot deprive his wife of
her inchoate right of dower, the State may, and that she does not
hold by contract, but holds by laws which the State may change. With-
out undertaking to meet all of the arguments set forth in support of
this very able opinion, we are content to hold that, under a proper
construction of the statute in question, the legislature did not intend
to tax the widow's dower as an inheritance from the estate of her
husband, or a succession to his rights therein. As stated heretofore,
she does not inherit from her husband, but derives her right by virtue
of her marriage, which is consummated upon her husband's death,
and becomes an incumbrance upon the inheritance of the heirs at law,
and is, to that extent, an interest adverse to the inlieritance from the
husband. For the same reason she does not succeed to the rights of
the husband. Her dower is intended for her support and maintenance,
and an intention to tax it will not be imputed to the legislature, except
where the language employed makes it plainly imperative to do so.
Billings V. People, supra, is the only case cited by counsel which
discusses the question at issue in any way, and no case is cited dis-
cussing the liability of the widow's year's support for the tax involved
here. But, upon reason, we are content to hold that neither the year's
support nor dower is subject to the tax. It results that the decree of
the court below is affirmed, with costs.^^
INGRAM V. MORRIS.
(Superior Court of Delaware, 1844. 4 Har. 111.)
Summons in dower. Plea, that the land was sold on a judgment
against the husband, which was -a lien thereon at the time of the mar-
riage. Replication and issue.
It was admitted that Samuel Ingram was seized of an estate of in-
heritance in the premises at the time of the marriage. The judgment
upon which the land was sold bore date on the same day of the mar-
riage, and there was no evidence which, in pwint of time, preceded the
other. Yet the title of the widow of Samuel Ingram to dower de-
pended on this question; for if the judgment was a subsisting judg-
ment at the time of the marriage, the sale of the land which was after-
wards made in execution of that judgment discharged the land of
2 7 See In re Estate of Sanford, 91 Neb. 752, 137 N. W. SG4 (1912) ; In re Bul-
len's Estate (Utah) 151 Pac. 533 (1915), ace. See, also, In re Estate of Strahan,
93 Neb. 828, 142 N. VV. 678 (1913), enlarged statutory substitute for dower;
Kohny v. Dunbar, 21 Idaho, 258, 121 Pac. 544, 39 I.. R. A. (N. S.) 1107, Ann. Cas.
1913D, 492 (1912), community proiierty ; In re Thompson's Estate, 85 Misc. Rep.
291, 147 N. Y. Supp. 157 (1914), tenancy by entireties.
620 DERIVATIVE TITLES (Part 2
dower, if the marriage took place before the judgment was entered,
the wife's right to dower attached and could not be divested by a
judgment subsequently entered.
Ridgely, for the claimant, argued that the claim of dower was a
favored claim; and, in the absence of evidence, the jury would imply
in favor of dower. He showed that the judgment was entered on a
bond, dated many months before, and argued that the delay of enter-
ing the judgment should be considered to the prejudice of the party
claiming under it; that the burthen of proof was on the defendant,
who pleaded an affirmative plea in derogation of this favored right.
Jenkins' Rep. 274 ; Parke on Dower, 2.
Wootten, contra, argued from the fact of the entry of judgment on
the day of the marriage, that the inference should be made that it
was entered before the marriage, for the very purpose of binding tlie
land so as to prevent the right of dower ; that the common usage of
the country was, for marriage to take place in the evening, after the
usual hour of doing business in tlie public offices ; and that if the
marriage and entry of judgment were at the same moment the wife
would not be dowable, for his seizin otherwise than as subject to dower,
would be only momentary. And such a seizin gives no right to dower.
1 Johns. Dig. 518; Stow v. Tifift, 15 Johns. (N. Y.) 458, 8 Am. Dec.
266.
The jury rendered a verdict for the demandant
GRADY V. McCORKLE.
(Supreme Court of Missouri, 1874. 57 Mo. 172, 17 Am. Rep. 676.)
Wagner, J., delivered the opinion of the court.
This was a suit commenced in the Circuit Court of Howard county,
against the defendants, the widow and heirs of Leonard Grady, de-
ceased, for the assignment of dower in certain real estate. From the
record it appears, that in the year 1859, William Grady, the plaintiff's
husband, was seized of the land in controversy, and agreed with his
son, Leonard Grady, that if he would go on the land and improve it,
he would convey the same to him by deed, by way of advancement,
and charge him with its value at the time he took possession.
Under this agreement Leonard took possession of the land and made
improvements on the same, and continued to reside on and cultivate it
up to the time of his death.
William Grady died without having conveyed the land according to
the agreement, and without having fixed any price thereon, to be
charged as an advancement.
In the year 1865, after the death of William and Leonard, the fa-
ther and son, the widow and heirs at law of Leonard, who are the
defendants in the present case, filed their petition in the Circuit Court
Ch. 5) ESTATES CREATED 621
against the plaintiff and the heirs of William, setting out the facts
as above stated, and praying the court to decree that the land should
be held by them as the widow and heirs of Leonard, as if the same
had been conveyed to him by William in his life time, and to fix a
valuation thereon, at which they should be charged for the same.
In this proceeding plaintiff v)as duly served with process, but made
no answer. The court made a decree in accordance with the prayer
of the petition, declaring that the land "described be, and the same
is hereby vested in the plaintiffs, to be held by them as if the same
had been conveyed by said William Grady in his life time, to the said
Leonard Grady, and that the title of defendants, as the widow and
heirs of William Grady be divested."
The court below held that this decree barred the plaintiff, the widow
of William Grady, from having any dower in the premises, and this
is the only question in the case.
The statute provides that "every widow shall be endowed of the
third part of all tlie lands whereo-f her husband, or any other person
to his use, was seized of an estate of inheritance, at any time during
the marriage, to which she shall not have relinquished her right of
dower, in the manner prescribed by law, to hold and enjoy during
her natural life." 1 Wagn. Stat. p. 538, § L
The right of dower attaches whenever there is a seizin by the hus-
band during the marriage, and unless it is relinquished by the wife
in the manner prescribed by law, it becomes absolute at the husband's
death. After the right of dower has once attached, it is not in the
power of the husband alone to defeat it by any act in tlie nature of
an alienation or charge. It is a right in law, fixed from the moment
the facts of marriage and seizin concur, and becomes a title paramount
to that of any person claiming under the husband by subsequent act.
Co. Litt. 32a.
The alienation of the husband, therefore, whether voluntary, as by
deed or will, or involuntary, by proceedings against him or otherwise,
will confer no title on the alienee, as against the wife in respect of her
dower.
It is a necessary consequence of this rule, that all charges or deriva-
tive interest created by the husband, subsequent to the attachment of
the wife's right, are voidable as to that part of the land which is re-
covered in dower. As the husband cannot defeat his wife's dower by
any alienation of the land by himself alone, so neither can he bind
her by any modification of the nature of the seizin, nor by any merger
or extinguishment produced by his own act without her concurrence.
Scribn. Dower, 577.
In conformity with these principles, it has been held that if a woman,
after she becomes a widow, is made a party to a suit to foreclose a
mortgage executed by the husband alone, and no allegation be made
in the petition in reference to her claim for dower, the decree will not
be considered as affecting her dower estate. Lewis v. Smith, 9 N,
622 DERIVATIVE TITLES (Part 2
Y. 502, 61 Am. Dec. 706; Thompson v. Reeve, 12 Mo. 157; Crenshaw
V. Creek, 52 Mo. 98; Freem. Judg. § 303.
Neither the petition nor the decree in the case of Leonard Grady's
widow and heirs v. WiHiam Grady's widow and heirs, made any men-
tion of the subject of dower, nor was it at all litigated or drawn in
question. The whole object, extent and scope of that proceeding was
to have the agreement and undertaking of William Grady specifically
performed. The rights against the widow and heirs were precisely
the same as they would have been against William Grady, had he
been alive and made a party to the suit. But a suit against him would
not have affected his wife's right to dower, without any concurring act
on her part. The decree divested his title out of the widow and heirs,
and vested it in the widow and heirs of his son. Nothing more was
attempted and nothing more was done.
The question of the plaintiff's right of dower' was neither raised nor
decided, and was not made a subject of adjudication in the suit for
specific performance. The plaintiff did not answer, and although she
was perhaps properly made a party, my conclusion is, that she is not
barred from claiming her dower interest in the land — she having done
nothing to relinquish the same.
Wherefore the judgment must be reversed and the cause remanded;
the other judges concur.^ ^
CATLIN V. WARE.
(Supreme Judicial Court of Massachusetts, 1812. 9 Mass. 218, 6 Am. Dec. 56.)
This was a writ of dower, to which the tenant pleaded in bar: 1st
That the demandant's husband Joseph Catlin was never seized, &c. on
which issue was joined. 2d That the said Joseph, being seized in his
demesne as of fee, on the 28th day of March, 1793, by his deed of
that date duly acknowledged, &c. for a valuable consideration, bar-
gained and sold the same land, in which the demandant claims her
dower, to one David Horton in fee simple ; and that the said Abigail,
by the consent of her husband, for the consideration in the said deed
expressed, and also of one dollar paid her by the said David, assented
and agreed to the same deed of the said Joseph, and then and there by
her act and consent, signified by her affixing her seal to the said deed,
and subscribing her mark thereto, she being unable to write her name,
barred herself of all right of dower in the same premises and every
part thereof : by virtue whereof the said David became seized in fee
of the same premises, free and exempt from all claim, demand or right
of dower of the said Abigail therein.
2 8 Cf. Phillips V. Phillips, 30 Colo. 516, 71 Pac. 363 (1903) ; Ligare v. Semple,
32 Mich. 438 (1875). But see Bennett v. Harms, 51 Wis. 251, 8 N. W. 222 (18S1).
Ch. 5) ESTATES CREATED 623
The demandant replied, that she did not by her act and consent
signified, &c. bar herself, &c. and tendered an issue to the country,
which was joined by the tenant.
The several issues thus joined were tried at the last April term of
this court in this county, before Sedgwick, J., from whose report it
appears, that the seisin of the demandant's husband and her coverture
were agreed, as alleged in the writ.
The tenant produced the deed of Joseph Catlin to David Horton,
mentioned in the pleadings. It purported a conveyance in fee of the
land, in which dower is demanded, and to it, after the name and seal
of her husband, were set the demandant's seal and mark. But her
name was not otherwise mentioned in the deed, nor were there any
words tlierein purporting or implying a release of her right of dower.
The deed was acknowledged by tlie husband, and recorded ; but there
was no acknowledgment by the wife.
On the part of the tenant it was insisted at the trial, that the latter
issue was proved on his behalf. But the judge directed a verdict on
both issues in favour of the demandant; referring to the decision of
the court, the question whether that direction was right.
It was also referred to the court to determine any question which
might arise from the finding of the jury, respecting the improved
value of the land : the improvements having arisen from ditching the
land, making walls, and erecting and improving buildings.
The jury returned a verdict conformably to the directions of the
judge; assessed the demandants' damages at 49 dollars 50 cents; and
certified that the improvements made upon the demanded premises,
since the conveyance thereof by Joseph Catlin, were at the rate of
fifty per cent.
Curia. Two objections, made to the deed read in evidence at the
trial of this cause, have been replied to by the counsel for the tenant.
As to the second, the want of an acknowledgment by the wife, we
think an acknowledgment unnecessary in the case. One party to a
deed acknowledging it gives notoriety to it, and that is the wnole that
is necessary. Though a deed be acknowledged and recorded, yet on
the issue of non est factum the execution of the deed is still to be
proved, as if it had not been acknowledged. Neither was an acknowl-
edgment by the wife necessary in order to make the deed binding on
her. She must know her own acts, and is bound by such, as the law
authorizes her to execute.
The other objection to this deed has much more weight in it, and
is indeed fatal to the defence of the action. A deed cannot bind a party
sealing it, unless it contains words expressive of an intention to be
bound. In this case, whatever may be conceived of the intention of
the demandant in signing and sealing the deed, there are no words
implying her intention to release her claim of dower in the lands con-
veyed which must have been, to give it that operation. It was merely
624 DERIVATIVE TITLES (Part 2
the deed of the husband, and the wife is not by it barred of her right
to dower.^®
As to the question referred to us, respecting the increased value of
the lands, in which the demandant claims her dower, as they have
arisen from the labours and expense of the purchaser, it is our opin-
ion that she is entitled to her third part of the land, in the condition
it was in at the time of the alienation by her husband. Had the heir
of the husband been the tenant, and the improvements been made by
him after the land descended, it would have been otherwise ; for it
was his folly not to assign the dower to the widow, before he made
the improvements.^**
Judgment on the verdict.
ROBINSON V. BATES.
(Supreme Judicial Court of Massachusetts, 1841. 3 Mete. 40.)
Writ of Dower, wherein .the demandant claimed her dower in land
in Webster, in the seizin and possession of the tenant, and counted
upon the seizin of her late husband, William Robinson. The action
was tried, on the general issue, before Wilde, J., who reported the
case as follows :
The demandant proved her marriage with said William in 1792, his
seizin of the demanded premises from the time of said marriage until
1816; the death of said William in 1837; and a demand of dower,
made upon the tenant on the 11th of March, 1840.
The tenant then introduced a judgment recovered in this court, at
29 Cox V. Wells. 7 Blackf. (Ind.) 410, 43 Am. Dec. 9S (1845); Lothrop v.
Foster, 51 Me. 307 (1SG3) ; McFarland v. Febiger, 7 Ohio, 194, pt. 1, 28 Am.
Dec. 632 (1835), ace. Johnson v. Montgomery, 51 111. 185 (1S69), semble contra.
«ee Leanied v. Cutler, 18 Picli. (Mass.) 9 (18.36).
As to the ability of the husband and wife to make an effective conveyance
of the wife's inchoate dower alone, see Davenport v. Gwilliams, 133 Ind. 142,
31 N. E. 790, 22 L. R. A. 244 (1892). See, also, Hart v. Burch. 130 111. 426, 22
N. E. 831, 6 L. R. A. 371 (1889) ; INIason v. Mason, 140 IMass. 63, 3 N. E. 19 (1885).
30 "Nor is the widow's right in lands which have been alienated by the hus-
band alone limited to the value of such lands at the date of such conveyance.
It is to be admitted that authority may be found for such rule, but the over-
AVhelming weight is to the contrary. It is, of course, equitable in such cases
that the widow shall not be permitted to profit by an increase in value due to
improvements and betterments made or created by the labor and money of the
grantee, who has expended them in good faith, believing he had a perfect title ;
but in all increase arising from the general growth, prosperity, and develop-
ment of the country, or from any other source than the labor and expense of
the grantee, she is entitled to share." Butler v. Butler, 151 Iowa, 583, 58S,
132 iST. W. 63 (1011), per Weaver, J. It was accordingly held in that case that
the court had no jurisdiction to hx a value upon the inchoate dower of a wiie
who had not joined in a deed of her husband and decree that upon a deposit
of such sum by the grantee, to abide the determination of survivorship, the
land should be held free of such dower.
Occasionally the rule is laid down as above quoted, but omitting any refer-
iince to the good faith of the grantee. In re Tomlinson, 9 Del. Ch. 446, 81 Atl.
468, 585 (1911). See Park on Dower, *256 et seq.
Ch. 5) ESTATES CREATED 625'
September term, 1828, by one Morris Larned against said William
Robinson, and a levy, in due form, in October, 1828, of the execution
which issued on said judgment, upon the demanded premises : Also
a judgment, at the October term, 1830, of this court, in a writ of
entry brought by said Larned to recover the demanded premises
of William Robinson, Junior, and Sylvanus Robinson, then tenants
in possession thereof, and the writ of habere facias, issued on said
judgment, with the return of an officer thereon, stating the delivery
of seizin to said Larned in November 1831 : Also a deed of said prem-
ises, afterwards made to the tenant by said Morris Larned, dated No-
vember 30th, 1831, and duly acknowledged and recorded.
The tenant then offered to prove, that in December, 1816, said
William Robinson, by his deed, duly executed and recorded, for the
consideration of $4,000, conveyed the premises in question to one John
Jacobs, Junior, and that the demandant joined him in said deed, and
released her dower in said premises. The demandant's counsel objected
to the admission of this evidence, because the tenant did not claim
under this conveyance. But the evidence was admitted, upon the ten-
ant's counsel intimating that they expected to prove this conveyance
fraudulent and void as to creditors, and that, if so, it would, by St.
1805, c. 90, § 5, bar the demandant of her dower. The tenant also
proved a conveyance of the demanded premises by said Jacobs to the
aforesaid William Robinson, Junior, and Sylvanus Robinson, by deed
duly executed, and recorded in February, 1822,
The tenant then offered to introduce the abovementioned judgment
of Morris Larned against William Robinson, to prove that the afore-
said conveyance from said Robinson to Jacobs, in December, 1816,
in which the demandant joined and released her dower, was fraud-
ulent and void as to creditors, and that therefore the demandant
was barred of her dower, by force of the statute aforesaid. The de-
mandant objected to the admission of that judgment for this purpose,
because it was between different parties, and not binding on her; and
because it had no tendency, in itself to prove fraud in said deed to
Jacobs ; there being no proof on what ground the verdict and judg-
ment in that case was rendered.
The judge ruled that said judgment could not be admitted for
the purpose for which it was offered. To this ruling the tenant
excepted. A verdict was taken for the demandant, which was to be
set aside and a new trial granted, if the court, should be of opin-
ion that the record of said judgment was admissible for said pur-
pose.
Wilde, J. The demandant having made out a prima facie case, en-
titling her to dower, the general question is, whether the defence
set up by the tenant is sufficient in law to bar her claim. He relies
on a deed of the premises in question from William Robinson, the
demandant's late husband, to one John Jacobs, Junior, in which
Aig.Pbop. — 40
626 DERIVATIVE TITLES (Part 2
deed the demandant joined, and thereby released to the said Jacobs her
right of dower in the premises.
It is admitted, that the tenant has no title under Jacobs ; but his
counsel contends that he has, by the common law, a right to plead in
bar, and under St. 1836, c. 272>, abolishing special pleadings, to give
in evidence under the general issue, a conveyance by the demand-
ant to a third person under whom he does not claim ; and he relies
on the case of Wolcott v. Knight, 6 Mass. 418, and sundry other cases,
in which this principle is laid down. "For," it is said, "although the
tenant may have no title, still if the demandant has no right to re-
cover, he cannot be permitted to draw into question the seizin of the
tenant, whether he acquired it by right or by wrong." Stearns on Real
Actions, 226.
It has been argued by the counsel for the tenant, that this principle
is applicable to a case of dower, where the demandant had relin-
quished her inchoate right of dower by joining her husband in a con-
veyance to a stranger. But the contrary doctrine is laid down in Pix-
ley V. Bennett, 11 Mass. 298. And that case, we think, was rightly
decided.
The tenant's counsel contended, that as the demandant had once re-
leased her claim, she was for ever estopped to demand dower, who-
ever may be in possession of the land. But it is very clear that a stran-
ger cannot be bound by, nor take advantage of, an estoppel. An estop-
pel, to be binding, must be reciprocal, and parties and privies only
are bound thereby.
Whether the demandant's deed may by law operate as a release, or
in any way, except by way of estoppel, is a question which it is not
necessary to decide ; because, if it may operate so as to pass the right
to the grantee, this action may well be maintained for his benefit, or
for the benefit of his assigns ; as they cannot maintain an action in
their own names, to enforce their right against the tenant.
But there is another answer to this objection to the demandant's
title, which is entirely satisfactory and conclusive. The tenant, at the
trial, ofifered to prove that the conveyance to Jacobs, was fraudulent
and void as to the creditors of the grantor, and that, on that ground,
he had recovered judgment for the possession of the premises against
the assignees of the said Jacobs. Now we are of opinion that the
tenant, having avoided the deed to Jacobs, cannot now be allowed to
set it up as a bar to the demandant's claim. In Stinson v. Sumner, 9
Mass. 143, 6 Am. Dec. 49, it was decided that where a wife releases
her claim of dower, by joining her husband in a conveyance, and
the purchaser recovers back the purchase money on account of the
grantor's defect of title to the land, the release of the wife thereby
becomes inoperative, and does not bar her right of dower after her
husband's decease. The principle, on w^hich that decision is founded,
applies conclusively to the present case. The tenant has avoided the
deed of the husband, and defeated the estate on which the demand-
Ch, 5) ESTATES CREATED 627
ant's release of dower was intended to operate. By law, therefore,
and in justice, she was thereby restored to her former rights.
The other ground of defence depends on the construction to be given
to St. 1805, c. 90, sec. 5, which provides "that all the lands, tene-
ments, and hereditaments of which the intestate died seized, and also
all such estate which he had fraudulently conveyed, with intent
to defraud his creditors, shall be liable for the payment of his
debts, and may be recovered and applied thereto, saving to the
widow her dower therein ; except in the estate so fraudulently con-
veyed, to which she had legally relinquished her right of dower."
The execution, under which the tenant claims title, was extended on
the premises in the lifetime of the demandant's husband, and is not
therefore within the letter or the meaning of the statute, which is
expressly limited to the lands, tenements, and hereditaments of an
intestate, and to the proceedings after his death. If the demand-
ant's dower is subject to forfeiture, it must be applied to the equal
benefit of all the creditors, and the tenant has gained no priority or
title under the execution, in respect to the claim of the demandant.
Wildridge v. Patterson, 15 Mass. 148. Where a statute in clear
terms is limited to a certain class of cases, the limitation is not to be
extended by construction, especially if it would thereby subject an
estate to forfeiture.
Judgment on the verdict."^
31 See Huntzirker v. Crocker, 185 Wis. 38, 11,5 N. W. .340, 15 Ann. Cna 444
(1908) ; In re Lingafelter, ISl Fed. 24, 104 C. C. A. 38, 32 L. K. A. (N. S.) 103
(1!)10), where the conveyance was set aside in bankruptcy proceedings because
preferential. But compare iMiller v. Wilson, 15 Ohio, IDS (184fi).
Statutory Provisions as to Dower.— In practically all of the states there
are statutes relative to dower. These statutes vary in their terms and scojie,
and should be consulted by the student. In many states the statutes provide
for a dower almost, if not wholly, identical with the common-law dower. In al-
most an equal number of states it is declared by statute that dower is abolish-
ed, and provision is* made, usually in the chapter on TJescenls, whereby, upon
the death of the husband, the widow shall take a specified interest in his real-
ty. I'nder these latter statutes a nice question may arise as to the nature of
the widow's title; that is, whether the common-law principles relative to dow-
er have any applicability, or whetlier it is to be treated pm-ely as a case of in-
heritance. In Fletcher v. Holmes, 32 Ind. 497, 510 (1870), the court said : "It
seems clear, therefore, that the right of the widow, under the statute, to a
third of the lands of her deceased husband, is not as dowress, but it rests in
lier, at his death, as an heir, by descent. The estate thus given is much larger
than that of dower. It is a fee simple, and not merely an estate for life. It
differs in many other respects from dower; it entitles the wife, without as-
signment, to immediate possession, as a tenant in common with the other heirs,
and she may convey it at pleasure. On the other hand, it has some of the in-
cidents of dower. The widow is made a favored heir, and the interest which
descends to her is exempt from liability for the payment of the debts of the
estate. And so, by section twenty-seven, she is not only entitled to a thirpl of
all the lands of which her husband may die seized in fee simple, and of all in
•which he has an equitable interest at the time of his death ; but also of all of
which he may have been seized in fee sin)ple at any time during the coverture,
in the conveyance of which she did not join in due form of law," etc.
How about such interest being subieet to the inheritance tax? See In ro
Estate of Strahan, 93 Neb. 828, 142 N. W. 678 (1913).
628 DERIVATIVE TITLES (Part 2
SECTION 4.— ESTATES FOR YEARS
LITTLETON'S TENURES.
Tenant for term of years is where a man letteth (lou home lessa)
lands or tenements to another for term of certain years, after the
number of years that is accorded between the lesser and the lessee. And
when the lessee entreth by force of the lease, then is he tenant for term
of years.
Section 58.
COKE UPON LITTLETON.
Words to make a lease be, demise, grant, to farm let, betake; and
whatsoever word amounteth to a grant, may serve to make a lease.
In the king's case this word Committo doth amount sometime to a
grant, as when he saith Commissimus W. de B. officium seneschalsise,
&c. quamdiu nobic placuerit, and by that word also he may make a
lease : and therefore a fortiori a common person by that word may do
the same.
. "Of certain years." For regularly in every lease for years the term
must have a certain beginning and a certain end; and herewith
agreeth Bracton, terminus annorum certus debet esse et determina-
tus. And Littleton, is here to be understood, first, that the years
must be certain when the lease is to take effect in interest or posses-
sion. For before it takes effect in possession or interest, it may
depend upon an incertainty, viz. upon a possible contingent before it
begin in possession or interest, or upon a limitation or condition subse-
quent. Secondly, albeit there appear no certainty of years in the lease,
yet if by reference to a certainty it may be made certain it sufficeth.
Quia id certum est quod certum reddi potest. For example of the first.
If A, seised of lands in fee grant to B. that when B, pays to A. 20
shillings, that from thenceforth he shall have and occupy the land
for 21 years, and after B. pays the 20 shillings, this is a good lease
for 21 years from thenceforth. For the second, if A. leaseth his land
to B. for so many years as B. hath in the manor of Dale, and B. hath
then a term in the manor of Dale for 10 years, this is a good lease
by A. to B. of the land of A. for 10 years. If the parson of D. make
a lease of his glebe for so many years as he shall be parson there,
this cannot be made certain by any means, for nothing is more uncer-
tain than the time of death. Terminus vitse est incertus, et licet nihil
certius sit morte, nihil tamen incertius est hora mortis. But if he make
a lease for three years, and so from three years to three years, so
long as he shall be parson, this is a good lease for six years, if he
Ch. 5) ESTATES CREATED 629
continue parson so long, first for three years, and after that for
three years; and for the residue uncertain.
If a man maketh a lease to I. S. for so many years as I. N. shall
name, this at the beginning is uncertain; but when I. N. hath named
the years, then it is a good lease for so many years.
A man maketh a lease for 21 years if I. S. live so long; this is a
good lease for years, and yet is certain in incertainty, for the life
of I. S. is incertain. See many excellent cases concerning this matter
put in the said case of the Bishop of Bath and Wells. By the ancient
law of England for many respects a man could not have made a lease
above 40 years at the most for then it was said that by long leases
many were prejudiced, and many times men disherited, but that an-
cient law is antiquated.
"And when the lessee entreth by force of the lease, then is he ten-
ant for term of years." And true it is, that to many purposes he is not
tenant for years until he enter ; as a release made to him is not good
to him to increase his estate, before • entry ; but he may release the
rent reserved before entry, in respect of the privity. Neither can
the lessor grant away the reversion by the name of the reversion,
before entry. But the lessee before entry hath an interest, interesse
termini, grantable to another. And albeit the lessor die before the les-
see enters, yet the lessee may enter into the lands, as our author him-
self holdeth in this Chapter. And so if the lessee dieth before he
entered, yet his executors or administrators may enter, because he pres-
ently by the lease hath an interest in him; and if it be made to two,
and one die before entry, his interest shall survive.
Co. Litt. 45b, 46a, b.
LITTLETON'S TENURES.
And it is to be understood, that in a lease for years, by deed or
without deed, there needs no livery of seisin to be made to the lessee,
but he may enter when he will by force of the same lease.
Section 59.
HARE et al. v. CELEY.
(Court of Common Pleas, 15S8. Cro. Eliz. 143.)
Trespass for breaking their close called Church-field, and metes
and bounds it. The jury find a special verdict, that the place where
was sixteen acres lying in a field called Church-field, and meted it
by other metes and bounds that were mentioned in the new assign-
ment, of which Hare was seised in fee, and eas exposuit to the other
three to sow at halves, scil. that he should find one half of the seed,
and the other three the other half, and should manure the land; and
630 DERIVATIVE TITLES (Part 2
that Hare should have one moiety of the grain there growing when
it was reaped, and the others the other moiety; and after the land
was sown, A. entered by the command of the defendant, and spoiled
a great part of the corn. Upon which entry and spoiling, the action
was brought. — First matter, If Church-field being found to be a great
field, in which divers men had interest, if the sixteen acres in it may
be called Church-field? And as to this the Court spake little. — Sec-
ond matter. If this exposing the land to half be not a lease of the
land, so as the action was to be brought in the name of Hare and the
three? — Third, admitting it was a lease, if Hare be not tenant in com-
mon with them of the corn ; for the moiety of that which was sown,
was his?
The Couet held it no lease of the land, but otherwise if it be for
two or three crops : and therefore, as to the breaking of the close.
Hare only was to bring the action ; and as to the spoiling the corn,
they ought to join being tenants in common. But in that they joined
in the action for breaking the close, whereas he ought to have brought
it alone, it was adjudged the writ should abate.
CASWELL V. DISTRICH.
(Supreme Court of New York, 1S36. 15 Wend, 379.)
Error from the Monroe common pleas. The plaintiff as executrix of
D. Caswell, brought an action of assumpsit against Districh for the rent
of certain premises. The defendant pleaded the general issue. On
the trial, the plaintiff produced a written agreement between her tes-
tator and the defendant to the effect; that the testator had agreed
to let the defendant have his farm for one year, and that Districh
had agreed to sow oats and give the testator one third in the half bush-
el; corn, one third in the basket; to sow three lots (particularly de-
scribed) into wheat, and give the testator one third in the half bushel
— the meadow, three cocks out of five, and the rest half delivered
in the barn. The plaintiff proved the quantities of grain raised by the
defendant, and rested. The defendant insisted that the instrument
produced was an agreement to work the land on shares, and not a
lease securing rent ; that the parties therefore were tenants in common
in the crops, and an action for the rent of the premises would not lie.
Whereupon he moved for a nonsuit, which was granted by the court.
The plaintiff sued out a writ of error.
Nelson, J. The agreement between the parties was a letting of
the premises upon shares, and, technically speaking, was not a lease.
Bradish v. Schenck, 8 Johns. 151; Foote v. Colvin, 3 Johns. 216, 3
Am. Dec. 478; Whipple v. Foot, 2 Johns. 421, 3 Am. Dec. 442; De
Mott V. Hagerman, 8 Cow. 220, 18 Am. Dec. 443. There is nothing
which indicates that the stipulation for a portion of the crops was
Ch. 5) ESTATES CREATED 631
by way of rent; but the contrary. The shares were of the specific
crops raised upon the farm. It is very material to the landlord, and
no injury to the tenant, that this view of the contract should be main-
tained, unless otherwise clearly expressed, for then the landlord has
an interest to the extent of his share in the crops. If it is deemed
rent, the whole interest belongs to the tenant until a division. Where
a farm is let for a year upon shares, the landlord looks to his interest
in the crops as his security, and thereby is enabled to accommodate
tenants, who otherwise would not be trusted for the rent.
This case is clearly distinguishable frbm that of Stewart v. Dougher-
ty, 9 Johns. 108. There the court, from the correspondence between the
phraseology of the instrument and the terms usual in leases in the
reservation of rent, came to the conclusion that the, proportion of the
crops specified in the agreement was intended as payment of rent in
kind, and that therefore the whole interest belonged to the tenant.
If my conclusion be correct, then the parties were tenants in com-
mon in the crops, and as the plaintiff stood in the place of her testator,
she was not entitled to sustain her action, and the common pleas did
right to grant a nonsuit.
Judgment affirmed.^^
STEEL V. FRICK.
(Supreme Court of Pennsylvania, 1867. 56 Pa. 172.)
Error to the Court of Common Pleas of Westmoreland county ;
No. 90, to October term, 1866.
This was an action of covenant, commenced April 6th, 1863, by Da-
vid Z. Frick against James Steel, and was founded on an article of
agreement dated January 8th, 1862, by which "Steel agrees to let
the said Frick farm his part of the Warden farm, now in the occu-
pancy of James D. Porter, for the term of one year, commencing on
the 1st day of April next — the said Frick to put one field in corn, and
work it sufficiently well, and to put the cornstalk field out in oats in
the spring in good time and order, and to sow so much of the land
in wheat and rye in the fall as the said Steel may wish, or as is fit
to be sowed, and to haul out all the manure and put it on the ground
before sowing, and to keep up the fences in good repair, and to sow so
much of the land with timothy and cloverseed as it not intended to be
32 See Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309 (1841).
In Taylor v. Donahoe, 125 Wis. 513, 103 N. W. 1009 (1905), the arrangement
entered into was held to have created a relatiou.'ship of master and servant and
that, therefore, the ownership of the crops was wliolly in the landowner, the
cropper acquiring an interest therein only after division by the landowner. So,
also, in Ivelly v. Rnmnierheld, 117 Wis. 620, 94 N. W. 619, 98 Am. St. Kep. 951
(1903), where the lando\\aier sued the cropper in replevin to recover the half
of the crop by him harvested and appropriated ; and in Farrow v. Wooley, 138
Ala. 207. 36 South. 384 (1902).
632 DERIVATIVE TITLES (Part 2
ploughed immediately again, and to deliver the said Steel the one-half
of all the oats, corn, wheat and rye at market, when wanted or ready
for delivery. All to be done in a sufficient manner as farming should
be done, and to pay all the taxes assessed or to be assessed for the year
1862 — the said Frick is to have all the hay he makes, and all the pasture
during said year on said land."
The "Warden farm" contained in the whole about 159 acres, and
belonged to Steel and one David Williams. In an action of partition
by Williams against Steel, to February Term, 1862, judgment quod
partitio fiat was rendered May 12th, 1862, and a writ de part. fac. issued
to August Term 1862.
The evidence was, that Frick went to the house on the premises on
the 1st of April, 1862, with all his goods. Porter had the house locked
and would not let Frick in ; he had to haul his goods away and put
them into a barn about two miles off, and his family into an almost
untenantable house at another place. There was evidence that Frick
was not prevented from farming the land, but made no attempt to
do so; also, that upon Frick's informing Steel that he could not get
possession. Steel said he would give him a house and land off his own
farm, more than he was to get there ; that Steel thought the offer was
a good one, but that he did not wish to leave the neighborhood.
The court (Buffington, P. J.) charged :
"Steel and Williams were the owners of this land as tenants in
common. Steel leased his part to the plaintiff, Frick, from 1st April,
1862 to 1st April, 1863. This is not a contract to lease to him the
whole of the land, but only his part. The name of Porter is intro-
duced, not to define the amount of interest leased, but the description
of the tract, his interest in which was leased. Steel had no right to
the entire possession, but Williams had as good a right to his part of
the tract. [Steel, however, did agree to lease to him his part of the
land. That was a covenant to enable him to get and hold the pos-
session, and enjoy the undivided half or all the interest Steel had,
including not only the farm land, but the barn, house and other build-
ings necessary to the enjoyment of the farm.] If he made a contract
which he could not comply with, it was his fault, or his misfortune;
and if the contract was a fair one, Frick had a right to the posses-
sion, and was prevented from enjoying the premises according to the
spirit of the agreement, and he could not enjoy it, either by the act of
Steel, or his want of right or power to give possession, then the ten-
ant would be entitled to recover whatever damages he sustained.
"[If the jury believe Frick was thus deprived of the possession,
either by the act or want of power in Steel to give possession, Frick
is entitled to recover.] It is no excuse that he could not give a pos-
session."
There was a verdict for the defendant for $315.91 damages.
The defendant took a writ of error, and assigned for error the parts
of the charge included in brackets.
Ch. 5) ESTATES CREATED 633
Thompson, J. If the agreement between the plaintiff and defend-
ant in this case, is to be regarded as a lease of the premises, it would
pass the possession of the buildings on it to the lessee. It would
necessarily be a covenant for quiet enjoyment. The instrument is
very inartificial, but we think it contains all the elements of a lease.
It sets out by a stipulation, that "Steel agrees to let Frick farm his
part of the Warden farm, now in the possession of James D. Porter."
This is a letting to farm by equivalent "words to these, "To farm
let," which are operative terms in leases. The premises mentioned
were well understood, at least no dispute exists on the ground of
description. After this preliminary stipulation, then follows "for the
term of one year." It may as well be said here, that this and what
follows is nothing like a contract for cropping. After stipulating
about the mode in which the farming was to be done, and that the
lessee should haul out all the manure to the fields, and keep the fences
in good repair, then follows the reservation of rent, which was to be
"the one-half of all the oats, corn, wheat and rye, to be delivered to
Steel at market when wanted, or ready for delivery, and the payment
of all the taxes for the year 1862, Frick to have all the hay and the
pasture of the land during the year."
A cropper is one hired to work land and to be compensated by a
share of the produce. Such a contract gives him no legal possession
of the premises, further than as a hireHng. The legal possession re-
mains in the hirer or landlord, and hence the remedy by distress is
not applicable to him: Fry v. Jones, 2 Rawle, 11; Adams v. McKes-
son, 53 Pa. 81, 91 Am. Dec. 183. That the above contract is not a
hiring to work land merely, is evident. The lessee was to farm the
lessor's share or portion of the Warden farm for the term of one
3'^ear — to do it in a sufficient manner as farming should be done, and
to pay all taxes. This left the mode of farming to the lessee, as it
is not stipulated to be done in a particular way, and necessarily gave
him the possession and control to do the farming in his own way, un-
like the relation of a mere hireling — still more unlike cropping, as the
stipulation that the lessee was to pay the taxes. One hired to crop
would hardly be expected to pay taxes. But it is further apparent in
this, that Frick was to have the possession of the premises for the
specified term, on the stipulation that he was bound to haul out the
manure, and keep the fences in repair. These stipulations clearly look
to a possession of the premises by the lessee; so, too, is the stipula-
tion for all the pasturage during the year. If then the contract means,
as we think it does, that the possession was to be in Frick, this evinces
the intention to create a tenancy.
That the rent was reserved, payable in kind by a share of the grain,
does not militate against the idea of a lease. In Fry v. Jones, on the
demise of a grist-mill, the lessee to render one-third of the toll as rent,
it was held by this court that the lessor might distrain for rent. The
principle to be applied in that case was illustrated by the learned judge,
634 DERIVATIVE TITLES (Part 2
by the case of farm-letting. "We have almost always," says Rogers,
J., "adopted the mode of renting for a share of the produce of the
farm, which is preferred by tenant and landlord;" and he follows this
remark by concluding that a distress was the remedy in such a letting.
An implication of a doubt in Warren v. Forney, 13 Serg. & R. 52,
whether the right of distress is incident to a lease, may possibly arise
from the remark of Tilghman, C. J., in refusing to express any opinion
on the point, although he said he did not consider it legitimately be-
longing to it; but Fry v. Jones was decided five years subsequently,
and both by illustration and the announcement of the very principle
settled the doctrine that it is. So in Jones v. Gundrim, 3 Watts & S.
.531, rent payable in hire was held to be liable to distress, and the case
of Jones V. Fry was relied on as authority for it. The same doctrine
is very distinctly announced in Rinehart v. Olwine, 5 Watts & S. 157.
We consider the doctrine settled, and that in this case there was a let-
ting for a term, with a reservation of rent sufficiently certain to per-
mit of a distress. This being so, the agreement for tenure was broken
on the failure of the plaintiff to get possession, being kept out by a
person in possession under the defendant. The declarations of the
defendant, and his offer to give the plaintiff' a house and land in an-
other place, was some evidence of the understanding as to the pos-
session.
Upon the whole, we see no error on the part of the court in constru-
ing the instrument in question a lease, and in charging as it did on the
subject-matter complained of. Judgment affirmed.^*
SECTION 5.— ESTATES AT WILL AND FROM YEAR
TO YEAR
LITTLETON'S TENURES.
Tenant at will is, where lands or tenements are let by one man to
another, to have and to hold to him at the will of the lessor, by force
of which lease the lessee is in possession. In this case the lessee is
called tenant at will, because he hath no certain nor sure estate, for
the lessor may put him out at what time it pleaseth him.
Section 68.
33 In Warner v. Abbey, 112 Mass. 355 (1873), the arrangement for cropping
was held to amount to a lease.
A. leased premises to B. for three years, with the privilege of five, upon
shares, B. to to all the work, find all the seed, and to deliver to A. one-third
the crops. The farm was to be cropped in a way specified, and B. was to have
the use of certain farm implements of A., and was to take good care of same.
Could B. assign his interest to X? Randall v. Chubb, 46 Mich. 311, 9 N. W.
4119, 41 Am. Rep. 1C5 (1881) ; Meyer v. Livesley, 45 Or. 487, 78 Pac. 670, 106
Am. St. Rep. 667 (1904).
Ch. 5) ESTATES CREATED 635
COKE UPON LITTLETON.
"Tenant at will is, where lands or tenements are let by one man to
another, to have and to hold to him at the will of the lessor, &c." It
is regularly true, that every lease at will must in law be at the will of
both parties, and therefore when the lease is made, to have and to hold
at the will of the lessor, the law implieth it to be at the will of the les-
see also ; for it cannot be only at the will of the lessor, but it must be
at the will of the lessee also. And so it is when the lease is made to
have and to hold at the will of the lessee, this must be also at the will
of the lessor ; and so are all the books that seem prima facie to differ,
clearly reconciled.
"The lessor may put him out." There is an express ouster, and im-
plied ouster; an express, as when the lessor commeth upon the land,
and expressly forewarneth the lessee to occupy the ground no longer;
an implied, as if the lessor without the consent of the lessee enter into
the land, and cut down a tree, this is a determination of the will, for
that it should otherwise be a wrong in him, unless the trees were ex-
cepted, and then it is no determination of the will, for then the act is
lawful albeit the will doth continue. If a man leaseth a manor at will
whereunto a common is appendant, if the lessor put in his beasts to
use the common, this is a determination of the will. The lessor may
by actual entry into the ground determine his will in the absence of
the lessee but by words spoken from the ground the will is not deter-
mined until the lessee hath notice. No more than the discharge of a
factor, attorney, or such like, in tlieir absence, is sufficient in law un-
til they have notice tliereof.
Co. Litt. 55a, b.
LITTLETON'S TENURES.
Also, if a man make a deed of feoffment to another of certain lands,
and deHvereth to him the deed, but not livery of seisin ; in this case
he, to whom the deed is made, may enter into the land, and hold and
occupy it at the will of him which made the deed, because it is proved
by the words of the deed, that it is his will that the other should have
the land ; but he which made the deed may put him out when it plea»-
eth him.
Section 70.
636 DERIVATIVE TITLES (Part 2)
COKE UPON LITTLETON.
There is a great diversity between a tenant at will and a tenant at
sufferance ; for tenant at will is always by right, and tenant at suffer-
ance entreth by a lawful lease, and holdeth over by wrong. A tenant
at sufferance is he that at the first came in by lawful demise, and after
his estate ended continueth in possession and wrongfully holdeth over.
As tenant pur terme d'auter vie continueth in possession after the de-
cease of Ce' que vie, or tenant for years holdeth over his term; the
lessor cannot have an action of trespass before entry,
Co. Litt. 57b.
LEIGHTON V. THEED.
(Court of King's Bench, 1701. 2 Salk. 413.)
If H. holds land at will, rendering rent quarterly, the lessor may de-
termine his will when he pleases ; but if he determines it within a
quarter, he shall lose the rent which should have been paid for that
quarter in which he determines it. So the lessee may determine it
when he pleases, but tlien he must pay the quarter's rent. Per
How, C. J.
TURNER v. MEYAIOTT.
(Exchequer Chamber, 1823. 1 Bing. 158.)
Trespass for breaking and entering plaintiflf's house. At the trial
before the Lord Chief Baron, Guilford Summer assizes, 1822, it ap-
peared that the plaintiff had been tenant of the house to the defend-
ant, from week to week ; that he had received a regular notice to quit,
but omitted to deliver up possession, whereupon, the defendant, at a
time when nobody was in the house broke open the door with a crow-
bar, and other forcible applications, and resumed possession. Some
little furniture was still in the house. The Chief Baron having said
that the law would not allow the defendant thus forcibly to reinstate
himself, the jury found a verdict for the plaintiff, whereupon,
Taddy, Serjt., obtained a rule nisi for a new trial, and
Pell, Serjt, now showed cause against the rule. The question is,
whether when a tenant refuses to deliver possession after a regular
notice to quit, the landlord may make a forcible re-entry: but it can-
not be permitted he should take the law into his own hands, and do-
that by violence which is usually accomplished by an action of eject-
ment. It is contrary to the first principles of law, that he should be-
come judge in his own cause, and substitute his own strength for the
ordinary civil process. If there had been resistance, and death had
Ch. 5) ESTATES CREATED Q^t
ensued, the crime of murder would have been committed; and it
makes no difference that nobody was in the house, for the defendant
could not ascertain that till he entered, and the plaintiff" might have
come up while the violence was in progress. Some furniture being
in the house, this was not a case of vacant possession. The statute of
11 G. II, which gives the landlord double value where the tenant
holds over, shows what is the appropriate remedy in such cases ; but
that statute would be useless, if the landlord might thus take the law
into his own hands. It might be urged, that if the landlord had pro-
ceeded irregularly he would be liable in an indictment for a forcible
entry, but his subsequent liability would not justify the previous
wrong. In Taunton v. Costar, 7 T. R. 431, the entry made by the
landlord's putting his cattle on the ground was entirely peaceable, and
to that there could be no objection; so that Lord Kenyon's observa-
tion, "that if he dispossessed the tenant with a strong hand, he would
be liable for a forcible entry, but there could be no doubt of his right
to enter on the land at the expiration of the term," was uncalled for
by the case before him, and leads to the absurdity, that, in certain cases,
a landlord may enter, and yet he shall be punished for the entry.
Pell also referred to Davies v. Connop, 1 Price, 53.
Dallas, C. J. The high respect which I entertain for my lord chief
baron, has alone made me hesitate a single moment, and even now,
perhaps, as the cause is to go down to be tried again, I ought not
to express an opinion. The question is, whether a landlord has a right
to enter in the manner the defendant did under the circumstances
of this case, in which the tenant held over after his right to posses-
sion had ceased, and the landlord's right to enter had accrued. It
must be admitted he had a right to take possession in some way ;
the case of Taunton v. Costar is in point, to show that he might
enter peaceably and that no ejectment was necessary. If he had used
force, that is an offence of itself ; but an offence against the pub-
lic for which, if he has done wrong, he may be indicted.
Park, J. I am of the same opinion. The declaration states that the
defendant broke and entered the house of the plaintiff, but the fact
was not so ; the plaintiff had gone out, and the house was not his,
but his landlord's, who had a right to break his own door; as no
person was within, there could be no danger to any man's life. Lord
Kenyon says, in Taunton v. Costar, "it is clear the landlord could
have justified in a plea of liberum tenementum. There can be no
doubt of his right to enter upon the land at the expiration of the
term;" and that decision, in my judgment, goes the whole length of
the present.
BuRROUGH, J. I was once concerned at the cock-pit in a case similar
to the present, where I used the same arguments as have now been
urged by my brother Pell, but Lord Kenyon and Lord Alvanley who-
were there, entertained no doubt, and said the landlord might enter.
The rule for a new trial in this case must be made absolute.
638 DERIVATIVE TITLES (Part 2
HILLARY V. GAY.
(Court of Exchequer, 1S33. 6 Car. & P. 2S4.)
Trespass for breaking and entering a room of the plaintiff, being
parcel of a dwelling-house. There were also counts for expulsion,
and for taking the plaintiff's goods. Plea — General issue.
It appeared that the house at which the trespass occurred belonged
to the defendant, who had let it to a person named Jury, who had
under-let a part of it to the plaintiff. It further appeared that Jury
was under notice to quit at Midsummer, 1833, but that the plain-
tiff did not quit at that time, the defendant having distrained his goods
in the month of August, 1833, for the rent due up to Midsummer:
it was also proved that the plaintiff had said that he would not leave
till he could suit himself, which would be within a fortnight; how-
ever, it appeared that after that fortnight the plaintiff did not leave;
and the defendant procured a number of Irishmen' to go to the house,
and after getting the plaintiff to go away, by sending a boy to tell
him that his master wanted him, the Irishmen entered the plaintiff's
room, and turned his wife out into the street, and put the plaintiff's
furniture out at the window.
Thesiger, for the defendant. — I submit that this was no trespass in
the defendant; he was the landlord, and the tenancy had expired,
and he had therefore a right to resume the possession. In the case
of Turner v. Meymott, 7 Moo. 574, it was held that where a tenancy
had determined, the landlord was not a trespasser if he broke into the
house.
Lord Lyndhurst, C. B. There the tenant had gone away and had
not left his family in possession. The tenant was in that case out
of possession,' and no one was in possession. Where that is so, the land-
lord may enter if the term is at an end.
Thesiger.— In the case of Taylor v. Cole, 2 T. R. 292, it was held
that the breaking was the gist of the action, and that the expulsion
was merely aggravation.
Lord Lyndhurst, C. B. How do you say the tenancy was put an
end to?
Thesiger. — The tenancy terminated on ]\Tidsummer-day.
Lord Lyndhurst, C. B. You distrain after that.
Ball. — There was also a disclaimer by the plaintiff.
A witness for the defendant stated, that he called on the plaintiff
in July or August, 1833, and told him that it was an injury to his
landlord that he should stay in the house contrary to his agreement;
and that the defendant replied, that he would not go, as it was a com-
fortable thing to pay no rent, and that he would not leave for Mr. Gay,
or Mr. Jury either.
Lord Lyndhurst, C. B. (in summing up.) Even if the plaintiff
had promised to leave at a particular day, the conduct of the defend-
Ch. 5'' ESTATES CREATED 639
ant is unjustifiable. There is no proof of any distinct promise of the
plaintiff to go away at any particular time; but even if he had so
promised, I am of opinion that the conduct of the defendant cannot be
justified. If the defendant had a right to the possession, he should
have obtained that possession by legal means.
Verdict for the plaintiff — Damages £50.^*
POLLEN AND WIFE v. BREWER.
(Court of Common Pleas, 1859. 7 C. B. [N. S.] 371.)
The first count of the declaration charged an assault on the female
plaintiff, the second (which was abandoned at the trial) the like with
an allegation of loss of service, &c., the third an assault upon the male
plaintiff, the fourth breaking and entering the plaintiff's dwelling-house
and forcibly expelling him and his wife and family, and the fifth was
trover.
The defendant pleaded not guilty.
34 In New-ton v. Harlanrl, 1 M. & G. 644 flSJO), the plninfifP. who hfid hoen
forcibly ejected by the defendant from premises to the possession of which
the defendant was then entitled, sued for assault and battery. Tindal. C. J.,
said : "Tliis case involves a qnestion of great importance and one of very gen-
eral application, namely, whether, after a tenancy has been determined by a
notice to niiit, the landlord may enter on the r)remises wliilst the tenant still
remains in possession, and after requesting him to depart and give up the
possession, and his refusing so to do. may turn him out of possession by force,
u.sing as nmch force and no more than is necessary for that purpo.se. * * *
nie point above stated must be nece.ssarily determined before this case is ul-
timately decided. It appears, hpwever, to me that such question cannot, upon
the present finding of the jury, be properly brought before us. * * * For if
the landlord, in making his entry upon the tenant, has been guilty either of a
breach of a positive statute, or of an ofCence against the common law. it ap-
pears to me that such violation of the law in making the enl rj' causes the po.s-
se.ssion thereby obtained to be illegal, and that the allegation in the plea that
one of the defendants was lawfully in possession at the time the assault was
committed is negatived."
Hosanqnet. .7.. said: "Some things are clear. If a tenant hold over the land
after the expiration of his term, he cannot treat the lessor, who enters peace-
ably, as a trespasser; and the lessor, in such ease, may justify his own entry
upon the land by virtue of his title to the possession. * * * On the other
hand, the lessor, who is out of posse.ssion. cannot maintain an action of trespass
against a tenant holding over. He must first acquire a lawful pos.session be-
fore he can maintain such action, l^ut if the lessor enter upon the land to
take pos.session, he may treat as trespassers all those who afterwards come
upon it (Hey v. Moorhouse. 6 New Cases. 52, 8 Scott, 1.56 [1S."9|), or who, hav-
ing unlawfully taken possession, wrongfully continue upon the land, as in the
case of Butcher v. Butcher, 7 B. & C. 402 (1S27), whei'e the defendant had
come into possession of the land by intrusion, and the rightful owner, having
entered, was held entitled to maintain an action of trespass against him. The
lessor may even break and enter a house, provided it be enii)ty, which has been
occupied and held' over by his tenant, though the tenant may have left some of
his property therein. Turner v. Meymott, 1 Hing. 15S (1S2:-;). Hut no case has
yet lieen decided in which the lessor has been held to be justified in e.xpelling
by force from a dwelling house a person who, having lawfully come into pos-
session of it, has merely continued to hold possession after the expiration of his
title."
'640 DERIVATIVE TITLES (Part 2
The cause was tried before Williams, J., at the sittings at West-
minster after last Term. The plaintiff swore, that, in May, 1858, he
entered into a negotiation with the defendant for an assignment of a
lease of certain premises which the defendant held, that the defend-
ant agreed to let him into possession, and gave him the key, and that
shortly afterwards the defendant went to the premises with two men,
and assaulted the plaintiff and his wife, and turned them and their
children and furniture into the street.
The defendant denied that he had ever agreed to let the premises to
the plaintiff, but stated that he gave him the key for tlie purpose of
enabling his agent to inspect the premises. He also denied the alleged
assaults, and proved that, the plaintiff having refused to redeliver
possession of the premises to him on demand, he entered and expelled
him.
The jury, however, found that there was a tenancy of some sort, and
that the alleged assaults were committed; and they found for the
plaintiffs on the first count 20s. damages, on the third count 40s., and
on the fourth count £25. The learned judge reserved leave to the de-
fendant to move to reduce tlie damages by the last-mentioned sum, if
the court should think there was any evidence of a determination of
the tenancy.
ErlE, C. J. I am of opinion that this rule must be made absolute
to reduce the verdict by i25., the amount of damages found upon the
fourth count. It is clear that the plaintiff had at the utmost only the
interest of a tenant at will. I incline to think that the defendant never
intended to create even that limited interest: but the jury have found
it. The defendant, having a right to determine the plaintiff's posses-
sion at any moment, sent to demand the key, telling the plaintiff at
the same time (by letter) that he was in against his will. I am of
opinion that either of these was a sufficient intimation to the plaintiff
that he was no longer tenant at will, and that his continuance of the
possession was without a shadow of right, and therefore that the de-
fendant was justified in treating him as a trespasser and removing
him from the premises. There was abundant evidence that, at the
time of the expulsion, the plaintiff was on the premises without any
right. I therefore think the rule must be made absolute.
Williams, J. I also think there was sufficient evidence of a deter-
mination of the will, and consequently that the plaintiffs are not enti-
tled to recover damages for the expulsion.
Crowder, J. I am of the same opinion. I do not see what more
the defendant could do than he did to determine what the jury have
found to be a tenancy at will. It is said that there was no proper de-
termination of the tenancy, because the demand of ppssession or the
key, was accompanied by an assertion that there never was any ten-
ancy at all. I do not, however, see how that can cut down the evi-
dence of determination. The defendant demands the key, then a cor-
respondence ensues, and then he makes an entry. This was a clear in-
Ch. 5) ESTATES CREATED 641
timation to the plaintiff of his election to determine any right he might
have.
BylEvS, J. I also am clearly of opinion that the rule to reduce the
damages should be made absolute. I have nothing to add to what has
fallen from the rest of the court.
Rule absolute.
CURTIS V. GALVIN.
(Supreme Judicial Court of Massachusetts, 1861. 1 Allen, 215.)
Tort for entering the plaintiff's dwelling-house, and removing his
furniture and ejecting his family therefrom. The defendants proved,
in justification, that the defendant Galvin, being the owner of the
premises, conveyed them by deed to the other defendant Carney, and
that, eight days before the acts complained of, Carney informed the
plaintiff thereof, and gave him notice to quit. At the trial in the su-
perior court Rockwell, J., directed a nonsuit, arid the plaintiff alleged
exceptions. The facts appear more fully in the opinion.
BiGiiLOW, C. J. It appears by the testimony of the plaintiff that,
in October 1858, prior to the alleged trespass, the premises from which
he was ejected belonged to Galvin. Inasmuch as he offered no evi-
dence of any right to their occupation created by an instrument in
writing, he could have no greater title or interest tlierein than an es-
tate at will. Rev. St. c. 59, § 29. On the facts stated in the excep-
tions, this is the most favorable view which can be taken of his right
to the possession and enjoyment of the premises, prior to the convey-
ance to the defendant Carney. But, on a familar and well settled rule
of law, this tenancy at will was determined, and the plaintiff became
a tenant by sufferance only, by the conveyance from Galvin to Carney,
the other defendant, on the 9th of said October. Howard v. Merriam,
5 Cush. 563, 574 ; McFarland v. Chase, 7 Gray, 462.
The evidence offered by the plaintiff to impeach this conveyance,
and to show that it was colorable, and was in fact made for the pur-
pose of enabling the said Galvin to eject the plaintiff from the prem-
ises, was rightly rejected. The deed was a valid one as between the
parties. It passed the title to the premises. The grantor had no power
to compel the grantee to surrender the estate conveyed to him. It
violated the legal rights of no person. It is true that a creditor of
the grantor, who could show that he was thereby hindered, delayed
and defrauded of the collection of his debt, or a subsequent purchaser
without notice, who could prove that the deed was made with intent
to defraud him, might impeach the conveyance, and set it aside on tlie
well settled principles of the common law as declared in Sts. 13 Eliz.
c. 5, sec. 2, and 27 Eliz. c. 4, sec. 2. But in such case the deed is
valid between the parties; and, witli this exception, we know of no
Aiq.Pbop. — 41
642 DERIVATIVE TITLES (Part 2
rule of law which restrains the owner in fee from the free and un-
fettered alienation of his estate. It is only an exercise of a legal right,
which works no injury to any one, least of all to a person who holds
under the grantor. He took his estate or interest in the premises sub-
ject to all the legal rights of the owner therein, and must be presumed
to have known them, and to have assented thereto. To him, there-
fore, the maxim volenti non fit injuria is applicable. The determina-
tion of an estate at will, by an alienation by the owner of the rever-
sion, is one of the legal incidents of such an estate, to which the right
of the lessee therein is subject, and by which it may be as effectually
terminated as by a notice to quit given according to the requisitions of
the statute. Indeed it is difficult to see upon what ground a deed can be
held void, as being colorable or fraudulent, which is made in the ex-
ercise of a legal right, and which has no effect on the rights of a third
party, who seeks to set it aside, other than that which was necessarily
incident to the estate which he held in the- premises. The dictum of
the court in Howard v. Merriam, ubi supra, cited by the counsel for
the plaintiff, was not essential to the decision of that case, and cannot
be supported on principle or authority.
It follows that, after the conveyance of the demised premises, the
plaintiff became tenant by sufferance only, and could not maintain
this action of tort in the nature of trespass quare clausum against the
defendant Carney, who was the grantee in the deed ; nor against the
other defendant, who acted under his authority in attempting to eject
the plaintiff from the premises. At the time of action brought, it was
not the plaintiff's close. A tenant by sufferance holds possession
wrongfully. Co. Litt. 57b, 271a. The defendants had a full right of
entry. Meader v. Stone, 7 Mete. 147.
Exceptions overruled.
SAY V. STODDARD.
(Supreme Court of Ohio, 1S75. 27 Ohio St. 47S.)
Error to the Superior Court of Montgomery County.
The plaintiff in error was plaintiff in the court below, where his
amended petition was demurred to, on the ground that it did not state
facts sufficient to constitute a cause of action. This demurrer was sus-
tained, and plaintiff not desiring farther to amend, judgment was en-
tered for defendant. The action of the court in sustaining the demur-
'rer is here assigned for error. The petition was substantially as fol-
lows:
That, on August 27th, 1869, James Celey leased a dwelling-house in
the city of Dayton, in the county of Montgomery, with the lot whereon
said house is situate. Said written lease being as follows, to wit:
"Henry Stoddard, Sr., has rented to James Celey his Fowler House,
on lot No. 4, on the east side of St. Clair street, between Water and
Ch. 5) ESTATES CREATED 648
First streets, in Dayton, at a rent of thirteen dollars a month, for so
long as the parties shall mutually agree to continue the renting under
this agreement. Said Celey being in the employment and service of
Stoddard & Co., in their mill ; they are to pay the rent monthly or half
monthly, as may be most convenient, out of Celey's wages. Either
party may put an end to this renting by giving the other party four
days' notice, in writing, that this renting is to cease at the expiration
of four days from the service of such notice on the other party. Said
Celey agrees to use arid treat the premises in a proper tenant-like man-
ner while he occupies. The rent to commence August 27. 1.869.
"[Signed] Henry Stoddard, Sr.
"James Celey.
"[Stamp.]
"Paid up to Oct. 1, 1869."
That James Celey, on the 27th day of August, 1869, with Henry
Stoddard, Sr.'s, consent, took lawful and peaceable possession of the
premises, under said lease, and continued in possession thereof till the
'7th day of December, 1869, when he moved out of said premises.
That while said Celey was in possession of said premises, and before
he moved out, he did, on the 1st day of December, 1869, rent two
rooms of said house to the plaintiff, George Say, .for six dollars p^r
month — Say paying to Celey, on the day of renting, four dollars rent
on the month of December, 1869; that on said 1st day of December,
1869, Say, with his wife, moved into the said two rooms of said house,
while Celey, with his family, occupied the other room, with small
kitchen, immediately in the rear of and adjoining the two rooms occu
pied by Say. Said Celey continuing to occupy the rooms in the rear of
Say's, till the 7th day of December, 1869, when he, Celey, moved out
of the premises; Celey owing, on back rent, seven dollars for month of
November 1869; George Say and his wife continued in possession of
his two rooms from December 1st till December 15th, 1869, when, on
December 15th, 1869, E. Fowler Stoddard, the defendant, the son of
Henry Stoddard, Sr., with screw-driver, hatchet and ax, went, on said
15th day of December, 1869, to the front door of the room fronting on
St. Clair street, Say and his wife being in their rooms at the same time ;
that E. Fowler Stoddard, with his instruments aforesaid, and without
the consent of Say or his wife, and against their remonstrance, pro-
ceeded to get possession of said rooms, occupied at the time by Say
and his wife, by taking hold of the knob of the front door, leading into
tlie front room, which was fastened by a lock. The door being opened
by defendant, the plaintiff, Say, warning him not to come in. That the
defendant, on said 15th day of December, 1869, and while Say (who
was 69 years old in March, 1871) and his wife were in their rooms, did
enter their rooms, and did remove, take off, and carry away five doors
and five windows — being all the doors and windows belonging to the
rooms occupied by the plaintiff, George Say, and his wife ; and also be-
ing all the doors and windows of the rooms occupied by Celey
644 DERIVATIVE TITLES (Part 2
and his family, till he moved, December 7, 1869, excepting one
door in rear room of house. And in removing one of the doors
in the room, immediately in the rear of and adjoining the front
room, in order to get at the door to take it off the hinges the
defendant did move a cupboard of plaintiff, so he could get at the door
with his screw-driver. After the doors and windows were taken away
by defendant, the plaintiff' hung up at the door, strips of carpet. The
day, on which the doors and windows were taken down and carried
away by defendant, was cold and chilly, and remained cold till plaintiff
left said premises, which was on the 20th day of December, 1869.
Plaintiff being compelled to leave the premises by reason of defendant's
acts, as aforesaid. Snow had fallen while plaintiff was in possession
of rooms, and during the time the doors and windows were out.
No written notice to leave said premises was ever served by anyone
— on either Say or Celey.
Neither did Celey ever serve a written notice on Stoddard, Sr., or
defendant, that he, Celey, would leave the premises.
Said Henry Stoddard, Sr., died on November 1, 1869, testate, leaving
the said defendant one of his executors and devisee under the will of
said decedent. Said plaintiff says that by reason of the acts of the de-
fendant herein set forth, said plaintiff has sustained damage five thou-
sand dollars, for which he asks judgment.
Scott, Chief Judge. The contract of lease between Stoddard, Sr.,
and Celey, set out in the petition in the court below, created, by its
express terms, a tenancy at will.
True, the rent was to be $13.00 a month, and was to be paid by Stod-
dard & Co. out of Celey's wages, monthly, or half monthly, as might be
most convenient. But the renting was to continue for "so long as the
parties shall mutually agree to continue the renting under this agree-
ment." And, again : "Either party may put an end to said renting by
giving the other party four days' notice, in writing, that this renting
is to cease at the expiration of four days from the service of such no-
tice on the other party." It is clear, from this language, that the tenant
was to hold at the will of the lessor, though while the tenancy continued
the rent was to be paid monthly or half monthly. ^^ The character of
the tenancy is not affected by the fact that four days' notice of its de-
termination, is provided for in the contract ; for in a general tenancy at
will, reasonable notice must be given by the party whose will determines
it, to the other party; and the contract here fixes the length of that
notice. It is said by Blackstone : "An estate at will is where lands and
tenements are let by one man to another, to have and to hold at the will
of the lessor, and the tenant by force of this lease obtains possession."
2 Bl. Com. 145 ; Litt. § 68. Such tenant has no certain indefeasible es-
tate, nothing that can be assigned by him to any other, because the
lessor may determine his will, and put him out whenever he pleases.
2 Bl. Com. 145 ; Taylor's Landl. and Ten. 48.
8B Richardson v. Langredge, 4 Taunt. 12S (1811), ace.
Ch. 5) ESTATES CREATED 645
Tenancy at will may be determined by implication of law. Such im-
plication will arise on the deatli of either of the parties. So, if a tenant
at will assigns over his estate to another, who enters on the land he is
a disseisor, and the landlord may have an action of trespass against
him, Greenl. Cruise on R. Pr. 244; Taylor's Landl. and Ten. 48.
So, also, a desertion of the premises by the lessee, puts an end to
a tenancy at will. For he thereby discontinues his lawful possession
and terminates his relation to his lessor, which is only of a personal
character, and he ceases to have any interest in the premises which he
can transfer or control.
The plaintiff shows, by his petition, that Stoddard, the lessor, died
November 1, 1869, leaving the defendant his devisee of the premises.
Celey, the lessee, continued in possession till December 1st, when he
undertook to sublet a part of the premises to the plaintiff. It is not
alleged that the defendant assented to tliis continuance of possession,
or subletting. On the 7th of December, the lessee, Celey, removed
wholly from the premises ; and, eight days afterward, the grievances
occurred of which the plaintiff complains. As against the defendant,
the plaintiff acquired no rights by his contract with Celey, for the
latter had none which he could transfer. The facts stated do not
show that the relation of landlord and tenant was ever created between
tlie parties to this suit. There was neither privity of estate, nor of con-
tract between tliem. And the acts complained of were but the lawful
exercise of the rights incident to the defendant's ownership of the
premises, and are not charged to have been attended with any unneces-
sary interference either with the plaintiff's person or property.
We think the court below properly sustained the demurrer to the
plaintiff's petition, and its judgment is affirmed.
READER V. PURDY.
(Supreme Court of Illinois, 1S66. 41 111. 279.)
Appeal from K?ne; Isaac G. Wilson, J.
Erastus S. Purdy, in the fall of 1858, built a house on a lot in Au-
rora, which he obtained of Otis on a parol contract, went into posses-
sion of the same with his family, and occupied the same as a homestead
from that time until the spring following the assault and battery for
which this suit is brought. In 1861, Reader, whose wife was sister
to Purdy's wife, obtained from Otis the legal title of the premises on
which Purdy and wife lived, and brought an action of ejectment for
the possession of the same. On the first trial of the ejectment suit,
the jury rendered a verdict in favor of Purdy, and a new 'trial was
granted to Reader ; and between the time of the first trial and that of
the second trial of the ejectment suit, to-wit: in October, 1862, Read-
er, Baker and Barker, in the absence of Purdy from home, got admis-
sion into the house, and then proceeded to put Mrs. Purdy and the
G4G DERIVATIVE TITLES (Part 2
furniture out of the house by force. Mrs. Purdy, who is described as
a weak hltle woman, wcighinj^ ninety-six pounds, fought for her pos-
session willi great energy. She locked one of the doors and gave the
key to her daughter, from whom it was taken, then went at the assail-
ants with hot water, a stick of wood and a bayonet belonging to her
husband, who had been a soldier in the army, and, insomuch that one
of the assailants was obliged to hold her by the wrists, to enable the
other two to get out the fiirniture. Innally, after all the furniture had
been got out of the house, except that in her bed-room, she succeeded
in nailing a board across the door and barring the assailants out. By
this time the city marshal and others arrived, and the attempt to dis-
possess her, which had occupied from nine to twelve o'clock in the
morning, was abandoned. The second trial of the ejectment suit oc-
curred in May, 1863, and the record therein was introduced in evidence
on the trials of these causes, as showing that at the time of the assault
the title to the property of which Purdy 's family were in the occupancy
was in the defendant Reader. No new trial was ever granted or ap-
peal taken in the ejectment suit. The court instructed the jury:
1. That in trespass all are principals, he who stands by advising,
etc., as well as he who does the act.
2. That if defendants obtained admission to the premises thereto-
fore occupied by plaintiffs, with intent to remove plaintiffs by force,
then defendants were trespassers from the beginning.
3. The fact that the defendant Reader was the owner, and entitled
to the possession of the premises occupied by the plaintiff, is no justifi-
cation for the assault and battery upon the plaintilT's wife, if any such
is proven, and no justification of his attempts to take possession of the
premises occupied by the plaintifT by force, and no justification for
the removal of plaintiff's property therefrom by force, if any such
force is proven; j)rovided that the plaintiff and his family were in the
quiet possession of the said premises at the time of such assault and
force; neither can that fact be regarded by the jury in mitigation of
any actual damages caused the plaintiff by such assault and force.
The other instructions present nothing essentially dilTerent. The
jury found a verdict for the plaintiffs in the suit of Purdy and wife,
for $5a), and in the suit of Purdy for $450.
Lawrence, J. These two cases, although separately tried, depend
upon the same facts and present similar questions, and it will be more
convenient to dispose of both in one opinion.
In October, 1862, Reader, claiming to be the owner of a house oc-
cupied by Purdy and his wife, entered it, accompanied by the other
appellants, for the purpose of taking i:)Ossession. Purdy was not at
home. Mrs. Purdy refused to leave, whereupon Reader commenced
putting the furniture out of doors. She resisted this, and he seized
her and held her by the wrists, while Baker, one of the co-defendants,
continued to remove the furniture. This was somewhat damaged, and
some slight injury was done to the wrists of Mrs. Purdy by tlie force
Ch. 5) ESTATKS CREATED 647
applied in liolding^ lior. The appellants finally abandoned their at-
tempt to lake possession and withdrew.
Two actions of trespass have been brought, one by Turdy alone, and
one by Purdy and wife jointly. The declaration in the suit hrouj^ht by
Purdy contains three counts, the first being for the assault upon his
wife, the second for the injury to the personal property, and the third
for breaking his close and carrying o(T his furniture. The declaration
in the suit of I'urdy and wife contains two counts, both of which are
for the assault upon the wife. There were pleas of not guilty, and an
agreement that all defenses might be made under them. A vercHct for
the i)laintirf of $450 in one case, and $500 in the other was returned by
the jury, and a judgment was rentlered uiK)n it from which the de-
fendants appealed.
It is insisted by the appellants that Reader, being the owner of the
premises, had a right to enter, and to use such force as might be neces-
sary to overcome any resistance, and that he cannot be made liable
as a trespasser, although it is admitted he might have been compelled to
restore to Purdy, through an action of forcible entry and detainer,
the possession thus forcibly taken. The court below instructed other-
wise, and this ruling of the court is assigned for error.
We should not consider the question one of much difficulty, were it
not for the contradictory decisions in regard to it, and we must admit
that the current of authorities, up to a comparatively recent period, is
adverse to what we are convinced must be declared to be the law of
this State. P.ut the rule cannot be said to have been firmly or authori-
tatively settled even in England, for Hrskine, J., observes in Newton v.
Harland, 1 Man. & Gr. 644 (39 E, C, L, 581), that "it was remarkable
a question so likely to arise, should never have been directly brought
before any court in banc until that case." This was in the year 1840,
and all the cases prior to that time, in which it was held that the owner
in fee could enter with a strong hand, without rendering himself liable
to an action of trespass, seem to have been merely at nisi prius, like
the oft-quoted case of Taunton v. Costar, 7 T, R. 431. Still this was
the general language of the books. But the point had never received
such an adjudication as to pass into established and incontrovertible
law, and a contrary rule was held by Lord Ivyndhm-st in Hilary v.
Gay, 6 C. & P. 284 (25 E. C, L. 398). But in Newton v. Harland,
already referred to, the court of Common Pleas gave the question ma-
ture consideration, and finally held, after two arguments, that a land-
lord who should enter and expel by force a tenant holding over after
expiration of his term, would render himself liable to an action for
damages. But the later case of Meriton v. Combs, 67 E. C. L. '788,
seems to recognize the ojiposite rule, and we must, therefore, regard a
question which one would expect to find among the most firmly settled
in the law as still among the controverted points of Westminster Hall.
In our own country there is the same conflict of authorities. In
New York it has been uniformly held, that, under a plea of liberum
648 DERIVATIVE TITLES (Part 2
tenementum, the landlord, who has only used such force as might be
necessary to expel a tenant holding over, would be protected against
an action for damages. Hyatt v. Wood, 4 Johns. (N. Y.) 150, 4 Am.
Dec. 258, and Ives v. Ives, 13 Johns. (N. Y.) 235. In Jackson v. Far-
mer, 9 Wend. (N. Y.) 201, the court, while recognizing the rule as law,
characterize it as "harsh, and tending to the public disturbance and indi-
vidual conflict." Kent, in his Commentaries, states the principle in
the same manner, but in the later editions of the work, reference is
made by the learned editor in a note, to the case of Newton v. Harland,
above quoted, as laying down "the most sound and salutary doctrine."
In Tribble v. Frame, 7 J. J. Marsh, (Ky.) 599, 23 Am. Dec. 439, the
court held, that, notwithstanding the Kentucky statute of forcible en-
try and detainer, the owner of the fee, having a right of entry, may use
such force as may be necessary to overcome resistance, and protect
himself against an action of trespass, under a plea of liberum tenemen-
tum. On the other hand, the Supreme Court of Massachusetts has
held, that, although trespass quare clausum may not lie, yet, in an ac-
tion of trespass for assault and battery, the landlord must respond in
damages, if he has used force to dispossess a tenant holding over. The
court say, "he may make use of force to defend his lawful possession
but, being dispossessed, he has no right to recover possession by force,
and by a breach of the peace." Sampson v. Henry, 11 Pick. (Mass.)
379. See also Ellis v. Page, 1 Pick. (Mass.) 43 ; Sampson v. Henry,
13 Pick. (Mass.) 36 ; Meader v. Stone, 7 Mete. (Mass.) 147, and Moore
V. Boyd, 24 Me. 242. But, by far the most able and exhaustive discus-
sion that this question has received, was in the case of Dustin v. Cow-
dry, 23 Vt. 635, in which Mr. Justice Redfield, delivering the opinion of
the court, shows, by a train of reasoning which compels conviction, that,
in cases of this character, the action of trespass will lie. .And he also
says : "Whether the action should be trespass quare clausum, or as-
sault and battery, is immaterial, as under this declaration, if the de-
fendant had pleaded soil and freehold, as some of the cases hold, the
plaintiff might have new assigned the trespass to the person of the
plaintiff", and a jury, under proper instructions, would have given much
the same damages, and upon the same evidence, in whatever form the
declaration is drawn." The case of Mussey v. Scott, 32 Vt. 82, cited
as inconsistent with this case does not in fact conflict with it. It only
holds that trespass quare clausum will not lie in behalf of a tenant for
an entry not within the statute of forcible entry and detainer.
In this conflict of authorities we must adopt that rule which, in our
judgment, rests upon the sounder reason. We cannot hesitate, and
were it not for the adverse decision of courts, which all lawyers regard
with profound respect, we should not deem the question obscured by
a reasonable doubt. The reasoning upon which we rest our conclusion
Hes in the briefest compass, and is hardly more than a simple syllogism.
The statute of forcible entry and detainer, not in terms, but by neces-
sary construction, forbids a forcible entry, even by the owner, upon
Ch, 5) ESTATES CREATED* 649
the actual possession of another. Such entry Is, therefore, unlawful.
If unlawful, it is a trespass, and an action for the trespass must neces-
sarily lie. It is urged that the only remedy is that given by the statute,
— an action for the recovery of the possession. But the law could not
expel him who has entered if his entry was a lawful entry, and if not
lawful all the consequences of an unlawful act must attach to it.^ The
law is not so far beneath the dignity of a scientific and harmonious
system that its tribunals must hold in one form of action a particular
act to be so illegal that immediate restitution must be made at the costs
of the transgressor, and in another form of action that the same act
was perfectly legal, and only the exercise of an acknowledged right.
It is urged that the owner of real estate has a right to enter upon and
enjoy his own property. Undoubtedly, if he can do so without a forci-
ble disturbance of the possession of another; but the peace and good
order of society require that he shall not be permitted to enter against
the will of the occupant, and hence the common law right to use all
necessary force has been taken away. He may be wrongfully kept
out of possession, but he cannot be permitted to take the law into his
own hands and redress his own wrongs. The remedy must be sought
through those peaceful agencies which a civilized community provides
for all its members. A contrary rule befits only that condition of so-
ciety in which the principle is recognized that
He may take who has the power,
And he may keep who can.
If the right to use force be once admitted, it must necessarily follow
as a logical sequence, that so much may be used as shall be necessary
to overcome resistance, even to the taking of human life. The wisdom
of confining men to peaceful remedies for the recovery of a lost pos-
session is well expressed by Blackstone, book 4, p. 148 : "An eighth
offense," he says, "against the public peace, is that of a forcible entry
and detainer, which is committed by violently taking or keeping posses-
sion of lands and tenements with menaces, force and arms, and without
the authority of law. This was formerly allowable to every person
disseized or turned out of possession, unless his entry was taken away
or barred by his own neglect or other circumstances, which were ex-
plained more at length in a former book. But this being found very
prejudicial to the public peace, it was thought necessary, by several
statutes, to restrain all persons from the use of such violent methods,
even of doing themselves justice, and much more if they have no jus-
tice in their claim. So that the entry now allowed by law is a peaceable
one; that forbidden, is such as is carried on with force, violence and
unusual weapons." In this State, it has been constantly held that any
entry is forcible, within the meaning of this law, that is made against
the will of the occupant.
We state, then, after a full examination of this subject, that in our
opinion the statutes of forcible entry and detainer should be construed
as taking away the previous common law right of forcible entry by
050 DERIVATIVE TITLES (Part 2
the owner, and that such entry must be, therefore, held illegal in all
forms of action.
There are, however, some minor points upon which both of these
judgments must be reversed. In the suit brought by the husband alone,
the court refused to instruct the jury that the plaintiff could not re-
cover <for any damages to the real estate. This instruction should have
been given. Although the occupant may maintain trespass against the
owner for a forcible entry, yet he can only recover such damages as
have directly accrued to him from injuries done to his person or prop-
erty, through the wrongful invasion of his possession, and such exem-
plary damages as the jury may think proper to give. But a person
having no title to the premises, clearly cannot recover damages for any
injury done to them by him who has title. It would be a startling doc-
trine to hold that the wrongful occupier of land could make the owner
thereof to respond to him in damages for timber that the owner might
cut upon the premises. This point was decided by this court in Hoots
v. Graham, 23 111. 82, to the decision in which case we fully adhere.
In the case brought by Purdy, the court, after telling the jury they
could give exemplary damages, gave the following instruction for the
plaintiff:
"In estimating the amount of exemplary damages, if they find any,
the jury have a right to take into consideration the unlawful purpose
for which defendants were together, if any is proven ; the force and
violence with which they attempted to carry out that unlawful purpose,
the wantonness of the attack upon the premises, family and property
of the plaintiff, if the proof show any such, and the willfulness of the
defendants in doing the acts, if the evidence show any such."
The suit brought by Purdy and wife had been already tried, and in
that suit the jury had been instructed they might give exemplary
damages, and they had undoubtedly given them. The record of that
suit was in evidence on the trial of the second suit. The court refused
the instructions asked by the defendant, and properly, in the form they
were drawn, except as to the one already considered. Neither is there
anything in itself wrong in the foregoing instruction, and yet it is of
such a character, that the court, in order to secure a fair consideration
of the case by the jury, and having refused all the instructions drawn
by the defendant, should, of its own motion, have modified the some-
what augmentative effect of this one by telling the jury that they were
also, in estimating the exemplary damages, to consider the fact that
the jury in the other suit had been authorized to give exemplary dam-
ages, and to take into consideration on that question the amount of the
verdict in the other case. We must hold, that, in strict law, exemplary
damages are recoverable in both cases, because the suits are brought in
dift"erent rights. In the suit by Purdy and wife, if Purdy fails to col-
lect the judgment in his lifetime, on his death it would go to the wife
surviving him, and not to his personal representatives. But, apart from
that contingency, the fruits of both judgments go into his pocket. It
Ch, 5) ESTATES CREATED 651-
would, therefore, be highly proper that the jury, in considering the
question of punitive damages, should have taken into consideration not
only the circumstances of aggravation enumerated in the instruction,
but also the fact, that these same circumstances, and the same transac-
tion, had been submitted to another jury, in a suit prosecuted in reality
for the benefit of the same plaintiff, and, so far as related to the single
question of the amount of vindictive damages, the amount of the for-
mer verdict would have been a proper subject of regard.
The jury were also told in the third instruction for the plaintiff, at
the suit of Purdy, that the fact, that the defendant was the owner and
entitled to the possession of the premises occupied by the plaintiff could
not be regarded by the jury in mitigation of any actual damages caused
to the plaintiff by the assault and force. This is undoubtedly true so
far as actual damage was concerned, but it would not be true in regard
to exemplary damages, unless we are prepared to say, that it is as inex-
cusable for a person to attempt to recover his own property by force as
it would be to attempt to rob another of property to which the assailant
had no claim. This would not be contended, and while, therefore, the
third instruction was strict law, yet, in connection with the other in-
structions in regard to exemplary damages, and unexplained by any-
thing in behalf of the defendant, we think the jury would be likely to
be misled. This is more especially true in regard to the suit of Purdy
and wife, for in the third instruction for the plaintiff in that suit, the
jury are told the same thing as to damages, but the word actual is left
out These instructions should have been so modified, that the jury
would clearly understand on the question of vindictive damages, they
would have a right to regard the fact, that the defendant was the owner
and entitled to the possession of the property, a fact proven in the case.
This last objection applies equally to the instructions in both cases.
The others above considered apply only to the suit of Purdy. There
is, however, another fatal objection to the judgment in favor of Purdy
and wife. Both counts in that declaration are for injuries done to the
person of the wife. A suit could not have been maintained in their
joint names for injuries done to the property of Purdy. Yet the court,
against the objections of defendants, allowed the plaintiff to give in
evidence the injury done to the furniture. This was wholly inadmissi-
ble, except so far as might be necessary to explain the assault on the
person of the wife, and, in a case of this character, notwithstanding
the instruction given for the defendants, this evidence would have a
strong tendency to improperly prejudice them in the minds of the jury.
In order to prevent misapprehension we would say, in conclusion,
that, for. a mere entry by the landlord upon the possession of his tenant
holding over, unaccompanied by any trespass upon either the person
or personal property of the occupant, only nominal damages could be
recovered, because the plaintiff has no legal right to the possession.
The gravamen of actions of this character is the trespass to the person,
and goods and chattels of the tenant. If, for example, a tenant of a
652 DERIVATIVE TITLES (Part 2
house should remove his family and furniture at the end of the term,
but refuse, without reason, to surrender the key to his landlord, and
still claim the possession, the landlord might, nevertheless, force the
door of his vacant house, without incurring a liability to more than
nominal damages. He would be liable to an action of forcible entry
and detainer, and to an action of trespass, in which nominal damages
would be recovered, because the entry would be unlawful, but to noth-
ing more. But for an entry, while the house is still occupied by the
family and furniture of the tenant, and for forcibly thrusting them into
the street, or attempting to do so, he would be liable to such damage
as a jury might deem the case to require. A landlord, however, would
have the right to enter upon the possession of his tenant for certain
purposes, as to demand rent or to make necessary repairs, and we must
be understood as confining the action of trespass quare clausum by the
tenant against the landlord, even for the recovery of nominal damages,
to those cases, where an action of forcible entry and detainer would
lie under our statute. By the application of this principle much of the
apparent conflict in the authorities can be explained.
The judgment in both of these cases must be reversed and the case
remanded. Reversed and remanded.^*
LOW v. ELWELU
(Supreme Judicial Court of Massachusetts, 1876. 121 Mass. 309, 23 Am.
Rep. 272.)
Tort for an assault in forcibly ejecting the plaintiff from her dwell-
ing house.
At the trial in the Superior Court, before Brigham, C. J., it appeared
that the plaintiff was the wife of John C. Low, who had hired a house
of Josiah Low, the owner thereof, under an oral lease, and had occu-
pied the same for two years under that tenancy; and that in March,
1873, Josiah Low made a lease of the house under seal to Zeno P.
Elwell, and both of them in writing gave notice to John C. Low of this
lease, and to quit the premises.
The plaintiff testified that on April 15, 1873, she was occupying the
house with her husband and family, consisting of her son, eleven years
of age, and a hired servant, and that, while her husband was absent
from home, the following events took place: "About ten o'clock in
the morning, I saw a furniture wagon stop in front of the house. The
doors were all fastened. Elwell and his wife came to the back door,
and tried it. Mrs. Elwell came and knocked on the window and said,
'Let me in.' I said she must not cross the threshold. She said she
36 Whitney v. Broiwn, 75 Kan. 678, 90 Pae. 277, 11 L.. K. A. (N. S.) 468, 12 Ann.
Cas. 7G8 (1907) ; Entelman v. Hagood, 95 Ga. 390. 22 S. E. ,545 (1895) : Noel
V. McCrory, 7 Cold. (Tenn.) 623 (1868), dictum ; Dustin v. Cowdry, 23 Vt. 631
(1851), ace
Ch. 5) ESTATES CREATED 653
should come in, she had a deed of the place. They went away, and I
heard a noise at the front door. I was combing my hair: I opened
the door into the front entry, and found the front door open, the bolt
lying on the floor, and Elwell and his wife standing on the step, he
having an iron bar in his hand. The door had been bolted by me be-
fore that time. I forbade their crossing the threshold, but they came
in. Elwell said, 'You forbid my crossing the threshold. I own this
house, and want you to go out.' I told him not to lay his hands on
me. They then proceeded to take out the furniture, carpets, etc., and
to bring in their own. My boy was by my side. The hired man was
near me, and Elwell took him by the collar and put him out. There
were six men with them in the street. They were not at the door at
the time it was broken, and did not do anything except remove fur-
niture. Mr. Josiah Low was one of them. The others were neigh-
bors and men who had brought the defendants' furniture from
Gloucester. I remained in the house, most of the time in my bed-
room, until about half past two o'clock in the afternoon. All my fur-
niture had been removed, except a box on which I was sitting. El-
well came to me and removed me by force from the box, and carried
it out. Afterwards he came to me and directed me to leave the house,
which I refused to do. He then took me by the shoulders and
ran me out of the house, from my bedroom, through the sitting-room,
into the street. My boy followed me. Elwell said, in his wife's pres-
ence, that he was acting under her directions." , It was admitted that
she was jointly liable with him for whatever was done, if either was
liable ; and that, if they had the right to remove the plaintiff by force,
at the time she was removed, no more force was used than was rea-
sonably necessary in either instance.
The case was reported, by consent of parties, before verdict, to this
court; the parties agreeing that if, upon these facts, the defendants
could not justify the acts admitted to have been done by them, the
case was to stand merely for an assessment of damages; if other-
wise, the plaintiff should become nonsuit.
The case was argued in November 1875, and was afterwards sub-
mitted on briefs to the whole court.
Gray, C. J. A tenant holding over after the expiration of his ten-
ancy is a mere tenant at sufferance, having no right of possession
against his landlord. If the landlord forcibly enters and expels him,
the landlord may be indicted for the forcible entry. But he is not liable
to an action of tort for damages, either for his entry upon the prem-,
ises, or for an assault in expelling the tenant, provided he uses no more
force than is necessary. The tenant cannot maintain an action in
the nature of trespass quare clausum fregit, because the title and
the lawful right to the possession are in the landlord, and the ten-
ant, as against him, has no right of occupation whatever. He can-
not maintain an action, in the nature of trespass to his person, for a
subsequent expulsion with no more force than necessary to accomplish
654 DERIVATIVE TITLES (Part 2
the purpose; because the landlord, having obtained possession by an
act which, though subject to be punished by the public as a breach
of the peace, is not one of which the tenant has any right to complain,
has, as against the tenant, the right of possession of the premises ;
and the landlord, not being liable to the tenant in an action of tort for
the principal act of entry upon the land, cannot be liable to an action
for the incidental act of expulsion, which the landlord, merely be-
cause of the tenant's own unlawful resistance, has been obliged to re-
sort to in order to make his entry effectual. To hold otherwise would
enable a person, occupying land utterly without right, to keep out
the lawful owner until the end of a suit by the latter to recover the pos-
session to which he is legalV entitled.
This view of the law, notwithstanding some inconsistent opinions,
is in accordance with the current of recent decisions in England and in
this Commonwealth.
In Turner v, Meymott, 7 Moore, 574, s. c. 1 Bing. 158, it was de-
cided that a tenant whose term had expired could not maintain tres-
pass against his landlord for forcibly breaking and entering the' house
in his absence. In Hillary v. Gay, 6 C. & P. 284, indeed. Lord Lynd-
hurst at nisi prius, while recognizing the authority of that decision,
ruled that if the landlord, after the expiration of the tenancy, by
force put the tenant's wife and furniture into the street, he' was lia-
ble to an action of trespass quare clausum fregit. And in Newton
v. Harland, 1 Man. & Gr. 644, s. c. 1 Scott, N. R. 474, a majority of
the Court of Common Pleas, overruling decisions of Baron Parke and
Baron Alderson at nisi prius, held that under such circumstances
the landlord was liable to an action of trespass for assault and bat-
tery.
But in Harvey v. Brydges, 14 M. & W. 437, Baron Parke stated his
opinion, upon the point raised in Newton v. Harland, as follows :
"Where a breach of the peace is committed by a freeholder, who, in
order to get into possession of his land, assaults a person wrongfully
holding possession of it against his will, although the freeholder may
be responsible to the public in the shape of an indictment for a forci-
ble entry, he is not liable to the other party. I cannot see how it
is possible to doubt that it is a perfectly good justification to say that
the plaintiff was in possession of the land against the will of the
defendant, who was owner, and that he entered upon it accordingly;
even though, in so doing, a breach of the peace was committed."
Baron Alderson concurred, and said that he retained the opinion that
he expressed in Newton v. Harland, notwithstanding the decision of
the majority of the Court of Common Pleas to the contrary. The
opinion thus deliberately adhered to and positively declared by those
two eminent judges, though not required by the adjudication in Har-
vey V. Brydges, is of much weight. In Davis v. Burrell, 10 C. B.
821, 825, Mr. Justice Cresswell said, that the doctrine of Newton v.
Harland had been very much questioned. And it was finally overruled
Ch. 5) ESTATES CREATED 655
in Blades v.' Hig-gs, 10 C. B. (N. S.) 713, where, in an action for an
assault by forcibly taking the defendant's property from the plaintiff's
hands, using no more force than was necessary. Chief Justice Erie,
delivering the unanimous judgment of the court, approved the state-
ment of Baron Parke, above quoted, and added: "In our opinion,
all that is so said of the right of property in land applies in principle
to a right of property in a chattel and supports the present justifica-
tion. If the owner was compellable by law to seek redress by action
for a violation of his right of property, the remedy would be often
worse than the mischief, and the law would aggravate the injury,
instead of redressing it." See also Lows v. Telford, 1 App. Cas. 414,
426."
In Commonwealth v. Haley, 4 Allen, 318, the case was upon an in-
dictment for forcible entry, and no opinion was required or ex-
pressed as to the landlord's liability to a civil action.
The judgment in Sampson v. Henry, 11 Pick. 379, turned upon a
question of pleading. The declaration, which was in trespass for an
assault and battery, alleged that the defendant assaulted the plain-
tiff, and with a deadly weapon struck him many heavy and dangerous
blows. ~ The pleas of justification merely averred that the defendant
was seised and had the right of possession of a dwelling-house, that
the plaintiff was unlawfully in possession thereof and forcibly opposed
the defendant's entry, and that the defendant used no more force
than was necessary to enable him to enter and to overcome the
plaintiff's resistance; but did not deny the use of the dangerous weap-
on and the degree of violence alleged in the declaration ; and were
therefore held bad, in accordance with Gregory v. Hill, 8 T. R. 299,
there cited. The remarks of Mr. Justice Wilde, denying the right of
a party dispossessed to recover possession by force and by a breach of
the peace, would, if construed by themselves, and extended beyond
the case before him, allow the tenant to maintain an action of tres-
pass against the landlord for entering the dwelling-house, in direct
opposition to the judgment delivered by the same learned judge, in
another case, between the same parties, argued at the same term and
decided a year after. Sampson v. Henry, 13 Pick. 36.
In the latter case, which was an action for breaking and entering
the plaintiff's close, and for an assault and battery upon him, the
court held that the plea of liberum tenementum was a good justifica-
tion of the charge of breaking and entering the house, but not of the
personal assault and battery. That decision, so far as it held that the
landlord was not liable to an action of trespass quare clausum fregit
by a tenant at sufferance for a forcible entry, has been repeatedly
S7 In Edwiek v. Hawkes, IS Ch. D. 199 (1881), Fry, J., approved of the doc-
trine of Newton v. Harhmd, and allowed daiiiases for injuries done to the plain-
tiff's wife on account of a forcible entry. The judge said that persons who
have a right of entry on land must enter "in a peaceable and easy manner,
and if they cannot do so they must resort to the courts."
656 DERIVATIVE TITLES (Part 2
affirmed. Header v. Stone, 7 Mete. 147; Miner v. Stevens, 1 Cush.
482, 485; Mason v. Holt, 1 Allen, 45; Curtis v. Galvin, 1 Allen, 215;
Moore v. Mason, 1 Alien, 406. And, so far as it allowed the plain-
tiff to recover, in such an action damages for the incidental injury to
him or to his personal property, it has been overruled. Eames v. Pren-
tice, 8 Cush. ZZ7 ; Curtis v. Galvin, ubi supra.
It has also been adjudged that a landlord, who, having peaceably
entered after the termination of the tenancy, proceeds, against the ten-
ant's opposition, to take out the windows of the house, or to forcibly
eject the tenant, is not liable to an action for an assault, if he uses
no more force than is necessary for the purpose. Mugford v. Rich-
ardson, 6 Allen, 76, 83- Am. Dec. 617; Winter v. Stevens, 9 Allen,
526. For the reasons already stated, we are all of opinion that a per-
son who has ceased to be a tenant, or to have any lawful occupancy,
has no greater right of action when the force exerted against his person
is contemporaneous with the landlord's forcible entry upon the prem-
ises.
Our conclusion is supported by the American cases of the greatest
weight. Jackson v. Farmer, 9 Wend. (N. Y.) 201 ; Overdeer v. Lewis,
1 Watts & S. (Pa.) 90, Z7 Am. Dec. 440; Kellam v. Janson, 17 Pa. 467;
Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442 ; Sterling v. Warden,
51 N. H. 217, 12 Am. Rep. 80. The opposing decisions are so crit-
ically and satisfactorily examined in an elaborate article upon this
subject in 4 Am. Law Rev. 429, that it would be superfluous to refer
to them particularly.
The tenancy of the plaintiff's husband under an oral lease was but a
tenancy at will, which, by the written lease from his landlord to the
defendant, and reasonable notice thereof, was determined, and he
became a mere tenant at sufferance. Pratt v. Farrar, 10 Allen, 519.
It being admitted that, if the defendants had the right to remove
the plaintiffs by force, no more force was used than was reasonably
necessary, this action cannot be maintained.
Plaintiff nonsuit.^*
38 Vinson v. Flynn, 64 Ark. 453, 43 S. W. 146, 40 S. W. 1S6, 39 K R. A. 415
(1897) ; Allen v. Kelly, 17 R. I. 731, 24 Atl. 776, 16 L. R. A. 798, 33 Am. St. Rep.
905 (1892), ace. See, also, Hus;£ans v. Bridges, 29 Pa. Super. Ct. R. 82 (1905; ;
Rush V. Aiken Mfg. Co., 58 S. C. 145, 36 S. E. 497, 79 Am. St. Rep. 836 (1900),
repudiating views earlier expressed in Sbarp v. Kinsman, IS S. C. 108 (1882).
In Smitii V. Detroit L. & B. Ass'n, 115 Mich. 310, 73 N. W. 395 (1897), the
landlord, in the tenant's temporary absence after the expiration of the term,
entered upon the premises and broke into the house, removed the furniture to
an outbuilding, and then forcibly prevented the return of the tenant. It was
held that the tenant had no cause of action. Bliss v. Johnson, 73 N. Y. 529
(1878) ; Mussey v. Scott, 32 Vt. 82 (1859) ; Davis v. Burrell, 10 C. B. 821 (1851),
ace. Wilder v. House, 48 111. 279 (1868) ; Mason v. Hawes, 52 Conn. 12, 52 Am.
Rep. 552 (1884), contra.
Occasionally it has been declared that, while there is no basis for an action
by the forcibly ejected tenant in trespass quare clausam, there may be a re-
covery for trespass to the person or goods, even though there may have been
Ch. 5) ESTATES CREATED 657
LAYTON V. FIELD.
(Court of King's Bench, 1701. 3 Salk. 222.)
Per Holt, Ch. Just. Where a lease is made at will, the lessee, after
a quarter of a year is commenced, may determine his will, but then
he must pay that quarter's rent; and if the lessor determine his will
after the commencement of a quarter, he shall lose his rent for that
quarter; but if a lease be made from year to year, quamdiu ambabus
partibus placuerit; in such case, after a year is commenced, neither
the lessor nor the lessee can determine their wills for that year, because
they have willed the estate certain for so long time.
BRAYTHWAYTE v. HITCHCOCK.
(Court of Exchequer, 1S42. 10 Mees. & W. 494.)
Debt for rent. The first count of the declaration stated a demise,
on the 26th of October, 1840, from the plaintiff to William Hitch-
cock, of a messuage and premises, to hold for one year from the
25th of December then last, and so on from year to year if the plain-
tiff and the said William Hitchcock should respectively please, at the
annual rent of £140., payable quarterly on &c. : that, during the said
tenancy, to wit, on the 17th July, 1841, all the estate and interest of
the said W. Hitchcock in the said messuage and premises came to and
vested in the defendant, by assignment from the said W. Hitchcock :
and alleged as a breach the nonpayment by the defendant of £35., a
quarter's rent due at Christmas, 1841. There was also a count on an
account stated.
The defendant pleaded, first, nunquam indebitatus ; secondly (to
the first count,) a denial of the demise of W. Hitchcock : and thirdly
(to the first count,) a denial that the estate and interest of W. Hitch-
cock vested in him the defendant: on which issues were joined.
At the trial before Lord Abinger, C. B., at the Middlesex sittings
after last term, the plaintiff put in evidence an agreement, dated the
17th December, 1840, and signed by the plaintiff only, whereby the
plaintiff agreed to exiecute a lease of a cottage, &c. to W. Hitch-
cock, for seven years, at a yearly rent of £140., payable quarterly. It
was proved that no lease had been executed in pursuance of tlie agree-
no excessive force. See Levy v. McClintock, 141 Mo. App. 593, 125 S. W. 546
(1909) ; Steams v. Sampson, 59 Me. 56S, S Am. Rep. 442 (1871), semble.
As to what amounts to a forcible entry under the forcible entry and detainer
statutes, see Smith v. Detroit L. & B. Ass'n, supra.
On the right of a forcibly ejected wrongful possessor to proceed under the
forcible entry and detainer statutes asainst the ejector, who was entitled to
possession, see Page v. Dwtght, 170 Mass. 29, 48 N. E. 850, 39 L. R. A. 418
(1S97).
Aig.Pbop. — 12
G58 DERIVATIVE TITLES (Part 2
ment, but that W. Hitchcock had entered into possession of the cottage
shortly after the date of the agreement, and had paid two quarters'
rent up to Midsummer, 1841, at the rate of £140. a year. The plaintiff
then proved a notice to the defendant to produce a deed of assign-
ment, bearing date the 17th July, 1841, of the cottage, from W.
Hitchcock to the defendant; and on its nonproduction, called a wit-
ness, who produced a paper which he said was a true copy of the orig-
inal assignment, which he had read and compared with it. It was
objected that this copy could not be read in evidence for want of a
stamp ; but the Lord Chief Baron overruled the objection, and the copy
was read : from which it appeared, that by the deed of assignment,
which was executed both by W. Hitchcock and the defendant, after
reciting the agreement of the 17th December, 1840, and that no lease
had been executed in pursuance thereof, W. Hitchcock assigned to the
defendant, his executors, &c., all the said agreement, and all benefit
and advantage thereof, and all his estate, title, and interest therein, to
hold to the defendant, his executors, &c., absolutely, subject never-
theless to a proviso for redemption. It was contended for the defend-
ant, that there was no sufficient evidence of a demise whereby a tenancy
from year to year was created, as alleged in the declaration. The Lord
Chief Baron overruled the objection, and the plaintiff' had a verdict
for iZ})., leave being reserved to the defendant to move to enter a non-
suit, if the Court should be of opinion that there was no sufficient evi-
dence of the assignment.
Erie now moved accordingly for a rule to enter a nonsuit, and also
for a new trial, on the ground that * * *
Secondly, under the agreement recited in the deed, W. Hitchcock
was a mere tenant at will, no lease having been executed, and there
was not sufficient evidence from which to infer a demise from year to
year, as alleged in the declaration. He had therefore no assignable
interest in the premises. He referred to Brashier v. Jackson, 6 M. &
W. 549.
Lord Abixger, C. B.^° I think the evidence was sufficient to show
a tenancy from year to year, under the agreement which was duly
executed by the plaintiff; the cases which have been decided on this
point go fully at length. Here there is the additional fact of an ad-
mission under the defendant's hand, in the deed of assignment, that
an agreement for the lease was executed by the plaintiff. But the
plaintiff's case does not rest solely on the agreement to let; there is
the fact of William Hitchcock having been in the possession of the cot-
tage for more than a year, and having paid two quarters' rent under
the agreement. William Hitchcock had therefore an assignable inter-
est, which passed to the defendant under the deed proved at the trial.
As to the other point, I think the provisions of the Stamp Acts relate
only to such copies as are evidence per se, and that the word "copy"
39 Part of the statement is omitted.
Ch. 5) ESTATES CREATED 659
there means an authenticated copy, receivable as evidence in the first
instance. Here the copy was evidence, only because the party who
produced it had compared it with the original, and swore to the con-
tents of it, word for word.
Parke, B. I am of the same opinion. Although the law is clearly
settled, that where there has been an agreement for a lease, and an
occupation without payment of rent, the occupier is a mere tenant
at will; yet it has been held that if he subsequently pays rent under
that agreement he thereby becomes tenant from year to year. Pay-
ment of rent, indeed, must be understood to mean a payment with ref-
erence to a yearly holding; for in Richardson v. Langridge, 4 Taunt,
128, a party who had paid rent under an agreement of this descrip-
tion, but had not paid it with reference to a year, or any aliquot part of
a year, was held nevertheless to be a tenant at will only. In the
present case, there was a distinct proof of the payment of rent for two
(fjarters of a year. There is the additional fact of an occupation for
more than a year; but in the case of Cox v. Bent, 5 Bing. 185, 2 M. &
P. 281, where a party, under an agreement for a lease, had occupied
for more than a year, the Court held that a tenancy from year to
year existed, not on the ground of the occupation, but because the
party had during that occupation paid a half-year's rent. I think,
therefore, the fact of such a payment was the stronger evidence in this
case, and that William Hitchcock may be taken to have been a yearly
tenant. Then, as to the question whether there has been a due assign-
ment of such his interest, I think it is clear that there has ; bechuse,
although the deed in its commencement recites only the agreement, the
operative part of it conveys and assigns "all that the hereinbefore re-
cited agreement of the 17th of December, 1840, and all benefit and
advantage thereof, and all that and those the said messuage or tene-
ment and premises at &c., and all the right, title, interest, property,
claim, and demand whatsoever, at law or in equity, of him the said
William Hitchcock in the said premises," &c. On the other point I
quite agree with my Lord Chief Baron that no stamp was requisite,
inasmuch as, though the document might in form have been read as
a copy of the original, it was in truth read only as a memorandum
to refresh the memory of the witness, who had compared it with the
deed.*"
40 cf. Doe ex dem. Bastow v. Cox, 11 Q. B. 122 (1847) ; Say v. Stoddard, su-
pra, p. G42.
660 DERIVATIVE TITLES (Part 2
DOE d. THOMSON v. AMEY.
(Court of Queen's Bench, 1840. 12 Add. & El. 476.)
Ejectment, on the several demises of Elizabeth Thomson and others,
to recover possession of a farm occupied by the defendant.
• On the trial, at the Cambridge Spring assizes, 1839, before Tindal,
C. J., it appeared that on 29th July, 1835, articles of agreement had
been entered into between Miss Thomson, the lessor of the plaintiff,
and the defendant, whereby Miss Thomson, for and on behalf of her-
self and others, devisees in trust under the will of her father, in con-
sideration of the rent and covenants thereinafter mentioned to be paid
and performed by tlie defendant, agreed with the defendant, so far
as she lawfully could or might, that she and all other necessary, par-
ties should and would grant a lease of the farm to defendant, except-
ing out of the said lease agreed to be made all trees, mines &c., with
liberty of ingress and egress for the intended lessors, for fourteen
years, from 11th October then next, at a rent of i346., payable quar-
terly. And it was thereby agreed, that there should be contained in
the lease covenants to repair, the said "intended lessors" finding rough
timber; that defendant should not assign without license; tliat de-
fendant should use the premises agreed to be demised in a husband-
like and proper manner according to the best system of husbandry prac-
tised in that part of the country ; that defendant should, during the said
term, scour ditches and drains, and make and renew hedges ; that de-
fendant would not destroy any trees, nor grow two successive crops
of white corn or grain on any of the arable land without summer tilt-
ing, or taking a green fallow crop; nor sell or suffer to be taken off
the premises any of the hay or straw grown, or manure made thereon,
but should spend them on the premises. And it was further agreed
that the lease should contain a proviso empowering the intended lessors
to enter on the premises as of their former estate in case defendant
should fail in observing any of the covenants or agreements therein
contained ; and all other usual and proper covenants in leases of a like
nature. It was also agreed that defendant should execute a counter-
part of the lease, and defray the expense of the articles of agreement.
The defendant entered into possession at the time fixed for the com-
mencement of the term, and continued to hold and pay the rent until
action brought ; but no further lease was ever made or executed.
Before the commencement of the action, notice of several breaches
of agreement was served on the defendant by the lessor of the plain-
tiff. One of these, namely, that defendant had taken successive crops
of white corn on the same land without summer tilting or green fal-
low, was satisfactorily proved on the trial, and the plaintiff had a ver-
dict, subject to a motion for a nonsuit on the grounds hereafter stated.
In the following term, B. Andrews obtained a rule nisi in pursuance
of the leave reserved.
Ch. 5) ESTATES CREATED 661
Lord Denman, C. J. In this case the defendant was let into pos-
session under an agreement, which gave the parties a right to go into
equity to compel the execution of it by making out a formal lease.
Under such circumstances it has long been the uniform opinion of
Westminster Hall, that the tenant in possession holds upon the terms
of the intended lease. One of these terms was, that the lessee should
not take successive crops of corn, and that the lessor should have
power to re-enter on the breach of such agreement. This agreement
and proviso apply to the yearly tenancy of tlie defendant. It has been
argued, that the terms of the lease cannot be applied to the parol ten-
ancy, inasmuch as some of them, such as the agreement for repairs,
are not usually considered as applicable to such tenancy. Whether
the obligation to repair can be enforced under such circumstances, at
least as to substantial repairs, may perhaps be questionable ; but at all
events, the agreement as to cropping the land is one which is consistent
with a yearly tenancy.
Pattkson, J. In Mann v. Lovejoy, Ry. & M. N. P. C. 355, though
the facts differed from those of the present case, yet, in principle, the
ruling of Abbott, C. J., is in favour of the plaintiff. It is said, that a
covenant respecting the rotation of crops cannot be engrafted on a
yearly tenancy, but I see no reason why it should not. The tenant in
possession under such circumstances is bound to cultivate the land,
as if he were going to continue in possession as long as the lease its.elf
would have lasted. It is argued, that the tenancy arises by operation
of law upon the payment of rent, and that the law implies no particu-
lar mode of cropping, nor any condition of re-entry. But the terms
upon which the tenant holds are in truth a conclusion of law from the
facts of the case, and the terms of the articles of agreement; and I
see no reason why a condition of re-entry should not be as applicable
to this tenancy as the other terms expressed in the articles.
Williams, J. It is admitted, that, if this were a case of holding
over, the terms of the written agreement wouM apply. In principle,
there is no distinction between that case and the case of a tenant who
enters and pays rent upon the faith of an executory agreement for a
lease.
Rule discharged.**
41 See Doe d. Tilt v. Stratton, 4 Ring. 446 (1828). In Doe d. Eigge v. Bell,
5 Term Rep. 471 (179.3), the court, Lord Kenyon, C. J., said : "Though the agree-
ment be void by the Statute of Frauds as to the duration of the lease, it must
regulate the terms on which the tenancy subsists in other respects, as to the
rent, the time of the year when the tenant is to quit, etc. So where a tenant
holds over after the expiration of his term, without having entered into any
new contract, he holds upon the former terms. Now, in this case, it was
agreed, that the defendant should quit at Candlemas ; and though the agree-
ment is void as to the number of years for which the defendant was to hold, if
the lessor choose to determine the tenancy before the expiration of the seven
years, he can only put an end to it at Candlemas."
6G2 DERIVATIVE TITLES (Part 2
COUDERT V. COHN.
(Court of Appeals of New York, 1890. IIS N. Y. 300, 23 N. E. 29S, 7 L. E. A.
CO, 16 Am. St. Kep. TGI.)
Bradley, J. The action was brought to recover rent of premises de-
scribed in a written lease made by the agent of the plaintiffs' intestate
to the defendants in January, 1884, for the term of two years and
five months, commencing on the first day of March, 1884, and ending
on the first day of August, 1886, at the yearly rent of $3,000, paya-
ble in equal monthly payments, on the last business day of each month.
The authority of the agent to make the lease not being in writing it
was void. 2 R. S. (1st Ed.) p. 134, § 6. The defendants went into
possession on tlie first of IMarch, 1884, and continued to occupy and
pay rent up to August, 1885, when they left the premises and sought
to surrender the possession up to the plaintiff's intestate, who de-
clined to accept it. He recovered for the amount of rent at the rate
mentioned in the lease from the first of August, to the first of March
following. While the cases are not entirely in harmony on the sub-
ject, the doctrine now in this state is such that the defendants on
going into possession of the premises and paying rent, became, by rea-
son of the invalidity of the demise, tenants from year to year, and in
such case the continuance of occupancy into the second year rendered
them chargeable with the rent until its close. They could then only
terminate their tenancy at the end of the current year. Reeder v.
Sayre, 70 N. Y. 180, 26 Am. Rep. 567 ; Laughran v. Smith, T:> N. Y.
205.
The question presented is : When did the rental year arising out of
such relation commence and terminate? It is contended by the de-
fendant's counsel that inasmuch as the end of the term designated by
the terms of the lease was the first of August, 1886, that was the time
when the yearly tenancy in contemplation of law terminated, and,
therefore, the surrender was properly made on the first of August,
1885. It is urged that this view is in harmony with the recognized
principle that, although the lease was invalid the agreement contained
in it regulated the terms of the tenancy in all respects, except as to
the duration of the term, and Doe v. Bell, 5 D. & E. 471, is cited.
There a farm was, in January, 1790, let by a parole lease, void by the
statute of frauds, for seven years, the lessee to enter upon the land
when the former tenant left, on Lady-day, and into the house on the
25th of May following, and was to quit at Candlemas. He entered
accordingly and paid rent. A notice was served upon the tenant Sep-
tember 22d, 1792, to quit on Lady-day. In ejectment brought against
him it was claimed, on the part of the lessee, that his holding was
from Candlemas, and, therefore, the notice was ineffectual to termi-
nate the tenancy. Lord Kenyon, in deciding the case, said and held
that "it was agreed that the defendant should quit at Candlemas, and
Ch. 5) ESTATES CREATED 063
though the agreement is void as to the number of years for which
the defendant was to hold, if the lessor choose to determine the ten-
ancy before the expiration of the seven years, he can only put an end
to it at Candlemas." That case has in several instances been cited by
the courts of this state upon the question of the force remaining in
the terms of the agreement embraced in a void lease. And in Schuyler
V. Leggett, 2 Cow. 663, it was remarked by Chief Justice Savage, in
citing it, that such an agreement "must regulate the terms on which
the tenancy subsists in other respects; as the rent, the time of year
when the tenant must quit, etc." And the citation was repeated to
the same effect by the Chief Justice in People v. Rickert, 8 Cow.
230.
The question here did not arise in either of those two cases, nor
can they be treated as authority that the time for termination of a
tenancy from year to year, in any year other than that of the desig-
nated expiration of term, is governed by such designation in a void
lease for more than one year rather than by the time of entry. The
effect sought to be given in the present case to the case of Doe v.
Bell is not supported by English authority. In Berrey v. Lindley, 3
M, & G. 496, the tenant entered into possession of premises under
an agreement void by the statute of frauds, by the terms of which
he was to hold five years and a half from Michaelmas. Several years
after his entry, and after expiration of the period mentioned in the
agreement, the lessee gave notice to his landlord to terminate the ten-
ancy at Michaelmas. It was there contended on the part of the lat-
ter, and Doe v. Bell was cited in support of the proposition, that the
time designated in the agreement for the termination of the tenancy
governed in that respect. But the court decided otherwise, ^nd held
that the notice was effectual to terminate the tenancy. The views of
the court there were to the effect, that, although the tenancy was from
year to year, the tenant might without notice have quit at the expira-
tion of the period contemplated in the agreement, but having remained
in possession and paid rent subsequently to that time, he must be
considered a tenant from year to year with reference to the time of
the original entry.
The same principle in respect to holding over a term was announced
in Doe v. Dobell, 1 A. & E. (N. R.) 806, where it was said that "in all
cases the current year refers to the time of entry unless the parties
stipulate to the contrary."
The doctrine of the English cases seems to be that a party entering
under a lease, void by the statute of frauds, for a term, as expressed
in it, of more than one year, and paying rent is treated as a tenant
from year to year from the time of his entry, subject only to the right
to terminate the tenancy without notice at the end of the specified
term. And to that extend and for that purpose only, the terms of
agreement, in such case, regulate the time to quit. This right is held
to be reciprocal. Doe v. Stratton, 4 Bing. 446. That proposition is
664: DERIVATIVE TITLES (Part 2
not without sensible reason, for its support. The lease for more tlian
one year, unless made in the manner provided by the statute, cannot
be effectual to vest the term in the lessee, yet in other respects the.
rights of the parties may be determined by its terms, so far as they
are consistent with its failure, to create any estate or interest in the
land or any duration of term for occupancy by the lessee. And that
principle is properly applicable to such leases. Porter v. Bleiler, 17
Barb. 154; Reeder v. Sayre, 70 N. Y. 184, 26 Am. Rep. 567; Laughran
V. Smith, 75 N. Y. 205, 209.
This view does not aid the defendants. They became tenants from
year to year as from the time of their entry ; and although by virtue
of the terms of the agreement, in tliat respect, in the lease, they may
have been at liberty to quit on the first of August, 1886, if they had
remained until then, such time in that, or the year previous, could not
be treated as the end of any year of the tenancy. The defendants
having entered upon the second year from the time of the original
entry, it was not within their power to terminate their relation or
liability as tenants until the end of the then current year, which did
not terminate until the first of March, was reached.
The conclusion, from these views, necessarily follows that the judg-
ment should be affirmed. All concur, except Brown, J., not sitting.
Judgment affirmed.*^
CLAYTON V. BLAKEY.
(Court of King's Bench, 1798. 8 Term Rep. 3.)
This was an action against a tenant for double rent, for holding over
after the expiration of his term, and a regular notice to quit. The
first count of the declaration stated a holding under a certain term,
determinable on the 12th of May then past'; and other counts stated
a holding from year to year, determinable at the same period. It
appeared in evidence, that the defendant had held the premises for
two or three years, under a parol demise for twenty-one years from
the day mentioned, to which the notice to quit referred ; and the
Statute of Frauds directing that any lease for more than three years,
not reduced into writing, shall operate only as a tenancy at will, it
was contended, at the trial of the last assizes for Northumberland, that
the holding should have been stated according to the legal operation
of it, as a tenancy at will ; and as there was no count adapted to that
statement, that the plaintiff ought to be nonsuited. Rooke, J., how-
ever, considering that it amounted to a tenancy from year to year,
over-ruled the objection, and the plaintiff obtained a verdict.
Wood now moved to set aside the verdict, on the ground of a mis-
direction, relying upon the positive words of the stature
42 See Adams v. City of Cohoes, 127 N. Y. 175, 28 N. E. 25 (1891) ; Larkin
?. Avery, 23 Conn. 304 (1S54).
Ch. 5) ESTATES CREATED 665
Lord Kenyon, C. J. The direction was right; for such a holding
now operates as a tenancy from year to year. The meaning of the
statute was, that such an agreement should not operate as a term ;
but what was then considered as a tenancy at will, has since been
properly construed to enure as a tenancy from year to year.
Per Curiam. Rule refused.*'
GRISWOLD V. BRANFORD.
(Supreme Court of Errors of Connecticut, 190S. 80 Conn. 453, 68 Atl. 987.)
Action to recover rent, brought to and tried by the Court of Common
Pleas in New Haven County, Bennett, J. Facts found and judgment
rendered for the plaintiff for $420, and appeal by the defendant. No
error.
The plaintiff sought to recover the agreed rent of certain premises
for the year beginning October 1st, 1899. He set up a parol lease for
that term, and alleged that the defendant entered into possession under
it, continued in possession through the term, and had paid no rent. The
defendant pleaded a general denial and the statute of limitations.
Prior to October 1st, 1897, the parties entered into a parol agree-
ment whereby the plaintiff undertook to lease and the defendant to
hire the premises for the term of two years from said October 1st, at
an annual rental of $300 payable annually at the end of each year. The
defendant thereupon went into occupation on said day and continued
in such occupation throughout tlie two-year period, and paid the
agreed rent at the end of each year as stipulated. Before the period
had expired a new parol agreement, embodying precisely the same
terms and for the same time was made, and the defendant continued
its possession confessedly until January 1st, 1900, and as the plaintiff
claims, until May, 1901. The premises were hired and used for the
purposes of the Town Court. On December 31st, 1899, the selectmen
gave written notices to the plaintiff and the officers of the court that
4 3 "It is true the Revised Statutes, c. 60, § 21, declare that all interests or
estates in lands, created without any instrument in writing, shall have the
force and effect of estates at will only ; yet we think that this estate, when
once created, may, like any other estate at will, by subsequent events, be chang-
ed into a tenancy from year to year. In the case before us the lessee entered
into possession, and the possession was continued from year to year, until
July, 1844, and the rents semi-annually paid by the lessee and accepted by the
landlord. From these facts a new agreement may well be presumed, and the
estate, which was originally created by the statute as an estate only at will,
expands into a holding from year to year." Barlow v. Wainwright, 22 Vt. 88,
52 Am. Dec. 79 (1849). Ellis v. Paige, 1 Pick. (Mass.) 43 (1822), contra.
See Richardson v. Giffard, 1 A. & E. 52 (1834), where a tenant who had gone
into possession under an agreement for a lease for three years at an annual
rent, but which agreement was not executed as required by the- Statute of
Frauds, was held liable on an undertaking in such agreement to keep the prem-
ises in repair.
666 DERIVATIVE TITLES (Part 2
on and after January 1st, 1900, its sessions would be held in the town
hall, and that, as was the fact, suitable accommodations had been pro-
vided there. On January 1st the defendant removed from the plain-
tiff's building substantially all of its furniture, but the judge of the
court continued to hold its sessions there until May 1st, 1901. No rent
was paid after October 1st, 1899. The action was begun September
28th, 1906. Judgment was rendered for $300 as the rent for one year
from October 1st, 1899, with interest thereon from October 1st, 1900.
Prkntice, J. Prior to October 1st, 1897, these parties entered into
a parol agreement whereby the plaintiff undertook to lease the premises
in question to the defendant for the period of two years from and after
said October 1st, for an annual rent of $300 payable at the end of each
year. The defendant thereupon, on said date, entered into possession
of the premises and thereafter remained in possession thereof until
January 1st, 1900, if not later. The amount of rent in said parol agree-
ment stipulated to be paid, was paid as agreed for each of the two years
succeeding October 1st, 1897. Beyond question, therefore, the defend-
ant became a tenant from year to year, and remained such tenant down
to October 1st, 1899. The recited facts disclose a lease not actionable
by the statute of frauds, an entry into possession under it, and the pay-
ment and acceptance of the stipulated annual rent, thus satisfying even
more exacting conditions than those contended for by the defendant as
necessary to create by implication of law a tenancy from year to year,
and more exacting ones than our law requires. Lockwood v. Lock-
wood. 22 Conn. 425, 433; Larkin v. Avery, 23 Conn. 304, 316; Corbett
v. Cochrane, 67 Conn. 570, 577, 35 Atl. 509. When, therefore, the
defendant, with the acquiescence of the plaintiff, remained m posses-
sion after October 1st, 1899, as it confessedly did, a tenancy for a new
year commencing on that date was created, unless a new and different
situation arose from the second parol agreement and the conduct of
the parties under it. 1 Washburn on Real Property, § 797; 4 Kent's
Comm. 115; 1 Taylor on Landlord & Tenant, § 55. If this ineffective
agreement and subsequent conduct was barren of legal results, the ac-
countability of the defendant to the plaintiff for the amount of rent
for which judgment in this case was rendered, and for that amount
covering the precise period described in the complaint, follows. And
judgment for that amount might, under those conditions, have been
rendered upon the present complaint, although it avers a lease by parol
for one year, made on or about October 1st, 1899. The facts do not,
indeed, show a technical lease of any kind, or that the parol lease was
one for the expressed period of one year from that date, but they do
disclose a tenancy with an obligation to pay an agreed rental of $300,
and that the tenancy was one for the year in question, all as the result
of the acts of the parties. Larkin v. Avery, 23 Conn. 304, 316. Acts
and contracts may be stated according to their legal effect, and imma-
terial variances are not to be regarded. Practice Book, 1908, p. 244,
§ 144; page 245, § 149.
Ch. 5) ESTATES CREATED 667
The defendant is thus placed in the position where, as one of the
conditions of any successful defense he may interpose, he must estab-
lish a new tenancy beginning October 1st, 1899. Counsel appear to
have been unmindful of the full significance of the pre-existing relation
of the parties as bearing upon both the incidental question as to wheth-
er the defendant's continued possession was under a new tenancy suffi-
ciently established, or under a mere continuance of the term of die old
one, and upon the ultimate question of the plaintiff's right to recover
the $300 rental for which judgment was obtained. The plaintiff's coun-
sel approaches the question at issue as though the parol agreement of
1899 was the first significant fact in the record, and upon the assump-
tion that the possession after October, 1899, was so clearly referable
to it that there would be attached to that possession the same impor-
tance as would have been attached to an original entry. The defend-
ant's counsel likewise looks to the events of 1899 as determining the
relations of the parties, but urges that there is a distinction not to be
lost sight of between an entry and a continuance in possession as evi-
dencing a holding under a tenancy having its origin in an agreement
ineffective in itself.
Approaching the question at issue in the manner thus indicated, the
plaintiff claims that the defendant's possession after October 1st, 1899,
following the new parol agreement, created a new and independent
status. This status, he says, was that of a tenancy from year to year.
The practical result of this claim is that while the origin of the tenancy
after October 1st, 1899, is found in the events of that year, the char-
acter and incidents of the tenancy are precisely the same as would have
resulted from the defendant's occupancy had there been no attempt to
make a renewal lease. The defendant's position with respect to the
question of the creation of a new tenancy referable to the new agree-
ment is not definitely stated, although the inference to be drawn from
the distinction he makes between a continued occupancy and a new
entry would seem to indicate that it was that no such new tenancy came
into existence. His main contention, however, is that whatever new
tenancy may have been created by the events of 1899, it was one at will
and not one from year to year.
We have already observed that a successful defense involves the
establishment by the defendant of two propositions, to wit: (1) That
the defendant's possession after October 1st, 1899, was under a new
tenancy of some sort, and (2) that this tenancy was, to say the least,
not one from year to year. If it be assumed, as the plaintiff claims
and the defense requires, that a new and independent tenancy origi-
nated in the events of 1899, the question remains as to its character.
The defendant urges that it was one at will, since no rent was paid for
any occupancy or period after October 1st, 1899. His contention is
that the payment of rent must concur with possession by the lessee un-
der a term lease in violation of the statute of frauds, in order that a
tenancy from year to year be created by implication of law, and that
668 DERIVATIVE TITLES (Part 2
without such payment the tenancy will be regarded as one at will.
Whatever the rule may be elsewhere, such is not the law of this juris-
diction. Tenancies from year to year by implication are the results
of judicial legislation as a measure of equity and sound policy. 1
Washburn on Real Property, § 797. In this State the long-established
rule is that when parties make an oral lease of lands reserving rent,
which lease is non-actionable by reason of the statute of frauds, and
the lessee thereafter enters into possession under the lease, there re-
sults a tenancy which under ordinary conditions at least will by im-
plication of law be regarded as one from year to year. Larkin v. Av-
ery, 23 Conn. 304 ; Corbett v. Cochrane, 67 Conn. 570, 35 Atl. 509.
This rule has an especial appropriateness in this State where parol
leases for a term not exceeding one year under which possession is
taken are not invalid by our statute of frauds. The same result would
of course logically follow, where the lessee remained in a possession
previously acquired, if the circumstances were such as to sufficiently
disclose that his continued possession was referable to the ineffective
lease, and therefore under it, as an agreement made, although not en-
forceable in and of itself. Andrew v. Babcock, 63 Conn. 109, 121, 26
Atl. 715. Section 4043 of the General Statutes 1902 first enacted, in
substance, in 1866, prescribes that a holding-over possession, standing
by itself, shall not be regarded as evidence of any agreement of a further
lease. It does not, however, prevent a tenancy from being established
by other recognized means. One of these means, recognized long be-
fore the legislation of 1866, was that of supplementing proof of the
agreement non-enforceable under the statute of frauds, with proof of
the acts of the parties disclosing a recognition by them of a tenancy
in fact under it. 1 Swift's Digest, s. p. 91 ; Lockwood v. Lockwood, 22
Conn. 425 ; Larkin v. Avery, 23 Conn. 304. The only significance
which can reasonably attach to a mere payment and receipt of rent,
is to be found in a recognition of a tenancy of some sort under the in-
valid lease, and our own courts have well said that, however satisfac-
tory such a recognition might be, there might well be one sufficiently
disclosed in other ways. In some jurisdictions, rent payments of an-
nual sums or aliquot parts thereof have been, by reason of their indica-
tion of the intention of the parties, regarded as essential to the conver-
sion of what by force of statute or judicial construction are prima
facie tenancies at will into tenancies from year to year. Such is not
the law of this State.
The defendant having, for the reasons stated, failed in his contention
that the tenancy after October 1st, 1899, was other than one from year
to year, the judgment appealed from was properly rendered.
Upon our conclusions the defense that the statute of Hmitations had
run against the plaintiff's claim is confessedly not well made.
There is no error. In this opinion the other judges concurred.
Ch. 5) ESTATES CREATED 669
LYONS V. PHILADELPHIA & R. R. CO.
(Supreme Court of Pennsylvania, 1904. 209 Pa. 550, 5S Atl. 924.)
Appeal from report of viewers.
From the record it appeared that plaintiffs who were liquor dealers,
entered into a verbal undertaking with Rieker, the then owner, the
terms of which were that they agreed to pay twenty-five cents for each
barrel of beer more than the regular price elsewhere, as rental. The
rental was "payable just as the beer bill was payable — paid at all times,
* * * along different periods, — running account, * * * some-
times every week they got a check.'' The understanding was that the
plaintiffs "had a right to remain on that lot as long as you [they] want-
ed," or, as the owner's son testifies, they "could have stayed as long as
they felt."
The tenants erected buildings on the premises which were used for
bottling, storage, liquor-room and offices, — and also a stable, wagon
shed, coal shed and outbuildings and machinery necessary to the con-
duct of their business.
The defendant company being desirous to enter upon the lands for
railroad uses, presented a bond in the usual form, which was approved
May 16, 1901, and thereafter viewers were appointed for the purposes
stated.
The defendant gave notice to the plaintiffs December 20, 1901, that
it desired possession of the lot March 1, 1902, and stated the notice was
given to allow them time to arrange their affairs, but did not take actual
possession of the premises until June 4, 1902.
The plaintiffs disregarded the notice, and the railroad company pro-
ceeded to the demolition of the buildings. The court gave binding in-
structions for defendant.
Per Curiam. The appellants were tenants at will of Rieker. The
agreement under which they went into possession was altogether indefi-
nite as to the time it was to last ; they were to "remain as long as they
wanted." The rent was not fixed either as to amount or time of pay-
ment, but was deterrnined by the number of barrels of beer they should
purchase from their lessor, and was payable "just as the beer bill was
payable." A clearer case of tenancy at will would be hard to discover.
Under such circumstances the mere fact that the tenancy ran along for
more than a year did not change its character or convert it into a tenancy
from year to year. "Where the duration of the term is left uncertain
* * * the lessee holds ab initio as a tenant at will. And the mere
payment of rent will not change the tenancy into one from year to year,
unless there are other circumstances to show an intention to do so, as
for instance an agreement to pay rent by the quarter, or some other
ahquot part of the year :" 18 Am. & Eng. Ency. of Law (2d Ed.) tit
Landlord & Tenant, p. 183. But "the mere payment of a periodical
rent, however, will not necessarily have the effect of changing the ten-
670 DERIVATIVE TITLES (Part 2
ancy at will into a periodical tenancy and parol evidence may be ad-
mitted for the purpose of showing the character of the payment:" 18
Am, & Eng. Ency. of Law (2d Ed.), p. 186. It was on this last prin-
ciple that the issues in McDowell v. Simpson, 3 Watts, 129, 27 Am.
Dec. 338, and Dunn v. Rothermel, 112 Pa. 272, 3 Atl. 800, were sent
to the jury to determine whether the leases were at will or from year
to year. In both cases the rent was paid yearly, and the expression of
Justice Kennedy, in the former, so much relied on by appellants, that
"if the tenants were suffered to hold under it for upwards of a year,
paying the rent as it became due, and the plaintiff receiving it without
objection, the lease instead of continuing to be a lease strictly at will
would thereby become a lease from year to year," must be read in
connection with the facts of the case.
Being tenants at will, the termination of the lessor's estate, even
though by involuntary alienation under eminent domain determined
the appellants' lease, and made them technically tenants at sufferance
of the railroad company. The difference, however, is not practically of
any importance. All they were entitled to in either case was notice
and a reasonable time to remove their goods and fixtures. This they
received, but failed to avail themselves of, and the learned judge below
was justified in treating their conduct as an abandonment.
The filing of the bond by the railroad company did not change the
nature of the tenancy, nor the rights of the appellants except so far as
it substituted the company as lessor in place of Rieker. The bond was
security for such damages as the appellants "shall be entitled to receive
for the entering by the said company upon the said lands, and establish-
ing and constructing the said additional tracks and structures thereon."
If the company had entered immediately and demolished the buildings
in the construction of its tracks, it would have been liable just as its
predecessor, Rieker, would have been, for the damages caused by want
of reasonable opportunity to appellants to remove their property, but
such opportunity having been given, there were no damages, and the
verdict was rightly directed for defendant.
Judgment affirmed.**
RIGHT d. FLOWER v. DARBY et al.
(Court of King's Bench, 17S6. 1 Term Rep. 159.)
Ejectment tried at the last assizes at Salisbury, before Plotham,
Baron, when a verdict was found for the plaintiff, subject to the opin-
ion of the Court of King's Bench on the following case:
That the lessor of the plaintiff was seised in fee of the premises
in question. That on the 11th day of May, 1781, the defendant Darby
took the premises, which are a house in Salisbury, and occupied them
4 4 See Doe d. Tomes v. Chamberlain, 5 M. & W. 14 (1839) ; Sheldon v. Davey,
42 Vt. G37 (1870), ace.
Ch. 5) ESTATES CREATED 671
as a public-house from that time under a parol demise at £10. per an-
num; the rent to commence from Midsummer then next following.
The defendant Darby let part of the premises to the defendant Bris-
tow. That on the 26th March, 1785, the defendant Darby was served
with a notice to quit on the 29th of September following.
The question is, whether the lessor of the plaintiff is entitled to re-
cover ?
Lord Mansfield, C. J. When a lease is determinable on a certain
event, or at a particular period, no notice to quit is necessary, because
both parties are equally apprized of the determination of the term.
If there be a lease for a year, and by consent of both parties the
tenant continue in possession afterwards, the law implies a tacit ren-
ovation of the contract. They are supposed to have renewed the old
agreement, which was to hold for a year. But then it is necessary
for the sake of convenience, that, if either party should be inclined
to change his mind, he should give the other half a 'year's notice before
the expiration of the next or any following year: now this is a notice
to quit in the middle of the year, and therefore not binding, as it is
contrary to the agreement.
As to the case of lodgings, that depends on a particular contract,
and is an exception to the general rule. The agreement between the
parties may be for a month or less time, and there to be sure much
shorter notice would be sufficient, where the tenant has held over the
time agreed upon, than in the other case. The whole question depends
upon the nature of the first contract.
AsHHURST, J. There is no distinction in reason between houses and
lands, as to the time of giving notice to quit. It is necessary that both
should be governed by one rule. There may be cases, where the same
hardship would be felt in determining that the rule did not extend
to houses as well as lands ; as in the case of a lodging-house in Lon-
don, being let to a tenant at Lady-Day to hold as in the present case:
if the landlord should give notice to quit at Michaelmas, he would by
that means deprive the lessee of the most beneficial part of the term,
since it is notorious that the winter is by far the most profitable sea-
son of the year for those who let lodgings.
BuLLER, J. It is taken for granted by the counsel for the plaintiff,
that the rule of law, which construes what was formerly a tenancy at
will of lands into a tenancy from year to year, does not apply to the
case of houses, but there is no ground for that distinction. The rea-
son of it is, that the agreement is a letting for a year at an annual rent ;
then if the parties consent to go on after that time, it is a letting from
year to year. This reason extends equally to the present case ; an an-
nual rent is here reserved ; and upon such a holding it has been de-
termined that half a year's notice to quit is necessary. This doc-
trine was laid down as early as in the reign of Henry the Eighth.
[13 H. VIII, 15 b.] The rhoment the year began, the defendant
had a right to hold to the end of that year; therefore there should
672 DERIVATIVE TITLES (Part 2
have been half a year's notice to quit before the end of the term. This
gives rise to another objection in this case, upon the distinction between
six months and half a year. The case in the Year-Books requires half
a year's notice; but here there is less than half a year's notice, and
therefore it is bad on that ground also.
Judgment for the defendant.
HERTER V. MULLEN.
{Court of Appeals of New York, 1899. 159 N. Y. 28, 53 N. E. 700, 44 L. B. A.
703, 70 Am. St, Rep. 517.)
Martin, J. This action was to recover seven months' rent of a
dwelling house situated upon Madison avenue, in the city of New
York. There was a lease between the parties, by which the defend-
ants rented the premises from May 1, 1894, for the period of one year,
the rent payable in monthly installments in advance. The rent for that
term has been paid. By this action the plaintiff seeks to recover rent
for a portion of the succeeding year, on the ground that the defend-
ants held over after the expiration of their term, and thus became
liable for the rent of the premises for that time. The facts are undis-
puted. The defendants alleged as a defense to the action the making
of the contract or lease with the plaintiff; that in the month of Feb-
ruary, 1895, before the expiration of their term, they notified the
plaintiff that they would not retain the premises for another year,
and that after such notice the plaintiff and his agents were permitted
to show the premises, and to place the usual notice "To Let" upon
them, which remained during the balance of the term.
The defendants then specially alleged that on May 1, 1895, the de-
fendants were prevented from yielding up the possession of the prem-
ises by the act of God in afflicting their mother, who was a member
of their family, with a disease which, at that time, previously, and
subsequently, including May 15th, confined her to her bed so that
it would have endangered her life to take her from the house; that
for that reason, and no other, of which the plaintiff had full knowledge
and notice, the defendants were obliged to and did occupy a small
portion of the premises until May 15th; that all their property,' furni-
ture, and belongings and their family were removed from the premises,
and every part thereof, on May 1, 1895, except from the sick room in
which their mother was confined, and that they were forbidden by the
physician in charge to remove her until May 15th, when she was at
once removed.
Upon the trial it was admitted that upon the 1st of February, 1895,
the defendants notified the plaintiff that on the 1st of May they would
give up and surrender the possession of the premises. That they were
occupied under the lease was admitted, also the rate of rent, and the
fact that the defendants, from necessity, held over after the expira-
Ch. 5) ESTATES CREATED 673
tion of the lease some 15 days. The plaintiff then admitted the facts
set up in the answer as to the impossibility of the defendants' sur-
rendering possession at the expiration of the year, so that the question
presented is whether, notwithstanding the facts alleged in the answer,
the plaintiff was entitled, as a matter of law, to recover rent for the
succeeding year, upon the ground that the defendants held over after
the expiration of their term. •
The admission of the plaintiff amounts to a concession that, by rea-.
son of the sickness of the defendants' mother, it was impossible for
them to surrender up the possession of the premises to the plaintiff;
that, so far as it was possible, they did so; and hence, that their
retention was wholly involuntary. If there was any doubt as to the
question of impossibility, it should have been submitted to the jury,
and the defendants' exception to the direction of a verdict was well
taken. Thus, in a word, the question is whether that impossibility jus-
tified the defendants' action, or whether, although it was impossible to
surrender the entire premises, the holding of a small part for a few
days imposed upon them a liability for rent for the succeeding year.
It is well settled that, where a tenant voluntarily holds over after the
expiration of his term, he may be held as upon an agreement to hold
for a year upon the terms of the prior lease. Conway v. Starkweather,
1 Denio, 114; Board v. Clark, 33 N. Y. 251; Haynes v. Aldrich, 133
N. Y. 287, 289, 31 N. E. 94, 28 Am. St. Rep. 636. The basis of this lia-
bility is often said to be an implied agreement upon the part of the
tenant to hold for another year. While I doubt, as I always have,
the propriety of calling, this class of obligations implied contracts, but
think they are to be regarded as duties which the law im-
poses, yet, whether they be denominated implied contracts or du-
ties created by law, in either case the right arises upon' an impli-
cation of law, and in no sense upon an express or absolute contract.
It is also well settled that, where a duty or charge is created by law,
and the performance is prevented by inequitable accident or the act
of God, without fault of the party sought to be charged, he will be
excused, but where a person absolutely, and by express contract,
binds himself to do a particular thing, which is not at the time impos-
sible or unlawful, he will not be excused, unless through the fault
of the other party. The reason given for the latter portion of this
rule is that he might have provided by his contract against inevita-
ble accident or the act of God. Harmony v. Bingham, 12 N. Y. 99,
62 Am. Dec. 142 ; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec.
349; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. Thus the
most that can be said of the obligation that arises from the relation
of landlord and tenant and follows by a general lease is that the
tenant is charged with the duty of vacating the premises at the
end of his term. If he fails, it is a breach of his duty, and or-
dinarily the law implies or creates a liability on his part for an-
Aig.Pbop, — 13
574 DERIVATIVE TITLES (Part 2
other year's rent. This being a duty impUed or created by law, and
not by an express or absolute agreement, it falls within the first part
of the foregoing rule, and hence it is obvious that, if the tenant's re-
moval was rendered impossible by inevitable accident or the act of
God, he is excused for his omission to surrender the premises, at least
so far as it creates a liability for a year's rent which is implied by
law. The reason for the distinction between the effect of impossibility
. of performance, occasioned by inevitable accident or the act of God,
upon an obligation created by express contract and upon an obligation
which the law implies, has been held to rest "upon the unwillingness
of the law to at once create, impose, and exact the performance of
an obligation forbidden or rendered impracticable by the interposition
of Providence." School Dist. v. Dauchy, 25 Conn. 530, 68 Am. Dec.
371.
Under the principle of the authorities relating to this subject, I
think it is clear that, as the obHgation sought to be enforced was
one created by law, and not by the agreement of the parties, impos-
sibility of performance was a valid excuse, and the defendants cannot
be held for the rent for the subsequent year. Moreover, the same
result may be reached upon another ground. There are many cases
where the courts have impHed a condition in a contract to the effect
that a party is relieved from its terms where its performance has,
without his fault, become impossible. The principle upon which those
cases are based is that, when the contract was made, the parties con-
templated that the condition which subsequently existed might arise,
and render performance impossible, and that the implied condition is
to be construed as a part of the existing contract, and thus relieves
the party from liability in case that condition arises. Dexter v. Nor-
ton, 47 N. Y. 62, 7 Am. Rep. 415; Lorillard v. Clyde, 142 N. Y. 456,
462, Z7 N. E. 489, 24 L. R. A. 113; Stewart v. Stone, 127 N. Y.
507, 28 N. E. 595, 14 L. R. A. 215; Spalding v. Rosa, 71 N. Y. 40,
44, 27 Am. Rep. 7; Taylor v. Caldwell, 3 Best. & S. 826; Robinson
V. Davison, L. R. 6 Exch. 269; Kein v. Tupper, 52 N. Y. 550, 555;
Dolan V. Rodgers, 149 N. Y. 489, 492,' 44 N. E. 167.
To hold in this case that this agreement was made upon an implied
condition that the defendants should not be required to vacate the
premises at the expiration of their term in the event that it was ren-
dered impossible by inevitable accident or the act of God is quite with-
in the principle of the authorities cited. But, be this as it may, it
is manifest that the charge or liability which the plaintiff' seeks to en-
force was created by law, and not by agreement, and that, as its per-
formance was prevented without the defendants' fault, they were ex-
cused from the onerous liability which the plaintiff now seeks to
enforce. It may well be, and doubtless is, true that the plaintiff
may recover for the time the premises were occupied by the defend-
ants, or if, by reason of their failure to surrender up the premises,
additional damages follow, that they may be recovered in a proper ac-
Ch. 5) ESTATES CREATED 675
tion so that all damages caused by the defendants* misfortune would
be borne by them, but that he cannot recover the rent for the subsequent
year upon the implied contract or duty imposed by law seems to me
clear.
These considerations lead me to the conclusion that the judgment in
this action should be reversed, and a new trial ordered, widi costs
to abide the event. "'^
GOLDSBOROUGH v. GABLE.
(Supreme Court of Illinois, 1S92. 140 111. 2C9, 29 N. E. 722, 15 L. R. A. 204.)
ScHOLriELD, J. Appellant brought covenant against appellee for
rent. Upon the trial in the circuit court, appellant read in evidence
a deed, executed by himself to appellee, leasing certain real estate in
Peoria from March 18, 1883, until March 18, 1884, for $840, payable
in installments of $70 on the 18th day of each month; occupation
of the premises, after the execution of the deed, by appellee until
the ISth of October, 1888 ; the payment of the stipulated rent for the
term described in the deed; the failure of appellee to surrender
possession of the premises at the expiration of the term, and his con-
tinued occupancy thereof ; payment of the same rent for the first
month after the expiration of the term, as provided by the deed to
be paid by the month during the term ; and the payment of other sums
for rent from time to time throughout the period that appellee oc-
cupied the premises ; amounting, however, in -the aggregate, to a less
sum than the total amount of rent due at the rate provided to be paid
by the deed.
Appellee was permitted to introduce evidence, over the objection ol
appellant, tending to prove that, after the expiration of the term de-
scribed in the deed, and after he had paid appellant one month's rent
for the occupation of the premises at the rate provided to be paid in
the deed, namely, on the 28th of May, 1884, he commenced negotiating
with appellant to reduce the rent for the premises; that the negotia-
tion was protracted until the 9th of July following, when it was
agreed between appellant and appellee that the rent for the prem-
ises should be reduced to $50 in lieu of $70 per month, as it had been
theretofore; and the court refused to instruct the jury, at the instance
of the appellant, that, even if they believed such agreement had been
proved, it was "invalid, and could not be enforced," but, on the con-
trary, the court instructed the jury that, if they believed from the
evidence that such agreement had been proved, it was valid, and the
4 5 The concurring opinion by O'Brien, J., and the dissenting opinion by Gray,
J., are omitted. Parker, C. J., and Haight, J., concurred with O'Brien and
Martin, JJ., in voting for reversal. Bartlett and Vann, JJ., concurred with
Gray, J.
See Doe v. Crago, 6 C. B. 90 (1S4S) ; Oakley v. Monck, 3 H. & a 706 (1S65) ;
Dougal V, McCarthy, [1S93] 1 Q. B. 736.
676 DERIVATIVE TITLES (Part 2
plaintiff was thereafter entitled to recover only $50 per month for the
rent of the premises.
In our opinion, the court erred in these several rulings. There was
no evidence given on behalf of appellee tending to prove that he had
surrendered the premises to appellant before the making of the agree-
rhent of July 9, 1884, or that he had offered to do so, and refused to
execute the terms of the lease, or that there was any reason why he
could then have surrendered the premises and refused to execute the
terms of the deed. Appellee having remained in possession after the
expiration of the term described in the deed, without any new contract
with appellant in respect thereto, it was optional with appellant to
treat him as a trespasser, or to waive the wrong of holding over, and
treat him as a tenant; and, by accepting the payment of the month's
rent thereafter from appellee, appellant made his election, and appel-
lee then became a tenant of the premises under appellant, from year
to year, upon the same terms and subject to the same rent, etc., as
is provided to be paid in the original deed. Prickett v. Ritter, 16
111. 96; Hunt v. Morton, 18 111. 75; McKinney v. Peck, 28 111. 174;
Cloth Co. V. Gardner, 99 111. 151; Webster v. Nichols, 104 111. 160.
The only respect wherein the agreement of the 9th of July, 1884,
whereof evidence was permitted to be given to the jury, purported
to change this tenancy from year to year, is in the amount of the
monthly payment of rent to be made. Appellee, by that agreement,
is required to do nothing which he was not already obligated to do as
tenant from year to year, and appellant's duties are in no wise less-
ened or changed thereby. It simply purports to obligate appellee to
pay and appellant to receive $50, where they were already obligated,
the one to pay and the other to receive $70. There is thereby neither
in fact nor in presumption of law injury or loss to appellee, or gain or
benefit to appellant. It follows that it is an agreement, as clearly as
one can be, without any consideration to support it, — a mere nudum
pactum ; and so it is binding upon neither of the parties, and is in-
susceptible of being enforced in this suit. Titsworth v. Hyde, 54 111.
386; Seybolt v. Railroad Co., 95 N. Y. 562, 47 Am. Rep. 75; Daven-
port V. Society, 33 Wis. 387 ; Johnson's Adm'r v. Sellers, 33 Ala. 265 ;
Gordon v. Gordon, 56 N. H. 170. See, also, 3 Amer. & Eng. Enc.
Law, 390, 391, and notes.
It is impossible to say that the agreement was made as an adjust-
ment of a dispute in regard to a doubtful right, for appellee's own tes-
timony shows that there was no fact in dispute between him and ap-
pellant. His testimony is only that he claimed that the rent should
be reduced, and that appellant resisted the claim at first, but finally
yielded to the extent shown by the agreement. It cannot be held that
appellant is in any way estopped by the agreement, since it is nof
shown that appellee has in consequence of it, done that which he would
otherwise not have done, whereby he will be injured if the agreement
be not carried out ; nor can it be held that the agreement has the effect
Ch. 5) . ESTATES CREATED 677
of an executed gift as to the difference between the $50 and the $70
per month, because there was executed no receipt or release for the
amount, and there was no proof of any action of the parties equiv-
alent thereto.
The judgments of the appellate and circuit courts are reversed,
and the cause is remanded to the circuit court for a new trial.
KING V. DURKEE-ATWOOD CO.
(Supreme Court of Minnesota, 1914. 126 Minn. 452, 148 N. W. 207, L. R. A.
1915A, 235.)
BuNN, J. Defendant was a tenant of plaintiff under a lease from
month to month, the leased premises being a store in Minneapolis and
a flat above it. The rent was payable monthly in advance. April 4,
1913, defendant caused to be served on plaintiff a notice of the termi-
nation of the tenancy of May 31st. Defendant did not, however, va-
cate the premises on the date named, but continued in possession until
June 30th, when it ceased to occupy the premises for any purpose, and
delivered the keys to plaintiff. The holding over was with the knowl-
edge and consent of plaintiff, though there appears to have been no
agreement as to the terms upon which the tenant held over. Appar-
ently it was understood that the tenant was to move to new quarters
as soon as they were ready, and that it was not the intention of de-
fendant to continue its occupancy of the leased premises beyond the
month of June. \
This action was brought to recover the rent of the store for the
months of June, July, and August, and of the flat for tlie months of
June and July. Plaintiff was unable to rent the store in July or Au-
gust, but occupied the flat the latter month. Defendant admitted its
liability for the month of June, during which it occupied the premises,
but claimed that it was not liable for the July and August rent. The
trial was to a jury. The court instructed that the tenant's holding over
after May 31st made the notice a nullity, that the case was as if no
notice had been given, and that defendant was liable for the July and
August rent. The verdict was in accord with this instruction. Defend-
ant moved for a new trial, and appealed from an order denying such
motion.
The decision here depends upon whether the instruction of the court
to the jury, above referred to, is a correct statement of the law as ap-
pHed to the facts in the case.
1. If the notice was rendered a nullity by the tenant's holding over,
it must be on the ground of waiver. It is clear, in this state at least,
that a notice by the landlord to a tenant to quit may be waived by the
landlord, and that such notice is thenceforth inoperative. Arcade In-
vest. Co. v. Gieriet, 99 Minn. 277, 109 N. W. 250. See note to Wisner
V. Richards, Ann. Cas. 1912D, 160.
678 DERIVATIVE TITLES . (Part 2
It is doubtless true that a tenant may withdraw or waive a notice to
quit given by him. And if he does waive it, it is plainly correct that
the situation is as if no notice had been given. Clearly, notice was
necessary in order to terminate this tenancy at will or from month to
month. Rev. Laws 1905, § 3332.
Did the tenant, by holding over after the time named in the notice,
waive or withdraw such notice? There are some statements in text-
books, and at least one reported case, that lends support to the view
that such holding over is only presumptive evidence of waiver, and
does not operate as a matter of law to continue the tenancy. In Cyc.
the law is thus stated : "No continuance of the tenancy is necessarily
implied from the mere fact of a tenant continuing in possession after
the expiration of a notice to quit given by such tenant. It is for the
jury to decide whether or not the tenant, by remaining in possession,
intends to waive the notice and continue the tenancy." 24 Cyc. 1336.
But one case is cited as authority for the text, and that is Jones v.
Sheares, 4 Ad. & El. 832, 6 Nev. & M. 428, 2 H. & W. 43, 5 L. J. K. B.
(N. S.) 153. This case was determined by the court of King's Bench
in 1836. The lessee of the coal under certain lands gave a notice, as
under the lease he had a right to do, that at the end of two years he
would deliver possession and end the term. He continued for two
months after the two years to work the coal, and it was claimed by the
lessor that the notice was thereby waived. The lessee insisted that the
working was not carried on with any view of continuing the tenancy,
that the coal mined was taken from the pillars which supported the
roof, and that this was customary on leaving a mine. It was held that
tine question whether the lessee intended to waive the notice and con-
tinue the tenancy was for the jury. Mr. Tiffany states that a tenant
holding over after the time named in his notice of intention to quit is
liable in use and occupation as a tenant holding over, but that such
retention of possession does not necessarily operate as a waiver or
withdrawal of the notice, so as to effect a continuance of the former
tenancy. 2 Tiffany, Landl. & T. 1464.
But the decided weight of authority is that a tenant who holds over
after the expiration of his term may be held liable as tenant for a fur-
ther period without reference to his actual wishes on the subject, and
necessarily without reference to his intention to become a tenant for a
further term. 2 Tiffany, § 209, and cases cited. It would seem to be
immaterial whether the term expires because of the termination of the
period named in. the lease, or by a notice to quit, given where the lease
requires it or where the tenancy is at will. Graham v. Dempsey, 169
Pa. 460, 32 Atl. 408; Conway v. Starkweather, 1 Denio (N. Y.) 113;
Schuyler v. Smith, ^^l N. Y. 309. 10 Am. Rep. 609. See, also. Smith
V. Bell, 44 Minn. 524, 47 N. W. 263. The doctrine is that the landlord
has the option to hold the tenant for another period, or to treat him as
a trespasser or a tenant at sufferance. He may eject the tenant or
Ch. 5) ESTATES CREATED 679
resort to summary proceedings to recover possession. But if he sues
for the rent, or demands it, he elects to hold the tenant for another
period, and the tenant has nothing to say about it. The rule is per-
haps a harsh one, but it is too well settled generally and by our own
decisions to justify departing from it. Smith v. Bell, supra; 3 Notes
to Minn. Rep. 427.
The length of the term for which the tenant will be held depends, in
the absence of statute, on the character of his prior tenancy. In the
case of a prior tenancy from month to month, such as was the tenancy
in the case at bar, the tenant, on the election of the landlord to so treat
him, becomes or remains a tenant from month to month. Smith v.
Bell, supra. And this would be so as to urban property in case of a
holding over without any new agreement after the termination of a
lease for a definite tim6. Laws 1901, chap. 31 ; Rev. Laws 1905, §
3333; Gen. St. 1913, § 6812; Backus v. Sternberg, 59 Minn. 403, 61
N. W. 335; Ouade v. Fitzloff, 93 Minn. 115, 100 N. W. 660; Slafter
V. Siddall, 97'^Minn. 291, 106 N. W. 308. See note in 25 L. R. A. (N.
S.) 857; also, in 28 Am. St. Rep. 639.
We are forced to the conclusion that defendant, by holding over
after the time specified for the termination of the tenancy, waived the
notice given by it. The trial court was therefore correct in instructing
the jury that the notice was a nullity, and that defendant would be
held just the same as though such notice had never been given.
2. It follows that notice was necessary in order to terminate this
tenancy. It is admitted that no such notice was given. Defendant re-
lies on the statute, before cited (Gen. St. 1913, § 6812), in support of
its claim that it is liable only for one month's rent. But the cases of
Stees v. Bergmeier, 91 Minn. 513, 98 N. W. 648, Quade v. Fitzloff,
and Slafter v. Siddall, supra, are conclusive that this statute affords
defendant no relief. It was enacted to do away with the harsh rule
whereby, at the option of the landlord, a tenant under a lease for a
definite term who remained in possession after the termination of his
lease was bound for another term on the same conditions. If the stat-
ute applies at all to a holding over after the termination by notice of a
tenancy at will or from month to month, it cannot be construed as mak-
ing a new tenancy for a single month. In Slafter v. Siddall, the lease
was for a year, and the tenant held over without any new agreement.
The statute was applied, and it was held that the tenancy was from
month to month. Clearly, when the original tenancy is one from month
to month, and the tenant has the right to give a month's notice and
relieve himself from further liability, the statute was not intended to,
and does not, convert such tenancy into one for a month only. Indeed,
when we have said that the notice was a nullity, it is equivalent to
saying that the tenancy at will was not terminated. It remained in
force until the tenant quit after the expiration of the time named in a
new notice.
680 DERIVATIVE TITLES (Part 2
It follows that the trial court was correct in holding that the tenancy-
had not terminated, and that defendant was liable for the July and
August rent. Order affirmed.*®
ARBENZ V. EXLEY, WATKINS & CO.
(Supreme Court of Appeals of West Virginia, ] 905. 57 W. Va. 580, 50 S. E. 813,
4 Ann. Cas. 625.)
Brannon, p. John Arbenz, Sr., made a written lease, but not un-
der seal, to Exley, Watkins & Co., leasing for a term of five years and
three months a brick building, including the vacant parts of certain
lots, in the City of Wheeling, the term commencing January 1, 1896,
and ending March 31, 1902, for the annual rent of $700.00, commenc-
ing April 1, 1896, payable in monthly instalments. The lessees took
possession on the first week of January, and occupied the premises,
paying rent monthly. On September 15, 1898, a fire totally destroyed
said building. The lessees paid rent for that September and also for
October, but with the rent of October sent a letter, October 31, 1898,
to Arbenz, informing him that they "hereby" vacate tlie premises and
surrender them to him.
In November, 1898, Arbenz sued out a distress warrant against said
lessees for rent from November 1, 1898, to October 31, 1899, and the
same having been levied, a forthcoming bond was given, and in the
proceedings upon it in the circuit court of Ohio county a verdict was
rendered for the plaintiff for $502.54,. after deducting for failure to
repair an engine, and judgment given thereon, and the defendants took
a writ of error. The defendants filed a plea denying grounds of at-
tachment, and denying all liability for the rent claimed.
The judgment below was affirmed by this Court. Those matters will
appear in 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957. On August 1,
1903, Arbenz brought assumpsit against Exley, Watkins & Co. to re-
cover rent accruing later than that recovered in the proceeding above
mentioned — to recover rent for the period beginning November 1, 1899,
and ending December 31, 1902, a period of 38 months, at $700.00 per
year, and the suit resulted in a verdict for only $148.15, that is, for
the two months of November and December, 1899, the court holding
*6 See Mason v. Wierengo's Estate, 113 Mich. 151, 71 N. W. 4S9, 67 Am. St.
Rep. 461 (1897) ; Providence County Sav. Bank v. Hall, 16 R. I. 154, 13 Atl.
122 (1888), ace.
The X. Company was lessee of certain premises at an annual rental under a
lease expiring October 1, 1911. In July, 1910. a receiver was appointed to take
charge of the business of the company. The receiver at once took possession
and paid the rental in monthly installments until April, 1912, when he vacated
the premises. In an action for rent accruing after such vacation, on the theory
that the holding over had created a tenancy from year to year, the court held
that after October 1, 1911, the receiver was merely a tenant at will. Dietrich
V. O'Brien, 122 Md. 482, 89 Atl. 717 (1914). See, also, Blumenberg v. INIyres,
32 Cal. 93, 91 Am. Dec. 560 (1867) ; Pusey v. Presbyterian Hospital of Omaha,
70 Neb. 353, 97 N. W. 475, 113 Am. St. Rep. 788 (1903).
Ch. 5) ESTATES CREATED 681
that no recovery could be had after the current year ending that date,
on the theory that the tenancy from year to year then closed. The
theory against the right to recover is, that a few days after the fire the
defendants wrote Arbenz the following letter: "Oct. 31st, 1898. Mr.
John Arbenz, City — Dear Sir: We beg to advise that we have va-
cated, the premises known as west building on 20th street, destroyed
by fire Sept. 15th, last, and hereby surrender possession of same.
Yours truly, Exley, Watkins & Co."
On the former writ of error we held that for want of a seal to the
lease the term of years named in it was not created, but that it created
an estate from year to year, and that said letter did not operate as a
notice to quit, to end the tenancy so as to preclude recovery of rent up
to November 1, 1899, the rent in litigation in the former proceeding.
We did not go further, as no later rent was involved in that case. The
question presented in the second suit is. Did the tenancy end 31st De-
cember, 1899? Did that letter close the tenancy and stop the rent at
that date, the close of the current year 1899? For the defendants the
contention is, that the letter, accompanied by actual vacation of the
premises, and coupled with the fact that in the circuit court in April,
1899, Exley, Watkins & Co. made defense in the former proceeding
denying liability for rent, operated as a notice to quit and closed the
tenancy 31st December, 1899.
Take the letter. The question rests mainly on it. It states the facts
that the lessees had vacated, and then surrendered possession. It does
not notify that at the end of a current year in future the tenant would
quit, but states present acts or past, vacation and surrender. The
common law, for centuries, has required, in order that lessor and les-
see, under a tenancy from year to year, may close the tenancy of his
own motion, that a notice to quit should be given six months before
the end of the current year. That period or time of notice must be
prior to the close of a year. The Code 1899, chapter 93, section 5, pro-
vides that "a. tenancy from year to year may be terminated by either
party giving notice in writing to the other, prior to the end of any
year, for three months, of his intention to terminate the same." That
provision recognizes as still continuing the common law estate of ten-
ancy from year to year and the process of terminating it by notice to
quit, and changed it only in requiring written notice and fixing a
shorter time of notice. Hence it seems that we must appeal to the com-,
mon law and its mode of notice to test the efficiency of the letter as
notice to quit. It does not notify of a future act of quitting, but relies
on past vacation, and present surrender of possession for the effect of
the letter. It does not name a day or time in future when the tenancy
is to end. The profession has always regarded tliis as a requisite in a
notice to quit, I think, 2 Taylor, Landlord & Ten. § 476, says : "Form
of. — The notice may be given to quit on a particular day ; or, in general
terms, at the end of the current year of the tenancy, which will expire
next after the service of the notice; or, in one month after the next
C82 DERIVATIVE TITLES (Part 2
rent-day. The latter form of expression is generally used where the
landlord is ignorant of the period when the tenancy commenced ; and
it is preferable even when the commencement of the tenancy is known,
as it provides against any misapprehension of the exact day when the
tenant entered." 1 Washburn Real Prop. § 810 says: "Notice. The
Time. — Whether a longer or shorter time of notice is required, it must,
in order to be binding, clearly indicate the time when the tenancy is
to expire, and, of course, must be given a sufficient number of days
before the time so indicated."
The particular question before us is, whether that letter is bad as a
notice to quit because (1) it is a quitting at its date, not notice of a fu-
ture quitting at the end of a year, and (2) because it fails to state a
time for quitting. Under the above and many other authorities we are
driven to say that it did not end the tenancy at any time. Currier v.
Barker, 2 Gray (Mass.) 224, and Steward v. Harding, Id., 335; Han-
chet v. Whitney, 1 Vt. 31 1 ; Hunter v. Frost, 47 Minn. 1, 49 N. W. 327;
Grace v. Michaud, 50 Minn. 139, 52 N. W. 390; Phoenixville v. Wal-
ters, 147 Pa. 501, 23 Atl. 776; People v. Gedney, 15 Hun (N. Y.) 475;
Prescott V. Elm, 7 Gush. (Mass.) 346; Berncr v. Gebhardt, 87 Mo. App.
409; Huntington v. Parkhurst, 87 Mich. 38, 49 N. W. 597, 24 Am. St.
Rep. 146; Finklestein v. Herson, 55 N. J. Law, 217, 26 Atl. 688; Wa-
ters V. Williamson, 59 N. J. Law, 2>2>7, 36 Atl. 665; Godard v. S.
Carolina Railroad, 2 Rich. (S. C.) 346; Huyser v. Chase, 13 Mich. 98;
Rollins V. Moody, 72 Me. 135. The text-book writers seem to so re-
gard the law. I quoted from some above. Tiedeman on Real Estate,
§ 218, says that "the notice must not only be given for a certain length
of time before the estate is to end, but the estate can only be deter-
mined at the expiration of the time during which the tenant may law-
fully hold, i. e. at the end of the rental period ; it can only be determmed
at the end of the year, quarter or month, according as the tenancy is
respectively a yearly, quarterly or monthly tenancy. The notice must
be sufficiently clear in its terms as to the time when the tenancy is to
expire." 3 Minor's Inst, part 1, 241. "The notice * * * must
end with the period at which the tenancy commences." 2 Kerr, R.
Prop. 1310. 1 Lomax, Dig. 164; 1 Greenleaf's Cruise, R. Prop.
248, § 26. Chitty on Contracts (Uth Ed.) 485, speaking of English
common law, gays, "The notice must be framed with reasonable cer-
tainty as to the time of quitting." In Currier v. Barker, 2 Gray (Mass.)
227, it was held that a present demand or notice to quit was insuffi-
cient, and the rule is stated as follows : — "The notice to quit is techni-
cal, and is well understood. It fixes a time at which a tenant is bound
to quit, and the landlord has a right to enter at a time at which the
rent terminates. The rights of both parties are fixed by it, and are
dependent on it. Should the landlord decline to enter, and the tenant
quit according to notice, the tenant could no longer be holden for rent,
although he had given no notice to the landlord'. The lease is 'deter-
mined' by such notice, properly given by either party. It is manifest,
Ch. 5) ESTATES CREATED 683
therefore, that when such consequences depend upon the notice to be
given, the notice should fix with reasonable exactness the time at which
these consequences may begin to take effect. See, also, Walker v.
Sharpe, 14 Allen (Mass.) 45."
Of course, much force is to be given to the harmonious construction
of the many cases by the text writers. Still, I have had a question
whether the cases mean only that period of time before the termination
must expire on the day of the close of the year, or that the notice
must designate the time when the tenant intends to quit. Such seems
to be the law. The only question is. Does it fit this case? It does seem
of great force to say, that the only object of notice is to manifest an
intent of one party to end the tenancy, and to inform the other party
of that intent, and that the letter in this case did that. Arbenz surely
knew that his tenants designed to end the tenancy, because he knew
that they had quit the premises and surrendered possession. What
more could formal notice do? True, it coiild not go to end the ten-
ancy 31st December, 1898, because from the letter to that date was not
three months. But could it not end the tenancy at close of 1899?
Now, if the tenants had on the date of the letter given notice that they
would quit 31st December, 1899, who would say that it would not be
sufficient? Did not that letter disclose intent to quit? By law it could
not operate to close the tenancy 31st December, 1898, because the time
would be too short. Would it not operate then as soon as the law
would let it, just as a formal notice at the date of the letter would have
done, that is, December 31, 1899? Arbenz had notice of his tenants'^
intention to quit. Why could not that notice operate at the earliest
date the law would allow it to operate? In addition, if anything more
could in reason be demanded to disclose the intention of the tenants to
stop the tenancy and to inform Arbenz of such intention, we add that
the tenants in April, 1899, in court defended the claim of Arbenz to
rent prior to November, 1899. Their defense was that the building
was destroyed and they had sent that letter and abandoned possession.
But here comes in the answer that the statute, reiterating common
law prevalent for centuries, tells how the tenant must end his ten-
ancy, that is, by written notice. It is dangerous for us to insert an ex-
ception by saying that if the landlord had knowledge of the tenant's
intention, it stands for notice. It may not be improper to say that I
have given labored investigation of this case, as other members of the
Court' have, and I have been impressed with the weight of the line of
defense just stated, and have struggled to find a justification for adopt-
ing it, as the payment of the whole rent by the defendants, without any
return, works a hardship, which all the members of the Court appre-
ciate; but I am compelled to say that to decide against the plaintiffs
would be to fly in the face of practically si unanimity of authorities
through several hundred years in all quarters where the common law
rules. As applied generally the rule is right ; as applied in this case,
it works hardship ; but we cannot bend a fixed rule to suit a hard case.
684 DERIVATIVE TITLES (Part 2
Counsel says that the statute only requires three months notice
before end of year, and that the written notice need not specify time of
quitting, and that to say so is to read such a requirement into the stat-
ute. We answer that the statute only recognizes as the law already
the requirement of notice to terminate a tenancy from year to year,
and it has not changed the common law requisites of the notice. We
have cited to us the Georgia case of Roberson v. Simons, 109 Ga. 360,
34 S. E. 604, in which the opinion says that while mere abandonment
of premises at the end of the year "might perhaps" be sufficient to
bring home notice to the landlord of the tenant's intention to terminate
the tenancy, "so as to prevent the landlord recovering rent beyond the
year immediately succeeding such abandonment." This is mere opin-
ion. It was not at all in judgment — a thought in the mind, not ma-
turely considered for actual judgment. Betz v. Maxwell, 48 Kan. 143,
29 Pac. 147, seems to support the defense in saying that as the land-
lord from abandonment of possession knew of the intention to quit,
formal notice was useless. This seems to be answered by the quota-
tion above from Currier v. Barker. And it runs counter to the prin-
ciple which all authorities assert, that mere abandonment will not dis-
pense with notice, but the tenancy and liability for rent go on. "The
tenant's liability for rent continues till he puts an end to the estate by
notice, whether he continues to occupy the premises or not." 1 Washb^
R. Prop. § 807. So far is this so, that the landlord may, at his choice,
relet and recover the difference, or let the premises stand vacant. Mer-
rill V. Willis, 51 Neb. 162, 70 N. W. 914; 6 Ballard, R. Prop. § 462;
Schuisler v. Ames, 16 Ala. TZ, 50 Am. Dec. 168; Adams v. Cohoes, 127
N. Y, 175, 28 N. E. 25, is strongly relied on. The judge writing the
opinion does say that knowledge of intention to quit brought home to
the landlord will dispense with formal notice. - In the vast mass of
New York decisions it is readily noticed there are multitudinous con-
flicts. This case is in conflict with other decisions in New York itself.
It seems that the New York statutes entered into the case.
We do not go on the theory that the former decision is res judicata
to fix right to recover the rent involved in the present case. That case
was for rent for a certain period of time — this for another. That case
is res judicata to establish that it was a tenancy from year to year, but
did not say how long. A case may settle principle, but not be res ju-
dicata as to matters not immediately involved.
We are compelled to reverse the judgment and render judgment for
the plaintiff for his demand. Reversed.
Ch. 5) ESTATES CREATED 685
SECTION 6.— CONCURRENT ESTATES
CHALLIS, REAL PROPERTY.
An estate, whether in possession or in remainder, admits of being
so limited that several distinct individuals may be entitled to con-
current and simultaneous interests. Moreover, several persons may
take the same estate concurrently by descent; either at the common
law, in the case of a descent to several sisters, or the representa-
tives of several sisters ; or by a descent in gavelkind among several
brothers, or their representatives ; or by other special custom, among
several brothers and sisters, or their representatives. The several in-
dividuals so entitled will, according to the nature of the relation sub-
sisting between their interests, be (1) joint tenants, (2) tenants in
common, (3) parceners, also styled coparceners, or (4) tenants by
entireties.
Littleton's definition of joint tenancy is founded upon the mode
in which an estate is limited to joint tenants. If lands are limited to
several persons by name, habendum to them for life, or lives, those
persons are joint tenants during that life or those lives. Litt. sect,
277. They have an estate pur autre vie in joint tenancy. Similarly,
if lands are limited to several persons by name, habendum to them
and their heirs, those persons are joint tenants in fee simple.
Joint tenancy is equally applicable to fees (excepts fees in general
tail, as mentioned in the next following paragraph), to estates of mere
freehold, and to chattel interests. Litt. sect. 28L
An estate in general tail cannot be limited in joint tenancy, be-
cause (except under the circumstances which would make the estate
an estate in special tail) there cannot be a single heir of the bodies of
the donees ; and the right of the several heirs in tail of the several
donees to inherit, secundum f ormam doni, which is expressly conferred
upon heirs in tail by the statute De Donis, would be repugnant to the
right of the surviving joint tenants, upon the death of one, to enjoy
the whole estate, which is the most prominent characteristic of joint
tenancy.
The distinguishing characteristic of joint tenancy is styled jus ac-
crescendi, or the right by survivorship. Upon the death of one out of
several joint tenants, the survivors hold the whole estate, and nothing
passes to the representatives in title (whether real or personal) of the
deceased tenant. Litt. sect. 280.
But the practical advantage of the jus accrescendi is not neces-
sarily equal for each of the joint tenants; for two men may have a
joint estate for the life of one of them ; in which case, if that one who
is cestui que vie should die in the lifetime of the other, the estate
68iS DERIVATIVE TITLES (Part 2
is determined, whereas, if the other should die in the lifetime of cestui
que vie, the latter has the whole estate and becomes thenceforward
sole tenant for his own life. Co. Litt. 181b. It still remains true, that
each upon the death of the other takes the whole estate; but in the
one case, the whole estate which he takes is reduced to nothing.
The right by survivorship is liable to be defeated by any act which
severs the joint tenancy and turns it to a tenancy in common.
Joint tenants must claim an equal interest by the same title and in
the same right. Co. Litt. 189a; Ibid. 299b. Therefore they can only
take by purchase. And under limitations at the common law, they
must all take simultaneously. But in limitations by way of use, if the
use is declared jointly to several persons, some of whom are not yet
ascertained or not yet in being, such last-mentioned persons, if and
when they are ascertained or come into being, will be joint tenants with
the others ; and the same rule holds good,, when the interests arise
by devise. Co. Litt. 188a ; and Harg, n. 13 thereon ; 2 Prest. Abst. 56.
The identi'ty of the interest and title of joint tenants is commonly
analysed into the "fourfold unity" of interest, title, time and posses-
sion. 2 Bl. Com. 180-184. This analysis has perhaps attracted at-
tention rather by reason of its captivating appearance of symmetry
and exactness, than by reason of its practical utility. It means only,
that each joint tenant stands, in all respects, in exactly the same po-
sition as each of the others ; and that anything which creates a dis-
tinction either severs the joint tenancy or prevents it from arising.
Blackstone seems not to have adverted to the fact, that the "unity of
time" is not, under the learning of uses and devises, an indispensable
requisite.
Joint tenants are said to be seised per my et per tout; which ex-
pression properly refers to two only, two being taken as a type or
pattern for two or more. In one sense each has nothing, and in another
sense each has the whole, nihil per se separatim et totum conjunctim.
Co. Litt. 186a. In another sense, each has an equal aliquot share;
namely, for purposes of alienation, whether total or partial, and for
purposes of forfeiture. Ibid. Each can alienate his aliquot share,
and can thereby sever the joint tenancy and turn it to a tenancy in
common. Herein joint tenants differ from tenants by entireties, who
are seised per tout only, and not per my ; and of whom, accordingly,
neither can prejudice the right by survivorship of the other to suc-
ceed to the whole in severalty. 2 Bl. Com. 182.
The following point is practically important. When two or more
persons are joint tenants for their lives, whether by express limita-
tion or by implication of law, and although the limitation be expressly
to the survivor of them, then, on a severance of the joint tenancy, the
share of each will afterwards be held for his own life only. Co.
Litt. 191a; 2 Prest. Abst. 63. This is because the words in italics
are mere surplusage, which express nothing which the law would not
without them have implied. Hence it appears, observes Lord Coke.
Ch. 5) ESTATES CREATED 687
that a severance of the joint tenancy of a lease for lives is beneficial
to the lessor.
In the limitation of a fee simple in joint tenancy, the words above
placed in italics, instead of erring from mere superfluity, are highly
pernicious. They turn the limitation to a joint freehold for lives, with
a contingent remainder in fee simple to the survivor. Butl. n. 1 on Co.
Litt. 191a.
At the common law, one or more joint tenants could not be compelled
by the other or others to make partition. Litt. sect. 290. Voluntary
partition between them can be made only by deed. Co. Litt. 169a;
Ibid. 187a. By the statutes 31 Hen. VIII, c. 1, and 32 Hen. VIII, c.
Z2, the same right of partition as appertained at common law to co-
parceners, is given both to joint tenants and to tenants in common.*^
A tenancy in common, though it is an ownership only of an undivid-
ed share, is, for all practical purposes, a sole and several tenancy
or ownership ; and each tenant in common stands, towards his own
undivided share, in the same relation that, if he were sole owner of the
whole, he would bear towards the whole. And accordingly, one
tenant in common must convey his share to another, by some assurance
which is proper to convey an undivided hereditament; and he cannot
so convey by release. 2 Prest. Abst. 77.
A title by tenancy in common may be claimed by prescription. Litt.
sect. 310. This proves the severalty of the interest.
Tenancy in common may arise in any of the following ways:
(1) By express limitation.
At the common law a gift or limitation contained in the premises
of a deed, which standing by itself would have created a joint ten-
ancy, might be turned to a tenancy in common by express words in
the habendum ; such as, habendum the one moiety to the one and the
other moiety to the other of them. Co. Litt. 183b.
In modern assurances, which are commonly made under the Statute
of Uses, tenancy in common is limited in the habendum, by declaring
the use "as to one equal undivided moiety," or other fractional part, to
one of the persons, with similar declarations in favour of the others
respectively.
(2) By the severance of a joint tenancy. Litt. sect. 292.
(3) Similarly, by severance, through alienation, without partition,
of the interests of coparceners. Litt. sect. 309.
(4) By construction of law.
47 "It is trtie that, in this court TChanceryl jointenancies are not favoured,
because they are a kind of estates that do not make provision for posterity,
neither do I take it that courts of law do at this day favour theni ; althoiigli
Lord Coke says that jointenancy is favoured because the law is against the
division of tenures, but as tenures are many of tlieni taken away, and in a
great measure abolished, that reason ceases, and courts of law incline the same
way with this court." Eawes v. Hawes, 1 Wils. 1G5 (1747), per Lord Hard-
wicke. See, also, Rigden v. N'allier, 2 Ves. 252, 258 (1751). But see Goddai'd. v.
Ivewis, 25 T. L. R. 813 (1909).
688 DERIVATIVE TITLES (Part 2
(i) If a (contingent) remainder be limited to the heirs of two liv-
ing persons, not being husband and wife, which remainder must
therefore vest in interest at different times, the respective heirs will
take as tenants in common. Windham's Case, 5 Rep. 7, at p. 8a,
resolution 3 ; Roe v. Quartley, 1 T. R. 630.
(ii) Under a limitation, in the form of an estate tail, to two persons
neither married nor capable of lawful marriage, or to three or more
persons, they will take in common. Windham's Case, ubi supra, res-
olution 4.
Other instances might be specified ; but in the present state of the
law, they are not material in practice.
There is nothing in the nature or origin of tenancy in common
to import any necessity that the shares taken by the different ten-
ants must be equal; because they hold by several, or different, ti-
tles, not by a joint title. Litt. sect. 292. Their shares will, accord-
ingly, be unequal, whenever the circumstances under which their
titles arose were such as to institute any diversity between them.
On an express limitation, unequal shares may be expressly limited;
and then the shares will be unequal from the commencement of tlie
tenancy. When the origin of a tenancy in common is by the sever-
ance of a joint tenancy, or by a change in the title of coparceners, the
shares will in their inception be equal ; but inequality may be sub-
sequently introduced, by more than one of such equal shares becoming
united in the same hands.
Parceners, or coparceners, are two or more persons who together
constitute a single heir; as the daughters, where there is no heir
male, in respect to common law lands, and the sons, in respect to
gavelkind lands. Litt. sect. 241, 265. As to gavelkind, see more at
large Rob. Gav. 138 et seq. The same rule holds of sisters, aunts,
and other groups of female kinsmen in the same degree, there being
no prior heir male. Litt. sect. 242. But with respect to gavelkind
lands, it is to be observed that, though by the custom of Kent the
rule of coparcenary extends to collateral descents (Rob. Gav. 115), this
is not necessarily true of gavelkind lands situated elsewhere; and
a custom to that effect must be proved as a special custom (Co. Litt.
140a, b). The rule of representation holds good in descents in copar-
cenary ; so that the issue of a person who. if living at the time of the
descent, would have been a parcener, will take in coparcenary along
with the other like persons. But such issue, as respects the amount
of their share, take per stirpes and not per capita. Co. Litt. 164b.
Parceners hold a position intermediate between joint tenants and
tenants in common. Like joint tenants, they have among them only
one single freehold, so long as no partition is made. Like tenants in
common, they have among themselves no jus accrescendi; but upon
the death of one parcener, a descent takes place of her aliquot
share. And one parcener may at common law convey to another by
Ch. 5) ESTATES CREATED 689
an assurance proper to convey a several estate, as a feoffment. Co.
Litt. 164a. But such conveyance might also be made by release.. Co.
Litt. 9b.
A female who, having no sisters, stands in the position of heir, is
of course styled the heir and not a parcener. Litt. sect. 242.
One parcener was, even at the common law, entitled as against
the others to a compulsory partition. Litt. sect. 241. The intrin-
sic union between the shares of parceners is shown by the fact that, on
a partition, nothing was held to pass from one parcener to another, and
therefore a partition between them was no purchase to make an altera-
tion in the course of descent.
Voluntary partition might be made between parceners by mere parol
agreement, or by drawing lots, or by reference to the award of ar-
bitrators agreed upon beforehand by all the parties. Litt. sects. 243,
244, 246.
The Court of Chancery from very early times exercised jurisdic-
tion in respect to partition, when land holden of the King in capite
descends upon parceners, one or more of them being under age.
Fitzh. N. B. 256, F; Ibid. 260, B. This jurisdiction, being incident
to the tenure, and a consequence only of the necessity for livery of
the lands out of the King's hand, was practically abolished by 12 Car.
II, c. 24. Suits for partition were also frequently instituted and en
tertained under the court's equitable jurisdiction, when this had
grown into general recognition; and under this jurisdiction a decree
for partition was regarded as a matter of right, upon proof of title. 2
Com. Dig. 762.
At the common law, upon the death of one parcener, her whole
share descended to her issue.
Tenancy by entireties, occurs, at the common law, when a gift or
conveyance, which, if made to two strangers, would create a joint
tenancy, is made to a husband and wife during the coverture. Litt.
sect. 291, and Lord Coke's comment; 2 Prest. Abst. 39. See Co.
Litt. 326a : "Where the husband and wife are jointly seised to them
and their heires of an estate made during the coverture."
The peculiarities of this kind of tenancy arise out of the identity
which the common law imagines to exist between husband and wife.
Litt. sect. 291. It is equally applicable to estates in fee simple, in
fee tail, for the lives of the parties, and pur autre vie. 2 Prest.
Abst. 39.
It constitutes the most intimate union of ownership known to
the law. A husband, being tenant by entireties of freeholds with
his wife, cannot by any alienation bar her right by survivorship in
any part. Co. Litt. 326a; Doe v. Parratt, 5 T. R. 652, at p. 654.
They are accordingly said to hold per tout et non per my. 2 Bl.
Com. 182. The same rule formerly applied also to forfeiture. Co.
Litt. 187a.
Aig.Prop. — 44
GOO DERivATiTB TITLES (Part 2
Husband and wife might be tenants by entireties, as between them-
selves, of an undivided share; and might, as regards the owners
of the other undivided shares, be either tenants in common or joint
tenants. 3d Ed. by Sweet, pp. 364, 365, 366, 367, 368, 369, 370, 2,7Z,
375, 376, 2>77.
MUSTAIN V. GARDNER.
(Supreme Court of Illinois, 190P>. 203 III. 2S4, G7 N. E. 779.)
BoCGS, J. The appellants are the heirs-at-law of one Ola I. l\Tus-
tain, who departed this life on the Uth day of December, 1900. They
filed a bill in equity in the circuit court of McDonough county against
Sarah A. Gardner and Charles H. Gardner, her husband, for the
partition of lots 3 and 4 in block 5, in Davis' addition to tlie village
of Blandinsville. The title to the said lots was in one John T. JMustain
at the time of his deadi. He left a will containing but two clauses,
which are as follows :
"First — It is my will that my funeral expenses and all of my just
debts be fully paid.
"Second — To my beloved daughter, Ola I., and my beloved wife,
Sarah A. Mustain, jointly, I give, devise and bequeath lots three (3)
and four (4), in block five (5), in Davis' second addition to the late
town (now village) of Blandinsville, to them and to tlieir heirs and
assigns forever."
The chancellor construed the second clause of the will to devise
the premises to the devisees therein named as joint tenants, and held
that upon the death of the said Ola I. Mustain the title thereto inured
as an entirety to the said Sarah A. Gardner, nee Mustain, as the sur-
viving joint tenant, and sustained a demurrer to the bill and dismissed
the case.
The only question presented by this record is whether the devisees
took as joint tenants or as tenants in common. Joint tenancies are
looked upon with disfavor in this State. For this reason section 5 of
the act concerning conveyances (1 Starr. & Cur. Stat. 1896, p. 916,)
was adopted. The section reads as follows: "No estate in joint ten-
ancy in any lands, tenements or hereditaments, shall be held or claimed
under any grant, devise or conveyance whatsoever, heretofore or
hereafter made, other than to executors and trustees, unless the prem-
ises therein mentioned shall expressly be thereby declared to pass, not
in tenancy in common, but in joint tenancy; and every such estate,
other than to executors and trustees, (unless otherwise expressly de-
clared as aforesaid,) shall be deemed to be in tenancy in common." **
The devise does not expressly declare that the estate thereby created
48 "American statutes on the subject are of three classes: (a) Those revers-
ins: the couunon law rule that an estate granted or devised to two or more per-
sons is presumed to create a joint tenancy rather than a tenancy in common;
(b) those destroying survivorship ; (c; those expressly abolishing joint tenancy."
Ch. 5) ESTATES CREATED G91
and devised is an estate in joint tenancy and not an estate in common.
But such a declaration is not indispensable. It is enough if it shall ap-
pear from the phraseology of the devise that the testator understood
the nature and incidents of the two estates, and the language employed
be such as to clearly and explicitly show that the premises are not
to pass in tenancy in common. Slater v. Gruger, 165 111. 329, 46 N.
E. 235. In the absence of an affirmative declaration that the estate
devised is in joint tenancy, an estate in tenancy in common will be
devised, unless it clearly and explicitly appears from the language em-
ployed that the testator understood the nature and incidents of the
different estates and intended to create a joint tenancy. The quality
of survivorship is the distinguishing feature of a joint tenancy, and
where the grant or devise expressly imparts that quality to the estate,
as did the deed under consideration in Slater v. Gruger, supra, it will
be deemed effectual to create a joint tenancy, though tlie negation
indicated by the statute be omitted.
The devise under consideration does not, in terms, negative tlie pre-
sumption which arises from the statute that it was the intention of
the testator to create an estate in tenancy in common, and does not, in
terms, declare it to be the intent to create a joint tenancy ; nor do we
find anything in the language of tlie devise to indicate that the testa-
tor understood the nature and incidents of the different estates, or
either of them, and desired that an estate having the peculiar character-
istic of survivorship should pass by the devise. The word "jointly,"
found in the devise, cannot be accepted as sufficient to show, clearly
and explicitly, that the testator intended that the estate devised should
possess the attribute of survivorship. Tenants in common or coparcen-
ers hold the estate "jointly" until a severance is effected. Davis v.
Smith, 4 Har. (Del.) 68; Billingslea v. Baldwin, 23 Ud. 115. It is
entirely consistent with the use made by the testator of this word
"jointly" to construe it as indicating only an intent to devise vlie estate
to both devisees, and as it cannot be construed to declare, explicitly
and clearly, the intent that the estate, as an entirety, should inure to
the survivor of the devisees, it cannot avail to take the devise out
of the operation of the statute. The statute must be given effect and
the estate devised declared to be an estate in tenancy in common.
The decree is reversed and the cause remanded to the circuit court,
with directions to that court to overrule the demurrer to the bill and
require the defendants to plead, answer or demur thereto. Reversed
and remanded, with directions.*®
Brf'wster on Conveyancing, § 151. The student should consult the statutes
and decisions of his state.
In Ohio the court early refused to recosinize joint tenancies as at common
la^v. Sergeant v. Steinlierger. 2 Ohio, ^505, 15 Am. Dec. 553 (1S2()). In Connec-
ticut the court refused to allow the right of survivorship. Whittlesey v. Ful-
ler, 11 Coini. ,337 (1S36).
4 9 Overheiser v. Lackey, 207 N. Y. 229, 100 N. E. 738, Ann. Cas. 1014C, 229
(1913) : Doran v. Beale. 106 Miss. 305, m South. fi47 (1013), aco. Case v. Owen.
139 Ind. 22, 38 N. E. 395, 47 Am. St. Rep. 253 (1894), contra.
692 DERIVATIVE TITLES (Part 2
THORNBURG v. WIGGINS.
(Supreme Court of Indiana, 1893. 135 Ind. 178, 34 N. E. 999, 22 I* R. A. 42,
41 Am. St. Kep. 422.)'
Daili^y, J. This was an action instituted in the court below, in
two paragraphs, in the first of which appellees allege, in substance,
that on and before December 15, 1884, one Lemuel Wiggins was tlie
owner of a certain tract of real estate therein described, containing
eighty acres; that on said day said Lemuel and his wife, Mary, ex-
ecuted and delivered to the appellees a warranty deed, conveying to
them the fee-simple of said real estate; that at the time of said con-
veyance tlie appellees were, ever since have been, and now are, hus-
band and wife; that said deed conveyed to the appellees the title to
said real estate which they took and accepted, ever since have held,
and now hold by entireties and not otherwise ; that appellees hold their
title to said real estate by said deed of Lemuel Wiggins, and not other-
wise; that on the 24th "day of April, 1877, Isaac R. Howard and
Isaac N. Gaston, who were defendants below, recovered a judgment
in the Randolph Circuit Court for the sum of $403.70 and costs,
against one John T. Burroughs and the appellee, Daniel S. Wiggins,
as partners, doing business under the firm name of Burroughs and
Wiggins ; that on May 12, 1886, said Howard and Gaston caused an
execution to be issued on said judgment and placed in the hands of
the appellant, Thornburg, as sheriff of said county, and directed him
to levy the same on said real estate, and that said sheriff did, on the
25th day of May, 1886, levy said execution on said real estate, or on
the one-half interest in value thereof, taken as the property of said
appellant, Daniel S. Wiggins, to satisfy said writ; tliat pursuant to
the levy tliereof said sheriff proceeded by the direction of said Howard
and Gaston to advertise said real estate for sale under said execution
and levy to make said debt, and did, on the 8th day of June, advertise
the same for sale on the 3d day of July, 1886, and will, on said day,
sell the same, unless restrained and enjoined from so doing by the
court; that said Daniel S. Wiggins has no interest in said premises,
subject to sale thereon; that the appellees hold the title thereto as
tenants by entireties, and not otherwise; that the sale of said tract
on said execution would cast a cloud on the appellee's title," etc.
The second paragraph is the same as the first, in substantial aver-
ments, except that in this paragraph the appellees set out as a part
thereof a copy of the deed under which they claim title to said real
estate as such tenants by entireties.
The granting clause of the deed is as follows : "This indenture wit-
nessed!, that Lemuel Wiggins and Mary Wiggins, his wife of Ran-
dolph county, in the State of Indiana, convey and warrant to Daniel
S. Wiggins and Laura Belle Wiggins, his wife, in joint tenancy," etc.
Appellants separately and severally demurred to each paragraph of
Ch. 5) ESTATES CREATED 693
the complaint, and their demurrers were overruled by the court, to
which the appellants excepted, and, refusing to answer the complaint,
judgment was rendered in favor of appellees on said demurrers.
Appellants appeal, assigning as errors the overruling of said demur-
rers, and urge that the appellees under the deed took as joint ten-
ants, and hence that the husband's interest is subject to levy and sale
upon execution. A joint tenancy is an estate held by two or more
persons jointly, so that during the lives of all they are equally entitled
to tlie enjoyment of the land, or its equivalent in rents and profits,
but, upon the death of one his share vests in the survivor or survivors
until there be but one survivor, when the estate becomes one in sever-
alty in him and descends to his heirs upon his death. It must always
arise by purchase, and can not be created by descent. Such estates may
be created in fee, for life, for years, or even in remainder. But the
estate held by each tenant must be alike. Joint tenancy may be de-
stroyed by anything which destroys the unity of title. Our law aims
to prevent their creation and they can not arise, except by the instru-
ment providing for such tenancy. Griffin v. Lynch, 16 Ind. 396.
The 9th Am. and Eng. Ency. of Law, 850, says: "Husband and
wife are, at common law, one person, so that when realty or personalty
vests in them both equally * * * they take as one person, they
take but one estate as a corporation would take. In the case of realty,
they are seized not per my et per tout, as joint tenants are, but simply
per tout; both are seized of the whole, and each being seized of the
entirety, they are called tenants by the entirety, and the estate is an
estate by entireties. * * * Estates by entireties may be created
by will, by instrument of gift or purchase, and even by inheritance.
Each tenant is seized of the whole, the estate is inseverable — can not
be partitioned ; neither husband nor wife can alone affect the inher-
itance, the survivor's right to the whole."
This tenancy has been spoken of as "that peculiar estate which arises
upon the Conveyance of lands to two persons who are, at the time,
husband and wife, commonly called estates by entirety." As to the
general features of estates by entireties there is little room for con-
troversy, and there is none between counsel. Our statute re-enacts the
common law. Arnold v. Arnold, 30 Ind. 305 ; Davis v. Clark, 26
Ind. 424, 89 Am. Dec. 47L
Strictly speaking, estates by entireties are not joint tenancies. Chan-
dler V. Cheney, 37 Ind. 391 ; Hulett v. Inlow, 57 Ind. 412, 26 Am. Rep.
64; the husband and wife being seized not of moieties, but both seized
of the entirety per tout and not per my. Jones v. Chandler, 40 Ind.
588; Davis v. Clark, supra; Arnold v. Arnold, supra.
It has been said by this court in some of the earlier decisions that
no particular words are necessary. A conveyance which would make
two persons joint tenants will make a husband and wife tenants by the
entirety. It is not even necessary that they be described as such or
their marital relation referred to. Morrison v. Seybold, 92 Ind. 298;
G94 DERIVATIVE TITLES (Part 2
Hadlock v. Gray, 104 Ind. 596, 4 N. E. 167; Dodge v. Kinzy, 101
Ind. 102; Hulett v. Inlow, supra; Chandler v. Cheney, supra.
But the court has said that the general rule may be defeated by the
expression of conditions, limitations and stipulations, in the convey-
ance, which clearly indicate the creation of a different estate. Hadlock
V. Gray, supra; Edwards v. Beall, 75 Ind. 401.
Having its origin in the fiction or common law unity of husband and
wife, the courts of some States have held that married women's acts,
extending tlieir rights, destroyed estates by entirety, but this court
holds otherwise. Carver v. Smith, 90 Ind. 222. 46 Am. Rep. 210.^°
And the greater weight of authority is in its favor. Our decisions
hold that neither, alone, can alienate such estate. Jones v. Chandler,
supra ; Morrison v. Seybold, supra.
There can be no partition. Chandler v. Cheney, supra.
A mortgage executed by the husband alone is void. Jones v. Chan-
dler, supra.
And the same is true of a mortgage executed by both to secure a
debt of the husband. Dodge v. Kinzy, supra.
And the wife can not validate it by agreement with the purchaser
to indemnify in case of loss arising on account of it. State ex rel.,
v. Kennett, 114 Ind. 160, 16 N. E. 173.
A judgment against one of them is no lien upon it. Barren Creek
Ditching Co. v. Beck, 99 Ind. 247; McConnell v. Martin, 52 Ind. 434;
Orthwein v. Thomas (111.) 13 N. E. 564.
Upon the death of one, tlie survivor takes the whole in fee. Arnold
v, Arnold, supra.
The deceased leaves no estate to pay debts. Simpson v. Pearson,
Admr., 31 Ind. 1, 99 Am. Dec. 577.
And, during their joint lives, there can be no sale of any part on
execution against either. Carver v. Smith, supra ; Dodge v. Kinzy,
supra ; Hulett v. Inlow, supra ; Chandler v. Cheney, supra ; Davis v.
Clark, supra; McConnell v. Martin, supra; Cox's Adm'i* v. Wood,
20 Ind. 54.
The statutes extending the rights of married women have no effect
whatever upon estates by entirety. Carver v. Smith, supra.
Such estate is, in no sense, either the husband's or the wife's sep-
arate property. The husband may make a valid conveyance of his
interest to his wife, because it is with her consent. Enyeart v. Kepler,
118 Ind. 34.
5 0 Koulston V. Hall, 66 Ark. 305, 50 S. W. 600, 74 Am. St. Rop. 97 (1S99) ;
Hiles V. Fisher, 144 N. Y. 30G, .30 X. E. .337, .30 Ia R. A. .30.^, 43 Am. St. Rep.
762 (1895) ; BramberiT's Estate, 156 Pa. 628, 27 Atl. 405. 22 I.. R. A. 594. 36 Aiu.
St. Rep. 64 (1893), aec. W'ilson v. Wilson. 43 Minn. .398, 45 N. W. 710 (1890),
dictuui ; Swan v. Walden, 156 Cal. 195, 103 I'ac. 931, 134 Am. St. Rep. 118, 20
Ann. Cas. 194 (1909). dictum, contra.
In some states, irrespective of statute, the courts hare held there was no
tenancy by the entirety. Whittlesev v. Fuller. 11 Conn. .337 (1836); Kerner v.
McDonald, 60 Neb. 663, 84 N. W. 92. 83 Am. St. Rep. 550 (1900); Farmers' &
Merchauts' Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439 (1SS7).
Ch. 5) ESTATES CREATED 095
The rule that husband and wife take, by entireties was enacted in
this territory in 1807, nine years before Indiana was vested with
statehood, and has been repeated in each succeeding revision of our
statutes. It has tlius been the law of real property, with us, for eighty-
six years.
Section 2922, R. S. 1881, provides that "all conveyances and devises
of lands, or of any interest therein, made to two or more persons, ex-
cept as provided in the next following section, shall be construed to
create estates in common and not in joint tenancy, unless it shall be
expressed therein that the grantees or devisees shall hold the same in
joint tenancy and to the survivor of them, or it shall manifestly ap-
pear, from the tenor of the instrument, that it was intended to create
an estate in joint tenancy." ,
Section 2923 provides that the preceding section shall not apply to
conveyances made to husband and wife.*^^
Under a statute of the State of Michigan, similar in all its essential
qualities to our own, the court held that "wh^re lands are conveyed, in
fee, to husband and wife, they do not take as tenants in common."
Fisher v. Provin, 25 Mich. 347.
They take by entireties; whatever would defeat the title of one.
would defeat the title of the other. Manwaring v. Powell, 40 Mich.
371. ^
They hold neither as tenants in common nor as ordinary joint ten-
ants. The survivor takes the whole. During the lives of both, neithei
has an absolute inheritable interest, neither can be said to own an un-
divided half, ^tna Ins. Co. v. Resh, 40 Mich. 241 ; Allen v. Allen,
47 Mich. 74, 10 N. W. 113.
While the rule of entireties was predicated upon a fiction, the legis-
lative intent, in this State, has always been to preserve this estate, and
has continued the peculiar statute for this purpose. Estates by en-
tireties have been preserved as between husband and wife, although
joint tenancies between unmarried persons have been abolished, so as
to provide a mode by which a safe and suitable provision could be
made for married women. Carver v. Smith, supra.
"Where a rule of property has existed for seventy years and is sus-
tained by a strong and uniform line of judicial decisions, there is but
little room for the court to exercise its judgment on the reasons on
which the rule was founded. Such a rule of property will be over-
51 In Marburg v. Cole, 49 Md. 402, 33 Am. Rep. 266 (1S7S), a statute pro-
viding that no instrument of conveyance shall be construed to create a joint
tenancy unless it is e.xpressly provided that the property shall t-e so held, was
not considered to affect the creation of tenancies by the entireties, for they are
not joint tenancies.
But where the statute provided that "conveyances to two or more in their
own right create a tenancy in connnon, unless a contrary interest is expressed"
it was held that a conveyance to two who were husband and wife created a
tenancy in common. Bader v. Dyer, 106 Iowa, 715, 77 N. W. 469, 68 Am. St.
Rep. 332 (1898).
696 DERIVATIVE TITLES (Part 2
ruled only for the most cogent reasons and upon the strongest convic-
tions of its incorrectness. It is evident that the Legislature of 1881
did not intend to repeal the statutes establishing tenancies by entire-
ties. They simply intended to enlarge, in some particulars, the sep-
arate power of the wife, which existed already under the acts of 1852
and the year following. * * * 'j^ ^j^ ^ot abolish estates by en-
tireties as between husband and wife, but provided that when a joint
deed was made to husband and wife, they should hold by entireties,
and not as joint tenants or tenants in common.' " Carver v. Smith,
supra.
In Chandler v. Cheney, supra, the court says : "It was a well settled
rule at common law, that the same form of words, which, if the gran-
tees were unmarried, would have constituted them joint tenants, will,
they being husband and wife, make them tenants by entirety. The rule
has been changed by our. statute above quoted."
The whole trend of authorities, however, is in the direction of pre-
serving such tenancies, where the grantees sustain the relation of hus-
band and wife, unless from the language employed in the deed it is
manifest that a different purpose was intended.
Where a contrary intention is clearly expressed in the deed, a dif-
ferent rule obtains.
"A husband and wife may take real estate as joint tenants or ten-
ants in common, if the instrument creating the title use apt words for
the purpose." 1 Preston on Estates, 132; 2 Blackstone's Com., Shars-
wood's note; 4 Kent's Com. side page 363; 1 Bishop on Married
Women ; Freeman on Co-Tenancy, section 12 ; Fladung v. Rose, 58
Md. 13, 24.
"And in case of devise and conveyances to husband and wife to-
gether, though it has been said that they can take only as tenants by
entireties, the prevailing rule is that, if the instrument expressly so
provides, they may take as joint tenants or tenants in common." Stew-
art on Husband and Wife, sections 307-310;. Tiedeman on Real Prop-
erty, section 244.
"And as by common law it was competent to make husband and
wife tenants in common by proper words in the deed or devise," etc.
Hoffman v. Stigers, 28 Iowa, 310; Brown v. Brown, 133 Ind. 476,
32 N. E. 1128, 33 N. E. 615.
So it seems that husband and wife may, by express words, be made
tenants in common by gift to them during coverture." McDermott v.
French, 15 N. J. Eq. 80.
In Hadlock v. Gray, 104 Ind. 596, 599, 4 N. E. 167, 168, a convey-
ance had been made to Isaac Cannon and Mary Cannon, who were
husband and wife, during their natural lives, and the court says :
"The language employed in the deed under examination plainly de-
clares that Isaac and Mary Cannon are not to take as tenants by en-
tirety. This result would follow from the provisions destroying the
Ch. 5) ESTATES CREATED 697
survivorship, for this is the grand and essential characteristic of such
a tenancy. * * * The whqle force of the language employed is
opposed to the theory that the deed creates an estate in fee in the hus-
band and wife."
The court further says : "It is true tliat where real property is con-
veyed to husband and wife jointly and there are no limiting words
in the deed, they will take the estate as tenants in entirety. * * *
But while the general rule is as we have stated it, there may be con-
ditions, limitations, and stipulations in the deed conveying the prop-
erty, which will defeat the operation of the rule. The denial of this
proposition involves the affirmation of tlie proposition that a grantor
is powerless to limit or define the estate which he grants, and this would
conflict with the fundamental principle that a grantor may for him-
self, determine what estate he will grant. To deny this right would
be to deny to parties tlie right to make their own contracts. It seems
quite clear, upon principle, that a grantor and his grantees may limit
and define the estate granted by the one and accepted by the other,
although the grantees be husband and wife."
The court then adopts the language of Washburn, supra, and Tiede-
man, supra.
In Edwards v. Beall, supra, the court hold that when lands are
granted husband and wife, as tenants in common, they will hold by
moieties, as other distinct and individual persons would do.
If, as contended by appellees, the rule prevail that the same words
which, if the grantees were unmarried, would have constituted them
joint tenants, will, they being husband and wife, make them tenants
by entireties, then it would result as a logical conclusion that husband
and wife cannot be joint tenants. Because, by this rule, words, how-
ever apt or appropriate to create a joint tenancy, would, in a convey-
ance to husband and wife, result in an estate by entireties — joint ten-
ancy would be superseded or put in abeyance by the estate created
by law — tenancy by entirety, r
The result of such reasoning would be to destroy the contractual
power of the parties where this relationship between the grantees is
shown to exist. Any other process of reasoning would carry the rule
too far, and we must hold it modified to the extent here indicated.
Husband and wife, notwithstanding tenancies by entirety exist as they
did under the common law, may take and hold lands for life, in joint
tenancy, or in common, if appropriate language be expressed in the
deed or will creating it, and we know of no more apt terms to create
a joint tenancy in the grantees in this estate than the expression "con-
vey and warrant to Daniel S. Wiggins and Laura Bejle Wiggins in
joint tenancy."
These words appear in the granting clause of the deed conveying
the land in question, and the estate accepted and held by the grantees
is thereby limited, and they hold not by entireties but in joint ten-
698 DERIVATIVE TITLES (Part 2
ancy. A joint tenant's interest in property is subject to execution.
Freeman on Ex. 125.
Judgment reversed, with instructions to the circuit court to sustain
tlie demurrer to each paragraph of the complaint.^^
PEGG V. PEGG.
(Supreme Court of Michigan, 1011. 1G5 INIich. 228, 130 N. W. 617, 33 L. It. A.
[N. S.] 1G6, Ann. Cas. 1912C, 925.)
Bird, J. The bill of complaint in this cause calls for the construc-
tion of a deed made by Davis Pegg to Mary C. Pegg, the complain-
ant. Davis Pegg was the husband of complainant, and in the year
1897 he conveyed to her, by warranty deed in the usual form, an un-
divided one-half interest in and to the following described premises :
■''The west half (W. i/^) of the southeast quarter (S. E. 14) of sec-
tion three (3), and the west half (W. 1/0) of the northeast quarter (N.
E. ^/4) of section ten (10), in Grand Traverse county."
In the deed, between the granting and the habendum clauses, is in-
serted the following clause :
"The objection and purpose of this deed is to convey to said sec-
ond party such an interest in said land that the parties hereto will
have an estate in entirety, and that the same shall survive and vest in
the survivor as a full and complete estate."
The deed was recorded in 1901, and in 1902 Davis Pegg died.
Complainant is in possession of the premises, and claims title thereto
on the theory that she and her husband owned the premises as ten-
ants by entirety, and, she being the survivor, she takes the whole. It
is claimed by the defendants, who are brothers and children of de-
ceased brothers of Davis Pegg, that Davis Pegg and complainant were
the owners of the premises as tenants in common, and that upon his
decease an undivided one-half of tlte premises descended to them.
The defendants demurred to the bill, and the trial court made an or-
der overruling it, arid they have appealed from that order.
Davis Pegg conveyed an undivided one-half interest in said prem-
ises to complainant. He retained an undivided one-half interest there-
in. After this was done they had distinct titles, and were therefore
tenants in common. The title remained that way until Davis Pegg
died. The question is, then: What became of his undivided half?
Ordinarily it would descend to his heirs, the defendants ; and it did
5 2 See Hetzel v. Lincoln, 216 Pa. 60, 64 Atl. 866 (1906), Tvhere the convey-
ance was to a man and woman, by name, "jointly," the grantees being in fact
husband and wife.
In iMoriis v. McCarty, 158 Mass. 11, 32 N. E. 938 (1S93), lands were conveyed
to A. and B., wife of A., "as tenants by the entirety aud not as tenants in com-
mon." A. and B. were not in fact husband and wife. The case arose upon a
writ of entry by the heirs of B. against A. to recover an undivided one-half of
the premises.
Ch. 5) ESTATES CREATED 699
SO descend, unless the clause wliich was inserted carried it in a dif-
ferent direction. Complainant contends that it did not so descend,
because she and her husband owned the premises as tenants by the
entirety, and were made such by said deed, and that now, as survivor
of her husband, she is entitled to the whole of said premises.
In order to own the whole, as survivor, she would have to be seised
of the whole before his death. Whatever vested in her as survivor
must have been owned by both her and her husband before his death,
and each must have been seised of the whole. As neither one was
seised of the whole, but both held by distinct titles, they could not have
been tenants by the entirety. Neither were they tenants by entirety
of the undivided half conveyed to her, because Davis Pegg reserved
no interest in the undivided half he conveyed to complainant. The
deed as a. whole cannot be construed as creating a tenancy by entirety,
because the law was not followed in creating it. At the common law,
tlie unities of time, title, interest, and possession had to be observed
in creating such an estate. Blackstone's Commentaries, book 2, p.
182; 1 Washburn on Real Property (6th Ed.) p. 529. See suggestion
in Bassett v. Budlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. Rep.
404.
The common law has remained unchanged in this respect and is
now in force. In the attempt to create an estate by entirety, in the
case under consideration, neither the unity of time nor title was ob-
served. The estate was not created by one and the same act, neither did
it. vest in them at one and the same time. If the clause inserted can be
said to be a part of the habendum of the deed, as is argued, then that
part of the habendum must fail, on the ground that it seeks to en-
large an estate in common, which is granted, into an estate of entirety,
without complying with the rules of law for the creation of such an
estate. By reason of these considerations,- the deed must be read as
though the clause had been omitted. The deed created a tenancy in
common between complainant and her husband, and upon his decease
his undivided one-half of the premises descended to his heirs.
The order of the trial court, overruling defendants' demurrer, will
be vacated and set aside, and an order entered sustaining the demur-
rer.
OstrandBr, C. J., and Hooker, Moore, and McAlvay, JJ., con-
curred in the result."^'
33 William Wright, the owripr of prpmises, executed a deed thereof contain-
ing the following: "Between William Wriglit, of the township of North Fhiins
in Ionia connty and state of Michigan, of the first part, and William Wright
and Elizabeth Wright [his wife] jointly, the survivor to have full ownership,
of the same place, of the second part." William died, and later Elizabeth.
"VMiat were the rights of the heirs of each? Wright v. Knaiip, l.s;{ Mich. 656, 150
N. W. 315 (101.5). See. also, Michigan State Hank of l::aton Rapids v. Kern
dMich.) 155 N. W. 502 (1015) ; lu re Klatzl's Estate (N. Y.) 110 N. E. ISl (1915/.
700 DERIVATIVE TITLES (Part 2
VAN HORNE v. FONDA.
(Court of Chancery of New York, 1821. 5 Johns. Ch. 388.)
The ChanceIllor.''* The bill seeks to call the defendant to an ac-
count, as executor of the estate of Jellis Fonda, deceased, and, also,
as executor of the estate of Henry V. Fonda, deceased, and, generally,
to make him account as trustee, acting- for and on behalf of the plain-
tiffs, in the management and disposition of the estate, real and per-
sonal, of Henry V. Fonda.
The defendant admits himself to have been the acting executor of
the estate of his father, Jellis F., and is ready to account for the per-
sonal estate, and the rents and profits of the real estate which he may
have received. The great contest in the case is as to the character in
which he acted, and the responsibilities which he has incurred, in re-
spect to the estate, real and personal, of his brother Henry V.
p * * *
2. The bill charges that the defendant received, in March, 1799,
from the government of this state $6,500, as a compensation for the
extinguishment of the right derived from Jellis F. to 2,000 acres of
land in the Royal Grant, and that the plaintiffs are entitled to a moiety
of that sum, with interest. The defendant adm.its that the sum re-
ceived was $6,250, but he claims title to the whole of it ; and contends,
in the first place, that his father, Jellis F., was only entitled, in his life-
time, to 1,000 acres, inasmuch as Brant Johnson, who sold him the
2,000 acres, owned only a moiety of it, and that the other moiety be-
longed to William Johnson, a brother of B. Johnson. He contends, in
the second place, that his brother Henry, by his deed of the 3d of
May, 1794, conveyed to him in fee, and absolutely, without any reser-
vation or trust, his* interest in the 1,000 acres, for the consideration
of £100., and which consideration was paid by a deed from the defend-
ant to Henry, of the date of the 24th of April, 1794, of two lots in
the Royal Grant, and containing the like consideration.
It is to be observed, as we proceed, that the defendant and his broth-
er Henry were joint and equal residuary devisees of their father, JelHs
Fonda.
There is reason to believe that the deed of the 24th of April, was
not given as the consideration of the deed of the 3d of May following.
The want of concurrence in dates raises that presumption, especially
as that want of concurrence is left without any explanation. In the
next place, it is in proof, by the testimony of Simon Veeder, who
took the acknowledgment of the deed of the 3d of May, and delivered
the deed over to the defendant on the same day^ that Henry observed,
at the time, that the deed to Jellis F., his father, was deficient. The
certificate of acknowledgment bears date the 31st day of May, 1794, but
6* The statement of facts is omitted. Portions of the opinion also are omit-
ted.
Ch. 5) ESTATES CREATED 701
the certificate of acknowledgment of the prior deed of the 24th of
April, bears date the 2d day of August, 1794, and both the acknowl-
edgments were made before the same judge. The defendant was pres-
ent when the acknowledgment of the deed of the 3d of May was taken ;
and when the deed was handed to him, he observed that the considera-
tion mentioned in tlie deed was not the value of the property, but he
took the deed in order to save something for the children of his brother,
as his brother was pretty much involved in trouble.
These observations of tlie parties, made at the time of the execution
of the deed, are evidence that the deed was not taken as an absolute
purchase of the right of Henry to the 1,000 acres; and they are evi-
dence that it was taken in trust, and, probably, with a view to facihtate
a compromise with the state, according to the charge in the bill. The
testimony of Evert Yates and James Lansing shows that the deed of
the 3d of May was not considered by the defendant as an absolute
purchase of the right of Henry, and paid for, by the prior deed of the
24tli of April. When the executors of Henry met, soon after his
death, the defendant told John Fonda, who asserted Henry's interest
in the money received upon the compromise, that Henry had no such
interest, for his father's title was incomplete, and he had since pur-
chased up the Indian title of William Johnson, and considered it a spec-
ulation of his own. Here was no suggestion that he had actually
bought in the right of Henry, a reply that would naturally have sug-
gested itself, if such had been the fact.
It is also admitted, by the answer, that the title of Jellis F. to the
2,000 acres, had been conveyed by him, in his lifetime, to Abraham
G. Lansing; and that as the title proved partly defective, the defendant
and his brother Henry, as the representatives of their father, had
conveyed to Lansing, in 1793, other lands to the amount of 2,650
acres, derived to them from their father, in lieu of the 2,000 acres ;
and that Lansing had then released his right to the 2,000 acres, to the
defendant and Henry. The 2,000 acres were thus received back into
the funds of the estate, as a substitute for the 2,650 acres which had
been transferred ; and tlie two brothers became equally entitled, as
tenants in common and residuary devisees of Jellis F., to all the right
and interest, in law and equity, of their ancestor to the 2,000 acres.
The defendant, afterwards, on the 29th of May, 1795, purchased of
Moses Johnson, the heir of William Johnson, for $600, his right and
title to 1,000 acres, being part and parcel of 2,000 acres originally pur-
chased by Jellis F. from Brant Johnson. The question, then, is, wheth-
er the defendant did not make that purchase for the joint benefit of
himself and his brother Henry. If the deed of the 3d May, 1794, was
given to the defendant, in trust for the purpose of facilitating the ac-
quisition of a good title, then the purchase from Moses Johnson was
in trust for their joint benefit. The defendant has not interposed and
pleaded the statute of frauds against setting up a trust by parol, in
opposition to the deed of the 3d of May, 1794; and we are left at lib-
702 DERIVATIVE TITLES (Pait 2
erty to judge of the truth and effect of the parol proof. I am strongly
inclined to believe, that the deed was taken in trust, and that the sub-
sequent purchase from iMoses Johnson was made in trust, and that
Henry was equally interested in the settlement made with the state,
in March, 1799; and that his representatives are entitled to a moiety
of the payment received from the state, (which payment amounted to
$6,500,) after allowing to the defendant, the payment he made to
IMoses J., and a just indemnity for his expenses in procuring the satis-
faction from the state.
In some cases, says Littleton, (sec. 307,) a release to one joint tenant
shall aid the joint tenant to whom it was not made, as well as him to
whom it was made. I will not say, however, that one tenant in com-
mon may not, in any case, purchase in an outstanding title for his ex-
clusive benefit. But when two devisees are in possession, under an
imperfect title, derived from their common ancestor, there would seem,
naturally and equitably, to arise an obligation between them, resulting
from their joint claim and community of interests, that one of them
should not affect the claim, to the prejudice of the other. It is like
an expense laid out upon a common subject, by one of the owners, in
which case all are entitled to the common benefit, on bearing a due
proportion of the expense. It is not consistent with good faith, nor
with the duty which the connection of the parties, as claimants of a
common subject, created, that one of them should be able, without the
consent of the other, to buy in an outstanding title, and appropriate
the whole subject to himself, and thus undermine and oust his com-
panion. It would be repugnant to a sense of refined and accurate jus-
tice. It would be immoral, because it would be against the reciprocal
obligation to do nothing to the prejudice of each other's equal claim,
which the relationship of the parties, as joint devisees, created. Com-
munity of interest produces a community of duty, and there is no real
difference, on the ground of policy and justice, whether one co-tenant
buys up an outstanding incumbrance, or an adverse title, to disseise
and expel his co-tenant. It cannot be tolerated, when applied to a
common subject, in which the parties had equal concern, and which
created a mutual obligation, to deal candidly and benevolently with
each other, and to cause no harm to their joint interest. I have no
doubt, therefore, that in a case like the present, and assuming what
the evidence warrants us to assume, that the deed of May, 1794, was
taken by the defendant for trust purposes, that the purchase from
Moses Johnson ought, in equity, to enure for the common benefit, sub-
ject to an equal contribution to the expense."" * * *
55 See Matthews v. Bliss, 22 Pick. (Mass.) 48 (1839) ; Kennedy v, De Trafford,
[1897J A. C. ISO, where under a power of sale in a mortgage the mortgaged
premises were sold to one of the two tenants in common who had mortgaged
the premises. Lord Hers&hell said: "But then it is said that the mere fact
that Kennedy was co-owner with Dodson of this property creates such a rela-
tionship between them that the one co-owner could not take this property and
hold it for himself, but that the other co-owner is entitled on equitable grounds
Ch. 5} ' ESTATES CREATED 703
ELSTON V. PIGGOTT.
(Supreme Court of Indiana, 1883. 94 Ind. 14.)
Elliott, J.^® * * * 'pj^g question which next demands con-
sideration may be tlius stated : Is one who brings a partition suit,
holding, at the time, a deed from an assignee in bankruptcy conveying
two-thirds of the land, and holding, also, a certificate issued upon a
sale on a decree of foreclosure embracing all the land, estopped by a
decree rendered in the partition suit, awarding to him two-thirds of the
land and to the defendant one-third from asserting the title subse-
quently acquired by a deed excepted pursuant to the certificate of sale.
The right conferred on the holder of the certificate of sale was not
a title to the land ; it merely invested him with a lien on the land, which
might ripen into a title by the failure of the debtors to redeem the land
within tlie time prescribed by law. State ex rel. v. Sherill, 34 Ind. ^7 ;
Davis V. Langsdale, 41 Ind. 399; Hasselman v. Lowe, 70 Ind. 414;
Felton V. Smith, 84 Ind. 485 ; Wilhite v. Hamrick, 92 Ind. 594. When
the partition suit was commenced, the plaintiff in that suit was not the
owner of all the land, but was the owner of two-thirds, which was
properly set oflf to him. The title which he acquired to all the land
was a subsequent one.
It is settled that a decree in partition operates only upon the title
held at the time the suit was instituted, and has, ordinarily, no effect
upon a title subsequently acquired. Miller v. Noble, 86 Ind. ^27 ; Crane
V. Kimmer, 77 Ind. 215; Avery v. Akins, 74 Ind. 283, see page 290;
Arnold v. Cutterbaugh, 92 Ind. 403.
A decree in partition does not create title ; it merely severs possession
and awards to each tenant his share in severalty. Kenney v. Phillipy,
91 Ind. 511; Miller v. Noble, supra ; Utterback v. Terhune, 75 Ind. 363 ;
Teter v. Clayton, 71 Ind. 237; Avery v. Akins, supra.
It results from these settled rules that the decree in partition. does
not estop the appellant from asserting tlie title acquired under the deed
issued on the decree of foreclosure.
The title which a plaintiff is ordinarily required to set forth in the
to have it declared that the benefit of one linlf of that purchase should be his.
My Lords, DO authority has been cited in support of such a proposition. * * *
Tlie only authority, if it can be so called, which has been cited is the case be-
fore Chancellor Ivent [Van Home v. Fonda. 5 Johns. Ch. (N. Y.) .388 (1821)]:
but he connuences his ol'servatiotis by saying tliat he is not soinp to lay down
a general rule which would be applicable to such a case as this. lie deals with
tbe jiarticular case, the circunisrances of which were peculiar and of iuiinense
complication, and he certainly does not lay down any rule or doctrine of law
which supports tbe argument which has been addressed to your Lordships. It
is not necessary to enter into the details of that c:ise. It is enough to say that,
even if it is to be taken as enunciating a rule of law which would be as ap-
plicable in this country as in Amenca, it does not enunciate any rule of law
which would be sufficient for the api)ellant in this case."
Cf. Holmes v. Holmes, 129 Mich. 412, 89 N. \V. 47, 95 Am. St. Rep. 444 (1902).
5 6 Parts of the opinion are omitted.
704 DERIVATIVE TITLES (Part 2
complaint in partition is such as will enable him to secure the decree
of partition demanded in his complaint. It is not incumbent upon him
to make an issue settling all questions of title, or all rights of lien
holders, although it is proper for him to do so. If the appellees had
desired to settle all questions in the partition suit, they might, doubt-
less, have done so, by tendering proper issues ; but they chose to go to
trial on the single question of the right of Elston to a decree of par-
tition, awarding him two-thirds of the land, and tendered no issue
as to his right as the holder of the certificate, issued upon the sale made
on the decree of foreclosure. Nothing more was embraced in the is-
sues in the partition suit than Elston's right to the two-thirds of the
land, and this was all that was adjudicated. It was, indeed, all that
could have been properly adjudicated under the issues, for only a
claim to two-tliirds of the land was then asserted.
The application of these legal principles secures a just result in
the present instance. Mrs. Piggott had joined her husband in execut-
ing the mortgage sued on in the United States court, was a party to
the suit to foreclose that mortgage, and was, of course, chargeable
with knowledge that the decree covered all the land, that it was un-
satisfied when the partition suit was brought, and that the time for
redemption had not then expired. She could not, therefore, have any
reason for inferring that Elston was asserting a title founded on the
decree, since that would have been a title to the whole, and not merely
two-thirds, of the land. She had full knowledge of the extent of the
title he asserted, and must have known that it embraced only her hus-
band's interest, and was founded on the sale made by the assignee
of her husband, under the order of the Federal court in the bankruptcy
proceedings.
The question which is next encountered may be thus stated : Does
the fact that the appellant, at the time he acquired the certificate of
sale issued on the decree of foreclosure rendered on the mortgage
executed by Albert Piggott, the husband, and Martha J. Piggott, the
wife, held a conveyance for two-thirds of the land from the assignee
in bankruptcy of Albert, the husband, executed after the sale on the
decree, preclude him, the appellant, from asserting against Martha
J., the wife, the title founded on the deed executed upon the fore-
closure sale?
Appellee's counsel contend that the appellant is precluded from as-
serting title under the foreclosure sale, because he was, as they affirm,
a tenant in common with Martha J. Piggott, and could not, therefore,
buy in an outstanding lien and build a title on it. The general rule
unquestionably is, that one tenant in common can not, by purchasing
an outstanding lien, acquire a title which will evict his co-tenant. This
rule, however, is subject to many exceptions and obtains only where
the relation of tenants in common exists in strictness, and where the
relation is such as to require mutual trust and confidence. It is im-
possible to perceive how one who buys at a sale made by an assignee
Ch. 5) ESTATES CREATED 705
in bankruptcy of the husband's interest becomes charged in such a case
as that embraced in our general question, with duties of trust and confi-
dence to the wife of the bankrupt. The title is not a common one ;
the interests are not reciprocal, and there is no fiduciary relationship
created. The title is secured by virtue of a judicial sale, and not by
the same instrument, nor from the same source, as that from which
the wife's claim is derived. There is, we repeat, nothing in such a
case to create relations of trust and confidence, and, therefore, the
reason of the rule applicable to ordinary cases fails, and the time-hon-
ored doctrine is, that where the reason of the rule ceases so does the
rule itself. An examination of the cases will show that we are right
in stating that the reason of the rule is that the relationship is one im-
posing trust and confidence and requiring the tenants not to assume
positions of hostility. Mr. Freeman says :
"If their interests accrue at different times, and under different in-
struments, and neither has superior means of information respecting*
the state of the title, then either, unless he employs his cotenancy to
secure an advantage, may acquire and assert a superior outstanding
title, especially where the cotenants are not in joint possession of the
premises." Freeman, Cotenancy & Part. § 155; Roberts v. Thorn, 25
Tex. 728, 78 Am. Dec. 552 ; Rippetoe v. Dwyer, 49 Tex. 498 ; King v.
Rowan, 10 Heisk. (Tenn.) 675 ; Matthews v. Bliss, 22 Pick. (Mass.) 48;.
Frentz v. Klotsch, 28 Wis. 312; Reinboth v. Zerbe, etc., Co., 29 Pa.
139; Brittin v. Handy, 20 Ark. 381, 7Z Am. Dec. 497.
It is not to be forgotten that the wife was bound both by the decree
and the mortgage, and the case is, therefore, altogether different from
one where the lien is created by the act of the law, as for taxes, or
where the encumbrance was created by a former owner through whom
both parties claim title. In such cases the burden is a common one.
In the present case the burden rests alone on one of the tenants.
This is so by virtue of her own act creating it, and by force of the
decree directing the execution of the lien by sale of the property.
Here, then, we find an essential element not found in cases to which
the general rule is ordinarily applied.
The wife, as against the mortgagee, owned a mere equity of redemp-
tion. Kissel v. Eaton, 64 Ind. 248; Haggerty v. Byrne, 75 Ind. 499;
Eiceman v. Finch, 79 Ind. 511; Baker v. McCune, 82 Ind. 585; Ver-
million V. Nelson, 87 Ind. 194. This equity of redemption had been
barred by the decree of foreclosure, so that nothing remained except
the statutory right of redemption. Eiceman v. Finch, supra. This
right was one to be exercised pursuant to law, and the failure to ex-
ercise it made the title absolute upon the execution of the sheriff's
deed. Something more than a mere mortgage lien was, therefore,
bought by the appellant, and he did not buy it by virtue of his position
as a cotenant, nor did his cotenancy give him superior means of knowl-
edge. No one could have had greater knowledge than Mrs. Piggott,
Aig.Peop. — 45
706 DERIVATIVE TITLES (Part 2
by whom the mortgage was executed, and against whom the decree of
foreclosure was rendered. Here, again, emerges an element pushing
the case outside of the general rule.
There was, as already intimated, no obligation resting on the ap-
pellant to discharge the lien, for that obligation rested on the mortga-
gors. This obligation did not arise from the relationship of the par-
ties, because the burden was not a common one, nor was there trust
or confidence. There was, therefore, nothing which, in law or equity,
imposed a duty on the appellant to pay off the mortgage and then sue
for contribution. As no duty rested on him, and as he did not avail
himself of knowledge or opportunity supplied by his cotenancy, he was
as free to buy as anybody else. The failure to redeem ensured the
loss of the property to Mrs. Piggott, and whether the judgment plain-
tiff or his assignee, the appellant, gets the title, can really make no dif-
ference to her, for the loss is in either case precisely the same. Her
Opportunities for knowledge and for action were just the same against
the appellant as against his assignor; she had just as much right to re-
deem from the one as from the other.
We are well satisfied that this case is not within the general rule
forbidding one tenant in common from buying an outstanding lien and
building title upon it, and that the case assumed in our question is the
one made by the record. ^^ * * *
HURLEY v. HURLEY.
(Supreme Judicial Court of Massncliusetts, 1SS9. 148 Mass. 444, 19 N. E. 545,
2 L. R. A. 172.)
Holmes, J. This is a petition for partition. In 1870 the petitioner,
Thomas Hurley, inherited one undivided half of the premises from
his mother, subject to his father's tenancy by the curtesy. On No-
vember 14, 1879, the father died, and the other half, which had be-
longed to him under a separate conveyance, descended to the peti-
tioner and the respondents, two sons of the father by a later wife.
On September 8, 1879, before the father's death, the premises were
sold for taxes to one Capen. On December 6, 1880, the respondent
Daniel T. Hurley paid Capen the amount necessary to redeem the
premises, and took a release from him. At that time the respond-
5 7 Bracken v. Cooper, SO 111. 221 (1875). contra.
In Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251 (1S42), one tenant in com-
mon purchased the land from the county in which title had been vested by
reason of failure to pay taxes, after the time allowed for redemption had gone
by. The tenant in common so purchasing was held entitled to said land as
again.st another tenant in common who offered to contribute to the redemption
cost. But compare Oliver v. Hedderly, 32 Minn. 455, 21 N. W. 478 (1SS4),
where the cotenant who purchased from the purchaser at foreclosure sale, after
the time for redemption had gone by, had made arrangements for such trans-
action with the mortga:;ee before the foreclosure.
Ch. 5) ESTATES CREATED • 707
ent's mother was in possession. In the spring of 1882, Daniel T.
Hurley took possession; the petitioner has never ottered to repaj
any part of the sum paid to Capen ; and the question raised by the
exceptions is whether Capen's deed to him is a bar to this petition.
There has been some uncertainty as to the extent and grounds
of the principle that a purchase of a tax title by one tenant in com-
mon inures for the benefit of all. Frentz v. Klotsch, 28 Wis. 312,,
318; Insurance Co. v. Bulte, 45 Mich. 113, 120, 7 N. W. 707; Roth-
well V. Dewees, 2 Black, 613, 618, 17 L. Ed. 309. Some cases dwell
principally on the existence of a fiduciary relation, (Lloyd v. Lynch, 28
Pa. 419, 424, 70 Am. Dec. 137; Van Home v. Fonda, 5 Johns. Ch.
(N. Y.) 388, 407; Flinn v. McKinley, 44 Iowa, 68; Weare v. Van
Meter, 42 Iowa, 128, 20 Am. Rep. 616; Venable v. Beauchamp, 3
Dana (Ky.) 321, 324, 28 Am. Dec. 74;) while others put the proposition
in the narrower form, that a tenant in common cannot take advantage
of a title created by his own default as against his co-tenant, (Cho-
teau V. Jones, 11 Ih. 300, 322, 50 Am. Dec. 460; Voris v. Thomas,
12 111. 442; Dubois v. Campau, 24 Mich. 360, 368; Lacey v. Davis,
4 Mich. 140, 152, 66 Am. Dec. 524; Downer v. Smith, 38 Vt. 464,
468. See Piatt v. St. Clair, 6 Ohio, 227 ; Bernal v. Lynch, 36 Cal.
135, 146; Carithers v. Weaver, 7 Kan. 110.) Undoubtedly, as is said
by Dixon, C. ]., dissenting, in Smith v. Lewis, 20 Wis. 350, 356, it will
be found in most of the cases that the party setting up the tax title
was under an obligation to pay the taxes.
It has been held that a tenant in common could purchase a tax title
from a stranger after the period of redemption had expired, and hold
it for his own benefit, (Reinboth v. Improvement Co., 29 Pa. St.
139 ; Keele v. Cunningham, 2 Heisk. (Tenn.) 288 ; W^atkins v. Eaton,
30 Me. 529, 536, 50 Am. Dec. 637; Coleman v. Coleman, 3 Dana (Ky.)
398, 403, 28 Am. Dec. 86;) and in diis commonwealth it is decided
that he may take an assignment of a paramount mortgage, and rely
on it to defeat a petition for partition, (Blodgett v. Hildreth, 8 AUen,
186.) On the other hand, it has been held that a purchase of a tax
certificate before the period of redemption has expired, by one wha
is not a tenant in common at the time, will inure to the benefit of the
other tenants in common, if he becomes such before he gets the tax
deed. Flinn v. McKinley, 44 Iowa, 68; Tice v. Derby, 59 Iowa, 312,
314, 13 N. W. 301. Compare Sneed v. Atherton, 6 Dana, 276, 279,
32 Am. Dec. 70.
There are strong grounds for saying that there were no special
fiduciary relations between the petitioner and the defendant in this case.
Their titles were in part derived from different sources. Frentz v.
Klotsch, 28 Wis. 312, 318. According to the bill of exceptions, the
defendant was not in possession when he took the tax deed, (Wright v.
Sperry, 21 Wis. 331, 337,) and he had no interest in the premises when
the tax was assessed, or until after they were sold, while the peti-
tioner owned or>e-half, subject to his father's tenancy by the cur-
708 • DERIVATIVE TITLES (Part 2
tesy. It is at least consistent with the facts stated to assume that
the petitioner was not relying on the respondent in any way. See
j\Iatthews v. Bliss, 22 Pick. 48, 52. Again, it would be pressing the
notion of default very far to say that, although the defendant was
a stranger to the estate at the time of the sale, yet, since he might
have redeemed, he could not found a title on his failure to do so. But
it is unnecessary to decide what would have been the effect if the de-
fendant had taken a conveyance of the tax title to a third person, and
had given the transaction the form of an assignment ; for, whether the
defendant had a right to take an assignment or not, he certainly had
a, right to redeem and pay off the incumbrance. Pub. St. c. 12, § 49.
See Coughlin v. Gray, 131 Mass. 56, 58; Langley v. Chapin, 134
Mass. 82; Coxe v. Wolcott, 27 Pa. 154. Which of the two transac-
tions took place may be a question for the jury, under some circum-
stances. Coxe V. Wolcott, ubi supra. But, as was said in Watkins v.
Eaton, 30 Me. 529, 534, 50 Am. Dec. 637, a case very similar in
principle to the one at bar, "when a part owner obtains a conveyance
of his own share, and the share or shares of co-tenants, by payment
of the precise amount required to redeem them, he must be presumed,
in the absence of all rebutting testimony, to have done so in the exercise
of a legal right; and in such case the whole so conveyed will be re-
deemed from the sale." See Sherwin v. Bank, 137 Mass. 444, 449.
It is plain, on the face of the deed accepted by the defendant Daniel T.
Hurley, that he redeemed the premises in the exerciseof his legal right
so to do ; and it follows that the lien of the tax sale was discharged,
in such a sense that it could not ripen into a legal title as against his
co-tenants, except upon their refusal or neglect to pay their share.
Watkins v, Eaton and Weare v. Van Meter, ubi supra.
Then the question arises whether, as the respondent has paid the tax,
and has not taken the steps to assert and preserve his lien prescribed
by Pub. St. c. 12, §§ 63, 64, 65, his rights are not gone altogether. But
we think that it would be too harsh a construction of those sections
to hold that they apply to a redemption of the premises after a sale,
when the tenant takes a deed which is put on record. We interpret
the statute as intended to apply to a payment in the first instance,
when, unless a certificate is filed as provided, there will be noth-
ing in the registry to show the tenant's claim, and when no other
statutory mode of divesting the title of his co-tenants has been set in
motion.
We are of opinion that, although the tax is legally paid, as we have
said, yet the respondent Daniel Hurley is entitled to have the lien
kept alive for his benefit until the petitioner shall have paid his share.
Until that time, the petitioner has no right to the possession of any
part of the land, in equity or at law. Watkins v. Eaton, 30 Me. 529,
535, 50 Am. Dec. 637. See McCabe v. Swap, 14 Allen, 188, 191 ; Gib-
son V. Crehore, 3 Pick. 475, 5 Pick. 146, 150; Popkin v. Bumstead, 8
Mass. 491, 5 Am. Dec. 113. Therefore the petition was rightly dis-
Ch. 5) ESTATES CREATED 709
missed. Pub. St. c. 178, § 3 ; Blodgett v. Hildreth, ubi supra ; Bradley
V. Fuller, 23 Pick. 1, 8; Hunnewell v. Taylor, 6 Cush. 472; Coughlin
V. Gray, 131 Mass. 57; Husband v. Aldrich, 135 Mass. 317, 318.
Exceptions overruled.
JACKSON V. BAIRD.
(Supreme Court of North CaroUna, 1908. 148 N. C. 29, 61 S. E. 632, 19 L. R. A.
[N. S.] .591.)
Brown, J. It is admitted that Robert Baird was the owner of the
land in controversy, and that he executed a deed in trust to secure
$150 to S. H. Reid, trustee. After Robert Baird's death the land was
sold by the trustee, who conveyed it to Mrs. Julia D. Shuford for a
consideration of $286 by deed dated May 26, 1898. George Shuford
and his wife, the aforesaid Julia, conveyed the land to defendant
Laura Baird, wife of defendant John Baird, by deed dated May 28,
1898. The trustee's deed to Mrs. Shuford, although dated May 26th,
recites that the sale took place on May 28th. It appears that Julia
Baird joined in the execution of the note and deed in trust along with
Robert Baird. The plaintiffs allege that the debt was contracted for
■John Baird's benefit. The defendants deny this, and aver that John
Baird signed as surety for his father, Robert Baird. The evidence of-
fered upon this point is very meager and tends to prove that the money
borrowed was used in building a house upon the tract of land in con-
troversy, which belonged to Robert Baird.
This case was presented to this court upon the theory that there is
evidence that Shuford bought in the property in trust for Baird, and
that consequently, as Baird is a tenant in common with plaintiffs, the
title he acquired, whether legal or equitable, must inure to the joint
benefit of all. We do not think there is any evidence whatever of a
fraudulent combination between Shuford' and Baird to effect a secret
sale of the property or to suppress bidding, although the testimony of
Judge Shuford may possibly be susceptible of the construction that he
intended the property for Baird, and that he was acting in his interest.
The contention of plaintiffs that John Baird could not acquire the
exclusive title at the sale is founded upon a misapprehension of the
law. The general rule is well settled that one co-tenant cannot pur-
chase an outstanding title or incumbrance affecting the common estate
for his own exclusive benefit and assert such right against his co-ten-
ants; but that rule does not apply under the facts of this case. The
title which was acquired by Shuford, assuming that he acquired it for
Baird, was not an outstanding title adverse to the title of Robert Baird.
It was the title of Robert Baird himself, the common ancestor under
whom all claimed, and the sale was being made under a deed executed
by such ancestor and to pay his debts, which was an incumbrance
on the land when it descended to plaintiffs and their coheir.
710 DERIVATIVE TITLES (Part 2
It is held in the state that one co-tenant lawfully may purchase his
co-tenants' share of the common property under execution sale to pay
the debt of such co-tenant. Likewise, it is held that one of the co-
tenants may purchase the entire property at a sale to pay the com-
mon ancestor's debt. Baird v. Baird's Heirs, 21 N. C. 536, 31 Am.
Dec. 399. In that case Chief Justice Ruffin says : "It is a very com-
mon case that one brother buys at sheriff's sale the undivided estate of
another brother in descended lands, either for the debt of the ancestor,
or that of the brother himself contracted after the father's death ; and
we believe the legality of such a purchase has never been questioned."
Again : "It is not the duty of one heir, or of one tenant in common as
such, to pay the debts of another tenant in common, * * * nor
to refrain from buying to his own disadvantage, more than it is the
duty of any other person, wholly unconnected with them." So it is
said by Judge Gaston that "a tenant in common, as such, is not a
trustee for his companion." Saunders v. Gatlin, 21 N. C. 92.
It is likewise held in England that there is no fiduciary relation
existing between tenants in common, as such, and that a tenant in com-
mon of property previously mortgaged, who purchased the entire prop-
erty at the mortgage sale, was entitled to hold it for his sole benefit.
This is an interesting case, decided by the House of Lords and Privy
Council, in which an elaborate opinion is delivered by Lord Herschell
and concurred in by the other Lord Justices. See, also, 17 Am. &
Eng. 676, and cases cited; also. Freeman, Co-Tenancy, §§ 162-165;
Blodgett v. Hildreth, 90 Mass. (8 Allen) 186; Sutton v. Jenkins (at
this term) -147 N. C. 11, 60 S. E. 643.
When the land in controversy descended upon these plaintiffs and
upon their coheir, John Baird, it was incumbered with the mortgage
to Reid made by their ancestor. When that mortgage was foreclosed
in the manner allowed b}'' law, any one of the heirs had a right to pur-
chase the entire estate to protect his own interest, and he would ac-
quire the title discharged of any trust to his coheirs. There is no
evidence that John Baird agreed to purchase for the benefit of the
other heirs, or endeavored to suppress bidding, or practiced any other
fraud upon his co-tenants. So far as the record discloses, the sale
appears to have been fairly made by the trustee, and it was open to the
plaintiffs -or any of them to attend and purchase if they so desired.
We think therefore the judgment of nonsuit should be affirmed.
Ch. 5) ESTATES CREATED 711
PICO V. COLUMBET.
(Supreme Court of California, 1859. 12 Cal. 414, 73 Am. Dec. 550.)
This was an action by one tenant in common against his co-tenant,
who is in the sole possession of tlie premises, to recover a share of the
profits of the estate.
In the Court below, the defendant demurred to the complaint of
the plaintiff, upon the ground that "it does not state facts sufficient
to constitute a cause of action." The demurrer was overruled. De-
fendant excepted, and subsequently answered. This Court has con-
sidered the question of the sufficiency of tlie complaint, the substance
of which is set out in the opinion of the Court. The judgment of the
Court below is, that the bill be dismissed, and defendant have judg--
ment for his costs. Plaintiff appealed to this Court.
Field, J., delivered the opinion of the Court — Terry, C. J., and
Baldwin, J., concurring.
This action is brought by one tenant in common against his co-
tenant, who is in the sole possession of the entire premises, to recover
a share of the profits received from tlie estate. The case was argued
upon the demurrer to the complaint, which, by stipulation of the par-
ties, was admitted to have been taken on the ground that the com-
plaint does not state facts sufficient to constitute a cause of action.
The complaint avers a tenancy in common between the parties ; the
sole and exclusive possession of the premises by the defendant; the
receipt by him of the rents, issues, and profits thereof ; a demand by
the plaintiff of an account of the same, and the payment of his share ;
the defendant's refusal ; and that the rents, issues, and profits amount
to $84,000. These averments, and not the form in which the prayer
for judgment is couched, must determine the character of tlie plead-
ing. The complaint is designated a bill in equity, but the designation
does not make it such. There are no special circumstances alleged
which withdraw the case from the ordinary remedies at law, and re-
quire the interposition of equity. The action is a common law action
of account, and, viewed in this light, the complaint is fatally defective.
It does not aver that the defendant occupied the premises upon any
agreement with the plaintiff, as receiver or bailiff of his share of the
rents and profits. It is essential to a recovery that this circumstance
exist, and equally essential to the complaint that it be alleged. By
the common law, one tenant in common has no remedy against the
other who exclusively occupies the premises and receives the entire
profits, unless he is ousted of possession when ejectment may be
brought, or unless the other is acting as bailiff of his interest by agree-
ment, when the action of account will lie. The reason of tlie doctrine
is obvious. Each tenant is entitled to the occupation of the premises ;
neither can exclude the other; and if the sole occupation by one co-
tenant could render him liable to the other, it would be in the power
712 DERIVATIVE TITLES (Part 2
of the latter, by voluntarily remaining out of possession, to keep out
his companion also, except upon the condition of the payment of rent.
"The enjoyment of the absolute legal right of one co-tenant would thus
often be dependent upon the caprice or indolence of the other. 1 Co.
Lit. 200; 5 Bac. Ab.'367; Willes, 209.
The statutes of 4 and 5 Anne, 16, gave a right of action to one joint
tenant, or tenant in common, against tlie other as bailiff, who received
more than his proportional share of the profits. At common law, the
bailiff was answerable, not only for his actual receipts, but for what
he might have made from the property without willful neglect, (Co.
Lit. 172, a. Willes, 210;) but as bailiff under the statute of Anne, he
was responsible only for what he received beyond his proportionate
share. That statute only applied to cases where one tenant in com-
mon received from a third person money, or something else, to which
both co-tenants were entitled by reason of their co-tenancy, and re-
tained more than his just share according to the proportion of his in-
terest. This was held in Henderson v. Eason, Exch. 9 Eng. Law and
Eq. 337. In that case, it was decided that if one of two tenants in
common solely occupies land, farms it at his own cost, and takes the
produce for his own benefit, his co-tenant cannot maintain an action
of account against him as bailiff for having received more than his
share and proportion.
The statute of Anne has never been adopted in this State, nor have
we any similar statute. The case at bar must therefore be determined
upon the principles of the common law. By them, as we have ob-
served, the action cannot be maintained against the occupying tenant
ufnless he is by agreement a manager or agent of his co-tenant. The
occupation by him, so long as he does not exclude his co-tenant, is
but the exercise of a legal right. His cultivation and improvements
are made at his own risk ; if they result in loss, he cannot call upon
his co-tenant for contribution, and if they produce a profit, his co-
tenant is not entitled to share in them. The co-tenant can at any mo-
ment enter into equal enjoyment of his possession : his neglect to do
so may be regarded as an assent to the sole occupation of the other.
On this point, the observations of Baron Parke in Henderson v.
Eason are pertinent, although that case arose under the statute of
Anne : "There are obviously many cases," says the Justice, "in which
a tenant in common may occupy and enjoy the land or other subject
of tenancy in common solely, and have all the advantage to be derived
from it, and yet it would be most unjust to make him pay anything.
For instance, if a dwelling-house or room is solely occupied by one
tenant in common without ousting the other, or a chattel is used by
CMie tenant in common, and nothing is received, it would be most in-
equitable to hold that by a simple act of occupation or user, without any
agreement, he should be liable to pay a rent, or anything in the nature
of a compensation, to his co-tenant for that occupation, to which, to
the full extent to which he enjoyed, he had a perfect right. It ap-
Ch. 5) ESTATES CREATED 713
pears impossible to hold such a case to be within the statute, and an
opinion to that effect was expressed by Lord Cottenham in McMahon
V. Burchell. Such cases are clearly out of the operation of the stat-
ute. Again, there are many cases where profits are made and are
actually taken by one co-tenant, yet it is impossible to say that he has
received more than comes to his just share. For instance, if one ten-
ant employs his capital and industry in cultivating the whole of the
piece of land, the subject of the tenancy, in a mode in which the money
and labor expended greatly exceeds the value of the rent or compensa-
tion for the mere occupation of the land, in raising hops, for example,
which is a very hazardous adventure, and he takes the whole of the
crops, is he to be accountable for any of the profits in such a case,
where it is clear, if the speculation had been a losing one altogether,
he could not have called for a moiety of the loss, as he would have
been enabled to do had it been so cultivated by the mutual agreement
of the co-tenants? The risk of tlie cultivation, and the profits and
the loss, are his own, and what is just with respect to the very uncer-
tain and expensive crop of hops, is also just with respect to all the
produce of the land, the fructus industriales, which are raised by the
capital and industry of the occupier, and cannot exist without it. In
taking all the produce, he cannot be said to receive more than his
just share and proportion to which he is entitled as tenant in common,
as he receives in truth the remuneration for his own labor and capital,-
to which a tenant has no right."
The American cases are to the same effect. In Sargent v. Parsons,
12 Mass. 149, the Court said : "The action of account is maintainable
only against a bailiff; and a bailiff can only be one who is appointed
such, or who is made such by the law, which latter instance applies
only to a guardian, who is bailiff of his ward, and who is liable, not
only for rents and profits actually received, but also for those which
he might have received by a proper management of the estate. One
tenant in common may, by contract, make another his bailiff or re-
ceiver; and if he does, he may bring him to account in this form of
action ; and probably, also, to avoid a process considered in some de-
gree troublesome, might sue him in indebitatus assumpsit as on a
promise to account. But this must be for rents and profits actually
received beyond his share ; for, by the common law, no remedy is
given for a mere sole use and occupation by one of the tenants ; for
it is in the power of each tenant at any time to occupy ; and the not
doing it by one would look like an assent that the other should occupy
the whole."
In Woolever v. Knapp, 18 Barb. (N. Y.) 265, the defendant had en-
joyed the sole possession of a farm for five years, the rent and occupa-
tion of which was worth two hundred dollars a year. The plaintiffs
were his cotenants, and brought their action of account. The Court
decided that the action could not be sustained, holding that one tenant
in common who possesses the entire premises, without any agreement
714 DERIVATIVE TITLES (Part 2
with his co-tenants as to his possession, or any demand 'on their part
to be allowed to enjoy the same with him, is not liable to account in an
action for their use and occupation. See, also. Nelson's Heirs v. Clay's
Heirs, 7 J. J. Alarsh. (Ky.) 139, 23 Am. Dec. 3S7.
We have treated this case as an action of account at law, but to the
fame result we should come if the proceeding were in equity. There
is no equity in the claim asserted by the plaintiff to share in profits
resulting from the labor and money of the defendant, when he has ex-
pended neither, and has never claimed possession, and never been lia-
ble for contribution in cases of loss. There would be no equity in
giving to the plaintiff, who would neither work himself, or subject
himself to any expenditures or risks, a share in tlie fruits of another's
labor, investments, and risks.
The cases to which our attention has been called, in which equity
has sustained an account in favor of one tenant in common, out of
possession, against his co-tenant in possession, for the rents and profits,
are, with some exceptions in the Court of Appeals of South Carolina,
those in which the account was a collateral incident to a claim for
partition, and the rents and profits claimed were due from the defend-
ant as a tenant of the plaintiff's interest, or were received by him when
they belonged to both parties, or were the proceeds of their joint labor
and expenditures. Thus, in Pope v. Haskins, 16 Ala. 321, the defend-
ant had leased of the complainant his undivided one-third interest in a
lot belonging to the parties as tenants in common, and upon the expira-
tion' of the lease had rented out the lot to a third party, and received
the entire profits, and the bill was filed to obtain an account of the
rents and profits, and for a partition of the property. ,
In Hannan v. Osborn, 4 Paige (N. Y.) 336, the bill was filed for the
'partition and sale of a lot of land, and an account of the rents and prof-
its, and the account directed was of the rents and profits received by
any of the parties, not of the profits made in the use and occupation of
the premises.
In Turner v. Morgan, 8 Ves. 143, the bill prayed partition of a house
at Portsmouth, and an account of the rent, under the following circum-
stances : The house was decreed to three persons, equally to be divided.
The plaintiff purchased two-thirds. The defendant was tenant of tlie
house under a lease of (i22) twenty-two pounds a year, and refusing to
raise the rent, the plaintiff brought ejectment for his two-thirds. The
ejectment was defeated, the defendant purchasing the remaining third.
Upon this, the bill was filed. The Chancellor allowed a partition. No
question appears to have been made upon the right of the plaintiff to
an account, the defendant having been tenant under the lease ; and the
Chancellor observed, in relation to the account, that there was a possi-
ble distinction between the time during which the defendant was ten-
ant, and the time since he became owner, but that justice would be
answered by inquiring what would have been a reasonable rent in each
year the account was sought.
Ch. 5) ESTATES CREATED 715
The doctrine laid down by the Court of Appeals of South Carolina,
as to tlie liability of one co-tenant to another, is believed to be peculiar
to tliat Court. In Hancock v. Day, McMul. Eq. (S. C.) 69, 36 Am.
Dec. 293, Thompson v. Bostick, McMul. Eq. (S. C.) 75, and Holt v.
Robertson, A'lcMul. Eq. (S. C.) 475, it was held that as between
tenants in common, the occupying tenant is liable for rent of so
much of the premises as was capable of producing rent at the time he
took possession, but not liable for that which was rendered capable by
his labor. The reasons upon which these decisions rest do not com-
mend themselves to our judgment, and are insufficient to overcome the
force of the EngHsh, Massachusetts, New York, and Kentucky au-
thorities.
The. demurrer should have been sustained; but as the same result
was obtained by a judgment rendered for the defendant on the merits
of the case, it will be sufficient to direct the affirmance of the judg-
ment.^*
5 8 See Gage v. Gage, 66 N. H. 2S2. 29 All. 543, 28 L. R. A. 829 (1890), semble
contra.
The Stat. 4 Anne, c. 16. § 27, has been deemed in some states a part of the
common law, as, for example, in Massachusetts and Maryland. Munroe v.
Luke, 1 Mete. 459 (1840) ; Flack v. Gosnell, 76 Md. SB, 24 Atl. 414, 16 L. R. A.
547, 35 Am. St. Rep. 413 (1892). In many states there are statutes in varjang
terms giving to one co-owner a remedy along the general lines of the statute of
Anne, against another co-owner. See 1 Stim. Am. St. Law, § 1378.
By chapter 2, § 1 (paragraph 27 of Jones & A. Ann. St. of Illinois, 1913), it is
provided: "That where one or more joint tenants, tenants in common or copar-
ceners in real estate, or any interest therein, shall take and use the profits or
benefits thereof, in greater proportion than his, her or their interest, such per-
son or persons, his, her or their executors and administrators, shall account
therefor to his or their co-tenant, jointly or severally."
Section 10956 of Howell's Michigan Statutes provides that : "One joint ten-
ant or tenant in common, and his executors or administratoi's, may maintain
an action for money had and received, against liis cotenant, for receiving more
than his just proportion of the rents or profits of the estate owned by them
as joint tenants or tenants in common."
As to whether the rents and profits have been "received" so as to permit use
of the remedy under Stat. 4 Anne, c. 16, or similar statute, see Henderson v.
Eason, 17 Q. B. 701 (1851) ; Sargent v. Parsons, 12 Mass. 149 (1815) ; Woolever
V. Knapp, 18 Barb. (N. Y.) 265 (1854) ; Cheney v. Ricks, 187 III. 171, 58 N. E.
234 (1900) ; Howard v. Throckmorton, 59 Cal. 79 (1881).
m West V. Weyer, 46 Ohio St. 66, 18 N. E. 537, 15 Am. St. Rep. 552 (1888),
under a statute which provided that "one tenant in common, or coparcener, may
recover from another his share of the rents and profits received by such tenant
m common or coparcener from the estate, according to the justice and equity
of the case," it was held that a cotenant in possession of the entire common
property could be required to account for his co-owner's share of the reasonable
worth of such occupation, thou2h there had been no ouster. See Thompson
V. Bostick, McMul. Eq. (S. C.) 75 (3840) ; Early v. Friend, 16 Grat. (Va.) 21.
78 Am. Dec. 649 (1860) ; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372 (1872)
ace.
716 DERIVATIVE TITLES (Part 2
CALVERT V. ALDRICH.
(Supreme Judicial Court of Massachusetts, 1S68. 99 Mass. 74, 96 Am. Dec 693.)
Contract. The defendant filed a declaration in set-off on an ac-
count annexed for two fifths of the cost of repairs of a machine shop
in Lowell : and the only question in dispute in the case was the liability
of the plaintiff for any portion of such cost.
At the trial in the superior court, before Reed, J., these facts appear-
ed : Calvert and Aldrich owned the machine shop and the machinery
therein in the proportion of two fifths and three fifths respectively, as
tenants in common ; and Aldrich, having agreed to pay to Calvert a
yearly rent for such occupation of Calvert's two fifths, was in occupa-
tion thereof when the building caught fire, and the roof, windows and
one of the floors were so burnt that the machinery was exposed to
injury by the weather. Calvert at this time was in Europe, but had
an agent in Lowell, to whom Aldrich immediately represented the im-
portance of repairing the building. The agent confessed such impor-
tance, but replied that he had no authority from Calvert to sanction any
repairs, and wrote to Calvert for instructions, who replied, declining
to make any repairs upon the building. This letter the agent showed
to Aldrich, who meanwhile had caused the building to be repaired.
After the return of Calvert, Aldrich showed him the repairs and stated
to him the expenses thereof, and asked him to contribute his propor-
tion of the same. But Calvert, not disputing that the expenses were
reasonable, contended that he was not Hable for any portion of them,
and refused to contribute.
On these facts the judge ruled that the defendant could not recover
on his account in set-off, and ordered judgment for the plaintiff; and
the defendant alleged exceptions.
Foster, J. The issue in this action is on an account of one co-
tenant in common against another to recover from the defendant in
set-off part of the cost of certain needful repairs made by the plaintiff
in set-off upon the common property. It is not founded upon any con-
tract between the parties, but upon a supposed legal obligation which,
if its existence were established, tlie law would imply a promise to
fulfill.
The doctrine of the common law on this subject is stated by Lord
Coke as follows: "If two tenants in common or joint tenants be of
an house or mill, and it fall in decay, and the one is willing to repair
the same, and the other will not, he that is willing shall have a writ de
reparatione facienda, and the writ saith ad reparationem et sustenta-
tionem ejusdem domiis teneantur, whereby it appeareth that owners
are in tliat case bound pro bono publico to maintain houses and mills
which are for habitation and use of men." Co. Lit. 200b ; Id. 54b.
And in another place he says : "If there be two joint tenants of a wood
or arable land, the one has no remedy against tlie other to make inclo-
Ch. 5) ESTATES CREATED 717
sure or reparations for safeguard of tlie wood or corn," but if there be
two joint tenants of a house, the one shall have his writ de reparatione
facienda against the other. This is said to be because of "the pre-
eminence and privilege which the law gives to houses which are for
men's habitation." Bowles's Case, 11 Co. 82.
In Carver v. Miller, 4 Mass. 561, it was doubted by Chief Justice
Parsons whether these maxims of the common law, as applied to mills,
are in force here, especially since tlie provincial statute of 7 Anne, c. 1,
revised by St. 1795, c. 74.
In Loring v. Bacon, 4 Mass. 575, the plaintiff was seised in fee of
a room and the cellar under it, and the defendant of the chamber over
head and of the remainder of the house ; the roof was out of repair ;
the defendant, being seasonably requested, refused to join in repairing
it; and thereupon the plaintiff made the necessary repairs, and brought
assumpsit to recover from the defendant his proportion of their cost.
This, it will be observed, was not a case of tenancy in common, but
of distinct dwelling-houses, one over the other. Chief Justice Parsons
said: "If there is a legal obligation to contribute to these repairs, the
law will imply a promise. We have no statute nor any usage on the
subject, and must apply to the common law to guide us." "Upon a very
full research into the principles and maxims of the common law, we
cannot find that any remedy is provided for the plaintiff." It was not
absolutely decided that an action on the case would not lie, but the
intimations of tlie court on the subject were such that no further at-
tempt appears to have been made. The relations between tenants in
comm.on were not actually involved in this case, and the remarks touch-
ing the writ de reparatione were only incidental and by way of illustra-
tion.
Doane v. Badger, 12 Mass. 65, was an action on the case. The plain-
tiff' had a right to use a well and pump on the defendant's land ; and
the defendant had removed the pump and built over the well, thereby
depriving the plaintiff of the use of the water. The judge before
whom the case was tried had instructed the jury that the defendant, by
the terms of a deed under which he claimed, was bound to keep the
well and pump in repair, although they were out of repair when he pur-
chased, and, without any previous notice or request, was liable in dam-
ages for the injury the plaintiff had sustained by his neglect to make
repairs. The court held that no such evidence was admissible under
the declaration, the cause of action stated being a misfeasance, and the
proof offered being of a nonfeasance only; also, that a notice and re-
quest were indispensable before any action could be maintained. Mr.
Justice Jackson in dehvering the opinion made some general observa-
tions, unnecessary to the decision of the cause, the correctness of which
requires a particular examination. He said that the action on the case
seems to be. a substitute for the old writ de reparatione facienda be-
tween tenants in common, and could not be brought until after a re-
quest and refusal to join in making the repairs. He added: "From
718 DERIVATIVE TITLES (Part 2
the form of the writ in the register, it seems that the plaintiff, before
bringing the action, had repaired the house, and was to recover the
defendant's proportion of the expense of those repairs. The writ con-
chides, 'in ipsius dispendium non modicum et gravamen.' It is clear
that until he have made the repairs he cannot in any form of action
recover anything more than for his loss as of rent, &c., while the house
remains in decay. For if he should recover the sum necessary to make
the repairs, there would be no certainty that he would apply the
money to that purpose." IMumford v. Brown, 6 Cow. 475, 16 Am.
Dec. 440, a per curiam opinion of the supreme court of New York,
and Coffin v. Heath, 6 Mete. 80, both contain obiter dicta to the same
effect, apparently founded upon Doane v. Badger, without further
research into the ancient law.
If it were true that the writ de reparatione was brought by one co-
tenant, after he had made repairs, to recover of his cotenant a due pro-
portion of the expense thereof, there would certainly be much reason"
for holding an action on the case to be a modern substitute for the ob-
solete writ de reparatione. But all the Latin forms of the writ in the
Register, 153, show that it was brought before the repairs were made,
to compel them to be m.ade under the order of court. Indeed, this is
implied in the very style by which the writ is entitled, de reparatione
facienda, viz.: of repairs to be made; the future participle facienda
being incapable of any other meaning. This also appears in Fitzherbert.
N. B. 127, where the writ between cotenants of a mill is translated;
the words, in ipsius dispendium non modicum et gravamen, (quoted
by Judge Jackson,) being correctly rendered, "to the great damage and
grievance of him," the said plaintiff. Fitzherbert says : "The writ lieth
in divers cases; one is, where there are three tenants in common or
joint or pro indiviso of a mill or a house, &c., which falls to decay, and
one will repair but the other will not repair the same ; he shall have this
writ against them." In the case of a ruinous house which endangers
the plaintiff's adjoining house, and in that of a bridge over which the
plaintiff' has a passage, which the defendant ought to repair, but which
he suffers to fall to decay, the words of the precept, are, "Command A.
that," &c., "he, together with B. and C, his partners, cause to be re-
paired." The cases in the Year Books referred to in the margin of
Fitzherbert confirm the construction which we regard as the only one
of which the forms in that author are susceptible namely, that the
writ de reparatione was a process to compel repairs to be made under
the order of court. There is nothing in them to indicate that an ac-
tion for dam'ages is maintainable by one tenant in common against an-
other because the defendant will not join with the plaintiff in repairing
the common property. In a note to the form in the case of a bridge,
it is said in Fitzherbert: "In this writ the party recovers his damages,
and it shall be awarded that tlie defendant repair, and that he be dis-
trained to do it. So in this writ he shall have the view contra, if it be
Dut an action on the case for not repairinq^. for tl^<=r- 1-p ^hall recover
Ch. 5) ESTATES CREATED 719
but damages." There is no doubt that an action on the case is main-
tainable to recover damages in cases where the defendant is alone
bound to make repairs for the benefit of the plaintiff without contribu-
tion on the part of the latter, and has neglected and refused to do so.
See Tenant v. Goldwin, 6 Mod. 311, s. c. 2 Ld. Raym. 1089; 1 Salk.
21, 360.
The difficulty in tlie way of awarding damages in favor of one tenant
in common against his cotenant for neglecting to repair is, that both
parties are equally bound to make the repairs, and neither is more in
default than the other for a failure to do so. Upon a review of all the
authorities, we can find no instance in England or this country in
which, between cotenants, an action at law of any kind has been sus-
tained, either for contribution or damages, after one has made needful
repairs in which the other refused to join. We are satisfied that the
law was correctly stated in Converse v. Ferre, 11 Mass. 325, by Chief
Justice Parker, who said : "At common law no action lies by one
tenant in common, who has expended more than his share in repairing
the common property, against the deficient tenants, and for this reason
our legislature has provided a remedy applicable to mills." The writ
de rcparatione facienda brought before the court the question of the
reasonableness of the repairs proposed, before the expenditures were
incurred. It seems to have been seldom resorted to ; perhaps because
a division of the common estate would usually be obtained where the
owners were unable to agree as to the necessity or expediency of re-
pairs. Between tenants in common, partition is the natural and usu-
ally the adequate remedy in every case of controversy. This is the
probable explanation of the few authorities in the books, and of the
obscurity in which we have found the whole subject involved. But if
we have fallen into any error in our examination of the original doc-
trines of the common law of England, it is at least safe to conclude
that no action between tenants in common for neglecting or refusing to
repair the common property, or to recover contribution for repairs
mad^ thereon by one without the consent of the other, has been adopt-
ed among the common law remedies in Massachusetts.
This result is in accordance with the rulings at the trial. Exceptions
overruled.^'*
5 9 "The general doctrine is that one tenant in common can compel his coten-
ant to share in the expense of necessarj' repairs to the common property, by-
requesting him so to do. If the cotenant refuse to join in making such repairs,
he may, after such request and refusal, make them and recover of the cotenant
for his proportionate share. But he cannot, without the consent of his co-
tenant, make permanent improvements upon the conmion property at the ex-
pense of the tenants in common. If he desires to improve his share of the
common property beyond what his cotenants will consent to, he must resort to
a petition for partition, so that he can own his share in severalty. 4 Kent, Clom,
420 to 42,3 (*.370, 371) ; 1 Wash. R. P. 420, 421 ; Kidder v. Rbrford, 16 Vt 169.
42 Am. Dec. 504 (1844)." Farrand v. Gleason, 56 Yt. 6-33, a38 (1884). See Ward
V. Ward, 40 W. Va. 611, 21 S. E. 746. 20 L. R. A. 449, 52 Am, St. Rep. 911 (1895).
"A tenant in common cannot, in the absence of an agreement or understand-
720 DERIVATIVE TITLES (Part 2
PICKERING V. PICKERING.
(Supreme Court of New Hampshire, 1885. 63 N. H. 468, 3 Atl. 744.)
Bill in equity, for an accounting between tenants in common. The
defendant claimed to be allowed for necessary repairs made by him
upon the premises without notice to the plaintiff.
Bingham, J. The plaintiff seeks for an accounting, and to charge
the defendant for the rents and income of lands and buildings thereon.
The parties are tenants in common. The defendant has had the pos-
session and income of the property since December 27, 1883, and has
in that time expended $370 in necessary repairs that materially in-
creased the value of the buildings and the income, and claims to be
allowed for the same in the accounting. The plaintiff had no notice
of the repairs, and was not requested to join in making them.
If we are to consider it settled at common law that one tenant in
common cannot recover of his cotenant a contribution for necessary
repairs, where there is no agreement or request or notice to join in
making them, or excuse for a notice not being given to join (Stevens
V. Thompson, 17 N. H. 103, 111, Wiggin v. Wiggin, 43 N. H. 561, 568,
80 Am. Dec. 192), because both parties, until this is done are equally
in fault, one having as much reason to complain as the other (Mumford
V. Brown, 6 Cow. 475^77, 16 Am. Dec. 440, Kidder v. Rixford, 16
Vt 169-172, 42 Am. Dec. 504, 4 Kent Com. 371, Doane v. Badger, 12
Mass. 65-70, Calvert v. Aldrich, 99 Alass. 78, 96 Am. Dec. 693), it
does not follow that in this proceeding for an equitable accounting for
the income, a part of which is produced by the repairs, the defendant
may not be allowed for them. There is a wide difference between a
right of action at common law to recover a contribution for repairs,
and a right to have them allowed out of the income, which exists in
part through their having been made. In the first case, the party makes
them at his will on the common property without the consent or knowl-
edge of his cotenant, while in the last the cotenant recognizes the ex-
istence of the repairs, that they have materially increased the income,
but demands the increase and refuses to allow for the repairs. The
objection, that no privity, no joint knowledge, no authority existed, is
in equity and good conscience waived when the entire income is de-
manded. It is not unlike the ratification of the acts of an assumed
agent; it relates back to the time of making the repairs, and makes the
ing with his cotenant to that effect, make improvements upon the common
proi^erty at the expense, in any part, of his cotenant, so as to enable him to
recover any portion of tlie cost or value of the improvements, either in an ac-
tion brought by him for that puriiose, or by way of set-off in an action brought
against him by his cotenant. We are not speaking of repairs, nor of what
might be done upon a partition." Walter v. (ireenwood, 29 Minn. 87, 90, 12 N.
W. 145 (1882). But see Nelson v. Leake, 25 Miss. 199 (1852) ; Ruffners v. Lew-
is, 7 Leigh (Va.) 720, '60 Am. Dec. 51o (.1830).
Ch. 5) ESTATES CREATED 721
plaintiff a privy from the beginning. He cannot claim the repairs and
the income, and equitably ignore the expense of making them.
In Moore v. Cable, 1 Johns. Ch. (N. Y.) 385, a bill for the redemp-
tion of a mortgage, it was decided that the mortgagee should not be
charged for rents and profits arising exclusively from repairs made by
him.
In Jackson v, Loomis, 4 Cow. (N. Y.) 168, 15 Am. Dec. 347, an
action of trespass for mesne profits against a bona fide purchaser, it
was held that he should be allowed against the plaintiff, in mitigation
of damages, the value of permanent improvements, made in good
faith, to the extent of the rents and profits claimed by the plaintiff.
Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547.
In Rathbun v. Colton, 15 Pick. (Mass.) 472, 485, it was decided that
when the rent of a trust estate is increased in consequence of improve-
ments made by the trustee, the beneficiary may be put to his election,
either to allow the trustee the expense of such improvements, or be
deprived of the increase of rent obtained by means thereof ; that the
question was not whether the trustee has a right to make a charge for
the improvements, but whether the plaintiff's were entitled to receive
any benefit for them, they refusing to contribute their share towards
the expense.
It seems, however, that courts of equity have not confined the doc-
trine of compensation for repairs and improvements to cases of agree-
ment or of joint purchases, but have extended it to other cases where
the party making the repairs and improvements has acted in good
faith, innocently, and there has been a substantial benefit conferred on
the owner, so that in equity and right he ought to pay for the same.
2 Story, Eq. Jur. §§ 1236, 799b ; Coffin v. Heath, 6 iMetc. (Mass.) 76,
80. And in 2 Story, Eq. PI. § 799b, n. 1, it is said : "In cases where
the true owner of an estate, after a recovery thereof at law from a
bona fide possessor for a valuable consideration, without notice seeks
an account in equity as plaintiff against such possessor for the rents
and profits, it is the constant habit of courts of equity to allow such
possessor (as defendant) to deduct therefrom the full amount of all
meliorations and improvements which he has beneficially made upon,
the estate, and thus to recoup them from the rents and profits. * * *
So, if the true owner of an estate holds only an equitable title thereto,
and seeks the aid of a court of equity to enforce that title, the court
will administer that aid only upon the terms of making compensation
to such bona fide possessor for the amount of his meliorations and im-
provements of the estate beneficial to the owner." This is on the old,
established maxim in equity jurisprudence, that he who seeks equity
must do equity. Hannan y. Osborn, 4 Paige (N. Y.) 336 ; Dech's Ap-
peal, 57 Pa. 468, 472 ; Peyton v. Smith, 2 Dev. & Bat. Eq. 325, 349 ;
liibbert v. Cooke, 1 Sim. & S. 552.
The sum of $370 for the repairs may be deducted from the income,
Aig.Pkop. — 46
722 DERIVATIVE TITLES (Part 2
if it amounts to that sum ; if not, then to cancel the income, whatever
it may be.
The claim for insurance should be disallowed. It does not appear
that it was procured for the plaintiff, or in her interest, or with her
knowledge, or that she has ever received or accepted any benefit aris-
ing from it.
Case discharged.
Blodgett, J., did not sit; the others concurred.
Appeal of KELSEY.
(Supreme Court of Pennsylvania, ISSG. 313 Pa. 119, 5 Atl. 447, 57 Am.
Pvep. 444.)
Mr. Chief Justice Mercur delivered the opinion of the Court, May
31st, 1886. .
This bill was to compel partition of lands in which the appellees
held the undivided five ninths. The Court decreed partition, and
awarded to the appellants four ninths of the land. Their complaint
now is the refusal of the Court to allot to them a proportionate value
of the permanent improvements erected on the land by the appellees.
It may be conceded that there may. be cases of partition in which the
improvements should be held to enure to the benefit of all the co-ten-
ants. It is well intimated such might be the case where one co-tenant
undertakes to improve the whole estate as by erecting a building cov-
ering the whole of a city lot. Here, however the improvements appear
to have been such only as were reasonably necessary for the proper
enjoyment of the land by the co-tenant who made them. While the
title was in the wife of the appellee yet he was tenant by curtesy in-
itiate, and therefore in making the improvements, presumably for
himself and his wife, he cannot be treated as a mere stranger or
volunteer. While a tenant in common is liable to his co-tenant for
repairs absolutely necessary to buildings already erected and in being,
which fall into decay; yet he is not liable to his co-tenant for new
and permanent buildings- which the latter erects thereon: Beaty v.
Bordwell, 91 Pa. 438; Crest v. Jack, 3 Watts, 238, 27 Am. Dec. 353;
Dech's Appeal, 57 Pa. 467. Hence, although the appellees owned
the larger share of the land they were powerless to compel the appel-
lants to contribute towards the improvements. The appellees must
either forego the proper use and enjoyment of their estate or else in-
cur the necessary expense to make it productive. They chose to do
the latter. The appellants paid nothing towards the improvements, and
their estate was not injured by the erection thereof. This is a pro-
ceeding in equity. Due regard must be had to the equitable rights
of each party. Under the facts of this case it would not be a just ap-
Ch. 5) ESTATES CREATED 723
plication of the rules in equity to give to the appellants any share of
the value of the permanent improvements made by the aypellees only.
Decree affirmed, and appeal dismissed at the costs of the appel-
lants.«o
GRISWOLD V. JOHNSON.
(Supreme Court of Errors of Connecticut, 1824. 5 Conn. 3G3.)
This was an action of ejectment; tried at New London, October
term, 1823, before Peters, J.
The plaintiff claimed title, by virtue of a deed from Charles Gris-
wold, administrator de bonis non with the will annexed of Dyar
Throop, deceased. In support of the title of Dyar Throop, the plain-
tiff produced the will of his father, Rev. Benjamin Throop, deceased,
containing the following devise : "To my two sons, Dyar and Ben-
jamin, I give and bequeath to them, and their heirs and assigns, that
part of my farm which lies Easterly of Wolf-swamp brook to be equal-
ly divided between them for quantity and quality; and that my son
Dyar have the part next the brook; upon the consideration that they
bear their proportion with my other son, William, in paying what
debts and legacies my personal estate will not answer, if any there
be." That part of the farm, which lay Easterly of Wolf-swamp
brook, was a tract of about thirty-seven acres; and the administra-
tor's deed to the plaintiff contained about seventeen acres of that part
of such tract lying next adjoining the brook, including the demanded
prem-.ses, and described the land, which it purported to convey by
metes and bounds. The plaintiff' claimed, and adduced evidence to
prove, that such land was one half in quantity and quality of the tract
of thirty-seven acres. He also claimed, that Dyar Throop took such
land, under the devise, as estate in severalty. The judge instructed
the jury, that Dyar and, Ben jamin, under the devise, took the tract lying
Easterly of the brook, as tenants in common ; and that the deed, as
it embraced but a part of such common estate, describing it by metes
and bounds, was void, and conveyed no title whatever to the plain-
tiff.
The defendant claimed, and adduced evidence to prove, that Dyar
refused to take any of the land under the devise. The plaintiff in-
sisted, that admitting such refusal, Dyar's part thereupon became in-
testate estate, and he became vested with an interest therein, as ten-
ant in common with the other heirs of the testator ; and that the ad-
60 See Louvalle v. Menard, 1 Gilman (6 Til.) 39, 41 Am. Dec. 161 (1844) ; Mar-
tindale v. Alexander, 26 Ind. 104. 89 Am. Dec. 458 (1866); Burns v. Parker
(Tex. Civ. App.) 137 S. W. 705 (1911) ; Nelson's Heirs v. Clay's Heirs, 7 J. J.
Marsh. (Ky.) 139, 23 Am. Dec. 387 (1832)-; Cosgriff v. Foss, 152 N. Y. 104, 46
N. E. 307, 36 L. R. A. 753, 57 Am. St. Rep. 500 (1S97) ; Howard v. Morrissey, 7]
Misc. Rep. 267, 130 X. Y. Supp. 322 (1911) ; Moore v. Williamson, 10 Rich. Eq.
(S. C.) 323, 73 Am. Dec. 93 (1858).
724 DERIVATIVE TITLES (Part 2
ministrator's deed to the plaintiff, whether it contained the whole or
a part of the common estate, conveyed the whole of Dyar's common
interest in the land described in that deed. The judge instructed the
jury, that if the deed embraced any quantity of the common estate
less than the whole, describing it by metes and bounds, such convey-
ance was in law null and void.
The jury returned a verdict for the defendant; and the plaintiff
moved for a new trial, for a misdirection.
HosMER, C. J. The plaintiff claims title by the deed from Charles
Griswold, the administrator de bonis non, with the will annexed, of
Dyar Throop, deceased. The Rev, Benjamin Throop made his last
will, devising to his sons, Dyar and Benjamin, a tract of land, of which
the premises demanded is part, in manner following: "To my two
sons, Dyar and Benjamin, I give and bequeath to them, their heirs
and assigns, that part of my farm which lies Easterly of Wolf-swamp
brook, to be equally divided between them for quantity and quality,
and that my son Dyar have the part next the brook." The above tract
contained thirty-seven acres, and the aforesaid administrator duly
authorized by the court of probate, gave to the plaintiff' a deed of
seventeen acres thereof, by metes and bounds, of that part of said
land, which lies next adjoining the brook aforesaid. The plaintiff
insists, that Dyar Throop, under the aforesaid devise, took the land
described in the above deed, as an estate in severalty; while the de-
fendant urges, that the said Dyar and Benjamin had title to the
aforesaid land, east of the brook, as tenants in common. The court
charged the jury in conformity with the defendant's claim; and that
if the said deed embraced any quantity of said common estate, less
than the whole, by metes and bounds, such conveyance in law was
null and void.
Whether the charge of the court was correct, depends on the an-
swer which the law gives to two questions, namely : Was the estate in
question devised in common to Dyar and Benjamin; and if so, was
the deed invalid.
1. Tenants in common are such as hold by unity of possession, be-
cause none knoweth his own severalty, and they occupy promiscuously.
Co. Litt. sec. 292; 2 Bla. Comm. 191. The infallible criterion of this
species of estate, is, that no one knoweth his own severalty ; and hence
the possession of the estate necessarily is in common until a legal par-
tition be made. But of an estate in severalty the criterion is, that a man
knows, what he has the exclusive right of possessing ; and his posses-
sion is sole, because no person has a right to occupy with him. If
an estate is given to a plurality of persons, without any restrictive,
exclusive and explanatory words ; from the nature of the case, they
are tenants in common. 2 Bla. Comm. 192, 180. If the grant super-
adds, that the property "is to be" equally divided" between them, the
estate is held in common, because these words are inapplicable to a
several estate. 2 Bla. Comm. 192. Now, in the case under discus-
Ch. 5) ESTATES CREATED 725
sion, the devise to Dyar and Benjamin of a tract of land, constituted a
tenancy in common on the preceding principles ; and this more par-
ticularly is evinced, by the words "to be equally divided between
them, for quantity and quality;" an expression indicating a future
division of the property devised. The expression that "Dyar to have
the part next the brook,'' construing the devise in all its parts together,
and not dis jointly, denotes merely this; that when a future division
of the property shall be made, Dyar shall have his portion assigned
him in the place specified. It, however, has no possible effect on the
tenancy in common necessarily arising from the unity of possession ;
nor can it operate to produce such estate, unless by exchanging the
former words, instead of giving them their legal construction. The
claim, that Dyar had devised to him an interest in severalty, is not a
little extravagant, inasmuch as the wisdom of the wisest would be baf-
fled in the ascertainment of the bounds of this supposed several estate.
The question, what is its quantity, its form, its location, no one ex-
cept a competent judiciary can resolve. No bounds are mentioned ; no
lines are prescribed ; no quantity is given. A court can take cog-
nizance of the case; and, in a legal mode, well understood, determine
the quantity, by the quality of the land, and, on principles of justice,
assign a distinct location to each of the devisees ; but there is no com-
petency to the performance of either of these acts, by an individual.
2. The deed of this common estate, by metes and bounds, the one
tenant in common thus attempting to make a partition of the property,
without any co-operation of the other, is, undoubtedly void. The point
is at rest, and not to be questioned. Hinman v. Leavenworth, 2 Conn.
244, n. ; Starr v. Leavitt, 2 Conn. 243, 7 Am. Dec. 268 ; Mitchell v.
Hazen, 4 Conn. 495, 10 Am. Dec. 169; Bartlet v. Harlow, 12 Mass. 348,
7 Am. Dec. 76 ; Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22.
The determination of the Judge below was correct, and no new trial
is to be granted.®^
CRESSEY V. CRESSEY.
(Supreme Judicial Court of Massachusetts, 1913. 215 Mass. 65, 102 N. E. 314.)
Petition for partition, filed in the Superior Court on March 17, 1911,
the petitioner alleging that he and the respondents Job H. Cressey,
Anna E. Emerson and Charles A. Newhall were tenants in common
of certain premises on Park Street in Lynn, their undivided shares be-
ing as follows : petitioner, eight twenty-eighths. Job H. Cressey, seven
twenty-eighths, Anna E. Emerson, seven twenty-eighths, and Dorman,
trustee for Charles A. Newhall, six twenty-eighths ; and that Arthur
L Newhall, Sarah Effie Newhall, Anna E. Emerson and Charles A.
Newhall claimed to own undivided interests other than as alleged.
61 Smith V. Benson, 9 Vt. 138, 31 Am. Dec. 614 (1837), ace. See Marshall v.
Trumbull, 28 Conn. 183, 73 Am. Dec. 667 (1859).
726 DERIVATIVE TITLES (Part 2
The case was heard by McLaughlin, J., without a jury. The ma-
terial facts found by him are stated in the opinion. He ruled that the
partition should be made in the proportions set out in the petition,
made an interlocutory judgment accordingly, and reported the case for
determination by this court.
RuGG, C. J. This is a petition for partition of land on Park Street
in Lynn. The question at issue is the shares to which the several own-
ers are entitled. The material facts are that in 1899 William M. New-
hall died intestate, seized of several parcels of real estate, among them
being the Park Street land which is the subject of this petition, leaving
no widow and seven children. Title to all these parcels descended to
his seven children as tenants in common. In 1903 on a judgment re-
covered against one of these children, Sarah E. Newhall, all her right,
title and interest in this Park Street land described by metes and
bounds was sold, and by mesne conveyances the right acquired there-
by is now held by Charles A. Newhall. In March, 1904, William F.
Newhall' one of the seven children, died unmarried and intestate, leav-
ing as his heirs his six surviving brothers and sisters. Thereafter
judgment was recovered against Sarah E. Newhall and Harriet A.
Newhall, on execution in which all their right, title, and interest in
the Park Street land on July 27, 1904, described by metes and bounds,
was sold, and by mesne conveyances all right under this deed has come
to the petitioner. In November, 1905, commissioners were appointed
by the Probate Court to make partition of the several parcels of real
estate left by William M. Newhall at his decease among his six sur-
viving children as tenants in common, the share of each being set out in
the warrant as one sixth. In making partition the commissioners
reported that the Park Street land, which they had appraised at $8,000,
was equal to four shares, and, as in their judgment it could not be
divided advantageously, they set it ofif to Anna E. Emerson, Sarah
E. Newhall, Harriet A. Newhall and Mary I. Cressey, to each one
fourth. This report was confirmed in March, 1906. Between March
1906, and March, 1910, Mary I. Cressey deceased leaving her share to
Job H. Cressey, one of the respondents. In March, 1910, Harriet
A. Newhall deceased, unmarried, intestate, leaving her four surviving
brothers and sisters as her heirs at law, namely Anna E. Emerson,
Sarah E. Newhall, Charles A. Newhall and Arthur I. Newhall.
The levy of the two executions against Sarah E. Newhall was not
upon the share held by her as tenant in common in the entire real es-
tate inherited by her from her father. It did not follow the provisions
of R. L. c. 178, sec. 13, 14. As has been pointed out, each was a levy
apon all her title in only one of the several parcels held as tenants
in common, which one was described by metes and bounds. The levy
and sale upon execution of real estate of a debtor operates as a con-
veyance of the title which the debtor was capable of conveying. One of
several tenants in common cannot as against his cotenants make a sale
by metes and bounds of a portion of the common land. Bartlet v.
Ch. 5) ESTATES CREATED 727
Harlow, 12 Mass. 348, 7 Am. Dec. 76; Benjamin v. American Tele-
phone & Telegraph Co., 196 Mass. 454, 82 N. E. 681, 13 Ann. Cas. 306.
Sale on execution, which is in the nature of a statutory conveyance,
stands upon the same basis as a conveyance by the owner.
The case at bar is governed by Brown v. Bailey, 1 Mete. 254, in
which at page 257 Chief Justice Shaw said, respecting facts precisely
similar to those presented in the case at bar, "such conveyance or levy,
therefore, is good against the grantor and all claiming under him.
If then the other cotenants release, or if upon a partition, their full
shares are set off in other parts of the common estate, and the part
conveyed or levied on is assigned to the party whose share has thus
been conveyed or levied on by metes and bounds, such partition op-
erates by way of estoppel and release, because no one has any longer
a fight to contest its validity." The principle that a conveyance by
metes and bounds, whether by personal deed or statutory transfer,
by one tenant in common of a portion of the common estate, although
of no efifect against the consent of his cotenants, operates after parti-
tion by way of estoppel to transfer the title, has been affirmed repeat-
edly. De Witt V. Harvey, 4 Gray, 486, 491 ; Barnes v. Boardman,
157 Mass. 479, 32 N. E. 670; Barnes v. Lynch, 151 Mass. 510, 512, 24
N. E. 783, 21 Am. St. Rep. 470; Frost v. Courtis, 172 Mass. 401, 404,
52 N. E. 515.
The application of this principle results in something like a wager
or chance. The grantee gets nothing unless on partition the share
of the grantor should happen to include the parcel described by metes
and bounds in the deed. The grantor loses by estoppel and release all
his interest in the parcel so described if it should happen to be set
off to him.
By the partition, the interest of Sarah E. Newhall in the entire es-
tate inherited by her both from her father and her brother, consist-
ing of several parcels, was converted into a one fourth interest in the
Park Street property. Of this one fourth she acquired six out of seven
parts by inheritance of the one seventh of her father's estate. This
share, or six twenty-eighths, is held by the first levy of execution,
which was made before the death of the brother, from whom she in-
herited. The one sixth of one seventh which she inherited from him,
constituting one out of seven parts of the one fourth of the Park
Street property, or one twenty-eighth, passed under the second levy,
under which also passed the entire share of Harriet. The ruling
of the Superior Court as to who are the cotenants and their respective
shares was right.
Interlocutory judgment affirmed."*
62 Cf. Bising v. Stannard, 17 ISIass. 282 (1S21). Cf. also Butler v. Roys, 25
Mich. 5.3, 12 Am Hep. 218 (1872).
See Eiiipric v. Alvarado, 90 Cal. 444. 27 Pae. .356 (1S91) : Youns v. Edwards,
33 S. C. 404, 11 S. E. 1066, 10 L. R. A. .55, 26 Am. St. Rep. 6S9 (1S90) ; Pellow v.
Arctic Iron Co., 164 Mlcli. 87, 128 N. W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas.
1912B, 827 (1910).
728 DERIVATIVE TITLES (Part 2
LESSEE OF WHITE v. SAYRE.
(Supreme Court of Ohio, lS2o. 2 Ohio, 110.)
This was an ejectment, and came before the court upon a case
agreed, adjourned from Greene county. The facts material to be re-
porteil, are these :
The defendant was in possession of a tract of land which had been
the property of his former wife, by whose death it had descended in
parcenary to her eight brothers and sisters ; with one of the latter
the defendant had again intermarried. By a judicial proceeding in
the court of common pleas, partition had been made and a separate
part assigned to each by metes and bounds. The lessor of the plaintift
purchased the separate right allotted to three of the heirs, and took
separate deeds from each for so much land specifically described.
Error was afterward brought in the Supreme Court, upon the pro-
ceedings in partition, and they were reversed.
The declaration contained several demises ; among others, a separate
one for one undivided eighth part of each of the tracts contained in his
three deeds; and whether he could recover upon these deeds and
demises, was the question submitted to the court.
Hitchcock, J. It is well settled that where one joint tenant, or
tenant in common, has ejected, or withheld the possession from his
co-tenant, the person so ejected or held out of possession, may main-
tain his ejectment against the ejector or person in possession. To
determine the case under consideration, then, it is only necessary to
ascertain whether the lessor of the plaintiflf took anything under the
three several deeds referred to in the agreed case, or, in other words,
whether he had any interest in the premises in dispute. The grantors
were three of the heirs of the deceased wife of John Sayre, Jr. By
the death of tlieir sister, the interest in the one hundred and fifty-
five acres of land was vested in them and their brothers and sisters as
coparceners, or tenants in common. It is to be observed, that when
these deeds were executed, partition had been made of the one hun-
dred and fifty acres of land, by judgment of the court of common
pleas, in pursuance of the statute in such case made and provided.
The three parcels which were conveyed to White had been, by this
judgment, aparted and set off to the grantors in severalty. Under the
then existing circumstances, they conveyed nothing more than they
had a legal right to convey. So long as this judgment remained
in force, the title of the lessor of the plaintiff to the lands to him con-
veyed, was perfect. This judgment, however, was subsequently re-
versed ; and it is necessary to ascertain how far the deeds, which were
before operative, were affected by this reversal. That the reversal
must in part, at least, defeat the operation or validity of those deeds,
there can be no doubt. The judgment being reversed, tlie parties in
interest could be no more affected by it than if no judgment had beer?
Ch. 5) ESTATES CREATED 729
rendered. Under these circumstances, the decision of this case must
depend upon the solution of these several questions : 1. Can one of
two or more joint tenants, coparceners, or tenants in common, con-
vey his interest in the estate thus held? 2. If he can convey his in-
terest or estate in the whole property thus held, can he convey it in a
part merely? 3. Is a deed, or grant, which purports to convey an
estate in severalty, when the grantor has, in fact, only an estate in
joint tenancy, coparcenary, or in common, void ; or does it convey
the whole interest of the grantor in the premises purporting to be con-
veyed ?
1. Can one of two or more joint tenants, coparceners, or tenants
in common, convey his interest in the estate thus held?
This is a question about which it is presumed there can be no dis-
pute. Such conveyances are frequently made, and their validity is not
questioned. In fact, this is one of the most common modes resorted
to for destroying a joint tenancy. One joint tenant aliens and con-
veys his estate to a third person, by \vhich means the joint tenancy is
severed and turned into a tenancy in common.
2. If one joint tenant, etc., can convey his interest or estate in the
whole property thus held, can he convey it in a part merely?
The determination of this question is attended with considerable
difficulty. This difficulty, however, arises, not so much from any ap-
parent inconsistency, or impropriety in such grant, as from a possible
inconvenience which might result to the tenant who retains his estate.
One tenant in common may grant his entire interest or estate in a
particular species of property, a tract of land for instance, or he may
grant one-half as a smaller proportion of his interest in the same en-
tire property. If this be correct, no good reason is perceived why he
may not grant his entire interest in a particular part. A. and B. are
seized of a section of land as tenants in common. It is well estab-
lished, that A. may grant his entire interest, or estate, in the section,
and the conveyance will be valid. Upon what principle, then, can it
be said, that if he convey his entire interest in a particular quarter of
such section, such conveyance shall be void? Certainly A. and B.
tenants in common, as aforesaid, might with propriety unite and con-
vey a particular quarter of the section, and a complete title in the
grantee would be vested. Would not the title of the grantee be equally
valid, if the tenants in common should by separate deeds convey to him
their individual interest in that particular quarter? This question, it
is believed, must be answered in the affirmative, and if so, it proves
conclusively that one tenant in common may transfer to a third person
his entire interest in a part of the property held in common. Other-
wise we run into this absurdity, tljat a deed properly executed, by
one individual, which is an entire -thing, and purports to convey a
specific property, must depend for its validity upon the execution of
a similar instrument by a third person, who is in no way party to the
first. The principal reason assigned why one tenant in common shall
730 DERIVATIVE TITLES (Part 2
not be allowed to convey, as before stated is, that by so doing, he may
do a great injury to his co-tenant, by compelling him in case of parti-
tion, to take his proportion of the estate in small parcels, very much
to his disadvantage. If such evils would result, they ought if possible
to be avoided. It does not follow, however, that because one of two
tenants in common can convey his estate in a part of the property so
held, therefore the rights of his co-tenant are affected. This co-tenant
will still have the same interest in every part, and in the whole of the
property. He can still compel partition, and may have his share of the
property s€t off to him in severalty, in the same manner he could have
done had no conveyance been made. Such, at least, as at present ad-
vised, is Jthe opinion of the court, and if in this we are mistaken, the
objection is not of sufificient force to induce us to adopt any other prin-
ciple, as applicable to this case, than as before stated.
3. Is a deed, or grant, which purports to convey an estate in sever-
alty, when the grantor has in fact only an estate in joint tenancy, co-
parcenary, or in common, void; or does it convey the whole interest
of the grantor in the premises purporting to be conveyed?
Every deed is to be so construed as, if possible, to give effect to the
intention of the parties. It is to be construed most strongly against
the grantor. If the intention of the parties, apparent upon the face
of the instrument, cannot be carried into effect, this object should be
attained as far as is possible. Taking these principles into considera-
tion, and adopting them as correct, it follow^s, that where an individual
undertakes to convey to another a greater interest in the thing conveyed
than what he possesses, the grantee may take that which was in his
grantor. A. conveys to B. one hundred acres of land by metes and
bounds. It is afterward ascertained that C. has title to fifty of the
one hundred acres included within the boundaries. Will it be said
that B. can take nothing by this deed? On the contrary, all the lands
within the prescribed boundaries, to which A. had title, are, by the
conveyance, vested in B. So far as the deed can have effect, so far
it ought. The circumstance that the grantor has attempted to convey
more land than he was possessed of, shall not prevent the deed from
conveying that of which he was possessed. Upon the same principle,
if A. and C. had been tenants in common of the same one hundred
acres of land, and A. had attempted to convey tlie whole in severalty
to B. so far as A. had any interest, that interest would, by the convey-
ance, have been vested in B. Thus far the deed would take effect.
Under it B. would become tenant in common with C. in the same
manner he would have done had tlie conveyance from A. been for an
undivided moiety of the land.
These principles being applied to tlie case under consideration, it
will be seen that the grantors of "tlie lessor of the plaintiff, although
they had not a several estate in the parcels of land by them to him
conveyed, yet had an interest as coparceners, or tenants in common
with others. That by the deeds of conveyance, this interest, what-
Ch. 5) ESTATES CR"EATED 731
ever it might be, was vested in the lessor of the plaintiff; and he be-
ing kept out of possession by the defendants, the action is well brought,
and the plaintiff is entitled to a judgment. Let judgment, tlierefore,
be entered accordingly."^
SECTION 7.— REVERSIONS AND REMAINDERS
LEAKE, LAW OF PROPERTY IN LAND.
If tenant in fee simple convey the land to a person for a particular
estate only, as for an estate tail, or for term of life, or of years, there
remains in him and his heirs an estate expectant, as to the possession,
upon the determination of the particular estate. This estate is called
the reversion, because the land then reverts or returns in possession to
him or to his heirs. * * *
In like manner, if the tenant of a particular estate convey the land
for a less estate, he has a reversion left in himself. * * *
The grant of a particular estate, leaving a reversion in the grantor,
creates a tenure between the tenant of the particular estate and the
reversioner. This tenure is not within the statute of Quia Emptores,
for that statute extends only to alienations in fee simple, preventing
any new tenure arising upon such alienations. Hence rent reserved
upon such a grant of a particular estate is of the nature of rent serv-
ice, and is attended at common law with the remedy of distress. And
a grant of the reversion impliedly carries with it all the incidents of
the tenure, as the rent service, if any, unless there be an express ex-
ception of such incidents in the grant. * * *
If tenant in fee simple convey a particular estate in the land to one
person, and at the same time another estate, to commence in possession
immediately upon tlie expiration of the particular estate, to another
person, the latter estate is called, relatively to the prior particular es-
tate, a remainder. Thus, if tenant in fee simple grant to A. for life,
and after the determination of that estate to B. for life, the estate of
B. is a remainder relatively to the estate of A. So, if the grant be
made to A. for life, and after the determination of that estate to B.
arid to his heirs, B. has a remainder in fee. In the former example
there is a reversion in fee in the grantor ; in the latter the whole fee
is disposed of and there is no reversion. In like manner, several re-
mainders may be created successively in the same land, either leaving
a reversion or with an ultimate remainder in fee.
6 3 The dissenting opinion of Burnet, J., is omitted.
See Matter of Prentiss, 7 Ohio. 129, jit. 2, .30 Am. Dec. 20.3 (1836); Barn-
hart V. Campbell, 50 Mo. 597 (1S72) ; KoLanett v. Preston's Heirs, 2 Rob. (Va.)
278 (1S4TJ); Stark v. Barrett, 15 Cal. .301 (1S60).
732 DERIVATIVE TITLES (Part 2
If a grant be made to A. for life, and after the lapse of a day after
his death to B. for life or in fee, the limitation to B. is not a remainder,
because it does not commence in possession immediately on the deter-
mination of the particular estate; it is a hmitation of a freehold es-
tate to commence in f uturo, which in a common law conveyance is void,
and the reversion of A.'s estate remains in the grantor.
Also a limitation which is to take effect in defeasance of a preced-
ing estate, without waiting for the regular determination of that estate
according to the terms of its limitation, is not a remainder ; and such
a limitation is void at common law. But the preceding particular es-
tate may be made determinable by a conditional limitation, and the
estate limited to take effect in possession immediately upon its deter-
mination, whether that happen under the conditional limitation or by
the expiration of the. full term of limitation, is a remainder.
The particular estate and the remainder must be created at the same
time by one conveyance or instrument ; for if the particular estate be
first created, leaving the reversion in the grantor, any subsequent dis-
position can be effected only by grant or assignment of the reversion ;
which is not thereby changed into a remainder, but still retains its
character of a reversion, to which the tenure of the particular estate
is incident.
A remainder which is certain as to the owner and absolute as to his
estate or interest is a vested remainder ; the remainderman is presently
invested with a portion of the seisin or freehold, the whole fee being
divided into a particular estate and remainder or remainders.
. But a remainder may be limited to a person not yet ascertained, or
to a certain person upon a condition precedent which may not happen
until after the determination of the particular estate; and whilst such
uncertainty lasts, as to the person or the interest, it is described as a
contingent remainder. A contingent remainder becomes changed into
a vested remainder by the owner becoming certain or tlie condition
happening during the continuance of the particular estate.
According to Fearne: "A contingent remainder is a remainder lim-
ited so as to depend on an event or condition which may never happen
or be performed, or which may not happen or be performed till after
the determination of the preceding estate." And, as he afterwards
explains : "It is not the uncertainty of ever taking effect in possession
that makes a remainder contingent; for to that every remainder for
life or in tail is and must be liable; as the remainderman may die
or die without issue before the death of the tenant for life." The
present capacity of taking effect in possession, if the possession were
to become vacant, and not the certainty that the possession will be-
come vacant, before the estate limited in remainder determines, uni-
versally distinguishes a vested remainder from one that is contingent.
The principle of the common law that the seisin of the freehold can
never be in abeyance, but must always be vested in some determinate
person imposed two rules upon the limitation and operation of con-
Ch. 5) ESTATES CREATED 733
tingent remainders : The first of which rules was that a contingent re-
mainder of freehold must always have a particular vested estate of
freehold to support it.
The other rule resulting from the principle above stated is : That a
contingent remainder must formerly have become vested during the
continuance of the particular estate or at the instant of its determina-
tion. If not then vested, it failed altogether, and the next limitation
took immediate effect.
The limitation of a contingent remainder for Hfe or in tail, as it con-
veys no estate, but only a possibility of an estate in a future event,
does not interfere with the limitation of a vested estate of freehold
in remainder ; and upon the contingent remainder becoming vested
during the continuance of the particular estate, the vested remainder
will be postponed in interest.
Where there is a contingent limitation in fee absolute, no estate
limited afterwards can be vested ; but twO' or more several contingent
remainders in fee may be limited as substitutes or alternatives one
for the other, so that one only take effect, and each subsequent limita-
tion be substituted for a former if it should fail of effect; and the
inheritance in the meantime, if not otherwise disposed of, remains in
the grantor and his heirs, or in the heirs of the testator "until the con-
tingency happens to take it out of them. Upon a devise of a contingent
remainder in fee, the fee subject to the contingency will pass as a
vested remainder under the will by a specific or residuary devise.
Randall's Ed., pp. 228, 229, 230, 231, 233, 234, 236, 237, 243, 244.
DERIVATIVE TITLES (Part
CHAPTER VI
COVENANTS FOR TITLE
NOKE V. AWDER.
(Queen's Beuch. 1595. Cro. Eliz. 373, 436.)
Covenant. Wherein he shews that one John_King made a lease for
years to A.jdie defendant, who by deed granted it to Abel, andja;^e-
nq,ni£d with him^__yiat-be and his assignees should peaceably enjoy it
without interruption. Abel grants it to J. S. who grants tlie term to
the plaintiff, who being ousted by a stranger, brings this action; and
after issue joined upon a collateral matter, and after verdict for the
plaintiff, it was alleged in arresi^_ofJudgment, that this action lay not
for the second assignee, unless -Jie-CQuld shew the deed of the first
, c^\ciianl, and of the assignment, and of every mean assignment; for
^«4r without deed_none can be assignee to take advantage of any cove-
[ J ^ ^f nant, which cannot commence jwithout deed ; and to that purpose cited
lA » y^ Old Act, 102. and 19 Edw. II. "Covenant," 25. And if one be in-
feoffed with warranty to him his heirs and assignees, and the feoffee
makes a feoft'ment over without deed, the assignee shall not take ad-
vantage of this warranty, because he hath not any deed of assignment.
But if he had the deed, it should be otherwise; and to that purpose
vide 13 Edw. III. "Vouch." 17. 3 Edw. III. "Monstrans de Fayts"
37. 11 Edw. IV. Ibid. 164. 15 Edw. II. Ibid. 44. 13 Hen. VII.
13. & 14. 22 Ass. plea 88. But Popham held, that he shall have ad-
vantage ._ with.QU,t ..the, deed of assignment; for there is a difference
^vhere•a covenant is annexed to a thing, which of its nature cannot
pass at the first without deed, and where not. For in the first case,
the assignee ought to be in by deed, otlierwise he shall not have ad-
vantage of the covenant; and therefore he denied tlie case of the
feoffee with warranty ; for the second, feoffee sh^ll have benefit of ihe
warranty, although he joth^not shew the deed of assignment, but shews
tlie deed of the warranty: and so is the better opinion of the books.
And to that opinion the other justices incHned. Sed adjournatur.
Vide 3 Co. 63.
It was now moved again. And all the Justices agreed, that the as-
sjo'nee shall have an action of covenant without shewing any deed_2 f
the assignment: for it is a covenant which ^runs with the estate: ^d
the estate being passed without "^eed, the assignee "sfiall have the ben-
efit of the covenant also: and the executor of the baron, who is as-
signee in law, who comes in without deed, shall have the benefit of
such a covenant, as appears 30 Edw. 3. in Symkins Simonds' case.
And Popham and Fenner held, th^t a feoffee shall yi
w^.
Ch. 6) COVENANTS FOR TITLE 735
ranty made to his feoffor, without shewing any deed of assignment :
for the deed of assig;nment is not requisite, nor is it to any purpose to
shew it; for it appears by the books, that being shewn, it is not tra-
versable by the vouchee. And as a warranty or covenant is not grant-
able, nor to be assigned over without the estate; so when the estate
passeth, akhough it be by parole, the warranty and covenant ensue
it| and the assignee of the estate shall have the benefit thereof. Coke
Attorney General (who was of counsel with the defendant) said, that
the law was clear as you have taken it, yet the declaration is ill ; for
he declares, quod cum Johannes King, 10 Eliz. let that to the defend-
ant for years, virtute cujus he was possessed, and granted it to Abel
by indenture with the covenant, who in 15 KHz. assigned it to the
plaintiff: and further alledgeth, that loiig time before that the said
J. K. had any thing, one Robert King was seised in fee, viz. 7 Eliz.
and so seised, died seised in 15 Eliz. and it descended to Thomas King,
who entered upon the plaintiff and ousted him; so he doth not shew
that John King who made the lease had any thing; for Robert King
was thereof then seised. And then when John King let to the de-
fendant, and he granted his term by indenture, nothing passed but by
estoppel ; then the lessee by estoppel cannot assign any thing over,
and then the plaintiff is not an assignee to maintain this action. Sut
admitting that J. K. had at the time of the lease made by him, a lease
for a greater number of years, and that Robert King had the free-
hold, and thereof died seised, and so all might be true which is plead-
ed ; tlien the entry of Thomas King upon the defendant is not lawful.
So quacumque via data, this action cannot be maintained. And this
point for the case of estoppel was adjudged in this Court, in the case
of Armiger v. Purcas, in a writ of error.
And all the Court held here, that it was clear upon the matter shewn,
tkat the action lav not ; for the plaintiff ought to have shewn an estate
by descent in T. King.^t the time of the lease and assignment made, or
an estate wherebv he might make a leas.^. and that this was afterwards
determined ; and so confess and avoid the estate in the lessor, other-
wise this action of covenant lieth not: aiid it never lies upon the as-
signment of an estate by estoppel. Wherefore they were of opinion
to have then given judgment against the plaintiff; but afterward they
would advise until the next term.
Note. This was continued until Trin. 41 Eliz. and then being miOved
again, all the justices resolved, that the assignee of a lease by estoppel,
shall not take advantage of any covenant; but that it shall not be
intended a lease by estoppel, but a lawful lease. But no sufficient
title being shewn to avoid it, it is then as an entry by a stranger with-
out title, which is not any breach. Wherefore it was adjudged for
the defendant.^
1 In an action of covenant for nnnn.qvment of rent by the assigriee of the
Tpgsnr^gavnsf, l;Qp lepsep f-he plninfiff in his dpHni-Mtion alleged seiSin in fee in
tfielessor at the time of making the indenture of lease, the execution of said
736 DERIVATIVE TITLES (Part 2
BEDDOE'S EX'R v. WADSWORTH.
(Supreme Court of New York, 1S39. 21 Wend. 120.)
Demurrer to declaration. Thi§ was an action on covenants of jjjzt-
rantv and for^uiet enjoyment, contained in a deed of land, dated July
7th, 1797, executed by the defendant to John Johnston. Each count
(there being six in all) averred that afterwards, viz. on tlie same day,
the defendant.by Johnston's direction, and with his consent, surrender-
ed possession of the land to the testator. John Beddoe. who continu£fl
in possession until Johnston, on the 16th August. 1802. bv indenture, in
consideration of one dollar, therein expressed as in hand paid by
Beddoe. did *'remise. release. And forever quit claim unto the said Jnhn
Beddoe. his heirs and assigns forevejr, all the right, title, interest,
claim or demand, which the said John Johnston, &c. had in or to the
said tract, &c. to have and to hold the said tract, &c. unto the said
John Beddoe, his heirs and assigns forever, to his and their own proper
use, benefit and behoof, &c." Each count stated an eviction from
part of the premises, while in possession of persons Haiminy nndpr
Tohn Reddoe. the plamtitt^s testator, and diirir|cy th^ litAti-m^ ^f t^»
testator. The eviction was alleged to have been in virtue of a title
in one Rachel Malin. All the counts except the sixth stated this title
to be paramount to the defendant's ; and all except the fifth averred
that the plaintiff^ as executor, had thereby incurred damages and costs.
The hlth count averred that the testator in his lifetime, and the plain-
tiff since his death, had been obliged to pay them.
The first and second counts averred that the defendant's deed to
Johnston was given to and received by Johnston-* for and in behalf ni
RpdHop, thp t^st^to^. and for his benefit.
All the counts except the third, concluded as for a breach of the cov-
enant for quiet enjoyment only; the third was for a brearl] nf the
covenant of warranty only. But the deed as set forth in eadi count
in fact contained covenants of seisin, of warranty, for quiet enjoyment,
and further assurance. The defendant demurred to each count.
CowEN, J. If the covenants of warranty and for quiet enjoyment
passed by the quitclaim deed from Johnston to the plaintiff's testator,
the right of action sought to be shown by the declaration seems to
be clear in all the counts except the sixth. This count is defective in
n^t averring that the eviction was by a title paramount to that of the
deTendant. Webb v. Alexander, 7 Wend. 281 ; Luddington v. Pulver,
6 Wend. 404 to 406; Greenby v. Wilcocks, 2 Johns. 1, 3 Am. Dec. 379 ;
indenture, the assi^ment by the lessor, and the breach. To^a nlea nllPEp'ng
that prior to the making of said lease the lessor had conveyed the premises in
fee and that thereafter the lessor has no Interest therein, there was a deiu u r-
i;e?r" The Seniurrer was sustained. Palmer v. Ekins, 2 Ld. Raym. 1550 (1728) .
See Cuthbertson v. Irving, 4 H. & N. 471 (1859) ace.
Noke V. Awder was approved in Nesbit v. Montgomery, 1 N. C. 181 (1800),
and in Martin v. Gordon, 24 Ga. 583 (1858).
Ch. 6) COVENANTS FOR TITLE 737
Ellis V. Welch, 6 Mass. 246, 4 Am. Dec. 122 ; per Savage, Ch. J., in
Rickert v. Snyder, 9 Wend. 421, 422; 4 Kent's Comm. 479, 3d Ed.
Non constat bnt Rachel Malin mav have proceeded to eviction upon
a right derived from Johnston or the testator himself. In the other
five counts, however, there is enough to show that during the life
time of Beddoe the testator, he either became personally liable on cove-
nants to his grantees as to a part of the premises from which they
were evicted by a title superior to the defendants, or suffered an in-
jury in an eviction of his tenant by a like superior title. Then it is
averred either that the plaintiff was compelled to pay damages and costs
as executor, or, according to the fifth count, the testator in his life time
was obliged to pay a part, and the plaintiff another part after his
death. In either case, the right of action pertained to the testator
personally. The covenant was broken by the eviction, and the whole
damages were due^ Hosmer, Ch. ]., in Mitchell v. Warner, 5 Conn. 504
to 506, the right to which passed on his death, not to his heir, but to
hjs personal representative. Hamilton v. Wilson, 4 Johns. 72, 4 Am.
Dec. 253 A covenant real ceases to be such when broken, and no
longer runs witKthe land. It would not go to the heir by death, for
the same reason that it could no longer follow the land into the hands
of a devisee or grantee. See Markland v. Crump, 18 N. C. 94, 101, 27
Am. Dec. 230; Kingdom v. Nottle, 1 Maule & Sel. 355; s. c, 4 Maule
& Sel. 53.
This view of the case disposes of all the minor objections raised
by the demurrers. There must be judgment for the defendant on the
sixth count, and for the plaintiff on all the others, unless either the first
or second point taken by the defendant's counsel is sustainable. These
are each applicable to the remaining five counts.
The first point is, that it appears from five of the counts, that
when the defendant conveyed to Johnston, he, the defendant, had no
title; and as no estate therefore passed to the plaintiff's testator, the
covenants were not assigned; that covenants pass only as incidents
to an estate; and if there be none, the covenants cannot be said to
be annexed to an estate, much less to pass with it. The point seems
to suppose that these covenants can never be transferred where there
is a total want of right in the original covenantor, though his deed
transfer the actual possession. It seizes on the phrase in 4 Kent's
Comm. 471, note b, 3d Ed., and other books, "that they cannot be sep-
arated from the land and transferred without, but they go with the
land as being annexed to the estate, and bind the parties in respect to
privity of estate." No New York case was produced which denies
that they pass where the possession merely goes from one to another
by deed, and there is afterwards a total failure of title; but there are
several to the contrary. Withy v. Mumford, 5 Cow. 137; Garlock v.
Closs, 5 Cow. 143, n. And see Markland v. Crump, 18 N. C. 94, 27
Am. Dec. 230; Booth v. Starr, 1 Conn. 244, 248, 6 Am. Dec. 233.
Aig.Prop. — 17
738 DERIVATIVE TITLES (Part 2
Nor, when we take the word estate in its most comprehensive meaning,
can it be said there is none in such a case to which the covenant may
attach. It is said by Blackstone to signify the condition or circumstance
in which the owner stands with respect to his property, 2 Black. Comm.
103, and a mere naked possession is an imperfect degree of title, which
rnay ripen into a fee by neglect of the real owner. Id. 195, 6. It is,
in short, an inchoate ownership or estate with which the covenants
run to secure it against a title paramount; and in that sense is as-
signable within the restriction insisted upon. It is said in several
cases that the covenants of warranty and quiet enjoyment refer em-
phaticallyjp the possession and not to the title! WaldronTv. McCarty,
3 Johns. 471, 473, per Spencer, J. ; Kortz v. Carpenter, 5 Johns.
120. The meaning is. that however defective the title may be, thgse
covenants are not broken till the possession is disturbed. When the
latter event transpires, an action lies to recover damages tor the fail-
ure both of possession and title according to the extent of such failure.
The case of Bartholomew v. Candee, 14 Pick. (Mass.) 167, was
mainly relied upon in support of the ground taken by the first point. All
that case decides is, that a covenant no longer runs with the land after
it is broken. The declaration was by the grantee of one Thorp, to
whom the defendant had conveyed in fee with covenants of seizin and
warranty; and breaches were assigned upon both. The defendant
pleaded and the jury found, that before the defendant conveyed to
Thorp, he had conveyed to one Sparks, who entered and died actually
seized, leaving the land to his children, who were still actually seized
when the defendant conveyed to Thorp. Mr. Justice Wilde arrives at
the conclusion that the covenant of seizin was broken before the.jieed
from Thorp to the plaintiff ;_ and adds : "This point being establishgd,
it is perfectly well settled that no action will lie on this contract in the
name of the assignee. By the breach of the covenant of seizin, an
action accrued to the grantee, which being a mere chose in action, was
not assignable." He does not notice the covenant of warranty, but
seems to consider the claim under that as standing on the same ground ;
which I think might well lie under the pleas as found by the jury.
The fair import of these was, that neither Thorp nor the plaintiff
ever had possession ; so that, according to some cases, the covenant
of warranty was also immediately broken ; Duvall v. Craig, 2 Wheat.
45, 61, 62, 4 L. Ed. 180; Randolph v. Meek, Mart. & Y. (Tenn.) 58;
and according to our own it never could have any effect. No p_os-
session ever having been taken under the deed, there could be no actu al
eyiction, which is said to be essential to a recovery upon a covenant
ofw|o;antj^ Webb v. Alexander, 7 Wend. 281 to 284, and thecases
tliere cited ; Jackson, ex dem. Montresor, v. Rice, 3 Wend. 180, 182,
20 Am. Dec. 683, per Savage, Ch. J.; Vanderkarr v. Vanderkarr, 11
Johns. 122. See a very full collection and consideration of the cases
to this point, both as it respects the covenant of warranty and for
quiet enjoyment, by Hosmer, Ch. J., in Mitchell v. Warner, 5 Conn.
Ch. 6) COVENANTS FOR TITLE 739
521 to 526. That an unbroken covenant of warranty shall run with
the possession of the land, was not questioned by counsel or court in
Bartholomew v. Candee. nor was it in a subsequent and similar case,
Wheelock y. Thayer, 16 Pick. (Mass.) 68, also relied upon.
I have looked through the other cases cited by the counsel for the
defendant, and they all go to the point, eithe^ffiat a covenant broken j/jjj, ^ /\*f^
ceases to be assignable, orl:hat covenants in gross arp not so. Theje ■^^__— _ -—""
positions are indisputably settled ; and fwe have adopted the first, in
order to show that this action was properly brought hy John .Reddoe's
executor instead of his heir. I do not except from this remark the
case of Andrew v. Pearce, 4 Bos. & Pull. 158. It is true that was
an action on covenants both that the defendant had authority to de-
mise and for quiet enjoyment. The title failed before the plaintiff
took an assignment; he entered and was ousted: and it wfis hflc^ that
he^ could not recover, because themere failure of thg.J:^^l^ KrnVp th^
covenants. Mansfield, Ch. J., said expressly, the assignor had only a
right of action left, which he could not assign. It would seem by this » •
case that, in England, a simple failure of title, without eviction, would ^ju-c*-a-«-*^ '*^C/f'*^
be a breach of the covenant for quiet enjoyment. With us the doc- |yt,4^^yv^ ^^^^
trme is clearly otherwise. Kortz v. Carpenter, 5 Johns. 120; Norman ^ «^ "Va^S Ct^L
V. Wells, 17 Wend. 160, and the cases there cited. And see Mitchell
v. Warner, 5 Conn. 497, 522, and the very full reference there to the
New York cases. In Andrew v. Pearce, the lease was treated as totally
gone, by a failure of the title; whereas there was still a continuing
possession, till the plaintiff was ousted, and then and not till then, ac-
cording to our cases, was the covenant for quiet enjoyment broken.
There is a difference in more respects than one between our own and
the English cases as to what shall constitute a breach of the covenants
of title, so as to take away their assignable quality. Even a covenant
of^seizin. made and broken in the same breath, is there held, to run with
the land, till actual damages are sustained by the breach.^ Kingdom
V. Nottle, 1 Maule & Sel. 355 ; 4 Maule & Sel. 53. Kent's Comm.
471, 2, 3d Ed., says the reason assigned for the decision is too refined
to be sound. The case is followed by Backus' Adm'r v. McCoy, 3 Ohio
211, 17 Am. Dec. 585; but severely criticised in Mitchell v. Warner,
5 Conn. 497 to 505 ; Kent's Comm. ut supra, note a.
But secondly, if the covenant be in its own nature available to the
assignee as a protection against the total failure of the defendant's
title, and if it be assignable by a grant of the land, it is insisted
that none of the counts in the declaration show that such- a grant was
made from Johnston to the plaintiff's testator. All the counts stop
with averrjpjpr thaf Johnston, for the consideration of one dollar, re-
noised, released and forever quit-claimed to the testator in fee. Tech-
nically, these are but words^f release ; and as up previous lease from
Johnston to the testator is shown, it is supposed that the g:ranting
words are inoperative. This objection supposes that the words used
cannot carry the estate except as part of a conveyance by, lease and
^''
t, Kt40 derivative titles (Part 2
-^ V release ; and that, in order to give them effect, a lease should be
*/ 7. shown, either by its production and proof, in the usual way, or its
/
recital in the release; and this formal strictness would seem still
tojgrevaUjn England. Doe, ex dem. Pember, v. Wagstaff, 7 Carr. &
Payne, 477. In Bennett v. Irwin, 3 Johns. 365, 366, Van Ness, J., said,
a mere release or quit-claim^ unless the releasee is in possession, is
void. _Rnt 1-hp declaration, in the case at bar, shows that the grantee
was in possession. Even this strictness was, however, totally exploded,
by the case of Jackson, ex dem. Salisbury, v. Fish, 10 Johns. 456,
the operative words as set forth in the declaration being held of them-
selves sufficient to raise and execute a use under the statute. The
conveyance was there held good as a bargain and sale. Had that case
occurred to counsel, we should doubtless have been saved the ex-
amination of this objection; for we do not remember its being
denied on the argument that words which are sufficient to pass a ite
in conveyancing are equally sufficient in pleading by way of aver-
ment.
The demurrers are overruled as to all the counts except the sixth,
and the judgment must be given for the plaintiff.
The demurrer to the sixth count is well taken, and judgment must
be given for the,de^endant as to that count, with leave to both parties
to amend.*
SQtBERG v. ROBINSON.
(Supreme Court of South Dakota, 1914. 34 S. D. 55, 147 N. W. 87.)
PoLLEY,. J. On the 27th day of January, 1906, one C. C. Robinson
and wife executed and delivered to W. J. and J. L. Smith a certain
warranty deed, purporting_to^onvey to said Smiths, with other prop-
env^quarter section of land in Hughes County. On tlie 9th day of
January, 1907, said Smiths executed and delivered to -plaintiffs a war-
rant}'- deed, purporting to convey said land to plaintiffs, but neither the
Robinsons nor the Smiths were ever in the actual possession of the
2 See Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 406 (1852) ; Slater v. Kawson,
1 Mete, (aiass.) 450 (1840), s. c. 6 Mete. (Mass.) 439 (1813), aec.
See, also, Dickson v. Desire's Adm'r, 23 Mo. lol, 66 Am. Dec. 661 (1856);
Backus' Adm'rs v. McCoy, 3 Ohio, 211, 17 Am. Dec, 585 (1827).
A., the owner of premises, lived thereon with her husband, he p^YJPg ^"hp
taxes and looking^ aftpr repnjrs^ t^tK laoth joined in a deed conveying the prem-
ises to X., the deed cnntainlnp; fovpn^nts by them that she was seized, also for
quiet ^niayment and general warranty. X. conveyed to Y., who, after eviction.
sue^ A. anTB. on the CQvenant.s. ShonLI there be a "recovery?
What should be the result where "ElTe spouse s ought" to be held liable by the
assignee of the covenantee had an inchoate dower interest in the premises?
See H. T. & C. Co. v. Whitehouse (Utah) 154 Pac. 950 (1916).
A conv_eyance with warranty is made hv one "o^-- in possession: the cove-
nantee goes into possession and conveys to the plaintiff, wno is evicted, ^ojjld
the covenantor be held liable on the covenant? See Wead v. Larkin. 54 111. 489,
5"Xm: Rep. 14§'(1870) ; Tillotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St.
Rep. 9"i (I8S7).
Ch. 6) COVENANTS FOR TITLE 741
land. Thereafter, one Vesev commenced an action against plaintiffs
for the purpose of quieting titleto said premises and to enjoin plaiji-
tiffs in this action from asserting further claim thereto. Said action
was defended by plaintiffs but, on the trial, it developed that, from a
time long prior to the attempted conveyance from the Robinsons""to
the Smiths and down tothe time, of the triah said Vesev was the ab-
solute, owner in fe^ of the land in question ; that, while Robinson's -C
title appeared to come through Vesey, the deed which purported to '^•^
divest him of his title proved to be a>-ig^ggj;;v and he had judgment ^'&CA
prayed for. Upon appeal to this court, said judgment was affirmed. A'^^
Vesey v. Solberg, 27 S. D. 618, 132 N. W. 254. ^
In the deed from Robinson to the Smiths, Robinson and wifa cove-
nanted Xvith the Smiths: "Their heirs and assigns that they are well %^jl^ /tA^^v^
seized^in fee of the lands and premises aforesaid and have good right ^ \ ^
to sell aiid convey the same in manner and form aforesaid." and that (/C#vt>»-u^»* ^*
"the above bargained and granted lands and premises in quiet and
peaceable possession of the said parties of the second part, their heirs
and assignsTand against all persons lawfully claiming or to claim the
whole or any part thereof the said parties of the first part will warrant c^^^^jf . Ax^^x
and forever,.defend." The deed from the Smiths to plaintiffs con- . * .
tained coyen^^nts (^^ similar import. '^ ^^^'*'**^^*'^
After the affirmance of the judgment quieting title to the said
premises in Vesey, plaintiffs commenced this action against the de-y
fendant as administrator of the estate of the said C. C. Robinson, whol^^,^,t_..^^ ^^
had died in the meantime, for the purpose of recovering on the abo\^ ^ffT
quoted covenants in the Robinson deed of January 27, 1906^ During ^-«^^'*^^**'**
all of this time, the land in question was vacant and unoccupied. The */ /(<tCH^*i*.*s*^
Smiths were named as defendants in the summons, but only one of C^v^C*^
them was ever served, and as to him, the action was dismissed. Plain-]
tiff seeks to recover the amount Robinson had received for the land/rfg^^^, i ^^.j^^tM.
with interest, together with the expenses necessarily incurred in ^e-\ ^
fending the Vesey case in the circuit court^ upon appeal to this court I
apd upon motion for rehearing, including attorney's fees for^onduct- I
ing all of these proceedings. Plaintiffs had judgment in the circuit
court for $1183.98. From this judgment and the order denying a
new trial, defendant appeals.
(1) It is contended by appellant that, as Robinson had neither pos-
session nor right of possession at the time he executed the deed to
the Smiths, th_e covenants sued upon were HroVpn a«; «;oon as made
and, thereTbre, did not run with the land nor inure to the benefit ^f
his remote grantees. As to the covenant of seizin, this contention is
undoubtedly correct. Our statute, section 1139, Civ. Code, enumerates
certain covenants as those which run with tlie land, but no mention is a ,^gLjk^»^ *"
made of the covenant of seizin, and tlys covenant does not nm with ^^^^^^ Ji/t^
the land : Gale y. Frazier, 4 Dak. 196, 30 N. W. 138. /^^A^^A^ ^^^
Under a statute like ours it would appear that it is only the immedi-^^^ ^"^'^^^J
ate grantee of the covenantor who can recover on this covenant. Plain-*^^ X-*"*'^*
742 DERIVATIVE TITLES (Part 2
tiffs could have recovered from the Smiths upon the breach of this
covenant, and they, in turn, could have recovered from defendant,
provided they brought their action within the period of the statute of
limitations. 3 Wash. Real Property (5th Ed.) 504. But there was no
such privity of contract between plaintiffs and defendant's intestate as
\vould entitle them to recover against defendant.
(2) The other covenant set out in plaintiff's complaint (thfit "f gniet
enjoymentj_prpt;ppt^ a Hiffprpnt prnpr>,t;ifmn By express statute, this
covenant does run with the land : Civ. Code, § 1139. This covenant is
made for the benefit of remote as well as immediate grantees, and,
unless there is something in the facts connected with this case to re-
lieve appellant from liability on the covenant, the plaintiff is entitled to
recover, and the judgment should be affirmed. This is conceded by
appellant, but, to avoid Hability, he contends that, because his intestate
had no estate whatever in the premises at the time of making the
covenant, and because his intestate's grantee did not go into possession
of the land, there was nothing to which the covenant could attach to
carry it to the covenantor's remote grantees. He also contends that,
the covenantor having neither possession nor right of possession at the
time he made the covenant, a constructive eviction took place at once
and that the covenant immediately ripened into a cause of action in
favor of his covenantee that neither ran with the land nor passed to
his covenantee's grantee, and that, in any event, more than six years
had elapsed since the breach of the covenant and plaintiffs' action is
barred by the six years statute of limitations. In other words, that,
in this particular case, the effect of both covenants is exactly the same,
and plaintiffs are not entitled to recover on either. If appellant's po-
sitiort is correct, the covenant for quiet enjoyment contained in the
Robinson deed could never, under the facts in this case, become the
basis for a recovery by anyone except his immediate grantee. Ahhough
the deed purporting to divest Vesey of his title was a forgery and
conveyed no title in fact, it appeared upon its face to be a valid coji-
vevance and the apparent chain of title from Vesey to plamtitts was
perfect. For aught plaintiffs knew, or could know until Vesey asserted
his title, tVipyjyprp thp aKsolute owners of the fee and could haxe-sone
into the physical possession of the land at any time.
Supposmg plaintiffs had taken possession and afterward had learned
the facts relative to the title to the land, and, before they had been dis-
turbed by Vesey, had brought this suit against defendant for breach
of the covenant for quiet enjoyment, he could have said: "You have
not been disturbed in your rightful possession of the land and you
may never be disturbed. While your deed may not be good, it is yet
color of title, and if you are not disturbed by Vesey within the time
for bringing an action for that purpose, your present title, although
defective, will ripen into a title that can never be disturbed by anyone.
In other words, you have no cause of action until you have been ac-
tually ousted by a decree of court." This would be a complete defense
Ch. 6) COVENANTS FOR TITLE 743
to plaintiff's demand, or the most they could recover would be nominal
damages only. ^
Thj^he proposition that covenants found in deeds purporting, to /Ipa/^^A-'^^'''^
convev title to land do not run with the land unless the covenantor ^fT^ ^y
^vas possessed of some estate in the land to which the covenant could ^OCm^^'^-^
attach is supported bv manv. if notthe great weight of, judicial deci-
sions is not questioned. Notable among the more recent decisions to
this effect is Bull v. Beiseker, 16 N. D. 290, 113 N. W. 870, and report-
ed with an extended note, in 14 L. R. A. (N. S.) 514; Mygatt v. Coe,
147 N. Y. 456, 42 N. E. 17, a New York case; and Wallace v. Pereles,
109 Wis. 316, 85 N. W. 371, 53 L. R. A. 644, 83 Am. St. Rep. 898.
In Bull V. Beiseker, supra, the court said : "The action was brought
and the complaint framed upon the mistaken theory that the covenants
contained in defendant's deed to Johnson were covenants running with
the land, and therefore passed to Washburn by the deed from John-
son to him. This probably would be true if any title or possession was
transferred by such conveyances ; >but, nnHpr thp fartc allpgpH j^ 1-Tip
complaint, neither title nor possession, actual or constructive, passed
under the deeds, and hence there was nothing for the covenants to
r\ip with. -There, was a constructive eviction of the grantee immedi-
ately upon the execution and delivery of the deed to Johnson; and a
cause of action for breach of the covenants in such deed at once arose
in his favor against the Beisekers to recover damages therefor; and
the deed from Johnson to Washburn did not operate to assign to the
latter such cause of action."
And in Wallace v. Perles, supra, the Wisconsin court said: "We
therefore hold that where the record shows that the grantrtr 1-|pH nn
title and no possession, and there is no proof that the grantee took
possession, the covenants of the grantor are personal to the grantee,
and are not transmitted to subsequent grantees by a mere convevance
of the land."
And, again, in Mygatt v. Coe, supra, we find : "It must be regarded
as the law of this case that privity of estate is essential to carry cove-
nants of warranty and quiet enjoyment to subsequent grantees in order
to support a right of action by them against the original covenantor.
when there is an eviction by paramount title."
These cases are fully supported by very many, if not all, of the
preceding decisions on the same subject.
The covenants usually found in deeds of conveyance of real prop-
erty, are the subject of legislative enactment in many of the states.
Our statute, section 1138, Rev. Civ. Code, reads as follows: "Every
covenant contained in a grant of an estate in real property, which is
made for the direct benefit of the property, or some part of it then
in existence runs with the land." Section 1139: "The last section in-
cludes covenants of warranty, for quiet enjoyment, or for further as-
surance, on the part of a grantor * * * ."
But these statutes do not seem to have changed the rule that, in
(jlJU_^'
7U
DERIVATIVE TITLES
(Part 2
order that the covenant will run with tlie land so as to inure to the
benefit of a remote grantee, the covenantee must have received some
estate in the land to which the covenant could attach.
It seems to be generally held that, where the covenantor delivers the
possession of the land to his grantee and he, in turn, puts his grantee
in possession, this constitutes a privity of estate sufficient to carry the
covenant with the land. And it may be taken as true tliat the reason
for the rule originated at a time when physical possession of land was
the chief muniment of. title thereto. But this reason no longer exists.
A person who has a ^rant nf land from the owner of tht^ fee hernmes
the absolute riwnpr thereof and is entitled to all the benefits that^can
be derived tlierefrom. even though neither of them was ever injthe
actual possession thereof. This being the case, why should it be nec-
essary that actual^ as distmguished from constrictive, po^ession should
be delivered in order to carry a covenant with the land when the cov-
enantor was without title? It is for the purpose of prntpctino- fVip
covenantee and his p^rantees in their fjght- nf possession of the land,
and to protect them ap;-ainst defective title thereto that the covena^^*' i'='
made._ The right of quiet enjoyment of a piece of land is its most val-
uable attribute, and a covenant from a grantor that his grantee shall
be protected in the quiet enjoyment thereof adds materially to the
value of the land itself, and a material portion of the consideration
paid for the grant may be, and as a rule is, paid because of the cove-
nantee's expectation of the right of quiet enjoyment of the demised
premises. I^a perfect title is pas^sed to the grantee then he need
never avail himself of the covenantin his deed, while, on the other
hand, if it should develop thnt th*^ ^'''v^nr^ntnr had no estate whatever
in tlie prpiriJQpg attempted to be conveyed, the grantee could not, ex-
cept as against his immediate covenantorr avail himself of the cnvp-
nant. _ This, at least, is the logical conclusion to be drawn from the
decisions holding that a remote grantee cannot recover upon a covenant
unless the covenantor had some estate in the land when the covenant
was made.
Some cases, notably Kimball v. Bryant, 25 Minn. 496, and Iowa
Loan & Trust Co. v. Fullen, 114 Mo. App. 633, 91 S. W. 58, hold that,
although a covenantor must have some estate in land at the time of
making the grant to which covenants can attach in order to enable
a remote grantee to recover on a breach of the covenant, yet, never-
theless, such grantee, however remote, who is holding under said
grant at the time of the assertion of, and eviction under, the para-
mount title, may recover the damages occasioned by the lack of title.
This is upon the ground that the covenant was broken as soon as made
and at once ripened into a chose in action in favor of the covenantee,
and that the transfer of the land by successive warranty deeds passed
this cause of action along through the successive grantees until such
time as an actual eviction by paramount title took place, when the
party who suffered damage by reason thereof might enforce the cause
Ch. 6) COVENANTS FOR TITLE 745
of action that accrued in favor of the first grantee against the original
covenantor. Against this doctrine, this court is already committed.
Hill V. City, 33 S. D. 324, 145 N. W. 570. We believe plaintiffs should
recover; but we think they should recover as upon tlie covenant itself,
rather than upon successive assig^r^p^^^-g of a cause of action that had
accrued in favor of some prior grantee. Under the theory adopted
by the Missouri and Minnesota courts, unless the eviction take place
and the action be commenced within the period prescribed by the stat-
ute of limitations for bringing such action, then the right to recover
will be barred by the statute, and the party who is holding under the
grant at the time of the eviction and the one who suffers the real dam-
age cannot reach the covenantor at all. Iowa L. & T. Co. v. Fullen,
supra.
(3) But, again, since it is held that a delivery of the possession of
the disputed premises is necessary in order that the covenant of a
grantor without title may inure to the benefit of his remote grantees,
then the constructive possession of the grantee ought to be sufficient
to carry the covenant. In this case, while the Smiths acQiu'red no title
tQ the land by virtue of their deed from the Robinsons, still they had
the apparent title even as against Vesey himself. The county records
showed that they had a perfect diain^of tjtl^, gnd. therefore, the Smiths
and their grantees rplaintinsinthis action^ as against the defemJapt
shouCT'^e held to have had constructive possession of the granted
premises, and that plaintiffs are entitled to recover against the de-
fendant" because of the eviction by Vesey. This, of course, involves
th^ doctrine of estoppel l^y deed; and we believe this to be a proper /X^ /J
case for the application of this doctrine. . ( I ^C-Aa-*--^
The rule of estoppel by deed is stated in 16 Cyc. 686, as follows : ^ ^- n
"A person who assumes to convey an estate bv deed is estopped, as ^^^''^''Tf^f**^
against the grantee, to assert anything in derogation of the dee(j. He 0 AsJ-M
will not be heard, for the purpose of defeating the title of the grantee. "''^A ^
to say that at the time of the conveyance he had no title, or that none \\
p.assed by the deed : nor can he deny to the deed its full operation and
effect as a conveyance."
Where a grantor represents himself as the owner of the fee to a piece
of land and agrees that he will protect his grantee and assigns in their
peaceful possession thereof, and it afterward develops that he was not
the owner of the fee and cannot defend his grantees in their possession
of the land, and they cajl upon him to respond in damages, why should
he not be estopped from saying that he did not have, and convey the ~ \l V| /
constructive possession^oF the land as he represented he Had and "lor /J^n^-A/-^ »
wdiich he had received a valuable consideration, and that, therefore. ^Rj^^
his covenant did not pass beyond his immediate grantee and that he is
not liable to the party who has suffered by his broken covenant? And
why should the rule just quoted not apply?
True, no case has been called to our attention where a covenantor
has been held to be estopped by his deed from claiming that he had no
^i^C-^
746 DERIVATIVE TITLES (Part 2
estate in the land, attempted to be conveyed, at the time he made the
covenant, and thereby escape habiHty to a remote grantee who had
been evicted; but neither has any reason been suggested why this
should not be done ; and we hold that the defendant is estopped_by the
covenants in his intestate's deed TFom denying that his intestate pos-
any estate in the land in question at the time the deed was mnde :
anH thnt respondent is entitled to rprnver upon the broken cove-
nant.^ ' * ^
The judgment should be modified in regard to the amount of interest
allowed respondents as herein indicated, and as so modified it is af-
firmed.
ANDREW V. PEARCE.
(Court of Common Pleas, 1S05. 1 Bos. & P. N. R, 158.)
Covenant. The declaration stated, that by indenture, dated the 25th
of February, 1764, P. Best, the Defendant's testator, demise^ to one
Tohn Garland and his assigns a certain messuage and tenement, com-
monly known by the name of Lower Bofindle, in the county of Corn-
wall, for the term of 99 years, at the yearly^ rent of £4. per annum,
covenanting that he, the said P. Best, at the time of the grant and_de-
mise, had in himself good, right, and lawful and absolute authority_to
grant and demise the said premises ; and also for the quiet enjoyment
of the said John Garland, his executors, administrators, and assigns,
during tlie said term, without the let, hindrance, molestation, or denial
of him the said P. B., hiis heirs and assigns, and of all and every other
person whatsoever ; that, by virtue of the said demise, the said John
Garland, on the 25tli of February, 1764, entered into the said prem-
ises and became possessed thereof, and that afterwards, viz. by deed
pf the 22d of June, 1'791, he assigned to one John Bennett, his execu-
tors, administrators, and assigns the said demised premises for the
residue of his, the said John Garland's, term therein; that John Ben-
^ nett accordingly entered, and afterwards, viz., by deed of the 2d of No-
vember, 1801, assigned to the Plaintifif, his executors, administrators,
and assigns the said premises for the remainder of the said term then
to come and unexpired ; that the plaintift' accordingly entered and was
possessed thereof until ejected therelrom.
The declaration then alleged, "that the said P. Best deceased, at the
time of making the said indenture of lease, had not, nor had he. at
any other_time whatsoever, any right, or title to the said demised prem-
ises, with the appurtenances, or any party thereof, in him, the said P.
Best deceased, in his life time, or any authority whatsoever, whereby
or by virtue whereof, he, the said P. Best deceased, might or could
lease or demise the said demised premises, or any part thereof, with the
3 A portion of the opinion dealing with matters of damages is omitted.
Ch. 6) COVENANTS FOR TITLE 747
appurtenances, or any part thereof, to the said John Garland, to hold
the same, or any part thereof, to him the said John Garland, his ex-
ecutors, administrators, or assigns, from the said 24th day of Febru-
ary, 1764, for, and during, and unto the full end and term of 99 years
from thence next ensuing, and fully to be complete and ended; and
that after the_maki'^g' ^^ \\l^: '=^gid demise by the said P. Best, decea^d.
and after the said Plaintiff became such assignee of the said demised
premises as aforesaid, and during the continuance of the said term,
to wit, on the 1st day of January, in the~yeaFof our Lord 1802, at
Bodmin aforesaid, in the county of Cornwall aforesaid, the said Thom- ^ .
as Pearce became and was lawfully and rightfully entitled to have WA^/f
and enjoy the immediate possession of the said demised premises, ^ith ^9
the appurtenances, under and by virtue of a title thereto, in opposi-
tion to the said title of the said Plaintiff to the possession thereof ; and
the said Thomas Pearce being lawfully and rightfully entitled to the
said immediate possession of the said demised premises, with the ap-
purtenances of the said Thomas Pearce, afterwards and while the
said Plaintiff so was in possession of the said demised premises, with
the appurtenances, and before the expiration of the said term of 99
years thereof demised by the said P. Best deceased as aforesaid, to wit,
on, &c." proceeding to state an ejectment for the premises by T.
Pearce, and judgment against the present Plaintiff, and writ of pos-
session in consequence; and concluded that the said P. Best, deceased,
in his life time, and the said T. Pearce, executor as aforesaid, since
his death had rtot kept their covenant with the Plaintiff since he be-
came assignee of the covenant made by the said P. Best, in his life time,
with the said Tohn Garland and his assigns.
The Defendant pleaded, "that the said P. Best, mentioned in the
said declaration, at the time of making the said indenture of demise
therein mentioned, and from thence until and at the time of his death
hereinafter mentioned, was seised in his demesne as of fee tail male
of and in the said tenements, with the appurtenances, mentioned in the
said declaration and in the said indenture of demise, that is to say, to
him and the 'heirs male of his body lawfully issuing, and being so
seised thereof, he, the said P. Best, afterwards and before the making
of the said supposed indenture of assignment between the said John
Bennett and the said Plaintiff, also mentioned in the said declaration
(to wit), on the 4th day of June in the year of our Lord 1794, at, &c.,
died so seised of such his estate of and in the said tenement with the
appurtenances without heir m^ale of his body lawfully issuing: and so
the said Defendant says that before the making of the said indenture
of assignment between the said John Bennett and the said Plaintiff
(to wit) on the said 4th day of June in the said year of our Lord 1794,
upon the death of the said P. Best, the said term of years in the said
tenements, with the appurtenances, granted by the said indenture of
demise mentioned in the said declaration, and the estate and interest of
the said John Bennett in the same tenements, ceased, and became and
748 DERIVATIVE TITLES (Part 2
were wholly void, ended, and determined." To tliis plea the Plaintiff
demurred, and the Defendant joined in denjurrer.
gy^ Sir James AIansfield, Ch. J. This is an action of covenant, and
y4^ fy /| the declaration states that Peter Best in 1764 demised the premises in
|X«^ II question for 99 years to Tohn Garland, and covenanted that he had
- IaJ^ good right to make such demise, and that Garland should quietly enjoy
Jki^^ I! the premises during the said term; that Garland in 1'791 assigned to
V Bennett, and Bennett in 1801 assigned to the Plaintiff, who was ejected
by Thomas Pearce under a title superior to that of Peter Best. The
plea states that Peter Best, at the time of the demise, was seised of the
premises in tail male, and before the assignment by Bennett to the
Plaintiff, died so seised without heirs male of his body, whereupon the
term of years ceased and determined. Upon these pleadings, it is
clear that Peter Best had no power to make a demise of these premises
to continue for 99 years if he should die without issue maje ; but that
it was a good lease so long as he should live, and he might have lived
till the end of 99 years. On this demurrer every fact is admitted ; it is
clear therefore that at the time when Bennett assigned to Andrew. Ben-
nett had no interest in the premises ;_.the lease is stated to have become
absolutely void by the death of Peter Best without heir male. The
lease then having become absolutely void, what could be the operation
of the assignment by Bennett to Andrew? He could neither assign
the lease nor any interest under it because the lease was gone. What
^ yy right of any sort had Bennett? If any thing, it could only be a right
m. Jk { of action on the covenant, and that could not be assigned by law. A^
\L/^^*0^ A the person who made the assignment had no interest in the premises,
y(\/^ v-X) the assignment itself could Jiave no operation. Consequently there is
I no ground upon which the present action can be maintained, -and there-
fore judgment must be given for the Defendant.
Judgment for the Defendant
WILLIAMS v. BURRELL.
(Court of Common Pleas, 1845. 1 C. B. 402.)
TiNDAL, C. J.* The material facts out of which the questions sent
to us by his honour the Master of the Rolls have arisen, are very few.
George O'Brien, Earl of Egremont, being tenant for life, with a-ieas-
ing p_ower,_by indenture of lease, bearing date the 24th of March. 1B05 ,
demised to John Williams, the plaintiff^ for ninety-nine years, if three
persons therein-named should so long live ; which lease, upon the death
of the tenant for life was held to be void as against the remainder-man,
by the judgment of a court of law, on the ground that it was not made
in due conformity with the leasing power. This lease contained in it a
clause in the following terms ; viz. "And the said earl, for himself, his
* A portion of the opinion only is printed here.
Ch. 6)
COVENANTS FOR TITLE
749
heirs and assigns, the said demised premises, with the appurtenances
unto the said John WilHams, his executors, administrators, and assigns,
under the rent, covenants, conditions, exceptions, and agreements be-
fore expressed, against all persons whatsoever lawfully claiming the
same, shall and will during the said term warrant and defend." And
upon this state of facts the question is. whether the original lessee caiy/^ v
rnaintain covenant against the executors of the tenant for Hfe. uporC ^ )
the clause of warranty above set forth.
And a second question is then put to us, namely, whether in the
case of another lease granted precisely under the same circumstances,
and in the same form, the executors of the assignee of the original
lessee can maintain such action. * * *
As to the question arising on the second lease, we think that the
executor of the assignee of the lessee has the same right of suiag_pn
tliis covenant as the original lessee.
In Spencer's Case, 5 Co. Rep. 16a, fourth resolution, it was held
that a covenant in law for title would pass with the estate : and there
is neither principle nor authority to shew that an express covenant,
either for title or quiet enjoyment, will not equally pass, and be avail-
able for the assignee of the lessee, or the executor of such assignee^.
And, although in Andrew v. Pearce, 1 New Rep. 158, it was held
that nonaction was maintainable upon the (-nvenant for quiet enjoyment
by the assignee of the lessee against the executor of the lessor: yet
that was expressly on the ground that the lease had become absolutelv
void bv the death of the- lessor before the assignment made to Xhe
plaintiff; a fact which does not occur in the presenLtase."
BEARDSLEY v. KNIGHT.
(Supreme Court of Vermont, 1S32. 4 Vt. 471.)
This was an action of covenant, and the declaration contained two
counts. The first alleged that the defendant and one Elijah Hyde, de-
ceased, on the 3d day of March, 1808, for the consideration of eighteen
hundred dollars, by deed of that date, duly executed, acknowledged
and recorded, according to law, conveyed to Ebenezer Hatch, his
heirs and assigns, the undivided half of a certain piece or farm of
land, lying in the town and county of Grand-Isle, to wit, the first di-
vision lots drawn to the rights of Thomas Tolman, Samuel Herrick,
and John Wood ; and that the said Knight and Hyde, in and by said
5 See Lewis v. Cook, 35 N. C. 193 (1851), whicli was as follows : A. and his
wife joined in a deed to B. of tlie wife's land, which, because of a defect in
execution, operated only as a conveyance of A.'s life estate. B. conveyed to
X. "and his heirs" by deed with covenant of warranty. By levy of execution
and sale thereunder the land came to P., who went into possession, and contin-
ued therein until after the death of A., when he was evicted by the heirs of
Mrs. A. P. then sued D., the administrator of B., for breach of the covenant
-of warranty. A nonsuit of P. was held erroneous.
750 DERIVATIVE TITLES (Part 2
deed, covenanted to and with the said Hatch, his heirs and assigns,
that they would warrant and defend the premises against all lawful
claims and demands whatsoever ; that afterwards Hatch by deed dated
November 20, 1812, for a valuable consideration, quit-claimed the
south half of said premises to the plaintiff, including the south part of
the aforesaid lot drawn to the right of John Wood ; by virtue of which
the plaintiff entered into possession, and became seized and possessed
of the premises, as assignee of the said Hatch; that Reuben Clapp,
administrator of one Alexander Gordon, afterwards, on the 26th day
of January, 1822, sued out a writ of ejectment against the plaintiff,
demanding the seizin and possession of thirty six acres of the east
corner of said lot, drawn to the right of John Wood ; and such pro-
ceedings were had in said action, that in January, 1828, the said Clapp
recovered judgment in said action against said Beardsley for the
seizin and possession of the premises demanded, with one cent dam-
ages, and his cost, taxed at $112.52; and afterwards took out a writ
of possession, and by virtue thereof he entered upon, and took pos-
session of, the demanded premises, and dispossessed said Beardsley
of the same ; and averring that the title on which the said Clapp recov-
ered was elder and better than the title derived from said Knight and
Hyde by said Hatch, and independent of the same.
In the second count the conveyance by Knight and Hyde to Hatch,
was set out as in the first. It was then alleged that, on the 8th day of
July, 1807, Knight and Hyde conveyed the undivided half of the prem-
ises, to the plaintiff, by virtue of which conveyance the plaintiff en-
tered into possession ; and after the execution of the deed by Knight
and Hyde to Hatch, as before mentioned. Hatch also went into pos-
session of an undivided half of the premises; whereby the plain-
tiff and Hatch were seized as tenants in common, ahd so continued,
until the 20th day of November, 1812, when they made partition of
the premises, by which the plaintiff became seized and possessed of the
south half thereof in severalty, and of thirty six acres on the south
part of the lot drawn to the right of John Wood, and so continued
seized and possessed, until the eviction by Clapp, as mentioned in
the first count.
The plaintiff claimed to recover of the defendant the value of the
thirty six acres from which he had been evicted by Clapp, and all the
cost and charges to which he had been subjected in defending the
said action of ejectment.
The defendant pleaded that he had kept and performed his cov-
enants according to the form and effect of the said indenture of said
covenant. On which plea, issue was joined. On the trial in the county
court, the plaintiff insisted the burden of proof lay on the defendant to
make good his plea. But the court decided that the plea was a general
denial of all the material allegations in the declaration, and put the
plaintiff on proof of every material fact alleged. The plaintiff then
offered in evidence the deed set forth in his declaration from Knisrht
Ch. 6) COVENANTS FOR TITLE 751
to Hatch, which was read without objection; and the deed from Hatch
to himself, dated the 20th of November, A. D. 1812, acknowledged on
the same day, and recorded on the 9th day of October, 1813. This
deed had no seal affixed to the signature of the grantor, excepting a
scroll or circle made with a pen, and the word "seal" written within
it. The defendant objected to its admission, and insisted that it was
not sealed, and, therefore, could not be given in evidence to the jury.
The plaintiff insisted that it was sealed, and offered, in connection
with it, parol evidence to prove, that he went into possession of the
premises therein described, under it, in 1812, and continued in pos-
session under it till 1829, when he was evicted as set forth in his dec-
laration, and that whether the deed was sealed or not, was a question
of fact for the jury. The court determined that the deed was not
sealed, and that whether it was sealed or not, was a question of law
for the court to try, and not the jury; and, therefore, excluded it.
The plaintiff' then offered a quit-claim deed from Knight and Hyde
to himself, dated in 1807, of one equal undivided half of the same
premises included in the deed from Knight and Hyde to Hatch ; and
tendered evidence to prove that the plaintiff, under his deed from
Knight and Hyde, and Hatch, under his deed from the same, occu-
pied said premises from 1807 to 1812, as tenants in common: that in
1812, Hatch and the plaintiff made a division of the premises, and con-
tinued ever after to occupy and enjoy the same in severalty under said
division; that by said division the land mentioned in the declaration
was set apart to the plaintiff; and that he held and occupied the
premises as his own, under said division, from 1812 till the time of the
eviction, mentioned in the declaration. Which deed and parol evidence
were objected to, and excluded by the court, who directed the jury to
return a verdict for the defendant; which they accordingly did. To
the several decisions of the court the plaintiff excejDted, and the cause
was ordered to the Supreme Court.
Williams, J. The plaintiff has declared against the defendant in
covenant. The declaration contains two counts. The defendant pleads
performance, and tenders an issue which is joined. It was considered
by the county court that this plea put the plaintiff on proof of every
material fact in his declaration. • The plaintiff contends, that, under
this issue, his derivative title was not denied, nor the character in
which he sued. But if the plea required the plaintiff to shew a breach
of the covenant declared on, and this was not questioned, he must, to
shew such breach, prove an eviction of some one holding under Hatch ;
and this made it necessary to prove a conveyance from Hatch to him-
self. The plaintiff does not sue as assignee, nor in the right of another,
as an executor, or administrator, or assignee of a bankrupt, in which
case his character as assignee would not be denied under the plea.
But he sues as on a covenant made with him, and coming to him with
the land, by virtue of a deed from Hatch. The eviction of the plain-
tiff would be no breach of the defendant's covenant with Hatch, unless
752 DERIVATIVE TITLES (Part 2"
plaintiff claimed title to the land through Hatch. Hence it was incum-
bent on the plaintiff to show a conveyance from Hatch, and this brings
in question the validity of the instrument which was offered as Hatch's
deed to plaintiff. It seems that it was objected to, and excluded as not
having been sealed.® * * *
The instrument, therefore, offered in evidence as the deed of Hatch,,
was not a deed or conveyance of land, as it wanted one of the essential
requisites to constitute it a deed. The paper from Hatch to the plain-
tiff', having been rightly excluded by the court, there is no other ground
on which the plaintiff' can recover of the defendant on the covenants
contained in the defendant's deed to Hatch. The argument that the
plaintiff" was in possession, and, therefore, might avail himself of the
covenant as running with the land, is wholly destitute of foundation.
His possession, as against Hatch, may have been adverse, so that he
was acquiring a title by the statute of limitations as against him ; but
if so, it would be, at least, singular, if he could acquire a title as
against Hatch by a trespass, and, at the same time, by the same tres-
pass, acquire a right to Hatch's claim against the defendant on the cov-
enants in his deed. Although a deed from Hatch to the plaintiff might
under some circumstances be presumed, yet, as presumptions are made
to quiet men in possession, I do not know that it has ever been con-
tended before, that they would create a right of action on the deed
presumed. A deed might be presumed to give a legal origin to a pos-
session; but an instrument not under seal cannot be presumed to
be a deed for the purpose of giving an action of covenant thereon, or
an action of covenant on a deed farther back in the chain of title. It
seems that the plaintiff had a quit-claim deed from the defendant and
Hyde, dated 8th July, 1807, of one undivided moiety of the land in
dispute. If he was not in possession under that deed, he was in with-
out title, and can have no claim upon the defendant if he has not kept
his covenant with Hatch, for the other moiety of the same premises.
It is said the evidence on the second count was excluded by the court.
This count appears to be decidedly bad ; and although the court may
have erred in excluding the testimony altogether, and the regular
.course might have been to have admitted the testimony, leaving the
defendant to move in arrest, or bring his writ of error, yet this court
would not, on that account, grant a new trial, when we should be un-
der obligation to arrest the judgment thereon on account of the insuffi-
ciency of the declaration. But it will be observed that notwithstanding
the pleader in framing the declaration avoided any distinct reference
to the instrument which purported to be a deed from Hatch to the
plaintiff, which was excluded as not being sealed, yet, to avail himself
of the covenant made with Hatch, and entitle himself to shew the
eviction as a breach of that covenant injurious to him, he declares that
6 The portion of the opinion in which the court considered the sufficiency of
the deed from Hatch to the plaintifC is omitted.
Ch. 6) COVENANTS FOR TITLE 753'
he was possessed of the part of which he was evicted, as assignee 6f
Hatch. To support this count, therefore, it was necessary for him
to show a legal assignment from Hatch, and if he failed to introduce
a regular deed from Hatch to himself, the count would fail for want
of proof. This count, therefore, as well as the other, depended upon the
validity of Hatch's conveyance to the plaintiff; and that being ex-
cluded, all other testimony was irrelevant, and was properly rejected.
If neither Hatch nor his grantee were evicted from the premises, the
plaintiff has not become liable on his covenant to Hatch. If the plain-
tiff" was evicted from his undivided part, he is without remedy at law,
as his title to an undivided moiety was nothing more than a quit-claim
deed from the defendant and Hyde, on which he has not set up any
claim; and his title to the other moiety was under a writing from
Hatch which the Court consider as no legal conveyance.
On every view which we have been able to take of the case, we can
see no remedy for the plaintiff at law; and the judgment of the coun-
ty court must be affirmed. Judgment affirmed.'^
ST. CLAIR V. WILLIAMS.
(Supreme Court of Ohio, 1836. 7 Ohio, 110, pt. 2, 30 Am. Dec. 194.)
This is an action of covenant reserved from the county of Ham-
ilton.
Williams, the defendant, conveyed a tract of land, with warranty,
to Davis, in 1816. Davis afterward conveyed the same land to St.
Clair, who died seized in 1820, leaving the plaintiff his widow, to whom
the premises were set off as dower. She has been evicted by a re-
covery in ejectment, under a paramount title, and she brings this
action against Williams, upon the warranty in his deed to Davis, claim-
ing that it passed with the land to her.
Lank, J. The question arising in this case is, whether the right of
action upon a covenant of warranty annexed to a conveyance in fee,
passes to one who holds but an estate for life in the land. It is no sub-
ject of doubt that an assignee is entitled to the benefits of all cove-
nants running with the land. Backus' Adm'rs v. McCoy, 3 Ohio, 219,
17 Am. Dec. 585 ; King v. Kerr's Adm'rs, 5 Ohio,' 156, 22 Am. Dec.
777. Nor is it doubted where a covenant running with the land is
divisible in its nature, as if the entire interest of separate parts of land
pass to different individuals, that a right of action accrues to each
party, to recover his proportion of the warranty. Van Home v. Grain,
1 Paige (N. Y.) 455 ; Astor v. Miller, 2 Paige (N. Y.) 78; Touchstone,
199; Co. Lit. 385, 386. But a plain distinction is made between the
holder of a part of the land, and the holder of a part of the estate ;
T See Deason v. Findley, 145 Ala, 407, 40 South. 220 (1906), ace
Aig.Prop. — 48
754 DERIVATIVE TITLES (Part 2
the former may vouch as assignee, or bring warrantia chartae ; the lat-
ter has the benefit of the warranty by aid prayer, or by the voucher
of him who holds the remainder, Co. Lit. 385, a; 4 Dane, 51 ; Wood's
Conveyancing, Z7Z. The same distinction is carried into the modern
action of covenant. The assignee, upon whom is cast the benefit or
the obHgation of covenants, is he who holds the whole estate or term.
Doug. 183 ; 1 East, 502. These principles settle the present suit. The
plaintiff could not vouch as assignee, nor have warrantia chartae under
the ancient law, nor can she sustain an action of covenant, because she
does not hold the whole estate. The right of action on the warranty
passes to the heirs, and her remedy is by a new assignment of dower.
Judgment for defendant.*
LEWES V. RIDGE.
(Court of Common Pleas, 1601. Cro. Eliz. 863.)
Covenant. The defendant, being seised of land in fee, let it for
life, remainder for life, rendering rent. He afterwards acknowledged
a statute; and after that by indenture bargained and sold the rever-
sion ; and covenanted with the bargainee, his heirs, and assigns, that
it should be discharged within two years of all statutes, charges and
incumbrances, excepting the estates for life. The statute is extended,
and thereupon this reversion and rent was extended. The bargainee
grants this reversion to the plaintifif, who, for not discharging of this
statute, brings covenant. And all this matter being disclosed by the
count, it was thereupon demurred. The question principally moved
was, whether the plaintifif, as assignee, shall have benefit of this cove-
nant made to the bargainee by the common law, or by the 32 Hen.
Vni, c. 34? But because the covenant was broken before the plain-
tifif's purchase, the land being then in extent, and so a thing in action,
which could not be transferred over, it was adjudged for the defend-
ant that the action was not maintainable against him.
And here the Court held clearly, that the 32 Hen. VIH, c. 34,
doth not extend to covenants upon estates in fee or in tail, but only
upon leases made for life or for years, and therefore this assignee was
out of the statute^ But for the other matter principally it was ad-
judged ut supra.^
8 See McClure's Ex'rs v. Gamble, 27 Pa. 288 (1856) ; White v. Whitney, 3
Mete. (Mass.) 81 (1841).
9 In Lucy v. Levington, 2 Lev. 26 (1671), the executor of the grantee sued the
grantor for breach of a covenant for quiet enjoyment, broken during the life-
time of the grantee. Held, the action was properly brought by the executor.
Ch. 6) COVENANTS FOR TITLE 755
KINGDOM V. NOTTLE.
(Court of King's Bench, 1813. 1 Maule & S. 355.)
This action was brought by the plaintiff, as executrix of Richard
Kingdon;' and the declaration stated, that by indentures of lease and
release of the 11th and 12th of May, 1780, the defendant conveyed to
R. Kingdon in fee a 4th part of certain lands therein particularly de-
scribed, with a proviso for redemption upon payment of £450; and
that the defendant covenanted for himself, his heirs, executors, and
administrators, with R. Kingdon, that he the defendant was at the
time of the execution of the indenture seized of and in the premises
of a good and indefeasible estate of inheritance in fee simple: and that
he had good right to convey the same to R. Kingdon and his heirs :
and farther, that the defendant would from time to time, upon every
reasonable request of R. Kingdon, his heirs or assigns, but at the de-
fendant's costs, execute any farther conveyance for the purpose of
assuring and confirming the premises to R. Kingdon, his heirs and as-
signs ; and then the following breaches were assigned : first, tliat the
defendant was not seized in fee at the time of the execution of the
indenture : secondly, that the defendant had not at that time good right
to convey : lastly, that the plaintiff, as executrix after the death of
R. Kingdon, made a reasonable request to the defendant to execute
an indenture between the defendant of the first part, the plaintiff of
the second part, and Samuel Anstice of the third part, intended to
be a release of the premises for suffering a common recovery for the
better assuring and confirming the premises to the uses mentioned in
the deed ; and tendered the same to the defendant for execution, but
the defendant refused to execute.
The defendant demurred to the first and second breaches, assigning
for causes that they are assigned too generally, and are not suffi-
ciently precise and certain, and that it does not appear that R. King-
don sustained or could have sustained any damage by the said breaches
of covenant, or either of them, nor that he was at any time interrupted
or disturbed in his enjoyment of the premises conveyed to him by the
defendant; nor that the said Elizabeth has or claims any interest in
the premises, or that she is heir at law, or assignee of the same, or any
part thereof. He demurred also to the last breach, assigning for causes,
that it does not appear that the said Elizabeth hath or claims to have
any interest in the premises, as assignee or otherwise, of R. Kingdon,
nor to what person, or for whose use the deed of release was intended
to enure, or why or for what reason Samuel Anstice was made a party
thereto, nor that the said deed of release was a reasonable convey-
ance or assurance in that behalf : and also for that the said last men-
tioned breach of covenant cannot by law be joined in the same dec-
laration with the other breaches of covenant in the said declaration as-
signed: and also for that the said declaration as to the said breach
756 DERIVATIVE TITLES (Part 2
of covenant lastly assigned is in various other respects insufficient, in-
formal, and defective. Joinder.
IvORD EllEnborough, C. J. This is a case in which a person may
have formed his opinion from what is to be found in a book of very
excellent authority, I allude to Comyn's Digest, in which it is laid down
generally that if a man covenant with B. upon a grant or conveyance of
the inheritance, his executor may have covenant for damages upon a
breach committed in the lifetime of his testator. But when that posi-
tion comes to be compared with Lucy v. Levington, which is the
authority there cited in support of it, it will be found not to be borne
out by that case in its generality ; for in that case there was an evic-
tion in the life-time of the testator, and therefore the damages in
respect of such eviction, for which the action was then brought, were
properly the subject of suit and recovery by the executor; and nothing
descended to the heir. But in this case there is no other damage than
such as arises from a breach of the defendant's covenant that he had a
good title, and there is a difficulty in admitting that the executrix can
recover at all, without also allowing her to recover to the full amount
of the damages for such defect of title; and in that case a recovery
by her would bar the heir ; for I apprehend the heir could not after-
wards maintain another action upon the same breach. Had the breach
here been assigned specially with a view to compensation for a damage
sustained in the life-time of the testator, and so as to have left a subject
of suit entire to the heir, this action might have gone clear of the diffi-
culty, because then it would not operate as a bar to the heir; but
framed as it now is, it seems to me that it would operate as a bar to his
action.
It is certainly a new point; and if I thought, that more author-
ities could be found than what have been cited, which, however, from
the industry of the gentlemen who have argued the case, is not very
probable, I should have paused. But what has been cited from Co.
Litt., and the other authorities, that the executor of a person who died
seized of a rent could not maintain an action to recover the arrears
incurred in the life-time of his testator, inasmuch as he could not
represent his testator as to any contracts relating to the freehold and
inheritance, is in a great degree an authority to show that in the pres-
ent case the executrix does not stand in a situation to take advantage
of this breach of covenant. Therefore on the principle of what is
here laid down, and in the absence of any damage to the testator, which,
if recovered, would properly form a part of his personal assets, I do
not know how to say that this action is maintainable.
LE Blanc, J. This action is brought by the executrix to increase
the personal estate of the testator. The difficulty arises from its being
assigned as a breach of covenant in the life-time of the testator. The
breach assigned is in not having a good title. But how is that breach
shown to have been a damage to the testator. It is not alleged that the
estate was thereby prejudiced during the life-time of the testator; and
Ch. 6) COVENANTS FOR TITLE 757
if after his decease any damage accrued, that would be a matter which
concerns the heir. The distinction which attends real and personal cov-
enants with respect to the course in which they go to the representa-
tives of the person with whom the covenants are made, is a clear
'one; real covenants run with the land, and either go to the assignee
of the land, or descend to the heir, and must be taken advantage of
by him alone; but personal covenants must be sued for by the exec-
utor. Now this is a covenant on which after one breach has been
assigned and a recovery had thereon, the party cannot again recover.
It is not like a covenant for not repairing, for a breach of which dam-
ages may be recovered now, and again hereafter, and so toties quoties ;
although even in that case there is always a difficulty in apportioning
the damages. But here no breach from which a damage accrued to
the testator is stated at all. Yet the action is brought to increase the
personal estate, which belongs to the executor ; when the estate itself,
such as it is, has come to the heir.
Bayle;y, J. The testator might have sued in his life-time ; but hav-
ing forborne to sue, the covenant real and the right of suit thereon,
devolved with the estate upon the heir. If this were not so, and the
executrix was permitted to take advantage of this breach of covenant,
she would be recovering damages to be afterwards distributed as per-
sonal assets, for that which is really a damage to the heir alone ; and
yet such recovery would be a complete bar to any action which the
heir might bring. The case of Lucy v. Levington struck me as a
strong authority for the defendant : because in that case it appears
there was an actual damage accruing to the testator by the eviction,
whereby he was deprived of the rents and profits during his life, and
of course the personal estate was so far damnified. There, as I have
before observed, if the executor could not have sued, no other person
could, because the testator having been evicted, there could be no heir
of the land, and that was given as a reason why the action was holden
to be maintainable.
Per Curiam. Judgment for defendant.
KINGDON V. NOTTLE.
(Court of King's Bench, 1815. 4 Maule & S. 53.)
<» Covenant by the plaintiff as devisee of Richard Kingdon; and the
plaintiff declares that by indentures of lease and release of the 11th
and 12th of May, 1780, the defendant conveyed to R. Kingdon in fee
a fourth part of certain lands therein particularly described, with a pro-
viso for fedemption upon payment of £450; and that the defendant
covenanted for himself, his heirs, executors, and administrators, with
R. Kingdon, that he the defendant was at the time of the execution of
the indenture seized of and in the premises of a good and indefeasible
758 DERIVATIVE TITLES (Part 2
estate of inheritance in fee-simple; and that he had good right to
convey the same to R. Kingdon and his heirs ; and then the plaintiff
avers that R. Kingdon, on the 3d of May, 1791, duly made his will,
&c. and thereby devised the same premises to her in fee, and died
seised, and that she (the plaintiff) entered into the premises, and became
and was and continually hath been possessed thereof, and seized of
and entitled to all such estate and interest of and in the same as R.
Kingdon had in his lifetime, and at the time of his death, and assigns
for breach, 1st, That the defendant, at the time of the execution of the
indenture, was not seized, &:c. ; 2dly, That he had not good right to
convey to R. Kingdon and his heirs, &c. And so the plaintiff says, that
by reason thereof the premises are of much less value, to wit, less by
£2000. to the plaintiff than they otherwise would be, and that she
hath not been able to sell, and hath been prevented and hindered from
selling the same, for so large a price or so beneficially and advan-
tageously as she otherwise might have done. And so she saith that
the defendant hath not kept his covenant so made with R. Kingdon,
but to keep the same with R. Kingdon in his lifetime, and the plaintiff,
since his death, hath wholly refused.
Demurrer assigning for cause, Ist^ That it appears by the declara-
tion that the supposed breaches of covenant therein assigned were
committed in the lifetime of R. K., before tlie plaintiff had any estate
or interest in the premises ; and also, that it does not appear by the
declaration that R. K. was at any time disturbed or interrupted in the
enjoyment of the premises by the defendant or any other person, or
sustained or could have sustained any damage by the same supposed
breaches of covenant or either of them, and also for that it is not al-
leged that the plaintiff hath at any time since the death of R. K.
bfeen interrupted or disturbed in the enjoyment of the premises, or
any part thereof, or hath sustained any damage from the supposed
breaches of covenant or either of them ; and also that it does not ap-
pear that any person hath refused to purchase the premises on ac-
count of the supposed breaches of covenant, and also that the allega-
tions that the premises are of much less value than they otherwise
would be, and that the plaintiff hath not been able to sell, and hath
been prevented and hindered from selling the same for so large a
price or so beneficially and advantageously as she otherwise might have
done, are too general, and do not give the defendant sufficient notice
of the supposed damage.
Lord Ellenborough, C. J. The rule with respect to the executor's
right to sue upon breaches of contract made with the testator was con-
sidered in the former case of Kingdon v. Nottle as subject to some
qualification; and in a still more recent case, [Chamberlain v. William-
son, 2 M. & S. 408,] it was considered that he could only Recover in
respect of such breach as was a damage to the personal estate. But
here the covenant passes with the land to the devisee, and has been
broken in the time of the devisee, for so long as the defendant has
Ch. 6) COVENANTS FOR TITLE 759
not a good title, there is a continuing breach and it is not like a cove-
nant to do an act of solitary performance, which, not being done, the
covenant is broken once for all, but is in the nature of a covenant
to do a thing toties quoties, as the exigency of the case may require.
Here, according to the letter, there was a breach in the testator's life-
time ; but according to the spirit, the substantial breach is in the time
of the devisee, for she has thereby lost the fruit of the covenant in
not being able to dispose of the estate.
Le Blanc, J. If the covenant is to cease with the breach of it,
then if it be broken, and the covenantee die immediately after, the cove-
nant will be gone; and yet the injury arising from the breach would
accrue altogether to the devisee.
Dampier, J. This is a covenant which runs with the land ; but if it
may be broken but once, and ceases eo instanti tliat it is broken, how
can it be a covenant which runs with the land?
Fe,r Curiam. Judgment for the plaintiff.^*
MITCHELL V. WARNER.
(Supreme Court of Errors of Connecticut, 1825. 5 C6nn. 497.)
This was an action on the covenants of warranty in a deed of land.
The plaintiff declared, that the defendant, Curtis Warner, on the 30th
of May, 1817, for the consideration of $1500, by his deed duly ex-
ecuted, granted and sold to George Welton a certain piece of land in
said deed described as lying in Roxbury, on Jack's brook, .containing
two acres, with a dwelling-house, clothier's works, &c. standing there-
on, bounded South on Roswell Warner's land, &c. ; that in and by
said deed, the defendant did for himself, his heirs, executors and ad-
ministrators, covenant with said Welton, his heirs and assigns, that at
and until the ensealing of said deed, he was well seised of the prem-
ises as a good indefeasible estate in fee-simple, and that he had good
right to bargain and sell the same, in the manner and form as was
in said deed by him before written, and that the same was free from
all incumbrances ; that the defendant, in and by said deed, did cove-
nant and bind himself and his heirs forever to warrant and defend
said granted and bargained premises to the said Welton, his heirs and
assigns, against all claims and demands whatsoever; that on the 7th
of March, 1822, Welton and the defendant, by quit-claim deed, by
them executed, for a valuable consideration, released to the plaintiff
the same land, buildings and privileges, which the defendant had con-
veyed to Welton, by the first mentioned deed, and the plaintiff became
10 Ace. : King v. Jones, 5 Taunt. 418 (1814), where ttie covenant sued on by
tlie heir of the grantee was for further assurance. The grantee in his lifetime
had called upon the covenantor to levy a tine, Avhich request had been denied.
But see Spoor v. Green, L. R., 9 Ex. 99 (1874) ; Turner v. Moon, [1901] 2 Ch.
825.
760 DERIVATIVE TITLES (Part 2
vested with such right and title thereto as Welton had acquired, and
was the assignee of all the covenants in the defendant's deed to Wel-
ton, and had good right to take benefit thereof.
Breaches of these covenants were then assigned as follows: That
at the time when the defendant made and executed his deed to Welton,
he, the defendant, was not well seised of the premises, as a good in-
defeasible estate in fee-simple, and had not good right to bargain and
sell the same, in manner and form as stated and set forth in said
deed, and the same was not free from all incumbrances; that the
defendant has not kept and performed his covenant to warrant and
defend the premises to the plaintiff, but has broken the same, for
that long before and on the 30th day of May, 1817, and at the time
when the defendant made, executed and delivered his deed to Welton,
one Roswell Warner was well seised and possessed, in his own right
in fee-simple, of the right and privilege of turning the water of Jack's
brook in said deed mentioned, (and which brook or stream of water
runs through and upon said land, and was, at the time of the convey-
ance by the defendant to Welton, and ever since has been, of great use
in carrying on the business of a clothier's shop in said deed described,
also of great value and use in carrying a carding-machine and other
water works, *which the plaintiff has, since he took tlie deed from
Welton and the defendant, erected on said land, and by said stream,)
from a certain dam, which had been previously erected across said
brook upon said land, on to the meadow of said Roswell Warner be-
low, so much thereof as should be necessary for the purposes of wa-
tering the same ; that on the 1st of April, 1822, said Roswell Warner,
by virtue of such right and privilege, entered upon said land, and di-
verted the water from said stream, at said dam, and turned it upon
his said meadow, to water the same, and has ever since used said
stream for tliat purpose; by means whereof, the plaintiff has wholly
lost the benefit of said stream, and the use of said clothier's shop,
carding machine and other water-works thereon; and so the said
Roswell Warner had disseised and dispossessed the plaintiff of said
water-works and of tlie benefit of said stream.
The defendant pleaded, that at the time of executing said deed to
Welton, he, the defendant, was well seised of the premises in said deed
described, and had good right to convey tlie same, as in said deed set
forth ; that the premises were free from all incumbrances whatsoever ;
and that the defendant has warranted and defended the premises to
the plaintiff against all claims and demands, according to the form
and effect of said deed, and of the several covenants therein contained.
On this plea issue was joined.
On the trial of the cause at Litchfield, February term, 1824, before
Hosmer, Cli. J., the plaintiff, after proving the deeds mentioned in
the declaration, adduced evidence to prove the right of Roswell Warner
to turn the water of Jack's brook on to his own land, and the exercise
of that right to the plaintiff's damage, which constituted the only
Ch. 6) COVENANTS FOR TITLE 761
breaches relied upon of the covenants in the defendant's deed to Wel-
ton. To the competency, as well as to the relevancy of tliis evidence,
the defendant objected. The Chief Justice, in his charge to the jury,
expressed the following opinion :
"First, as to the covenant of seisin. The facts adduced in evidence
did not prove it to have been broken; the right claimed to exist in
Roswell Warner being an incorporeal hereditament only, and like a
right of way or of turbary, not any part of the freehold, but perfectly
compatible with the covenant of seisin, on which the plaintiff has de-
clared.
"Secondly, as to the covenant against incumbrances. The declara-
tion having alleged, by way of breach, that the premises granted 'were
not free from all incumbrances,' and nothing more, under this nega-
tive averment, without any specification of the nature of the incum-
brance complained of, the proof offered was inadmissible. It should
have been definitely set forth, to appraise the defendant of its nature,
and give him the requisite information to prepare himself for a de-
fence. Further; the actual exercise of the right of turning water
from Jack's brook, by Roswell Warner, was not an incumbrance war-
ranted against; but the incumbrance consisted in the incorporeal her-
editament, viz. the right of turning the water; the covenant, from
its nature, being broken instantaneously, on the delivery of the deed,
or not at all. And if the exercise of the right were an incumbrance,
it was not alleged to be so in breach of the covenant aforesaid.
"Thirdly, as to the covenant of warranty. The facts stated, by the
plaintiff, if proved, did not amount to an eviction in breach of the
aforesaid covenant; but if they were established, by the evidence, the
jury must find for the plaintiff, and leave the defendant to his legal
remedy, the facts appearing on the record.
"Fourthly, as to the damages. As no breach of the covenant of war-
ranty was alleged, but of a disturbance only, the jury must give the
plaintiff reasonable damages for the actual injury."
The jury returned a verdict for the plaintiff, with twenty dollars
damages. The defendant then moved in arrest of judgment, for the
insufficiency of the declaration; and the court arrested judgment on
that ground. To obtain a reversal of the latter decision, the plaintiff
brought a writ of error. He also moved for a new trial, on the
ground of a misdirection.
HosM^R, Ch. J. The case made by this motion, presents two ques-
tions for determination.
The first is, whether the plaintiff, claiming to be the assignee of
the covenant of seisin, can maintain an action on that covenant.
This covenant, from its nature, is broken instantaneously on the de-
livery of the deed, or it is never broken. It runs in the words of the
present tense, and asserts, that the grantor is well seised. Now, if he
is well seised according to his covenant, the agreement is fulfilled;
and if he is not well seised, the covenant is false, and immediately
762 DERIVATIVE TITLES (Part 2
broken. It follows from this, that it is a personal covenant, which,
most clearly, never runs with the land, and that the grantee, in whose
time the breach existed, can alone sue upon it; for, after a breach
the cause of action can never be assigned. It would be the assignment
of a chose in action, which the common law will not permit. That
the covenant of seisin, if false, is broken as soon as it is made, ap-
pears from Shep. Touch. 170; from Bickford v. Page, 2 Mass. 460;
from Marston v. Hobbs, 2 Mass. 437, 3 Am. Dec. 61 ; from Bennett
V. Irwin, 3 Johns. (N. Y.) 365; from Abbott v. Allen, 14 Johns. (N.
Y.) 253; from Greenby et al. v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am.
Dec. 379; from Pollard et al. v. Dwight et al., 4 Cranch, 430, 2
L. Ed. 666; from 1 Swift's Dig. 370; and from Mitchell v. Hazen,
4 Conn. 495, 10 Am. Dec. 169. From its nature, it does not run with
the land, as none but real covenants do ; and these are always sus-
pended on some act posterior to the delivery of the deed. Hence, as
I have said before, having been broken, the covenant has become a chose
in action, and therefore cannot be assigned. 1 Swift's Dig. 370. In
Bickford v. Page, 2 Mass. 455, it was said by the court: "This cove-
nant being broken before the release, was, at tliat time, a mere chose
in action, and unassignable." The court, in the case of Greenby &
al. v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379, determined, that
the assignee of a covenant of seisin could not recover. The opinion
was delivered by Spencer, J., in which he says: "Choses in action are
incapable of assignment at the common law ; and what distinguishes
these covenants, broken the instant they were made, from an ordinary
chose in action? The covenants, it is true, are such as run with the
land ; but here the substratum fails, for there was no land whereof
the defendant was seised, and of consequence, none that he could
alien : the covenants are, therefore, naked ones, uncoupled with a right
to the soil."
The same point was adjudged as far back as the reign of Queen
Elizabeth, in Lewes v. Ridge, Cro. Eliz. 863 ; and the case, so far as
I can find, has never been overruled. The principle settled in that
case, was this ; that an assignee shall not have an action upon a breach
of covenant before his own time. The same principle was recognized
in Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61 ; in the determina-
tion of which case, it was said by Parsons, Ch. J., when delivering the
opinion of the court ; that "no estate passed, to which these covenants
(i. e. of seisin and right to convey) could be annexed, because in fact
broken before any assignment could be made, they were choses in ac-
tion, and not assignable." In Com. Dig. tit. Covenant, B. 3, it is as-
serted, that "covenant does not lie by an assignee, for a breach done
before his time." It cannot run with the land ; for nothing having
been conveyed, what land is there for it to run with ? To the same ef-
fect is Lucy v. Levington, 2 Lev. 26, s. c. 1 Vent. 175, in which it was
decided, that for a breach of the covenant of quiet enjoyment in the
testator's time, the executor was authorized to recover; and of his
Ch. 6) COVENANTS FOR TITLE 763
Opinion was that eminent judge Sir Matthew Hale. Similar doctrine
is to be found in the Digest of Baron Comyns, tit. Covenant, B. 1.
In relation to principles so well established, one or two modern
decisions in Westminster-Hall in opposition to them, however they
might there be regarded, ought not here to be considered as of any
autliority. Such decisions have been cited. The first of them is the
case of Kingdon, Ex'r v. Nottle, 1 Mau. & Selw. 355. The defendant
had conveyed to Richard Kingdon, the testator, certain property, and
covenanted that he was seised of it, and had good right to convey. It
was averred as a breach, tliat he was not seised of the premises ; and
the court adjudged, that the executor could not sue on the covenant,
without shewing special damage to the testator, but tliat the heir
might. It was said by Lord Ellenborough, that "the covenant, it was
true, was broken, but that there was no damage sustained in the tes-
tator's life-time." To this observation of that learned and able judge
I cannot subscribe. The covenant being broken the instant it was
made, the damage, most obviously, was the whole consideration paid ;
and I am at a loss to conceive what other or furtlier dam.age could
arise.
In the surrounding states, as well as in our own, it is unquestionably
established, that the damage is the consideration paid ; and that tliis
is Immediate on the delivery of the deed. This, then, is the first ob-
jection to the determination, that whatever may be the law of West-
minster-Hall, the damage, in the case alluded to, is justly considered
as not nominal, but real, and indeed all that the party can experience.
It is the whole consideration paid. This principle alone shews, that
the determination in Kingdon v. Nottle is inapplicable to us ; and it
likewise authorizes the assertion, that Lord Ellenborough and his as-
sociates, had they resided in Connecticut, and there pronounced their
opinion, would have decided the case before them differently from
what they have.
To the determination in Kingdon v. Nottle there is a sound objec-
tion. It is opposed to principles, uniformly, and for centuries, estab-
Hshed in Westminster-Hall. It was said by Lord Ellenborough, in
the case alluded to, that "if the executor could recover nominal dam-
ages, it would preclude the heir, who is the party actually damnified,
from recovering at all !" The force of thfs reasoning depends entirely
on the assertion tlnat the heir is "the party actually damnified ;" and
if this is an incorrect position, the argument wholly fails. Now, it is
not true, that the heir is the party damnified. The damage arises en-
tirely by the breach of the covenant in the life-time of the testator;
and the testator is the only person, who receives damage. Thus were
all the determinations before the last mentioned decision. To this ef-
fect was Lewis v. Ridge, Lucy v. Levinton, and the law as laid down
in Comyn's Digest; and not a case or Dictum was there to the con-
trary. Indeed, the admission of Lord Ellenborough, that the cove-
nant was broken in the life-time of the testator, most conclusively
764 DERIVATIVE TITLES (Part 2
shews, that the heir was not damnified. His own damage must result
from his title to the land, and not from the covenant broken, to which
he was no party. Now, as to tlie land, the heir never had title; nor
had his ancestor. The complaint is, that the grantor was not seised,
and had conveyed no title. How, then, is it possible, tliat the heir
should inherit land, to which his ancestor had no title? If, then, he
had no title to the estate supposed to be conveyed, and he was no party
to the covenant, and the breach happened before his ancestor's death,
what is the ground of his claim ? In my opinion, none. On tlie other
hand, as the covenant was broken in the testator's life-time, and the
damage resulting from the breach was due to him; after his death,
his executor, standing in his place, had the right of suit. For the
principle is incontrovertible, that where the testator can maintain cove-
nant in his life-time, on a cause of action then existing, his executor
may support the same action after his death. 1 Swift's Dig. 371 ;
Toll. Ex. 158, 432.
Another writ of covenant was brought by Kingdon, as devisee,
against Nottle, 4 Mau. & Selw. 53, upon the covenant of seisin be-
fore mentioned, on the ground tliat the covenant run with the land,
and that the breach happened to the devisee. Consistently with the
former determination, the court decided in favour of the plaintiff.
It required some ingenuity to sustain an action on a covenant, for a
breach happening in the time of the testator, before the devisee (the
plaintiff) could have any interest in the covenant ; and more especially,
as no special damages were laid. For it was not stated in the case,
that the plaintiff was, at any time, interrupted or disturbed in the en-
joyment of the premises; or that he sustained any damages, by the
breach of the covenant, in the testator's life-time. Accordingly, this
point was met, by Lord Ellenborough, who said : "The covenant passes
with the land to the devisee, and has been broken in the time of the
devisee; for so long as the defendant has not a good title, there is.
a continuing breach, and it is not like a covenant to do an act of soli-
tary performance, but it is in the nature of a covenant to do a thing
toties quoties, as the exigency of the case may require."
From this opinion I am compielled to dissent in omnibus. First, I
affirm, that the novel .idea attending the breach in the testator's life-
time, by calling it "a. continuing breach," and therefore a breach to the
heir or devisee at a subsequent time, is an ingenious suggestion, but
of no substantial import. Every breach of a contract is a continuing
breach, until it is in some manner healed ; but the great question is, to
whom does it continue as a breach ? The only answer is, to the per-
son, who had title to the contract, when it was broken. It remains,
as it was, a breach to the same person, who first had a cause of action
upon it. If it be anything more, it is not a continuing breach, but a
new existence. In the next place, I assert, that it is like a covenant
to do an act of solitary performance ; and for this plain reason, that
It is, in its nature, a covenant for a solitary act, and not a successive
Ch. 6) COVENANTS FOR TITLE 765
one. If the covenant is broken, that is, if the grantor was not seised,
it is infracted to the core ; and a second supposed breach is as futile
as the imaginary unbroken existence of a thing dashed in pieces. It
has no analogy to a covenant to do a future act, at different times,
Avhich may undergo repeated breaches. It has no f uturition ; and can-
not be partly broken and partly sound; but the grantor is seised, or
not seised ; and therefore, the covenant is inviolate, or violated wholly.
Not further to pursue the subject, I remark, that, in my judgment, the
case of Kingdon v. Nottle may justly be said to authorize the assign-
ment of a chose in action by devise ; a supposition as unfounded as it
is novel.
1, therefore, conclude, that the determinations in the above men-
tioned cases of Kingdon v, Nottle, are against the ancient, uniform
and established law of Westminster-Hall; against well settled princi-
ples and decided cases in the surrounding states; and that the judges
pronouncing them, would have been of an opinion different from the
one expressed, had they recognized the principle here well established,
that the breach of the covenant of seisin is, in its nature, total, and
the measure of damages the whole consideration money paid for tlie
land. As a consequence, I am of opinion that the plaintiff cannot
sustain his action on the covenant of seisin.
2. The next question relates to the covenant of freedom from incum-
brances.
The deed of the defendant to George Welton contains a covenant of
this description ; and the plaintiff claims title to the covenant, and a
right to recover for a breach of it, by virtue of a deed of quit-claim
from the defendant and Welton. Without a further statement of
fact, it is sufficient to remark, that the plaintiff has no right to re-
cover for the breach of this covenant; and if he had, no breach of
it is assigned.
First, he has no title to the covenant of freedom from incumbrances,
nor right to recover for the breach of it. His only claim is founded
on the principle, that this covenant runs with the land. In opposition
to this claim, I observe, that the covenant above-mentioned was per-
sonal, and not a real covenant; that it was broken in the testator's
life-time, and could not run with the land, — a peculiarity attending real
covenants only; and of consequence, that George Welton is the only
person who can sue on this unassignable contract.
This covenant is classed, by the late Chief Justice Swift, (in the
first volume of his Digest, p. 370,) with the covenant of seisin and of
good right to convey ; and in relation to them all, he correctly says :
"These covenants must be all broken at the time of executing the deed.
or they never can be; for if at that time, the grantor is not well
seised of the premises, as an indefeasible estate, or if he had no right
to sell, or if any incumbrance existed, then the covenants are broken.
But if the grantor is seised, has right to sell, or there are no incum-
brances at the time of making the deed, then these covenants can never
766 DERIVATIVE TITLES (Part 2
be broken ; for no subsequent act can be done, by the grantor, which
will amount to a breach of them ; as he can do no act, that will affect
or incumber tlie estate. These covenants, of course, cannot be real
covenants ; for being broken at the instant of their creation, they are
choses in action, and cannot be assigned. The distinguishing feature of
the real covenant, is, that it may be broken at a future time ; and it
is this quality, which renders it assignable ; but it must be assigned be-
fore it is broken; for when once broken, the right to recover dam-
ages, is a chose in action, which cannot be assigned."
With these observations, I entirely concur. The fundamental ques-
tion, on which the whole doctrine depends, is, when is tlie covenant of
freedom from incumbrances broken? It is a covenant for a fact, ex-
isting or said to exist, not in future, but in prsesenti; at the moment
when the deed is delivered. The phraseology of the covenant is, that
the premises are free from incumbrances ; not that they shall in fu-
ture be free ; just like the expression the grantor is seised, and has
good right to convey." If the covenant be true, it can never be brok-
en; if it be false, it is broken immediately, in which event it is a chose
in action, and cannot be assigned. The doctrine contended for was
adjudged, by the supreme judiciary of Massachusetts, in Prescott v.
Trueman, 4 Mass. 627, 3 Am. Dec. 246, and by the supreme court of
New York, in Delavergne v. Norris, 7 Johns. (N. Y.) 358, 5 Am. Dec.
281.12
Secondly, no breach of the covenant in question has, by the plain-
tiff, been assigned. The averment is merely this — tliat the estate "is
not free from all incumbrances." It is sufficient to say, that the law
requires the incumbrance to be specially named and set forth ; or the
defendant will always be taken by surprise. Incumbrances, in their
nature, are numerous. A mortgage, a way, a right to dig turf, to
pasture cattle, or to have dower assigned, and in short, an easement
of any kind, is an incumbrance, because it is a load or weight on the
land, and must lessen its value. Prescott v, Trueman, 4 Mass. 630, 3
Am. Dec. 246. It is opposed to the fundamental principles of plead-
ing, (which are to inform the court, the jury, and, above all, the party,
by the altercations in writing) to authorize a general allegation that
there are incumbrances, without declaring what they are. The point
is settled, by first principles, and he is too clear for controversy. In
Marston v. Hobbs, 2 Mass. 433, 3 Am. Dec. 61, it was said, by Chief
Justice Parsons, that the breach of the covenant against incumbrances,
like that for quiet enjoyment, must be specially assigned, shewing its
nature, and the interruption complained of. The same point was ad-
11 See Hall v. Dean, 13 Johns. (N. Y.^ 105 (1S16); Post v. Campau, 42 Mich.
90. 3 N. W. 272 (1879). But see Guerin v. Smith, 62 Mieh. 3G9, 2S N. W. 906
(18S6).
12 Cf. Dehority v. Wrijrht, 101 Ind. .382 (1885); Worley v. Hineman, 6 Ind.
App. 240. 3.3 N. E. 2G0 (INO.Jt ; Security Bank of Minnesota v. Holmes, 65 Minn.
531, 68 N. VV. 113, 60 Am. St. Rep. 495 (1S!)6).
.See Richard v. Bent, 59 111. 38, 14 Am. Rep. 1 (1871), contra.
Ch. 6) COVENANTS FOR TITLE 767
judged, by the same court, Bickford v. Page, 2 Mass. 455 ; and in De
Forest v. Leete, 16 Johns. (N. Y.) 122, it was said, by the supreme court
of New York, that under a general assignment of a breach of the cove-
nant against incumbrances, the plaintiff cannot give evidence of his
having bought in an incumbrance, because it was not specifically al-
leged in the declaration; and for the admission of such evidence, a new
trial was granted.
The charge of the judge to the jury, in this case, is free from ex-
ception. The covenant in question, as was said by him, is broken in-
stantaneously, if ever ; and under the negative averment is not free
from incumbrances, the jury were correctly instructed, that proof of
a particular incumbrance was inadmissible, because it should have been
set forth specifically, to apprize the defendant of its nature, and give
him the means of preparation for his defence.
Peters, Brainard and Bristol, JJ., were of the same opinion.
New trial not to be granted.^*
SCHOFIELD V. IOWA HOMESTEAD CO.
(Supreme Court of Iowa, 1S71. 32 Iowa, 317, 7 Am. Kep. 197.)
Action upon the covenants of a deed for lands. Trial to the court
without a jury, and judgment for plaintiff. Defendant appeals.
Beck, J. I. The counsel of the respective parties agree that the
action is based upon the covenant of seisin, which is sufficiently
expressed in the deed. As a defense, the answer alleges that, prior to
the commencement of the action, plaintiff, for value, sold and con-
veyed a part of the lands to another, and that the covenant declared
on passed with the land, so far as the contract covered the same, to
the purchaser from plaintiff, and that recovery in this action for the
land so conveyed is barred. To this defense a demurrer was sus-
tained. The question thus presented for our determination is this:
Does the covenant of seizin run with the land?
We are fully aware of the discord of authorities upon this ques-
tion, and that a great majority of the American cases hold the cove-
nant to be in prsesenti, and that it is broken, if at all, when the deed
is delivered, and that the claim for damages thereby becomes personal
in its nature to the grantee, and is not transferred by a conveyance
to a subsequent grantee. But in England the rule prevails that the
covenant runs with the land, and recovery for a breach thereof may
be had by the assignee of the grantee in the deed. Kingdon v. Not-
tle, 1 Maule & Selw. 355 ; 4 Maule & Selw. 53 ; King v. Jones,
5 Taunt. 418; 4 Maule & Selw. 186; 1 Smith's Lead. Cases, Am.
notes to Spencer's Case, p. 150; 4 Kent's Com. 472; 1 Washburn on
Real Prop. 649.
13 See Collier v. Gamble, 10 Mo. 467 (1847) ; Cole v. Kimball, .52 Vt. 6.S9
(18S0) ; Peters v. Bowman, 98 U. S. 56, 59, 25 L. Ed, 91 (1878) ; Clark v. Swift,
3 Mete. (Mass.) 390 (1841).
768 DERIVATIVE TITLES (Part 2
The English doctrine has been adopted, and the rule in Kingdon
V. Nottle, followed by the supreme courts of Ohio and Indiana/*
with the modification, however, in Ohio, that when the grantor has
neither title nor possession, and is therefore unable to transfer either
by his deed, the covenant is broken as soon as made, and becomes
a mere right of action which is not transferred by a subsequent
conveyance of the land. Backus' Adm'rs v. McCoy, 3 Ohio, 211, 17
Am. Dec. 585 ; Foote v. Burnet, 10 Ohio, 317, 36 Am. Dec. 90; Devore
V. Sunderland, 17 Ohio, 52, 49 Am. Dec. 442; Alartin v. Baker, 5
Blackf. (Ind.) 232.
A similar rule, applicable to covenants against incumbrances, for-
merly prevailed in Massachusetts, but has been abandoned. Wyman
V. Ballard, 12 Mass. 30+; Sprague v. Baker, 17 Mass. 586.
A like doctrine is recognized in South Carolina. Brisbane v. Mc-
Crady's Ex'rs, 1 Nott & McCord, 104, 9 Am. Dec. 676.
The English rule is commended to us by reason and justice, and
Chancellor Kent, while condemning the reasons upon which it is
supported in Kingdon v. Nottle, admits that the American doctrine
is supported upon a "technical scruple," and assigns the most con-
clusive reasons in support of the opposite English rule, 4 Kent, 472.
The object of all covenants in conveyances of lands, relating to
their title or their enjoyment, is to secure indemnity to the party
entitled to the premises in case he is deprived of them. The sub-
sequent vendee, in the language of Kent, "is the most interested and
the most fit person to claim the indemnity secured by them (the cove-
nants), for the compensation belongs to him as the last purchaser and
first sufferer."
The American rule will operate oppressively in all cases where
the land has been subsequently conveyed by the grantee, either to-
ward the grantor or subsequent purchaser. If the purchaser is
evicted he ought to receive the indemnity secured by the covenant,
for he is not only, as is said by Kent, the first sufiferer, but the only
sufferer in every instance, except when he has not paid for the land.
When the grantee, under the deed containing the covenant, has sold
and received pay for the land, it would be gross injustice to permit
him to recover, for he would not in that case sustain damages. But
under the rule, to which we are now objecting, the grantee may
recover on the covenant of seizin and, if there be a covenant of
warranty in the deed, the subsequent grantee may also recover up-
on that contract against the first grantor. But if there be no cov-
enant of warranty, we would have the equally strange case of a party,
the first grantee, recovering damages when he is entitled to none, and
the party really injured unable to recover. Other instances of un-
just and unreasonable results could be mentioned.
The "technical scruple," as it is called by Kent, upon which the
14 See, also, Mecklem v. Blalie, 22 Wis. 405, 99 Am. Dee. 68 (186S), ace
Ch. 6) COVENANTS FOR TITLE 769
American doctrine is based, is this : The covenant is broken the in-
stant the conveyance is delivered ; it then becomes a chose in action
held by the grantor in the deed. Brady v. Spurck, 27 111. 478 ; King v.
Adm'x of Gilson, 32 111. 348, 83 Am. Dec. 269. But how can this be
a reason in support of the doctrine under the laws of this State which
permit the assignment of all choses in action? What legal principle
would be violated by holding that the deed from the first grantee op-
erates as an assignment of this chose in action ?
Deeds under the laws of this State have been reduced to forms of
great simplicity. Intricate technicalities have been pruned away, and
they are now as brief and simple in form as a promissory note. All
choses in action, as I have just remarked, may be assigned and trans-
ferred. The covenant of seizin (if it be held that such a covenant
exists in a deed of the form authorized by the laws of this State),
as we have seen, is intended to secure indemnity for the deprivation of
the title and enjoyment of the lands conveyed. Why not brush away
the "technical scruples" gathered about the covenant of seizin, as we
have the like technical and cumbrous forms of the instrument itself,
and enforce it for the benefit of the party who is really injured by its
breach, even though, in so doing, we find it necessary to hold that a
chose in action is assigned and transferred by the operation of the
deed''
To my mind, the position reached by this course of argument is im-
pregnable, and I cannot be driven from it by the great weight of
authorities in support of the contrary doctrine.
We conclude that plaintiff was not entitled to recover for the land
conveyed by him, and that the court erred in rendering judgment for
the full amount of the consideration paid, as shown by the deed.
II. The plaintiff's counsel argues that, admitting the covenant runs
with the land, being entire, a conveyance of a portion of the premises
vests no right of action in the grantee. But this position is in con-
flict with the authorities. It is held that covenants running with the
land are susceptible of division, so that if the land be conveyed in
parcels to several persons, each may maintain an action upon the
covenant to recover for the land in which he has an interest. Kane
V. Sanger, 14 Johns. (N. Y.) 89; Dickinson v. Hoomes' Adm'r, 8 Grat.
(Va.) 353.
This rule is based upon sound reason, and accords with the analogies
of the law.^"^ * * *
On account of the error in holding that the covenant sued upon
does not run with the land, the judgment of the circuit court is re-
versed.^*
16 A portion of ttie opinion relating to the burden of proof is omitted.
16 See Hall v. Plaine, 14 Ohio St. 417 aSG3) ; Geiszler v. De Graaf, 160 N.
T. 339, 59 N. E. 993, 82 Am. St. Rep. 059 (1901) : In re Hanlin, 133 Wis. 140, 113
N. W. 411, 17 L. R. A. (N. S.) 1189, 12G Am. St. Rep. 938 (1907) ; Brooks v. Mohl,
Aig.Pbop. — 49
,770 . DERIVATIVE TITLES (Part 2
MARKLAND v. CRUMP.
(Supreme Court of North Carolina, 1S34. IS N. C. 94, 27 Am. Dec. 230.)
This was an action to recover damages for the breach of a cove-
nant of quiet enjoyment contained in a deed whereby the defendant
conveyed land to the intestate of the plaintiff. The breaches assigned,
were: 1st. The eviction of the intestate by paramount title. 2nd.
The eviction of the bargainee of the intestate.
The plaintiff having made out a prima facie case, for the defence
it was proved that the interest of the intestate in the land, had, before
the eviction, been sold under a fi. fa. against the intestate, to one Alar-
cum, and that the latter was the person who had really been evicted.
Upon this fact being admitted, his honour. Judge Sewell, at Rowan,
on the last Circuit, ruled that the plaintiff, to entitle himself to a
verdict, should "show a disturbance, either of his intestate, or of some
person holding under him, as his tenant, whose possession was that
of the intestate. That the plaintiff as administrator, could not recover
for a disturbance, when the person disturbed could claim the benefit
of the covenant, in the deed to the intestate. That the covenant de-
clared on, either ran with the land to the assignee,' or it did not. If
the former, the assignee being the person disturbed, was entitled to
its benefit — that but one action could be maintained for the disturb-
ance, and to allow that action to be brought by one whase interest had
passed away, and who had received the full value of the land, for a
disturbance which in no way molested him, and this to the prejudice
of the person really injured, who had lost both the lands and his mon-
ey, was not consistent either with reason or justice. That if on the
other hand, the covenant did not run with the land, and extend to
the assignee — the purchaser under the fi. fa. then it had not been
broken by the eviction of the latter."
In submission to this opinion, the plaintiff' suffered a non-suit, and
appealed.
RuFFiN, C. J. The opinion delivered in the Superior Court, is that
entertained by this Court ; and very much upon the reasons expressed
by his honour. For it would seem to be a first principle, that in an
action sounding in damages, none can be recovered, if none have been
sustained by the plaintiff.
jSIarcum, the purchaser at sheriff's sale, has been regarded by the
plaintiff's counsel, as a purchaser with warranty; because, under the
statute, he can have recourse to Tucker, the defendant in the execution.
The Court supposes it clear, that he is an assignee, who, by reason of
104 Minn. 404, 116 N. W. 931, 17 L. R. A. (N. S.) 1195, 124 Am. St. Rep. G29
(1908).
Hut see Zent v. Picken, 54 Iowa. 535, 6 N. W. 750 (ISSO) ; Backus' Adiu'rs v.
McCoy, 3 Ohio, 211, 17 Am. Dec. 585 (1827).
Ch. o) COVENANTS FOR TITLE 771
the privity of estate, is entitled to the benefit of, and bound by all
covenants running with the land. Spencer's Case, 6th Resolution, 5
Rep. 17. But whether such recourse against Tucker, would amount to
such a warranty, or ought to be construed to have the same effect,
the Court does not deem it necessary to determine. Because we think,
an express warranty from Tucker to Marcum, would not, upon the
eviction of the latter, give an action to Tucker against Crump, on his
covenant of warranty, nor be a bar to that of Marcum against Crump
on the same covenant.
In support of the proposition to the contrary, the counsel for the
plaintiff has been able to adduce no case, in which that was the point
adjudged. In Kane v. Sanger, 14 Johns. (N. Y.) 89, Chief Justice
Spencer states the general rule to be, that where covenants run with
the land, if it be conveyed before a breach of the covenant, the assignee
only can sue upon the subsequent breach ; but if the assignor be him-
self bound in his deed, to indemnify the assignee against such breach,
there the assignor onl]^ can bring the action. This is certainly a very
explicit declaration of the opinion of a most respectable Judge. But
it is not entitled to the authority of an adjudication; because it was
not necessary to the decision of the case, and is only a dictum. There
the plaintiff, who was the assignor, had immediately taken back the le-
gal estate, by way of mortgage in fee; and therefore his assignee
could not, under any circumstances, have had an action ; for at the
time of the breach, he was not the assignee, but the plaintiff was rein-
vested with the estate by force of the mortgage. Upon this ground
the plaintiff' had judgment. As it was held, that in the case proved, the
effect of the plaintiff"'s warranty could not be a bar to the action, it
became immaterial to determine what the effect would have been,
if the estate had remained in the assignee, until his eviction.
No English case is referred to by the Chief Justice, and but one in
this country, that of Bickford v. Paige, 2 Alass. 460. This last case
does not seem to us to admit of such an interpretation. Chief Jus-
tice Parsons says, that "the assignee alone can sue, unless the nature
of the assignment be such, that the assignor is holden to indemnify the
assignee against a breach of the covenants by the original vendor;
which is founded on the principle, that no man can maintain an action
to recover damages, who has suffered none." This is a very clear
opinion, that an assignee without a covenant from his immediate
vendor, may sue on a remote covenant; and that he alone can sue in
such a case ; and that for the very best of reasons — because no body
else is injured. But it affords no inference, that an assignee with
warranty may not also sue on a remote covenant, but only, that in
such case, he is not the only person, who can have remedy for a
breach. In the context, it must mean, that the assignee who is evicted,
may sue the remote covenantor for the damages sustained by him ; but
that this case is not like the former in which he alone could have the
action; because in this case, another, besides the assignee, may sus-
772 DERIVATIVE TITLES . (Part 2
tain damages, namely, his assignor upon his engagement to indemnify.
As without such engagement the assignor could not sue, because he
could not be injured; so where he paid the damages to the assignee
upon such an engagement, the assignor could sue, because he then had
suffered. But because the assignor can bring an action after suffer-
ing, it does not follow that he can bring his action upon the eviction
of his assignee, and before satisfying the assignee, and to the exclu-
sion of the assignee himself.
This construction of the language of Chief Justice Parsons is that
adopted by the Court in Withy v. Mumford, 5 Cow. (N. Y.) 137, in
which the doctrine laid down in Kane v. Sanger, is pointedly denied,
under such circumstances as to destroy its authority; even in the
Courts of New York. For had the point been necessary to a decision
in Kane v. Sanger, it is adjudged directly to the contrary in Withy v.
Mumford, in which it was held, that the assignee, who is evicted,
may sue any one or more of the covenantors, whether immediate or
remote; and that an assignor, who has himself covenanted, cannot
sue a prior covenantor, until he has himself satisfied the evicted as-
signee; but that upon doing that, he can.
This Court is at loss for a reason upon which the first rule laid
down in the Supreme Court of New York can be sustained, or the
second can be impeached. If there be a reason, it must be peculiar
to covenants and conveyances of land. None such is perceived; and
to JUS, the position contended for seems to be inconvenient, unjust,
and contrary to analogy. It multiplies suits, by requiring each as-
signee to sue his own vendor only. It may defeat the evicted person
of his damages, by enabling his insolvent assignor to recover the
money from the only person among those liable, who is able to pay it ;
and he may refuse to pay it over. Covenants which run with land,
were always exceptions to the maxim of the common law, that choses
in aqtion could not be assigned. They cannot be separated from the
land, and transferred ; but with the land they could, as being annexed
to the estate in possession, and bound the parties in respect to the
privity of estate. In other instances of assignments tolerated by law,
the assignee having for the time being the right, is alone entitled to
an action on the contract^ and may have his action against any of the
parties bound, either mediately or immediately. Negotiable mercan-
tile instruments, afford a similar example. The holder may sue, not
only his own endorser, but also any one whose name is on the paper.
But an endorser cannot have an action against any party prior to him-
self, until he shall have taken up the paper from the last holder, and
thus become the holder to his own use. The good sense of this prin-
ciple seems to make it necessarily applicable to all cases of successive
engagements of indemnity.
It is admitted that, if the grantee with warranty, convey without
warranty, the last grantee may sue directly on the covenant of the first
grantor. It is not seen why the interposing a second warranty should.
Ch. G) COVENANTS FOR TITLE 773
nor how it can, restrict the assignee to a remedy on the last covenant.
In each case, the first covenant came to him, as being annexed to the
estate ; and thus belonging to him, he, and not another, ought to have
the action on it, until he gets satisfaction. When that is made, the
person who makes it is then the injured person, and may have his ac-
tion to make himself whole. It is for the benefit of all parties, that
each claimant should have a direct recourse on the person ultimately
responsible, if he be able to respond.
An argument was drawn for the plaintiff, from the doctrine of
Buckhurst's Case, 1 Co. Rep. 1, that a vendor who warrants, is entitled
to keep the title papers, which contain covenants to which he may re-
sort for his indemnity. The inference sought is, that if he has a
right to the deed, it must be because he alone can bring an action on
the covenants in them, or that such possession gives him the exclusive
right of action. In our opinion, that consequence cannot be deduced.
It affords no better ground for his action for a breach subsequent
to his assignment, than for such action before any breach, in antici-
pation of one. The possession of the title deeds may indeed put the
assignee to a difficulty in framing his declaration, making profert,
and giving evidence of a deed not in his own possession, which he
must encounter, and get over as well as he can. Indeed, it may be,
that he may be excused from a profert, if the record shows that he is
not entitled to the deeds. But these obstacles merely arise out of
the rules of pleading and evidence, as between the assignee and cov-
enantor sued; and have no reference to the rights of an interme-
diate owner, who has parted from his title. The first feoffor can
make direct satisfaction to the person evicted, or take a release
from him.
That an assignee may sue the remote covenantor, the case of Mid-
dlemore v. Goodall, Cro. Car. 503, is a direct authority. It is true
that the plaintiff there did not state in his declaration, that his con-
veyance was with warranty; so that the effect of such a covenant is
not precisely shown by that case. But it is equally true, that it does
not appear that the deed to the plaintiff did not contain such a cov-
enant. Now every declaration must give a complete cause of action,
and if the law be, that an assignee with warranty cannot sue on any
prior covenant, the declaration ought to aver that the plaintiff is an
assignee without one. Nothing of that kind is found in that case, nor
in the precedents. They are silent as to the covenants contained in
all the deeds, under which the plaintiff claims, except the particular
covenants on which the suit is brought, and only sets forth the op-
erative parts of the deed, as conveying the estate to the plaintiff.
Nor has any case, or precedent been found, of a plea, that the con-
veyance from the plaintiff's vendor, or from some assignor between
himself and the defendant, did contain covenants, although the case
of such covenants, posterior to that of the defendant in the action,
must frequently have occurred.
774 DERIVATIVE TITLES (Part 2
But a still broader ground was asserted in the argument; which
is, that even if the assignee Marcum could sue, yet the plaintiff, as
administrator of Tucker, the defendant's bargainee, could- also have
his action : the two actions resting on different grounds ; the former
on privity of estate, and the latter on privity of contract.
For this no direct authority has been cited, and we suppose there
can be none. For it is a proposition of simple justice to the covenantor,
that both actions cannot be maintained. It has however been likened
to the case of the action of covenant by a lessor against an as-
signee of the lessee, and also against the lessee himself; both of
which will certainly lie. That, however, is but the ordinary case of
a creditor having a right to look to two persons severally for the same
debt, from one only of whom, is he allowed to collect it. This would
be the anomalous one, of two persons having each the distinct right to
recover and collect from a debtor, the same money, although he ought
to pay it but once.
The present case is really correlative, not to that of a lessor claim-
ing from the lessee and his assignee the rent due him, but to that
of a lessor who has assigned his reversion and sues the lessee on the
covenants in the lease for rent arising after the assignment. That
such an action cannot be sustained upon the privity of contract has
been settled ever since Lord Coke's time. Walker's Case, 3 Rep. 22.
It is there laid down "that if the lessor grants over his reversion, now
the contract runneth with the estate, and therefore the grantor shall
not have any action of debt for rent due after his assignment, but
the grantee shall have it; for the privity of contract follows the es-
tate, and is not annexed to the person but in respect of the estate."
The explanation of the difference he proceeds afterwards to give, and
it is most reasonable. "The lessee himself," he says, "shall not pre-
vent by his own act such remedy which the lessor hath against him ;
but when the lessor grants over the reversion, there, against his own
grant he cannot have remedy, because he has granted to another
the reversion, to which the rent is incident." It is thus seen, that
to an action by the lessor against the lessee or his assignee, it is
a full answer, that the plaintiff had assigned before the rent ac-
crued.
The same principle embraces the present case. Tucker, the de-
fendant's grantee, cannot have the action, because he conveyed to
Marcum, before the breach, the estate to which the covenant was
incident, and the original privity of contract will not siipport the ac-
tion, but in respect of the privity of estate continuing, or of the loss
of the estate and damages thence arising to the plaintiff.
Indeed, if privity of contract alone was sufficient without reference
to the estate, the present plaintiff might recover as well if his intes-
tate had conveyed without, as with warranty; for the covenants
inserted hi the deed do not make it more or less an assignment of the
land. Yet the very cases cited admit the assignee's sole right to sue,
Ch. G) COVENANTS FOB TITLE 775
if there had not been a warranty by his vendor; for if he had not the
right there would be no redress.
But there are other cases from which it is clear that mere privity of
contract will not suffice to sustain an action; but the plaintiff must
show a damage arising to himself in particular, from the breach al-
leged. Those of Kingdon v. Nottle, 1 Maule & Selw. 355, and 4
Maule & Selw. 53, are clear examples. The defendant conveyed to
the testator with a covenant of seisin ; and the first action was brought
by the plaintiff as executrix, upon the idea that such a covenant was
broken as soon as entered into, and therefore that, as in other cases
of a breach in the testator's time, she ought to sue in that character.
But it was held otherwise on demurrer, because although the war-
ranty was broken in the testator's time, yet the declaration did not
show a special damage to him in his life-time, and the heir or dev-
isee took the estate such as it was, and was entitled to the benefit of
the covenant; and therefore the executrix could not sue, and claim
the damages as personalty, since the testator had not so treated the
breach of covenant. Lord Ellenborough said there would be a diffi-
culty in admitting the executrix to recover at all, that is, upon the dec-
laration aa framed, without allowing her to recover the full amount
of damages for the defect of title; and in that case, the heir would
be barred by her recovery ; for the heir could not maintain another ac-
tion for the same breach and the same damages. All the Judges,
indeed, put it pointedly, that the recovery by the executrix would be
a bar to the heir, and leave no subject of a suit for the devisee, al-
though the estate such as it was, came to him, and the damage was
actually to him. Accordingly when the same plaintiff, in the last case,
sued as devisee, there was judgment for her.
These cases are contrary to several in this country in one respect;
which is, tliat upon a covenant of seisin the assignee of the land can-
not have an action, since the breach is necessarily before the assign-
ment. Greenby v, Wilcocks, 2 Johns. (N. Y.) 4, 3 Am. Dec. 379, and
Bickford v. Paige, 2 ]\Iass. 460. That difference does not aft'ect the
question before us ; and tlie case of Kingdon v. Nottle is a clear
authority for this principle, that whenever a person is in the land in
privity of estate with the covenantor, eviction or defect of title is not
necessarily to the damage of one who has merely a privity of con-
tract; but that such latter person must particularly show his dam-
age, before he can sue on the contract. It further establishes, that
the action of the person who has only a privity of contract will not
lie, because a recovery in it would be a bar to the person who had
the privity of estate, to whom the injury is immediate, and who there-
fore has the first right to satisfaction.
Upon the whole, therefore, the Court is of opinion, both upon au-
thority and reason, that a purchaser with warranty from his vendor
may sue upon a covenant of warranty to his vendor; and as a con-
776 DERIVATIVE TITLES (Part 2
sequence, that the latter cannot sue, until he shall have sustained
damage by making satisfaction upon his own covenant.
This is the more proper here, since the rule established in this state
for measuring the damages ; because the plaintiff's intestate ought not
to recover his purchase money, but only what Marcum recovered from
him ; that is to say, the purchase money and interest paid by Marcum.
Williams v. Beeman, 13 N. C. 483.
The observations on the first point supersede the necessity of exam-
ining the question, whether an estate passed by the defendant's deed or
not. The declaration is not framed on a covenant to convey, as if this
were such an agreement and not a conveyance ; but on this as a cove-
nant of warranty of an estate conveyed. The gravamen is the evic-
tion of Marcum, the assignee, and the damages arising therefrom;
and not a refusal to make an assurance. Now the eviction of the in-
testate's assignee can never, per se, be an injury to the plaintiff; but
to the assignee alone, until he shall have called on the plaintiff to
make him whole. When that shall be done, the plaintiff can state
a case in his declaration, on which a special damage to his intestate,
or to himself as administrator, can be seen and assessed to him.
Per Curiam. Judgment affirmed.^ ^
WILSON v. TAYLOR'S EX'RS.
(Supreme Court of Ohio, 1S59. 9 Ohio St. 595.)
This is an action of covenant. Reserved in the district court of
Licking county. The case stands upon demurrer to rejoinder.
The material allegations of the declaration are substantially these:
That Taylor (the defendant's testator) conveyed the land, which is the
subject of the covenant sued on, to Wilson, the plaintiff; that Wilson
conveyed to Thomas Legget ; that Legget conveyed to William Weis,
who went into possession; that all these conveyances contained like
covenants of general warranty against all incumbrances and claims
of all persons whomsoever; that at the time Taylor made his deed
and covenants to Wilson, one Rebecca Houston, then wife of John
Houston, Taylor's grantor, had in the land a contingent right of dower,
which became absolute; and that in Taylor's lifetime she filed her peti-
tion against Weis, and procured dower in the land to be assigned to
her; and that Weis^ thus evicted of part of the land, brought an ac-
tion upon the covenant made by the plaintiff, Wilson, to Legget, and
recovered a judgment against the plaintiff for $284.43, and costs of suit,
which he was compelled to pay. To make himself whole again, Wilson
brought this action on the covenant made by Taylor to him.
Taylor's executors plead, in substance, in bar of the action, that
17 See Booth v. Starr, 1 Conn. 244, 6 Am. Dee. 233 (1814) ; Kramer v. Carter.
136 Mass. 504 (1884) ace.
Ch. 6) COVENANTS FOR TITLE 777
Weis had brought an action against Taylor on the same covenant upon
which the plaintiff, Wilson, sues, and had recovered judgment against
Taylor for its breach for $280.23, which he had fully paid.
Wilson replies that Weis had recovered judgment for $414.43 against
Legget on the covenant made by him directly to Weis, as well as the
judgment against die plaintiff, Wilson, of $284.43, mentioned in the
declaration, and the judgment of $280.23 against Taylor, mentioned in
the plea; that these judgments recovered by W^eis were on the succes-
sive coyenants made by Taylor, Wilson, and Legget; and that the
recovery of dower and consequent eviction was the common and only
breach of all and each of the covenants ; and that the amount of the
judgment against Legget, to wit, $414.43, was the true amount of dam-
ages sustained and proved by Weis ; that of the damages, Taylor paid
only $148.08, and that the plaintiff, Wilson, paid $172.46, and costs
and expenses.
To this Taylor's executors rejoin, setting up the same defense made
by their plea. To this rejoinder Wilson demurs.
BrinkErhoff, C. J. The covenant in this case sued on, was a cove-
nant -running with the land ; and Weis, the last grantee, having been
evicted from part of the land embraced within the successive cove-
nants of warranty, brought several actions simultaneously against each
of the successive covenantors, and recovered several judgments against
each. This, it seems to be settled, he might properly do. King v.
Kerr's Adm'rs, 5 Ohio, 155, 22 Am. Dec. 777 \ Foote v. Burnet, 10
Ohio, 317, 36 Am. Dec. 90, and notes. But though he might have
his several actions, either simultaneously or successively, against all
his covenantors, whether immediate or mediate, yet it is equally well
settled, that he could have but one satisfaction.
It seems that, for some unexplained reason, judgment in these sev-
eral actions, thus simultaneously brought against the successive cove-
nantors, were taken for very different amounts, varying from about
$280 to about $414. And Taylor, the first covenantor, having paid
and satisfied the judgment against him, and which was amiong the
smallest in amount, the question presented by the demurrer is, whether
this satisfaction of the judgment against him is a bar to an action
over against him by the plaintiff, who was an intermediate covenantee,
after payment by the latter of a judgment recovered at the same time?
The question seems to be one of first impression, and our minds are
not free from difficulty in regard to it; but, on the whole, we are
unanimously of opinion that the plea is good. As before remarked,
Weis, the last covenantee, and who suffered damage by reason of
partial eviction, was entitled to his several action against all the prior
covenantors. Not only was his right of action perfect against all, but
the same rule of damages would apply as to all; and, although he
could have but one satisfaction, yet he was clearly entitled to recover
the full amount of his damages against each. If he failed to make the
proper showing in order to recover the full amount of his damages
778 DERIVATIVE TITLES (Part 2
against each, it was his own fault; and having collected and received
the amount recovered against the first covenantor, who occupied tlie
position in law of a guarantor of all the subsequent grantees, it seems
to us that Weis' claim under all the covenants must be held satisfied;
and that all enforcement of the judgments against the other intermedi-
ate covenantors was wrongful, and in violation of the principle that
he could have but one satisfaction. Taylor ought not to be subjected
to different actions, and liable to several recoveries for the same breach
of the same covenant.
It follows from this that the plaintiff has mistaken his remedy. He
ought, after the satisfaction by Taylor of the judgment against him,
to have either resorted to a court of equity to restrain the collection
of the judgment against himself, or, if circumstances forbade that, to
have sued to recover back the money he had paid on the judgment
against him, as for money had and received by Weis wrongfully, and
which in conscience he ought not to retain.
Demurrer overruled, and caiuse remanded.^*
18 Release of Covenantor. See Middlemore v. Goodale, Cro. Car. SO.I
(16.39) ; Chase v. Weston, 12 N. H. 413 (1841) ; Susquehanna & W. Val. Rail-
road & Coal Co. V. Quick, 61 Pa. 32S (1SG9).
The cases above given under the heading "covenants for title" have been
selected with a view especially to the development and presentation of the
problems arising out of the running of such covenants with the ''land," probably
the most difficult phase of the general subject. On this and other phases of
the subject, the student should further consult Rawle on Covenants for Title.
Ch. 7) ESTOPPEL BY DEED 779
CHAPTER VII
ESTOPPEL BY DEED
LITTLETON'S TENURES.
Also these words which are commonly put in such releases, scilicet
(quae quovismodo in f uturum habere potero) are as void in law ; for no
riyht passeth by a release, but the right which the releasor hath at the
time of the release made. For if there be father and son, and the fa-
ther be disseised, and tlie son (living his father) releaseth by his deed
to the disseisor all the right which he hath or may have in the same
tenements without clause of warrantie. &c.. and after the father dietli,
&c., the son may lawfully enter upon the possession of tlie disseisor,
for that he had no right in the land in his father's hfe (pur ceo que il
n'avoit droit en la terre en la vie son pier) but the right descended to
him after the release made by the death of his father, &;e.
"Section 446. ^T^ ' y^^Jj,^ A<->C« (^{l^ ru>4j>^^^ K-«i
COKE UPON LITTLETON.
Note, a man may have a present righj, though it cannot take effect
in possession, but in futuro.
As he that hath a right to a reversion or remainder, and such a right
he that hath it may presently release. But here in the case which Little-
ton puts, where the son release in the life of his father; this release is
void, because he hath no right at all at the time of the release made.
but all the rip^ht was at thnt time in th^ father; h"t ^f^er the decease
o_f..the father, the son shall enter into the land against his own_ re-
lease^ * * *
"Without clause of warrantie." For if there be a warrantie annexed
tp the release, then the son shall be barred. For albeit the release can-
not bar the right for the cause aforesaid, yet the ^yarrantie may rebut.
and bar him and his heirs of a future right which was not m him"at
that time : and the reason (which in all cases is to be sought out) where- «
fore a warrantie being a ^^yyenant xeal- should bar _a . future rig^ht, js
for avoiding of circuity of action (which is not favoured in law) ; as he
that made the warrantie should recover the land against the ter-tenant,
and be by force of the warrantie to have as much in value against the
same person. § 265a.
780 DERIVATIVE TITLES (Part 2
A) JACKSON ex dem. McCRACKIN v. WRIGHT.
V A (Supreme Court of New York, 1817. 14 Johns. 193.)
y . ^ This was an action of ejectmeot. brought to recover 200 acres of
\5 land, on the west side of lot No. 60, in the town of Sterhng. The
lJ[' cause was tried before Mr. Justice Yates, at tlie Cayuga circuit, in 1816.
tr Peter Boise, bv deed poll, dated the 5th of Julv. 1794. and which
was recorded on the 12th of Tune. 1807. wherein he is described as lat£
private in the first New York regiment, in consideration of f^rty
pounds, granted, bargained, sold, and quit-claimed to the lessor of thg
plaintiff, in fee, "all that militarv right, or parcel of land, granted to
him as bounty lands, for his services in the regiment aforesaid, duripg
the late war." The deed contained no covenants or warranty.
On the 2d of April, 1806, an act was passed by the legislature of
this state (Laws 1806, c. 95), entitled, "An act, for the relief of Peter
Boise, and others," by which it was enacted, "that it shall and may be
lawful for the commissioners of the land office, and thev are hereby
required to grant letters patent to Peter Boise, late a soldier in the first
New York regirnent, commanded by Colonel Goose Van Schaick, in the
Ime of the army" of the United States, and his heirs and assigns foreyer,
for the quantity of two hundred acres of land, in the tract set apart for
the use of the line of this state, serving in the army of the United
States, as a gratuity for his services and sufferings in the l^^te revolu-
tionary war :_ provided, that"5ie grant shall be to the said Peter Boisej
during his life only, and afterwards to his heirs in fee." In pursuance
of this act, letters patent, bearing date the 20th of November, 1806,
for the premises in question were issued to Peter Boise, under the
great seal of the state.
The judge ruled, that the act of the Legislature above mentioned,
was a private act, and that the deed from Boise to the lessor of the
plaintiff, being prior in date to the patent, did not entitle him to recover.
A verdict was accordingly rendered for the defendant.
The plaintiff moved for a new trial, and the case was submitted to
the court without argument.
SpEnce^r, J. The decision of the judge at the circuit, was correct,
on two grounds : ^
2. The deed from Boise to McCrackin is a bargain and sale, and quit
claim, and he had then no title to convey in the premises ; and no title,
not then in esse, would pass, unless there was a warranty in the deed ;
in which last case, it would operateas an estoppel, for avoiding circuity
ot action. (Co. Lit. sect. 446, 2657a and b ; Bennett v. Irwin, 3 Johns.
.366.)
Motion denied.
1 The court's opinion covering the first ground Is omitted.
<Vi
Ch. 7) ESTOPPEL BY DEED 781
BAYLEY V. McCO\.
(Supreme Court of Oregon, 18S0, S Or. 259.)
Prim, J. This was ^n action to recover damages for an alleged
breach of certain covenants in a deed. On May 23, 1870, John H.
Kendall and wife, for a valuable consideration, sold a certain lot in the
town of Corvallis, Benton county, Oregon, to James R. Bayley, and
then and there made, executed, and delivered to him their deed for the
same, as follows : "That the party of the first part, for and in con-
sideration of the sum of eight hundred dollars to them in hand paid,
* * have bargained, sold, and conveyed, unto the said party of
the second part, the following described premises, to wit : All of thgjr
right, title, and^ interest in and to lot number one . jaJblock. number
eWen, in the city of Corvallis, Benton county, and state of Oregon,_to
have and to hold the said premises, with their appurtenances, unto the
said Tames R. Bayley, his heirs and assigns forever. And the said
John H. Kendall does hereby covenant to ^nd with the said Tames R. ^,
Bayley, his heirs and assigns, that I am the owner in fee simple of (c)^gAA»<y^
said premises ; that they are free from all incumbrances, and that I
w^l_warrant_and defend the same from all lawful claims whatsoever."
Tna^ttn^nrne when said deed was made, the said Kendall was not / jn^
the owner of any portion of said lot except the south half thereof, and ^^•'*'**'
neither he nor his heirs have warranted or detended tne said premises A{^7t^ J' *
to the said Bayley, but on the contrary, at the time when said deed was *'''
made and delivered to him, the north half of said lot was seised and
possessed by the Corvallis, LQd.ge,. No. 14. Ancient Free anid Accepted
Masons, of Benton county, Oregon, by virtue of an older and better
title. Said Kendall having died prior to the commencement of this ^m
action intestate, it was brought against appellant as the administratrix ^Mf"^^"^^^^
of his esLaj£. '7'/ Y^JbumJU
The answer of appellant, after denying certain allegations of the ^^ ,
complaint, sets up as a separate defense : That at the time when said A'V^iC'**^VH-^
Kendall made the deed mentioned in the complaint in this cause, he did
not sell or convey to the respondent all of said lot number one in block
number eleven, b^ut^that he sold only the right, title, and interest he
then had in said lot, which was the south half of said lot; that at the
time of making said deed, the said Kendall was the owner in fee sim-
ple of the south half of said lot. That said south half was all that said
Kendall attempted to convey to respondent by said deed, and was all
that had been bargained for by him at the time, and was all th.git said^
coyenant of title related to, and was so understood at the time of said_
gurchase. A demurrer was interposed to this part of the answer,
which was sustained by the court, and judgment rendered against Jhe
appellant, from which \\e. appeals. The order and judgment of the
court sustaining the demurrer to this portion of the answer, is the
principal and main ground of error complained of here.
782
DERIVATIVE TITLES
(Part 2
It was clairpp^ pri tlip argument, that the deed only purports to con-
vey such right, title, and interest as the grantor then had in said Jot
one, and no more, and the covenants, although more general, should be
held to have reference only to such right and title as the grantor then
had in said lot, whatever that might be. This doctrine appears to be
maintained by the decisions of Massachusetts and one or two other
states; but the modern decisions of the most of the state courts, and
of the supreme court of the Uniterl ,'^tatp^^ maintain a contrarv doc-
trine. They hold that "whatever may be the form or nature of the
pnveyance used to pass real property, if the o-rantnr sets forth on the
face of the instrument by way of recital or averment^ that he is seised
or possessed of a particular estate in the _premiseSj. and which estate
the deed purports to convey; or what is the same thing, if the seisin
or possession of a particular estate is affirmed in the deed, either in
express terms or by necessary implication, the grantor and all persons
in privity with him shall be estopped from ever afterwards deiiying
"aTFewas so seised and possessed at the time, he made the convey-
ance." Van' Rensselaer v, Kearney, 11 How. 325, 13 L. Hd. 703;
Fairbanks v. Williamson, 7 Greenl. (Me.) 96 ; Jackson ex dem. JMunroe
V. Parkhurst, 9 Wend. (N. Y.) 209. In Taggart v. Risley, 4 Or. 235,
this court adopted that doctrine, and that case we think is decisive of
this one.
Mr. Rawle, in his work on Covenants, in commenting on this sub-
ject, says: "When, however, it has distinctlv appeared in such convev-
ance, either by a recital, an admissipn. a covenant, or otherwise, that
the parties actually mtended to convey annrecenre reciprocally a cer-
tain estate, thev have been held to be estopped from denying the opera-
tion of the deed, according to this intent." Rawle on Covenants, 388 ;
Jackson v. Waldron, 13 Wend. (N. Y.) 178. By reference to the deed,
it will be seen that Kendall and wife "bargained, sold, and conveyed
:!= * * |.j.jg following described premises, to wit: All their right,
title, and interest in and to lot number one in block number eleven."
And there it is asserted by way of covenant, "that he wa,s owner in fee
siniple of said premises, and that he would warrant and ^defend tb£
same from any lawful claims whatsoever." The word "premises" evi-
dently refers to the who^*^ '^^ ^nt nnmhpr nn'". d"^^''''^^d in the deed, and
not to one half of it, as Js contended_by Jhe appellant. We think that
the appellant is estopped by the recitals and covenants of this deed from
averring and proving the matters sought to be set forth in the answer
as a defense to this action.
There being no error in the record, the judginent of the court below
is affirmed.
Kelly, C. J. (dissenting). I do not concur in the opinion of the
court, and will briefly give the reasons for my dissent. It is conceded
that the deed of ]. H. Kendall _and wife to T. R. Bayley conveyed to
the latter only the right, title, and interest which thev had in lot one iii
block eleven^ and not the lot itself ; but the court holds that the cove-
Cll. 7) ESTOPPEL BY DEED 783
nant of Kendall and wife that they were the owners in fee simple of
the premises, is a covenant that they were the owners of the entire
lot. I do not so understand it. The deed conveyed only the interest
which the grantors then had in the lot. The hahendum limits the estate
then granted to the interest which they then had in the premises, and
the warranty is that they were the owners of the premises. I do not
consider that the word premises, as here expressed, means the entire
lot, but only the interest which the grantors then sold. If they had cov-
enanted that they were the owners of lot number one, then there would
have been no doubt of their liability in this action. I think this posi-
tion is supported by the decision of the supreme court of Massachu-
setts in the case of Sumner v. Williams^ 8 Mass. 162, 5 Am. Dec. 83,
and is not in conflict witli the case of Taggart v. Risley, decided by
this court in 4 Or. 235.
HANNON V. CHRISTOPHER.
(Court of Chancery of New Jersey, 1S81. 34 N. J. Eq. 459.)
Van Fi.ee;t, V. C. The defendant seeks_to have an injunction,
which has been granted against the further prosecution~or an action
of ejectment, dissolved. The facts on which the motion must be de- —
cided are undisputed. They show that Mary Vermilya died seized in ^-<>%/v|.«^ .
fee of the lands in dispute, in 1824. leaving a will, in which she "^^de k^^r^ MxatJ^I
/"the following devise : "And also I give and devise all my real estate, ^"^lA
\ whatsoever ajid. wheresoever., unto my niece, Mary Ann Jarvis, my
A mother, Sarah Vermilya, and my brother, Thomas Vermilya, to the
V^survivor of them, and to the heirs and assigns of such survivor.''
The lands in dispute passed bv^liis devise. The devisees died in
the following;) order : First, SararrVermilya, March 30th, 1834,^sec-
ond, MarV-^mn Jarvis, January 29th, 1846, and, lastly, Thon-fasWer-
niilv_a^. in September, 1853. Mary ^Ann Jarvis married Thomas S.
Christopher January 9, 1840, and had by him two children, viz., the
defendant (Thomas V. J. Christopher) and James J. V. Christopher.
Thomas^Vermdya, shortly after the death of his mother, Sarah Ver-
milya, and on the 10th of October, 1834, conveyed the lands in dis-
pute to Mary Ani?^arvis, by deed containing the following recitals;.
"Whereas, Mary Vermilya, late of the city of New York, deceased,
^as in her lifetime seized in fee simple of and in certain lots of land,
hereinafter particularly described ; and whereas, the said Mary Ver-
milya did, in and by her will, by her duly made to pass real estate,
bearing date September 2d, 1824, give and devise all her real estate, \ § ^UaA^
whatsoever and wheresoever, unto her niece, Mary Ann jarvis, hev
mother. Sarah Vermilya. and her brother, Thomas Vermilya. to the
survivor of them, and to the heirs and assigns of such survivor; and '. j
whereas, Sarah Vermilya, my motlier, i^s now .dead, and the said prop- '•
erty is now vested in me, the said Thomas Vermilya, and Mary Ann
.F
r'
a
784
DERIVATIVE TITLES
(Part 2
=e.
Jarvis, in fee simple, and I. the said Thomas Vermilva. beiiisf Heslrous
of vesting the whole in mv niere^ Mary ^nn jarvis, now this inden-
ture witnesseth," &c.
The deed then, in consideration of the sum of $100, grants, bargains
and sells unto Mary Ann Jarvis, and to her heirs and assigns, all_the
grantor's estate, right, title and interest whatsoever, under the will of
Mary Vermilya or otherwise, ot, m and to the lands therein described.
The deed is without covenants, but the habendum declares that the
grantee, and henieTfs~and^ 'assigns, shall have and hold the lands, to
her and their use, absolutely^ loreveri ' ^
On the 6th of September, 1844, Mary Ann Jarvis, together with
her husband, Thomas S. Christopher, by deed containing covenants
f yTlfr.aL:arajraaty, conveyed the lands in dispute to John Arbuckle.
t;i'nrp tlnpn^ in inVt-n^ nf peveral nipsnp rnnvcyances, they have become
vested in the complainant. No dispute is raised respecting tlie regular-
ity of the complamant s title; the objection to her case goes deeper; Jt
is denied th?it thp.emn-^p fr^^m which she derived her title could grant a
fee,
Thomas Vermilya, the survivor of the three devisees, died, as al-
ready stated, in September, 1853. He left a will, by which he gave
his whole estate to the defendant (Thomas "V". T. (^hristoplTer") and to
^
the defendant's brother, James J. V. Christophen and to the
ant's father. Thomas S. Christopl,ien The defendant's father
defend-
and
brother both subsequently died intestate, and without leaving any other
relative as near in blood as he; consequently, the wllol^SSJate of
which Thomas^^ermilva was seized at the time of hisoeath is now
vested in the defendant. The defendant, under a claim that the deed ii
from Thomas Vermffya to Mary Ann Jarvis passed only a life estate,
and that the fee is now, vested in him, has brought an action of eject-
ment against one of the complainant's tenants. That suit has been
enjomed at the instance of the complainant, and the question now
before \he- rnnrt is. whether or not, on the facts first narrated, the
defendant is entitled to have that injunction clissolve"3T"" The rnain topic
of debate presented by the case is. whether "orTiot the deed ot 1834,
lade by Thom^ to Mary Ann, should be adjudged to have created
In estoppel, which should debar Thomas, and those standing in his
•ights, from asserting a claim to the estate subsequently cast upon him
by the death of jytar^y Ann. ^At the time Thomas made that deed, it
is admitted he was seized of onlv a life estate, with .a possibilitv JJiai:
the contingent remainder in fee might vest in him as survivor.
The legal construction of the devise is, in my judgment, entirely
clear. The three devisees took a joint estate for life,, with contin.tyen1-
remainder in fee to the survivor. Under our svstem of real prooertv
1 aw, neither words of inheritance nor perpetuity are necessary to_2iss
a fee by will. By the common lav/ tliey were, but a devise to A and
his assigns torever, or to A and his heir, would pass a fee. 4 Com.
Dig. 161, tit. "Estate by Devise," n. (4). So a devise to_on£_et sanguini
^^'
•^Y^'/
Ch. 7) ESTOPPEL BY DEED 785
SUP would pass an estate of like quantity. Gilbert on Dev. 19. By a
statute passed in 1784, it is enacted that all devises in which the words
heirs and assigns, or heirs and assigns forever^ are omitted, fl^d no jt/jJ^^ ^/
expressions are contained whereby it shall appear that such devise was ^ J
intended to convey an estate for life only, shall be construed, deemed
and adiudg^ed. in ^11 rnnrt'. nf la\y and equity, to convey an estate in
fee simple in as full a manner as if the lands had been g-iven to the
devisee, and to his heirs and assigns forever. Rev. p. 300, § 13.
Hence, as the law stands, a devise to A, simpliciter, in which nothing"
appears indicating a purpose to give him only a life estate, will create
a fee. In view of the provisions of this statute, it is clear that if the ^^^
dcA^se in this case had been to the three, and to the survivor, without _^^»-V«^
more, the survivor would have taken the fee, and such, obviously, in
view of die terms of this devise, must have been the construction it
would have received according to the common law, and in the absence
of a statute like that just cited. A devise to two, and the survivor
of them, and the heirs of such survivor, gives them a joint estate for
life only, with contingent remainder in fee to the survivor. 2 Fearne
on Rem. 66, § 187 a; Vick v. Edwards, 3 P. Wms. 372.
Thomas Vermilva, then. prrnrHinp; to \he legal construction of thi s
devise, became seized of the fee of the lands in dispute on the death ^jL^^i^ /X
of his niece, ^Mary Ann Christopher. The defendant stands in his
place, with no greater rights or higher equity! Me is sirriply the donee
of Thomas, and the case must be decided in the same manner that
it would be if Thomas were the person seeking to dissolve this in-
junction. Tlig_recitals of the deed made by Thomas to Mary Ann
shojfc^ beyond all question, that the estate about which they were deal-
ing, and which Thomas intended to convey, and Ma^'y ^nn f>-pp^tf»rl
to get, \vas the fee. ~Tt is incontrovertible that the decisive and con-
trolling representation of the deed is that in which it is said, that "the
said property is now vested in me, Thomas Vermilya, and my niece,
Mary Ann Jarvis, in fee simple." They manifestly dealt on the basis
that they were the owners, absolntely of a«; great and RS pprfprt-an
estate as it is possible to hold in lands.
Do the recitals of this deed create an estoppel against Thomas ?
There is an apparent conflict in the adjudicationslipon the questio
whether a deed of bargain and sale. withot:|t warranty of title, but
containing recitals "sJiowing that the parties eviaentlyQeairunder a
belief that the grantor was seized of a greater estate in the lands than
he actually had at the time of its execution, will bind or transfer, by
e.stoppel._ a contingent subsequently acquired estate. Some seem to
hold that a grant in this form is utterly inefficacious to pass an estate
not yet vested, and can only operate as a conclusion between the par-
ties and their privies on an estate vested at the time of its execution ;
while others, resting upon a much more liberal and just basis, hold that
whether a contingent or an after-acquired interest will pass by estop-
Aig.Peop. — 50
(D
The U^if%
rsG
DERIVATIVE TITLES
(Part 2
pd, as the result of a conve3'ance in this form, depends entirely upon
\vhether it was the intention of the parties to convey it.^nd that when-
ever it clearly appears that such was their intention, it is the duty of
the court to adjudge an estoppel, in order that the deed may he ra.r-
ried into effect according to the minds of the parties. No review of
the learning on this subject will be attempted. The limits of a judi-
cial opinion are neither sufficient nor adapted to such an undertaking.
The cases will be found collected in the American notes to the Duchess
of Kingston's Case, 2 Smith's L. C. 623 et seq.
In my opinion, the latter view is the correct one. It commends it-
self to my sense of justice as being in entire accord with certain funda-
mental doctrines of the law, and it is obviously better adapted to pro-
mote and further justice than its opposite. It appears to be a natural
deduction from, if not an actual exemplification of, that great prijnci-
ple which declares that in searching for the meaning of an instrument,
that interpretation shall prevail which is "as near the minds and ap-
parent intent of the parties as it possibly may be, and the law will pgr-
mit.!.' Shep, Touch, ch, V, p. 85. And "if it cannot operate in one
form, it shall operafp ir» tV.Q<- whj^h, by ^^^''^l '"'^^'^^ pff^c-tuate the inten-
tio^j>f the prirties". Goodtitle v. Bailey, Cowp. 597.
The most accurate and lucid statement of the essentials of such an
estoppel that has come under my observation, is that given by Mr.
Justice Nelson, in pronouncing the opinion of the supreme court of
the United States, in the case of Van Rensselaer v. Kearney, 11 How.
297, 301 (13 L. Ed. 703) in which he says: "That if tlie deed bears
on its face evidence that the grantor intended to convey, and the gran-
tee expected to become invested with an estate of a particular descrip-
tion or quality, and that the bargain proceeded upon that footing^e-
tween the parties, then, although it may not contain any covenants of
lltle,_in the technical sense of the term^ still, the legal operation and
effect of the instrument will be as binding upon the grantor and those
claiming under him, in respect to the estate thus described, as if a
formal covenant to that effect had been inserted, at least so far as to
> estop them trom ever afterward denying that he was seized of the par-
ticular estate at the time of the conveyance."
Then, after a careful examination of several previous adjudications,
both by the courts of England and of this country, he further says:
"The principle deducible from the authorities seems to be that what-
ever may be the form and nature of the conveyance to pass real prop-
erty, if the grantor sets forth on the face of the instrument, by way of
recital or averment, that he is seized or possessed of a particular es-
tate in the premises, and which estate the deed purports to convey,
* * the grantor, and all person^n privity with him, shall be
estopped from ever afterwards denying that he was so seized and pos-
sessed at the time he made the conveyance. The estoppel works upon
the estate, and binds an after-acquired title as between the parties and
privies. The reason is, that the estate thus affirmed to be in the party
Ch. 7) ESTOPPEL BY DEED 787
at the time of the conveyance, must necessarily have influenced the
grantee in making the purchase, and hence the grantor and those in
privity with hmi, in good faith and fair dealing, should be forever
thereafter precluded from gainsaying it."
The rule thus established vi^as subsequently affirmed in French v.
Spencer, 21 How. 228, 16 L. Ed. 97, Chancellor Walworth, prior to
the decision of Van Rensselaer v. Kearney, had enunciated the same
doctrine, substantially, in giving his opinion, as a judge of tlie court
of errors of New York, in Jackson v. Waldron, 13 Wend. (N. Y.)
178; and his formula of the rule was subsequently quoted and ap-
proved in Fitzhugh v. Tyler, 9 B. Mon. (Ky.) 559. The learned edi-
tor of the American notes to the Duchess of Kingston's case, states
that the fair result of the more recent cases would seem to be, that xO
^vhenever the terms of the deed, or of the covenants which it contams, / /y^ ^ ^-^,^?'^
clearly show that it was meant to convey an absolute and indefeasible >^ '"^^^^'^
title, and not merely that which the grantor has at the time, it will biiTH O-'^-t"*-^
and pass every estate or interest which may vest in him subsequent to
its execution, whether the warranty which it contains be general or ..^"nL.^-!^^^-^
special, and although it may contain no warranty whatever. 2 Smith's "
L. C 636. In the language of Mr. Justice Nelson, it is clear that this
doctrine is founded upon the highest principles of morality, and recom-
mends itself to the justice and common sense of every one.
But for the presence of another fact in the recitals of this deed,
viz., a correct recital of the terms of _the devise. 1 think it might very
properly be declared, at this point, without further consideration, that
the defendant is estopped. The presence of this fact makes the re-
citals, in their legal essentials, flatly contradictory. The grantor says
that he and his grantee hold the lands in fee ; but in stating the facts
from which this conclusion is deduced, he shows, at least to the pro-
fessional mind, that his deduction is entirely unwarranted. Now, it
cannot be doubted tliat it was originally held that there could be no
estoppel by deed where the truth appeared on the face of the instru-
ment. 4 Com. Dig. 205, tit. "Estoppel" (E 2) ; Sinclair v. Jackson, 8 |
Cow. (N. Y.) 543; Pelletreau v. Jackson, 11 Wend. (N. Y.) Ill; Jef-
ferys v. Bucknell, 2 Barn. & Ad. 278; Wolling v. Camp, 19 N. J. Law,
148. But this rule, like all other legal rules, was formnbted for the / ' ^^
doing of justice, and when it cannot be used for that purpose, but its ^^'^^ fl ^^
enforcement will lead to injustice or wrong, it should be disregarded. k/"^C4-*»-. V*-*-^
Equity recognizes no rule as binding which will constrain it to do
injustice.
Recently this rule has been repudiated by three of the superior
courts of England — chancery, exchequer chamber and queen's bench.
In the court of chpnrpry, T,nrrl Thelinsford declared that the appear-
ance of the truth on the face of the deed constituted a reason rather
why the .party should be held to be estopped, than that he .should -he.
permitted to gainsay or disprove what he ha4 previously adniitjted or
alleged. I quote his words : "It appears to me that the circumstance
|(72w«^
^<yt--i^u*^
788 DERIVATIVE TITLES (Part 2
oj the truth of the case appearing^ upon the, deed. i«^ n rff"^'^" 'V^I^Y ^^^^
agreement of the parties, which it embodies, should be carried out,
either by giving effect to their intentions in the manner which they
have prescribed, or, by way of estoppel, toprevent their denying the
right to do the acts which they have authorized to be done." Jolly v.
Arbuthnot, 4 De G. & J. 224.
And Chief Baron Kelly, in giving his opinion in Morton v. Woods,
L. R. (4 Q. B.) 293, said that if there were anv decisions or dicta
which held tbnt wVipre the truth appears tliere can be no estoppel,
that doctrine must now be considered overruled ; and he thought it
had been rightly overruled The same case, when before the court
of queen's bench was decided in the same way. L. R. (3 O. B.) 658.
Now it cannot be dpnied |hat the truth appears on, the face of the
deed under consideration, but it is also entirely clear tliat the parties
dealt with each other as though it did not appear there. It must also
be admitted that what is false, as well as what is true, is declared on
the face of this instrument, and that the parties dealt with each other,
obviously, understanding that truth and falsehood, in this instance, were
consistent. The truth was obscurely stated, and the falsehood plainly,
and they dealt, consequently, on the hat;is of the falsehood. In this
condition of affairs, I think it would be a manifest misappHcation of
legal principles to say that the truth bars the estoppel. The true rule
,upon this subject I take to be this: Whether the appearance of the
truth on the face of the instrument will defeat an estoppel or not, must
altogether depend upon the fact whether it is so expressed that it can
be readily seen and understood by the person who ought to be influ-
enced by it, or in manner so technical or obscure that, although it must
be admitted it appears in the instrument, yet it is certain it was not
seen nor understood by the person who should have been influenced
by it, but that he dealt with the party sought to be estopped as though
the words on which the estoppel is founded expressed the whole truth.
The great purpose, lying at the foundation of the law of estoppeL is
to prevent fraud, either actual or legal. Estoppels are to be used as
shields, not as swords. A simple reading of the recitals of this deed
can leave no doubt on the mind of any person as to the basis on which
the parties dealt. They were dealing with the fee. Thomas intended
to grant_t<;> Mary Ann the fee simple absolute, and she expected to get
it That was the estate for which she paid her money, and that was
the estate Thomas intended to convey to her. Now, if Thomas were
here insisting that inasmuch as his deed told both the truth and a false-
hood, it was equitable and just that he should be allowed to recover
the lands in dispute, in spite of the fact that he had received full com-
pensation for them many years ago, his conduct, according to my
notions of legal ethics, would constitute a fraud of the most offensive
character. Thomas's donee, in legal principle if not in mnraly;, stands
just exactly where Thomas would, if he. instead of the defendant,
were now asking for a dissolution of this injunction. My conclusion
Ch. 7) ESTOPPEL BY DEED 789
is that it should be adjudged that the defendant is estopped by the pj-/^' ^^^
M
deed,oXX834.
But another ground for equitable relief remains to be considered.
The complainant contends that, even if it be admitted that Thomas had
no interest in the lands, at the date of his conveyance, upon which a
deed of bargain and sale could operate, by way of estoppel or other-
wise, still, inasmuch as it distinctly appears on the face of his deed
that it was intended to convey any future interest which he might ac-
quire, and was not intended to be limited to the interest which he
then had, equity will enforce the deed as an executory agreement to
convey the subsequently-acquired interest. This contention is founded,
on the most obvious principles of justice, and is supported bv verv high
authority] The adjudications supporting it will be found collected in
2 Smith's L. C. 641; 2 Story's Eq. Jur. § 1040 c; and 2 Spence's
Eq. Jur. 852. Chief Justice Tilghman, in McWilliams v. Nisly, 2 Serg.
& R. (Pa.) 509, 515 (7 Am. Dec. 654), said: "Equity will enforce a
covenant to convey an estate whenever it shall be acquired by tne
covenantor, and the case is not the less strong where there is an abso-
lute conveyance."
This ground of relief is, unquestionably^ a matter of jvhjch a court
of equity only can take cognizance. While I am decided in my opin-
ion that the deed of Thomas to Mary Ann contains matter which cre-
ates an estoppel against Thomas and all who may claim under him
as heirs or devisees", still, so far as I am aware, the question whether
a deed in this form will create an estoppel or not is, as a matter of
law, undecided in this state. To compel the complainant^ therefore,
to litigate the question of estoppel in the court where the action of
ejectment is pending, is to send her to a tribunal whidi it is clear is
incompetent to give her one measure of relief to which she seems en-
titled. If the injunction should be dissolved, and it should then turn
outuiat the court in which the action of ejectment is pending should
be of opinion that the deed created no estoppel, the complainant would
be_ compelled either to yield possession of the land, or return here in
order that her additional claim to relief might bp HptprminpH.
For these reasons i think the defendant's motion should be denied.^
2 A., in possession of lands as devisee of his father, who in his lifetime was
equitable owner thereof, executed a mortgage of those lands to B., reciting ^- . ,-.
therein that he, A„ was legally or equitably entitled to the premises, and also ^ ^ ^*. ^ ^ jLa.
covenanting that he was lawfully or equitably seised thereof. Later A. ac-'^^V"^
quirefl the legal estate and mortgaged the premises to C, who took without no- U 'TT^
tice of B.'s rights. In ejectment by A. against C. it was contended on behalf ^Sr^-^^*^' '**
of A. ttiat C. was estopped to set up the legal estate. It was held that there f)
was no such estoppel. Right d. Jefferys v. Bucknell, 2 B. & Ad. 278 (1831).
'|:rsr^-^"'"™-f"i*^
-t
790
DERIVATIVE TITLES
(Part 2
u^;(^'
AYER V. PHILADELPHIA & B. FACE BRICK CO.
(Supreme Judicial Court of Massachusetts. 1S92, 1893. 157 Mass. 57, 31 N. E.
717, 159 Mass. 84, 34 N. E. 177.)
This is a writ of entryto foreclose a mortgagee. The case on the
agreed facts, so far^TTt needs to be stated, is this. One Waterman
made a first_mortgage, and later a second Jnortgags. 'The hrst was
foreclosed and the land subsequently was reconveyed to him. Thenjhe
holder of the second mortga^ejcnr'^'P}'^'^ ^^ ^ thirri pjex^^^n^ \vho_ con-
v^yed to_thf dfHrrand,anJ-- The tenant is a grantee under Water-
man. * * * V' (j>Cf^ »f U/^t«l» i*AM^ fcKAnTJ
In the granting part m this deed, the land is stated to be * conveyed
subj ect to" a certain right of drainage, a certain easement, "and the
mortgage hereinafter named,." The covenants are as follows : "And
I, the said grantor, for myself and my heirs, executors, and adminis-
trators, do covenant with the said g^rantees and their heirs and assigns,
that I am lawfully seised in fee simple of the aforegranted premises ; G^
*:hat tliey are free from all encumbrances. e>^ce|Tl^ certain mortgage*'
(iven by me to the Boston Five Cents Savings Bank, dated March 1,
1872, to secure the sum of forty thousand dollars, the rip^ht nf drainag-e
and the easement aforesaid ; that I have good right to sell and convey
the same to the said grantees," and their heirs and assigns torever,^s
aforesaid : and that I will, and mv heirs, executors, and administrators
shall, warrant and defend the same to the said grantees ^and their heirs
and assigns forever, against tlie lawtul claims and demands of all pgr-
gons, except the rip"ht nf (jj-^nacrp anH tlnp^easement aforesaid-" * * *
Holmes, J.^ When this case was before us the first time, 157 Mass.
5'7, 31 N. E. 717, it was assumed by the tenant that the orily gnestjon
wasjvhether the covenant nf warranty in the serond mor|:gage should
be construed as warranting againc;! thp fi^^g^• mrirfgrogA-^: Q]\^o attempt
was made to deny that, if it was so construed, the title afterwards ac-
quired by the mortgagor would enure to the benefit of the second mort-
gagee under the established American doctrine^ The tenant now de-
sires to reopen the agreed facts for the purpo^of showing that after
a breach of the covenant in the second mortgage, and before he re-
purchased theland, the mortgagor went into bankruptcy and got his
discharge. TTTe judge below ruled that the discharge was immaterial,
and for that reason alone declined to reopen the agreed statement, and
the case comes before us upon an exception to that ruling.
The tenant's counsel frankly avow their own opinion that the dis-
3 The statement of facts is talcen from the opiuion reported in 157 Mass. 57,
31 N. E. 717.
/^t Wiis held fh.q«; fhp noveoant of >\nrrnn<-Y 1" tha. coonprj mort£!;ng;e shoi^lfl
bV^coiistniejl. Welbon v. Welbon, 109 Mich. 356, 67 N. W. 33.S (1896) ; Smith
V. GauL), jy .>^. D. ,337, 123 N. W. 827 (1909). ace. Dunn v. Dunn, 3 Colo. 512
(1877) semble; Briclcer v. Bricker, 11 Ohio St. 240 (1860), contra.
Ch. 7) ESTOPPEL BY DEED 791
charge in bankruptcy makes nn rlifFerencf'. But they say that the inur-
ing of an after acquired title by virtue of a covenant of warranty must
be due either to a representation or to a promise contained m the cov-
enant, and that if it is due to the former, which they deem the co rr ect
doctrine, then they are entitled to judgment on the agreed statement of
facts as it stands, on the ground that there can be no estoppel by an
i nstrument when the truth appears on the face of it, and that m thi s
case the deed showed that the grantor was conveying land subject to ^
mortgage. If, however, contrary to their opinion, the title inures by
reason of the promise in the covenant, or to prevent bircuity of action,
then they say the provision is discharged by the discharge in bank-
ruptcy.
However anomalous what we have called the American doctrine may
be, as argued by Mr. Rawle and others (Rawle on Covenants (5th Ed.)
§ 247 et seq.), it is settled in this State as well as elsewhere. It is set-
tled also that a discharge in bankruptcy has no effect on this oper^tjon
of the covenant of warranty in an ordinary deed where the warranty
is coextensive with the grant. . Bush v. Person, 18 How. 82, 15 L. Ed.
273 ; Russ v. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464. Gibbs
V. Thayer, 6 Cush. 30; Cole v. Raymond, 9 Gray, 217; Rawle on Cove-
nants, (5th Ed.) § 251. It would be to introduce further technicaHty
into an artificial doctrine if a different rule should be appHed where
the conveyance is of land subject to a mortgage against which the
grantor covenants to warrant and defend. No reason has been offered
for such a distinction, nor do we perceive any.
But it is said that the operation of the covenant must be rested on
some general principle, and cannot be left to stand simply as an un-
justified peculiarity of a particular transaction without analogies else-
where in the law, and that this g-enerp] prinriplp ran he fnund nnlyJn
the doctrine of estoppel by representation^ if it is held, as the cases
cited and many others show, that the estoppel does not depend on per-
sonal liability for damages. Rawle on Covenants, (5th Ed.) § 251.
If the American rule is an anomaly, it gains no strength by being re-
ferred to a principle which does not justify it in fact and by sound
reasoning. The title may be said to enure by wav of estoppel when ex-
plaining the reason why a discharge in bankruptcy does not affect this
operation of the warranty ; but if so, the existence of the estoppel does
not rest on the prevention of fraud or on the fact of a representation
actually believed to be true. It is a technical effect of a technical repre-
sentation, the extent of which is determined by the scope of the words
devoted to making it. A subsequent title would innre to the grantee
when the grant was of an unencumbered fee although the parties agreed
by parol that there was a mortgage outstandinof ; Chamberlain v. Meed-
er, 16 N. H. 381, 384; see Jenkins v. Collard, 145 U. S. 546, 5.60, 12
Sup. Ct. 868, 36 L. Ed. 812, and this shows that tlie estoppel i.? deter-
mined by the scope of the conventional assertion, not by any question
of fraud or of actual belief.
792 DERIVATIVE TITLES (Part 2
But the scope of the conventional assertion is determined by the
scope of the warranty which contains it. Usually the warranty is of
what is granted, and therefore the scope of it is determined by the
scope of the description. But this is not necessarily so ; and w^hen the
warranty says that the grantor is_to be taken as assuring^ vou that he
owns and will defend you in the unencumbereH fff, '^t r\np<:: nnt- n^Her
that by the same deed he avows the assertion not to be the fact The
warranty is mtended to fix the extent of responsibility assumed, and
by that the grantor makes himself answerable for the fact being true.
In short, if a man by a deed says, I hereby estop myselfto deny a_fact,
it does not matter that he recites as a preliminary that the fact is not
true._ The difference between a warranty and an ordinary statement
in a deed is, that the operation and effect of the latter depends on the
whole context of the deed, whereas the warranty is put in f or jhe ex-
press purpose of estopping the grantor to the extent of jtsj^ds. ., Tlie
reason "why the estoppel should operate, is. that such was the obvious
intentpn ot the parties." Blake v. Tucker, 12 Vt. 39, 45.
"TTa general covenant of warranty following a conveyance of oob''
the grantor's right, title, and mterest were made in such a form that
it was construed as more extensive than the conveyance, there would
be an estoppel coextensive yyith the covenant. See Blanchard v.
Brooks, 12 Pick. 47, 66, 67 ; Bigelow, Estoppel (5th Ed.) 403. So in
the case of a deed by an heir presumptive of his expectancy with a cD.:Ke-
nant of^j^sUHant;^. In this case, of course, there is no pretence that th e
grantor has a title coextensive with his warranty. Trull v. Eastment,
3 Mete. 121, 124, 37 Am. Dec. 126. In Lincoln v. Emerson, 108 Mass.
87, a first mortgage was mentioned in the covenant against encumbranc-
es in a second mortgage, but was not excepted from the covenant of
warranty. The title of the mortgagor under a foreclosure of the first
mortgage was held to inure to an assignee of the second mortgage.
Here the deed disclosed the truth, and for the purposes of the tenant ' s
argument it cannot matter what part of the deed discloses the truth,
unless it should be suggested that a covenant of warranty cannot be
rnade more extensive than the grant, which was held not to be ttie faw
in our former decision^ See also Calvert v, Sebright, 15 Beav. 156,
160.^
The question jemains whether thetenant stands better as a purchaser
whhout actud''notice, assuming tKa't~Ee"fiad not actual notice of !llae
second mortgage.
6 See Dniry v. Holden, 121 111. 1.30, 1.3 N, E. 547 (1SS7), where immediately
following? the description of the lots conveyed there was the following clause :
"Suhject.tn thp f<7)1niwiT^<^ incumhrances on said dpsfriher^ prpm^'sps: One for
the principal sum of $19,606, and the other for the principal sum of $6,500."
'J'he deed c-ontained full covenants of warr'onty and against incumbrances,. there
• ' einsr nn pxp^ptions wTintever to the r^jvpunntp ThP nnnvt ntn Til 'iiWH^'M
E. 54S) said: "It is said the deed * * * contained lull covenants of war-
ranty, to which there was no exc-eption : that thereby Drury's grantor covenant-
ed that he would warrant and defend the lots conveyed against the holders of
all incumbrances. The covenants extended only to what was conveyed, and
Ch. 7) ESTOPPEL BY DEED 793
"It has been the settled law of this Commonwealth for nearly forty
years, that, under a deed with covenants of warranty from one capable
o f executing it, a title afterwards acquired by the grantor mures^y
way of estoppel to the grantee, notonly as against the grantor, but
also as against one holding by descent or grant from him after acquir-
ing the new title. Somes v. Skinner, 3 Pick. 52. White v. Patten, 24
Pick. 324. Russ V. Alpaugh, 118 Mass. 369, 376, 19 Am. Rep. 464.
We are aware that this rule, especially as' applied to subsequent gran-
tees, while followed in some States, has been criticised in others. See
Rawle on Covenants (4th Ed.) 427 et seq. But it has been too long
established and acted on in Massachusetts to be changed, except by leg-
islation." Knight V. Thayer, 125 Mass. 25, 27. See Powers v. Patten,
71 Me. 583, 587, 589; McCusker v. McEvey, 9 R. I. 528, 11 Am. Rep.
295 ; Tefft v. Munson, 57 N. Y. 97.
It is urged for the tenant that this rule should not be extended. _But
if it is a bad rule, that is no reason for makmg a bad exception to it.
As the title would have inured as against a subsequent purchaser from
the mortgagor had his deed made no mention of the mortgage, and
as by our decision his covenant of warranty operates by way of estop-
pel notwithstanding the mention of the mortgage, no intelligible reason
can be stated why the estoppel should bind a purchaser without actual
notice in the former case, and not bind him in the latter.
Upon the whole case, we are of opinion that the demandant is enti-
tled to judgment. Our conclusion is m accord with the decision in a
very similar case in Minnesota. Sandwich Manuf. Co. v. Zellmer, 48
Minn. 408, 51 N. W. 379. ^
Excep.cns overrule. _^^^,.^^
DOE ex dem. CHRISTMAS v. OLIVER.
(Court of King's Bench, 1829. 10 B. & C. ISl.)
BaylEy, J.* This case depended upon the effect of a fine levied by
a contingent remainder-man 'in f eei "Knn Mary the wife of Joseph
Brooks Stephenson was entitled to an estate m fee upon the contin-
gency of her surviving Christian, the widow of Theophilus Holmes ;
and she and lier husband conveyed the premises to Thomas Chandl ess
for ninety-nine years, and levied a fine to support that conveyance.
Christian, the widow, died leaving Mrs. Stephenson living, so tJiat
the contingencyupon which the limitation of the fee to Mrs. Stephen-
son depended, happened, and this ejectment was brought by the as-
signees of the executors of Thomas Chandless, in whom the term for
that was not the lots absolutely, but the lots subject to the incumbrance. The
real covenant wag .tjbat, other^vise than as sublect to the incumbrances named,
the lots were free from all Tnoumbrances. anr) 1-)int-. the grantor wnnl^l -^^nr-
rant and defend the" title." See, also, Koch v. Hustis, 113 Wis. 604, 89 i^. W.
S38 (1902). "■ "•
'■ The statement of facts is omitted.
794 DERIVATIVE TITLES (Part 2
ninety-nine years was vested. It was conceded upon the argument
that the fine was binding upon Mr. and Mrs. Stephenson, and all who
claimed under them by estoppel ; but it was insisted that such fine op-
erated by way of estoppel only; that it therefore only bound parties
and privies, not strangers ; tliat the defendan^t. not being proved to
come in under Mr. and Airs. Stephenson, was to be deemed not a
privy, but a stranger ; and that as to him, the estate was to be consid-
ered as still remaining in Mr. and Mrs. Stephenson. To support this
position, the defendant relied upon the latter part of the judgment de-
livered by me in Doe dem. Brune v. Martyn, 8 B. & C. 497; and that
part of the judgment certainly countenances the defendant's argument
here. The reasoning, however, in that case, is founded upon the sup-
position that a fine by a contingent remainderman operates by estoppel,
and by estoppel onlv ; its operation by estoppel, which is indisputable,
was sufficient for the purpose of that decision, whether it operated by
estoppel only, or whether it had a further operation, was quite imma-
terial in that case ; and the point did not there require that investigation,
which the discussion in this case has made necessar3^ We have, there-
fore, given the point the further consideration it required, and are satis-
fied upon the authorities, that a fine by a contingent remainder-man,
though it operates bv estoppel, does not operate by estoppel only, but
that it has an ulterior operation when the contingency happens^; thatJ:he
estate which then becomes vested feeds the estoppel; and that the fine
operates uPon that estate, as though that estate had been vested injjie
cognizors at the time the fine was levied.
In Rawlins's Case, 4 Co. 52, Cartwright demised land, not his, to
Weston for six years ; Rawlins, who owned the land, demised it to
Cartwright for twenty-one years; and Cartwright re-demised it to
Rawlins for ten ; and it was resolved that the lease by Cartwright,
when he had nothing in the land, was good against him by conclusion ;
and when Rawlins re-demised to him, then was his interest bound by
the conclusion ; and when Cartwright re-demised to RawHns, now was
Rawlins concluded also. Rawlins, indeed, is bound as priv}'-, because
he comes in under Cartwright; but the purpose for which I cite this
case is, to shew that as soon as Cartwright gets the land, his interest
in it is bound. In Weak v. Lower, Poll. 54, (A. D. 1672,) Thomas, a
contingent remainder-man in fee, leased to Grills for 500 years, and
levied a fine to Grills for 500 years, and died. The contingency hap-
pened, and the remainder vested in the heir of Thomas, and whether
this lease was good against the heir of Thomas was the question. It
was debated before Hale, C. J., and his opinion was, that the fine did
operate at first by conclusion, and passed no interest, but bound the
heir of Thomas ; that the estate which came to the heir when the con-
tingency happened fed the estoppel ; and then the estate bv estoppel
became an estate in interest, and of the same effect as if the contin-
gencv had_happened before the fine was levied: and he cited Rawlins's
Case, 4 Coke, 53, in which it was held, that if a man leased land in
Ch. 7) ESTOPPEL BY DEED . 795
which he had nothing, and afterwards bought the land, such lease
would be good against him by conclusion, but nothing in interest till
he bought the land ; but that as soon as he bought the land, it would
become a lease in interest. The case was again argued before the Lord
Chancellor, Lord C. J. Hale, Wild, Ellis, and Windham, justices, and
they all agreed that the fine at first enured by estoppel ; but that when
the remainder came to the conusor's heir, he should claim in nature
of a descent, and therefore should be bound by the estoppel ; and th.en
the estoppel was turned into an interest, and the cognizee had then an
estate in the land. In Trevivan v. Lawrence, 6 Mod. 258, Ld. Raym.
1051, Lord Holt cites 39 Ass. 18, and speaks of an estoppel as running
upon the land, and altering the interest of it, — as creating an interest
in or working upon the estate of the land, and as running with the land
to whoever takes it. In Vick v. Edwards, 3 P. Wms. 372 (1735), Lord
Talbot must have considered a fine by a contingent remainder-man as
having the double operation of estopping the conusors till the contin- . ^
gency happened, and then of passing the estate. In that case, lands I ^■"^^-tf-Y^ ^
were devised to A. and B. and the survivor of them, aud the heirs of
such survivor, in trust to sell : the master reported that they could not
make a good title, because the fee would vest in neither till one died.
On exceptions to the master's report. Lord Talbot held, that a fine_by
the trustees would pass a good title to the purchaser by estoppel ; for
though the fee were in abeyance, it was certain one of the two trustees
must be the survivor, and entitled to the future interest ; consequently,
his heirs claiming under him would be estopped by reason of the fine
of the ancestor to say, quod partes finis nihil habuerunt, though he that
levied the fine had at the time no right or title to the contingent fee.
And the next day he cited Weale v. Lower. Now, whether Lord Tal-
bot were right in treating the fee as in abeyance, and the limitation to
the survivor and his heirs as a contingent remainder or not, it is evi-
dent he did so consider them ; and he must have had the impressjon
that the fine would have operated not by estoppel onlv. but by wav of
pgissing the estate to the purchaser, because, unless it had the latter
operation as well as the former, it could not pass a good title to the
purchaser.
In Fearne, c. 6, § 5 (Edit. 1820) p. 365, it is said, "\^e are to remem-
ber, however, that a contin p-fiit ^^maiader may, before it vests, be
passed by fine by way of estoppel, so as to bind the interest which shall
afterwards accrue, by the contingency:" and after stating the facts in
Weale v. Lower, he says, it was agreed that the contingent remainder
descended to the conusor's heir; and though the fine operated at first
by conclusion, and passed no interest, yet the estoppel bound the heir :
and that upon the contingency, the estate by estoppel became an estate
in interest, of the same effect as if the contingency had happened before
the fine was levied.
Upon these authorities we are of opinion that the fine in this case
had a double operation, — that it bound Mr. and Mrs. Stephenson b^
796 . * DERIVATIVE TITLES (Part 2
estoppel or conclusion so long as the contingency continued ; but that
Avhen the contingency happened, the estate which devolved upon Mrs.
Stephenson fed the estoppel; the estate created by the fine, by way of
estoppel, ceased to be an estate by estoppel only, and became an interest,
and gave Mr. Chandless. and those having right under him, exactly
what he would have had had the contingency happened before the fine
was levied,
Postea to the plaintiff.^
PERKINS V. COLEMAN.
(Court of Appeals of Kentucky, 1S90. 90 Ky, 611, 14 S. W. 640.)
Bennett, J., delivered the opinion of the court.
N. G. Terry owned an undivided interest in the land in controversy,
and conveyed tlie whole oT \\^^q_Y{.oxz.z^ Dunham by deed of general
warranty. Thereafter Terry inherited tliat part of the land that he
Xi\4^*^^^ did not own, and this action of ejectment is brought by Terrv's heirs
\^.^iji/\y^ to_recoverJh6 possession ot that par^f_diejand thus inherited frorn
the appelTeeT He resists the righFoTlhe appellants to recover the said
land upon the ground that die title that Terry inherited was trans-
ferred to his vendee by ejtoppel. The appellants contend that the doc-
7 "By the commpa law there were only two classes of conyey;ances which
were held to operate upon the after-acqnired'Title-^-those Sy^teoffmenfTIBy^ne,
or by common re(i2i;ery, and tins from their solemnity and publicity, and ttiose
by Indenture of lease from the implied covenants arisins; upon such inden-
ttrrPST' dark v. balver, 14 Cal. 612, 627, 76 Am. Dec. 449 (1S60), per Field,
C. J. See, also, Burtners v. Keran, i>4 Grat. (A^a.) 42 (1873).
In Sturgeon v. Wingfield, 15 M. & W. 224 (1846), where the lessee sued the
assignee of the lessor for breach of covenant made by the lessor, the defenses
were (1) that there had been no demise to the plaintiff, and (2) that no rever-
sion had come to the defendant. The lessor at the time of making the lease
had no interest in the premises, but later acquired an interest. The court, by
Parke, B., said, "On the first issue, the verdict clearly must be entered for the
plaintiff, that there was such a demise to him as is stated in the declaration.
Then, as to the second point, all the reversion of Hogarth, which was a rever-
sion by estoppel. pas.sed from him to the defendant. This estoppel, was fed by
the d(^mise for one hundred years from the Broderer's Company to Hogarth, the
lessor, and thereby the lease from him to the plaintiff became good in point of
interest."
What would be the result where from the face of the lease it appears that
the lessor has no Interest?
"A., lessee for life of B., makes a lease for years by deed indented, and after
purchases the reversion in fee; B. dies; A. shall avoid his own lease, for he
may confess and avoid the lease which too'^Tlfect in point nf interest and .de-
termined by the death pf B." Co. Litt. 47b.
"Debt for rent on an indenture of lease for forty years. The defendant
pleaded that a year before the plaintiff made a lease for forty years to A., vir-
tute cujus A. entered and was possessed ; and that thou-xh the defendant did
afterwards enter, yet he was accountable to the said A. On demurrer Carthew
argued, that the second lease was void for the fii-st thirty-nine yeai-s, and so
was the reser\ation, and that here was no estoppel, because the last of the for-
ty years passed by the lease." See Gilinan v. Hoare, 1 Salk. 275 (1673).
A., lessee for five years, leases to B. for twenty-five years, and later acquires
the reversion lU Itjy. VVhatrtf any, effect does such acquisition of the fee have
iig6h B.'s pbiJlUOuT — '■ — -~ — ^ '
Ch. 7) ESTOPPEL BY DEED 797
trine of estoppel d£es not protect strangers to the transaction ; but
only the parties an'd privies are bound thereby ; and as the appellee
is neither party nor privy, he can not avail himself of the estoppel
that would bar the appellants' right as against Dunham or his privies.
It is true that vyhere the estoppel merely affects the consciences of
the parties, and not the title, it; does nnf nperate on strangers to the
transaction ; but where it "works an interest in the land" conveyed,
'Tt runs with it. and is a title." Where it clearly appears from the
writing that the vendor has conveyed, or agrees to convey, a good ^^^ Zt^/ 1 t
and sufficient title, and not merely his present interest in the land, ^^^^J
the agreement runs with the land, and repeats itself every day; and jTIa^.^^
if the vendor, at tlie time of the conveyance, has not title to the land, X»A>tX lS^^ A
but subsequently acquires the title, it, "eo instante." inures to the ben-
efit of die vendee and his privies. In other words, it is immediately
transferred by the law of estoppel to the vendee and his privies, be-
cause by the contract, which daily repeats itself, the vendor's title,
whenever acquired, is transferred to the vendee and his privies ; con-
sequently, a stranger to the transaction, in an action of ejectment by
the vendor against him, where he must recover upon the strength of
his title^ and not upon the weakness of his adversary, may show that
he has thus parted with his title.
'^ The judgment is affirmed.
y^^^d^
JORDAN V. CHAMBERS.
(Supreme Court of Pennsylvania, 1910. 226 Pa. 573, 75 Atl. 956, 134 Am. St.
Rep. 1081.)
Ejectment for land in Jefferson township. Before Kennedy, P. J.
The facts are stated in the opinion of the Supreme Court.®
Verdict and judgment for plaintiff. Defendant appealed.
Brown, J. The title to the land involved in this ejectment passed
out of the commonwealth in 1817, and Mary Robb acquired title to it
by deed dated September 15, 1832. After her death it was sold in
1837 by her administrator, the father qfjhe appellant, under an order
of the orphans' court for tHe payment of debts, and the title which the
appellant claims, passed to him through sundry conveyances, starting
with the deed from Mary Robb's administrator to Hugh Toner and
ending with that of the sheriff of Allegheny county to himself. Though ^ j/^ jt
an unbroken chain of title by deed was shown in the appellant, the ^^^^^"^^^^"^
p;roof submitted by the appellee, whose claim to title by adverse pos-y/W#'»'»^**' *•
session was sustained by the jury, was that from 1837 to 1897, a period jin^>>f24mi^ ^^
of sixty years, possession of the land had never been taken by the lit x^S^CA.
grantee of Mary Robb's administrator nor by any subsequent grantee
claiming under Toner. Q^ja^^JtZ.^*' ^
« Tlie charge to the jury and certain requests are omitted. . A
U
798 DERIVATIVE TITLES (Part 2
The adverse possession upon which tlie appellee relied and recovered
AjLm^ ^L*t^V started in 1865. In that year — twenty-seven years after the sale by
^jA Mary Robb's administrator— Jane Robb, the widow of Oliver Robb,
/I '^ * Ci^ya son of Mary Robb, \vas in possession of the farm, living on it and
-L (^JiA^*'*^ claiming it as her own. There was no title, in her out of Mary Robb.
^ " By her last will and testament, admitted to probate October 12, 1869,
Jane Robb devised the farm to her son Robert. On August 16, 1870,
he executed & general warranty deed for tlie coal underlying the prop-
erty to Thomas J. Keenan, Malcolm Hay and Robert Woods. In
1874 his interest in tlie farm, excepting the coal, was sold at sheriff's
^rr"' sale, and, by various conveyances, it finally became vested in Herman
l^^*^^^*^ ^ liandel, to whom Thomas J-. Keenan executed a deed for the qne-
third interest in the coal which Robert Robb had undertaken to convey
to him in 1870. Upon the death of Herman Handel the property
passed to the appellee in 1897, under proceedings in partition in the
orphans' court ot Allegheny county. Under instructions free from
error as to the measure of proof required from the appellee to sustain
I /)^^^^ title claimed to have been acquired by her by adverse possession,
j)^ jl^^iA^-^ML the jury, with ample evidence before them, found her title to be good.
I '^^L It IS most earnestly contended that, as tlie title to two-thirds of the
^ coal is still outstanding in Malcolm Hay and Robert Woods, or their
•i(f'^^^^\^ ^y\ representatives, under the deed of 1870 from Robert Robb, a general
^^^♦"lil*^ I verdict in favor of the plaintiff for tlie land, including the coal, ought
"'T^/«#**'*^ / not to be sustained. While at first blush this may seem plausible, it is
clear, upon reflection, that it cannot avail the appellant. When Robert
Robb conveyed the coal in 1870 he had no interest in it nor in the sur-
face above itT~ In lUbb — tive years before — Jane Robb, his mother,
became the adverse occupant of the property, and for five years after
her death he continued the adverse possession as her devisee, but_dur:
ing those ten years neither""she nor he acquired any right in the prop-
erty as against the real owner or owners, and against them nothing
could have been acquired by adverse possession until the fullstatu-
tory period oT twenty-one years' adverse possession had expired. Dur-
ing all those twenty-one years the trespassers could at any time have
been driven from the land by the holders of the paper title. Duxing
tlmt period there was no title at all in Jane Robb or in anyone claim-
ing under her as the adverse occupier of tlie premises. In 1886, and
not before, title by adverse possession became rooted in the land, but
its roots went no deeper than 1886. "If, according to Lord Mans-
field, the right of possession is taken away from the former owner, and
according to Chief Justice Tilghnian, it is acquired by the disseisor's
occupancy for the statutory period. Judge Gibson was strictly accurate
when he said, in Graffius v. Tottenham, 1 Watts & S. 494, 37 Am.
Dec. 472, that the effect of the statute was to transfer to the adversg-
occupant the title against which it has run. He added, 'the title of
the original owner is unaffected and untrammelled till the last moment,
and when it is vested in the adverse occupant, by the completion of
Ch. 7) ESTOPPEL BY DEED 799
the statutory bar, the transfer has relation to nothing which preceded
it-, the instant of conception is tlie instant of birth.' " Woodward, J.,
in Schall et al. v. WiUiams Valley Railroad Co., 35 Pa. 191. B^the
dee_d_from Robb to Keenan. Hay and Woods tliere was no severance
of the coal. There could not have been, for the deed conveyed noth-
ino- to them? Neither these grantees nor any one claiming under them
at any time before or since the acquisition of the title by adverse pos-
session in 1886 have made any attempt to sever the coal from the
surface.
In 1886. when title bv adverse possession vested in Handel, then Jn
p ossession of the surface, not only it, but what was beneath it^ vested
in him : but when the title so vested in him he was in the same posi-
tion as Robb would have been in 1886, if still in adverse possession of
the property, claiming ownership in it by such possession. Having
undertaken to convey the coal when he had no title to it. if rnn fronted
by his conveyance of the same at the time of his acquisition of title
by adverse possession, he would have been estopped, as against his
grantees, from denying their equitable ownership in the coal and could
irave been compelled to convey to them. ("It is not to be doubted that'
a vendor who undertakes to sell a full title for a valuable considera-,
tion, when he has less tlian a fee simple, but afterwards acquires tliv
fee, holds it in trust for his vendee, and will be decreed to convey it
to his use."J Clark v. Martin, 49 Pa. 299. In Chew v. Barnet, 11 Serg.
& R. 389, Judge James Wilson conveyed to Chew before he had title
to the property. A conveyance was subsequently made to him by his
vendors under articles of agreement with him. To secure the purchase
money he executed a mortgage upon the property upon which it was
subsequently sold at sheriff's sale. When Chew, in an action of eject-
ment, sought to recover the property from the sheriff's vendees, it was
held that their title was paramount to his, and it was said by Gibson,
J. : "What is the nature of the estate which Mr. Chew acquired by
the conveyance from Judge Wilson? When that conveyance was ex-
ecuted, the legal title was in Jeremiah Parker, by patents from the
commonwealth ; and Judge Wilson having nothing but an equitable ti-
tle under the articles, could convey nothing more ; his deed, therefore,
passed to Mr. Chew only an equitable title. But it is said, the subse-
quent conveyance from Jeremiah Parker to Judge Wilson inured to
the benefit of Mr. Chew. It did so ; but only in equity, and to entitle
liim to call for a conveyance from Judge Wilson ; and not as vesting
the title in him, of itself, as contended, by estoppel. The facts pre-
sented constitute the ordinary case of a conveyance before tlie grantor
has acquired the title ; in which the conveyance operates as an ?^o^rep-
ment to convev. which, when the title has been subsequently acquired.
may be enforced in chancery. 'A
Where one conveys with a general warranty land which he does not
own at the time, but afterwards acquires the ownership of it, the prin-
ciple of estoppel is that such acquisition inures to the b-enefit of the
^2h>«-*-v^(^
n
8U0 DERIVATIVE TITLES (Part 2
grantee, because the grantor is estopped to deny, against the terta^
of his warranty, that he had the title in question. Burtners v. Keran,
24 Grat. (Va.) 42. But the estoppel of the grantor, who subsequently
acquires title for what he had und£rtal^n^io_^2ieyiousl};_sell, inures
only to the benefit of his grantee, who can compel a proper convey-
ance after tlie acquisition of title by the grantor. Those who were
not privies or parties to the original conveyance can take no advan-
tage of estoppel arising from it. ""AllerTyr Allen, 45 Pa. 468. Estoppel s
may hp hy HppH hnt f^<;|-npppk hy Heed avail Only in favor of parties
and privies. Sunderlin v. Struthers, 47 Pa. 411. To this appellant
the estoppel of the appellee as against Robert Robb's conveyance of
the coal is unavailing, for Yie was no party or privy to it. _ The situa-
tion as It existed at the time this ejectment was brought was a title
in the appellee for herself absolutely to the surface and one-third
of the coal, and as trustee for Hay and Woods, or those claiming un-
der them, for an equitable title to two-thirds. But this outstanding eq-
uitable title to a portion of the coal was of no avail to the appellant as
against the appellee, the holder of the legal title to the surface ajiA of
the coal, entitled under that title to possession of both .
In 1902 an ejectment was brought for this land by Rebecca J. Ben-
nett et al., claiming by descent from Mary Robb. The original de-
fendant in the action was the present appellant, but the appellee and
others, as claimants, were made co-defendants. The jury were sworn
as against all the defendants, and the verdict having been rendered
in their favor, the further contention of the appellant is that his title
is res adjudicata, in view of that verdict. All that heed be said as to
this is that the verdict was in favor of all the defendants, but settled
no title in dispute among tliemselves. Whether Chambers could as-
sert title as against his codefendants, or any of them, remained, as
the court properly said in overruling a motion for a new trial, to be
settled in a controversy likely to arise between them. This is that con-
troversy.
Nothing in the assignments of error calls for further discussion.
They are all overruled and the judgment is affirmed."
» A. made a deed of premises to B., with general covenant of warrani:^ ; the
next .V(\'ir a (1(M'(1 of the same premises was mado l)y "X.""fo 'AT,' Who thcrtMipon
\vo\\\ into imsscssiou and continued therein for the period of the statute of liiH-
ItTitions. In an action of ejectment by a .grantee of B., it was held that A. was
entitled to judfonent. Chatham v. Lansford, 149 N. C. 363, 63 S. E. 81, 25 L.
R. A. (N. S.) 129 (1908).
Ch. 7) ESTOPPEL BY DEED 801
JARVIS V. AIKENS.
(Supreme Court of Vermont, 1S53. 25 Vt. 635.)
Appeal from the Court of Chancery. The bill was brought by the
orator to_foredo^se_a mortgage, dated the 19th day of July, 1845, and
to foreclose the equity of redemption, of Daniel Aikens and those
claiming under him, of three pieces or parcels of land in Barnard, de-
scribed in said bill and mortgage, as follows : one piece of about
one hundred acres, called the "Paul Ellis Farm." One other piece of
land contammg about one hundred acres Jcnown as the "Lease Lot."
And also a piece of land contammg about fifty acres. The bill was in
the usual form. * * *
Henry Murphy answering says, that he claims title to a certain
part of the mortgaged premises described in the orator's bill as the
"Lease Lot." And turtner says,, that he will insist in defence to said
action, that on the 20th day of November, 1848, the said "Lease Lot,"»
belonged to the Society for the Propagation oi the Gospel, &.C., —sub-
ject to such interest as the orator might have by virtue of the mort-
gage deed from said Aikens to him, meuLiuiied in said-bill of com-
plaint, which interest extended only to the unexpired portion of the
lease formerly made by said Society to one Abial Frye, dated January
1st, 1836, for the term of thirty years thereafter. That on said 20th
day of November, 1848, said Society executed a durable lease of sa:id
land to the said Aikens, and that on the 27th day of November, 1848,
the said Daniel Aikens conveyed to this defendant by deed of war-
ranty the same premises, subject to the payment of a yearly rgnt to
said Society, in consideration of $300, paid by this defendant.
That on the first day of January, 1836, said Society were the ex-
clusive owners of the premises, and did lease the same, to said Frye for
thirty years for a certain reserved rent; that said Frye gave a mort-
gage deed to one Willard Caryl, and said Caryl afterwards quit-claimed
to one A. Howe and others, all of whom quit-claimed their interest to
the said Aikprm
That afterwards, and previous to the time of the execution of
the orator's deed by the said Aikens, said Aikens contracted in writ-
ing for the sale of the same to one William Dutton, and that he
took possession under said contract ; that afterwards while said Frye
and said Dutton were both in possession, said Society commenced their
ejectment suit for the possession of the premises, in the Windsor Coun-
ty Court, and at the November Term of said court, in 1846, did re-
cover the possession of the same.
Catherine Murphy answering, sets forth the same facts, and says
that said Henry Murphy, before the bringing of the orator's bill, exe-
cuted and delivered to her a deed of the said premises, which deed
Aig.Peop. — 51
802 DERIVATIVE TITLES (Part 2
is now in full force, by the reasons of which, this defendant claims
the premises aforesaid.
Daniel Aikens did not answer.
Testimony having been taken upon the matters in issue between
the orator and said Sarah A. Goddard, the cause, December Term,
1852, was heard on the bill and answers of said Henry and Catherine
Murphy ; and on the bill, pleadings and evidence, as to said Sarah ;
and at said term, the Court of Chancery decreed that as to said Henry
and Catherine Murphy, and said Sarah A. Goddard, and the several
parts of the premises aforesaid by them, respectively claimed, being
the "Paul Ellis Farm," so called in the bill, and the "Lease Lot," so
called in the bill, stand dismissed out of, said bill ; and foreclosure
on the other premuses.
Bennett, J.^° This case comes up by an appeal from the Court
of Chancery. The bill is brought to foreclose the equity of redemp-
tion, of Daniel Aikens and those claiming under him, in certain par-
c^s of lands, described in thebill- of complaint, and in the mort-
*gage deed from said Aikens to the orator, bearmg date the 19i:h dav
of July, 1845. and recorded the same day. * * *
The more important question is, in relation to the "Lease I^ot" so
called. Though it may be true that this lot was, in 1836, leased by
the Society for the Propagation of the Gospel in Foreign Parts, to
Abial Frye for a period of thirty years; and he mortgaged it to Wil-
liam Caryl ; and though the premises may have come by quit-claim
to Daniel Aikens, yet it is clear, that without resort to what shall be
the effect of the recovery in ejectment, by the Society against F.rye
and Dutton, the present plaintiff cannot rely upon any title which Ai-
kens had to this lot under the Frye lease. Tiie title which Caryl had
from Frye was but a mortgage, and there is nothing in the case to
show, that Caryl's debt against Frye is outstanding, or that it passed
into the hands of Aikens. His title is stated to be by quit-claim
deed. As our courts have decided, that a mortgagee cannot main-
tain ejectrneri^' ^ftpr th^ rnortgage debt has been paid, and that^to
rebut the presumption of payment^ the mortgage notes should^ be
produced, or accounted for otherwise : it would seem to follow, that
so far, at least, there was no title in Aikens for him to convey; but
it is claimed that Aikens, after he had executed his mortgage to the
plaintiff, took a durable lease of this lot from the propagation So-
ciety, and that this after title, inured to the benefit of Jarvis.
It appears, that the date of the Society's lease to Aikens was the
20th day of November, 1848, and recorded the same day; and that
on the 27th day of November, 1848, Aikens conveyed, by a deed of
warranty, the lot to Henry Murphy; and after this. Murphy conveyed
by a deed of warranty, to Catherine Alurphy; and the question is,
\Adiich title shall prevail.
10 The parts of the statement of facts and of the opinion relating to the
"Paul Ellis Farm" are omitted.
Ch. 7) ESTOPPEL BY DEED 803
It is not seriously claimed by the counsel for Catherine Murphy, but
what the subsequent title acquired by Aikens, would inure to the benefit
of Jarvis, so as to estop Aikens and his heirs from claiming title
against him and his assignees ; but it is said that the principle should
not be applied, as between the purchaser and a subsequent purchaser
from the grantor, and that to so apply it, would be at war with our
registry system. This is a point of some importance, and well deserves
consideration. We need cite no authorities to show, that Aikens him-
self would be estopped from setting up title against Jarvis, because
he might sue Aikens on his covenants, if he was not estopped; and
the law abhors circuity of action; but it is said, if Jarvis can claim
the premises, as against Aikens, to save circuity of action, yet as
against Murphy no such reason exists, and the only question is, which
shall be compelled to resort to the covenants in Aikens' deeds, Jarvis,
or Murphy? In Trevivan v. Lawrence et al., 1 Salk. 276, it was held
that the parties, and all claiming under them, were bound by an estop-
pel, and the court put the case, as between the purchaser and a sub-
sequent purchaser from the grantor. In the same case, reported in
6 Mod. 258, and Ld. Ray. 1051, Lord Holt cites 39 Ass. 18, and speaks
of an estoppel, as running upon the land, and altering the interest of it
— as creating an interest in, or working upon the estate in the land, and
as running with the land to whoever takes it. The covenants in Aikens'
d^ed to Jarvis, may well be said to have a double operation, first as an
estoppeT. and secondly to pass the estate, tlie instant that Aikens be-
carne the owner.
The covenants bound Aikens, as an estoppel, until he took his dur-
able lease from the Society, and then the estate, which devolved upon
him, fed the estoppel, and the estate created by the covenants in
Aikens' deed by way of estoppel, ceased to be an estate by estoppel only,
and became an interest, and gave the orator precisely what he would
have had, in case the durable lease had been executed to Aikens be-
fore his mortgage deed to the orator. The estoppel, when it runs
\^th the land, operates upon the title, so as actually to alter the in-
terest m It, in the hands of the heir, or assigns of the person bound
by^the estoppel, as well as in the hands of such person himself. It
was said, by Lane, J., in the case of Douglass v. Scott, 5 Ohio, 198
"that the obligation created by estoppel, not only binds the party
making it, but all persons privy to him ; the legal representatives of
the party, those who stand in his situation by act of law, and all who
take his estate by contract, stand in his stead, and are subjected to
all the consequences, which accrue to him. It adheres to the land,
is transmitted with the estate, it becomes a muniment of title, and
all who afterwards acquire the title, take it subject to the burden,
which the existence of the fact imposes upon it." We think this view
is in accordance with the adjudged cases. See Rawlins' Case, 4 Coke,
52 ; Weale v. L , Pollexfen, 60; Christmas et al. v. Oliver, 10 Barn.
& Cres. 181 : Coke. Littleton, 352 (a); Wark v. Willard, 13 N. H. 389;
804 DERIVATIVE TITLES (Part 2
White V. Patten, 24 Pick. (Mass.) 324; Dudley v. Cadwell, 19 Conn.
227; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 567, 49 Am.
Dec. 189. In this view of the case, our registry system can jiave no
control of the~question~ There was no title in Aikens, when he deeded
to Henry Murphy, it had before passed to Jarvis, and was vested in
him. In the case from 24 Pick. (Mass.) 324, the point was specially
made by counsel, that this doctrine was in conflict with their regis-
try system; but the court did not regard the objection. The same
objection has been made in other cases, but without effect.
We see no reason, why this doctrine should not be extended to a
mortgage deed with the usual covenants, as well as to an absolute
deed, and indeed in the case of 24 Pick. 324, the claimant's title was un-
der a mnrfcrafTP rJeed
Though it may be true, that before the lease was executed by the
Society to Aikens, Henry Murphy paid sixty dollars to the Society
towards rent, which was in arrear, and which was to be a part of the
consideration which he was to pay to Aikens for his deed ; but this
cannot create a resulting trust in Murphy, to any portion of the land,
which can avail against the legal title of Jarvis. It was in fact money
paid by Murphy to the use of Aikens. Nothing can be made out of
this, that can aid Murphy in this controversy.
We think then, that the decree of the Chancellor should be re-
versed, as to Henry and Catherine Murphy with costs ; and a decree
of foreclosure pass against them as to the "Lease Lot," and in other
respects affirmed.^'
RESSER V. CARNEY.
(Supreme Court of Minnesota, 1S93. 52 Minn. 397, 54 N. W. S9.)
Appeal by plaintiffs, William C. Resser and Charles Davison, from
a judgment of the District Court of Ramsey County, Kelley, J.,
entered March 15, 1892, that they take nothing by the action and for
costs.
Dickinson, J, Action for breach of covenant of seisin contained
in a deed of conveyance executed by the defendant to the plaintiffs
in February, 1882. Whatever title the defendant had to convey, and
whatever title may have subsequently inured to the plaintiffs as his
grantees, was derived from the United States through the Northern
Pacific Railroad Company; the land being within the indemnity limit
of the land grant to that corporation. The chain of conveyances to
which attention is directed is as follows :
In 1879 the Northern Pacific Railroad Company conveyed to Paine,
n A. conveyed premises to B., and later conveyed the same premises to C,
with covenant of warranty "against all persons claiming by, through, or under
A." B. afterwards reconveyed to A., and D., a creditor of A., levied upon the
land as the land of A. Had A. a leviable interest? See Wheeler v. Young,
infra, p. 862, and cases there referred to.
Ch. 7) ESTOPPEL BY DEED 805
and in 1880 Paine conveyed to Kindred, and the latter to the de-
fendant, Carney, all such conveyances being by warranty deed. Feb-
ruary 28, 1882, Carney conveyed, by warranty deed containing a
covenant of seisin, to the plaintiffs. This action is for a breach of the
covenant contained in that deed. Of the purchase price, $4,480, there
was paid the sum of $2,480. On the same day the plaintiffs exe-
cuted to their grantor, the defendant, a mortgage on the same land
to secure the unpaid part of the purchase price. Subsequently, and in
the same year, 1882, the plaintiffs conveyed to other parties, who in
1887, prior to the commencement of this action, reconveyed to the
plaintiffs. In Tulv. 1886. the mortgage given by the plaintiffs was
foreclosed under the power therein contained, the defendant purchas-
ing the property at the foreclosure sale, and no redemption was made
therefrom.
The premises have always been vacant and unoccupied. This action
was commenced in November, 1887. In April, 1891, the United States
executed a patent conveying the land to the Northern Pacific Rail-
road Company, in which patent it was recited that the land had been
selected by an agent of the railroad company, "as shown by his orig-
inal list of selections, certified under date of March 19, 1883, and
April 9, 1883, by the register and receiver at Fargo, State of Dakota."
It does not otherwise appear when this selection was approved by the
secretary of the interior.
The selection of indemnity lands, which was to be made "under the
direction of the secretary of the interior," (13 St. at Large, p. 367, c.
217, § 3,) did not become effectual, nor did the title pass from the
United States, at least until the selection was approved, or in some
way sanctioned by the secretary of the interior; and hence, so far as
appears in this case, not until the issuing of the patent, in April, 1891,
which evidences such approval. Musser v. McRae, 38 Minn. 409, 38
N. W. 103 ; Id., 44 Minn. 343, 46 N. W. 673 ; United States v. Mis-
souri, K. & T. Ry. Co., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766.
Hence it will be observed that at the time of the conveyance from the
defendant to the plaintiffs, February, 1882, the title was still inthe
United States, and that it was not until some nine years thereafter.
nor until more than three years after the commencement of thisaction ,
that the title was conveyed to the railroad company. Not until then
could such title have been transmitted, or have inured by operation
of law, to the grantees of that company, immediate or remote. In
other words, the covenant of seisin appears to have been wholly brolcen
when it was made, so that the plaintiffs; had a rjo-ht of action _to
recover the purchase money paid ; and not until after this actioo was
commenced was "the defendant in a position, so far as appears, to_jn-
voke the application of the principle that a title acquired by a grantor
after a conveyance by him, with covenants, inures to the benefit of
his covenantee. The question here presented is whether that principle
O
806 DERIVATIVE TITLES (Part 2
is_to ^e applied, under such circumstances, to defeat a recovery on the
covenant broken. Otherwise expressed, the question is whether the f ^
title acquired during the pendency of the action for breach of cove- Vl„--'
nant was actually transferred to and vested in the plaintiffs by operation
ol law, so, that they were compelled to and did actually acquire it, even
without their consent and against their will. If so, that fact would
probably be available to the defendant in defense of such an action, or
at least in mitigation of damages.
Upon the question thus presented, the law cannot be said to be set-
tled. In support, wholly or to some extent, of the proposition "tKat
a title acquired by the grantor subsequent to the conveyance by him
inures by operation of law to his grantee, even though he is unwilling
then to accept it, and hence will mitigate the damages recoverable for
breach of covenant, or wholly defeat an action for damages, accord-
ing to the circumstances of the case^ may be cited Baxter v. Bradbury,
20 Me. 260, 37 Am. Dec. 49; King v. Gilson's-Adm'x, 32 111. 348, 83
Am. Rep. 269; Reese v. Smith, 12 Mo. 344; Morrison v. Underwood,
20 N. H. 369; Knowles v. Kennedy, 82 Pa. 445; Farmers' Bank v.
Glenn, 68 N. C. 35; Cornell v. Jackson, 3 Cush. (Mass.) 505; Boulter
V. Hamilton, 15 U. C. C. P. 125, citing doe v. Webster, 2 U.
C. O. B. 225. See, also. Knight v. Thayer, 125 Mass. 25. In some of
these cases, however, it may be noticed that the plaintiff* was in pos-
session of the granted lands under his deed,
Qn the contrary, the doctrine is well supported by authority that
a grantee to whom no title passed by the deed of conveyance, who ac-
quired no possession, and no right of possession, may recover the
purchase monev paid^ with interest, in an action for a breach of the
covenant of seisin , even though the grantor may have acquired a title
during the pendency of such an action, or, perhaps^ even prior to its
commencement ; that the grantee is not to be compelled to accept
the after-acquired title in satisfaction of the already broken covenant
of seisin, or in mitigation of damages recoverable for the breach.
Blanchard v. Ellis, 1 Gray (Mass.) 195, 61 Am. Dec. 417; Tucker
v. Clarke, 2 Sandf. Ch. (N. Y.) 96; Bingham v. Weiderwax, 1 N. Y.
509; Nichol v. Alexander, 28 Wis. 118; Mclnnis v. Lyman, 62 Wis.
191, 22 N. W. 405; Burton v. Reeds, 20 Ind. 87, 93; Rawle, Cov.
§§ 179-182, 256-258, 264, 265; Bigelow, Estop. 440; Sedg. & W.
Tr. Title Land, § 850. While in some of the cases last cited there had
been an eviction of the covenantee after he had been in possession,
that would not distinguish such cases from that now before us. The
inability of the plaintiffs to enter into possession of this vacant land
without committing a trespass, by reason of the paramount title being
in another, would have the same effect, as respects the right of action
for a breach of the covenants contained in the deed, as would an evic-
tion if possession had been acquired. Fritz v. Pusey, 31 Minn. 368,
18 N. W. 94; Shattuck v. Lamb, 65 N. Y. 499, 22 Am. Rep. 656.
Ch. 7) ESTOPPEL BY DEED 807
To our minds the authorities last cited present the view of the law
most consistent with reason and with familiar legal principles, as well
as the rule most conducive to justice, in its practical application.
It is certain, if the defendant's deed conveyed no title, that the plain-
tiffs had a legal right, when this action was commenced, to recover
the purchase price paid for a. title. They elected to pursue that remedy,
and still insist upon the legal right. We cannot understand how that
perfect, absolute legal right of action, and especially after an action has
been already instituted, is defeated; how the right, at the election
of the grantee, to enforce his action for the breach of the covenant is
taken away or lost by any proper application of the principle that
an after-acquired title inures to the benefit of the grantee, by force
of his covenants, and upon principles embraced within the general
doctrine of estoppel. We do not concur in the proposition that the
principle just referred to is effectual to actually transfer and vest in
the covenantee an estate acquired by the covenantor subsequent to his
conveyance. See, in addition to the authorities above cited, Bucking-
ham V. Hanna, 2 Ohio St. 551 ; Burtners v. Keran, 24 Grat. (Va.) 42,
67; Chew v. Barnet, 11 Serg. & R. (Pa.) 3S9, 391. Indeed, that the
estate is thus actually transferred to the covenantee, without resting
in the covenantor, to whom the after-acquired title is in terms conveyed,
is inconsistent with the idea of an estoppel binding the latter and those
in privity with him ; and yet it is not to be doubted that the doctrine
which we are considering really rests upon the ground of estoppel. It
is founded on equitable principles, and aff'ords to a grantee with cov-
enants a remedy of an equitable nature with respect to a title acquired
by the grantor after he had assumed to convey the same; and doubt-
less courts of law, at this day, recognize and apply the principle of
estoppel, in such cases, as courts of equity are wont to do. They will
treat the after-acquired title as though it had been conveyed, when
equity would decree that a conveyance be made. Rawle, Cov. § 258.
But this equitable right is one in favor of the covenantee, resting
upon the estoppel of the covenantor to assert, as agamst him, n title
to the property. If the grantee acquires nothing by the deed to him,
and has and asserts a legal cause of action for covenant broken, jio
principle of estoppel operates against him, to compel him, perhaps
years afterwards, as in this case, to accept, in satisfaction of that legal
cause of action, wholly or partially, a title which his covenantor may
then procure. The latter, whose covenant has been wholly broken,
has no right to elect, as against the covenantee, and to his prejudice,
whether he will respond in damages for the breach by repaying the
purchase money, or buy in the paramount title, when the value of the
property may have greatly depreciated, and compel the plaintiff to ac-
cept that title. The right of election is. and should be. with the other
party.. He had the benefit of the estoppel, but it is not to be imposed
upt)" him as a burden, at the will of the party who alone is subject
808 DERIVATIVE TITLES " (Part 2
to the estoppel. Hejnay elect to pursue the action at law, and recover
the consideration paid fo?a title~which was not conveyed to him. At
least, he mav so elect, as the plaintiffs did in this case, at any time^-
fore the acquisition of the title by the covenantor.
The case of Burke v. Beveridge, 15 Minn. 205, (Gil. 160,) did not
require a consideration of the question now before us. The decision
necessarily rested upon another ground; and while, in the opinion
of the court, Baxter v. Bradbury, supra, is referred to wnth approv-
al, we do not. accept the dictum as expressing the law on this sub-
ject.
The respondent adopts the memorandum or opinion of the learned
judge who tried the cause, in place of a brief, for the purposes of this
appeal. We infer that the respondent relies upon the proposition,
upon which the court based its decision, that, by reason of the fore-
closure of the purchase-money mortgage, the purchase by the defend-
ant at the foreclosure sale, and the nonredemption therefrom, the
plaintiffs' right of action for breach of the covenant of seisin has been
extinguished ; that it passed from the plaintiffs back to the defendant,
the vendor, when by the foreclosure the plaintiffs were divested, and
the defendant reinvested, with whatever estate or interest was con-
veyed by the deed. Kimball v. Bryant, 25 Minn. 496, is cited in this
connection. This contention must rest upon the familiar legal prop-
osition that, a right of action by a grantee upon covenants which run
with the land does not remain in him after he has transferred the es-
tate, but passes with it. But we do not deem the proposition applicable
to the case here presented.
It will be kept in mind that the mortgage was executed by the ven-
dees to the vendor contemporaneously with the conveyance made to the
former by the latter, and for the purpose, merely, of securing the pay-
ment of a part of the purchase price.
We may state, without discussing the proposition, that the vendees
were not estopped or precluded, by the covenants in their mortgage
to the vendor, from recovering for a breach of the similar covenants
contained in the deed of the latter to them. Sumner v. Barnard, 12
Mete. (Mass.) 459; Brown v. Staples, 28 Me. 497, 48 Am. Dec. 504;
Smith V. Cannell, 32 Me. 123; Haynes v. Stevens, 11 N. H. 28; Con-
nor V. Eddy, 25 Mo. 72; Rawle, Gov. (5th Ed.) § 266.
In Kimball v. Bryant, supra, it^ was considered that, if the granlee
under a deed of conveyance with a covenant of seisin conveys the same
land to another, it may be presumed, "unless there be something to
show a contrary intention," that, although the covenant was broken
Vjixen it was given, he intends to confer on his grantee the benefit of the
covenant, so far as necessary for his protection ; tn transfer Vn'p rJcrhf
to sue for the breach,_so far as his grantee sustains injury by reason
of it. But in a case like that under consideration the circumstances do
"show a contrary intention." When the plaintiffs purchased the prop-
Ch. 7) ESTOPPEL BY DEED 809
erty, and took a deed with covenants embracing that of seisin, the
presumption is irresistible and conclusive that the covenant was in-
tended by both parties to the deed to be effectual as an obligatory
assurance of title, p-ivin<y an immediatp right nf ^rUnn to the plaintiffs
if the covenant should be found to have been broken. It would be
unreasonable to suppose that when the purchasers gave back to their
vendor a mortgage of the land, merely to secure the payment of a
part of the purchase price, it was the intention of the parties that the
purchasers should thereby divest thertiselves of, or relinquish, in favor
of their covenantor, the benefits of the covenant, which in the very
same transaction they had just taken Trom him tor tneir own pro-
tection. It could not have- been intended that the mortgage should, in
eft'ect, embrace and hypothecate to the vendor his own covenant assur-
ing to his vendees the title which he then assumed to convey. As__be-
tween the parties to such a transaction, the mortgage back to the
vendor is to be" deemed as reconveving, subject to the condition "o?
defeasance, only such estate as is conveved hv thp mnrtg-agee. to the
rnortg^g^^'s-. It was not effecUial as between these parties, to dis-
charge the vendor from his obligation upon the covenant of seisin,
wHTch,^ being then broken, gave to the mortgagors an immediate right
of action. The general rule that the right of action upon covenants
which run with the land passes with the estate, and does not remain
in a covenantee after the estate has been transferred, is not ap-
phcaitle-^ Smith v. Cannell. 32 Me. 123; Haynes v. Stevens, 11 N. H.
28; Randall v. Lower, 98 Ind. 255; Rawle, Gov. 266; Bigelow, Estop.
(5th Ed.) 411^13.
Hence the plaintiffs, upon the case here presented, were entitled
to recover for breach of covenant. Judgment reversed.^^
12 On the subject-matter of the chapter generally, see Rawle on Covenants
for Title, c. 11, and Bigelow on Estoppel (6th Ed.) c 11.
810 DERIVATIVE TITLES (Part 2
CHAPTER VIII
PRIORITIES
SECTION 1.— FRAUDULENT CONVEYANCES
ST. 27 ELIZ. c. 4 (1585).
Sec. 1. Forasmuch as not only the Queen's most excellent Majesty,
but also divers of her Highness's good and loving subjects, and bodies
politic and corporate, after conveyances obtained or to be obtained
and purchases made or to be made, of lands, tenements, leases, estates,
and hereditaments, for money or other good considerations, may have,
incur, and receive great loss and prejudice by reason of fraudulent
and covinous conveyances, estates, gifts, grants, charges, and limitations
of uses heretofore made or hereafter to be made, of, in, or out of
lands, tenements, or hereditaments so purchased or to be purchased ;
which said gifts, grants, charges, estates, uses, and conveyances v/ere,
or hereafter shall be, meant or intended by the parties that so make the
same to be fraudulent and covinous, of purpose and intent to deceive
such as have purchased or shall purchase the same ; or else, by the se-
cret intent of the parties, the same be to their own- proper use, and at
their free disposition, colored nevertheless by a feigned countenance
and show of words and sentences, as though the same were made bona
fide, for good causes, and upon just and lawful considerations:
Sec. 2. P'or remedy of which inconveniences, and for the avoiding
of such fraudulent, feigned, and covinous conveyances, gifts, grants,
charges, uses, and estates, and for the maintenance of upright and just ^
dealing in the purchasing of lands, tenements, and hereditaments :
Be it ordained and enacted, by the authority of this present Parliament,
that all and every conveyance, grant, charge, lease, estate, incum-
brance, and limitation of use or uses, of, in. or out of any lands, tene-
ments, or other hereditaments whatsoever, had or made any time here-
tofore sithence the beginning of the Queen's Majesty's reign that now
is, or at any time hereafter to be had or made, for the intent and of
purpose to defraud and deceive such person or persons, bodies politic
or corporate, as have purchased or 'shall afterward purchase in fee
simple, fee tail, for life, lives, or years, the same lands, tenements, and
hereditaments, or any part or parcel thereof, so formerly conveyed,
granted, leased, charged, incumbered, or limited in use, or to defraud
and deceive such as have or shall purchase any rent, profit, or com-
modity in or out of the same, or any part thereof, shall be deemed
Cll. 8) PRIORITIES 811
and taken, only as. against that person or persons, bodies politic and
corporate, his an» their heirs, successors, executors, administrators,
and assigns, and against all and every other person or persons lawfully
having or claiming by, from, or under them, or any of them, which
have purchased or shall hereafter so purchase for money or other good
consideration, the same lands, tenements, or hereditaments, or any
part or parcel thereof, or any rent, pront, or commodity, in or out of
the same, to be utterly void, frustrate, and of none effect ; any pre-
tence, color, feigned consideration, or expressing of any use or uses
to the contrary notwithstanding.
Sec. 3. And be it further enacted by the authority aforesaid, that
all and every the parties to such feigned, covinous, and fraudulent
gifts, grants, leases, charges, or conveyances before expressed, or be-
ing privy and knowing of the same or any of them, which after the
twentieth day of April next coming shall wittingly and willingly put
in use, avow, maintain, justify, or defend the same or any of them,
as true, simple, and done,, had, or made bona fide, or upon good con-
sideration, to the disturbance or hindrance of the said purchaser or
purchasers, lessees, or grantees, or of or to the disturbance or hin-
drance of their heirs, successors, executors, administrators, or assigns,
or such as have or shall lawfully claim anything by, from, or under
them or any of them, shall incur the penalty and forfeiture of one
year's value of the said lands, tenements, and hereditaments so pur-
chased or charged ; the one moiety whereof to be to the Queen's Maj-
esty, her heirs and successors, and the other moiety to the party or par-
ties grieved by such feigned and fraudulent gift, grant, lease, convey-
ance, incumbrance, or limitation of use, to be recovered in any of the
Queen's courts of record by an action of debt, bill, plaint, or informa-
tion, wherein no essoin, protection, or wager of law shall be admitted
for the defendant or defendants ; and also, being thereof lawfully con-
victed, shall suffer imprisonment for one-half year without bail or
mainprise.
Sec. 4. Provided also, and be it enacted by the authority aforesaid,
that this Act, or anything therein contained, shall not extend or be
construed to impeach, defeat, make void or frustrate any conveyance,
assignment of lease, assurance, grant, charge, lease, estate, interest,
or limitation of use or uses, of, in, to, or out of, lands, tenements, or
hereditaments heretofore at any time had or made, or hereafter to be
had or made, upon or for good consideration and bona fide to any
person or persons, bodies politic or corporate; anything before men-
tioned to the contrary hereof notwithstanding.
Sec. 5. And be it further enacted by the authority aforesaid, that
if any person or persons have heretofore, sithence the beginning of
the Queen's Majesty's reign that now is, made or hereafter shall make
any conveyance, gift, grant, demise, charge, limitation of use or uses,
or assurance of, in. or out of any lands, tenements, or hereditaments,
with any clause, provision, article, or condition of revocation, deter-
812 DERIVATIVE TITLES (Part 2
mination, or alteration, at his or their will or pleasure, of such con-
veyance, assurance, grants, limitations of uses or estates of, in, or out
of the said lands, tenements, or hereditaments, or of, in, or out of any
part or parcel of them, contained or mentioned in any writing; deed,
or indenture of such assurance, conveyance, grant, or gift; and after
such conveyance, grant, gift, demise, charge, limitation to uses, or as-
surance so made or had, shall or do bargain, sell, demise, grant, convey,
or charge the same lands, tenements, or hereditaments, or any part or
parcel thereof, to any person or persons, bodies politic and corporate,
for money or other good consideration paid or given (the said first
conveyance, assurance, gift, grant, demise, charge, or hmitation, not by
him or them revoked, made void, or altered, according to the power
and authority, reserved or expressed unto him or them in and by the
said secret conveyance, assurance, gift, or grant) that then the said
former conveyance, assurance, gift, demise, and grant, as touching the
said lands, tenements, and hereditaments, so after bargained, sold, con-
veyed, demised, or charged against the said bargainees, vendees, les-
sees, grantees, and every of them, their heirs, successors, executors, ad-
ministrators, and assigns, and against all and every person and per-
sons which have, shall, or may lawfully claim anything by, from, or
under them or any of them, shall be deemed, taken, and adjudged to be
void, frustrate, and of none effect, by virtue and force of this present
Act.
Sec. 6. Provided, nevertheless, that no lawful mortgage made or
to be made bona fide, and without fraud or covin, upon good consider-
ation, shall be impeached or impaired by force of this Act, but shall
stand in the like force and effect as the same should have done, if this
Act had never been had nor made ; anything in this Act to the contrary
in any wise, notwithstanding.^
DOE ex dem. OTLEY v. MANNING.
(Court of King's Bench, 1807. 9 East, 59.)
In ejectment for certain messuages and premises at St. Mary Mag-
dalen, Bermondsey, in Surry; a verdict was found for the defendants,
subject to the opinion of the Court on the following case. Thomas
Clendon, being seised in fee of the premises in question, by his will of
the 6th of March, 1750, duly executed and attested, demised the prem-
ises (amongst others) to his nephew William Clendon for life ; remain-
der to trustees during W. C.'s life to preserve contingent remainders ;
remainder to the first and other sons of W. C. successively in tail male ;
1 As to character of American legislation, see Bigclow on Fraudulent Con-
veyances (Ivnowlton's Ed.) p. 622 et seq.
Pure chattels are not XNithin the statute. Bill v. Cureton, 2 My. & K, 503
(1835.)
Ch. 8) PRIORITIES 813
remainder to the testator's nephew, Owen Manning-, for life; remain-
der to trustees during O. M.'s Hf e to support contingent remainders ;
remainder to the first and other sons of O. M. successively in tail
male ; remainder to his own right heirs for ever ; and gave the usual
powers of leasing, in possession, at rack rents, for 21 years ; and also
power to each of the devisees, when in actual possession, to settle
upon such person as he should marry, for her jointure, premises of the
yearly value of £80. for every £1000. he should receive with such wife.
The testator died seised of the premises in 1751; and Wm. Clendon,
his nephew, died in March, 1764, without issue, whereby the estate
descended to O. Manning, the next tenant for life, in remainder. By
indenture of bargain and sale of the 25th of Nov. 1782, duly enrolled
in C: B., between Owen Manning and George Owen Manning, his eld-
est son,- of the 1st part, T. Green of the 2d part, and P. Willson of the
3d part, Owen Manning and George, his son, sold and conveyed the
premises to Green in fee, to the intent that he might become tenant
thereof, for the purpose of suffering a recovery, to the use of O. Man-
ning and his assigns for life ; remainder to the said G. O. Manning in
fee; and a recovery was accordingly suffered in Hil. term 23 Geo. III.
On the 15th of March, 1783, G. O. Manning died intestate, and without
issue; whereby the reversion in fee descended to John Manning his
brother and heir at law. By indentures of lease and release of the 11th
and 12th of April, 1783, between Owen Manning, who was thtn in
possession, of the first part, the said John Manning of the second part,
and W. Gill and H. S. Gill of the third part; reciting the former in-
denture of bargain and sale, and the recovery, and the death of G. O.
Manning, and that divers other messuages, &c., having in like manner
descended to the said John Manning, he was desirous of making some
settlement and provision for the benefit of his mother, in case she
should survive Owen Manning, and of his sisters and younger brother ;
it was witnessed, that in consideration of the natural love and affection
which John Manning bore towards Catharine Manning his mother,
and Jane, Catharine Matilda, Ann, and Matilda Manning, his sisters,
and Charles Manning, his brother, and for making provision for them
for their respective lives, and of 10s. &c. ; Owen Manning and John
Manning conveyed to W. and H. S. Gill in fee, amongst others, all
the said premises, habendum, &c., to the use of Owen Manning for
life, sans waste; remainder to the use of the trustees, during the life
of O. M., in trust to preserve contingent remainders ; remainder to
the use of Cath. Manning for life, sans waste ; remainder to the trustees
and their heirs, upon trust, during the lives of Jane, Catharine Matilda,
Ann, Matilda, and Charles Manning, and the survivor of them, to re-
ceive the rents, &c., and pay the same equally amongst his said sisters
and brother, and to the survivor of them ; remainder to John Manning
in fee ; with the like power of leasing as is contained in Clendon's will ;
and a power for Owen Manning, during his life, and Catharine his
mother, during her life, with the privity and consent of John Manning
814 DERIVATIVE TITLES (Part 2
and the trustees, or the survivor, his heirs or assigns, testified as there-
in mentioned; and for John Manning, after his father's and mother's
decease, with the Uke pri\ ity of the trustees, or the survivor, his heirs
or assigns, testified as aforesaid; to execute like leases for 99 years.
Owen Manning died the 9th of Sept., 1801. By indentures of lease
and release of the 16th and 17th of May, 1805, between John Planning
of the first part, R. Otley of the second part, and H., Otley of the
third part ; reciting the indenture of bargain and sale of the 25th of
Nov., 1782, and the deaths of George Owen IVIanning and Owen Man-
ning, and that John Manning had contracted with R. Otley for the
absolute sale of the premises ; it was witnessed, that in consideration
of £1800. to John Manning paid, he conveyed to R. and H. Otley in
fee all the said premises for which this ejectment was brought, being
part of the premises in the last-mentioned deed ; habendum to such
uses as R. Otley should appoint; and in the mean time, and subject
thereto, to the use of R. Otley in fee. The consideration for the con-
veyance to the lessor of the plaintiff was paid thus ; by a book debt
from John Manning to the lessor of plaintiff £417. 2s. 9d. By cash at
sundry times £1382. 17s. 3d. The book debt was contracted, and £150.
of the consideration money paid, at the date of the purchase contract,
and £387. 5s. 6d. at a subsequent period, but before the execution of
the conveyance of 1805, and before the lessor of the plaintiff had no-
tice of the deed of 1783. The residue- of the consideration was paid,
and the deeds executed, subsequent to such notice. John Manning did
not divest himself of all his property by the conveyance of tlie 12th of
April, 1783. There was no fraud in the last-mentioned conveyance,
unless fraud is to be implied by construction or operation of law. The
question for the opinion of the Court was, Whether the lessor of the
plaintiff was entitled to recover against the defendant Manning? If
the Court should be of opinion that he was, a new trial was to be had,
or an issue granted, as the Court should direct, between the plaintiff
and the defendant Goom, to try the validity of his lease. If the ver-
dict on such new trial or issue should be found against Goom, a verdict
was to be entered against both the defendants. But if the Court should
be of opinion that the lessor of the plaintiff was not entitled to re-
cover against the defendant Manning, the verdict taken for the de-
fendants was to stand. * * *
Lord Ellenborough, C. J., ^ after stating the facts — On this case,
as it is found that there was no fraud in fact in the conveyance of the
12th of April, 1783, the only point for the consideration of the Court
is, whether a voluntary conveyance, without any valuable considera-
tion, be not according to the legal construction of the stat. 27 Eliz. c.
4, fraudulent against a subsequent purchaser for a valuable considera-
tion ; or, in other words, whether in such case the law do not presume
.fraud, without admitting such presumption to be contradicted. The
2 Part of the statement is omitted.
Ch. 8) PRIORITIES 815
cases in which the construction of the statute of the 27 of Eliz. has
come on to be considered have been numerous ; and in several of those
which arose nearest the time of passing the statute the Judges seem to
liave thought that a voluntary settlement was only prima facie fraudu-
lent against a purchaser, according to the language of the Court in Sir
Ralph Bovy's Case, Ventris, 193 ; where it is said, (Lord Hale being
Chief Justice) "that though every voluntary conveyance carries an evi-
dence of fraud ; yet it is not upon that account only always to be reck-
oned fraudulent, or to be avoided by a purchaser for a valuable con-
sideration.'' And in Jenkins v. Kemishe or Kemis, which is to be found
in Hardress, 398, and in 1 Lev. 150, in Lavender v. Blackstone, in 2
Lev. 146, and in Garth v. IMois, 1 Keb. 486, the same doctrine is dis-
tinctly laid down; and in Style, 446, it is stated to have been said
on a trial at bar (Lord Rolle being then Chief Justice), "that a voluntary
conveyance upon consideration of natural affection hath no badge of
fraud, unless he who makes it be indebted at the time, or in treaty
for the sale of the lands ;" which case Chief Baron Gilbert adopts, and
supports by reasoning of his own, in his Law of Evidence, 235, p. 201,
in the edition of 1801. And in addition to these printed cases, Sir
Robert Eyre, then Chief Justice of C. P., according to a MS. note
formerly belonging to Mr. Justice Clive, in a case of Standon v. Charl-
wood, tried before him at the London Sittings after Trinity term, 1732,
laid it down, that a voluntary settlement, made upon marriage by Sir
Richard Anderson, was not fraudulent quia voluntary ; but the ques-
tion was. Whether it was not made with an intent to defraud ; and the
jury so found it. And with this doctrine other of the cases which were
cited by the counsel for the plaintiff may well agree, in which it is
stated, "that conveyances were decided, on evidence given at the bar,
to be fraudulent;" or, "that a jury were directed on evidence;" though
"it must be recollected, that these cases are not so strong as those I
have alluded to, as they are not inconsistent with the possibility of
juries having been directed, what ought to be their conclusion in point
of law, from the facts given in evidence, if the jury should find them
to be true ; for fraud and covin is always a question of law ; it is the
judgment of law on facts and intents. In a more modern case, where
the question was upon the stat. 13 Eliz., that of Cadogan v. Kennett,
in Cowper, 434, Lord Mansfield said, obiter, "the stat. 27 Eliz. c. 4,
does not go to voluntary conveyances, merely as being voluntary ; but
to such as are fraudulent." And in a late case, of Doe v. Routledge,
in the same book, p, 705, where the question arose on the statute now
under consideration. Lord Mansfield, in considering one point in the
case, whether the settlement there, under all its circumstances, were
fraudulent and covinous, stated, "that in the statute there was not a
word that impeached voluntary settlements, merely as being voluntary,
but as fraudulent and covinous ;" and noticed the 3d section, which
subjects parties to such fraudulent grants, who should attempt to de-
fend them, to forfeiture and imprisonment, as if such practices were
S16 DERIVATIVE TITLES (Part 2
a crime ; in which light no person making a mere voluntary settlement,
by way of provision for his family, was ever considered to stand.
This section furnishes most unquestionably a very strong argument
in favour of that construction; and had these cases not been opposed
by many others of great weight and authority, there would have been
but Httle doubt in our minds as to this construction being the right one ;
but we have to deal with a class of cases full as numerous, decided by
Judges of tlie greatest eminence, which have given this statute a differ-
ent construction, and have held that a conveyance without a valuable
consideration is by the statute made void, as fraudulent, against a sub-
sequent purchaser for such consideration. The earliest case in which
this is distinctly laid down is Woodie's Case, cited by Tanfield in Col-
ville V. Parker, Cro. Jac. 158, as far back as East, 5th of Jac. I, where
it was adjudged, "that an assignment of a lease of lands by one quasi
in jointure to his wife, he taking the profits, and afterwards selling it
without notice, was within the statute ; though not made in trust to be
revoked, nor with any clause or revocation ; because it was a voluntary
conveyance at first, and shall be intended fraudulent at the beginning."
In this case, though the person making the conveyance continued in
possession and took the profits, it will be observed that there was no
badge of fraud ; as such possession accompanied and followed the
deed; but the Judges might very well apprehend that subsequent pur-
chasers might be continually defrauded by such secret conveyances, if
they should be held good ; and that when the question was between
one, who had paid a valuable consideration for an estate, and another,
who had given nothing, it was a just presumption of law, that such
voluntary conveyance, founded only in considerations of affection and
regard, if coupled with a subsequent sale, was meant to defraud those,
who should afterwards become purchasers for a valuable considera-
tion; and that a different construction would have so narrowed the'
operation of the statute as to leave the persons meant to be protected
by it subject to almost all the mischiefs intended to be guarded against;
and it certainly is more fit, upon the whole, that a voluntary grantee
should be disappointed, than that a fair purchaser should be defrauded.
In Prodgers v. Langham, 1 vSid. 133, a conveyance made by a man in
trust for his daughter till marriage, for her maintenance, and then in
trust to raise a portion for her, was held to be a voluntary conveyance
in its origin, and void by the stat. 27 of Eliz. against purchasers for
valuable consideration; this was in the 15th of Car. II. In White v.
Hussey, Precedents in Chancery, 14, in the beginning of King Wil-
liam's reign, in the case of a conveyance, where the fraud, if any, was
only from its being voluntary, the commissioners of the great seal
were all of opinion that they might decree a conveyance fraudulent
merely from being voluntary, and that, without any trial at law. In
Gardiner v. Painter, Cas. temp. King, C. P. 65, Lord King said, it
could never be a question, whether a voluntary settlement be good
against purchasers. This was in the year 1726; and in the next year,
Ch. 8) PRIORITIES 817
in Tonkins v. Ennis, 1 Eq. Cas. Abr. 334, a voluntary settlement was
considered as being made void against a purchaser by the stat. 27 of
Eliz. And this could only have been so held from such settlement
being in point of law considered as fraudulent. In White v. Sansom,
3 Atk. 412, though Lord Hardwicke is stated to have said, that he
had heard it said in that court, that there are reasonable voluntary
conveyances, which that Court will not interfere to disturb, upon the
construction of these statutes ; yet, according to the same case, he said,
"he hardly knew an instance where a voluntary conveyance had not
been held fraudulent against a subsequent purchaser." And in Lord
Townsend v. Windham, 2 Ves. 10, he said, "on the 27th of Eliz. every
voluntary conveyance made, where afterwards there is a subsequent
conveyance made for valuable consideration; though no fraud in that
voluntary conveyance, nor the person making it at all indebted ; yet the
determinations are, that such mere voluntary conveyance is void at
law by the subsequent purchase for valuable consideration." In Roe
V. ]\Iilton, 2 Wils. 356, Lord Ch. J, Wilmot stated the question to be.
Whether there were a good and valuable consideration to support the
limitation therein to Thomas Hammerton, the father of the lessor of
the plaintiff; or whether the limitation were merely voluntary under
the Stat. 27 of Eliz., and bad against a purchaser for valuable consider-
ation ? And the Court held it good ; as the mother giving up her charge
of an annuity on the whole of the estate, and taking it on a part, was
considered as a valuable consideration. And Lord C. J. De Grey, in
Goodright v. Moses, in 2 Sir W. Black. Rep. 1019, laid it down, "that
the deed in question was only a voluntary conveyance within the
true meaning of the stat. 27th of Eliz. ; being founded only on a good,
and not on a valuable consideration; and therefore could not be set
up against a bona fide purchaser."
And the observation on this case made by the counsel for the defend-
ant, that it seemed that Lord C. J. De Grey had been misled by a case
in 2 Vern. 326, which he referred to ; and which was said not to have
been decided, and on which he was supposed to have relied ; does not
weaken the authority of the case in Blackstone; for Lord C. J. De
Grey referred to it, not to support the opinion of the Court on the
point now before us; but to shew that a lessee for years was a pur-
chaser for a valuable consideration. Lord Mansfield himself (whose
opinion in Doe v. Routledge, and whose dictum in Cadogan v. Kennett,
have been much relied on,) held in the case of Chapman v. Emery,
Cowp. 280, that a voluntary conveyance after marriage by a man on
his wife and children was void by the stat. 27th of Eliz. against a sub-
sequent mortgagee, whom he held to be a purchaser. And with re-
spect to the case of Doe v. Routledge, it may be observed that Lord
Mansfield seems to have supported his opinion by cases, which were
not considered as cases of voluntary settlements; but as cases where
the settlements had for their foundation valuable considerations ; such
Aig.Prop. — 52
818 DERIVATIVE TITLES (Part 2
was the case of Newstead and Searles, in 1 Atk. 268, which he men-
tioned by name; for Lord Hardwicke in that case stated "the question
to be, Whether the articles of the 30th of April, 1709, were for a val-
uable consideration, and binding, or ought to be considered as volun-
tary and fraudulent, with respect to subsequent creditors and purchas-
ers?" And afterwards he said, "I think the settlement no voluntary
agreement, but a binding one; the statutes of the 13th and 27th of
Eliz. that make conveyances fraudulent, are voluntary conveyances
made against purchasers for a valuable consideration, or bona fidp
creditors ; but it would be difficult to shew that such a limitation, as in
the present case, has been held fraudulent and void against subsequent
purchasers and creditors. The present is a stronger case ; for here are
reciprocal considerations both on the part of the husband and wife, by
the provisions under the articles for the second marriage."
And I believe, if it were necessary to go into the examination, it
would be found that in most, if not in all of the cases cited by the de-
fendant, there were reciprocal considerations ; some benefit acquired
by the persons making the settlement, which might fall under the de-
nomination of a valuable consideration ; though perhaps other per?ons
derived a benefit from the settlement, who were not the principal ob-
jects of it. As in Jenkins v. Keymys, where the consideration of a
marriage and a marriage portion was held to run through all the es-
tates raised by the settlement on the marriage ; though the marriage was
not concerned in them. And it must be further recollected, with re-
spect to Doe V. Rotitledge, that upon the strength of the voluntary set-
tlement in that case a marriage was had ; which was noticed by Lord
Mansfield. And according to the case of Prodgers v. Langham, 1 Sid.
133, a voluntary conveyance, fraudulent against a subsequent purchas-
er, was held to be made good by a subsequent marriage. And it will be
further recollected, that in Doe v. Routledge there was no bona fide
purchaser. Subsequently to the case of Chapman v. Emery, the cases
of Evelyn v. Templar, 2 Bro, Chan. Cas. 148, and Doe ex dem. Bothell
v. Martyr, 1 Bos. & Pull. New Reports, 332, have been determined ; in
the last of which it was laid down, "that it cannot now be held that a
prior voluntary conveyance shall defeat a conveyance to a purchaser
for a valuable consideration, without overturning the settled and de-
cided law." And in the first of them (i. e.) Evelyn v. Templar, it was
said by Lord Thurlow, that so many estates stand upon the rule, that
it cannot be shaken. And so late as Mich, term, 1804, in the case of
Doe d. Lewis v. Hopkins, the Court of Exchequer held ; where after
marriage a man covenanted to stand seised of an estate to the use of
himself for hfe, remainder to the use of his wife for life, remainder
to the heirs of the body of the wife begotten by the husband ; that such
settlement was void, as being voluntary against a lessee of the husband
for 31 years ; the son of the settlor claiming the estate after his father's
death against the lessee. To the authority of these cases may be added
the case of Nunn v. Willsmore, 8 Term Rep. 528, where Lord Kenyon
Ch. 8) PRIORITIES 819
said, "if this deed were either actually fraudulent, or voluntary, from
whence the law infers fraud, the consequence insisted on by the plain-
tiff would follow ; and I admit that if this deed were a voluntary deed,
the law says it is fraudulent." Thus stand the authorities on both
sides of the question ; and the weight, number, and uniformity of those
which establish the point contended for on behalf of the plaintiff", do
in our opinion very much preponderate; and as many estates depend
upon the rule, it ought not, we conceive, to be shaken. It appears from
the MS. note I have cited, formerly belonging to Mr. Just. Clive, that
Mr, Horsman, in the year 1713, advised the making a mortgage of the
estate settled in strict settlement by Sir R. Anderson after his mar-
riage ; thinking it voluntary and fraudulent as against a purchaser, and
the like advice as that which he gave nearly a century ago, probably
had been given before ; and that it has been given since, and acted on,
we cannot doubt ; as Lord Thurlow was not likely to have expressed
himself, as he did in Evelyn v. Templar, unless he had known that
such had frequently been the case. Feeling ourselves pressed with
these authorities and considerations, we think ourselves bound to give
judgment for the plaintiff. Much property has, no doubt, been pur-
chased, and many conveyances settled upon the ground of its having
been so repeatedly held, that a voluntary conveyance is fraudulent, as
such, within the stat. 27th of Eliz. ; and it is no new thing for the
Court to hold itself concluded in matters respecting real property by
former decision upon questions, in respect of which, if it were res
integra, they probably would have come to very different conclusions.
And if the adhering to such determinations is likely to be attended with
inconvenience, it is a matter fit to be remedied by the Legislature,
which is able to prevent the mischief in future, and to obviate all the
inconvenient consequences which are likely to result from it, as to
purchases already made. And we cannot but say, as at present advised,
and considering the construction put on the statute, that it would have
been better if the statute had avoided conveyances only against pur-
chasers for a valuable consideration without notice of the prior convey-
ance. Our opinion being with the plaintiff, the consequence is, that
there must either be a new trial, or an issue between the plaintiff and
the defendant Goom to try the validity of his lease.^
3 A., heinp .seised in fee, covenanted to stand seised to use of himself for
life, remainder ultimately to use of B. in fee. A. died, leaving a will hy which
the same premises were devised in fee to C. who ccmveyed them to X., a pur-
chaser for value. In ejectment by B. against X., the defense was on the stat-
ute 27 Eliz. Held, the statute did not avoid the deed to B. Doe d. Newman
V. Rnsham, 17 Q. 15. 72:? (1852).
In Tarry v. Carwarden. 2 Dick. 544 (177S), it was held that equity at the
suit of a" purchaser for value, would decree a specific performance of a con-
tract of sale made after a voluntary conveyance of the same premises. But
where the suit for specific performance is by the vendor, held othenvise in
Smith V. Garland. 2 Mer. 122 (1817). See, also. Clarke v. Willott, L. R. 7 Exch.
313 (1872), where the vendee, who !iad contracted to purchase the premises aft-
er the vendor had made a voluntary conveyance thereof, sued to recover back
deposits which he had made.
820 DERIVATIVE TITLES (Part 2
COOKE V. KELL.
(Court of Appeals of Maryland, 1858. 13 lid. 469.)
Ejectment for a lot of ground, forty-one feet front and one hundred
and fifty-nine deep, on York street, in the city of Baltimore, being
lot No. 17, and part of "Todd's Range," brought on the 29th of Au-
gust, 1850, by the appellant against the appellees. Plea, Non cul.
The plaintiff, on the whole evidence, asked an instruction to the
jury in substance as follows:
That by the deed of the 14th of May, 1792, Joseph Bankson con-
veyed to grantees therein named, the property therein described, in fee,
subject to the Hfe estate in and to the same, of the grantor and his
wife and of the survivor of them, and if the jury find from the evi-
dence, that said Joseph Bankson died in 1806, and his widow in 1843,
that the right of action to recover possession of said lot of ground,
thereupon first accrued to the grantees in said deed named, and their
representatives, and that the deed of 1795, from said Bankson to Dif-
fenderffer, was not sufficient to avoid said conveyance of 1792, al-
though they may find, that the said deed of 1795, was for full value,
and that of 1792, voluntary, and for no other consideration than that
stated therein, provided the jury shall further find, that said last men-
tioned deed was duly acknowledged and recorded in the records of
Baltimore county court, on the 14th of May, 1792.
The defendants, on the same evidence, asked two instructions to
the jury, in substance as follows:
1st. If the jury find, that the deed from Joseph Bankson, of the
14th of May, 1792, was a voluntary conveyance, and for no other con-
sideration than that stated in it, that then the sale by him in 1795, of
the same property to Diffenderffer, and the execution of the deed
therefor to Diffenderft'er, of the 17th of February, 1795, if the jury
shall find such sale and deed, and that the same was for a valuable
consideration, and -without actual notice by Diffenderffer of said deed
of the 14th of May, 1792, is presumptive evidence, that said deed of
the 14th of May, 1792, was fraudulent and void.
2nd. If the jury shall find, that the said deed of the 14th of May,
1792, was only for the consideration therein stated, and shall also
find that the grantor, Bankson, had antecedently thereto conveyed
away all his other property, and was at the time of the execution of
said deed of the 14th of May, 1792, the owner and possessor of no
other property, and if they shall find, that his wife, who had a life
estate under that deed, joined by a relinquishment of dower in the deed
to Diffenderffer, of the 17th of February, 1795, with knowledge that
the same conveyed the title to the grantee, and that she lived till 1843,
and that the three children, the grantees in said deed of 1792, were
then infants and unable to maintain themselves, and that said Bank-
son never had any property afterwards, other than the purchase money
Ch. 8) PRIORITIES 821
received from Diffenderffer, from the said sale to him of said lot, or
what he may have procured by means thereof, and that neither said
Bankson, nor his wife, or any one else, ever communicated to Diffen-
derffer the existence of said deed of 1792, and that neither he (Diffen-
derffer) nor Thomas Kell, under whom the defendants claim, ever
had actual knowledge of the same until long after the deed to said Kell
by Henry Dorsey, of 1833, offered in evidence by the defendants, (ii
the jury find such deed, and that the same was for full value,) and
the jury shall also find, that said Diffenderffer, and those claiming un-
der him, held said property from 1795, to the present time, adversarily
under said deed to Diffenderffer of 1795, and that said Cooke never
did set up title to the same under the said deed of 1792, that then the
jury may find that said deed of the 14th of May, 1792, was not bona
fide but fraudulent and void.
The court (Frick, J.) refused the plaintiff's prayer, and granted those
of the defendant. To this ruling the plaintiff excepted, and the ver-
dict and judgment being in favor of the defendant, appealed.
Le Grand, C. J. This case has been discussed at the bar with great
fullness of illustration, and the views of the respective counsel, pre-
sented with clearness and cogency of reasoning.
To our minds — looking to past and distinctly recognized adjudica-
tions— the questions we are called upon to decide are confined within
a narrow space. The action is one of ejectment, and the principal
facts of the case may be thus stated :
On the 14th day of May, 1792, a certain Joseph Bankson, by deed,
conveyed (reserving to himself and wife, and to the survivor of them,
a life estate therein) a certain lot of ground and the improvements
thereon, to his three children, Harriet Giles Bankson, Joseph Bank-
son and Elizabeth Bankson, their heirs and assigns forever, as tenants
in common. The consideration for this conveyance was natural love
and affection, and the nominal sum of five shillings. On the 17th day
of February, 1795, the aforesaid Joseph Bankson conveyed the same
property to Daniel Diffenderffer, for a valuable consideration, the wife
of Bankson releasing her dower. Diffenderffer immediately took pos-
session, and remained in it until his death in 1809 or 1810, devising
the property to his wife, who continued in it until her death, which
occurred in 1832 or 1833, after which, it was sold by a trustee ap-
pointed for the purpose, and the title of Diffenderffer and wife, by
legally executed and acknowledged mesne conveyances, and lastly, by
a deed from Henry Dorsey, became vested in Thomas Kell, who paid
for it $7000, and who remained in possession of it until his death in
1846. The lessor of the plaintiff claims title under the voluntary deed
of 1792, and the defendants under the deed of 1795, for a valuable
consideration to Diffenderffer, and through the intermediate convey-
ances down to Thomas Kell, and through and from him down to
themselves. The deeds of 1792 and 1795, were both placed on record
in the proper office on the days of their dates. The widow of Joseph
822 DERIVATIVE TITLES (Part 2
Bankson survived her husband until 1843. Elizabeth Cankson, (who
intermarried with a certain John S. Cooke, since dead,) is the only
child of the grantor, being a grantee in the deed of 1792, now living,
the other two children having died without leaving issue. There was
testimony given on the part of the defendants, for the purpose of
showing that the elder Bankson was apparently in needy circumstances,
and that, at the time of the execution of the deed in 1795 to Diffen-
derffer, it did not appear, from the public records, he had any other
property than that mentioned in that conveyance, and also, that until
a very short time before the institution of this action, no claim on
the part of the grantees in the deed of 1792, was heard of by the wit-
nesses. This is substantially the evidence in the cause. The plaintiff
offered one prayer to the court, which was rejected, and tlie defend-
ants two, which were granted.
The defendants contend, that under a proper construction of the
statute of 27th Elizabeth, entitled, "An act against covinous and fraud-
ulent conveyances," and the circumstances of this case, the deed of
1792, under which the lessor of the plaintiff claims title, is void and
of no avail as against the defendants, who claim under the deed of
1795, which was for valuable consideration; that as to them, it is void
and fraudulent, there being no evidence of notice of the deed of 1792,
and that it was executed with a fraudulent intent in fact.
On the other hand the plaintiff insists, that neither in law, nor in
fact, was there any fraud in the execution of the deed of 1792, and
tliat it is all sufficient to entitle her to recover in this action.
The first inquiry for our determination is: \Vhat is the received
and binding interpretation of the statute of 27th Elizabeth, ch. 4, in
this State? On this, principally depends, the decision of this case.
Until the year 1807, when was decided the case of Doe v. Manning, 9
East, 59, there was much contrariety of opinion in England — and
doubtless, also in this country — as to the true meaning of 'the statute;
since then, however, the opinion of Lord Ellenborough, has, in Eng-
land, put to rest all judicial doubts on the subject. Were that o[)in-
ion law in this State, there would be an end to the plaintift"'s title un-
der the voluntary deed of 1792. But it is not the law. In the case
of Warren and Others' Lessee v. Richardson and wife et al, decided
in the year 1837, the Court of Appeals relied upon and adopted the
decision of the Supreme Court of the United States, in the case of
Cathcart v. Robinson, 5 Pet. 280, 8 L. Ed. 120, and in the case of the
Mayor and City Council of Balto. v. Williams, 6 Md. 235, this court
again construed the statute of 27th Elizabeth, and again adopted the
construction placed upon it by the Supreme Court. Fully concurring
in the correctness of those decisions, we are relieved from all inquiry
as to what may be the law elsewhere. The principal difference be-
tween the doctrine of Doe v. Manning, and that of Cathcart v. Robin-
son, consists in this: By the former, and mere execution of a volun-
tary deed raises the presumption — which cannot be rebutted — of fraud
Ch. 8) PRIORITIES 823
as against subsequent purchasers for value, whilst by the other, the
rule is, in the language of Chief Justice Marshall: "A subsequent sale
without notice, by a person who had made a settlement not on valua-
ble consideration, was presumptive evidence of fraud, which threw
on those claiming under such settlement, the burthen of proving that
it was made bona fide." This quotation from the opinion of Chief
Justice Marshall, contains, to the fullest extent contended for by the^
counsel of the defendants, their interpretation of the statute. It does
not assert the doctrine, in any sense, that a voluntary deed is void
simply because it is voluntary; it merely — as against subsequent
purchasers for value — makes it presumptive evidence of fraud, where
there has been no notice to subsequent purchasers, and casts, in such
a case, upon those claiming under it, the burthen of disproving the
presumption. When the subsequent purchaser has notice, no such pre-
sumption arises, and as was said in 6 Md. 265: "To hold that, with
notice to the purchaser, the settlement is subject to the presumption
of fraud, simply in consequence of the subsequent conveyance for val-
ue, we think is not required by the language of the statute, and is in-
consistent with correct moral feeling."
This being so, the question then is: Had Diffenderffer notice of the
voluntary deed of 1792? There is no evidence in the record showing
that he had, in point of fact, notice of its existence ; on that head there
is perfect silence. Whether or not, then, he had such notice as will
bind him, and those claiming under him, must depend upon the ef-
fect of our registration laws. The deed of 1792 was placed on rec-
ord the day of its execution, and, of course, open to inspection in 1795,
when the second deed was made.
In the case of Warren v. Richardson, already referred to, decided
by the late Court of Appeals, and reported in 6 Md. 272, the Reporter,
in a note, has drawn the inference from the decision of the court upon
the prayers offered, and from the facts appearing in the record of
that case, and from the fact, that the Court of Appeals, upon the
reversal of the judgment awarded a procedendo, "that the notice which
will bind the subsequent purchaser, need not be actual, but that con-
structive notice furnished by the recording of the voluntary deed un-
der our registry laws, is sufficient." In this, we think, he was cor-
rect. There was no evidence, that the subsequent purchasers in that
case had any actual notice of the prior voluntary deed.- If, then, the
fact of the registry of the deed did not affect them with notice, we
are unable to perceive for what purpose a new trial was directed un-
der a procedendo? We think the court could not otherwise than
have decided, that the registry of the deed affected the subsequent
purchasers with notice, and thereby shifted the onus upon them to
show, if they could, that the deed was fraudulent in fact, and for the
purpose of enabling them to do this, ordered a new trial. If the regis-
try of the deed did not have, in the opinion of the court, this effect,
then, the defendants stood in the attitude of subsequent purchasers
824 DERIVATIVE TITLES (Part 2
for value, without notice, and the question of law raised by the pray-
ers, became a mere abstract proposition, the decision of which, either
way, would have been of no avail to the voluntary grantees under the
deed.
But, be this as it may, the interpretation we have sanctioned is fully
sustained by express decisions. In the case of Beal v. Warren and
another, 2 Gray, 450, the Supreme Court of Massachusetts, when speak-
ing of a voluntary deed, under the statute of 27th Elizabeth, say : "No
question is made whether the second grantee had actual notice of the
first conveyance, though, from the relation of the parties, and from
the fact, that there was no attempt to show actual fraud, such notice
may reasonably be inferred. Nor would this be, in the absence of
fraud, material ; for the registration of the conveyance would be con-
structive notice, and sufficient notice, to all subsequent purchasers."
In the case of O'Neill v. Cole, 4 Md. 123, the court, referring to a
deed, executed by a female, a short time before her marriage, and
which was contested by her surviving husband after her death, remark
that, "If the appellant, (the husband,) had reason to suppose that his
late wife, before their marriage, had been imposed upon, or induced
to execute a conveyance of which she did not know the contents and
meaning, it was quite proper for him to resist the attempt of the ap-
pellee to possess himself of the property. In this we think he has
failed; and if, failing in this, he seeks to make out a case of fraud
in law upon his marital rights, there is no reason why he should not
be bound by the notice, which our recording acts impute to others
when seeking to vacate conveyances, or when claiming against tliem."
In the same case, the Chancellor had previously said, 3 Md. Ch. 174,
that, "It is the settled American doctrine, that the registration of a
conveyance, operates as constructive notice upon all subsequent pur-
chasers of any estate legal or equitable in the same property." And
as was said by a majority of the court, in the case of Williams et al.
V. Banks et al., 11 Md. 250: "It seems to us a contradiction in terms,
to say, that a person is defrauded by an instrument, when he deals
with a perfect knowledge of its existence and of its effect. If our
registration laws have any operation, they certainly do, as they were
designed, give notice to all the world, so that there may be no deceit
practiced upon any one. If registration laws do not give notice to
the community which will bind it, then they are of no use whatever,
for, witliout registration, deeds would be binding inter partes." This
language was applied as well to deeds under the 13th, as to those un-
der the 27th of Elizabeth.
These authorities are all sufficient, in this state at least, to show that
registration is constructive notice, and all sufficient to bind subsequent
purchasers in the absence of actual fraud.
The prayer of the plaintiff was defective, only in the omission, to
require the jury to find the existence of the deed of 1792.
The first prayer of the defendants was erroneous, in ignoring the
Ch. 8) PRIORITIES 825
effect of the registration, and requiring actual notice. We do not think
the facts, if found, enumerated in their second prayer, sufficient to have
authorized the jury to find the deed of 1792 was not bona fide, but
fraudulent and void. All those facts might be found, and, neverthe-
less, the deed might be bona fide and valid. There must be some point-
ed evidence to establish fraud in fact. We affirm the court below in
its rejection of the plaintiff's prayer, and reverse its decision granting
the prayers of the defendants.
If left to conjecture, we may imagine, that the case was a hard one
on Diffenderffer, as it was undoubtedly on Kell, who paid a full price ;
but it may, also, on the other side, be supposed, that Diffenderffer had
actual as well as constructive notice of the deed of 1792, when he
accepted that of 1795, but, that relying upon what may be very rea-
sonably supposed, at that time, to have been the opinion of the profes-
sion, as to the true construction of the statute of Elizabeth, he be-
lieved it competent to the elder Bankson to give him a good title. But
with surmises we have nothing to do. Unless the defendants can
establish fraud in fact, the registration of the deed of 1792, concludes
them in this action.
Judgment reversed and procedendo awarded.*
4 The matter of conveyances in fraud of creditors is not considered here. It
seems more appropriately considered in the course on Bankruptcy.
PuRCHASEK FOR VALUE. — It is Well Settled that to bring a conveyance under
the protection of the statute of 27 Eliz. c. 4, it is nece.ssary that it be made
upon a valuable consideration. Upton v. Basset, Cro. Eliz. 445 (1596). The
assumption of liability on the covenants in a lease makes one a purchaser for
value, at least under the saving clause. Price v. Jenkins, 5 Ch. D. 619 (1877).
But see Lee v. Mathews, 6 L. R. Ir. 530 (ISSO). Cf. Townsend v. Toker, L. R.
1 Ch. 446 (1S66) ; Kosher v. Williams, L. R. 20 Eq. 210 (1875). But a consid-
eration which is merely nominal or colorable, such as "5s. and other valuable
considerations," is not sufficient. Walker v. Burrows. 1 Atk. 94 (1745). See,
also, Shurmur v. Sedgwick, 24 Ch. D. 597 (1883). The payment of $50 for con-
veying an estate worth .$25,000 does not make one a purchaser for value. Ful-
lenwider v. Roberts, 20 N. C. 420 (1839). But see Boyer v. Tucker, 70 Mo. 457
(1879).
Marriage is. a valuable consideration. Prodgers v. Laughan, 1. Sid. 133 (1663) ;
Sterry v. Arden, 1 Johns. Ch. (N. Y.) 62, 261 (1814). But only those coming
within the marriage consideration are protected. Johnson v. Legard, 6 M. &
S. 60 (1817) ; Price v. Jenkins, 4 Ch. D. 483 (1876) ; IMackie v. Herbertson, 9
App. Cas. 303 (1884) ; In re Cameron & Wells, 37 Ch. D. 32 (1887) ; De Mestre
v. West, [1891] A. C. 264. But see Newstead v. Searles, 1 Atk, 265 (1737) ;
Clarke v. Wright, 6 H. & N. 849 (1861) ; Gale v. Gale, 6 Ch. D. 144 (1877) ; Jen-
kins V. Keymes. 1 Lev. 237 (1668) ; Clayton v. Wilton, 6 M. & S. 67 (1817). It
has been held that one taking a conveyance to secure antecedent debts is not
a purchaser for value. Manhattan Co. v. Evertson, 6 Paige (N. Y.) 457 (1837).
See, also, McKay v. Gilliam, 65 N. C. 130 (1871). So one who has given a mort-
gage to secure the purchase price, but has in fact paid nothing, is not protect-
ed. Alden v. Trubee, 44 Conn. 455 (1877). A conveyance voidable when en-
tered into for want of consideration may he made valid by matter ex post fac-
to. Prodgers v. Laughan and Sterry v. Arden, supra.
A conveyance to charitable uses has never been regarded as within the stat-
ute. Ramsay v. Gilchrist, [1892] L. R. A. C. 412.
826 ^ DERIVATIVE TITLES (Part 2
SECTION 2.— RECORDING
I. In England
ST. 7 ANNE, c. 20 (170S).
Whereas by the different and secret ways of conveying lands, teine-
menis, and hereditaments, such as are ill disposed have it in their
power to commit frauds, and frequently do so, by means whereof sev-
eral persons (who through many years industry in their trades and
employments, and by great frugality, have been enabled to purchase
lands, or to lend moneys on land security) have been undone in their
purchases and mortgages, by prior and secret conveyances, and fraud-
ulent encumbrances, and not only themselves, but their whole fam-
ilies thereby utterly ruined : for remedy whereof, may it please your
most excellent Majesty (at the humble request of the justices of the
peace, gentlemen, and freeholders of the county of Middlesex) that it
may be enacted, and be it enacted by the Queen's most excellent Ma-
jesty, by and with the advice and consent of the Lords spiritual and
temporal, and Commons in this present Parliament assembled, and
by the authority of the same, That a memorial of all deeds and con-
veyances, which from and after the twenty-ninth day of September,
in the year of our Lord one thousand seven hundred and nine, shall
be made and executed, and of all wills and devises in writing made
or to be made and published, where the devisor or testatrix shall die
after the said twenty-ninth day of September, of or concerning, and
whereby any honors, manors, lands, tenements, or hereditaments in
the said county, may be any way affected in law or equity, may be reg-
istered in such manner as is hereinafter directed ; and that every such
deed or conveyance that shall at any time after the said twenty-ninth
day of September, be made and executed, shall be adjudged fraudu-
lent and void against any subsequent purchaser or mortgagee for
valuable consideration, unless such memorial thereof be registered
as by this Act is directed, before the registering of the memorial of
the deed or conveyance under which such subseauent purchaser or
mortgagee shall claim ; and that every such devise by will shall be ad-
judged fraudulent and void against any subsequent purchaser or mort-
gagee for valuable consideration; unless a memorial of such will be
registered at such times and in manner as is hereinafter directed.
XVI I. Provided, always, and be it further enacted, That this Act
shall not extend to any copyhold estates, or to. any leases at a rack
rent, or to any lease not exceeding one and twenty years, where the
actual possession and occupation goeth along with the lease, or to any
Ch. 8) PRIORITIES 827
of the chambers in Serjeants Inn, the inns of court, or inns of Chan-
cery ; anything in this Act contained to the contrary thereof in any
wise notvvitlistanding.
BEDFORD V. BACCHUS.
(High Court of Chancery, 1730. 2 Eq. Cas. Ab. G15, pi. 12.)
A. lent money on a mortgage of lands in Middlesex, and the mort-
gage was duly registered. Afterwards B. lent money on the same
security, and his mortgage was registered. Then A. advanced a farther
sum upon the same lands, without notice of the second mortgage.
And it was held by Loud Chancellor King that the registry of the
second mortgage was not constructive notice to the first mortgagee
before his advancement of the latter sum, for tho' the statute avoids
deeds not registered as against purchasers, yet it gives no greater
efficacy to deeds that are registered than they had before; and the
constant rule of equity is, that if a first mortgagee lends a farther
sum of money without notice of a second mortgage, his whole money
shall be paid in the first place."
MORECOCK V. DICKINS et at.
(High Court of Chancery, 17G8. 2 Amb. C7S.)
On 16th June, 1749, Henry Fandal leased a piece of ground, and
buildings, at Wapping, for 51 years, to the defendant George Wilson.
On 23d February following, George Wilson assigns the premises to
the plaintifif Morecock, for the remainder of the term, to secure the
sum of £800. and interest.
In 1751, Morecock went abroad, and left the mortgage deed in the
hands of Wilson, having first signed a receipt on the back of it, by
which it appeared that Morecock had been repaid the principal and
interest: and this transaction was stated in the bill to have passed at
the request of Wilson, who apprehended he might want money to
carry on trade in Morecock's absence; and promised, that if he bor-
rowed money thereon, he would repay it, and restore the mortgage to
Morecock, clear of incumbrances.
In 1755, Morecock returned to England, and Wilson delivered back
the mortgage to him, without having borrowed any money upon it;
where it remained till 1760, when he again trusted Wilson with the
mortgage deed and receipt, with a view, as stated in the bill, to enable
Wilson to borrow a large sum of money upon security of the prem-
ises, out of which Morecock was to be paid.
In 1763, Wilson mortgaged the premises to John Athinson, for £300.
5 So also in Bushell v. Bnshell, 1 Sch. & Lef. 90 (1803).
828 DERIVATIVE TITLES (Part 2
and being pressed by Athinson for payment of the money, prevailed
on jMoreccck to sign a writing, by which he agreed to give Athinson
priority of his demand.
It did not appear in the cause, whether the original lease was ever
out of Wilson's custody; or whether it was delivered to Morecock at
the time of the mortgage, and sent back to Wilson, with the mortgage
deed; but it appeared to be in Wilson's hands in 1765, for on 24th
January, 1765, Wilson surrendered up the lease, and took a new
lease for 71 years.
On the 11th February, 1765, Morecock and Wilson settled their ac-
counts, and there being a balance of i2065. 5s. due to Morecock, it
was agreed, that the new lease should stand as a security for £800.
and interest, at all events : and Wilson gave a bond and judgment for
the remainder of the balance, to be paid by instalments ; but in case
Wilson should neglect to make good any of the payments, it was
agreed that Wilson should give Morecock a security for the same upon
the premises:
This deed was registered within a few days afterwards.
On 6th April, 1765, Wilson mortgaged the premises to defendant
Dickins, for £800. and interest; and delivered to him the lease itself.
Dickins had no notice of plaintiff's security at the time he took the
mortgage, but being afterwards informed of it , on 15th February 1766,
gave Morecock a notice in writing, that he would pay him £1000. on
the 25th of March following, or as soon after as an assignment of Wil-
son's lease could be prepared, according to the agreement of the 11th
February, 1765; and at the same time informed Morecock of the
mortgage assignment to himself of the 6th April, 1765.
Wilson soon after becoming bankrupt, nothing was done in conse-
quence of the notice.
Bill by Morecock, inter alia, to be paid the £800. agreed to be se-
cured on the premises, at all events, prior to the defendant Dickins'
mortgage.
Bill by Dickins, to be paid his mortgage money, or to foreclose.
The question respecting this matter was. Whether Dickins, though
he had not actual notice of Morecock's security at the time he took
the mortgage, should be affected by a constructive notice, arising from
the circumstance of the deed being registered at the time ?
It was admitted by the counsel, for Morecock, that Dickins having
got the legal interest would be entitled to priority, unless he could
be affected by notice. That there was no evidence of actual notice.
But it was insisted that the registration was notice of itself. That
to give the Register Act its proper and intended effect, the act of
registration ought to operate as notice; and it was compared to the
case of judgments; that which is first docketed shall have priority.
On the other side, it was argued for defendant Dickins, That the
Registry Act was made for one single purpose, to give preference to
a purchase deed registered, before a prior deed not registered; but
Ch. 8) PRIORITIES 829
the Act gives no greater efficacy to deeds which are registered than
they had before, and the case of Bedford v. Bacchus, 2 Eq. Ca. Abr.
615, 26th November, 1730, was cited for that purpose; where a
first mortgagee of lands in Middlesex having registered his mortgage,
lent a further sum, without actual notice of a second mortgage, which
had been registered. Lord King, Chancellor, was of opinion. That
he ought not to be affected by such constructive notice, but that
the rule of equity took place, and the first mortgagee was entitled
to be paid his whole money before the second mortgagee. That in
the present case, Dickins having got the legal interest, was entitled
to be paid before a prior equitable incumbrancer, unless he was af-
fected by notice. That here was no actual notice, and the regis-
tration was not constructive notice according to the above determi-
nation.
Lord Camden, Chancellor. Q. Whether registration is presump-
tive evidence to all mankind?
If this was a new point, it might admit of difficulty; but the de-
termination in Bedford v. Bacchus seems to have settled it, and it
would be mischievous to disturb it. The act provides for one single case
only, that is, to make unregistered deeds void against registered deeds ;
but there is no provision by the Act, in a case where all the deeds
are registered. And yet it becomes a serious question. Whether a
Court of Equity should not say, that in all cases of registry, which
is a public depository for deeds, and to which any person may resort,
a subsequent purchaser ought not to search, or be bound by notice of
the registry, as he would of a decree in equity, or judgment at law?
It is a point in which a great deal of property is concerned, and
is a matter of consequence. Much property has been settled, and
conveyances have proceeded upon the ground of that determination.
In the case of Vandebendy, in the House of Lords, the doctrine
about dower prevailed, because it had been practised in a course
of conveyance. A thousand neglects to search have been occasioned
by that determination, and therefore I cannot take upon me to al-
ter it. If it was a new case, I should have my doubts ; but the
point is closed by that determination, which has been acquiesced
in ever since.
LE NEVE V. LE NEVE.
(Court of Cbancery, 1747. 1 Aiiib. 436.)
Lord HardwickE, Chancellor.® The bill was brought by the plain-
tiffs, Peter Le Neve and Hugh Pigott, and Elizabeth his wife, late
Elizabeth Le Neve, as the only surviving children of the defendant
Edward Le Neve, by Henrietta his late wife.
« Portions of the opinion are omitted.
830 DERIVATIVE TITLES (Part 2
The end of the bill in general is, to have the execution of trust of
leasehold estates settled upon the late wife of Edward Le Neve, and
the issue of that marriage, by articles previous to the marriage, dated
1st July, 1718; and that the conveyances made by the defendant Ed-
ward L,e Neve, and the defendant Mary his now wife, to trustees,
may be set aside, and delivered up, being made after notice of the ar-
ticles of the 1st of July, 1718, or of the other conveyances made in
pursuance thereof ; and to have the leasehold exonerated and disin-
cumbered.
The facts are, that in 1718, the defendant, Edward Le Neve, in-
termarried with his first wife Henrietta Le Neve, who had a consid-
erable fortune; and articles were executed previous to the marriage,
dated the 1st July, 1718, whereby the father of Edward, in con-
sideration of Henrietta's fortune, &c., covenanted with trustees, to
convey to them several estates, and some leasehold amongst the rest,
near Soho Square in the county of Middlesex; to permit Edward
Le Neve, the younger, to receive the rents and profits during his own
life, and after his death, to pay to Henrietta £250. a year, in case she
survived Edward; and after the decease of Edward and Henrietta,
then the said estates should remain to their issue in such manner as
Edward the younger should, by will or otherwise, appoint; and for
want of such issue, to the use of Edward Le Neve the father, and his
heirs.
The 16th June, 1719, a settlement was made in pursuance of the
articles.
The marriage took effect; and Edward and Henrietta had issue,
plaintiflfs Peter and Elizabeth. Henrietta died July, 1740, leaving no
other children.
Twenty-five years after the first marriage, Edward Le Neve en-
tered into a treaty of marriage with the defendant Mary, and by
articles dated the 16th of November, 1743, previous to the mar-
riage, Edward, in consideration of such marriage, covenanted with
the trustees, the defendants Dandridge and Norton, to convey these
very leasehold estates near Soho Square to them, their executors,
&c., within three months after the marriage, in trust to pay to de-
fendant Mary, out of the rents of these messuages, in case she survived
him, a clear annuity of £150. for her life, for her jointure, &c.
The marriage took effect, and three months after, on the 20th Jan-
uary, 1743, a settlement was made pursuant to the articles.
The settled estate, being houses in Middlesex, was subject to the
Register Act, the 7th Q. Anne, cap. 20.
The second articles and settlement were registered, but not the first.
Edward has mortgaged the houses likewise.
The bill is brought, in order to set the second articles and settle-
ment out of the way, and that they may be postponed to the first ar-
ticles and settlement; upon this equity. That the defendant Mary
Le Neve had notice of them.
Ch. 8) PRIORITIES 831
The counsel for the plaintiffs admit, That the registering of the sec-
ond articles and settlement has, in point of law, affected the leasehold
estates, as the 7th O. Anne gives the legal estate where the effect of
the registering has placed it.
The question is, Whether equity will enable the children of the
first marriage to get the better of the defendant's legal right? And
this will depend upon the question of notice :
1st, Whether it appears sufficiently, that Joseph Norton was attor-
ney for the defendant I\Iary in the transaction of her marriage?
2dly, Whether Norton himself had sufficient notice of tlie first
articles and settlement?
3dly, Whether that will affect Mary as a purchaser, and postpone
her articles and settlement, notwithstanding the Register Act? * * * ^
The third and last general question is. Whether the notice to Nor-
ton will affect the defendant Mary as a purchaser, and postpone her
articles and settlement, notwithstanding the Register Act?
This depends on two things :
1st. Whether any notice whatsoever would be sufficient to take from
the defendant the benefit of the Register Act?
2d. Whether personal notice to the defendant Mary is requisite to
postpone her? or, Whether notice to her agent is sufficient to do it
likewise?
As to the 1st, it is a question of great extent and consequence.
The preamble of the statute of the '7th Q. Anne, ch. 20, is in sub-
stance, "Whereas, by the different and secret ways of conveying lands,
&c., such as are ill-disposed have it in their power to commit frauds,
and frequently do so, by means whereof several persons have been
undone in their purchases and mortgages, by prior and secret convey-
ances, and fraudulent incumbrances."
Then comes the enacting clause, "That a memorial of all deeds
and conveyances which, after the 27th of September, 1709, shall be
made and executed, and of all wills and devises in writing, whereby
any honours, manors, lands, &c., in the county of Middlesex, may be
any way affected in law or equity, may be registered in such manner
as is after directed : and that every such deed or conveyance that shall
at any time after, &c., be made and executed, shall be adjudged fraud-
ulent and void against any subsequent purchaser or mortgagee for
valuable consideration, unless such memorial be registered as by this
act is directed, before the registering of the memorial of the deed or
conveyance under which such subsequent purchaser or mortgagee shall
claim, &c."
What appears by the preamble to be the intention of the act?
Plainly, to secure subsequent purchasers and mortgagees against
prior secret conveyances and fraudulent incumbrances.
Where a person had no notice of a prior conveyance, there the reg-
7 The court decided the first two questions in tlie aflirmative.
832 DERIVATIVE TITLES (Part 2
isterin^ his subsequent conveyance shall prevail against the prior ; but
if he had notice of a prior conveyance, then that was not a secret con-
veyance by which he could be prejudiced.
The enacting clause says, that every such deed shall be void against
any subsequent purchaser or mortgagee, unless the memorial thereof
be registered, &c. ; that is, it gives him the legal estate ; but it does not
say, that such subsequent purchaser is not left open to any equity which
a prior purchaser or incumbrancer may have ; for he can be in no dan-
ger when he knows of another incumbrance, because he might then
have stopped his hand from proceeding.
This case has been very properly compared to cases on the 2'7th H.
8, for inrollment of bargains and sales.
That act is formed pretty much in the same manner with this.
The words of tlie enacting clause: "That from, &c., no manors,
lands, tenements, &c., shall pass, alter, or change, 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 tliereof,
by reason only of any bargain and sale thereof, except the same bar-
gain, and sale be by writing indented, sealed, and inroUed, in one of
the King's Courts of Records at Westminster, or else within the same
county, &c., where the same manors, &c., so bargained and sold do lie,
&c. ; and the same inrollment to be had and made within six months
next after the date of the same writings indented, &c. Nor any use
shall pass thereof from one to another."
What is the meaning of this?
Before the mal<:ing of the act, any paper writing passed the use from
the bargainor to the bargainee, whereby great mischief arose ; for it
entangled the purchasers, and injured the Crown, and was contrary
to the rule of law, which required notoriety in purchases by feoffment
and livery, &c.
But what has been the construction of this statute ever since ? Why,
if a subsequent bargainee has notice of a prior, he is equally affected
with that notice as if the prior purchase had been a conveyance by
feoffment and livery, &c.
The operation of both acts of Parliament and construction of them
is the same ; and it would be a most mischievous thing, if a person tak-
ing that advantage of the legal form appointed by an act of Parliament,
might under that protect himself against a person who had a prior
equity of which he had notice.
The cases put by the Attorney-General are very material :
Suppose (he said) the defendant Mary had by letter of attorney em-
powered Norton to transact the affair with her husband, and he by
means of this agency comes to the knowledge of the prior articles and
settlement, would not this affect the principal ? Or suppose a purchas-
er of lands in a register county orders his attorney to register it, and he
neglects to do it, and then buys the estate himself, and registers his
own conveyance, shall this be allowed to prevail ?
Ch. 8) PRIORITIES 833
It certainly shall not ; for such a purchaser is out of the consequence
which the register act guards against, of imposition from a prior secret
conveyance, as he had personal knowledge of the first.
There have been three cases on the Register Act :
1. Lord Forbes v. Nelson, 4 Bro. P. C. (Ed. Toml.) 189.
2. Blades v. Blades, 1 Eq. Ca. Abr. 358, pi. 2.
3. Chival v. Nicholls, 10th December, 1725, in the Exchequer, (1
Stra. 564.) * * *
Consider, therefore, what is the ground of all this, and particularly
of those cases which went on the foundation of notice to the agent.
The ground of it is plainly this. That the taking of a legal estate after
notice of a prior right, makes a person mala fide purchaser, and not,
that he is not a purchaser for a valuable consideration in every other
respect. This is a species of fraud and dolus malus itself ; for he
knew the first purchaser had the clear right of the estate, and after
knowing that, he takes away the right of another person by getting
the legal estate.
And this exactly agrees with the definition of civil law of dolus
malus. Dig. libr. 4, tit. 3. Dolum malum Servius ita definit. Machi-
nationem quandam alterius decipiendi causa, cum aliud simulater, cum
aliud agitur. Labeo autem posse et sine simulatione id agi ut circum-
veniatur. Posse et sine dolo malo aliud agi, aliud simulari, sicuti faci-
unt, qui jus ejusmodi dissimulationem deserviant et tuentur vel sua
vel aliena. Itaque ipse sic definit dolum malum esse omnem callidia-
tem fallacium machinationem ad circumveniendum, fallendum, decip-
iendum alterum adhibitum. Labeonis definito vera est.
Now if a person does not stop his hand, but gets the legal estate
when he knew the right was in another, machinatur ad circumvenien-
dum. It is a maxim, too, in our law. That fraus et dolus nem'ini pa-
trocinari debent. Vid. Co. 3 Rep. 78 ; 7 Rep. 38.
Fraud, or mala fides, therefore, it is the true ground on which the
Court is governed in the cases of notice ; and it is a consequence of the
decision of the former question, that notice to the agent is sufficient ;
for if the ground is the fraud, or mala fides, of the party, then it is
all one, whether by the party himself or his agent; still it is a ma-
chinatio ad circum.veniendum, and the putting a copy of the first ar-
ticles and settlement into Norton's hands, to take the opinion of coun-
sel in what manner they could be set aside, is a contrivance to circum-
vent.
It has been said. If this woman has been imposed on by her hus-
band, she, instead of cheating, has been cheated.
But then who ought to suffer? the person entrusting an agent, or
a stranger who did not employ him? He certainly who trusts most
ought to suffer most.
Mrs. Hatt, the third mortgagee in the case in 2 Vern. mentioned
before, was imposed on ; and so was Moore, in the other case reported
Aig.Prop. — 5.3
834 DERIVATIVE TITLES (Part 2
there, clearly imposed on; and yet if this was to be any excuse, it
would make all the cases of notice very precarious ; for it seldom hap-
pens but the agent has imposed on his principal ; and notwithstanding
that, the person trusting ought to suffer for his ill-placed confidence.
Therefore, in both respects, as agent and trustee, notice to Joseph
Norton, is notice to defendant Mary likewise. And as to the Registry
Act, here is sufficient equity in the plaintiff to postpone the second
articles and settlement, notwithstanding those only have been regis-
tered. And decreed accordingly.*
II. In United Statejs
(A) Statutes
CALIFORNIA CIV. CODE (1908).
Section 1213. Every conveyance of real property, acknowledged or
proved, and certified and recorded, as prescribed by law, from the time
it is filed with the recorder for record, is constructive notice of the con-
tents thereof to subsequent purchasers and mortgagees ; and a certified
copy of any such recorded conveyance may be recorded in any other
8 As to the rule of the prindpal case in* an action at law, see Doe d. Robin-
son V. Allsop, 5 B. & Aid. 142 (1S21), Bayley, .J., there said: "The words of
the statute are that such deeds or conveyances shall be adjudged fraudulent
and void against every subsequent purchaser for valuable consideration. It is
to be observed that the words 'bona fide purchaser' are not used. I think, there-
fore, that we are bound in a court of law to give effect to these words. That
seems to have been the opinion of the judges in the cases cited, although they
thought that a court of equity would, in some cases, interfere to relieve the
party. It is so laid down by Lord Hardwicke, in Le Neve v. Le Neve, and the
words of Lord JLansfield, in Doe ex deiu. Watson v. Routledge, Cowp. 712 (1777)
are those : 'Elquity says, if the party Icne^v of the unregistered deed, his regis-
tered deed shall not set it aside, because he has that notice which the act of
Parliament intended he should have.' He therefore puts it as a case in which
equity would interfere; and the circumstances of this case shew the propriety
of our adhering to the words of the act; for I am by no means clear that we
should not work great injustice, if we were to decide in favour of rhe defend-
ant."
In Hine v. Dodd, 2 Atk. 275 (1741), a bill was filed by a judgment creditor
to be let in upon an estate in Middlesex preferably to the defendant, a mort-
gagee of the same estate, on the ground that the defendant had notice of the
judgment before the mortgage was executed. The judgment was entered
March 12. 17.3.3, and registered June 12, 17.3,5. The mortgage was made May
24, 1735, and registered June 2, 1735. I>ord Chancellor Hardwicke said : "This
case depends upon the notice the defendant had of the judgment before his
mortgage was registered. The register act, the 7th of Anne, c. 20. is notice to
the parties, and a notice to everybody; and the meaning of this statute was,
to prevent parol proofs of notice, or not notice. But notwithstanding there
are cases where this court have broken in upon this, though one incumbrance
was registered before another, but it was in cases of fraud. * * * There
may possibly have been cases upon notice divested of fraud, but then the
proof must be extremely clear. But though in the present case there are strong
circumstances of notice before the execution of the mortgage, yet, unon mere
suspicion only, I will not overturn a positive law." See, however, Whitbread
V. Boulnois, 1 Y. «& C. (Ex. R.) 303 (1S35).
Ch. 8) PRIORITIES 835
county, and when so recorded the record thereof shall have the same
force and effect as though it was of the original conveyance.
Section 1214. Every conveyance of real property, other than a
lease for a term not exceeding one year, is void as against any subse-
quent purchaser or mortgagee of the same property, or any part there-
of, in good faith and for a valuable consideration, whose conveyance is
first duly recorded, and as against any judgment affecting the title,
unless such conveyance shall have been duly recorded prior to the
record of notice of action.
Kerr's Cyc. Code.
REVISED LAWS OF ILLINOIS (1912).
Section 28. Deeds, mortgages, powers of attorney, and other in-
blruments relating to or affecting the title to real estate in this state,
shall be recorded in the county in which such real estate is situated ;
but if such county is not organized, then in the county to which such
unorganized county is attached for judicial purposes.
Section 30. All deeds, mortgages and other instruments of writing
which are authorized to be recorded, shall take effect and be in force
from and after the time of filing the same for record, and not before,
as to all creditors and subsequent purchasers, without notice ; and all
such deeds and title papers shall be adjudged void as to all such credi-
tors and subsequent purchasers, without notice, until the same shall be
filed for record.
Section 31. Deeds, mortgages and other instruments of writing re-
lating to real estate shall be deemed, from the time of being filed for
record, notice to subsequent purchasers and creditors, though not ac-
knowledged or proven according to law ; but the same shall not be read
as evidence, unless their execution be proved in manner required by the
rules of evidence applicable to such writings, so as to supply the de-
fects of such acknowledgment or proof.
Kurd's Rev. St. c. 30.
REVISED LAWS OF MASSACHUSETTS (1902).
Section 4. A conveyance of an estate in fee simple, fee tail or tor
life, or a lease for more than seven years from the making thereof,
shall not be valid as against any person, except the grantor or lessor,
his heirs and devisees and persons having actual notice of it, unless it,
or an office copy as provided in section fifteen of chapter twenty-two,
is recorded in the registry of deeds for the county or district in which
the land to which it relates is situated.
Chapter 127.
836 DERIVATIVE TITLES (Part
CONSOLIDATED LAWS OF NEW YORK (1909).
Section 290. L The term "real property," as used in this article^
includes lands, tenements and hereditaments and chattels real, except
a lease for a term not exceeding three years.
2. The term "purchaser" includes every person to whom any estate
or interest in real property is conveyed for a valuable consideration,
and every assignee of a mortgage, lease or other conditional estate.
3. The term "conveyance" includes every written instrument, by
which any estate or interest in real property is created, transferred,
mortgaged or assigned, or by which the title to any real property may
be affected, including an instrument in execution of a power, although
the power be one of revocation only, and an instrument postponing or
subordinating a mortgage lien ; except a will, a lease for a term not ex-
ceeding three years, an executory contract for the sale or purchase of
lands, and an instrument containing a power to convey real property
as the agent or attorney for the owner of such property.
Section 291. A conveyance of real property, within the state, on be-
ing duly acknowledged by the person executing the same, or proved as
required by this chapter, and such acknowledgment or proof duly cer-
tified when required by this chapter, may be recorded in the office of
the clerk of the county where such real property is situated, and such
county clerk shall, upon the request of any party, on tender of the law-
ful fees therefor, record the same in his said office. Every such con-
veyance not so recorded is void as against any subsequent purchaser in
good faith and for a valuable consideration, from the same vendor, his
heirs or devisees, of the same real property or any portion thereof,
whose conveyance is first duly recorded.
Chapter 52, art. 9.
GEN. CODE OF OHIO.
Section 8542. All mortgages, executed agreeably to the provisions
of -this chapter, shall be recorded in the office of the recorder of the
county in which the mortgaged premises are situated, and take effect
from the time they are delivered to the recorder of the proper county
for record. If two or more mortgages are presented for record on
the same day, they shall take effect from the order of presentation for
record. The first presented must be the first recorded, and the first
recorded shall have preference.
Section 8543. All other deeds and instruments of writing for the
conveyance or incumbrance of lands, tenements, or hereditaments, ex-
ecuted agreeably to the provisions of this chapter, shall be recorded
in the office of the recorder of the county in which the premises are
situated, and until so recorded or filed for record, they shall be deemed
Ch. 8) PRIORITIES 837
fraudulent, so far as relates to a subsequent bona fide purchaser hav-
ing, at the time of purchase, no knowledge of the existence of such
former deed or instrument.
Page & A. Gen. Code.
OREGON LAWS.
Section 7129. Every conveyance of real property within this state
hereafter made, which shall not be recorded as provided in this title
within five days thereafter, shall be void against any subsequent pur-
chaser in good faith and for a valuable consideration of the same real
property, or any portion thereof, whose conveyance shall be first duly
recorded.
Lord's Oregon Laws, 1910.
(B) Scope of Operation and Effect of Statutes
SIMONSON V. WENZEL.
(Supreme Court of North Dakota, 1914. 27 N. D. 6.3S, 147 N. W. 804.)
FiSK, J.* This is an appeal from a judgment of tlie district court
of McHenry county, decreeing the foreclosure of a real-estate mortgage
in plaintiff's favor. The appeal is upon the judgment roll proper, ap-
pellants' contention being that the conclusions of the trial court are not
warranted by the findings of fact.
Such findings of fact are in substance as follows :
1. That on and prior to March 20, 1906, the defendant, Dakota De-
velopment Company, was the owner in fee of the real estate in con-
troversy as disclosed by the public records in the office of the register
of deeds. On such date this company entered into an executory con-
tract with defendant Carl F. Wenzel, in the usual form, whereby, for
a stated consideration of $100, $35 of which wa^ paid in cash and the
balance to be paid in equal instalments on March 20, 1907, and March
30, 1908, with interest, it promised and agreed to sell and convey such
premises to the said Wenzel, such contract obligating the purchaser to
pay all taxes and assessments levied, assessed, or imposed upon the
premises in each year, and also contained a stipulation that "no assign-
ment or transfer of any interest in and to this agreement or the lands
described, less-than the whole thereof, will be recognized by said vendor
under any circumstances or in any event whatever, and no assignment
shall be binding upon the vendor unless approved by its president." It
also contained a stipulation "that time is to be the very essence of tliis
agreement." Such contract also contained other stipulations relative
» Portions of the opiiiion are omitted.
838 DERIVATIVE TITLES (Part 2
to the vendor's right to declare a forfeiture in case the vendee failed in
any respect to comply with his part of the contract, but we deem it un-
necessary to set such provisions out in extenso.
2. Defendant Wenzel entered into the possession of the premises,
and constructed a dwelling house thereon, which he and his family
occupied as their homestead until about January 20, 1908, when he sold
and assigned such contract to defendant M. C. Krupp.
3. On April 17, 1907, Wenzel and wife, for a valuable consideration,
executed and delivered to plaintiff their promissory note for the sum of
$914.70, payable on November 1st thereafter, with interest at the rate
of 8 per cent per annum ; and to secure the payment thereof they ex-
ecuted and delivered to plaintiff a mortgage on the land in controversy,
which was filed in the office of the register of deeds of McHenry coun-
ty on April 18, 1907, and recorded in Book 31 of Mortgages, at page
516.
4. That such note and mortgage have not been paid, and plaintiff is
the present owner and holder thereof.
5. That Carl F. Wenzel paid to the Dakota Development Company
the sum of $35 at the time of the execution of the contract for deed,
but made default in the payment due March 20, 1907, and the same
was not paid until after the assignment of such contract to defendant
Krupp, as hereinafter set forth. That such contract for deed was at
no time recorded or filed for record in the office of the register of
deeds of McHenry county, and the record title of the premises at all
times up to January 29, 1908, remained in tlie Dakota Development
Company.
6. On or about January 20, 1908, Wenzel, while in possession of
said land as his homestead, entered into negotiations with defendant
Krupp for the sale to him of the contract for deed aforesaid, and the
premises therein described, upon the terms that such contract was to
be assigned to Krupp, who was to receive a warranty deed of the prem-
ises direct from the Development Company. Wenzel and wife there-
upon assigned their interest in such contract to Krupp, and the latter
paid to the Development Company the amount then remaining due up-
on said contract ($65 and interest), and Krupp also paid to Wenzel the
agreed consideration of $1,000 less the payment aforesaid to the De-
velopment Company, and the Development Company did not, nor
did its president or any one of its authorized officials, have any knowl-
edge or actual notice of the execution or delivery of the mortgage to
the plaintiff aforesaid.
7. That defendant Krupp purchased Wenzel's interest in such con-
tract in good faith, and without any actual notice or knowledge of
the existence of plaintiff's mortgage, and he had no intent to cheat or
defraud the plaintiff, but acted in absolute good faith in the making
of said purchase, and purchased and paid for the same in utter ignor-
ance of the plaintiff's mortgage, but he knew that Wenzel and family
were living on and occupying said premises, but had no notice or
Ch. 8) PRIORITIES 839
knowledge of such mortgage other than that imparted by the record
thereof.
8. On January 24, 1908, the Development Company duly executed
and delivered to Krupp a warranty deed in the usual form, conveying
the premises to him, which deed contained the usual covenants, and
which was duly filed for record on January 29, 1908.
9. The trial court also found that the defendant Wenzel was on
March 3, 1910, adjudged a bankrupt in- the Federal court, and on
June 22, 1910, that court, in due form, discharged him from all debts
and provable claims, the notes held by plaintiff being scheduled in such
bankruptcy court.
Upon such findings of fact the district court made conclusions of
law favorable to plaintiff, adjudging a foreclosure of his mortgage.
Among other conclusions, the trial court found that at the time of
the execution of the mortgage by Wenzekhe had a mortgagable inter-
est in and to the said premises by virtue of the contract for deed, and
that the recording of such mortgage was due and legal notice to all
the world of the rights of the plaintiff as mortgagee, and that defend-
ant Krupp therefore had constructive notice of such mortgage at the
time he purchased the assignment of the contract for deed to the said
premises, and the conveyance of the premises to hira by the Develop-
ment Company was subject to the lien of plaintiff's mortgage.
From the above it is apparent that the crucial question for decision
is whether appellant Krupp, who, as the trial court found, in good
faith and for value purchased an assignment of the Wenzel contract
and a deed of the premises from its codefendant, the Development
Company, without any actual knowledge of the plaintiff's mortgage,
was nevertheless affected with constructive notice thereof sO' as to
confer upon plaintiff a lien under his mortgage superior and paramount
to the rights of such defendant. In answering this question we must
bear in mind the fact, as found by the trial court, that the contract
for deed executed and delivered by the Development Company to Wen-
zel was not entitled to record, nor was the same disclosed in any way
by the public records, and, as far as such records disclosed, Wenzel
had no interest whatever in the property in controversy, but the same
stood in the name of and was owned exclusively by the Development
Company. It is no doubt true that Wenzel, by such executory contract
of purchase which gave him possession, acquired an equitable interest
in such property which he might sell or mortgage (Cummings v. Dun-
can, 22 N. D. 534, 134 N. W. 712, Ann. Cas. 1914B, 976); and it is
likewise no doubt true that his possession under the contract operated
to convey notice to the world of his equities thereunder. But Wen-
zel's interest under such contract was cognizable merely in equity, not
in law. Miller v. Shelburn, 15 N. D. 182, 107 N. W. 51 ; Cummings v.
Duncan, supra. His possession under such executory contract op-
erated, no doubt, as notice to the world of his equities thereunder.
It is, however, quite a different proposition to say that such posses-
840 DERIVATIVE TITLES (Part 2
sion constituted notice of the rights of persons claiming to hold as as-
signees, vendees, or mortgagees of such equitable interest.
Was appellant Krupp, under the facts, charged with constructive
notice of plaintiff's mortgage? As stated by appellant's counsel this
suggests two main inquiries.
First, was the mortgage a conveyance within the meaning of the re-
cording laws? Second, was it a conveyance in the chain of title?
Plaintiff's right to recover, depends upon an affirmative answer to
both of these questions. Counsel for appellant assert, with apparent
confidence in the correctness of tlieir position, that both of such ques-
tions must receive a negative answer, and they have presented a very
able and ingenious argument in support of their contention. They ap-
parently concede that under the general statutory rule in other states,
either in express terms or by judicial construction, the record of an
instrument conveying or encumbering a mere equitable estate or in-
terest, as well as a legal estate or interest, operates to give constructive
notice thereof, but they seek to differentiate our recording act from tlie
statutes of other states, and contend for a construction eliminating
from its operation mere equitable interests or liens. As suggested by
them, it is undoubtedly true that the doctrine of constructive notice
by recording instruments is of purely statutory creation, and that the
recording of an instrument not within the statute does not impart con-
structive notice thereof. This, of course, is elementary. 2 Devlin,
Deeds, § 646, and cases cited.
The recording acts of this state are embraced in sections 5038, 5039,
and 5042, Rev. Codes 1905.
Section 5038 reads in part as follows : "Every conveyance by deed,
mortgage, or otherwise, of real estate within this state, shall be re-
corded in the office of the register of deeds of the county where such
real estate is situated, and every such conveyance not so recorded shall
be void as against any subsequent purchaser in good faith, and for a
valuable consideration, of the same real estate, or any part or portion
thereof, whose conveyance, whether in the form of a warranty deed, or
deed of bargain and sale, deed of quitclaim and release, of the form
in common use, or otherwise, is first duly recorded."
Section 5039 defines the term "conveyance" as used in the last sec-
tion as embracing "every instrument in writing by which any estate
or interest in real property is created, aliened, mortgaged, or encum-
bered, or by which the title to any real property may be affected, ex-
cept wills and powers of attorney."
Section 5042 provides: "An unrecorded instrument is valid as be-
tween the parties thereto and those who have notice thereof; but
knowledge of the record of an instrument out of the chain of title does
not constitute such notice."
The first clause of the section last quoted constituted the entire sec-
tion as originally enacted, but in 1899 the legislature, by chapter 167,
Laws of 1899, added thereto the latter clause, which, no doubt, as
Ch. 8) PRIORITIES 841
counsel state, was for the purpose of changing the rule announced by
this court in Doran v. Dazey, 5 N. D. 167, 64 N. W. 1023, 57 Am. St.
Rep. 550. In that case it was held that actual knowledge of the record
of an instrument out pf the chain of title was constructive notice of
the original instrument and of the rights of the parties under it, and
by such amendment the rule was changed so that now mere knowledge
of the record of an instrument out of the chain of title does not con-
stitute notice thereof.
Our first inquiry, therefore, is whether plaintiff's mortgage, which
covered Wenzel's equitable interest under his executory contract to
purchase the real property in question, is such an instrument as was
entitled to be recorded. In other words, was such mortgage a "con-
veyance" within the meaning of the recording laws aforesaid.^" * * *
Do our recording laws include such a mortgage? We are entirely
satisfied that this question must also receive an affirmative answer.
The contention of appellant's counsel to the contrary is, we think,
based upon an unwarranted and erroneous construction of our stat-
ute. We are unable to distinguish our law from the Michigan law
and the corresponding statutes in most states. The fact that the Mich-
igan statute in defining the word "conveyance," as used in its record-
ing law, in addition to the language in section 5039 of our Code adds
the words "in law or equity," does not make their statute broader
than ours. We think the statute would convey the same meaning
without these words, and they were evidently inserted through a super-
abundance of precaution. Furthermore, the language in the first por-
tion of the section, "the term conveyance * * * shall be construed
to embrace every instrument * * * ^^y -which any estate or in-
terest in real property is created, aliened, "mortgaged, or assigned,"
clearly was intended to cover a .mortgage of an equitable title. In
support of our views see Clark v. Lyster, 155 Fed. 513, 84 C. C. A.
27; 27 Cyc. 1157, and cases cited in note 28 on page 1158; also 1
Jones, Mortg. § 476.
Having reached the conclusion that plaintiff's mortgage was enti-
tled to record under our recording acts aforesaid, it only remains for
us to determine whether the record thereof imparted constructive no-
tice to defendant Krupp at the time he purchased an assignment of
Wenzel's contract and procured the deed from Wenzel's grantor, the
Dakota Development Company. In considering this question it is im-
portant to bear in mind the fact that Krupp knew that Wenzel was in
possession of the premises, asserting equitable ownership under the
contract of purchase, and that he expressly recognized Wenzel's con-
tract rights by purchasing from him an assignment thereof.
In the light of these facts, can Krupp successfully urge that Wen-
zel's mortgage to plaintiff was out of the chain of title, and hence,
under section 5042, Rev. Codes, the record of such mortgage did not
10 The court concluded it was.
842 DERIVATIVE TITLES (Part 2
constitute notice thereof to him? We think not. The basic fallacy in
appellant's argument, as we now view it, consists in the unwarranted
assumption that such mortgage, as to him, was out of the chain of ti-
tle. The reverse is true. He dealt with Wenzel, and therefore was
bound in law to know, and in fact did know, 'that he was the equita-
ble owner of the premises, and that his equitable title came from the
Dakota Development Company through such contract. He was also
bound in law to know, therefore, that Wenzel had a mortgagable in-
terest in the premises, and that he might have sold, assigned, or mort-
gaged such interest,. and the conveyance in either form would have
been entitled to record. As to Krupp, therefore, the chain of title did
not stop with the Development Company, but the last link in such
chain was in Wenzel. He was therefore charged with constructive
notice of plaintiff's mortgage, and bought subject thereto. It would
have been entirely different had he dealt alone with the Development
Company in ignorance of Wenzel's rights. In such event section 5042,
supra, would have afforded him protection, but under the facts it can
have no application.
As said in 1 Jones on Mortgages, § 476: "The registry of a con-
veyance of an equitable title is notice to a subsequent purchaser of the
same interest or title from the same grantor. * * * Xhe record
of a mortgage or other conveyance which is entitled to be recorded
operates as constructive notice to subsequent purchasers claiming
under the same grantor, or through one who is the common source oi
title"— citing Edwards v. McKernan, 55 Mich. 520, 526, 22 N. W. 20.
See also Jones v. Lapham, 15 Kan. 540, wherein Judge Brewer, while
on the supreme bench of Kansas, in speaking to the point, said : "As
to Maggie Murray, it appears that she had knowledge of the equitable
interest, but not of the mortgage. Hull, however, was in possession of
the lots, and had made valuable improvements on them. These im-
provements she bought. Now, section 20 of the conveyance act (Gen.
St. § 187) provides that 'every such instrument in writing (and this,
by prior description, includes mortgages, and mortgages upon equitable
interest) shall, from the time of filing the same with the register of
deeds for record, impart notice to all persons of the contents thereof ;
and all subsequent purchasers and mortgagees shall be deemed to pur-
chase with notice.' While this general provision, as respects notice,
may be limited, so far as relates to conveyances or mortgages of eq-
uitable interests, by the condition of the legal title, and the knowl-
edge which the holders thereof have of the existence of the equity, as
indicated in Kirkwood v. Koester, 11 Kan. 471, yet, aside from tliat
limitation, it js of controlling force. Whoever buys a legal estate, hav-
ing knowledge of an outstanding equitable interest, is chargeable witli
notice of any record of conveyance or encumbrance thereof. Who-
ever buys an equitable interest in land is also chargeable with like
notice. In fact, knowledge of an equitable interest carries with it no-
tice of the condition of such interest as is apparent from the public
Ch. 8) PRIORITIES 843
records." We understand that the rule thus stated by Judge Brewer
is generally recognized and well established, and we do not think that
such rule is changed in this state by chapter 167, Laws of 1899, here-
tofore referred to. * * *
The District Court will modify its judgment accordingly, and as thus
modified the judgment is affirmed. No costs shall be taxed to either
party on the appeal.
LOSEY V. SIMPSON.
(Court of Chancery of New Jersey, 1856. 11 N. J. Eq. 246.)
The Chancellor. The bill is filed upon a mortgage, given by Fer-
dinand G. Simpson to Pamela Adams, and by her assigned to the com-
plainants. The controversy is in reference to the priority of this mort-
gage, and a mortgage given by Calvin A. Kanouse to Noah Estell, now
held by the defendant, Mary Estell, as the executrix of the last will
of Noah Estell, deceased.
Stephen Adams, being indebted to Noah Estell in the sum of twelve
hundred dollars for money lent, had given a mortgage to secure the
same on several tracts of land, embracing the land which is covered
by the mortgages in dispute. By an arrangement between Adams,
Estell and Kanouse, Adams conveyed to Kanouse the portion of the
mortgaged premises embraced in the disputed mortgages. The money
received by the mortgagee was reduced from $1600 to $1310; and to se-
cure this latter sum Kanouse executed a mortgage to Estell, embracing
the land conveyed in the deed from Adams. Estell then canceled his
$1600 mortgage, or delivered it up to Adams for that purpose. The
deed from Adams to Kanouse was dated the 2d of August, 1847. The
mortgage bears the same date. Both were acknowledged on the 12th of
August, 1847. The mortgage was recorded on the 2d day of Septem-
ber of the same year. The deed has never been recorded. It is alleged
that it was, some time after its delivery, destroyed by Kanouse. Ka-
nouse entered into the possession of the premises under his deed,
and continued in possession until after the execution of the mortgage
under which the complainants claim their priority.
The complainants had a claim against Pamela Adams and Calvin A,
Kanouse for debt, and were prosecuting it at law. Kanouse offered
to compromise this claim. He stated to the complainants, through his
attorney, that Pamela Adams owned certain premises, which Stephen
Adams held in his name in trust for her, and that the premises were
sold to one Ferdinand G. Simpson, who was to give to Pamela Adams
a mortgage of sixteen hundred dollars for the purchase money. Ka-
nouse offered this mortgage to the complainants, if they would ad-
vance, in cash, the balance of the mortgage money, after deducting
their claim of $797.98. The proposition was acceded to; and on the
6th of December, 1849, Stephen Adams, at the procurement of
844 DERIVATIVE TITLES (Part 2
Kanouse, executed a deed to Simpson for the same premises which he,
Adams, had, as before stated, conveyed to Kanouse, and Kanouse
had mortgaged to Estell. Simpson executed a mortgage to Pamela
Adams to secure the purchase money of $1600, and she assigned the
mortgage to the complainants, who, in consideration of the assign-
ment, receipted their claim of $797.98, and for the balance gave their
promissory notes, at a short date, which were paid at maturity. The
deed to Simpson and the mortgage from Simpson to Pamela Adams
were duly recorded. The deed from Stephen Adams to Kanouse,
through which Mary Estell, who holds the mortgage from Kanouse to
Noah Estell, claims title, has never been recorded.
Both parties claim under Stephen Adams. The complainants' mort-
gage is subsequent, in date and execution, to that of the defendant,
Mary Estell ; but the complainants claim priority, on the ground that,
at the time their mortgage was executed, the deed from Adams to
Kanouse was not recorded ; and the title on the record being in Stephen
Adams, they insist that the recording of the Estell mortgage afforded
no notice of its existence.
On behalf of Mary Estell, it is insisted that the mortgage she holds
is protected by the very language of the statute ; that the statute de-
clares mortgage void and of no effect against a subsequent bona fide
purchaser or mortgagee for a valuable consideration, unless such mort-
gage shall be recorded at or before the time of recording the said mort-
gage or conveyance to such subsequent purchaser or mortgagee, and
that, in point of fact, the Estell mortgage was recorded before the sub-
sequent mortgage held by the complainants. But, by the very language
of the statute, the deed from Adams to Kanouse is void and of no
effect against the subsequent deed from Adams to Simpson, because
it was not recorded at or before the time of recording the subsequent
deed to Simpson. The defendant Mary Estell, then, claims under a
grantor whose deed is void, and who, at the time of the conveyance,
had no title against the grantor under whom the complainants hold.
Now it could be of no advantage to Simpson that his recorded deed
should be valid against the unregistered deed of Kanouse, if a gran-
tee under the latter could claim a title superior to that of Simpson's or
of his grantee.
The whole object of the registry acts is to protect subsequent
purchasers and encumbrancers against previous conveyances which are
not recorded, and to deprive the holder of the previous unregistered
conveyance, &c., of the right, which his priority in execution would
have given him at the common law. But if the construction contend-
ed for be adopted, this object is totally defeated; the registry will
afford no protection to an innocent purchaser. When one link in the
chain of title is wanting, there is no clue to guide the purchaser in
his search to the next succeeding link by which the chain is continued.
The title upon the record is the purchaser's protection, and when he
has traced the title down to an individual, out of whom the record does
Ch. 8) PRIORITIES 845
not carry it, the registry acts make that title the purchaser's protection.
The registry of a deed is notice only to those who claim through or
under the grantor by whom the deed was executed. Raynor v. Wilson,
6 Hill (N. Y.) 473; Stuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151;
Murray v. Ballou, 1 Johns. Ch. (N. Y.) 556; Keller v. Nutz, 5 Serg.
& R. (Pa.) 446; Lightner v. Mooney, 10 Watts (Pa.) 412; Bates v.
Norcross, 14 Pick. (Mass.) 224; Tilton v. Hunter, 24 Me. 29; Crock-
ett V. Maguire, 10 Mo. 34 ; Leiby v. Wolf, 10 Ohio, 83. Nor will a
purchaser be bound to take notice of the record of a deed executed by a
prior grantee whose own deed has not been recorded. Embury v. Con-
ner, 2 Sandf . 98 ; Roberts v. Borune, 23 Me. 165, 39 Am. Dec. 614.
And where the deed of a vendor is not recorded, the record of a mort-
gage given by the vendee for the purchase money will not be notice
to a subsequent purchaser. Veazie v. Parker,. 23 Me. 170; Pierce v.
Taylor, 23 Me. 246. For in any such case the purchaser is without a
clue to guide him in searching the record. 2 A. L. C. in Eq. 129.
The mortgage to Estell is void against the complainants' mortgage,
if Simpson, under whom the complainants hold, was a bona fide pur-
chaser for a valuable consideration without notice of the Estell mort-
gage. * * * 11
RANKIN V. MILLER.
(Supreme Court of Iowa, 1876. 43 Towa, 11.)
Action in chancery to establish and quiet in plaintiff the title to
the undivided eleven-eighteenths of two hundred and eighty acres of
land in Black Hawk county. The relief was granted as to one hundred
and sixty acres of the land, and denied as to the remainder. Both par-
ties appeal. The facts of the case are- stated in the opinion.
Beck, J. The admitted or established facts, as we find them in this
case, are as follows :
I. Plaintiff's title is based upon the following conveyances and facts :
1. November 24, 1853, Benjamin H. Towner entered, at the United
States land office at Dubuque, all the lands in controversy, which are
all in section 13, township 88, range 13 west, and received a certificate
11 Tbe balance of the opinion is omitted. The court concluded that Simpson
was a bona fide purchaser for value.
Van Di^^ere v. Mitchell, 45 S. C. 127, 22 S. E. 759 (1895), contra.
Eliza K., the owner, conveyed to her brother, F. K., who mortgaged the
premises to P. P. recorded. R., after examining the records and satisfjung
himself that Eliza had title, took a deed from her, paying value therefor. Be-
cause F. K. had been acting as his sister's agent, E. procured a quitclaim deed
covering the same premises from him. The day after the delivery of the two
deeds to R., the deed from Eliza to F. K. was placed on record. In an action
by P. to foreclose his mortgage, R. claimed protection as a bona fide purchaser
for value without notice. AVas he entitled to such protection?
A. conveys to B., who at once gives back a purchase money mortgage. The
mortgage is recorded, but the deed from A, to B. is not. A. later conveys to X.,
a bona fide purchaser for value \^ath no knowledge of the deed to B. Does he
have constructive notice? See Veazie v. Parker, 23 Me. 170 (1843) ; Hart v.
Gardner, 81 Miss. 650, 33 South. 442, 497 (1902).
846 DERIVATIVE TITLES (Part 2
of entry, issued by the proper officer in the usual form. On the 18th
of October, 1858, a patent was issued to him for the lands.
2. August 13, 1854, Towner sold and conveyed the lands to Daniel
J. and Armstrong Rankin. The deed is lost, but was filed and recorded
in Black Hawk county. The name Ambrose appears in the record in-
stead of Armstrong, the christian name of one of the grantees. This
is alleged to be a mistake, either in the deed or record thereof, and
it is averred that the conveyance was intended to be to Armstrong
Rankin, who was intended to be described therein as one of the
grantees.
3. Armstrong Rankin died February 1st, 1855, leaving plaintiff as his
only heir. His widow, Nancy M., rnarried Cyrus Hays in 1858.
4. Daniel J. Rankin re-conveyed his undivided interest in the lands
to Towner, who, in July 28, 1861, sold and conveyed the undivided
one-half thereof then held by him to plaintiff's mother, Nancy M.
Hays.
5. In 1863 Nancy M. Hays died, leaving children by her second hus-
band, Cyrus Hays, who subsequently married a second wife, Sarah,
and died February 5th, 1868, leaving one child, the fruit of the last
marriage. Sarah Hays died in 1868. Plaintiff, as heir of his father
and mother, claims title to eleven-eighteenths of the land in contro-
versy.
Alleged defects and objections to deeds, under which plaintiff's
ancestors acquired title to the lands, will be hereafter stated when
they come up for consideration in this opinion.
n. The defendants' title rests upon the following conveyances :
1. October 13, 1853, Abraham Turner, who is a defendant in this
action, entered one hundred and twenty acres of land in section 13,
township 88, north range 12 west, at the United States land office at
Dubuque, and received the usual certificate of entry, which is number
15,700.
2. On the 28th day of February, 1854, which it will be remarked
was subsequent, in point of time, to the entry of the land under which
plaintiff claims, the register of the Dubuque land office, upon application
of Turner, changed the duplicate certificate of entry. No. 15,700, re-
turned in his office, which had been issued upon Turner's entry of the
land in section 13, township 88, north range 12 west, so that it read
"north range 13 west," being the same description as that of part of
the lands before entered by the grantor of plaintiff's ancestor.
3. A patent was issued to Turner for one hundred and twenty acres
of land in range 13, June 15, 1854.
4. In 1868 a patent was issued to Turner for the land in range
12, and he afterwards sold and conveyed it to E. K. Ware and D. J.
Coleman.
5. The defendants claim the land in section 13, township 88, north
lange 13 west, which is covered by Turner's patent, under that in-
strument and conveyances by Turner and his grantees.
Ch. 8) PRIORITIES 847
6. They claim title to the other lands in controversy under a sale
and deed by the guardian of plaintiff, made in 1865.
7. For a part of the same land they also set up a tax title based upon
a sale of the land by the county treasurer, for 1862, for the delinquent
taxes of 1860, and a treasurer's deed thereon, dated May 14, 1864.
The remainder of tliese lands are covered by a tax deed recorded in
1865, which is also set up by defendants.
III. It is necessary to consider separately the conflicting claims
and titles set up by the respective parties to the land in controversy.
The first point of inquiry involves the validity of the conflicting patents
covering a part of the land.
1. The validity of Towner's entry cannot be questioned. At that
time the full and perfect title to the land, both legal and equitable,
was in the government. There had been no sale or transfer of any in-
terest in it which defeated the right of the government to dispose of
it, in the manner all public lands are disposed of as provided by law.
If we admit that Turner's first entry of lands was made through mis-
take and the subsequent alteration of his duplicate certificate was
without fraud, Towner's entry is not defeated by these considera-
tions. Turner did not enter the land in range thirteen, and the cer-
tificate issued to him did not cover it. There was, therefore, no sale of
that land to him by the government. The land was then sold to Towner
and a proper certificate issued to him. Surely, it cannot be claimed that
the register of the land office, simply upon the application of Turner,
without proof of the mistake which the evidence shows was not made,
had authority to change the entry and alter Turner's certificate so as
to defeat Towner's prior entry. The register was clothed with no au-
thority to change the entry, and in no case can such a thing be done
by any officer of the government where the land to be covered by
the change has been before sold. U. S. Rev. St. §§ 2369 (U. S. Comp.
St. 1913, § 4777), 2372. The government having sold the land to
Towner, no other disposition thereof can be made. Arnold v. Grimes,
2 Iowa, 1 ; Cavender v. Smith, 3 G. Greene, 349, 56 Am. Dec. 541.
2. "The patent for lands belonging to the United States, when issued
to a party vests in him the perfect legal title, which relates back to
the date of entry of the land. The entry of the land and the issuing of
the certificate of location transferred to him at the time all the prop-
erty held by the government in the land, and conferred upon him all
'the equity' thereto which is an absolute and unconditional right to the
land." Waters v. Bush, 42 Iowa, 255 ; Heirs of Klein v. Argenbright,
26 Iowa, 493; Cavender v. Heirs of Smith, 5 Iowa, 157.
3. The patent to Turner, having been issued contrary to law, for land
which had been before sold by the government, is void, and the pat-
entee acquired no rights under it. Stoddard et al. v. Chambers, 2
How. 284, 11 L. Ed. 269; Cunningham v. Ashley et al., 14 How. 377,
14 L. Ed. 462 ; Wright v. Rutgers, 14 Mo. 585 ;• Boring v. Lemmon,
848 DERIVATIVE TITLES (Part 2
5 Har. & J. (Md.) 223; Perry v. O'Hanlon, 11 Mo. 585, 49 Am. Dec.
100; State v. Delesdinier, 7 Tex. 76; Todd v. Fisher, 26 Tex. 239.
IV. The conchision is reached that Turner's patent conferred no
right whatever in the land which he could convey to another. We do
not understand that counsel deny the correctness of this conclusion,
but seek to avoid its consequences on the ground that defendants are
innocent purchasers without notice of plaintiff's title. This position is
based upon the fact that Towner's deed to plaintiff's ancestor, ex-
ecuted in 1854, was acknowledged before a justice of the peace of
the .state of Illinois and the certificate of acknowledgment, in other
respects, does not comply with the requirements of the law, especially
in failing to show that the grantor acknowledged the deed to be his
voluntary act. At that date, the acknowledgment of deeds for lands in
this state could not be made before justices of the peace in other states.
The deed was recorded October 1, 1855. Defendants insist that, as
this deed was insufficiently acknowledged, though recorded, it does
not impart notice to them of plaintiff"'s title. Code 1873, § 1942.
Let us consider for a moment the position of the parties as claim-
ants of the land in dispute. They claim under distinct chains of titles,
having, however, a common origin in the government. The government
made two grants of the land ; on one, plaintiff's title rests, the other
is the foundation of defendants' title. The deed from the purchaser
to plaintiff's ancestor, under whom plaintiff claims, is defectively ac-
knowledged and it is not, therefore, lawfully recorded. Now, no ques-
tion of registry, or want of notice, can arise upon the assurances given
by the gr vernment for the land. Arnold v. Grimes, 2 Iowa, 1 ; Heirs
of Klein v. Argenbright, 26 Iowa, 493 ; David v. Rickabaugh, 32
Iowa, 540. Does the law protect defendants because they had no
notice by the record of the deed from the grantee of the government
to the plaintiff's ancestor?
Code 1873, § 1941, the statute requiring the registry of deeds, is in
the following language : "No instrument affecting real estate, is of any
validity against subsequent purchasers for a valuable consideration,
without notice, unless recorded in the office of the recorder of the coun-
ty, etc." The statute protects subsequent purchasers and no others.
The very language of the statute leads to the conclusion that there
are such as claim under the chain of title of which the deeds affected
by the provision are a part. It is intended to protect the purchaser
whose deed is recorded, against another conveyance that is not record-
ed, and contemplates the case of conflicting deeds conveying title and
having a common source. No protection is intended against an inde-
pendent title, distinct from that upon which the recorded deed is
based. The conclusion is supported by the consideration that, in such
cases, notice in fact by a record thereof could not be given. No point
of commencement for an examination of the records would be sug-
gested to the party seeking information therein. The indexes of the
record, which under our statute are a part of the record and serve to
Ch. 8) PRIORITIES 845
impart notice, would give no aid in such an examination. It is, there-
fore, our conclusion that the term subsequent purchaser, occurring in
the statute, is used to describe purchasers claiming under some common
grantor. This position is supported by the following authorities :
Long V. Dollarhide, 24 Cal. 218; Roe et al. v. Neal et al., Dud. (Ga.).
168 ; Fenno v. Sayre, 3 Ala. 458 ; Whittington v. Wright, 9 Ga. 23 ;
Tilton V. Hunter, 24 Me. 29 ; Crockett et al. v. Maguire, 10 Mo. 34 ;
Ely V. Wilcox, 20 Wis. 530, 91 Am. Dec. 436; Rodgers v. Burchard
et al., 34 Tex. 441, 7 Am. Rep. 283; Losey et al. v. Simpson et al., 11
N. J. Eq. 246; Bates v. Norcross, 14 Pick. (Mass.) 224; Quirk v.
Thomas et al., 6 Mich. 76; Murray v. Ballou, 1 Johns. Ch. (N. Y.)
566.
If, then, the record of the deed would not impart notice provided
for by law, defendants cannot claim any strength for their title be-
cause it was not in fact recorded; they are not prejudiced thereby.
It is a case where the principles of registry do not apply.^^ * * *
YOUNGBLOOD v. VASTINE.
(Supreme Court of Missouri, 1870. 46 Mo. 239, 2 Am. Rep. 509.)
Bliss, J- Sarah G. Wright, deceased, by herself and her trustee,
on the 20th day of July, 1859, executed to E. J. Xaupi, in trust, to se-
cure the payment of a promissory note of same date for $3700, given
to Joseph Tuley, then living, a deed of certain real estate, her separate
property, situate on the corner of Pine and Eighth streets, in St. Louis,
which deed was not put upon record until the 19th of October, 1866.
The said Joseph Tuley and Sarah G. Wright died in 1860 and 1861,
and on the first of October, 1865, D. Robert Barclay, as trustee for
Mrs. Ann A. Macdonald, and with her funds, purchased said prop-
erty of the heirs of said Sarah G. Wright, and received a warranty
deed of the same, which was recorded April 28, 1866. It appears from
the evidence that neither Barclay nor Mrs. Macdonald had any knowl-
edge of the trust deed to Xaupi ; that the records were examined before
the purchase to see if there were any encumbrances upon the property ;
that a full consideration was paid for it ; that the estate of Mrs. Wright
had been settled by the public administrator, and that all debts present-
ed had been paid, but this note was not among them.
12 The remainder of the opinion relating to other matters is omitted.
In nn action by the assignee of a mortgage to foreclose same, the mortgagor
sought to set off certain claims held by him against the mortgagee, which elaimg
had been acquired after the assignment of the mortgage to the complainant.
The mortgagor had no knowledge of the assignment, but the assignment had
been properly recorded prior to the acquisition of the claims. A statute of the
state, adopting the prevalent equity nile, provided that, "in the case of an as-
signment of a thing in action, the action of the assignee shall be without preju-
dice to any set-off or other defense, existing at the time of or before notice of
the assignment." Should the mortgagor be allowed his set-off?
Aig.Pkop. — 54
850 DERIVATIVE TITLES (Part 2
This suit was brought by the administrator of Tuley to foreclose his
trust deed, and the contest arises in consequence of the failure on the
pan of Xaupi, to whom it was made, to place it upon record. Had
the second deed been executed by Mrs. Wright while living, there
would be no question that it would hold against the unrecorded deed.
But in some of tlie reported cases upon the subject it is held that the
same preference can not be given to tlie second deed if made by the
heirs of the first grantor. I confess I am not struck with the force
of the reasoning upon which the distinction is made, for it is based
upon the idea that the second deed is inoperative because nothing
descended to the heirs, and hence they had nothing to convey. If that
be so, it was because nothing was left in the ancestor that could de-
scend; that his whole estate was divested by the first deed. -If his
whole estate was so divested, how could a second deed, if made by
himself, be operative? Yet it is not disputed that such second deed
would convey the estate, notwithstanding the first.
Yet the distinction is made by some of our most respectable courts,
and it is apparently recognized by this court. In Hill et al. v. Meeker,
24 Conn. 211, the majority of the court held that the unrecorded deed
from the ancestor so divested him of his title that his son and heir
"took nothing by inheritance that he could convey or mortgage to a
bona fide purchaser who had no knowledge of the deeds." The case
is a much harder one than the one at bar, and the decision is based
upon "a clear distinction between a purchaser from him (the ancestor)
and one from his heir, Arza. In relation to a purchase from Arza,
the difficulty is that he never had any title."
The same distinction was made in Hancock v. Beverly's Heirs, in 6
B. Mon. (Ky.) 531. The judge delivering the opinion acknowledges
the question to be a doubtful and difficult one, and in reasoning upon
the subject says : "It has always been held that a deed, though never
recorded, is good between the parties, and as to all the world, except
creditors and innocent purchasers for value. The grantor in such deed
can pass no title to his subsequent donee or devisee, and the law will
pass none to his heir, because there was none in him, after his convey-
ance, to be passed, but in favor of a creditor or bona fide purchaser
for value. Does tlie conveyance of the heir, or donee or devisee, who,
as such, never had title, made to a purchaser for value and without
notice, operate to divest the title conveyed by the unrecorded deed, and,
bringing it in another line of conveyances, vest it in subsequent pur-
chasers?" This question the court, on the authority of Ralls v. Gra-
ham, 4 T. B. Mon. (Ky.) 120, answers in the negative.
Our own court, in McCamant v. Patterson, 39 Mo. 110, 111, seems
to recognize the same doctrine, though, from the peculiarity of the
title to the New Madrid grants, the question in its general application
could not have arisen in that case.
Other authorities, however, equally respectable, have held that the
heir of the grantor in an unrecorded deed can convey a good title to
Ch. 8) PRIORITIES 851
an innocent purchaser f(5r value. The Supreme Court of Pennsyl-
vania, in Powers v. McFerran, 2 Serg. & R. 44, in giving its opinion,
remarks that "the purchaser for a valuable consideration, seeing no
deed on record, had a right, under the sanction of the recording act,
to take for granted that the whole estate had descended." The same
question was raised in McCulloch v. Eudaly, 3 Yerg. (Tenn.) 346, and
in sustaining a deed from the heir, the following language is used by
the court: "But it is contended tliat this (the saving to suosequent pur-
chasers) only applies to cases where the purchase should be made from
the same vendor by whom the prior deed was executed. It is true the
subsequent purchaser must hold under the same title ; but whether
he holds under the ancestor or heir, it can make no difference. The
estate is thrown upon the heii: with all the rights the ancestor enjoyed
and subject to all encumbrances he had created on it."
The subject has also been considered in the State of Illinois, in
Kennedy v. Northup, 15 111. 148; and after reviewing the authorities,
the title from the heir was sustained. "After much reflection," says
the judge who delivered the opinion, "I am satisfied that this is the
true and proper construction of the statute. It meets the object de-
signed to be accomplished by the law, and is within the reason which
gave rise to the enactment. It was the object of tlie Legislature to
make patent the titles to real estate, that purchasers might know what
titles they were acquiring. Where a deed is not recorded, the title
is apparently still in the grantor, and the law authorizes purchasers
who are ignorant of the conveyance to deal with him as the real owner.
In case of his death the heir becomes the apparent owner of the legal
title, and it is equally important and equally as just that the public
may be allowed to deal with him as with tlie original grantor if liv-
ing."
There is no substantial difference between the statutes of tlie dif-
ferent States whose decisions I have quoted and our own. Different
language is used, but the same result is aimed at; some expressly de-
claring unrecorded deeds to be void against subsequent purchasers,
while ours negatively does the same thing by saying that no such in-
■ strument shall be valid except between the parties thereto, etc.
The discrepancy in the authorities has doubtless arisen in part from
the endeavor to reconcile the statute with the subtleties of the old law
of tenures, which treats a title as a substantial entity, and almost ap-
plies to it the powers of locomotion. The attempt involves the rea-
soner in contradictions, for in one breath it is said that the title passes
by the deed to the grantee and still so remains with the grantor, that
in a contingency it may again pass from him to another grantee, but
if the grantor dies it can not descend like all his other titles, but goes
back to tlie original grantee, with whom it has always remained.
It would be more rational to say that the law controls the manner
in which rights of property are acquired, and that it will not favor any
mode of acquirement that shall encourage fraud. Thus purchasers
S52 DERIVATIVE TITLES (Part 2
are required to spread upon record the evidence of their ownership;
and if others suffer from their neglect, the law will not recognize such
ownership. Or, in using the language of the law of tenures, we might
perhaps say tliat in a conveyance the absolute title rests with the gran-
tor and his heirs in abeyance, to vest irrevocably only upon tlie record
of the deed, and that it will vest in the first grantee in condition to
receive the grant, who shall so place it upon record.
The Circuit Court held that the defendant's deed from the heirs of
Mrs. Wright conveyed the whole estate, whereupon the plaintiff* took
a nonsuit, and his motion to set the same aside was overruled. In this
the court committed no error, and the other judges concurring, the
judgment will be affirmed.^'
MORSE v. CURTIS.
(Supreme Judicial Court of Massachusetts, 18S5. 140 Mass. 112, 2 N. E. 929,
54 Aju. Rep. 456.)
Morton, C. J. This is a writ of entry. Both parties derive their
title from one Hall. On August 8, 1872, Hall mortgaged tlie land to
the demandant. On September 7, 1875, Hall mortgaged the land to
one Clark, who had notice of the earlier mortgage. The mortgage to
Clark was recorded on January 31, 1876. The mortgage to the de-
mandant was recorded on September 8, 1876. On October 4, 1881,
Clark assigned his mortgage to the tenant, who had no actual notice
of the mortgage to the demandant. The question is which of these
titles has priority.
The same question was directly raised and adjudicated in the two
cases of Connecticut v. Bradish, 14 Mass. 296, and Trull v. Bigelow,
16 Mass. 406, 8 Am. Dec. 144. These adjudications establish a rule
of property which ought not to be unsettled, except for the strongest
reasons.
It is true, that, in the later case of Flynt v. Arnold, 2 Mete. 619,
Chief Justice Shaw expresses his individual opinion against the sound-
ness of these decisions; but in that case the judgment of the court
was distinctly put upon another ground, and his remarks can only be
considered in the light of dicta, and not as overruling the earlier ad-
judications.
Upon careful consideration, the reasons upon which the earlier cases
were decided seem to us the more satisfactory, because they best fol-
low the spirit of our registry laws and the practice of the profession
13 See Lyon v. Gleason, 40 Minn. 434, 42 N. W. 286 (1889) ; Wliittemore v.
Bean, 6 N. II. 47 (1S32), where it was the devisee of the grantor in the unrecord-
ed deed that made the later deed to the good faith purchaser.
Suppose the grantor in the unrecorded deed himself makes a deed to one
who takes either as a volunteer or with knowledge of the earlier deed, and tliat
grantee in turn conveys to a good faith purchaser. What would be the position
■of the grantee in the unrecorded deedV
Ch. 8) PRIORITIES 853
nnder them. The earliest registry laws provided that no conveyance
of land shall be good and effectual in law "against any other person
or persons but the grantor or grantors, and their heirs only, unless the
deed or deeds thereof be acknowledged and recorded in manner afore-
said." St. 1783, c. Z7, § 4.
Under this statute, the court, at an early period, held that the re-
cording was designed to take the place of the notorious act of livery
of seisin; and that, though by the first deed the title passed out of
the grantor, as against himself, yet he could, if such deed was not
recorded, convey a good title to an innocent purchaser who received
and recorded his deed. But the court also held that a prior unrecorded
deed would be valid against a second purchaser who took his deed
with a knowledge of the prior deed, thus engrafting an exception upon
the statute. Reading of Judge Trowbridge, 3 Mass. 575; Marshall
V. Fisk, 6 Mass. 24, 4 Am. Dec. 76.
This exception was adopted on the ground that it was a fraud in
the second grantee to take a deed, if he had knowledge of the prior
deed. As Chief Justice Shaw forcibly says, in Lawrence v. Stratton,
6 Cush. 163, the rule is "put upon the ground, that a party with such
notice could not take a deed without fraud, the objection was not to
the nature of the conveyance, but to the honesty of the taker; and,
therefore, if the estate had passed through such taker to a bona fide
purchaser, without fraud, the conveyance was held valid."
This exception by judicial exposition was afterwards engrafted upon
the statutes, and somewhat extended, by the Legislature. Rev. St. c.
59, § 28 ; Gen. St. c. 89, § 3 ; Pub. St. c. 120, § 4. It is to be ob-
served that, in each of these revisions, it is provided that an unrecorded
prior deed is not valid against any persons except the grantor, his
heirs and devisees,* "and persons having actual notice" of it. The
reasons why the statute requires actual notice to a second purchaser,
in order to defeat his title, is apparent; its purpose is that his title
shall not prevail against the prior deed, if he has been guilty of a fraud
upon the first grantee ; and he could not be guilty of such fraud, un-
less he had actual notice of the first deed.
Now, in tlie case before us, it is found as a fact that the tenant had
no actual knowledge of the prior mortgage to the demandant at the
time he took his assignment from Clark ; but it is contended that he
had constructive notice, because the demandant's mortgage was re-
corded before such assignment.
It was held in Connecticut v. B radish, ubi supra, that such record
was evidence of actual notice, but was not of itself enough to show
actual notice, and to charge the assignee of the second deed with a
fraud upon the holder of the first unrecorded deed. This seems to us
to accord with the spirit of our registry laws, and with the uniform
understanding of and practice under them by the profession.
These laws not only provide that deeds must be recorded, but they
also prescribe the method in which the records shall be kept and in-
854 DERIVATIVE TITLES (Part 2
dexes prepared for public inspection and examination. Pub. St. c. 24,
§,§ 14—26. There are indexes of grantors and grantees, so that, in
searching a title, the examiner is obHged to run down the list of gran-
tors, or run backward through the Hst of grantees. If he can start
with an owner who is known to have a good title, as, in the case at bar,
he could start with Hall, he is obliged to run through the index of
grantors until he finds a conveyance by the owner of the land in ques-
tion. After such conveyance, the former owner becomes a stranger
to the title, and the examiner must follow down the name of the new
owner to see if he has conveyed the land, and so on. It would be a
hardship to require an examiner to follow in the indexes of grantors
the names of every person who, at apy time, through perhaps a long
chain of title, was the owner of the land.
We do not think this is the practical construction which lawyers and
conveyancers have given to our registry laws. The inconveniences of
such a construction would be much greater than would be the incon-
venience of requiring a person, who has neglected to record his prior
deed for a time, to record it, and to bring a bill in equity to set aside
the subsequent deed, if it was taken in fraud of his rights.
The better rule, and the one the least likely to create confusion of
titles, seems to us to be, that, if a purchaser, upon examining the reg-
istry, find a conveyance from the owner of the land to his grantor,
which gives him a perfect record title completed by what the law, at
the time it is recorded, regards as equivalent to a livery of seisin, he is
entitled to rely upon such record title, and is not obliged to search the
records afterwards, in order to see if there has been any prior un-
recorded deed of the original owner.
This rule of property, established by the early case of Connecticut
V. Bradish, ought not to be departed from, unless 'conclusive reasons
therefor can be shown.
We are therefore of opinion, that, in the case at bar, the tenant has
the better title ; and, according to the terms of the report, the verdict
ordered for the demandant must be set aside, and a
New trial granted.
WOODS V. GARNETT.
(Supreme Court of Mississippi, 1894. 72 Miss. 78, 16 South. 390.)
Bill to cancel defendant's claim to certain land and to recover pos-
session. Decree for defendants. Complainant appeals. The opinion
sufficiently states the facts.
Cooper, C. J., delivered the opinion of the court.
The parties to this suit all claim title from one Riley, who, in 1891,
was the owner of the land in controversy. On the ninth day of Novem-
ber, A. D. 1891, Riley executed a deed of trust, whereby he conveyed
the land to one M. H. Trantham, as trustee, to secure the payment of a
Ch. 8) PRIORITIES 855
promissory note of that date for $3,500, payable to the order of C. H.
Pond. This deed contained the usual power of sale if default should
be made in the payment of the secured debt at maturity, and also pro-
vided that Pond, or the assignee of the note, might at pleasure sub-
stitute any other person in lieu of the trustee, Trantham. This deed
was acknowledged before Trantham, the trustee, who was a justice of
the peace of the county. The certificate stated only that the grantor
acknowledged that he had "signed" the deed, omitting the words "and
delivered," as required by law. This deed was filed for record in the
proper ofiice on the twelfth day of November.
(Dn May 6, 1892, Riley executed a. deed of trust to one Oliver, as
trustee, to secure the payment of a debt to W. G. Cocke & Co. of
%Z97.22. This deed also contained a power of sale if the debt secured
should not be paid at maturity. Before accepting this security, W. D.
Lester, a member of the firm of Cocke & Co., examined the records,
and there saw and read the prior deed, but was of opinion that, by
reason of the defective acknowledgment, and because it had been taken
by the trustee therein, it was not entitled to registration, and, being of
that opinion, decided to accept the deed to secure his firm.
Some time prior to October, 1892, Pond assigned the note executed
by Riley payable to him to the complainant, Chas. R. Woods. About
this time it was discovered that the deed of trust by which this note
had been secured had not been so acknowledged as to entitle to regis-
tration, and thereupon Woods exhibited his bill in equity to enjoin
Riley from disposing of the lands to his injury, and an injunction was
allowed.- The attorney of Woods, being of opinion that a re-execution
and acknowledgment of the deed by Riley, and another registration
thereof, would serve the same purpose as the injunction, sent the clerk
of the chancery court to see Riley and get a re-acknowledgment of the
deed, which he did on October 7, 1892, when the deed was on that day
again filed for record and recorded on the twenty-fourth.
On November 16, 1892, Riley and his wife conveyed the land to the
appellee, Mrs. L. A. Garnett. On November 19, 1892, the land- was
sold under each of the two deeds of trust, the sales being at different
places. At the sale under the deed of trust first made, but junior in
record (the Pond deed), the appellant became the purchaser. At the
sale under the deed junior in date, but the first recorded, the appellee,
Mrs. D. L. Garnett, purchased. The appellant exhibited his bill in
this cause to cancel the titles of the defendants, Mrs. D. L. Garnett and
Mrs. L. A. Garnett, as clouds upon his own, and to recover possession
of the land, they having been let into possession by Riley.
Mrs. D, L. Garnett defends the suit upon the ground that she was a
bona fide purchaser, without notice of the deed of trust under which
complainant claims title. Mrs. L. A. Garnett defends only as to 160
acres of the land, which, she says, was the homestead of Riley at the
time he executed the deed of trust to secure the note to Pond, which
deed, she contends, was void as to the homestead, because Mrs. Riley
856 DERIVATIVE TITLES (Part 2
did not join her husband in the conveyance, as is required by law for
the sale or incumbrance of the homestead. In the controversy between
the appellant and Mrs. D. L. Garnett, the question involved is one of
law, the facts being undisputed. In the controversy with Mrs. L. A.
Garnett, the question is purely of fact, the parties not differing as to
the law, which is plain, and not susceptible of controversy.
1. Were Cocke & Co. bona fide incumbrancers of the land, without
notice of the Pond mortgage ? It has been generally held by the Amer-
ican courts, though with some exceptions, that, notwithstanding the
registry acts, one who has notice of such facts in reference to an un-
recorded conveyance, as devolves on him, as an honest man, the duty
of making further inquiry, is to be held as having such knowledge as
such inquiry, honestly made, would have disclosed. In those states
in which this rule does not apply, it will be found that the registry acts
require actual knowledge of the unrecorded conveyance. One who
sees upon the record, and reads an instrument improperly recorded,
because not acknowledged or proved as required by law, cannot claim
to be a bona fide purchaser of the property therein described. He
knows that what he sees is the copy of an instrument purporting to
have been made by the grantor to the grantee. Good faith requires
that he shall prosecute further inquiry, and, if he negligently or wil-
fully neglects so to do, he is to be held to have known all the facts to
which that inquiry would have led. The notice to Lester by reading
the improperly recorded mortgage, was notice to his firm of the ex-
istence of that conveyance, and Cocke & Co. were not bona fide pur-
chasers of the property.^*
2. Where a conveyance is made to one who fails to record his deed
until after another has received and recorded a conveyance from the
same grantor, but with notice of the first deed, what are the rights of
the first grantee against a purchaser from the second, where such
purchaser, having no actual knowledge of the facts, buys after the
record of the prior deed? This question is determinable by a construc-
tion of our registry act, for, at the common law, a second purchaser
of the fee could take nothing, since, by the first conveyance, the gran-
tor would have divested himself of all his estate, and would have noth-
ing to convey. Basset v. Nosworthy, 2 Ldg. Cas. in Eq. 110, and note;
Coke on Littleton, 390d.
By our registry act it is declared that the instruments thereby re-
quired to be recorded "shall be void as to all creditors and subsequent
purchasers for valuable consideration without notice, unless they shall
be acknowledged or proved and lodged with the clerk of the chancery
court of the county, to be recorded in the same manner that other con-
veyances are required by this act to be acknowledged or proved and re-
corded ; but the same, as between the parties and their heirs, and as
to all subsequent purchasers with notice, or without valuable considera-
1* But see Nordman v. Kau, infra, p. 909.
Ch. 8) PRIORITIES 857
tion, shall, nevertheless, be valid and binding." Code 1880, § 1212;
Code 1892, § 2457. "Every conveyance, covenant, agreement, bond,
mortgage, and deed of trust shall take effect, as to all subsequent pur-
chasers for a valuable consideration without notice, and as to all cred-
itors, only from the time when delivered to the clerk to be recorded."
Code 1880, § 1213 ; Code 1892, § 2458. In Massachusetts and Vermont
it is held that a purchaser is not bound to examine the record, after
the date of a recorded conveyance, to discover whether the grantor
therein has made another conveyance prior in time but junior in record,
but may safely purchase from the grantee in the first recorded convey-
ance, if he, the purchaser, has no actual notice of the prior deed, and no
notice of facts which makes it his duty to prosecute inquiry. Connecti-
cut V. Bradish, 14 Mass. 296 ; Trull v. Bigelow, 16 Mass. 406, 8 Am.
Dec. 144; Morse v. Curtis,^ 140 Mass. 112, 2 N. E. 929, 54 Am. Rep.
456 : Day v. Clark, 25 Vt. 397. And this is said to be the more rea-
sonable rule by the annotators of the leading cases in equity (Le Neve
V. Le Neve, 2 Ldg. Cas. 180), and by Mr. Jones (1 Jones on Mortg.
§ 574.) The decided weight of authority is, however, to the contrary,
though Mr. Jones cites none of them as supporting the contrary view,
except the New York decisions. Among others, the following cases
may be noted : Van Rensselaer v. Clark, 17 Wend. (N. Y.) 25, 31 Am.
Dec. 280; Westbrook v. Gleason, '79 N. Y. 23; Clark v. Mackin, 30
Hun (N. Y.) 411; Mahoney v. Middleton, 41 Cal. 41; English v. Wa-
ples, 13 Iowa, 57 ; Fallass v. Pierce, 30 Wis. 443 ; Erwin v. Lewis, 32
Wis. 276; Van Aken v. Gleason, 34 Mich. 477; Bayles v. Young, 51 111.
127.
The question has never been decided in this state, though in Harring-
ton V. Allen, 48 Miss. 492, there is a dictum in which Judge Simrall,
mistaking the facts of his case, seems to favor the Massachusetts rule.
The decisions in Massachusetts and Vermont, while resulting in practi-
cally the same end, proceed on irreconcilable and opposite principles.
In Massachusetts it is held that the purchaser from the grantee in the
deed junior in date, but senior in record, need not examine the records
after the date of the registration of the conveyance to his grantor.
Morse v. Curtis, 140 Mass. 112, 2 N. E. 929, 54 Am. Rep. 456. In Ver-
mont it is held that he is bound by the constructive notice afforded by
the registration of the first deed, that it is notice to him of the fact that
a deed prior to that of his grantor had been made; but is not notice
that his grantor had notice of the first deed ; and so the conveyance to
the purchaser from the second grantee is preferred in Vermont, not
because the purchaser is himself a purchaser without notice, for the
registration of the prior deed is notice of its existence, nor because his
grantor was a purchaser without notice, for that may or may not be
true, but because the purchaser did not know that his grantor was not
a bona fide purchaser, and thus, under the Vermont decision, one may
secure protection as though he were a bona fide purchaser when neither
he nor any one under and through whom he derives title was in fact
858 DERIVATIVE TITLES (Part 2
such purchaser. This rule has no recognition except in Vermont, so
far as we have discovered.
We think the Massachusetts decisions are erroneous, because they
hold that one not bound by the registry law is protected by it. But for
the registry law, where one has conveyed his legal title, he has nothing
left to convey to another, and that other, with or without notice of the
prior conveyance, would get nothing, for his grantor had nothing to
convey. Now, the statute comes and provides that, though a convey-
ance of the class named in the statute may be made, it shall as to cer-
tain persons, viz., creditors and purchasers without notice, be valid only
from a certain time, viz., the time when it is filed for record. In other
words, the operation of the unrecorded conveyance is supended until
it shall be recorded, as against creditors and purchasers without notice,
and, when recorded, it does not operate by relation as against such
persons from the day of its execution, but is effective only from and of
the date of its delivery for record. But when filed for record it has
full scope and effect against the world. One who buys after that event
can find no protection in the statute, for its terms have been complied
with by the holder of the adverse title. It is no answer to say that it is
inconvenient to the purchaser to examine a long and voluminous rec-
ord, made after the record of the title of his grantor. To this the suffi-
cient reply is that, but for the registry acts, he would not have even
the protection which such records afford, but would deal at his peril
with his grantor, and secure only such title as he might assert. If that
grantor Jiad good title because a purchaser for value without notice,
that is a defense to his vendee ; but if such grantor was not such pur-
chaser, then the validity of the title he conveys must depend upon the
character of his vendee, and if such vendee is not a bona fide purchaser
under the common law or the statute, we cannpt perceive from what
source a principle can be deduced which will afford him protection.
It seems clear to us that one who buys an estate cannot invoke the pro-
tection of the registry act as against a deed recorded under such act at
the time of his purchase.^'
TEFFT V. MUNSON.
(Court of Appeals of New York, 1S74. 57 N. Y. 97.)
Appeal from judgment of the General Term of the Supreme Court in
the third judicial department, affirming a judgment in favor of defend-
ants entered upon the decision of the court upon trial at Special Term.
This was an action to restrain defendants, loan commissioners for
Washington county, from foreclosing a mortgage executed to tliem by
Martin B. Perkins and wife.
15 The balance of the opiuion, which discusses the position and rights of Mrs.
L. A. (Jarnett, is omitted.
See Fallass v. Pierce, 30 Wis. 443 (1872), a most interesting case.
Ch. 8) PRIORITIES 859
On the 18th day of January, 1848, Gamaliel Perkins purchased of
Cortland Hovvland certain lands in Washington county, which were
conveyed to him by warranty deed recorded March 7, 1848, in the
clerk's office in said county. Gamaliel Perkins, immediately after his
purchase, let his son, Martin B. Perkins, into possession of the premises,
who forged a deed of the land from his father to himself and placed
it upon record in the clerk's office of said county, May 27, 1850. On
the 1st day of October, 1850, Martin B. and his wife executed a mort-
gage upon said land to the loan commissioners of said county, to secure
the sum of $1,000 loaned to him. This mortgage contained covenants
that Martin B. and his wife were lawfully seized of a good, sure, per-
fect, absolute and indefeasible estate of inheritance in the premises,
and that they were free and clear of and from all former and other
gifts, grants, bargains, sales, liens, etc. ; and this mortgage was,' on the
day of its date, duly recorded in the book kept by the loan commis-
sioners, as required by law. On the 23d of January, 1860, a deed of
said lands bearing date April 1, 1853, was recorded in the county clerk's
office, which purported to be executed by Martin B. and wife to his
father. On the 16th day of December, 1859, Gamaliel Perkins convey-
ed said land to Martin B., by deed recorded January 14, 1860. Until
this conveyance from his father Martin B. had no title to tlie land, al-
though he remained in possession of the same from 1848. On the 31st
day of January, 1867, Martin B., being still in possession of the lands,
conveyed them to the plaintiff, who paid full value for the same with-
out any actual notice of the mortgage to the loan commissioners. The
deed to the plaintiff was recorded February 9, 1867.
The court below decided that plaintiff was not entitled to tne relief
sought and directed a dismissal of the complaint. Judgment was per-
fected accordingly.
Earl, C. The plaintiff claims that the mortgage to the loan com-
missioners has no validity as against him, and that his deed has priority
over it under the laws in reference to the registry of deeds and mort-
gages. It is a principle of law, not now open to doubt, that, ordinarily,
if one who has no title to lands, nevertheless makes a deed of convey-
ance, with warranty, and afterward himself purchases and receives the
title, the same will vest immediately in his grantee who holds his deed
with warranty as against such grantor by estoppel. In such case the
estoppel is held to bind the land, and to create an estate and interest
in it. The grantor in such case, being at the same time the warrantor
of the title which he has assumed the right to convey, will not, in a
court of justice, be heard to set up a title in himself against his own
prior grant ; he will not be heard to say that he had not the title at the
date of the conveyance, or that it did not pass to his grantee in virtue
of his deed. Wark v. Willard, 13 N. H. 389; Kimball v. Blaisdell, 5
N. H. 533, 22 Am. Dec. 476 ; Somes v. Skinner, 3 Pick. (Mass.) 52 ;
Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 567, 49 Am. Dec. 189 ;
Jackson v. Bull, 1 Johns. Cas. 81, 90; White v. Patten, 24 Pick. (Alass.)
8(50 DERIVATIVE TITLES (Part 2
324; Pike v. Galvin, 29 Me. 183. And the doctrine, as will be seen by
these authorities, is equally well settled that the estoppel binds not
only the parties, but all privies in estate, privies in blood and privies in
law; and, in such case, the title is treated as having been previously
vested in the grantor, and as having passed immediately upon the ex-
ecution of his deed, by way of estoppel. In this case, Martin B. Per-
kins conveyed the lands to the loan commissioners, by mortgage with
warranty of title, and thereby became estopped from disputing that,
at the date of the mortgage, he had the title and conveyed it; and this
estoppel applied equally to the plaintiff to whom he made a subsequent
conveyance, by deed, after he obtained the title from his father, and
who thus claimed to be his privy in estate. The plaintiff was estopped
from denying that his grantor, Martin B. Perkins, had the title to the
land at the date of the mortgage, and he must, therefore, for every
purpose as against tlie plaintiff, be treated as having the title to tlie
land at that date.
I, therefore, can see no difficulty in this case, growing out of the law
as to the registry of conveyances. Martin B. Perkins, having title,
made the mortgage which was duly recorded. He then conveyed to-
his father and the deed was recorded. His father then conveyed to
him and the deed was recorded. He then conveyed to the plaintiff and
his deed was recorded. Thus the title and record of the mortgage
were prior to the title and record of the deed to plaintiff, and the prior-
ity claimed by plaintiff cannot be allowed. Assuming it to be the rule
that the record of a conveyance made by one having no title, is, ordi-
narily, ^ nullity, and constructive notice to no one ; the plaintiff cannot
avail himself of this rule, as he is estopped from denying that the
mortgagor had the title at the date of the mortgage. The case of
White V. Patten, supra, is entirely analogous to this. In that case, the
plaintiff derived his title from a mortgage, made to him by one Tliayer,
containing covenants of seizin, warranty, etc., and recorded February
19, 1834. At the time of the execution of this mortgage the title was
not in Thayer, but in one Perry, his father in law. Perry afterward,
by deed, recorded August 2, 1834, conveyed the land in fee simple
to Thayer, who conveyed the land by mortgage to the defendant, re-
corded the same day. The counsel for the defendant used the same
arguments in a great measure, which have been urged upon our atten-
tion by the counsel for the plaintiff in this case, both as to the title and
the registry of the mortgages; and, yet the court held in a very able
opinion, that the plaintiff had tlie prior and better title.
I am, therefore, of opinion that the judgment should be affirmed,,
with costs.
Reynolds, C. (dissenting.) When Martin B. Perkins gave the mort-
gage to the loan commissioners he had possession, but no title to the
mortgaged property. He had forged a deed of the premises from Ga-
maliel Perkins to himself, and caused it to be put on record in the
clerk's office of the county of Washington ; and by this device, imposed
Ch. 8) PRIORITIES 861
upon the loan commissioners. The forged deed, was, of course, a nul-
Hty, and could not in the eye of the law, have any effect by way of
constructive notice or otherwise. It conveyed nothing, and was not a
"conveyance" witliin the meaning of tlie recording acts, and did not
affect the title to the land "in law or equity." It may be assumed,
therefore, that the loan commissioners took the mortgage, knowing that
Martin B, Perkins had no title, it being very clear that they acquired no
legal rights by being imposed upon, against any one, save Martin B.
Perkins. They got no interest in the land, either in law or equity. It
is not in principle, unlike the case of a forged negotiable promissor}-
note, where a bona fide holder for value can have no protection. It
follows, therefore, that tlie entr>' of the mortgage in tlie books of the
loan office at the time it was made, was of no legal consequence what-
ever, except as against the mortgagor. It was no notice under the re-
cording acts ; for it did not in the remotest degree affect the title to the
land described in it. The mortgage contained a covenant of title, and
it seems to be clear, that a title subsequently acquired by Martin B.
Perkins, would, ordinarily, inure by estoppel, or otherwise, to the ben-
efit, of the mortgagees if other rights have not intervened. The title
to the mortgaged premises was in Gamaliel Perkins, from the 18th of
January, 1848, to the 16th of December, 1859, when he conveyed it to
Martin B. Perkins. By this conveyance, the mortgage given by Martin
B. Perkins to the loan commissioners, in October, 1850, acquired legal
vitality by way of estoppel, or in some other form, and if it had then
been in any proper form recorded, constructive notice of its existence,
as a valid lien upon the property, would have been given to all the
world. Itis urged, that there was no necessity of making any further
record of the mortgage, because the title in the mortgagees comes un-
der the warranty by way of rebutter or estoppel. This will not do.
It is sufficient, to say, that by virtue of the transactions under which
the defendants look to enforce the lien of the mortgage, the title to the
land is affected, and such a paper must be properly put on record to
bind subsequent purchasers in good faith.
If this be not so, it is impossible to see how a subsequent bona fide
purchaser can have any protection, and when it is said to be impossible
to record the estoppel which gave the mortgage vitality ; it may be an-
swered; that, until the estoppel became operative, the mortgage was a
nullity and the record of it no notice whatever. When, however, Mar-
tin B. Perkins obtained the title to the premises, it became by some
operation of law vaHd against him; but it was of no greater force or
effect, than if he had on that day given it to the loan commissioners.
It then, for the first time, affected the title to the land, and in order to
bind subsequent purchasers, in good faith, must be duly recorded, and
this was not done in any such way as to operate as constructive notice
under the recording acts.
It is not questioned, but that the plaintiff is to be protected as a bona
fide purchaser, for value, unless the mortgage given in 1850, and then
862 DERIVATIVE TITLES (Part 2
entered in proper order in the books of tlie loan office, which, at the
time, did not affect the title to the land in any way, was constructive
notice of the lien. It is well settled, that a conveyance that is not duly
recorded according to law, even when the actual title has passed, is
not effectual as constructive notice. Frost v. Beekman, 1 Johns. Ch.
288; Lessee of Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417.
Much less can it be, that a conveyance which does not affect the title,
can give any legal notice whatever. In the very best aspect of the de-
fendant's case, the record of the mortgage was made out of the order
required by law, and failed to give notice to anybody dealing with the
title to the land. N. Y. Life Ins. Co. v. White, 17 N. Y. 469 ; Sawyer
V. Adams, 8 Vt. 172, 30 Am. Dec. 459. In this view, the deed of the
plaintiff was first recorded, and he is entitled to protection in his title.
The judgment should be reversed, with costs, the mortgage declared
no lien upon the land of the plaintiff, and the loan commissioners per-
petually enjoined from attempting to enforce it.
For affirmance. Earl, Gray and Johnson, CC.
For reversal, Lott, Ch. C, and Re;ynolds, C.
Judgment affirmed.^'
WHEELER V. YOUNG.
(Supreme Court of Errors of Connecticut, 1903. 76 Conn. 44, 55 Atl. 670.)
Action to foreclose a mortgage and for other equitable relief, brought
to the Superior Court in Fairfield County and tried to the court,
George W. Wheeler, J.; facts found and judgment rendered for the
defendant Young, upon his cross-complaint, and appeal by. tlie plain-
tiff.
Hall, J. The plaintiff asks for a judgment of foreclosure under a
mortgage which on the 13th of December, 1900, was assigned to him
by Burr & Knapp, real estate and mortgage brokers of Bridgeport.
Burr & Knapp as mortgagees received the mortgage from Charles
B. and Edward H. Marsh, builders in Bridgeport, under the firm
name of Marsh Brothers, on the 26th of October, 1900, to secure the
payment of a loan of $3,500 made by them, on that day, to Marsh
Brothers. The mortgage was recorded on said 26th of October at
3 :01 P. M. Burr & Knapp took no other security for said loan, and
Marsh Brothers are insolvent. Both Burr & Knapp and the plaintiff
took said mortgage in good faith, for value, in reliance upon the cer-
tificate of an attorney that the premises were free and clear of all
incumbrance, and that the legal title at the time said mortgage was
given was in Marsh Brothers, and without knowledge of any prior
conveyance by Marsh Brothers to the grantor of the defendant Young,
or of any incumbrance upon said property prior to their mortgage
16 So. also, in Jarvis v. Aikens. supra, p. 801 : Bernardy v. Colonial & U. S.
Mortg. Co., 17 S. D. 637, 98 N. W. 166, 106 Am. St. Rep. 791 (1904).
Ch. 8) PRIORITIES 863
of October 26th. Marsh Brothers obtained title to the premises de-
scribed in the mortgage by a quitclaim deed from Orange Merwin of
Bridgeport, which was executed on the 1st of May, 1900, but not deliv-
ered until the 26th of October, 1900, when it was recorded at 3 :05
P. M. On the same day Marsh Brothers paid to Merwin the purchase
price for said property.
Apparently there was no evidence presented at the trial, other than
the facts herein stated, showing the precise time on the 26th of Octo-
ber when either the deed from Merwin to Marsh Brothers, or the
mortgage from Marsh Brothers to Burr & Knapp, was actually de-
livered, or showing whether or not they were delivered at the same time
and together given to the town clerk to be recorded.
Orange Merwin acquired title from Marsh Brothers by deed executed
and recorded September 8th, 1899. The defendant Harry S. Young,
who is now in possession of the mortgaged premises, claims under a
deed from Alfred Young dated January 2d, 1901. Alfred Young claim-
ed title under a warrantee deed from Marsh Brothers dated April
30th, 1900, delivered and recorded on the 7th of July, 1900. Marsh
Brothers had, on the 21st of April, 1900, agreed with said Alfred
Young to sell him the lot described in the mortgage, and which was
then owned by Merwin, and to erect a house thereon for $4,600, for
which Alfred Young was to transfer to Marsh Brothers a cottage
valued at $3,800, on which there was a mortgage of $2,800 and was
to give a mortgage back, upon the premises purchased, for the re-
mainder of the $4,600. In accordance with such agreement Alfred
Young conveyed the cottage, and on April 30th, 1900, gave to Charles
B. Marsh a mortgage upon the lot in question for $3,500, upon Marsh's
promise not to use it until the house was completed, which mort-
gage Marsh, on the same day, assigned to one IMary E. Beardsley, one
of the defendants.
Alfred Young caused no search to be made of the land records to
ascertain the true state of the title to said land, before receiving said
deed from Marsh Brothers, but relied upon the statement of Charles B.
Marsh that they had acquired title to said land. Young was in the em-
ploy of Marsh Brothers and did as Charles B. Marsh directed, in-
tending no fraud toward any one.
Marsh Brothers commenced the erection of a house upon said lot
in May, 1900, which was apparently completed on the 26th of Oc-
tober, 1900, and Merwin on said day gave his said deed to Marsh Broth-
ers as aforesaid to enable them to carry out their said agreement with
Alfred Young, which was known to Merwin, and on his business rec-
ords Merwin treated the sale as a sale to Young.
The plaintiff has purchased for $1,750 the mortgage so assigned by
Marsh Brothers to Mary E. Beardsley.
Upon these facts the defendant Young claims title to the premises in
question, and by his cross-complaint asks that the mortgage of Oc-
tober 26th, sought to be foreclosed, be declared void.
864 DERIVATIVE TITLES (Part 2
No question is made and none can be made, upon the facts before
us, but that the mortgage deed to Burr & Knapp, and the Merwin
deed to Marsh Brothers, both of which were deHvered on the 26th of
October as above stated and were received for record by 3 :05 P. M.
of the same day, were left for record within a reasonable time after
they were delivered. The mere fact that the deed of Merwin to Alarsh
Brothers appears to have been received for record four minutes later
than the mortgage of the latter to Burr & Knapp, would not justify
a conclusion, especially under the circumstances of this case, that
Marsh Brothers had not received their deed from Merwin at the time
of the delivery of the mortgage to Burr & Knapp, and that for that
reason Burr & Knapp took nothing by their mortgage. Deeds re-
corded within a reasonable time take effect according to the time they
were actually delivered. Hartford Bldg. & Loan Ass'n v. Gold-
reyer, 71 Conn. 95, 100, 41 Atl. 659; Goodsell v. Sullivan, 40 Conn.
83, 85 ; Beers v. Hawley, 2 Conn. 467, 469. The deed and mortgage
were delivered on the same day. The mortgage recites the owner-
ship by the mortgagor at the time of its delivery of the same prop-
erty described in the deed. Looking at the record of the two deeds, the
mortgage therefore indicates upon its face that it was delivered after
or at the same time with the Merwin deed. The Merwin deed, con-
fessedly, not having been recorded when the mortgage was delivered,
Burr & Knapp would be presumed to have ascertained that it had been
delivered before they made the loan of $3,500, and the informa-
tion which they received to that effect does not appear to have been
false. As between the parties to this case and in the absence of any
evidence to the contrary — unless the slight difference in the time the
two deeds were received for record can properly be regarded as conflict-
ing evidence — the Merwin deed must, under the circumstances, be
regarded as having been delivered either before, or at the same time
with, the mortgage, and especially since no one appears to have been
deceived to his injury by the fact that the Merwin deed, which bore
an earlier date than the mortgage, appears to have been received for
record four minutes later than the mortgage.
But we do not understand that the trial court held that the Merwin
deed was in fact delivered after the mortgage, or held that it did
not sufficiently appear that the Merwin deed was delivered first, but
decided that by the common-law doctrine of estoppel the title acquired
by Marsh Brothers from Merwin on the 26th of October inured to the
benefit of Alfred Young, the first purchaser from Marsh Brothers, the
moment Marsh Brothers acquired their title, even assuming that the
deed from Merwin was delivered before the mortgage, and decided that
the title having thus vested in Young there remained nothing which
Marsh Brothers could convey to Burr & Knapp by the mortgage, or
which Burr & Knapp could assign to the plaintiff. *
The rule referred to is, that where one without title has conveyed
with covenants of warranty, and has afterwards acquired title, he
Ch. S) PRIORITIES 865
is estopped from asserting his want of title at the time of making
such first conveyance; and the contention of the defendant is, in
effect, that under this rule, upon the facts before us, not only Marsh
Brothers, but their mortgagees, Burr & Knapp, are estopped from
denying that Marsh Brothers had title at the time of their conveyance
to Young on July 7th, 1900.
To carry this doctrine to the extent of giving priority to the title of
one who from his negligent failure to examine the records has been
induced to purchase land of a person having no title, over that of one
who without negligence, in good faith and for value, and without
knowledge of such prior deed, has purchased, after his grantor has ac-
quired title from one having both the legal and record title, is op-
posed to the principles of equity and to the spirit of our registry laws.
Bingham v. Kirkland, 34 N. J. Eq. 229, 234; Calder v. Chapman, 52
Pa. 359, 91 Am. Dec. 163 ; Farmers' L. & T. Co. v. Maltby, 8 Paige
(N. Y.) 361 ; Way v. Arnold, 18 Ga. 181 ; Salisbury Savings Society
V. Cutting, 50 Conn. 113, and reporter's note, page 122.
The doctrine of estoppel is one which, when properly applied, "con-
cludes the truth in order to prevent fraud and falsehood, and imposes
silence on a party only when in conscience and honesty he should not
be allowed to speak." Van Rensselaer v. Kearney, 11 How. 297, 326,
13 L. Ed. 703. "As understood and applied in modern times, there is
nothing harsh or unjust in the law of estoppels. It cannot be used
but to subserve the cause of justice and right." Buckingham v. Han-
na, 2 Ohio St. 551, 559. "To allow a title to pass by conveyance, ex-
ecuted and recorded before it is acquired, may, therefore, be a sur-
prise on subsequent purchasers, against which it is not in their power
to guard, and is contrary to the equity which is the chief aim of the
doctrine of estoppel as molded by the liberality of modern times." 2
Smith's Lead. Cases (7th Amer. Ed.) page 701, s. p. 634.
It may be said that such estoppel by deed is not an equitable doctrine,
but is a rule of the common law based upon the recitals or covenants of
the deed. We reply, that as a rule of law, it has been so far modified
by the registry laws as to be no longer applicable to cases where its en-
forcement would work such an injustice as to give priority to the title
of one who negligently failed to examine the records before pur-
chasing of a grantor having no title, or who purchased at the risk that
his grantor might thereafter acquire title, over that of a subsequent pur-
chaser in good faith and in reliance upon the title as it appeared of
record. "The whole system of registering deeds of land would become
of no value if a purchaser could not rely upon the records as he finds
them." Kinney v. Whiton, 44 Conn. 262, 270, 26 Am. Rep. 462 ; Whit-
ing v. Gaylord, 66 Conn. ZZ7, 349, 34 Atl. 85, 50 Am. St. Rep. 87. In
the case above cited of Salisbury Savings Society v. Cutting, 50 Conn.
113, the question of whether a deed with covenants of title, given be-
fore the grantor acquired title to the land conveyed, and placed on rec-
Aig.Prop. — 55
8QQ DERIVATIVE TITLES (Part 2
ord, would prevail over a deed given after the title was acquired, to
a purchaser taking it in good faith and without knowledge of the
first deed, was left an open question. The case was decided upon
the ground that the second grantee was neither a purchaser for value
nor, because of certain facts found, a purchaser without notice of
the title of the first grantee. The note to the case by the reporter,
the late Mr. Hooker, contains an able discussion of the question left
undecided by the court, in which he reaches the conclusion that the
deed of the subsequent bona fide purchaser for value and without
knowledge of the prior deed, must prevail, under our registry laws,
over that of the prior recorded deed of the negligent grantee. We
think his reasoning is convincing, and is especially applicable to the
facts of the present case.
The plaintiff here asks for the enforcement of the registry laws.
He says that from September 8th, 1899, until October 26th, 1900, both
the legal and the record title to this property was in Orange Merwin,
and that on said 26th of October his, the plaintiff's, assignors. Burr
& Knapp, purchased from those who on the same day acquired title
from Merwin. The defendaht asks for the enforcement of the law of
estoppel, by which he claims that neither Burr & Knapp, nor the
plaintiff, should be permitted to assert that Merwin had title, and
that Marsh Brothers had no title from September 8th, 1899, until
October 26th, 1900.
In inquiring which of the two grantees. Young or Burr & Knapp, has
acted in good faith and without negligence in purchasing from Marsh
Brothers, and which is entitled to priority of title under the registry
laws, we must examine their conduct in connection with certain facts,
with a knowledge of which they are charged by our registry laws.
The effect given by the law of this State to the proper record of
conveyances of land has been very clearly declared in the recent case
of Beach v. Osborne, 74 Conn. 405, 412-415, 50 Atl. 1019, 1118.
We said in that case, as conclusions from the authorities there cited,
"that eveiy person who takes a conveyance of an interest in real es-
tate is conclusively presumed to know those facts which are appar-
ent upon the land records concerning the. chain of title of the prop-
erty described in the conveyance, and * * * that this presump-
tion of knowledge is for all legal purposes the same in effect as actual
knowledge;" that "this presumed knowledge is present at every step
he takes, at every act he does," and that his good faith and belief
must be, "consistent with actual knowledge of the facts affecting his
title which are apparent upon the land records ;" that "one who fails
to examine to see what the records disclose concerning the title to the
land he proposes to take, is, in the eye of the law, negligent; and
equity does not as a general rule relieve from the consequences of one's
own negligence."
Applying these principles to this case, we find that Alfred Young,
m the eye of the law knew, when he purchased from Marsh Brothers,
Ch. 8) PRIORITIES 867
that they had no title, but that Marsh Brothers on the 8th of Septem-
ber, 1899, had conveyed to Merwin, and that the title was still in Mer-
win, and that it so appeared upon the public records. In contempla-
tion of law, therefore, he did 'not act in good faith, but was negligent
in making such purchase without having first examined to see what the
records disclosed concerning the title to the land he proposed to pur-
chase. When Burr & Knapp took their mortgage from Marsh Broth-
ers on the 26th of October, they knew that the title to the mortgaged
property had been in Merwin from September 8th, 1899, until Octo-
ber 26th, 1900. Since they had no reason to suppose that one having
no title to the property would convey it during that period, they had
no occasion to search the records to ascertain whether Marsh Brothers
had made any conveyance during that period. They were only re-
quired to search against each owner during the time he held the rec-
ord title. The deed of Marsh Brothers to Young was not in the line
of record title, and Burr & Knapp were not charged with knowl-
edge of its existence. See Bingham v. Kirkland, 34 N. J. Eq. 229,
and the other cases cited. It is said, however, that the Merwin deed
was not on record when Burr & Knapp took their mortgage on the
26th of October. But the Merwin deed was not in fact delivered
until that day, and Burr & Knapp had no reason to think that a deed
delivered on that day, and before their mortgage was delivered, that
is, before 3 :01 P. M., ought to, be recorded when their mortgage was
delivered, nor was there any reason why they should require it to
be recorded before accepting the mortgage. The records showed a
good title in Merwin up to the time of the delivery of the mortgage
deed. Burr & Knapp had only to satisfy themselves that a deed had
been given by Merwin to Marsh Brothers that day, which was the
fact, and that no conveyance had been made by Marsh Brothers since
they received their deed from Merwin, which was also true. As
the deed of Marsh Brothers to Young and the mortgage back by
Young to Charles B. Marsh were not incumbrances upon the title of
record, -the information given to Burr & Knapp by the searcher, that
"the premises were free and clear of all incumbrance and the legal
title in Marsh Brothers," was entirely consistent with the facts as they
appeared by the records concerning the chain of title, and the fact that
Marsh Brothers had that day acquired title from Merwin. The facts
before us show that Burr & Knapp acted in good faith, and without
negligence, and without knowledge of the Young deed, and that having
on the 26th of October taken a mortgage from those, who on that
day had received a deed from the legal owners, and the owners of
record, their mortgage is valid. As Alfred Young had no title su-
perior to the Burr & Knapp mortgage when he conveyed to the defend-
ant Young on January 2d, 1901, the defendant Young by his deed of
that date took no title superior to the mortgage. The plaintiff is entitled
to a judgment of foreclosure.
868 DERIVATIVE TITLES (Part 2
There is error in the judgment of the trial court and it is reversed,
and the case remanded for the entry of a judgment of foreclosure in
favor of the plaintiff. (c
In this opinion the other judges concurred/'
HOLDEN V. GARRETT.
(Supreme Court of Kansas, 1S79. 23 Kan. 98.)
Action brought by Nina Garrett against Uriah Stephens and Mar-
tha J. Stephens, his wife, John Dial, John M. Wheeler, W. H. Ryus,
and Howard M. Holden, upon a note, executed by the said Uriah
Stephens, November 25, 1869, payable in seven years and nine months
after date, witli interest at ten per cent, per annum, and to foreclose
a mortgage given at the same time to secure the payment of said note,
by the said Uriah Stephens and wife, upon certain real estate situated
in the county of Pottawatomie. The other defendants were made
parties for tlie purpose of determining any interest they might have in
and to said real estate, and the priority of all claims or liens thereon.
Service of summons was duly made upon all of the defendants. Uriah
Stephens, Martha J. Stephens and W. H. Ryus filed no answers, but
made default in said action. John Dial, John M. Wheeler and Howard
M. Holden, each filed separate answers in the action, setting up his
claim or interest in said real estate. Trial at the August Term, 1878,
of the district court, by the court, (a jury being waived,) when the
court found for the plaintiff, and against all of the defendants except
Dial, whose claim to the land described in his answer tlierein w^as con-
ceded by the plaintiff, and judgment was accordingly rendered in favor
of tlie plaintiff', Nina Garrett, for the amount due on said note, and
declaring said mortgage to be a prior and first lien upon the lands
therein described as against the clairn or interest of any and all of the
other defendants. Holden brings the case to this court for review.
The facts, as they appear in the plaintiff's petition, the answer of
the defendant Holden, and the testimony on their part, are in sub-
stance as follows : Prior to the 25th day of November, 1869, the said
Nina Garrett was tlie owner in fee, in her own right, of the real estate
described in her said petition, situated in the county of Pottawatomie.
On said 25th day of November, 1869, the plaintiff being a minor, said
real estate was sold under the direction of the probate court of Wyan-
dotte county, by virtue of an order of said court, by Eliza J. Stone, the
legally-constituted guardian of the plaintiff", and by her conveyed to
Uriah Stephens. The note and mortgage sued on in said action were
given for a portion of the purchase money therefor. This mortgage
was not recorded until March 5th, 1875, at which time it was duly
17 Iiichardson v. Atlantic Coast Lumber Corporation, 93 S. C. 254, 75 S. E,
371 (I'Jil'l, ace.
Ch. 8) PRIORITIES 869
recorded in the office of the register of deeds for the county of Pot-
tawatomie. On the 4th and 12th days of March, 1874, respectively,
two certain personal judgments were rendered by the consideration
of the district court of Wyandotte county against the said Uriah
Stephens, and in favor of Jacob Luke and John Olson and Nels Olson,
respectively. Afterward, executions were issued by the clerk of said
district court of Wyandotte county on said judgments, directed to the
sheriff of the county of Pottawatomie; and on the 20th day of July,
1874, these executions were, by the sheriff of said county of Pottawa-
tomie, levied upon a portion of the lands described in the mortgage of
said plaintiff. No sale was made or attempted under and by virtue of
said executions, but the same were returned to the court from which
they were issued, and ahas and pluries executions issued, which were in
turn levied upon said lands until the 25th day of November, 1876,
when a sale tliereunder was made by the sheriff of the county of Pot-
tawatomie, to one W. PI. Ryus. On the 30th of March, 1876, the two
above-named judgments were assigned to Holden, and the assignments
thereof were duly filed in the office of the clerk of the district court
of Wyandotte county. Whatever interest Holden had in said real es-
tate was derived from the said sherift''s sale to W. H. Ryus.
Brewer, J. The contest in this case is between one who claims un-
der the lien of an execution levy, and the holder of a prior but un-
recorded mortgage. The judgment was in a county other tlian that
in which the land was situate, and was rendered long after the ex-
ecution of the mortgage. The lev^ was made before, but the sale
not till after, the record of the mortgage. There was no actual notice
of the existence of this mortgage. On the one side it is claimed that
by virtue of section 21, ch. 22,'Gen. St. p. 187, which reads as fol-
lows : "No such instrument in writing shall be valid except between
the parties thereto, and such as have actual notice thereof, until the
same shall be deposited with the register of deeds for record," the
mortgage is to be considered as though it had no existence, and the
land as free from any incumbrance at the date of the levy, and that
the lien then secured by the levy ripened into a title by the sale, and
was paramount to the lien created by the subsequent record of the
mortgage; and on the other hand it is claimed that the lien of the
levy was only upon the actual interest of the judgment debtor in the
real estate, and that as such interest was in fact limited by the mort-
gage, only such limited interest was seized and bound by the levy.
Of course, this is but part and parcel of a still broader question,
and that is, does the lien of an execution levy extend to only the ac-
tual, or does it also reach the apparent, title of the judgment debtor?
Is the inquiry restricted to the face of the record, or may it pass to
the actual facts ? Authorities are not wanting to support either view,
and cogent reasons may be adduced in favor of each. On the one
hand it may be said with force that if the mortgage lien is adjudged
paramount, then the section quoted is practically nullified, and an in-
870 DERIVATIVE TITLES (Part 2
strument which the statute declares* invalid is pronounced valid ; and
on the other, that if the levy is adjudged paramount, tlien the statute
which authorizes a levy upon the lands, tenements and hereditaments
of the debtor is extended so as to sustain a levy upon lands which are
not in fact wholly his.
With much hesitation, and after a long and careful examination of
the question in its various relations, we have reached the conclusion
that the lien of the m.ortgage must be adjudged prior and paramount.
These are the reasons which have controlled us : It gives exact force
to the statute declaring to what a judgment lien and an execution levy
extend. Judgments "shall be liens on the real estate of the debtor,
within the county." Dassler's Comp. Laws 1879, p. 656, § 419. This
evidently contemplates actual and not apparent ownership. The judg-
ment is a lien upon that which is his, and not that which simply ap-
pears to be his. How often the legal title is placed in one party when
the equitable title, the real ownership, is in others. Many reasons
induce this — convenience in managing, facility in passing title, number
of parties interested, and others needless to mention. And yet the
record discloses only the naked legal title. Now if the judgment is a
lien upon all that appears, it will cut off all the undisclosed equitable
rights and interests. To extend the lien to that which is not, but which
appears of record to be the defendant's, is to do violence to the lan-
guage. "Real estate of the debtor" plainly means that which is in fact
of or belonging to the debtor. And he who claims under a judgment
lien can take no more than the statute gives. The question is not what
rights some one else may have, but what rights does he acquire? The
answer to this question must first and chiefly be sought in the statute
which gives and defines the extent of that lien. The section defining
the extent of the execution levy may not be quite so clear in its indica-
tions, and yet, taken in connection with that cited concerning the judg-
ment lien, it is perfectly plain. "All real estate, not bound by the lien
of the judgment, as well as goods and chattels of the debtor, shall be
bound from the time they shall be seized in execution." Dassler's
Comp. Laws 1879, p. 660, § 444. It might be argued that the words
"of the debtor" only qualify the immediately preceding words, "goods
and chattels," and not the prior clause, "all real estate," etc. ; but, com-
paring the two sections together, it is plain that no larger or other
interest is taken by the levy of an execution upon real estate outside
the county, than is covered by the lien of the judgment upon real
estate within the county. Again, this construction of the extent to
which the lien goes was settled early in the history of this court, and
has never been departed from. In Swarts v. Stees, 2 Kan. 241, 85
Am. Dec. 588, Crozier, C. J., speaking for tlie court, says : "Their lien,"
(i. e., the hen of judgment creditors,) "is upon the lands and tenements
of the debtor, and not upon lands and tenements not in fact belonging
to him." True, the decision in that case was under a different record-
ing act, and much of the argument in the opinion is entirely inapplica-
Ch. 8) PRIORITIES 871
ble to the present question; but still, the extent of a judgment lien
is plainly recognized and stated. See also Harrison v. Andrews, 18
Kan. 542. It may also here be remarked, tliat we have had occasion
to notice the fact that priority of lien or title, even in the absence of
actual notice, does not always hinge upon, the mere priority of record.
Other matters may enter into and affect the question, and equities not
shown of record may control. School District v. Taylor, 19 Kan.
287; Tucker v. Vandermark, 21 Kan. 263. Again, it may be laid
down as familiar law, that a judgment creditor is not a bona fide pur-
chaser. He parts with nothing to acquire his Hen. He is in a very
different position from one who has bought and paid, or has loaned on
the face of a recorded title. The equities are entirely unlike. One
has, and the other has not, parted with value upon the face of the
record. If the real prevails over the apparent title, the one is no worse
off tlian before he acquired his lien — has lost nothing; while the other
loses the value paid or loaned. Hence equity will help tlie latter,
while it ciares nothing about the former. Further, in nearly every
state in which an unrecorded mortgage has been postponed to a judg-
ment lien, the statute has expressly declared that such a mortgage shall
be void as against creditors ; and tlie courts have laid stress upon this
fact in their opinions. Thus, the statute of Illinois, 1845, p. 108, § 23,
provides : "All deeds, mortgages or other instruments of writing which
are required to be recorded, shall take effect, and be in force after
the time of filing the same for record, and not before, as to all cred-
itors and subsequent purchasers, without notice ; and all such deeds
and title papers shall be adjudged void as to all such creditors and
subsequent purchasers, without notice, until the same shall be filed for
record." It has been decided under this statute that a deed not filed
for record is, as to creditors and subsequent purchasers, wholly with-
out effect. Martin v. Dryden, 1 Oilman (111.) 187; Cook v. Hall, 1
Oilman (111.) 575; Choteau v. Jones, 11 111. 300, 50 Am. Dec. 460;
Kennedy v. Northup, 15 111. 148; Curtis v. Root, 28 111. 367; Brook-
field v. Goodrich, 32 111. 363.^« See also McNitt v. Turner, 16 Wall.
352, 21 L. Ed. 341. ^« * * *
The only other state ^° in which we have found or been referred to
a statute exactly like ours is Iowa, in which at one time was in force a
section like the one first quoted in this opinion. Under that in Brown
V. Tuthill, 1 G. Greene (Iowa) 189, it was held that a "lien by attach-
ment will hold against a prior unrecorded deed." The section of
the statute w^as soon after modified, and in a case arising under tlie
18 Not uncommonly the statutes extend the protection to creditors. By con-
struction, however, the benefit of such sttitutes generally has been limited to
lien creditors. See the cases referred to in 24 Am. & Eng. Encyc. of Law, 126
et seq.
19 A portion of the opinion, in which tlie court reviews the statutes of a
number of states and the decisions thereunder, is omitted.
20 That is, besides Missouri. See Davis v. Owenby, 14 Mo. 170, 55 Am. Dec. 105
(1851), quoted from and relied upon in the portion of the opinion omitted.
872 DERIVATIVE TITLES (Part 2
new law, (Norton v. Williams, 9 Iowa, 528), the court says: "We
incline to .the opinion that, under the statute of 1843, the case of Brown
V. Tutliill is against the current of the decisions."
The weight of authority, therefore, upon the exact statute before
us, is decidedly with the conclusion we have reached. Without ex-
tending this opinon, we close by saying that our conclusion gives full
and exact force to the statute which creates and defines a judgment
lien; that it is in accord with the prior adjudications of this court;
that it sustains and enforces the real equities of all parties; and that
it is upheld by the decided weight of authority elsewhere upon the
exact question.
The judgment will be affirmed. All the Justices concurring.^*
STERNBERGER & WILLARD v. RAGLAND.
(Supreme Court of Ohio, 1S97. 57 Ohio St. 14S, 48 N. E. Sll.)
Error to the Circuit Court of Jackson county.
On the 22d day of January, 1889, the defendant in error, William
Ragland, purchased a town lot in Jackson, from the Wood-Co£fman
Manufacturing Company, then the owner thereof, and obtained a deed
for the same in fee simple. He paid a part of the purchase price, at
the time of the conveyance to him, and gave a mortgage on the lot to
secure the payment of the balance. This mortgage, which contains a
recital that it was given to secure tlie unpaid purchase money, was re-
corded in April, 1889. The deed was never filed for record. After
the conveyance was made and the mortgage recorded, judgments were
recovered in the court of common pleas of Jackson county, against
Ragland's grantor, which were purchased in good faith by the de-
fendant in error, Morris L. Sternberger, who paid full value therefor ;
and executions issued thereon were levied on tlie lot in question, which
then appeared of record to belong to the judgment debtor, and it was
thereafter sold under the writs to satisfy the judgments. Sternberger
became the purchaser at the sale, which was confirmed by the court,
and tlie sheriff in pursuance of the order of the court executed a deed
to Sternberger for the lot, in due form of law, which he caused to be
placed upon record. The proceeds of the sale, after payment of the
costs and taxes, were applied under the order of the court toward the
satisfaction of the judgments. Sternberger then sold, and conveyed
by quitclaim deed, the undivided one-half of the lot to his co-plaintiff
in error, Henry S. Willard, who paid full value therefor, and promptly
placed his deed on record.
21 Under the Ohio mort,gage registry statute a judgment lien takes precedence
over a mortgage executed before the lien attached, but recorded after. Jack-
son V. Luce, 14 Ohio, 514 (1846). But it seems that in Ohio recording of mort-
gages is really a part of their execution.
Ch. 8) PRIORITIES 873
Thereafter, Ragland brought suit to quiet his title to the lot against
Sternberger and Willard, who set up their respective claims to its own-
ership. The case went on appeal to the circuit court where a finding
was made of the facts, which, in addition to those already stated, are
as follows: "The lot described in the petition was not improved, or
fenced, and not occupied except occasionally for the storage of small
quantities of lumber by the plaintiff, and some fence posts have re-
mained and still remain on said lot; otherwise, said lot was vacant,
and, at the time of the purchase by said Sternberger, at sheriff's sale,
the character and nature of the plaintift''s possession was not of such
nature as to place said Sternberger upon inquiry or notice, nor was it
of such a character as to place said Willard upon inquiry nor notice
when he purchased. The Wood-Coffman Manufacturing Company
was, upon the deed records of said county, the apparent owner when
the sheriff's sale was made. The defendant, Morris L. Sternberger,
when he purchased said lot at sheriff's sale, paid value therefor in the
purchase of said judgments, and he had no notice, actual or construt-
tive, of plaintiff's claim thereto, unless the mortgage of plaintiff to said
company was constructive notice, which we hold not to be constructive
notice to him; and the defendant, Willard, when he purchased from
said Sternberger, paid value therefor, and he had no notice, actual or
constructive, of plaintiff's claim, unless such mortgage was construc-
tive notice, which we hold was not constructive notice to him ; and
neither of the defendants had notice of plaintiff's deed to said lot or
claim, thereto."
Upon tliis state of facts the court held, as its conclusions of law,
as appears from the record that : "The Wood-Coffman Manufacturing
Company having conveyed said lot by deed to plaintiff, although said
plaintiff never had said deed recorded, had no further interest in said
lot which could be sold at judicial sale, although it was the apparent
owner of said lot upon the records, and the defendant, Sternberger,
though purchasing said lot for value and without notice, could not ob-
tain title thereto by purchasing at said judicial sale."
Thereupon judgment was rendered against Sternberger and Willard,
which they seek to have reversed here.
Williams, J. The question in the case is whether Sternberger, un-
der the judicial sale, became a bona fide purchaser within the rule
which protects such purchasers against unrecorded conveyances. It
must be regarded as established by the facts found in the court below,
that there was not- such possession of the lot by Ragland as put Stern-
berger upon inquiry, or charged him with notice of any claim or equity
of the former, either, when the judgments were recovered, or the ex-
ecutions levied, or when the sale was made and confirmed, or the deed
from the sheriff was received by Sternberger; and also, tliat Stern-
berger was without any actual knowledge of Ragland's unrecorded
deed, or of any claim by him to any interest in the lot.
The record of the mortgage executed by Ragland for the unpaid pur-
874 DERIVATIVE TITLES (Part 2
chase money for the lot, was not constructive notice of his unregistered
deed, to a subsequent purchaser from his grantor.
When a prospective purchaser finds a complete record title in the
proposed seller, he is not bound to examine for mortgages made to
the latter after he became the owner; such a mortgage is not in the
chain of his title, and is not, therefore, constructive notice to a sub-
sequent purchaser, of a prior unrecorded deed made by him to the
mortgagor. The circuit court so held. But, notwithstanding its find-
ing that Sternberger was a purchaser at the judicial sale for value and
without notice, actual or constructive, of any adverse claim of Ragland
to the premises he so bought, the judgment of the court was adverse
to him. The judgment appears to rest upon the ground that tlie deed
to Ragland, though unrecorded, divested his grantor of all interest in
the lot, and thereafter nothing remained in tlie judgment debtor, al-
though appearing of record to be the owner of the lot, upon which
the judgments became liens, or that could be sold at judicial sale there-
under.
It is undoubtedly the general rule, except in so far as it is modified
and controlled by statute, that a judgment creditor obtains a lien only
on such interest in lands as his debtor had when the judgment was
rendered, and, it is subject to such equities as could then be success-
fully asserted against the debtor. But our statute (section 4134, Re-
vised Statutes 1890), requires that all deeds and instruments for the
conveyance of lands, or interests therein, "shall be recorded in the of-
fice of the recorder of the county in which the premises are situated,"
and provides that, "until so recorded or filed for record, the same shall
be deemed fraudulent, so far as relates to a subsequent bona fide pur-
chaser, having, at the time of purchase, nO' knowledge of the existence
of such former deed or instrument." This statute renders any prior
unrecorded deed wholly ineffectual to convey the title out of the gran-
tor, as against a subsequent bona fide purchaser from him, and leaves
him with as full and ample power to convey a good title to such sub-
sequent purchaser as if the prior conveyance had not been made. And,
it is settled by the adjudications of this court, that purchasers at ju-
dicial sales, without notice of a prior unrecorded deed from the judg-
ment debtor, are within the protection of the statute equally with pur-
chasers at private sale. Scribner's Lessee v. Lockwood, 9 Ohio, 184;
Morris v. Daniels, 35 Ohio St. 406.
The title acquired by Sternberger at the judicial sale was, therefore,
superior to that of Ragland, unless the former is to be denied the
position of a bona fide purchaser because he was the owner of the
judgments under which the sale was made.
It is claimed that as he was the owner of the judgments at the time
of his purchase, and their satisfaction pro tanto was the only consid-
eration he paid, he does not come within the rule in favor of bona fide
purchasers. This position is sought to be sustained by Lewis v. Ander*
son, 20 Ohio St. 281. But that case simply holds, that; "Where there
Ch. 8) PRIORITIES • 875
is no consideration for a mortgage of real estate other than a pre-exist-
ing debt of the mortgagor, and the mortgagee is not induced thereby
to change his condition in any manner, he cannot be regarded as a
bona fide purchaser for value."
That decision is placed upon the ground, as stated in the opinion,
that, "the rule which favors a bona fide purchaser of land, and that
which protects the holder of negotiable paper for value before due
from infirmities affecting the instrument before it was transferred, are
based substantially on the same equitable grounds, and upon tlie policy
of the law which favors trade and the security of titles, as conducive
to the public good." And in that case, Roxborough v. Messick, 6
Ohio St. 448, 67 Am. Dec. 346, is cited, where the rules applicable in
determining what considerations are sufficient to protect the holders
of commercial paper are fully considered, which, as there laid down,
have since been regarded as the settled law on that subject. It is there
held, that while a voluntary transfer of a negotiable instrument to se-
cure a pre-existing debt, where the parties are left in respect to such
debt in statu quo, tliere being no new consideration, stipulation for
delay, or credit given, or right parted with, is not sufficierit to protect
the holder against equities existing between the prior parties at the
time of the transfer, yet, when the note is transferred in payment of
the precedent debt, the consideration is sufficient to entitle the holder
to such protection. "The weight of authority," says Swan, J., in that
case, "seems to settle the principle, that where a negotiable instrument
of a third person is transferred before due, in payment of a pre-exist-
ing debt, and is bona fide received by the creditor, without notice, tlie
defenses existing as between the prior parties cannot be set up against
such holder." And that learned judge further says, in that case, tliat
there is "no substantial difference between the consideration for the
transfer of negotiable paper in payment of a precedent debt, or in
payment of goods sold at the time of such transfer." Applying these
principles to a purchaser of real property, it was held in Clements v.
Doerner, 40 Ohio St. 632, that a purchaser who takes a conveyance of
real estate in payment of a pre-existing debt is a bona fide purchaser
for value, and entitled to be protected as against a prior defective mort-
gage made by his grantor. When the conveyance is received in pay-
ment of the debt, there is a change in the situation of the parties ; the
debt is for tlie time being, at least, discharged ; and, though the cred-
itor may be restored, upon failure of his title to the property, to his
right to enforce the collection of the debt, so recovery may be had
for any other consideration parted with for the property, where the
title for any cause fails.
If it be said Sternberger could have the satisfaction of his judgments
vacated and new process issued for the collection of the judgments
out of any property of the judgment debtor, so, any stranger, who
might have become the purchaser at the sale, would be entitled to the
same remedy. Revised Statutes 1890, §§ 5410, 5412. The necessity
876 DERIVATIVE TITLES (Part 2
of resorting to such a remedy is sufficient, of itself, to show that a sub-
stantial change occurred in tlie situation of the parties by the satisfac-
tion of the judgments on the confirmation of tlie sale; and the neglect
of Ragland to have his deed placed on record, does not entitle him to
drive the purchaser, in either case, to that remedy. Had Sternberger
made his purchase at private sale,- instead of at a judicial sale, there
could be no doubt, we think, of the superiority of his right to the prop-
erty over that of Ragland; and his right in that respect is none tlie
less, because the conveyance was made through the instrumentality of
the sheriff and the forms of judicial proceedings, instead of immedi-
ately from the judgment debtor. The deed of the sheriff conveyed a
title as good and complete as the judgment debtor could have con-
veyed.
In the note to Basset v. Nosworthy, 2 Leading Cases in Equity, 110,
111, the conclusion reached after a full discussion of the subject, and
review of the cases, is that the weight of authority in tliis country is
"in favor of the proposition that a purchaser at a judicial sale, stands
on the same footing with a purchaser directly from the debtor; and,
that a purchaser at such sale will take the land discharged of any
claim or title, whether arising under an unregistered deed, or a mere
equity, of which he had no notice at tlie time of the purchase, and
which would be invalid as against an ordinary purchaser;" and fur-
thermore, that the rule is the same "when the judgment creditor be-
comes the purchaser, because the money which he pays goes in sat-
isfaction of the debt; and every additional bid is necessarily an ad-
vantage to the defendant in the judgment." The following, among oth-
ers, may be added to the cases there cited in support of the rule as
stated: Foorman v. Wallace, 75 Cal. 552, 17 Pac. 680; Evans v. Mc-
Glasson, 18 Iowa, 150; Butterfield v. Walsh, 21 Iowa, 97, 89 Am.
Dec. 557; Rorer on Judicial Sales, sec. 866.
Judgment reversed and judgment for the plaintiffs in error. ^^
22 Minshall and Spear, JJ., dissented in part and from the judgment of re-
versal.
See Shirk v. Thomas, 121 Ind. 147, 22 N. E. 976, 16 Am. St Rep. 381 (1SS9),
senible contra.
Compare Gary v. WMte, 52 N. Y. 138 (1873), where a mortgage given as se-
curity for a pre-existing debt, there being no surrender of securities nor ex-
tension of time by the mortgagee, was held to be inferior to an eai-lier imre-
corded deed of the mortgagor. See, too, Western Grocer Co. v. Alleman, 81
Kan. 543, 106 Pac. 460, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398 (1910).
A., a creditor of X., acquires a lien by judgment upon land of X. in a state
where creditors are within the protection of the recording acts. A. has no no-
tice of an earlier unrecoi-ded deed by X. On sale of the land under A.'s judg-
ment, B., who knows all about the unrecorded deed, purchases same and re-
ceives a deed therefor. What is the situation as between him and the grantee
in the unrecorded deed? See Grace v. Wade, 45 Tex. 522 (1876).
Ch. 8) PRIORITIES 877
STRONG V. WHYBARK.
(Supreme Court of Missouri, 1907. 204 IMo. 341, 102 S. W. 908, 12 L. R. A. [N.
S.] 240, 120 Aiu. St. Rep. 710.).
Woodson, J. This is a bill in equity, instituted in the circuit court
of Butler county, wherein plaintiff seeks to have her title quieted to
five hundred and twenty acres of land. John R. Boyden was one of
the several defendants named in the bill. He filed an answer claiming
an interest in and to one hundred and sixty acres of said land, and
also denied generally the allegations of the bill. No point is made
against the pleadings, and he is the only defendant whose interest is
involved in this appeal.
The facts in the case are undisputed and are as follows :
Seth D. Hayden was the common source of title, and on March 6,
1861, by his warranty deed, for a recited consideration in the deed of
six hundred and forty dollars, conveyed said land to William A. Moore,
and on August 26, 1863, said Hayden, by his quitclaim deed, for a re-
cited consideration of "natural love and affection and five dollars,"
conveyed the same land to Josephine Hayden. The deed to Hayden
was recorded April 11, 1868, and the one to Moore was recorded De-
cember 14, 1874.
The plaintiff's title is derived through mesne conveyances from
Josephine Hayden, while defendant's title is derived through similar
conveyances from William A. Moore. It was admitted that the land
.was wild and unoccupied. This was all the evidence in the case.
The court found for defendant and rendered judgment for him.
The plaintiff in due time filed his motion for a new trial, which was
overruled by the court, and to the action of the court in overruling said
motion the plaintiff duly excepted, and has appealed the cause to this
court.
I. The sole question involved in this case is, did the subsequently
executed quitclaim deed of Seth D. Hayden to Josephine Hayden, dated
August 26, 1863, by virtue of its prior recordation, have the force and
effect of conveying to her the title to the land in controversy by force
and operation of the registry act, and thereby render invalid and inop-
erative the prior warranty deed made by him to William A. Moore,
dated March 6, 1861, but not filed for record until December 14, 1874?
There is no evidence whatever in this record tending to show that
Josephine Hayden had any notice or knowledge of the execution of the
prior unrecorded warranty deed from Seth D. Hayden to said Moore,
at the time he made the quitclaim deed to her, nor is there any evi-
dence of fraud or collusion between Seth D. Hayden and Josephine
Hayden. Both William A. Moore and Josephine Hayden neglected for
years to file their deed for record, as provided for by section 923,
Revised Statutes 1899, yet the latter filed her deed about six years prior
to the time when he filed his.
878 DERIVATIVE TITLES (Part 2
The statute provides that "no such instrument in writing shall be
valid, except as between the parties thereto, and such as have actual
notice thereof, until the same shall be deposited with the recorder for
record." Rev. St. 1899, § 925.
According to the provisions of this section, the deed from Hayden
to Moore was invalid and conveyed no title to the land in controversy
in so far as Josephine Hayden was concerned, because she had no no-
tice of its execution at the time she filed her deed for record. If the*
exception mentioned in the section just quoted was the only exception
or limitation to that statute, then there would be no question as to the
title of Josephine Hayden and those claiming under her, but the courts
upon principles of equity and justice have repeatedly held that if Ijhe
subsequent purchaser either had notice of the prior unrecorded deed,
or if he was a purchaser without having paid a good and valuable con-
sideration for the land, then he would take nothing by his purchase and
deed. Maupin v. Emmons, 47 Mo. 304 ; Aubuchon v. Bender, 44 Mo.
560. The question which now presents itself is, was Josephine Hayden
a purchaser of the land in question for a good and valuable considera-
tion? The deed recites that the conveyance was made for and in "con-
sideration of natural love and affection and five dollars to him in hand
paid by the party of the second part, the receipt of which is hereby
acknowledged."
A valuable consideration is defined to be money or something that
is worth money. 2 Washburn on Real Prop. (4th Ed.) p. 394; 1
Chitty on Contracts (11th Am. Ed.) 27. It is not necessary that the
consideration should be adequate in point of value. Although small
or even nominal, in the absence of fraud, it is enough to support a
contract entered into upon the faith of it. Forbs v. Railroad, 107
Mo. App. loc. cit. 674, 82 S. W. 562; Marks v. Bank, 8 Mo. 316;
Ridenbaugh v. Young, 145 Mo. loc. cit. 280, 46 S. W. 959; Blaine
V. Knapp & Co., 140 Mo. loc. cit. 251, 41 S. W. 787; Anderson v.
Gaines, 156 Mo. 664, 57 S. W. 726; Green v. Higham, 161 Mo. 333,
61 S. W. 798, 6 Am. and Eng. Ency. Law (2d Ed.) p. 694, par. 5. It
seems to us that it would be a useless waste of time and energy to
cite authorities in support of the proposition that five dollars or any
other stated sum of money in excess of one cent, one dime, or one
dollar, which are the technical words used to express nominal consid-
erations, is a valuable consideration within the meaning of the law of
conveyancing.^*
23 In Morris v. Wicks, 81 Kan. 790, 106 Pac. 1048, 26 I>. R. A. (N. S.) 681, 19
Ann. Cas. 310 (1910), the consideration paid was one dollar. Held not suffi-
cient to make out a case of bona fide purchaser for value. But in Ennis v.
Tucker, 78 Kan. 55, 96 Pac. 140. 130 Aw. St. Rep. 352 (1908), a consideration of
^iO, though inadequate, was held sufficient to make out a case of purchaser
for value.
In Ten Eyck v. Witbeck, 135 N. Y. 40, 31 N. E. 994, 31 Am. St. Rep. 809 (1892),
the subsequent conveyance was made toi a child of the grantor in considera-
tion of $10 paid and ani agreement by the Sjrantee to pay annually to designated
persons the receipts from the property. The property was worth twenty thou-
Ch. 8) PRIORITIES 879
It has been suggested that a quitclaim deed is notice of pre-exist-
ing equities, and that those who claim under Josephine Hayden had
notice that her title to this land was questionable, and that neither she
nor they could defend upon the ground that they were bona fide pur-
chasers for valuable consideration without notice of the title of the
true owner. Stivers v. Home, 62 Mo. 473; Mann v. Best, 62 Mo.
491 ; Ridge way v. Holliday, 59 Mo. 444.
But the rule last suggested has no application to a case where the
grantee under a subsequent quitclaim deed from the same grantor ac-
quired the title for value and without notice of the former unrecorded
deed. Fox v. Hall, 74 Mo. 315, 41 Am. Rep. 316. "A purchaser for
value by quitclaim deed is as much within the protection of the registry
act as one who becomes a purchaser by a warranty deed." Munson
V. Ensor, 94 Mo. loc. cit. 509, 7 S. W. 110; Campbell v. Gas Co., 84
Mo. 352; Brown v. Coal Co., 97 111. 214, VI Am. Rep. 105; Elliott
V. Buffington, 149 Mo. loc. cit. 676, 51 S. W. 408; Ebersole v. Rankin,
102 Mo. 488, 15 S. W. 422.
Where the controversy is between the vendee of a duly recorded
deed and the vendee of a prior unrecorded deed from the same ven-
dor, the settled rule of law in this State seems to be that the considera-
tion in the latter must be such as the law denominates a valuable con-
sideration as distinguished from a good consideration. We know of
no case which has gone farther and holds that the purchaser under
the recorded deed must have paid a full and adequate consideration
for the land.
If fraud is made an issue in the case, then the inadequacy of the
consideration paid may be taken into consideration with all the other
facts and circumstances in the case for the purpose of establishing
fraud; but in the absence of fraud, a want of consideration cannot
be shown against a recital of consideration for the purpose of de-
feating the operative words of a deed. Bobb v. Bobb, 89 Mo. 411,
4 S. W. 511; Henderson v. Henderson's Ex'rs, 13 Mo. 151; Hol-
locher, v. Hollocher, 62 Mo. loc. cit. 273; McConnell v. Brayner,
63 Mo. loc. cit. 463 ; McCrea v. Purmort, 16 Wend. (N. Y.) 475, 30
Am. Dec. 103; Farrington v. Barr, 36 N. H. 86; Kimball v. Walker,
30 in. 511.
sand dollars. Held that the child was not a purchaser for valuable considera-
tion under the recording statute so as to be preferred over an earlier unrecord-
ed deed of the same grantor. The court said : "We deem it unnecessary to
undertake to determine here what degree of adequacy of price is required to
uphold a subsequent deed first recorded. Upon this branch of the case we have
no occasion to go, fartlier. than to hold that a small sum, inserted and paid,
perhaps because of a popular belief that some slight money consideration is
necessary to render the deed valid, will not of itself satisfy the terms of the
statute, where it appears upon the face of the conveyance, or by other competent
evidence, that it was not the actual consideration."
See, also, Dunn v. Bamum, 51 Fed. 355, 2 C. C. A. 265 (1S92), where the con-
sideration for the second conveyance was $100, the property then being worth
$30,000, and at time of the suit $1,000,000.
880 DERIVATIVE TITLES (Part 2
In the case at bar, however, there was no evidence introduced tend-
ing to prove the recited consideration of five dollars was not in fact
paid.
Counsel for defendant, in both his oral and written arguments, con-
tends that Josephine Hayden procured her deed from Seth D. Hay-
den by fraud. It is a sufficient answer to that to say that no such issue
is made by the pleadings in the case, nor was there a word of evidence
introduced at the trial tending to establish that fact.
If defendant wished to rely upon fraud as a defense, he should have
alleged and proved it. The burden of proving such an issue is upon
the defendant. Jackson v. Wood, 88 Mo. 76; Nauman v. Oberle,
90 Mo. 666, 3 S. W. 380; Taylor v. Crockett, 123 Mo. 300, 27 S. W.
620.
It follows from what has been said that the judgment of the circuit
court must be reversed, and the cause remanded for a new trial. All
concur.^*
THOMAS V. STONE & GRAHAM.
(Court of Chancery of Mieliisan, 184,3. Walker Ch. 117.)
This was a bill to foreclose a niortgage.
The complainant, January 31st, 1837, in consideration of $900, con-
veyed to Stone certain real estate situate in Auburn, Oakland county,
and took back a mortgage on the same premises, for $800 of the pur-
chase money. On the 24th day of August following, and before the
mortgage to Thomas was recorded. Stone conveyed the premises
to Graham by warranty deed, which was recorded on the same day.
The bill charged Graham with notice of the mortgage when he pur-
chased, and that nothing had been paid by him to Stone. Graharn, by
his answer, denied all notice, and stated that, at the time of the exe-
cution of the deed to him, he executed and delivered to Stone his
obligation for $200, which was unpaid, and also a bond in the penal
sum of $800, conditioned to reconvey a part of the premises to Stone,
on his .return from the South, where he expected to be gone five years.
The bill was taken as confessed against Stone, who was a non-resident
defendant. Several witnesses were examined by complainant; and
Graham, by consent of the parties, was examined concerning the
consideration that had been paid by him.
The: Chancellor.^^ The mortgage to Thomas and the deed to
Graham, were given long before the Revised Statutes took effect; and,
by the statute in force at the time for the registry of mortgages, it was
provided that no mortgage, nor any deed, conveyance, or writing, in
the nature of a mortgage, should defeat or prejudice the title or interr
24 See, further, Browoi v. Welch, IS 111. 343, GS Am. Dec. 549 (1S57).
25 A portion of the opinion is ouiitted.
Ch. 8) PRIORITIES 881
est of any hcfna fide purchaser of any lands or tenements, unless the
same had been duly registered. Laws of Michigan 1833, p. 284, § 2.
A plea of a bona fide purchaser without notice must aver not only a
want of notice at the time of the purchase, but also at the time of its
completion, and of the payment of the money. The money must have
been actually paid before notice. If a part has been paid, and a part
remains unpaid, the purchaser will be protected in what he has paid,
but not in any subsequent payments made by him. Frost v. Beekman,
1 Johns. Ch. (N. Y.) 301 ; Jewett v. Palmer, 7 Johns. Ch. (N. Y.)
.65, 11 Am. Dec. 401. This is what is meant by bona fide purchaser
in the act referred to. Dickerson v. Tillinghast, 4 Paige (N. Y.) 215,
25 Am. Dec. 528. There is no difference "between a purchaser in good
faith, under the recording act, and a bona fide purchaser within the
decision of Courts of Equity in other cases." Grimstone v. Carter, 3
Paige (N. Y.) 421, 24 Am. Dec. 230. The registry laws were designed
to protect subsequent purchasers and mortgagees, who had parted with
their money, and taken a deed, against prior conveyances by their gran-
tors, of which they had no notice. They were not made for the protec-
tion of prior purchasers or mortgagees, who stood in need of nothing of
the kind. But equity will not permit a subsequent purchaser to use what
the law has placed in his hand as a shield, for a purpose not necessary
to his protection, and to the injury of a prior bona fide purchaser. By
the English registry laws all prior conveyances are declared fraudulent
and void against subsequent purchasers, whose deeds are first re-
corded. Sug. on Vend. 498. And, at law, the last conveyance, when
first .recorded, carries with it the legal title, although the vendee had
notice of the prior conveyance ; but in equity, where the intention is
looked at, rather than the words of the registry act, he is held to be
bound by the previous conveyance. Sug. on Vend. 511, Ed. of
1820.
Graham denies he had any notice of the mortgage when, he pur-
chased ; and there is no positive evidence on that point. The transac-
tion, when viewed in all its parts, looks much like a piece of con-
trivance to defraud Thomas. It is not necessary, however, to go into
the testimony ; for, admitting Graham had no notice of the mortgage,
still he is not a bona fide purchaser. He has paid nothing. It is not
enough that the party has secured the purchase money ; he must have
paid it, or became bound for it in such a way that this Court could
not relieve him from the payment of it ; as, by a promissory note, which
had been negotiated, or the like. The bond for $200, if it has been
assigned by Stone,' (of which there is no evidence,) would, in the hands
Qf the assignee, be subject to all equities existing against it before it
was assigned. * * *
Reference to Master to compute amount due, &c.^*
2" What would be the situation where notice of the earlier conveyance or
claim is received after part, but not all, of the consideration has been paid?
Aig.Prop. — 56
882 DERIVATIVE TITLES (Part 2
MARSHALL v. ROBERTS.
(Supreme Court of Minnesota, 1S72, IS IMinn. 405 [Gil. 3Go], 10 Am. Rep. 201.)
The plaintiff, claiming that the defendant was the owner of certain
real estate, and that after having sold and conveyed the same to him,
and knowing his deed was unrecorded, he sold and conveyed the same
premises to other parties, who were purchasers in good faith, and
whose deeds were recorded, brought this action to recover damages
therefor. At the trial, after the plaintiff' had introduced his evidence
and rested, the defendant moved for a dismissal of the action. The
court granted the motion and judgment of dismissal was entered. The
plaintiff' appeals to this court. The facts upon which the decision is
based, are fully stated in the opinion of the court.
Berry, J. For the purpose of determining the only question neces-
sary to be considered in this case, we may assume that the following
propositions, which plaintiff claims to have proved, or to have oft'ered
to prove, are true as matter of fact:
1st. That on the 12th day of May, 1860, Louis Roberts was the
owner of lot four, in block four, of the town of St. Paul, according to
the recorded plat thereof.
2d. That on said 12th day of ]\Iay said Roberts, together with his
wife, executed and delivered to the plaintiff, Joseph M. Marshall, a
quit-claim deed of all their right, title, interest, claim, and demand,
in and to said lot, which deed through inadvertence on plaintiff's part
has never been recorded.
3d. That on the 2d day of August, 1865, said Roberts (well know-
ing his deed to Marshall, and Marshall's inadvertent omission to have
the same recorded) for a valuable consideration, executed and deliv-
ered (his wife joining) to Uri L. Lamprey a quit-claim deed of all their
right, title, interest, claim and demand in and to said lot, which deed
was duly recorded August 3d, 1865, the said Lamprey at the time of
said conveyance to him, and at the time of paying the consideration
therefor, having no notice of the aforesaid convevance to the plain-
tiff.
4th. That on the 22d day of May, 1867, said Lamprey and wife, for
a valuable consideration, executed and delivered to William J. Cutler
a warranty deed of said lot, which was duly recorded on the 29th day
of May, 1867, the said Cutler at the time of such conveyance to him,
and at the time of paying the consideration therefor, having no notice of
said conveyance to the plaintiff, and having purchased in good faith.
Plaintiff's claim is, that by reason of defendant's deed to Lamprey^,
and the recording thereof, he (plaintiff) has lost his title to the lot in
question, and has therefore suffered damage to the value of said lot,
which damage he seeks to recover of defendant in this action.
Bearing on the general question, see Youst v. Martin, 3 Serg. & E. (Pa.) 423
(1817) ; Wenz v. Pastene, 209 Mass. 359, 95 N. E. 793 (1911).
Ch. S) PRIORITIES ' 883
If the deed from Roberts to plaintiff conveyed nothing to plain-
tiff, the subsequent deed to Lamprey can have taken nothing away
from him, or, in other words, it cannot have damaged the plaintiff.
If on the other hand, as would appear from the facts before as-
sumed, the deed from Roberts to plaintiff conveyed a good, title to
the lot in question, or any right, title, interest, claim or demand in or to
it, then, neither such good title, nor any such right, title, interest, claim
or demand, could be taken away or impaired by the subsequent con-
veyance to Lamprey. For the deed to Lamprey is a quit-claim deed
in common form, the effect of which, under our statute, is to pass
such estate as the grantor could lawfully convey by the ordinary deed
of bargain and sale. In Martin v. Brown, 4 Minn. 291 (Gil. 201),
it is held that the legislature by the words "lawfully convey," intend to
limit the estate conveyed by a qmt-claim deed; to such as the gran-
tor has a legal right to convey, and that as he "may not lawfully con-
vey land which he has already conveyed to another, nothing passes
by such deed beyond the grantor's actual interest at the time of the
conveyance. And in Hope v. Stone, 10 Minn. 152 (Gil. 114), where
there was a conveyance (by warranty deed) of all the right, title, in-
terest, etc., etc., of the grantor in and to certain land, it was held
that nothing passed to the grantees by the conveyance which the gran-
tor had previously conveyed to the other parties. See also cases
there cited. In Everest v. Ferris, 16 Minn. 26 (Gil. 14), the rule thus
laid down in Martin v. Brown, is reiterated ; and independently (so
far as appears) of any statute, it is held in May v. Le Claire, 11 Wall.
232, 20 L. Ed. 50, that a party who has acquired his title by a quit-
claim deed cannot be regarded as a bona fide purchaser without
notice, and that such conveyance passes the title as the grantor held
it, and the grantee takes only what the grantor could lawfully convey.
The provisions of our statute in regard to the effect of recording
and failing to record deeds, are also in entire harmony with the views
expressed in the case cited. Section 54, ch. 35, Pub. Stat., which seems
to have been in force at the time when Roberts made the deed to
Lamprey, enacts that every conveyance by deed, &c., shall be recorded,
&c., and that every such conveyance not so recorded shall be void,
as against any subsequent purchaser in good faith and for a valuable
consideration, of the same real estate or any portion thereof, whose
conveyance shall be first duly recorded. Substantially the same pro-
visions as those above mentioned, are also found in section 24, c. 46,
Rev. Stat, and section 21, c. 40, Gen. Stat., so that our statute in this
particular seems to have remained unchanged. These provisions, as
will appear upon a moment's reflection, so far from militating against
the views expressed in the cases cited, come to their aid, since it is
only the purchaser of the same real estate, or any portion thereof, who
by his priority of record cuts out the title of a prior purchaser. For
when the second purchaser obtains by his quit-claim deed only what
his grantor had (his grantor's right, title and interest) at the time
884 ' DERIVATIVE TITLES (Part 2
when such deed was made, he is not a purchaser of the same real
estate (or any part thereof) which his grantor had previous!}' conveyed
away and therefore no longer has. But besides this, the grantee in a
quit-claim deed like that from Roberts to Lamprey, though he may
not in fact have known that his grantor had previously conveyed the
described premises to another, and though he may not in fact have in-
tended to defraud such prior grantee, is not a purchaser in good faith
as against such prior grantee, for nothing is attempted to be trans-
ferred to him, except whatever right, title, &c., the grantor has at the
time when the quit-claim deed is executed, so that as in the case of
Hope V. Stone the very terms of the deed are notice of the existence
of the rights which have been conferred upon such prior grantee, or
any other person.
These considerations, as it seems to us, dispose of this case and pre-
vent us from reaching the questions mainly discussed by plaintiff's
counsel. The judgment entered below dismissing the action is af-
firmed.^^
2 7 American Mortsr. Co. v. Hutchinson, 19 Or. ?,?A, 24 Pac 515 (1S90), ace.
Wickhani v. Hentliorn, 91 Iowa, 242, 59 N. W. 276 (1894); Reed v. Knights.
87 I\Ie. 181, 32 Atl. 870 (1895) ; Messenger v. Peter, 129 Mich. 93, 88 N. W. 209
(1901) ; Fowler v. Will, 19 S. D. 131, 102 N. W. 598, 117 Am. St. Rep. 938, 8
Ann. Cas. 1093 (1905) ; Thorn v. Newsom, 64 Tex. 161, 53 Ain. Rep. 747 (1885),
accord in result.
"Under the cloak of quitclaim deeds, schemers and speculators close their
eyes to honest and reasonable inquiries, and traffic in apparent imperfections in
titles. The usual methods of conveying a good title — one in which the grantor
has confidence — is by warranty deed. The usual method of conveying a doubt-
ful title is by quitclaim deed. The rule is wise and wholesome which holds
that those who take by quitclaim deed are not bona fide purchasers, and take
only the interest which their grantors had." Peters v. Cartier, 80 Mich. 124,
129, 45 N. W. 73, 74, 20 Am. St. Rep. 508 (1890).
"While nonregistered deeds are declared void by the statute as to subse-
quent purchasers for value and v\-ithout notice, still the doctrine is well settled
that a subsequent purchaser, although for value and without actual notice.
who takes under strictly a quitclaim deed — that is, one by which the chance of
title, and not the land itself, is conveyed — will not be accorded the protection
of the statute, for the obvious reason that he contracted for the interest only
that his vendor then had in the land. If the vendor had previously divested
liiuiself of the title to a portion or all of the land, to the extent of the divesti-
ture there would be no right remaining in the vendor to pass by the quitclaim
to the vendee. It is, then, the interest of the vendor for which he contracts,
and it is to such interest only that he is entitled under the quitclaim deed."
Thorn v. Newsom, supra.
After the decision in Marshall v. Roberts, the Minnesota Legislature amend-
ed the recording statute so that a grantee in a subsequent quitclaim deed
would be on the same footing, as to prior imrecorded deeds, as a grantee iu a
bargain and sale deed. Strong v. Lynn, 38 Minn. 315, 37 N. W. 448 (1888). And
in Maine the rule of Reed v. Knights, supra, has been changed by statute.
Rev. St. 1903, c. 75, § 11.
Ch. 8) PRIORITIES 885
SMITH'S HEIRS v. BRANCH BANK AT MOBILE.
(Supreme Court of Alabama, 1852. 21 Ala. 125.)
Chilton, J.^^ In order to disembarrass this case from the confu-
sion in which so many mesne conveyances involve it, we may con-
sider Smith, the defendant, as the vendor to Dubose and Kibbe, and
as holding their mortgage to secure the purchase money. We may
then, without changing the legal effect of the facts, lay out of view the
sale to Meggison by D. and K., and the foreclosure of the mortgage
taken by them ; since the land was purchased by their agent, J. C. Du-
bose, who was the mere conduit for convenience sake of the interest
of Dubose and Kibbe to the Bank.
It is too clear to admit of doubt, that an unrecorded mortgage, as
between the parties themselves, is vafid and binding. It is also valid as
to all subsequent creditors or purchasers with notice of its existence.
Smith V. Zurcher, 9 Ala. 208 ; Myers v. Peek's Adm'r, 2 Ala. 648 ; Tut-
tle V. Jackson, 6 Wend. (N. Y.) 226, 21 Am. Dec. 306.
It is equally clear, that if the mortgagor sells the land to an innocent
bona fide purchaser, taking a mortgage from him to secure the purchase
money, and obtains a decree of sale upon a foreclosure suit, at which,
by himself or his agent, he becomes the purchaser, he is not in a condi
tion to invoke the protection afforded a bona fide purchaser without
notice, so as to defeat the mortgage he has executed to his vendor ; for
this would be to take advantage of his own wrong. "His conscience,"
says Judge Story, "is still bound by his meditated fraud, and if the
estate revests In him, the original rights attach." 1 Story's Eq. § 410.
The case, then, resolves itself into this : Considering Dubose and
Kibbe as mortgagors to Smith, whose mortgage was not recorded, and
as the vendors to the Bank, through their agent, J. C. Dubose, who
swears he was a mere naked trustee, without any interest whatever,
does the Bank, under the circumstances, and in view of the character of
the deed executed to it, occupy the position of a bona fide purchaser
for a valuable consideration without notice, within the meaning of our
statutes declaring mortgages of real estate not recorded within sixty
days to be void as against such purchasers ?
The instrument under which the Bank claims, is a quit claim deed, or,
what is more appropriately designated by the common law term, a re-
lease. The effective words are, "that the said Dubose doth remise, re-
lease and forever quit claim, all his right, title, claim, &c., unto the said
Branch Bank, in the full and actual possession now being, and its suc-
cessors and assigns forever." It is said, in the Touchstone (p. 320) that
the words most common and appropriate in a release, are, remisi, relax-
avi, and quietum clamavi ; and that a release may enure by way of
passing the estate, as where one joint tenant or co-parcener releases
28 The statement of facts and a portion of the opinion are omitted. The case
api)ears from the opinion.
886 DERIVATIVE TITLES (Part 2
his right to the other ; or by way of passing the right, as where the dis-
seisee releases to the disseisor ; or, it may operate by way of enlarging
an estate, where the releasee has an estate capable of being enlarged,
and is in privity with the releasor ; or by way of extinguishment. Gilb.
on Ten. 55; Shep. Touch. 321 ; Co. Lit. 272; Bouv. Inst. vol. 2, p. 412.
At the common law, it is said, a freehold title could be released in
five ways: 1. To the tenant of the freehold in fact or in law without
any privity ; 2. To the remainder-man ; 3. To the reversioner without
privity ; 4. To one having a right only by privity ; and, 5. To one hav-*
ing a privity only without right. 2 Bouv. Inst. 412; Gilb. Ten. 53 ; Co.
Lit. 265. So that, according to the principles of tlie common law gov-
erning releases, the Bank, the releasee in this case, filling none of the
above requisites, would not take the title of the releasor. But in this
country, the technical rules relating to a release are generally held
not to apply, and a quit claim deed is considered as passing the title of
the releasor, without any warranty as to outstanding titles or incum-
brances, but merely against the grantor himself, and those claiming
under him, by descent, or by subsequent conveyances of the same inter-
est previously transferred.
The grantor in this case only purports to release and quit claim the
title and interest which he had. The question then arises, what interest
did he have? The plain answer is, the mere equity of redemption,
nothing more, and this only passed by the quit claim deed. Thus the
Bank stands in the place of Dubose and Kibbe, the mortgagors, holding
only what they could sell, the equity of redemption.
Were we to hold that M. Dubose intended that his agent, J. C. Du-
bose, should sell a greater interest than he really had, and by so doing
enable the Bank to shelter itself under the plea of being a bona fide
purchaser for a valuable consideration, so as to defeat the mortgage
which D. and K. had executed to Anderson, we should impute a fraud-
ulent intent to the parties when the deed which their agent has entered
into justifies no such inference.
The unregistered mortgage being valid and effectual as between the
mortgagor and mortgagee, the subsequent sale of the entire estate by
the mortgagor is a fraud upon the rights of the mortgagee ; and the
reason, I apprehend, upon which the statute proceeds in preferring the
subsequent bona fide purchaser to the mortgagee, is, that one of two
innocent persons must suffer by the fraud of a third party, and the
mortgagee, failing to use the diligence which the statute requires in
recording his mortgage, is considered most in default, and is therefore
properly adjudged by the statute to bear the loss.
But we are not allowed by the rules of law, any more than by the
principles of common charity, to suppose fraud, when the facts out of
which it is supposed to arise may well consist with honesty and pure
intention. Steele v. Kinkle & Lehr, 3 Ala. 352.
We cannot, therefore, in this case presume that the vendor of the
Bank attempted to sell more than he might lawfully sell, which was
Ch. 8) PRIORITIES 887
the equity of redemption. This was his title, and this alone enures by
the quit claim.
To enlarge the interest by construction, would be to make a different
contract from that which the parties have entered into; would be, by
judicial interpretation, contrary to the face of the deed and the facts
on which it is founded, to pass the entire estate, by investing it with
the consequences of a fraudulent sale of the whole, when the grantor
had but the equity of redemption ; and this, too, for the purpose of de-
feating the just lien of Smith for the purchase money which is due
from Dubose and Kibbe. We feel quite confident no case can be found
which carries the doctrine thus far.
The case of Oliver v. Piatt, 3 How. (U. S.) 333-410, 11 L. Ed. 622,
v/hich is cited with seeming approval by this court in Walker et al. v.
Miller & Co., 11 Ala. 1067, fully sustains us in tlie position, that the
Bank, holding a mere quit claim deed, cannot be regarded as a bona
fide purchaser for a valuable consideration without notice. And we
see no reason why such purchaser should be allowed to invoke the aid
of the registry statute, to avoid a prior mortgage which has not been
recorded, any more than the aid of tlie Chancery Court for his pro-
tection.
We express no opinion as to what we should decide, had the deed to
the Bank, even though it contained no warranty, purported to convey
the entire title to the premises, instead merely of that which the gran-
tor had. But we desire to limit our opinion to tlie facts of the case
before us, lest parties should be misled as to the extent of jt. * * *
After the best consideration we have been able to bestow upon this
case, we are satisfied that the court mistook the law in several of the
charges given. Its judgment must, therefore, be reversed, and the
cause remanded.
BOYNTON v. HAGGART.
(Circuit Court of Appeals, Eighth Circuit, 190.3. 120 Fed. 819, 57 C. C. A. .301.)
Sanborn, Circuit Judge. These appeals present controversies be-
tween three sets of claimants to the title to certain timber lands in the
state of Arkansas. Lucetta B. Boynton and her associates, the com-
plainants below, are the devisees under the will of C. O. Boynton, de-
ceased, who brought this suit against James Haggart and William Mc^
Masters, hereafter called the "defendants," to quiet in himself the title
to about 20,000 acres of land which he bought of the Citizens' Bank
of Louisiana in the year 1883. L. D. Rozell and his associates, the
heirs of A. B. Rozell, deceased, intervened in this suit, and claimed the
title to a portion of these lands. There was a hearing and a decree for
the defendants, which the complainants and the interveners challenge
by separate appeals.
The principal question which the appeal of the complainants presents
is whether or not an innocent purchaser under a deed of all the right.
S88 DERIVATIVE TITLES (Part 2
title, and interest in the lands owned by his grantor in a certain state,
without a more definite description, may successfully hold the lands
which his grantor appeared by the registry to own when he made this
deed as against a claimant under a prior unrecorded conveyance of the
same lands by the same grantor. The question arises in this way:
From 1873 until October 26, 1883, the records of the counties in which
these lands were situated disclosed a complete chain of title to them
from D. C. Cross, the grantee of the state of Arkansas, to the Citizens'
Bank of Louisiana. On Alay 3, 1880, however, a decree had been ren-
dered in one of the courts of the state of Arkansas in a suit between
the executor, the executrix, and the devisees of the will of Jeptha
Fowlkes, complainants, and the Citizens' Bank of Louisiana, defend-
ant, to the effect that the heirs of Jeptha Fowlkes were the owners of
this land, and that the bank had no title or interest in it. One of the
statutes of the state of Arkansas required those in whose favor such
a decree was rendered to register it in the recorder's office of the coun-
ty in which the lands it affected were situated within one year after its
rendition, and provided that, "if such decree be not recorded within
such time, it shall be void as to all subsequent purchasers without no-
tice." Gould's Digest of the Laws of Arkansas, p. 637, § 35. This,
decree was not recorded until November 4, 1884.
Meanwhile, and in the year 1883, W. L. Culbertson, the agent and
associate of C. O. Boynton, without any notice of this decree, pur-
chased the lands in controversy in this suit from the Citizens' Bank of
Louisiana, paid that bank $13,000 therefor, and took and recorded a
quitclaim deed from it to himself of "all and singular its right, title,
interest, and claim of whatever nature, legal and equitable in and to
all the lands, lots, and parcels of land and any and all interests in the
same belonging to and owned by said Citizens' Bank of Louisiana, in
the state of Arkansas, at the date of this conveyance (except its lands
and interest in Chicot county in said state) ; the said lands and interests
therein conveyed being situated and lying within the counties of Clay,
Crittenden, Craighead, Cross, Greene, Mississippi, Poinsett, and Wood-
ruff, in the said state of Arkansas ; and this conveyance to operate and
be as absolute, full and complete as if the said lands and interests afore-
said were herein specifically described." Before making this purchase,
Culbertson procured a list of these lands, and an abstract of the re-
Gorded title to them, from which it appeared that the bank had a per-
fect record title to them, subject only to a tax title, which Culbertson
bought at the same time that he purchased the lands from the bank.
He secured his deed from the bank on September 26, 1883, and re-
corded it on October 26, 1883. C. O. Boynton, his principal, furnished
the money to make this purchase, and on October 23, 1883, Culbertson
conveyed the lands in controversy in this suit to Boynton by means of a
warranty deed which describes them by government subdivisions, and
this deed was recorded on October 29, 1883. Culbertson appears to
have been interested with Boynton in the purchase of the lands, but
Ch. 8) PRIORITIES 889
what his interest was does not appear. The title of the complainants
rests upon the purchase from the bank and the conveyance to Boynton
while he was ignorant of the existence of the decree. The defendants
have succeeded to the title of the heirs of Fowlkes under their decree
against the bank of May 3, 1880, and the question is whether that title
or that of the devisees of Boynton should prevail.
Counsel for the defendants argue that the deed from the bank to
Culbertson conveyed only the lands which the bank owned at the date
of the deed, and that, as the title to the lands here in question had been
devested from the bank before the deed to Culbertson was made by the
decree of May 3, 1880, and as the bank did not in fact own any right,
title, or interest in the lands when it made this deed, the deed conveyed
nothing, and the purchasers took nothing thereby. In support of this
contention they cite Brown v. Jackson, 3 Wheat. 449, 4 L. Ed. 432.
That was the first of a long line of decisions rendered by the Supreme
Court in which it held that the grantee in a quitclaim deed could not
become a bona fide purchaser under the registry statutes because the
prior deed had conveyed all that the grantor had, and the form of the
quitclaim deed was notice of that fact to its grantee. Oliver v. Piatt, 3
How. 333, 11 L. Ed. 622; Van Rensselaer v. Kearney, 11 How. 297,
13 L. Ed. '703; May v. Le Claire, 11 Wall. 217, 20 L. Ed. 50; Villa v.
Rodriguez, 12 Wall. 323, 20 L. Ed. 406; Dickerson v. Colgrove, 100
U. S. 578, 25 L. Ed. 618; Baker v. Humphrey, 101 U. S. 494, 25 L.
Ed. 1065 ; Hanrick v. Patrick, 119 U. S. 156, 7 Sup. Ct. 147, 30 L. Ed.
396.
Counsel for the interveners cite the cases of Adams v. Cuddy, 13
Pick. (Mass.) 460, 25 Am. Dec. 330; Jamaica Corporation v. Chandler,
9 Allen (Mass.) 159, 169; Chaffin v. Chaffin, 4 Gray (Mass.) 280; Fitz-
gerald V. Libby, 142 Mass. 235, 7 N. E. 917; and Eaton v. Trowbridge,
38 Mich. 454, in support of the position of the defendants. But these
decisions fail to give any adequate effect or force to the estoppel of
the registry statutes, and are in accord with the early holdings of the
Supreme Court regarding the effect of a quitclaim deed. The riper
experience and more thoughtful consideration of later years have ex-
ploded the fallacy upon which the earlier decisions of tlie Supreme
Court rested, and have led the court to adopt the rule which has now
become firmly established both upon reason and authority that the inno-
cent purchaser under a quitclaim deed may acquire the title under the
registry statutes as against the holder of a prior unrecorded deed from
the same grantor not^^^ithstanding the fact that the latter had no title,
and had nothing to convey when he executed his second deed. Moetle
V. Sherwood, 148 U. S. 21, 29, 30, 13 Sup. Ct. 426, 37 L. Ed. 350;
United States v. California, etc., Land Co., 148 U. S. 31, 47, 48, 13 Sup.
Ct. 458, 37 L. Ed. 354; Prentice v. Duluth Forwarding Co., 58 Fed.
437, 447, 7 C. C. A. 293, 303 ; Memphis Land & Timber Co. v. Ford, 58
Fed. 452, 7 C. C. A. 304.
890 DERIVATIVE TITLES (Part 2
No reason is perceived why the case at bar should not be governed
by this just and sakitary rule. Registry statutes are legislative exten-
sions of the doctrine of estoppel. They forbid those who have, and
yet withhold from the record, their muniments of title, from asserting
the title those muniments disclose against others who have innocently
purchased the land from him who appears by the record to be the owner
while the holders of the real title silently conceal it. They rest upon
and enforce the equitable proposition tliat he who knowingly conceals
his ownership when he ought to disclose it shall not assert it to the
detriment of his neighbor who has acted in reliance upon his silence.
When Culbertson purchased these lands, the record disclosed a perfect
•title to them in the bank. That record was evidence of title both in the
courts of the land and in the ordinary commercial transactions of men.
Gould's Digest, p. 268, § 26. The agent of the vendor, the bank, fur-
nished to the purchaser a list of these lands, and offered to sell them
to him for his principal. Culbertson took the list, procured an abstract
of the record title to the lands it described, and bought them in reliance
upon the representation which the record and the silence and inaction
of the grantors of the defendants exhibited.
The defendants, or those under whom they claim, in violation of the
statute, which required them to record the decree of May 3, 1880,
which had devested the title of the bank, silently withheld it from the
record, and thereby induced, or at least permitted, Culbertson and
Boynton to buy from one who had no actual title. May they now be
allowed to avail themselves of tliat decree, to deprive these vendees
of the land, and to entail upon them the loss of their purchase money?
The question is answered by the salutary statute of Arkansas. It de-
clares that, if such a decree is not recorded within one year after its
rendition, "it shall be void as. to all subsequent purchasers without no-
tice." The evidence is satisfactory — nay, it is conclusive — that Cul-
bertson and Boynton were subsequent purchasers of these lands with-
out notice of this decree, and they fall far within both the reason and
the* terms of the statute whose protection they invoke.
It is true, as counsel insist, that, in the absence of the estoppel of
the registry statutes, a conveyance of what one owns carries nothing
which he does not own, and that under tliat rule the deed to Culbertson
conveyed nothing, because the bank had nothing when it was made.
But the question here is not what the bank owned when that deed was
made. It is not what the bank could convey. It is what the bank ap-
peared to own by tlie authorized records of the counties in which these
lands were situated. The statute and the negligence of the defendants,
or of their grantors, estop them from proving, or from successfully
claiming, that the title to these lands was other than that which they
permitted it to appear to be upon these records when Culbertson and
Boynton bought. The contention that the grantor had nothing when
this deed was made, and hence that the purchasers acquired nothing by
it, proves too much. It applies with equal cogency to the purchaser
Ch. 8) PRIORITIES 891
under every deed subsequent to a prior unrecorded conveyance, and
its adoption would annul every statute of registration, for it may be
said with equal truth of every such subsequent conveyance that the
grantor has nothing when he makes it, and tlierefcre the subsequent
purchaser can take nothing.
The argument is fallacious, because it utterly ignores the purpose,
the policy, and the effect of the statutes of registration. It is the pur-
pose and the legal effect of these statutes to make the title that ap-
pears of record — the record title — superior in tlie hands of an inno-
cent purchaser for value to the real title that is withheld from regis-
tration. Hence, while one who has parted with his title to land by an
unrecorded deed or decree has no title or interest remaining in himself,
yet his deed to an innocent purchaser for value, by virtue of the regis-
try statutes, avoids the effect of the prior unrecorded deed or decree,
and vests the title to the land in the subsequent purchaser to the same
extent as it would have done if the title of record had been the real
title. The holders of unrecorded instruments are estopped by the stat-
ute and their negligence from denying that tlie record title is the real
title. Memphis Land & Timber Co. v. Ford, 58 Fed. 452, 455, 456, 7
C. C. A. 304, 307, 308. The defendants cannot be heard to say, as
against Culbertson, Boynton, and their successors in interest, that the
Citizens' Bank of Louisiana was not the owner of the lands which it
appeared by the records of the counties to be the owner of when Cul-
bertson and Boynton made their purchase.
There is another reason why the title of the complainants must pre-
vail. Boynton was not only an innocent purchaser of these lands, but
he secured them in October, 1883, by means of a warranty deed from
Culbertson, which properly described and conveyed them to him by
government subdivisions. If Culbertson could not have claimed the
benefit of the estoppel of the registry statute because the deed to him
did not specifically describe the lands, Boynton was under no such
disability. Even in those courts 'in which the rule once prevailed that
one who takes under a quitclaim deed cannot be a bona fide purchaser,
that rule was sometimes limited to the grantee in such a deed. It did
not apply to those who succeeded to the title of such a grantee by deeds
of bargain and sale or by warranty deeds, and this was a reasonable
limitation. Snowden v. Tyler, 21 Neb. 199, 31 N. W. 661 ; United
States V. California, etc.. Land Co., 148 U. S. 31, 47, 13 Sup. Ct. 458,
?i7 L. Ed. 354. The form of the deed to Culbertson, his grantor, did
not charge Boynton with notice of the unrecorded decree against the
bank, or of any other defect in its title, even if it could have charged
Culbertson. A subsequent purchaser of lands properly described in a
warranty deed to himself is not charged with notice of unrecorded con-
veyances or decrees by the fact that somie prior deed in the chain o.^
title is a quitclaim deed, or conveys only the lands which the grantor
then owned, or of which some apparent owner died seised; or which
some bankrupt owned at the time of his adjudication, but he may safely
892 DERIVATIVE TITLES (Part 2
rely upon the presumption that the record title Is the real title. Mem-
phis Land & Timber Co. v. Ford, 58 Fed. 452, 455, 456, 7 C. C. A. 304,
307, 308; United States v. California, etc.. Land Co., 148 U. S. 31, 46,
47, 13 Sup. Ct. 458, Z7 L. Ed. 354; Kennedy v. Northup, 15 111. 148,
157; Bowen v. Prout, 52 111. 354, 357; Youngblood v. Vastine, 46 Mo.
239, 242, 2 Am. Rep. 509; Powers v. McFerran, 2 Serg. & R. (Pa.) 44,
47; Earle v. Fiske, 103 Mass. 491, 494.29
MOORE v. BENNETT.
(Court of Chancery, 1678. 2 Ch. 246.)
A. makes a conveyance to B. with power of revocation by will, and
limits other uses if A. dispose to a purchaser by the will : another
purchaser subsequent is intended to have notice of the will as well
as of the power to revoke, and this is in law a notice ; and so it is in
all cases where the purchaser cannot make out a title but by a deed,
which leads him to another fact, the purchaser shall not be a purchaser
without notice of that fact, but shall be presumed cognisant thereof;
for it is crassa negligentia, that he sought not after it.
29 The balance of the opinion, relating to other matters, is omitted.
In Fitzgerald v. I.ibby, 142 Mass. 2,3.5, 7 N. E. 917 (1SS6), there was a mort-
gage of land descTibed as "the land by me owned" in a certain designated local-
ity, "for boundaries and description reference is made to deeds to me, recorded
in said registry." In fact the mortgagor had already conveyed a portion of the
lands covered by the above description, but the deed had not been recorded at
the time the mortgage was given and recorded, and the mortgagee had no
knowledge of such deed. Held, that such previously conveyed portion did not
pass by the mortgage, under the recording act. But compare Dow v. Whitney.
147 Mass. 1, 16 X. E. 722 (ISSS), where the conveyance was of "all my interest"
in a specilically described tract of land, "except such portions thereof as I
have heretofore sold." The question was whether such deed placed the grantee
therein in position to give a clear title as against possible prior unrecorded
deeds. The court said : "A deed of 'all the right, title, and interest,' or of 'all
the interest,' of the grantor in a lot of land, conveys the same title as a deed
of the land. It is the policy of our laws that a purchaser of land, by examin-
ing the registry of deeds, may ascertain the title of his gi'antor. If there is
no recorded deed, he has the right to assume that the record title is the true
title. The law has established the rule, for the protection of creditors and pur-
chasers, that an unrecorded deed, if unlvnown to them, is as to them a mere
nullity. The reasons lor the rule apply with equal force in the case of a deed
of the grantor's right, title, and interest, as in that of a deed of tlie land. We
are of opinion, therefore, that the deed of Stephen Dow conveyed to his grantee
a title which is good against any prior deed, if unrecorded. To hold otherwise
would defeat the purpose of the registration laws, and create confusion in the
titles to land."
Ch. 8) PRIORITIES 893
BAKER V. MATHER.
(Supreme Court of Michigan, 1872. 25 Mich. 51.)
Appeals in Chancery from Ionia Circuit.
Estiier E. Baker filed her bill against Amos R. Mather, Dennis H.
Burns, Horace Roatch, and Henry W. King to foreclose a mortgage
made to her by Mather and Burns, dated January 21, 1864, but which
was not recorded until March 3, 1869. Roatch and King were made
defendants as subsequent purchasers or incumbrancers. King alone an-
swered, and the bill was taken as confessed by the other defendants.,
Subsequently Henry W. King filed his bill against Horace Roatch, Car-
oline E. Roatch, Esther E. Baker, and Dennis H. Burns to foreclose
a mortgage made to him by said Roatch and wife, dated February 16,
1869, and recorded March 1, 1869. Baker and Burns were made de-
fendants as subsequent purchasers or incumbrancers. Baker alone an-
swered, and the bill was taken as confessed by the other defendants.
These two mortgages covered the same premises, and the question
involved was, which should take precedence. The two cases were heard
together, and the same proofs used on the hearing of both. From tlie
proofs it appeared that the Baker mortgage was a purchase-price mort-
gage, given on the sale of the premises by Esther E. Baker to Burns
and Mather ; that said Burns and his wife subsequently conveyed their
interest in the premises, subject to said mortgage, to said Mather, who
afterwards conveyed the same, subject to said mortgage (which was
expressly referred to in, and excepted from, the covenant of warranty
in the conveyance), to Roatch ; and that the latter, with his wife, after-
wards executed the King mortgage. On the hearing. King's bill was
dismissed as to Esther E. Baker; and decree was entered in tlie suit
brought by the latter, declaring her mortgage a prior lien on the prem-
ises to the King mortgage. King brings both causes to this court by
appeal, where the two are heard together.
Per Curiam, The question in these cases is one of priority between
two mortgages. The second mortgage was recorded first, and there
is no evidence that the mortgagee therein had actual notice of the ex-
istence of the prior mortgage when he took his. It appears, however,
that the deed, under which the mortgagor held the land, expressly re-
ferred to this prior mortgage, and made his title subject to it. The
deed was not recorded, but this is an immaterial circumstance. Every-
body taking a conveyance of, or a lien upon, land, takes it with con-
structive notice of whatever appears in the conveyances which con-
stitute his chain of title. Decrees below affirmed.^"
SOT. sold and conveyed land to D., the deed containing the following: "The
party of the first part (tlie vendor), for and in consideration of the sum of
JJiTOO, to be paid on or before the lirst day of July, 1872, by the party of the
second part." D. took possession, and, in 1874, without having paid T. in full,
conveyed the premises to H., wlao subsequently sold to M. H. and M. had no
S94 DERIVATIVE TITLES (Part 2
PATMAN V. HARLAND.
(Chancery Division, ISSl. 17 Ch. D. 353.)
Motion.
By an indenture dated the 25tli of October, 1876, the plaintiff con-
veyed to one Herve two freehold plots of land, being parts of a build-
ing estate at Wimbledon, subject, nevertheless, to the restrictions and
obligations as to building and other matters contained in an indenture
of mutual covenants, also dated the 25th of October, 1876, executed
by the plaintiff and Herve, and the purchasers of other building plots,
part of the same estate. One of the covenants contained in the latter
deed provided that on the several plots private dwelling-houses only
should be erected.
By an indenture dated the 18th of July, 1878, Herve conveyed the
same two plots of land to the defendant Harland, subject to the same
restrictions and obligations as to building by reference to the deed
of mutual covenants, as were contained in the conveyance to Herve.
The defendant Harland having erected a dwelling-house on the prop-
erty, by an indenture dated the 29th of March, 1881, demised it to
the defendant Louisa Bennett for the term of seven years, for the
purposes of an "Art College," and the lease contained a proviso that
the defendant Bennett, her executors, administrators, or assigns, should
be at liberty to erect in the garden belonging to the premises a studio,
with necessary rooms connected therewith, of corrugated iron on a
brick foundation, and a covenant by the lessee not to carry on any
trade, business, or employment, on the premises, without the consent
in writing of the lessor, but to use the premises as a private dwelling-
house only, with a proviso, however, that the user of the premises
for the purpose of a school for instruction in art or otherwise should
not be deemed a breach of any covenant in the lease.
Neither the defendant Bennett nor her solicitor was informed or was
aware before the execution of the lease, nor till shortly before tlie is-
suing of the writ in the action, that there was any restrictive covenant
affecting the land, and she had proceeded to erect the studio which was
nearly completed.
This was a motion for an injunction to restrain the defendants from
erecting, or continuing to erect, or permitting any building or build-
ings, other than private dwelling-houses, to remain on the land, and
in particular, the building then in the course of erection.
Jessel, M. R. I must say that on the point of laAV I have a very
clear opinion, and not the less so because there are dicta in the books
which at first sight appear to lead to a different conclusion. I say
actual knowlodse of any claim against the land by T. In an action by T. to
siil).j('ct the land to the payment of the unpaid purchase price, H. and M. claim-
ed to be protected as purchasers without notice. Deason v. Taylor, 53 MisSr
(;97 (1876).
Ch. 8) PRIORITIES 895
at first sight, because, when carefully examined, they do not bear out
the argument which has been supposed to be fortified by, them.
The first question I have to consider is the notice which a man who
takes a lease has of his lessor's title. It has been settled for more than
a century that he has constructive notice of his lessor's title. Lord
Eldon treated it as settled law. That means this, that the man \y\^
takes a lease is in a similar position as regards constructive notice as
a man who buys. There could not be any reason for any distinction
between purchasing a fee simple and taking a lease for 10,000 years.
If a man who purchases a fee simple is bound to look into tlie title
in a regular way, so is a man who takes a lease for 10,000 years, or
1,000 years, or for 100 years, or any lease at all, bound to make rea-
sonable inquiry into his lessor's title. Well, what is reasonable in-
quiry ? It has been held that he is to require the usual title, whatever
the usual title may be.
In this case the lessor's title began in 1878, and if the lessee had
only asked to see the conveyance to the lessor, tliat is without going
back 40 years, she would have found that it was subject to this restric-
tive covenant, because the grantor in 1878 took care to convey the
land, subject to the covenants, though the covenants themselves were
in a separate deed.
Now it is not to be supposed that I am going to restrict the doctrine
to looking at the actual conveyance — not at all — because that would be
to destroy it altogether. If the lessor had a conveyance made to him
the day before that would not do, the lessee must ask for the convey-
ance to him and a fair and reasonable deduction of title. In this case,
as I said before, tlie actual conveyance refers to this covenant, but if
it had not shewn it, I should have come to the same conclusion,
as the conveyance of 1876 referred to it, and that must have appeared
on any investigation of title.
The result, tlierefore, is, the lessee had constructive notice. Now it
has been argued that if the lessee, having this constructive notice, was
told by the lessor that there was no restrictive covenant, that repre-
sentation would in equity do away with the effect of constructive no-
tice. I entirely dissent from that proposition. Constructive notice of
a deed is constructive notice of its contents, subject to what I am go-
ing to say presently. If, therefore, you have notice of a deed relat-
ing to the title, and forming a part of the chain of title, you have no-
tice of the contents of that deed, and it is no excuse for not asking to
look at it to say you were told that the deed contained nothing which
it was necessary for you to look at, otherwise in every case you might
be satisfied with a statement of the contents of a deed without going
to look at it. Of course there may be cases where the deed cannot
be got at, or, for some other reason, where, with the exercise of all the
prudence in the world, you cannot see it, and then there may be no
constructive notice affecting tlie title, but that is another question.
Where you know of a deed it is no answer to be told that it does not
896 DERIVATIVE TITLES (Part 2
prejudicially affect the title, as if it does affect the title you are bound
by its contents.
There is a class of cases, of which I think Jones v. Smith, 1 Hare,
43, 1 Ph. 244, is tlie most notorious, where the purchaser was told of
a deed which might or might not affect the title, and was told at the
same time that it did not affect the title. Supposing you are buying
land of a married man, as in Jones v. Smith, 1 Hare, 43, 1 Ph. 244,
and you are told at the same time that there is a marriage settlement,
but the deed does not affect the land in question, you have no con-
structive notice of its contents, because although you know there is
a settlement you are told it does not affect the land. If every mar-
riage settlement necessarily affected all a man's land then you would
have constructive notice, but as a settlement may not relate to his
land at all, or only to some other portions of it, the mere fact of your
having heard of a settlement does not give you constructive notice of
its contents, if you are told at the same time it dtDcs not affect the
land. I take it, under the modern practice, you are not bound to in-
quire, because the abstract furnished you is an abstract of every docu-
ment affecting the land, and although you have been told that tlie man
made a marriage settlement, you are not entitled to assume that the
solicitor suppressed improperly the deed of settlement. I take it, if
you asked for it, he might say, "it has nothing to do with you." But
that line of cases has no bearing at all on a case where you know the
deed does affect the land, and the question as to the extent to which
it does affect the land is to be ascertained only by looking at the deed
itself. Therefore you have no right to rely on the statement of some-
body else that the deed which you can look at does not contain some-
thing which it does in fact contain.
I have said so much on this point because there is no doubt an ob-
servation which was let fall by Lord Justice Turner in Wilson v. Hart,
Law Rep. 1 Ch. 463, and which does to some extent countenance the
contrary doctrine ; but as regards the case of Carter v. Williams, Law
Rep. 9 Eq. 678, before the Vice-Chancellor James, that, as I read it,
entirely confirms my view. It is not fair to criticize the words used
by the Vice-Chancellor, but when you look at the argument addressed
to him you see the objection there was that the covenant was contained
in a collateral deed, which was not recited. In Coles v. Sims, 5 D.
M. & G. 1, cited in Carter v. Williams, the restrictive covenant was
recited in the conveyance. The Vice-Chancellor in Carter v. Williams,
Law Rep. 9 Eq. 678, says that the covenant is contained in a separate
deed, but what he means is this, that the deed is not noticed either by
way of recital or by being referred to in the deed of conveyance, so
that a person might get a complete chain of title without any notice
of that deed. That is what he means, and that being so, of course if
the tenant had asked for his lessor's title, and got it, he would not
necessarily have got that information. The solicitor ought no doubt to
have put it in the abstract if he knew of it, but he would not neces-
Ch. 8) PRIORITIES 897
sarily know of it. Then the Vice-Chancellor came to the conclusion
that there being no evidence of anything to bring home to the tenant
actual knowledge or notice of the restrictive covenant he could not
hold he had constructive notice of it. Therefore, it appears to me,
that case rather follows out the doctrine of Jones v. Smith, 1 Hare,
43, 1 Ph. 244, and by no means affects the other cases cited where the
document in question affecting the title is recited or otherwise noticed
in the title-deeds. In Carter v. Williams, any one could have accepted
the title without being aware of the document containing the cove-
nant.
I am therefore of opinion that the constructive notice which the
lessee in this case obtained, would not have been done away with by
the most express statement obtained from the lessor that there was no
restrictive covenant. I must say that I am not satisfied in this case
that there was any such representation. What appears to have oc-
curred was this, the lessor did not of course shew his title, but he was
aware that the lessee intended to use this property in the way she at-
tempts to use it, and there was a proviso which excepted such user
from the covenant in the lease, and consequently a person reading
that lease would have assumed, and fairly assumed, that she had a
right to use it in the way mentioned in the exception from the cove-
nant. In that way there was a representation — an indirect representa-
tion— and there were in addition to that some further words in the
lease which tended in the same direction. Therefore I think there was
sufficient to put the lessee off her guard, if I may say so, if it were not
that she had constructive notice, the effect of which no representation
could have destroyed.
I wish to notice one other point ; it is said that the new law as to
the extent of title to be required by purchasers alters the rule. I
think it does not: what the Vendor and Purchaser Act does is this,
in order that a lessee may obtain his lessor's title, it makes an express
stipulation to that effect necessary, whereas formerly the rule was
the other way, that without express stipulation the lessee had a right
to the title. Formerly, if the lessee had expressly stipulated not to
look into his lessor's title, it would not have affected the constructive
notice. This is the meaning of the doctrine; you may bargain to
shut your eyes, but if you do wilfully shut your eyes, whether as a bar-
gain or not, you must be liable to the consequences of shutting your
eyes. If, therefore, the lessee had formerly expressly bargained to
take a lease without looking into the lessor's title, the lessee would
have been bound by constructive notice, and now if the lessee says
nothing it is exactly the same as if formerly he had bargained ex-
pressly not to look into the lessor's title. Therefore, as he may re-
fuse to take a lease without looking into the title (in some cases, es-
pecially in case of building leases, lessees do look into the title, in
otlier cases they do not), it appears to me that the law is uxialtered.
Aig.Pbop. — 57
898 DERIVATIVE TITLES (Part 2
and tfiat the doctrine of Tulk v. Moxhay, 2 Ph. 774, and that Hne of
cases applies.
Then the lessee being bound by the covenant, the only remaining
question is, What is the covenant, and has there been a breach of it?
The covenant is not well worded, and will not perhaps carry out the
full intention of the covenantee, but it is a covenant that they "shall
erect private dwelling-houses only" on the piece of land. The lessee
is building something which it would be rather absurd for any one to
describe as a private dwelling-house, and I am glad to see that nobody
does so describe it ; it is described in the affidavit as a corrugated iron
building, not in any way connected with the dwelling-house, or so sit-
uated at present as possibly to be used for a private dwelling-house.
The lessee says it has been built as an addition to the house which
is intended to be used as an art studio for ladies. There is no ques-
tion that it has been erected for that purpose, and not for a private
dwelling-house. It has been argued that this building, being within
the same curtilage as the house, must be treated as appurtenant to
the dwelling-house, and forming part of it, in the same way as a bil-
liard-room or smoking-room might be. But this is a thing of a totally
different character. It could not be suggested that having built a
private dwelling-house with a garden, if you then built a church or
chapel at the other end of the garden, that church or chapel would
be treated as a portion of the private dwelling-house, merely because
it happened to be within the same curtilage — it would be a separate
erection and not a private dwelling-house. It is in my opinion a clear
breach of the covenant, and so I shall Vestrain the further proceed-
ing with its construction, which is all I think it right to order now,
though if it is not taken away altogether before the trial of the action
I may order it to be taken away then. The lessee has, I think, a right
to convert the building if she can into a fair and reasonable adjunct
to the private dwelling-house; that is the reason I do not now grant
the mandatory injunction asked for. I shall not grant any injunction
against the defendant Harland. and his costs and the costs of ail otlier
parties will be costs in the action.
GALLEY V. WARD.
(Supreme Court of New Hampshii-e, ISSO. CO N. II. 3.31.)
Bill in equity, to set aside the levy of an execution. Facts found
by a referee. May 13, 1871, Jane Smith, wife of Robert Smith, be-
ing seized in her own right of a tract of land called the "Little Lot,"
sold it to the plaintiff for $800, and intended and believed that she did
then convey it in fee simple "to him. But the deed, by mistake of the
scrivener, was executed by her husband, in which she merely released
dower and homestead. This was not recorded till November 12, 1875.
September 18, 1878, Jane and Robert executed and delivered to the
Ch. 8) PRIORITIES 899
plaintiff a deed of the lot, for the purpose of ratifying and confirming
the latter's title, and of fulfilling all that they supposed they did do
by their former deed. The plaintiff entered into possession of the
lot upon receiving the first deed, and has remained in the open, visible,
exclusive, and notorious possession of it ever since, cultivating the
land, cutting the grass, pasturing his cattle therein, cutting off the
wood, rebuilding the walls and fences, and tearing down the buildings,
which were old and dilapidated, and from the best of the timber erect-
ing a coopers' shop.
The defendant Ward, in 1876, without any consideration, assigned
to the defendant Morris a claim against Jane Smith; Morris, in April,
1876, brought suit on this claim, and obtained an execution, which
was levied on the "Little Lot." Before bringing the suit, Morris made
inquiries at the registry of deeds to ascertain if Jane Smith had con-
veyed this lot, and was informed that she had not. The deed of May
13, 1871, was indexed "Smith Robert to Galley William." Before
the attachment, Morris had no knowledge or suspicion that Jane had
sold the lot, and it did not appear when he first learned of it. Ward
and Morris both live in Boston, Mass.
Foster, J. At the time of Morris's attachment and levy, the plain-
tiff held the equitable title to the "Little lot" by virtue of the agree-
ment made with Jane Smith in 1871, under which he had paid the
full consideration for the property, and had entered into its occupation.
He was entitled to a decree for a specific performance of this agree-
ment, and to such a conveyance as he received September 18, 1878.
2 Story, Eq. § 761; Scoby v. Blanchard, 3 N. H. 170, 177; Hadduck
v. Wilmarth, 5 N. H. 181, 189, 20 Am. Dec. 570; Chartier v. Mar-
shall, 51 N. H. 400; Newton v. Swazey, 8 N. H. 9; Cutting v. Pike,
21 N. H. 347; Kidder v. Barr, 35 N. H. 235, 254; Doe v. Doe, Z7 N.
.H. 268 ; Ewins v. Gordon, 49 N. H. 444.
It is not claimed that Morris had any actual knowledge of the plain-
tiff's title. He merely knew as a fact that the legal title appeared by
the record to be in Jane Smith. And if the plaintift''s title is to prevail
in this suit, it must be on the ground of constructive notice. It is
substantially admitted in the brief for Morris, and is undoubtedly
the law in this state, that a purchaser of land, knowing that a third
person is in the open, visible, and notorious occupation of it, — an oc-
cupation inconsistent with the idea that he is a tenant, — is chargeable
with notice of such facts in reference to the latter's title, whether
legal or equitable, as he would have learned upon reasonable inquiry.
Colby v. Kenniston, 4 N. H. 262; Hadduck v. Wilmarth, 5 N. H.
181, 20 Am. Dec. 570; Warren v. Swett, 31 N. H. 332; Patten v.
Moore, 32 N. H. 383 ; Jones v. Smith, 1 Hare, 43 ; Tardy v. Morgan.
3 McLean, 358, Fed. Cas. No. 13,752; Landes v. Brant, 10 How. 348.
375, 13 L. Ed. 449; Ferrin v. Errol, 59 N. H. 234; Cooper v. New-
man, 45 N. H. 339 ; Nute v. Nute, 41 N. H. 60; Braman v. Wilkinson,
3 Barb. (N. Y.) 151; Bank v. Flagg, 3 Barb. Ch. (N. Y.) 316; Doo-
900 DERIVATIVE TITLES (Part 2
little V. Cook, 75 111. 354; Losey v. Simpson, 11 N. J. Eq. 246; Big.
Fr. 288 ; 1 Story, Eq. § 399, note 4 ; Hill. Vend. 408 ; Jones, Mort.
600. And the nature of the plaintiff's possession in this case was
sufficient to put a purchaser having knowledge of the facts on inquiry
as to the plaintiff's title.
But it is contended that Morris did not know of the plaintiff's pos-
session of the land, and that therefore the doctrine of constructive
notice cannot be applied to him. If he had known it, on tlie author-*
ities above cited he could have gained no title against the plaintiff by
his attachment and levy. Is his ignorance sufficient excuse ? When a
grantee records his deed, a subsequent purchaser is chargeable with
constructive notice of its contents. It is wholly immaterial whether
he has seen the deed, or has any knowledge of its existence. It h, as
sometimes expressed, a conclusive presumption of law that he had
notice of the grantee's deed. Malone, Real Prop. Trials, 427; Mor-
rison V. Kelly, 22 111. 610, 74 Am. Dec. 169. On the same ground it is
at least a prima facie presumption, that when there is such a posses-
sion by a third party as would charge a purchaser who knew of that
possession with knowledge of an adverse title, a purchaser ignorant
of that possession without excuse would be equally chargeable. And
this doctrine, in both cases, rests on the ground of fraud or culpable
negligence. As it is a part of a purchaser's duty to examine the rec-
ord, to inform himself as to the legal title he expects to acquire, a
failure to attend to that duty would amount to negligence on his part,
and would be a fraud on a previous purchaser under a recorded deed,
if he could, by proving his ignorance, acquire a title. By the same
mode of reasoning, if he is wilfully ignorant of such facts of notorious
occupation by a stranger as would put a purchaser cognizant of those
facts on his guard against some unrecorded deed or equitable claim,
his want of knowledge is due to his own laches and failure to attend
to an apparent duty. In Hughes v. U. S., 4 Wall. 232, 18 L. Ed. 303,
Field, J., says that if a purchaser neglects to make inquiry as to the
possession, "he is not entitled to any greater consideration than if he
had made it and ascertained the actual facts of the case." See, also,
Edwards v. Thompson, 71 N. C. 177; McKinzie v. Perrill, 15 Ohio
St. 162; Bailey v. Richardson, 9 Hare, 734; Gooding v. Riley, 50 N.
H. 400, 403^05 ; Strong v. Shea, 83 111. 575 ; Hommel v. Devinney,
39 Mich. 522; Patton v. Hollidaysburg, 40 Pa. 206; Perkins v.
Swank, 43 Miss. 349. Nor is there any distinction in this respect be-
tween a purchaser and a creditor. A creditor is bound by constructive
notice of the contents of a recorded deed, as well as a purchaser, and
there seems to be no reason why they should not both stand on the
same ground with reference to an equitable title in a third party, in a
case like the present. Priest v. Rice, 1 Pick. (Mass.) 164, 11 Am.
Dec. 156; Flynt v. Arnold, 2 Mete. (Mass.) 619; Farnsworth v.
Childs, 4 Mass. 637, 3 Am. Dec. 249 ; Scripture v. Soapstone Co., 50
N. H. 571.
Gh. 8) PRIORITIES , 901
The defendant Morris had no knowledge that the plaintiff was in
possession of the land in question, but, so far as the plaintiff or any-
body else was concerned, he was at liberty to examine the apparent
condition of the premises. He was not deceived by any misrepre-
sentations or concealments of the plaintiff. He relied on his own judg-
ment, and neglected an apparent duty. Like a purchaser having
knowledge of facts sufficient to put him on his guard, he must be held
chargeable with what he would have learned upon reasonable inquiry
as to the plaintiff's right of possession. And it appears from the case
that he would have learned of the plaintiff's equitable title. His title
therefore cannot prevail in this suit.
It is unnecessary, in the view we have taken of the case, to con-
sider the further question, whether the want of consideration for the
assignment of the claim to Morris by Ward would prevent the for-
mer from acquiring a title against the plaintiff. Decree according to
the prayer of the bill.^^
31 The owner of lands conveyed same to A., B., and C, the deed being duly
recorded. A. took possession, and shortly thereafter acquired deeds from B.
and C. conveying their interests to him. These deeds were not recorded. B.
and C. later made a deed of their undivided interests in the same premises to
D., who paid value therefor with no knowledge of the unrecorded deeds to A.
Should D. be charged with notice by reason of A.'s possession? See Dutton v.
McReynoUls, 31 Minn. 66, 16 N. W. 468 (lS8:ii; Farmers' & Merchants' Nat.
Bank v. Wallace, 45 Ohio, St. 152, 12 N. E. 439 (1SS7).
Lands were conveyed to A., the deed being properly recorded. A. later con-
veyed them to her husband, and that deed was not recorded. Still later, and
while A. and husband were living upon the premises, A. conveyed to B., who
paid value and had no knowledge of the conveyance from A. to her husband.
Should B. be charged with notice of the husband's interest? See Westerfield
V. Kimmer, 82 Ind. 365 (1882) ; Atwood v. Bearss, 47 Mich. 72, 10 N. W. 112
(1881).
A., a married woman, having purchased certain lands, had a conveyance of
same made to B. to hold on her behalf. B. later conveyed the premises to A.,
but the deed was never recorded. After the death of B., his heirs executed
a deed of these premises to C, who paid value therefor without knowledge of
the rights of A. Since the time of the first conveyance mentioned to B., A.
and her husband have resided upon the premises. Should C. be charged with
notice of A.'s rights? See Kirby v. Tallmadge. 160 l'. S. 371). 16 Sup. Ct. 349,
40 L. Ed. 463 (1S96). See, also, Phelan v. Brady, 119 N. Y. .587, 23 N. E. 1109,
8 L. R. A. 211 (1890) ; Boyer v. Chandler, 160 111. 394, 43 N. E. 803, 32 L. R. A.
113 (1896).
AVhat would have been the situation if, instead of A. and her husband being
in possession, a lessee of A. had been occupying the premises? See Hunt v.
Luch, [1902] 1 Ch. 428 ; Randall v. Lingwall, 43 Or. 383, 73 Pae. 1 (1903).
As to whether possession by a gi'antor in a recorded deed is notice of any
rights held by him, see Bloomer v. Henderson, 8 Mich. .395. 77 Am. Dec. 453
(1860) ; Van Keuren v. Central R. Co., 38 N. J. Law, 165 (1875) ; Randall v.
Lingwall, supra; Groff v. State Bank of Minneapoli.s, 50 Minn. 2.34, 52 N. W.
651, 36 Am. St. Rep. 640 (1892) ; Illinois Cent. R. Co. v. McCullough, 59 111.
166 (1871).
902 DERIVATIVE TITLES (Part 2
WILLIAMSON V. BROWN.
(Court of Appeals of New York, 1857. 15 N. Y. 354.)
The defendant, Brown, was the owner of fifty acres of land in
Hannibal, Oswego county, which, on the 4th of April, 1851, he sold
and conveyed to one Jackson Earl, taking back from Earl a mortgage
for $800 of the purchase money, but omitting at that time to put his
mortgage upon record.
On the 29th of October, 1851, Earl conveyed the land to the plain-
tiff by deed, which was duly recorded on the same day; and on the
28th of January, 1852, the mortgage from Earl to thfe defendant was
put upon record. In May following the defendant commenced pro-
ceedings for the foreclosure of the mortgage by advertisement. This
suit was commenced to restrain the defendant from proceeding with
this foreclosure, on the ground that the plaintiff was protected by
the recording act against the defendant's prior but unrecorded mort-
gage.
The cause was tried before a referee, who reported that he found
as matter of fact "that the plaintiff did not at the time he purchased
the premises have actual notice of the existence of the mortgage
mentioned in the pleadings, given by Jackson Earl to the defendant,"
but also found that he had "sufficient information, or belief of the
existence of said mortgage to put him upon inquiry, before he pur-
chased and received his conveyance of the premises in question ; and
that he pursued such inquiry to the extent of his information and
belief, as to the existence of the said mortgage, and did not find that
such mortgage existed, or had been given."
Upon these facts the referee held that the plaintiff was chargeable
with notice of the mortgage, and dismissed the complaint, and the
plaintiff excepted to the decision. Judgment was entered for the
defendant upon the referee's report which, upon appeal to the general
term of the fifth district, was affirmed.
Selden, J. The referee's report is conclusive as to the facts. It
states, in substance, that the plaintiff had sufficient information to
put him upon inquiry as to the defendant's mortgage; but that after
making all the inquiry, which upon such information it became his duty
to make, he failed to discover that any such mortgage existed. This
being, as I think, what the referee intended to state, is to be assumed
as the true interpretation of his report.
The question in the case, therefore is, as to the nature and effect
of that kind of notice so frequently mentioned as notice sufficient to
put a party upon inquiry. The counsel for the plaintiff contends that
while such a notice may be all that is required in some cases of equitable
cognizance, it is not sufficient in cases arising under the registry acts,
to charge the party claiming under a recorded title with knowledge of
Ch. 8) PRIORITIES 903
a prior unregistered conveyance. He cites several authorities in sup-
port of this position.
In the case of Dey v. Dunham, 2 Johns. Ch. 182, Chancellor Kent
says, in regard to notice under the registry act: "If notice that is to
put a party upon inquiry be sufficient to break in upon the policy and
the express provisions of the act then indeed the conclusion would
be different; but I do not apprehend that the decisions go that
length." Again, in his commentaries, speaking on the same subject,
he says : "Implied notice may be equally effectual with direct and pos-
itive notice; but then it must not be that notice which is barely suffi-
cient to put a party upon inquiry."
So in Jackson v. Van Valkenburgh, 8 Cow. 260, Woodworth, J.,
says: "If these rules be apphed to the present case, the notice was
defective. It may have answered to put a person on inquiry, in
a case where that species of notice is sufficient ; but we have seen that
to supply the place of registry, the law proceeds a step further."
A reference to some of the earlier decisions under the registry acts
of England, will tend, I think, to explain these remarks, which were
probably suggested by those decisions. One of the earliest, if not
the first of the English recording acts was that of 7 Anne, ch. 20.
That act differed from our general registry act in one important re-
spect. It did not, in terms require that the party to be protected by
the act should be a bona fide purchaser. Its language was : "And that
every such deed or conveyance, that shall at any time after, &c., be
made and executed, shall be adjudged fraudulent and void, against any
subsequent purchaser or mortgagee for valuable consideration, un-
less," &c.
The English judges found some difficulty at first in allowing any
equity, however strong, to control the explicit terms of the statute.
It was soon seen, however, that adhering to the strict letter of the act
would open the door to the grossest frauds. Courts of equity, there-
fore, began, but with great caution, to give relief when the fraud was
palpable. Hine v. Dodd, 2 Atk. 275, was a case in which the com-
plainant sought relief against a mortgage having a preference under
the registry act, on the ground that the mortgagee had notice. Lord
Hardwicke dismissed the bill, but admitted that "apparent fraud, or
clear and undoubted notice would be a proper ground of relief."
Again he said: "There may possibly have been cases of relief upon
notice, divested of fraud, but then the proof must be extremely clear."
Jolland V. Stainbridge, 3 Ves. 478, is another case in which relief
was denied. The master of the rolls, however, there says : "I must
admit now that the registry is not conclusive evidence, but it is equally
clear that it must be satisfactorily proved, that the person who registers
the subsequent deed must have known exactly the situation of the
persons having the prior deed, and knowing that, registered in order to
defraud them of that title."
904 DERIVATIVE TITLES (Part 2
Chancellor Kent refers to these cases in Dey v. Dunham, supra,
and his remarks in that case, as to the effect, under the registry acts,
of notice sufficient to put a party upon inquiry, were evidently made
under the influence of the language of Lord Hardwicke and the mas-
ter of the rolls above quoted.
But the English courts have since seen, that if they recognized any
equity founded upon notice to the subsequent purchaser of the prior
unregistered conveyance, it became necessarily a mere question of
good faith on the part of such purchaser. They now apply, therefore,
the same rules in regard to notice, to cases arising under the registry
acts, as to all other cases.
It will be sufficient to refer to one only among the modern English
cases on this subject, viz., Whitbread v. Boulnois, 1 You. & Coll. Ex.
R. 303. The plaintiff was a London brewer, and supplied Jordan, who
was a publican, with beer. It was the common practice with brewers
in London to lend money to publicans whom they supplied with beer,
upon a deposit of their title deeds. Jordan had deposited certain deeds
with the plaintiff, pursuant to this custom. He afterwards gave to one
Boulnois, a wine merchant a mortgage upon the property covered by
the deeds deposited, which was duly recorded. Boulnois had notice
of Jordan's debt to the plaintiff, and of the existing custom between
brewers and publicans, but he made no inquiry of tlie brewers. The
suit was brought to enforce the equitable mortgage arising from the
deposit. Baron Alderson held that the notice to Boulnois was suffi-
cient to make it his duty to inquire as to the existence of the deposit ;
that his not doing so was evidence of bad faith; and the plaintiff's
right, under his equitable mortgage, was sustained. No case could
show more strongly that notice which puts the party upon inquiry is
sufficient even under the registry act.
The cases in our own courts, since Dey v. Dunham and Jackson v.
Van Valkenburgh, supra, hold substantially the same doctrine. Tuttle
v. Jackson, 6 Wend. 213, 21 Am. Dec. 306; Jackson v. Post, 15 Wend.
588; Grimstone v. Carter, 3 Paige, 421, 24 Am. Dec. 230.
I can see no foundation in reason for a distinction between the evi-
dent requisite to establish a want of good faith, in a case arising under
the recording act, and in any other case ; and the authorities here re-
ferred to are sufficient to show that no such distinction is recognized,
at the present day, by the courts. The question, however, remains,
whether this species of notice is absolutely conclusive upon the rights
of the parties. The plaintiff's counsel contends, that knowledge suffi-
cient to put the purchaser upon inquiry is only presumptive evidence
of actual notice, and may be repelled by showing that the party did in-
quire with reasonable diligence, but failed to ascertain the existence of
the unregistered conveyance; while, on the other hand, it is insisted
that notice which makes it the duty of the party to inquire, amounts to
constructive notice of the prior conveyance, the law presuming that
due inquiry will necessarily lead to its discovery.
Gh. 8) PRIORITIES 905
The counsel for the defendant cites several authorities in support
of his position, and among others the cases of Tuttle v. Jackson and ,
Grimstone v. Carter, supra. In the first of these cases, Walworth,
Chancellor, says : "If the subsequent purchaser knows of the unreg-
istered conveyance, at the time of his purchase, he cannot protect him-
self against that conveyance ; and whatever is sufficient to make it his
duty to inquire as to the rights of others, is considered legal notice to
him of those rights;" and in Grimstone v. Carter, the same judge says:
"And if the person claiming the prior equity is in the actual possession
of the estate, and the purchaser has notice of that fact, it is sufficient
to put him on inquiry as to the actual rights of such possessor, and is
good constructive notice of those rights."
It must be conceded that the language used by the learned Chan-
cellor in these cases, if strictly accurate, would go to sustain the doc-
trine contended for by the defendant's counsel. Notice is of two kinds :
actual and constructive. Actual notice embraces all degrees and grades
of evidence, from the most direct and positive proof to the slightest,
circumstance from which a jury would be warranted in inferring notice.
It is a mere question of fact, and is open to every species of legitimate
evidence which may tend to strengthen or impair the conclusion. Con-
structive notice, on the other hand, is a legal inference from established
facts ; and like other legal presumptions, does not admit of dispute.
"Constructive notice," says Judge Story, "is in its nature no more than
evidence of notice, the presumption of which is so violent that the court
will not even allow of its being controverted." Story's Eq. Juris. § 399.
A recorded deed is an instance of constructive notice. It is of no
consequence whether the second purchaser has actual notice of the
prior deed or not. He is bound to take, and is presumed to have, the
requisite notice. So, too, notice to an agent is constructive notice to
the principal ; and it would not in the least avail the latter to show that
the agent had neglected to communicate the fact. In such cases, the
law imputes notice to the party whether he has it or not. Legal or im-
plied notice, therefore, is the same as constructive notice, and cannot
be controverted by proof.
But it will be found, on looking into the cases, that there is much
want of precision in the use of these terms. They have been not in-
frequently applied to degrees of evidence barely sufficient to warrant
a jury in inferring actual notice, and which the slightest opposing
proof would repel, instead of being confined to those legal presump-
tions of notice which no proof can overthrow. The use of these terms
by the chancellor, therefore, in Tuttle v. Jackson and Grimstone v.
Carter, is by no means conclusive.
The phraseology uniformly used, as descriptive of the kind of notice
in question, "sufficient to put the party upon inquiry," would geem to
imply that if the party is faithful in making inquiries, but fails to dis-
cover the conveyance, he will be protected. The import of the termS:
is, that it becomes the duty of the party to inquire. If, then, he per-
90G DERIVATIVE TITLES (Part 2
forms that duty is he still to be bound, without any actual notice? The
presumption of notice which arises from proof of that degree of knowl-
edge which will put a party upon inquiry is, I apprehend, not a pre-
sumption of law, but of fact, and may, therefore, be controverted by
evidence.
In Whitbread v. Boulnois, supra, Baron Alderson laid down the
rule as follows : "When a party having knowledge of such facts as
would lead any honest man, using ordinary caution, to make further
inquiries, does not make, but on the contrary studiously avoids mak-
ing, such obvious inquiries, he must be taken to have notice of those
facts, which, if he had used such ordinary diligence, he would readily
have ascertained." This very plainly implies that proof that the party
has used due diligence, but without effect, would repel the presump-
tion. In this case, it is true, the decision was against the party having
the notice. But in Jones v. Smith, 1 Hare, 43, we have a case in which
a party, who had knowledge sufficient to put him on inquiry, was nev-
ertheless held not bound by the notice.
The defendant had loaned money upon the security of the estate of
David Jones, the father of the plaintiff. At the time of the loan he
was informed, by David Jones and his wife, that a settlement was
made previous to the marriage, but was at the same time assured that
it only affected the property of the wife. He insisted upon seeing the
settlement, but was told that it was in the hands of a relative, and that
it could not be seen without giving offense to an aged aunt of the wife,
from whom they had expectations. David Jones, however, after some
further conversation, promised that he would try to procure it for ex-
hibition to the defendant. This promise he failed to perform. It
turned out that the settlement included the lands upon which the money
was loaned. Here was certainly knowledge enough to put the party
upon inquiry; for he was apprised of the existence of the very docu-
ment which was the foundation of the complainant's claim. He did
inquire, however, and made every reasonable effort to see the settle-
ment itself, but was baffled by the plausible pretences of David Smith.
The vice-chancellor held the notice insufficient. He said : "The af-
fairs of mankind cannot be carried on with ordinary security, if a doc-
trine like that of constructive notice is to be refined upon until it is ex-
tended to cases like the present."
Possession by a third person, under some previous title, has fre-
quently but inaccurately been said to amount to constructive notice to a
purchaser, of the nature and extent of such prior right. Such a pos-
session puts the purchaser upon inquiry, and makes it his duty to pur-
sue his inquiries with diligence, but is not absolutely conclusive upon
him. In Hanbury v. Litchfield, 2 Myl. & Keene, 629, when the ques-
tion arose, the Master of the Rolls said : "It is true that when a tenant
is in possession of the premises, a purchaser has implied notice of the
nature of his title; but if, at the time of his purchase, the tenant in
possession is not the original lessee, but merely holds under a deriva-
Ch. 8) PRIORITIES 907
tive lease, and has no knowledge of the covenants contained in the orig-
inal lease, it has never been considered that it was want of due dili-
gence in the purchaser, which is to fix him with implied notice, if he
does not pursue his inquiries through every derivative lessee until he
arrives at the person entitled to the original lease, which can alone con-
vey to him information of the covenants."
This doctrine is confirmed by the language of Judge Story, in Flagg
V. Mann et al., 2 Sumn. 554, Fed. Cas. No. 4,847. He says: "I admit
that the rule in equity seems to be, that where a tenant or other person
is in possession of the estate at the time of the purchase, the purchaser
is put upon inquiry as to the title; and if he does not inquire, he is
bound in the same manner as if he had inquired, and had positive no-
tice of the title of the party in possession."
It is still further confirmed by the case of Rogers v. Jones, 8 N. H.
264. The language of Parker, J., in that case, is very emphatic. He
says : "To say that he (the purchaser) was put upon inquiry, and that
having made all due investigation, without obtaining any knowledge of
title, he was still chargeable with notice of a deed, if one did really
exist, would be absurd."
If these authorities are to be relied upon, and I see no reason to
doubt their correctness, the true doctrine on this subject is, that where
a purchaser has knowledge of any fact, sufficient to put him on in-
quiry as to the existence of some right or title in conflict with that he is
about to purchase, he is presumed either to have made the inquiry, and
ascertained the extent of such prior right, or to have been guilty of a
degree of negligence equally fatal to his claim, to be considered as a
bona fide purchaser. This presumption, however, is a mere inference
of fact, and may be repelled by proof that the purchaser failed to dis-
cover the prior right, notwithstanding the exercise of proper diligence
on his part.
The judgment should be reversed, and there should be a new trial,
with costs, to abide the event.
Paige, J. The question to be decided is, whether under the find-
ing of the referee, the plaintiff is to' be deemed to have had at the time
of his purchase, legal notice of the prior unrecorded mortgage of the
defendant. The referee finds that the plaintiff had sufficient informa-
tion or belief of the existence of such mortgage to put him upon in-
quiry, but that upon pursuing such inquiry to the extent of such in-
formation and belief, he did not find that such mortgage existed or
had been given. It seems to me that the two findings are inconsistent
with each other. If the plaintiff on pursuing an inquiry to the full
extent of his information and belief as to the existence of the defend-
ant's mortgage, was unable to find that it either then existed or had
been given, the highest evidence is furnished that the information re-
ceived or belief entertained by the plaintiff' was not sufficient to put
him on inquiry as to the. existence of such mortgage. The last part of
this finding effectually disproves the fact previously found of the suffi-
908 DERIVATIVE TITLES (Part 2
ciency of notice to put the plaintiff on inquiry. The two facts are ut-
terly inconsistent with each other, and cannot possibly coexist.
The remarks of Parker, Justice, in Rogers v. Jones, 8 N. H. 264,
269, are directly apposite to the facts found by the referee. Judge
Parker says: "To say that he (demandant), was put upon inquiry,
and that having made all due investigation without obtaining any
knowledge of title, he was still chargeable with notice of a deed, if one
did really exist, would be absurd.'' The sound sense of these observa-
tions is clearly shown by the principle of the rule that information
sufficient to put a party upon inquiry is equivalent to evidence of ac-
tual notice, or to direct and positive notice. That principle is, that such
information will, if followed by an inquiry prosecuted with due dili-
gence, lead to a knowledge of the fact with notice of which the party is
sought to be charged. Hence, in all cases where the question of im-
plied notice of a prior unrecorded mortgage or conveyance arises as a
question of fact to be determined, the court must decide whether the
information possessed by the party would, if it had been followed up
by proper examination, have led to a discovery of such mortgage or
conveyance. If the determination is that such an examination would
have resulted in a discovery of the mortgage or conveyance, the con-
clusion of law necessarily results that the information possessed by the
party amounted to implied notice of such instrument. But if the de-
termination is the converse of the one stated, the information of the
party cannot be held to be an implied notice of the deed or mortgage.
These propositions will be found to be fully sustained by authority.
Kennedy v. Green, 3 Myl. & Keene, 699; 2 Sugden on Vendors, 552
(Am. Ed. of 1851, marg. page 1052); 4 Kent's Com. 172; Howard Ins.
Co. V. Halsey, 4 Sandf. (6 Super. Ct.) 577, 5'78; same case, 4 Seld.
274, 275 ; 1 Story's Eq. Jur. §§ 398-400a ; Jackson v. Burgott, 10 Johns.
461, 6 Am. Dec. 349; Dunham v. Dey, 15 Johns. 568, 569, 8 Am. Dec.
282, in error; Jackson v. Given, 8 Johns. 137, 5 Am. Dec. 328; Jolland
V. Stainbridge, 3 Ves. 478; Pendleton v. Fay, 2 Paige, 205. Where
the information is sufficient to lead a party to a knowledge of a prior
unrecorded conveyance, a neglect fo make the necessary inquiry to ac-
quire such knowledge, will not excuse him, but he will be chargeable
with a knowledge of its existence ; the rule being that a party in pos-
session of certain information will be chargeable with a knowledge of
all facts which an inquiry, suggested by such information, prosecuted
with due diUgence, would have disclosed to him. 4 Sandf. (6 Super.
Ct.) 578; 3 Myl. & Keene, 699. In this case the fact being found by
the referee, that the plaintiff after pursuing an inquiry to the extent
of his information, failed to discover the existence of the defendant's
mortgage, it seems to me that neither law nor justice will justify us in
holding the plaintiff chargeable with implied notice of such mortgage.
The doctrine of notice and its operation in favor of a prior unrecorded
deed or mortgage rests upon a question of fraud, and on the evidence
necessary to infer it. 4 Kent's Com. 172. Actual notice affects the
Ch. 8) PRIORITIES 909
conscience, and convicts the junior purchaser of a fraudulent intent
to defeat the prior conveyance. His knowledge of facts and circum-
stances at the time of the second purchase sufficient to enable him on
due inquiry to discover the existence of the prior conveyance, is evi-
dence from which a fraudulent intent may be inferred. 15 Johns. 569;
2 Johns. Ch. 190; Jackson v. Burgott, 10 Johns. 462, 6 Am. Dec. 349.
Now if it is ascertained and found as a fact, that the facts and cir-
cumstances within the knowledge of the second purchaser, at the time
of his purchase, were insufficient to lead him, on a diligent examination,
to a discovery of the prior conveyance, how upon this finding can a
fraudulent intent be inferred, and if not, how can he be charged with
notice, which implies a fraudulent intent? It is not in the nature of
things, that a knowledge of the same facts and circumstances, shall
at one and the same time, be held evidence of both innocence and guilt.
I think the rule well established that an inference of a fraudulent in-
tent on the part of a junior purchaser or mortgagee, must in the ab-
■ sence of actual notice, be founded on clear and strong circumstances,
and that such inference must be necessary and unquestionable. Mc-
Mechan v-. Griffing, 3 Pick. (Mass.) 149, 154, 155, 15 Am. Dec. 198;
Hine v. Dodd, 2 Atk. 275 ; Jackson v. Given, 8 Johns. 137, 5 Am. Dec.
328; Norcross v. Widgery, 2 Mass. 509; 2 Johns. Ch. 189; 15 Johns.
,569 ; 8 Cow. 264, 266.
For the above reasons, both the judgment rendered on the repori. of
the referee, and the judgment of the general term affirming the same,
should be reversed, and a new trial should be granted. ,
NORDMAN V. RAU.
(Supreme Court of Kansas, 1911. 86 Kuii. 19, 119 Pac. 351, 38 L. R. A. [N. S.]
400, Ann. Cas. 191oB, 1068.)
Mason, J. Johanne Nordman brought an action to enforce her
rights as to a tract of land under a mortgage given by Jacob Rau.
S. A. Webb, a defendant, claimed to be the absolute owner of the
land as an innocent purchaser without notice of the mortgage. Find-
ings of fact were made to the effect that the mortgage was executed
and in fact recorded in the office of the register of deeds of the
county where the land was situated, but was never acknowledged;
that while matters were in this situation a personal judgment was
rendered against Rau, an execution was issued and levied on the
land as his property, and it was sold to Webb at a sheriff's sale, which
was duly confirmed, and under which a deed was subsequently made
to him ; that the resident attorney who acted for Webb in bidding in
the land at the sheriff's sale, knew of the existence and contents of
the record of the unacknowledged mortgage. The trial court gave
judgment for the owner of the mortgage, holding it to be valid as to
Webb because his agent knew of the actual state of the record. Webb
appeals.
910 DERIVATIVE TITLES (Part 2
The appellant argues that inasmuch as the attorney who bid in the
land for Webb represented him only in that particular transaction
and had no other connection with him, the knowledge of the agent
was not equivalent to the knowledge of the principal. It fairly appears,
however, that the attorney gained his knowledge of the state of the
record after having been employed to attend the sale, and before bid-
ding in the property, and that in this aspect of the matter the case
falls within the rule that "a principal is * * * affected with
knowledge of all material facts of which the agent receives notice or
acquires knowledge while acting in the course of his employment." 31
Cyc. 1587. A purchaser at a sheriff's sale is entitled to the protection
of the recording act. Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73;
note, 21 L. R. A. 35.
It is therefore necessary to decide whether an unacknowledged
mortgage, which has been copied into the record book of the register
of deeds, is void against one who buys the property knowing the con-
tents of the record, but is otherwise an innocent purchaser for value.
An instrument affecting real estate is entitled to record only when
it has been acknowledged or proved as provided by the statute. And
where such an instrument is recorded without having been so acknowl-
edged or proved, the record does not impart notice to anyone. Wick-
ersham v. Chicago Zinc Co., 18 Kan. 481, 26 Am. Rep. 784; Wis-
comb v. Cubberly, 51 Kan. 580, 589, 33 Pac. 320. The statute relat-
ing to the effect of a failure to record instruments affecting real es-
tate reads: "No such instrument in writing shall be valid, except be-
tween the parties thereto, and such as have actual notice thereof, until
the same shall be deposited with the register of deeds for record."
Gen. St. 1868, c. 22, § 21, Gen. St. 1909. § 1672.
The precise question involved is whether one who has seen and read
in the records in the office of the register of deeds what is in fact
a copy of an existing unacknowledged instrument is to be regarded as
having "actual notice" of the instrument itself, within the meaning of
the statute. In Massachusetts and in Indiana "actual notice" is inter-
preted as equivalent to actual knowledge. Webb, Record of Tide, §
222, p. 356, note 3. But the general rule is that evidence of facts
and circumstances sufficient to put upon inquiry amount to actual
notice. Webb, Record of, Title, § 222, p. 356, note 4. "Actual notice
does not mean that which in metaphysical strictness is actual in its
nature, because it is seldom that ultimate facts can be communicated in
a manner so direct and unequivocal as to exclude doubts as to their
existence or authenticity. Actual notice means, among other things,
knowledge of facts and circumstances so pertinent in character as to
enable reasonably cautious and prudent persons to investigate and
ascertain as to the ultimate facts." Pope v. Nichols, 61 Kan. 230,
236, 59 Pac. 257, 259. "Actual notice may be either express or im-
plied ; that is, it may consist of knowledge actually brought personally
home, or it may consist of knowledge of facts so informing that a
Ch. 8) PRIORITIES 911
reasonably cautious person would be Jed by them to the ultimate fact.
* * * Actual notice is implied only when the known facts are
sufficiently specific to impose the duty to investigate further, and when
such facts furnish a natural clue to the ultimate fact." Faris v. Fin-
nup, 84 Kan. 122, 124, 113 Pac. 407, 408.
This court is of the opinion (not shared by the writer) that one who
has seen the record of an unacknowledged instrument is not deemed
because of that fact to have actual notice of the instrument itself,
upon these grounds : To charge him with such notice is to require
him to assume, without proof and without competent evidence, that
a valid conveyance is in existence corresponding to the unauthorized
copy. If he is required to give any attention to the matter at all he
may with ecjual or greater reason suppose tlie parties to have aban-
doned whatever intention they may have had to execute such a con-
veyance, from the fact that they failed to have a certificate of acknowl-
edgment attached. To charge him with actual notice of the existence
of a conveyance because he has seen a copy of it which, without legal
authority, has been written in a book of public records, is essentially
to give such copy the force of a valid record. To hold that the record
of an unacknowledged conveyance, if known to a prospective buyer,
amounts to actual notice of the instrument, is to compel him to give
it force as evidence which the court itself would refuse it. The view
is thus elaborated in Kerns v. Swope (Pa. Sup. Ct. 1833) 2 Watts, 75 :
"1 he registration being without the authority of the law, was the
unofficial act of the officer, which could give the copy no greater va-
lidity than the original deprived of legal evidence of execution ; nor
even so much, for an original deed exhibited to a purchaser would
affect him though it were unaccompanied with the evidence of its ex-
ecution. But here the registry was no better than a copy made by a
private person in a memorandum book ; from which a purchaser would
be unable to determine whether there were, in fact, an indorsement
on the deed, or whether it had been truly copied — especially when nei-
ther the copy, nor an exemplification of it, would be legal evidence of
the fact in a court of justice. Unquestionably a purchaser would not
be afi'ected by having seen the copy of a conveyance among tlie papers
of another, or an abstract of it in a private book. The whole effect
of a registry, whether as evidence of the original or as raising a legal
presumption that the copy thus made equivalent to the original had
been actually inspected by the party to be affected, is derived from the
positive provisions of the law; and when unsustained by these, a
registry can have no operation whatever. Stripped of artificial eflfect,
it is but the written declaration of the person who was the officer at
the time, that he had seen a paper in the words of the copy which
purported to be an original. But to say nothing in this place of the
incompetency of such a declaration as evidence of the fact, on what
principle would a purchaser be bound to attend to the hearsay informa-
tion of one who is not qualified to give it?" 2 Watts (Pa.) 78.
912 DERIVATIVE TITLES (Part 2
The same view was indicated in Banister v. Fallis, 85 Kan. 320, 116
Pac. 822, where it was said of the record of an unacknowledged in-
strument: "The instrument itself, if there were one, had no validity
except between tlie parties and those having actual notice, not of what
was on record, but of the instrument itself." 85 Kan. 322, 116 Pac.
823.
The judgment is reversed and the cause remanded with directions
to render judgment upon the findings quieting the title of Webb.
Mason, J. (dissenting). My own view of the question presented is
this : Wliere a prospective buyer of land sees upon the record what
purports to be the copy of an instrument bearing no certificate of ac-
knowledgment (or a defective one, for the rule would necessarily be
the same), the inference which he would naturally and almost neces-
sarily draw would be that tlie record was made at the instance of the
grantee, and that the grantee claimed to have an interest in the land
under an instrument in the language of the copy. The record would
not be competent legal evidence that such an instrument had been
executed, but it would suggest that probability so strongly that a pru-
dent person having knowledge of it would be put upon inquiry. It
would give him a definite and tangible clue, which, if diligently fol-
lowed up, would ordinarily bring the truth of the matter to light. In
the present case, if an inquiry had been prosecuted with reasonable
diligence, the existence of the mortgage would necessarily have been
developed.
In Banister v. Fallis; 85 Kan. 320, 116 Pac. 822, the purchaser of
land objected to the title because the record contained what purported
to be a copy of a contract affecting it. The objection was held un-
tenable because, the contract not having been acknowledged, the rec-
ord was not evidence of its execution, and no other evidence on the
subject was ofi^ered; and because the contract could not constitute a
cloud in any event, inasmuch as it purported to be made by a stranger
to tlie title. An additional reason was stated in the language quoted
in the foregoing opinion: "The instrument itself, if there were one,
had no validity except between the parties and those having actual no-
tice, not of what was on record, but of the instrument itself." 85 Kan.
322, 116 Pac. 823. I do not regard that decision as a definite deter-
mination of the question here involved.
I think the only case involving the exact question and supporting
the decision here made is Kerns v. Swope (Fa. Sup. Ct. 1833J 2 Watts,
75, cited in the opinion. That case is disapproved in the American
notes to White &.Tudor's Leading Cases in Equity, vol. 2, p. 152.
In 24 A. & E. Encycl. of L. 142, -143, it is said: "If an instrument be
not * * * entitled to record because of its defective execution or
a failure to comply with some of the prerequisites to recordation, the
record thereof will be a mere nullity and will not operate to give con-
structive notice. * * * But, * * * of course, such a record
may be instrumental in giving actual notice of the rights claimed un-
Ch. 8) PRIORITIES 913
der the instrument where the knowledge of its existence is brought
home to the party claiming against such instrument."
Of the four cases cited in support of this text, these three are di-
rectly in point : Rooker v. Hoof stetter, 26 Can. Supr. Ct. 41 ; Woods
V. Garnett, 72 Miss. 78, 16 South. 390; and Musgrove v. Bonser, 5
Or. 313, 20 Am. Rep. 117. To these may be added Walter v. Hartwig
et al., 106 Ind. 123, 6 N. E. 5, and Hastings v. Cutler, 24 N. H. 481,
which are directly in point, and Gilbert and others v.' Jess, impleaded,
31 Wis. 110, and Musick v. Barney, 49 Mo. 458, which are substan-
tially so. The New Hampshire case is the leading one on the sub-
ject. The grounds of the decision are shown by this extract from
the opinion, which is typical of the reasoning in the other cases :
"As the deed in this case was not executed according to the statute,
the registration as such is inoperative ; that is to say, the registration
is not constructive notice of the conveyance. But if by means of that
registration of the defective deed the defendants had actual notice of
the plaintiff's title, they are charged with the notice as in other cases.
The defendants, when they found the copy of the plaintiff's deed on
record, must have understood that the intended record was to give
information that such a deed had been made, and that the plaintiff
claimed the land under it. This must be regarded as actual notice, such
as every reasonable and honest man would feel bound to act upon."
Hastings v. Cutler, 24 N. H. 481, 483.
K writer in the Central Law Journal, in discussing the source from
which "actual notice" should come, says: "It is not essential in every
case that the notice should come from a party in interest, but that it
should come from some one who is capable not only of informing the
party of the adverse claim, but who can give such definite informa-
tion as to details as will lead to the acquisition of full knowledge of
the facts. If this is a correct deduction, then the copy of a deed, even
though it were defectively acknowledged, would amount to actual no-
tice of a higher degree than mere oral information of the existence of
such deed, even though the copy was made by a third party, and the
oral information came from a prior grantee. Hence the registry of
a defectively acknowledged deed would amount to notice of the con-
veyance, provided it were either admitted or proved, that the subsequent
purchaser saw and examined the record where the deed was tran-
scribed." 4 Central Law Jour. p. 293.
The author of Wade on Notice, in an article published in the Amer-
ican Law Review in 1885, said: "Registration of a deed, void for in-
formalities, as constructive notice, coming to the knowledge of tlie
subsequent purchaser, puts him in the direct line of inquiry, and is
actual notice of every fact to which that inquiry would lead." 19
Am. Law Rev. p. 88.
PoRTKR, J. (dissenting). I concur in the foregoing dissent, and be-
lieve that the decision, especially when applied to recorded instruments
Aig.Prop. — 58
914 DERIVATIVE TITLES (Part 2
which have defective acknowledgments, may work great injustice to
innocent persons, and will produce results which the legislature in
adopting the recording act never intended."
(C) Effectiveness of Record
SIGOURNEY V. LARNED..
(Supreme Judicial Court of Massachusetts, 1830. 10 Pick. 72.)
This was a bill in equity to redeem. Isaac Amidon, under whom both
parties claimed, made a deed of mortgage to the defendant, dated the
7th of April, 1827.
It appeared by the deposition of the register of deeds, that on the 8th
of April, which was Sunday, Amidon came to his dwelling-house and
entered the door while the clock was striking twelve at midnight, and
that Amidon handed the deed to the register, who was a justice of the
peace, requesting him to take the acknowledgment of the deed and to
record it.
The register received the deed, but he did not recollect whether the
certificate of the acknowledgment was affixed at tjiat time, or after day-
light on the same morning. .
The register made a memorandum on the deed, that it was received
and recorded on the 9th of April at one minute after twelve o'clock
a. m.
32 As to what is sufficient "notice" to affect the subsequent purchaser in
Massachusetts, see I'oinroy v. Stevens, 11 Mete. (Mass.) 244 (lS4n). But cf.
George v. Kent, 7 Allen (Mass.) 16 (1S63). In Maine, see Spofford v. Weston, 21)
]\Ie. 140 (1S48I; Knapp v. Bailey, 79 Me. 1!)5, 9 All. 122. 1 Am. St. liep. 295
(1887). In Ohio, under the mortgage registry statute, the clearest sort of no-
tice d(K's not affect. Mayham v. Coombs, 14 Ohio, 429 (184(j). And in North
Carolina the same is true as to all conveyances. Wood v. Lewey, 153 N. C.
401, C9 S. E, 268 (1910).
A. takes possession of land belonging to B. and holds same adversely for the
period of the statute of limitations. B. then sells and conveys the laiid to X.,
who pays value therefor without any knowledge of A.'s righti*. What effect, if
any, does such sale and conveyance have upou A.'s rights V
Lis Tendens.— A purchaser of land from a party involved in litigation re-
garding the title to that land takes subject to the results of such litigation. "It
is scarcely correct to speak of lis pendens as alfecting a purchaser through the
doctrine of notice, though undoubtedly the language of the courts often so de-
scribes its operation. It affects him, not beVause it amounts to notice, but be-
cause the law does not allow litigant parties to give to others, i>ending the
litigation, lights to the property in dispute, so as to prejudice the opposite par-
ty." Bellamy v. Sabiue, 1 De G. & J. 566, 578 (1857). The prlncii)le is as ap-
plicable to actions at law as to suits in equity, though the occasions for its
opeiation seldom arise in the case of actions at law.
By statute in many states a notice of the r)ending litigation must be record-
ed. Without such recording pursuant to the statute, a bona tide purchaser
for value without other notice of the litigation may acquire rights even from a
party to the suit, which will prevail over the rights of other p.irties, though
successful in the litigation, See, generally, on the subject, 2 Pomeroy, Eq. Ju-
ris. § 632 et seq.
Ch. 8) PRIORITIES 915
The land was subject to two previous mortgages, which were after-
wards assigned to the defendant.
The plaintiff derived his title from an attachment made "instantly
after twelve o'clock" on the morning of the 9th of April, without no-
tice of the mortgage to the defendant.
The plaintiff tendered the sum due on the two mortgages of which
the defendant was the assignee, and the question was, whether the
attachment was to be preferred before the third mortgage.
Per Curiam. Whether a delivery of a deed to the register at his
dwelling-house is equivalent to a delivery at his office, need, not be
determined, as the Court are of opinion, that independently of that
question, the deed to the defendant was received and recorded under
such circumstances as will not allow it to have the preference over
the attachment. It was not in a state to be considered as recorded,
until after the attachment was made. It should not only be acknowl-
edged, but the certificate of acknowledgment should be completed, be-
fore the delivery to the register, in order that such delivery shall con-
stitute a record. The certificate of a'cknowledgment is to be a part
of the record. It is not sufficient that the register is informed of the
acknowledgment ; the object of recording is to give notice to others.
Until this certificate was affixed, the fact that the deed was acknowl-
edged and in the register's hands, could not be notice. By the statute,
(St. 1783, c. Z7 , § 4,) a deed, to have effect against any but the grantor
and his heirs, and to entitle it to be recorded, must be acknowledged
by such grantor before a justice of the peace. Here Mr. Ward acted
in the double capacity of justice of the peace, and register of deeds.
He could not consider the deed as in his official custody in the latter
capacity, until he had done his office in taking the acknowledgment of
the grantor in the former, which must necessarily take some time.
The exact time when the certificate was made, does not distinctly ap-
pear ; but the probability is, tliat it was not done till the next morning.
But we do not decide the case upon that ground ; had the magistrate
proceeded instantly to write the certificate of acknowledgment, it must
have taken some time, during which the attachment took effect.
Where, in a controverted question of property, the parties stand upon
equal grounds, in point of equity, the legal title shall prevail ; and in
such cases slight circumstances are sufficient to determine that prior-
ity, upon which the preferable legal title depends. Here we think the
attachment was prior in time, and the maxim prior in tempore, potior
in jure, must decide in favour of the attaching creditor. Redemption
decreed.
916 DERIVATIVE TITLES (Part 2
PRINGLE V. DUNN.
(Supreme Court of Wisconsin, 1875. '61 Wis. 440, 19 Am. Rep. 772.)
Action commenced in Columbia county, August 24, 1863, to fore-
close a mortgage alleged to have been executed by the defendants,
Andrew Dunn and wife, to the La Crosse & Milwaukee Railroad Com-
pany upon the northeast quarter of the southeast quarter of section
six, township twelve north, of range nine east, in Columbia county,
to secure one of the bonds of said company for $5,000 payable Jan.
1, 1864; said mortgage bearing date April 11, 1854, and alleged to have
been recorded on that day in the office of the register of deeds for
Columbia county. The plaintiff claimed to hold the bond and mort-
gage as a bona fide purchaser for value before due. The assignment
to him was not of record. The action was originally brought against
the Dunns, the La Crosse & Milwaukee Railroad Company and Hans
Crocker, its receiver. Numerous other defendants were afterwards
brought in by amendment, and among them the Milwaukee & St. Paul
Railway Company, Thomas Maloy, Stanislaus Bartosz, and Felix Mc-
Lindon. The complaint, as amended, contained as against all the de-
fendants, except the Dunns, the allegation, that they had, or claimed,
some interest in, or title to the mortgaged premises which, if any, was
subsequent and subject to the mortgage of the plaintiff.
The Milwaukee & St. Paul Railway answered and, among other
things, denied specially that the plaintiff's mortgage was, at or before
the time of recording witnessed so as to entitle it to record, and alleged
that the record of the same has and shows no subscribing witnesses'
names thereon, and that the said company had since in good faith pur-
chased a portion of the premises covered by said mortgage without
any actual knowledge of the plaintiff's mortgage. It appeared that
the quarter quarter section embraced in the mortgage had subsequently
been platted as an addition to the city of Portage, and the various lots
thereof conveyed to divers parties, who were made defendants. The
mortgagor Dunn died before suit brought.
Venue was changed to Milwaukee county. The testimony as to the
witnessing and recording of the plaintiff's mortgage, on which action
was brought, was voluminous and conflicting, but substantially as fol-
lows ; The plaintiff offered in evidence the mortgage which purported
to have been signed by Andrew Dunn and Sarah J. Dunn as mort-
gagors and by H. C. Baker and A. J, McFarlane, as subscribing wit-
nesses, and acknowledged before Harvey C. Baker, as notary public.
The defendant offered in evidence a certified copy of the record of
said mortgage, certified by the register of deeds of Columbia county,
which shows the mortgage the same as the original, except that there
are no witnesses' names in the record. The original record was also
offered showing the same discrepancy. The deposition of Wm. Owen
was read, who testified that he was the register of deeds of Columbia
Ch. 8) PRIORITIES 917
county, at the time the mortgage was recorded ; that he signed the cer-
tificate indorsed thereon; that after the recording he compared the
mortgage with the record, assisted by one P. M. Johnson, he holding
the mortgage and comparing, while Johnson read the record ; that the
record was written by Johnson, who was at the time in the employ
of the La Crosse & Milwaukee Company; that the company were
desirous of having their farm mortgages speedily recorded, and made
an arrangement with the register whereby the copying of the deeds
into the records was done by Johnson, and the register thereafter com-
pared with him and certified to the record. The witness was confident
he had compared this mortgage by the mark "ex," made at the foot
of the page, which was, as he was positive, in his own handwriting;
that at the time of the comparing there were no names of subscrib-
ing witnesses on the deed ; that, as he thought, the fact was men-
tioned at the time, and that Johnson said he would go and have wit-
nesses' names subscribed to the mortgage. Hugh McFarlane testi-
fied that he was father of A. J. McFarlane, whose name was upon the
mortgage as witness ; that A. J. McFarlane was dead ; tliat he knew
his handwriting and was positive the signature upon the mortgage
was not his son's handwriting; that the son was 14 or 15 years old
at the date of the mortgage. Four other witnesses testified to knowl-
edge of A. J. McFarlane's handwriting, and that they thought the
signature upon the mortgage was not his.
The plaintiff, as rebutting evidence, produced P. M. Johnson, who
testified that he recorded the mortgage ; that he could not recollect
whether the witnesses' names were upon the original mortgage at the
time of recording; that it was his special business at the time to see
that the mortgages were properly executed, and, if they had been
wanting, he thought it hardly possible that the fact would have escaped
his notice; that the record was made hastily, and the ottiission of the
names in the record was probably an oversight on his part ; that this
was more likely than that he should have suffered the deed to pass
through his hands incompletely executed. The plaintiff also offered
in evidence the original general index from the office of the register
of deeds of Columbia county and read therefrom the entry of the
reception and record of said mortgage in form and manner as pre-
scribed by section 123, c. 10, R. S. 1849.' The plaintiff also introduced
as a witness Harvey C. Baker, who testified that both the grantors in
the mortgage signed and acknowledged the same before him as notary
and that he subscribed the same as a witness at the time; that A. J.
McFarlane went with him to the house of Andrew Dunn to obtain
the signature and acknowledgment of Mrs. Dunn ; could not positively
remember as to McFarlane's signing; but his best recollection was,
that he was present and witnessed the signing of the mortgage; did
not know young McFarlane's handwriting. Witness's recollection in
regard to the circumstances was quite indistinct. He was contradict-
ed, as to conversations held with A. B. Alden, who was introduced by
918 DERIVATIVE TITLES (Part 2
defendants and testified that Baker had admitted to him that one of
the mortgages given by Dunn had been returned to him by Johnson
to have witnesses procured. Some evidence was introduced tending
to impeach his reputation for truth and veracity. Mrs. Sarah J. Dunn
testified that she had no recollection of signing and acknowledging the
mortgage, or of Baker and McFarlane coming to the house, as Baker
had testified.
Thomas Maloy, one of the defendants, admitted in his deposition
that he had heard at the time he purchased his lots, that there was a
defective railroad mortgage said to be upon the lots, but which was
reputed to be good for nothing; that JMary Maloy, his wife, also
owned a lot purchased after the mortgage ; that he was present at the
purchase and did the business for her ; that he had previously heard
that there was such defective mortgage. There was no evidence that
she had heard of, or had any notice of its existence.
Felix McLindon, one of the defendants, admitted in his deposition
that he "knew by report that there was a railroad mortgage on the
place at the time he bought two of the lots covered by the mortgage
in suit."
.Stanislaus Bartosz, a defendant, who owned and lived on several of
the lots, testified that he had no actual knowledge of the mortgage; but
it appeared in evidence that his grantor, Simon Bartosz, had purchased
from H. W. Tenney, one of the parties who had platted the forty acres
embraced in the mortgage in suit, and that Tenney 's deed to Simon
Bartosz contained the clause : "said premises are free and clear from
all incumbrances, except a mortgage to the La Crosse Railroad Com-
pany, which I am to save said Bartosz harmless from."
The court below found that the mortgage was not subscribed by
Baker and McFarlane as witnesses at the time of the execution there-
of, and not until after the recording thereof, but was so subscribed
afterwards, but was not again recorded; that the plaintiff purchased
the bond and mortgage in regular course of business, and was the
owner and holder thereof ; that none oT the defendants had actual no-
tice of the mortgage, and that the record thereof, before the same was
witnessed, was not constructive notice of the mortgage ; and that the
defendants are entitled to judgment that the complaint be dismissed.
To these findings tlie plaintiff excepted, and appealed from tlie judg-
ment.
Cole, J. Before approaching the legal questions involved in this
case, it is necessary to determine a question of fact. And that is. Does
the evidence show that the mortgage sought to be foreclosed was
properly attested when first left at the office of the register, so as to
entitle it to record ? There is considerable testimony in the case which
tends strongly to prove that the mortgage had no witnesses when it
was recorded. And the court found as a fact that the mortgage was
not subscribed by the witnesses. Baker and McFarlane, at the time of
its execution and before it was transcribed upon tke records and en-
Ch. 8) PRIORITIES OW
tered in the general index, but was subscribed by these witnesses after
it was recorded, and that it was not again recorded. This finding af-
firms one important fact which is much contested by the defendants,
which is, the genuineness of the signature of the witness A. J. McFar-
lane to the instrument. An attempt was made to prove, and it is ar-
gued that the evidence shows, that McFarlane never signed the mort-
gage as a witness, and that his signature thereto is a forgery. On
this point we will only make the remark, that we are satisfied from
the evidence, and especially by an inspection of the writings them-
selves, of the authenticity of the signature. Whether the mortgage was
subscribed by the witnesses at the time of its execution, and before it
was left at the ofifice for registry, is a question of more doubt, upon
the evidence. The testimony is quite strong and positive, that the mort-
gage had no subscribing witnesses when it was recorded. But this tes-
timony is contradicted ; and, considering the circumstances attending
the execution and delivery of the mortgage, we think the probabilities
favor the inference that the instrument was witnessed when it was
left for record. According to this view, there was a mistake in tran-
scribing the mortgage upon the record, by omitting the names of the
witnesses. The weight of the evidence to our minds supports this in-
ference or conclusion. It is to be observed that tlie mortgage is per-
fect and fair on its face, showing two witnesses. A strong presump-
tion fairly arises from the instrument itself, that it was witnessed at
the time of its execution. This presumption is not overcome nor re-
pelled by the testimony offered to show that it was not witnessed at
that time.
In respect to the degree or quantity of evidence necessary to justify
a finding that the subscribing witnesses signed" the instrument after it
was executed and recorded, the case would seem to come within the
rule laid down in Kercheval v. Doty, 31 Wis. 478, where it is said:
"The proposition being to set aside or invalidate a written contract
by evidence of a far less certain and reliable character than the writ-
ing itself, the greatest clearness and certainty of proof should be re-
quired. It is like the cases where the object is to correct or reform a
deed or other instrument on the ground of mistake, or to set aside or
rescind it on the same ground ; where the rule is, that the fact must
be established by clear and satisfactory evidence." The testimony of-
fered to show that the mortgage was not witnessed when executed,
and before it was recorded, falls short of this rule. The fact is not
established by clear and conclusive proof that it was not witnessed
when executed. It would serve no useful purpose to go into a detailed
discussion of the evidence upon this point, and we shall not do so. It
-is sufficient to say that, giving to the testimony offered to show that
the mortgage was not witnessed before it was received for record, all
the weight to which it is entitled, it fails to establish that fact in a clear,
satisfactory manner.
920 DERIVATIVE TITLES (Part 2
Assuming, then, that the mortgage was witnessed when it was left
at the office of the register to be recorded, the further important in-
quiry arises as to what effect must be given to the record as construc-
tive notice to subsequent bona fide purchasers for value. This record
was in this state. The entry of the mortgage was made in the general
index book, but the full record of the instrument had no subscribing
witnesses. And therefore the question is, Would such a record operate
as constructive notice to subsequent purchasers^ for value, independent
of any actual notice ? It is claimed by the counsel for the plaintiff that
the record does and should so operate, notwithstanding the mistake
in the registration or recording of the instrument in extenso. This
presents a question of no little difficulty, which must be solved by the
application of general principles of law to the provisions of our statute.
It is a familiar rule, that an instrument must be properly executed
and acknowledged so as to entitle it to record, in order to make the
registry thereof operate as constructive notice to a subsequent pur-
chaser. Says Mr. Justice Story : "The doctrine as to the registration
of deeds being constructive notice to all subsequent purchasers, is not
to be understood of all deeds and conveyances which may be de facto
registered, but of such only as are authorized and required by law to
be registered, and are duly registered in compliance with law. If
they are not authorized or required to be registered, or the registry
itself is not in compliance with the law, the act of registration is
treated as a mere nullity: and then the subsequent purchaser is af-
fected only by such actual notice as would amount to a fraud." 1 Eq.
Jur. § 404. See also Ely v. Wilcox, 20 Wis. 528, 91 Am. Dec. 436;
Fallass v. Pierce, 30 Wis. 444; Lessee of Heister v. Fortner, 2 Bin.
(Pa.) 40, 4 Am. Dec. 417; Shove v. Larsen, 22 Wis. 142, and cases
cited on page 146.
Under our statute, among other requisites, two witnesses are essen-
tial to a conveyance, to entitle it to record. The statute requires every
register to keep a general index, each page of which shall be divided
into eight columns, with heads to the respective columns as prescribed ;
and the duty is imposed upon the register to make correct entries in
said index of every instrument received by him for record, under the
respective and appropriate heads, and immediately to enter in the ap-
propriate column, and in the order of time in which it was received, the
day and hour of reception ; and it is declared that the instrument "shall
be considered as recorded at tlie time so noted." R. S. c. 13, §§ 142,
143. In Shove v. Larsen, supra, the effect of this index containing
correct entries of matters required to be made therein was considered.
And it was held that by force of the statute it operated as constructive
notice to a subsequent purchaser. In that case the index contained an
accurate description of the land mortgaged, but, in transcribing the
mortgage at large upon the records, a mistake was made in the de-
scription. And it was claimed in behalf of the subsequent purchaser,
Ch. 8) ^ PRIORITIES 921
that it was the registration of the instrument at large which alone
amounted to constructive notice. But this construction of the statute
was not adopted, the court holding that a subsequent purchaser was
bound to take notice of the entries in the index, which the law re-
quired the register to make. This result seemed to follow necessarily
from the language of the statute, which declared that the instrument
should be considered as recorded at the time noted. Time might
elapse before the instrument was transcribed at large on the record,
or it might be lost and not transcribed at all, leaving the index the
only record of its contents. And the manifest intention of the statute
seemed to be to make the index notice of all proper entries from its
date, and also of the instrument itself till it was registered in full. The
further consequence would seem necessarily to result from this view
of the statute, that the registration of the conveyance in extenso re-
lates back to the registration in the index, and from thence there is
constructive notice of the contents of the instrument. The doctrine
of Shove V. Larsen was approved in Hay v. Hill, 24 Wis. 235 ; but
the court refused to make the entry in the index in that case operate
as constructive notice, because upon its very face it bore conclusive evi-
dence that it was not made at its date. In other words, the rectitude
and integrity of the index were successfully impeached by the index
itself. See also International Life Ins. Co. v. Scales, 27 Wis. '640.
Where there is nothing upon the face of the index to impeach or
throw suspicion upon its accuracy, there it would affect a subsequent
purchaser with notice of those facts which the law required to ap-
pear therein. Doubtless a still further consequence follows from tliis
construction of the statute, namely, that where by some mistake there
is a discrepancy between the proper index entries and the instrument
as registered, there each supplies the defects of the other in the con-
structive notice thereby given. That is, it appears to be the intention
of the statute to charge the subsequent purchaser constructively with
such knowledge as the proper index entries afford, as well as with
notice of those facts derived from the registration itself. He is pre-
sumed to have examined the whole record, and is aft'ected with notice
of what it contains. But when the instrument, as registered in full,
appears defective in some material and essential parts which are not
supplied by the index entries, what effect then must be given the rec-
ord as constructive notice? This is really the difficult question in this
case. From the entries in the index it would not appear whether the
mortgage was witnessed or not. The presumption from the mere en-
tries themselves would be, that it was witnessed and acknowledged so
as to entitle it to record. But when the mortgage as registered in
full was examined, it would be found that it had no witnesses and had
no business on the records. As the record itself is only constructive
notice of its contents, it is difficult to perceive how it can go beyond
the facts appearing upon it, and charge a purchaser constructively with
knowledge of a fact not in the record.
922 ■ DERIVATIVE TITLES (Part 2
, One of the counsel for the defendants states the argument on this
point as follows : He insists and claims that the entries in the index
book, so far as they indicated that the mortgage had been filed for
record, indicated also that the mortgage was so executed as to entitle
these entries of it to be made ; but that when the full record was looked
at for all the particulars of the mortgage, and perhaps for the ex-
press purpose of verifying the entries in the index, it is found that
the apparent assertion by the index entries that the mortgage was
properly executed was wholly untrue, and that the mortgage in fact
was no incumbrance. The fact, as truly shown to exist by the full
record, overcomes and destroys the false assertion as to the fact in
the index. And it appearing by the instrument registered that it was
not entitled to record, both the registration and index itself cease to
affect the purchaser with constructive notice.
It is not readily perceived wherein this argument as to the effect
of our various provisions upon the subject of registration is unsound.
The question mainly depends upon the construction of our own stat-
utes. So far as we are aware, this is the first time the point has been
presented in this court for adjudication. We have derived but little
aid from the decisions in other states, for the reason that few of them
have similar statutory provisions. We have been referred by the coun-
sel for tlie plaintiff to two cases in Michigan, Brown v. McCormick,
28 Mich. 215, and Starkweather v. Martin, Id. 472. In Brown v.
McCormick the effect of the registry, as notice to subsequent purchas-
ers, was made to turn upon the curative act of 1861, mentioned in the
opinion. In Starkweather v. Martin the question was, how far the
absence, on the registry of a deed, of any m.ark or device indicating a
seal, or of any statement of the register that the original was sealed,
aft'ected the validity of the record entry as evidence of title. The
record entry of the deed was made more than forty years before the
cause was decided, by the proper officer, and in the appropriate place
for the registry of deeds, under the law permitting the registry of
only sealed instruments ; and the instrument was in the form of a war-
ranty deed, purporting to be acknowledged and dated at a time when
it was the common and lawful course to seal conveyances, and con-
trary to official duty to take the acknowledgment unless the convey-
ance was sealed, and where the conclusion, attestation clause, and cer-
tificate of acknowledgment of the instrument all spoke of it as under
seal. The court said that these facts and incidents taken together
afforded a very strong presumption that the original was sealed.
The doctrine of this case does not seem to have a very strong bear-
ing upon the question under consideration. It may be said that it was
contrary to the duty of the register to record the mortgage unless it
was properly acknowledged and witnessed, and that a presumption
arises that he would not have done so. But in answer to this it may
also be said that the law made it the duty of the register to record, or
cause to be recorded correctly, all instruments authorized by law to be
Ch. 8) PRIORITIES 923
recorded. Section 140, c. 13, R. S. 1858. And the presumption that
he performed his duty in recording the mortgage correctly, is as strong
as the presumption that he would not have recorded it unless it was
entitled to registry.
In Shove v, Larsen, a number of cases are referred to which hold
that a mistake in recording a deed, or recording it out of its order,
renders the registration ineffectual as notice to subsequent incum-
brancers and purchasers. The doctrine of those cases would seem to
be applicable to the case before us. The registration and index entries
being incomplete, because showing that the mortgage had no subscrib-
ing witnesses, constructive notice could not be presumed of such a
record. For the principle "that the registry is notice of the tenor and
effect of the instrument recorded, only as it appears upon that record,"
fully applies. Shepherd v. Burkhalter, 13 Ga. 443, 58 Am. Dec. 523.
See, in addition to the cases cited in Shove v. Larsen ; Brown v. Kirk-
man, 1 Ohio St. 116; Stevens v. Hampton, 46 Mo. 404; Bishop v.
Schneider, 46 Mo. 472, 2 Am. Rep. 533; Terrell v. Andrew County,
44 Mo. 309 ; Frost v. Beekman, 1 Johns. Ch, (N. Y.) 288.
The question then arises, whether the evidence shows that any of
the defendants were affected with actual notice of the mortgage. This
question, we think, must be answered in the affirmative, so far as the
defendants Thomas Maloy and Stanislaus Bartosz are concerned.
In the deposition taken on his own behalf, but read as a part of the
plaintiff's case, Thomas Maloy distinctly admits that he had heard,
when he purchased his lots, that there was a defective railroad mort-
gage upon them, but that he did not look for it, because his abstract
did not show it. It is claimed by one of the counsel for the defend-
ants, that this related to the Aiken mortgage, and not to the one upon
which this action is brought. It seems to us, however, that this is a
totally inadmissible construction of the testimony. He most certainly
refers to the mortgage in suit. And what he had heard about there
being a defective railroad mortgage upon the property, was sufficient
to put him upon inquiry. Parker v. Kane, 4 Wis. 1, 65 Am. Dec. 283.
"What is sufficient to put a purchaser upon an inquiry is good notice;
that is, where a man has sufficient information to lead him to a fact,
he shall be deemed conusant of it." Sugden on Vendors (9th London
Ed.) p. 335. "In regard to the inquiry required of a party, it should be
such as a prudent and careful man would exercise in his own business
of equal importance. Accordingly, where the mortgagee is informed
that there are charges affecting the estate, and is cognizant of two only,
he cannot claim to be a purchaser without notice of other charges, be-
cause he believes that the two, which satisfy the word charges, are all
the charges upon it. He is bound to inquire whether there are any
others. The rule with respect to the consequences of a purchaser ab-
staining from making inquiries does not depend exclusively upon a
fraudulent motive ; a man may abstain from mere heedlessness, or
stupidity, and be none the less responsible for the consequences; but
924 DERIVATIVE TITLES (Part 2
if he make reasonable inquiry, and is deterred by a false answer, he
is excusable, if it be of a character to delude a prudent man." 1 Story's
Eq. Jur. § 400 b ; Jackson v. Van Valkenburgh, 8 Cow. (N. Y.) 260.
Independently of tlie record, Maloy had notice of the existence of the
mortgage, or had a knowledge of such facts as to call for further in-
quiry. He cannot, therefore, be protected as an innocent purchaser for
value.
The defendant Bartosz must be charged with notice of the mortgage
by the recitals in the deed from Tenney and wife to his immediate
grantor. He was present when that deed was executed and delivered
to his uncle. He testifies that he did not know whether anything was
said about the railroad mortgage at that time or not; that he did not
understand English very well. The purchase was really made by his
uncle for him. And whether he fully understood the conversation at
the time about incumbrances, he must be chargeable with notice of what
appears in his chain of title. This clause was in the deed to his uncle :
"Said premises are free and clear from all incumbrances except a mort-
gage to the La Crosse Railroad Co., which I am to save said Bartosz
harmless from." The general rule upon this subject is, "that where a
purchaser cannot make out a title but by a deed which leads him to
another fact, he will be presumed to have knowledge of the fact."
The following authorities are very clear and decisive upon that point:
Fitzhugh V. Barnard, 12 Mich. 105; Case v. Erwin, 18 Alich. 434;
Baker v. Mather, 25 Mich. 51; Howard Insurance Co. v. Halsey, 8
N. Y. 271, 59 Am. Dec. 478; Frost v. Beekman, supra, 1 Johns. Ch.
(N. Y.) 298 ; Gilbert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785 ; Acer
V. Westcott, 46 N. Y. 384, 7 Am. Rep. 355 ; Coles v. Sims, 5 De Gex,
M. & G. 1. The clause in the deed referred to the mortgage as an ex-
isting incumbrance, and he cannot now in good faith claim tliat it is
not a lien upon his property.
The counsel for the plaintiff claims that the defendant McLindon
had actual knowledge of the existence of the mortgage. It is true,
he testified that when he purchased, he knew by report that there was
a railroad mortgage upon the property, but he says that the report
stated that the mortgage was void. Were he not protected by another
principle, he could not certainly be regarded as a bona fide purchaser.
But he purchased from S. S. Johnson, or claims through Johnson, in
whom the title stood free from any taint. For the rule is well settled,
that a purchaser affected with notice may protect himself by purchas-
ing of another who is a bona fide purchaser for a valuable considera-
tion. For a similar reason, if a person who has notice sells to another
who has no notice and is a bona fide purchaser for a valuable consid-
eration, the latter may protect his title, although it was affected with
the equity arising from notice in the hands of the person from whom
he derived it. Mr. Justice Story says this doctrine, in both of its
branches, has been settled for nearly a century and a half in England.
1 Eq. Jur. § 410. He states an exception to the rule, which was recog-
Ch. 8) PRIORITIES 925
nized and enforced in Ely v. Wilcox, 26 Wis. 91, where the estate be-
came revested in the original fraudulent grantee, when the original
equity 'was held to reattach to it. There is no pretense that McLindon
comes within the exception; and as a bona fide purchase of an estate,
for a valuable consideration, purges away the equity from the estate in
the hands of all persons who derive title under it, he is protected. It
is said that it does not appear that Johnson's title was derived from
the common source. As we understand the bill of exceptions, an ab-
stract was oftereti in evidence to show title from Dunn, by various
intermediate conveyances, to the defendant, which was ruled out on
the plaintiff's objection. But perhaps it is a better answer to the objec-
tion to say that the plaintiff has made the defendants parties under the
general allegation that they claim some interest in or title to the mort-
gaged premises, which was subject to the mortgage. This allegation
implies that this interest was not adverse, but was derived from Dunn,
though subsequent in date and inferior in right to the plaintiff's mort-
gage.
It was further insisted that the evidence showed that the defendant
Mary Maloy had actual notice of the mortgage. We do not think this
position is sustained by the testimony. It is attempted to charge her
with the same actual knowledge her husband had, because he aided her
when she made her purchase of Martin Maloy. It does not appear that
anything was said at this time about the railroad mortgage, or that she
ever had any notice of it. It does not appear, even, that he was acting
as her agent in any legal sense; and besides, if he were, his knowledge '
acquired at another time, when not engaged in her business, ought not
to be imputed to her. Notice, to bind the principal, should be brought
home to the agent while engaged in the business or negotiation of the
principal, and when it would be a breach of trust in the former not to
communicate the knowledge to the latter. 1 Story's Eq. Jur. § 408,
and cases cited in note 1. The evidence fails to bring her within that
rule.
A number of other questions were discussed upon the argument ; but
we believe these observations dispose of all the more important ones.
The judgment of the circuit court as to the defendants Thomas
Maloy and Stanislaus Bartosz must be reversed, and the cause remand-
ed for further proceedings in accordance with this decision.
By The Court. It is so oi'dered.^^
33 Parret v. Shaubhut, 5 Minn. 32.3 (Gil. 258), 80 Am. Dec. 424 (1861), ace.
The matter of acknowledgment, witnessing, etc., as prerequisites to effective
recording, is dependent entirely upon the statutes of the state where the land
is. The student should consult the statutes.
926 DERIVATIVE TITLES (Part 2
FROST V. BEEKMAN.
(Court of Chancery- of New Tork, 1S14. 1 Johns. Ch. 2SS.)
The Chancellor.^' * * * Another, and a more interesting
question, is, respecting the extent and effect of the registry of the de-
fendant's mortgage, as notice to purchasers. It was a mortgage for
$3,000, and, by mistake, the registry was only for $300. This mistake
is the whole cause of the controversy.
The mortgage act of the sess. 24, ch, 156, declared, among other
things, that the registry of a mortgage should contain, not, indeed, the
mortgage at large, but the essential parts of the mortgage, and, among
other specified parts, "the mortgage money, and the time or times when
payable." To this register all persons whomsoever, at proper seasons,
are at liberty to have recourse ; and the act declared that mortgages
were to have preference, as to each other, according to the times of
registry, and that "no mortgage should defeat or prejudice the title
of any bona fide purchaser, unless the same should have been duly
registered, as aforesaid." This registry is notice of the mortgage to all
subsequent purchasers and mortgagees ; and so the act was construed,
and the law declared, by the court of errors, in the case of Johnson v.
Stagg, 2 Johns. 510. The English authorities, on this point, do not,
therefore, govern the case. The language of those authorities, un-
doubtedly, is, that the registry is not notice, though that doctrine is
much questioned, and the point seems still to be floating and unsettled.
Bedford v. Backhouse, 3 Eq. Cas. Abr. 615, pi. 12; Wrightson v. Hud-
son, Id. 609, pi. 7; Morecock v. Dickins, Amb. 678; Latouche v. Dun-
sany, 1 Schoale & Lefroy, 157; Sugden (3d Lond. Ed.) 524-7; Com.
Dig. tit. Til, Deed, ch. 21, § 11. The only question with us is, when,
and to what extent, is the registry notice? Is it notice of a mortgage
unduly registered? or is it notice beyond the contents of the registry?
The true construction of the act appears to be that the registry is
notice of the contents of it, and no more, and that the purchaser is
not to be charged with notice of the contents of the mortgage, any fur-
ther than they may be contained in the registry. The purchaser is not
bound to attend to the correctness of the registry. It is the business
of the mortgagee, and if a mistake occurs to his prejudice, the conse-
quences of it lie between him and the clerk, and not between him and
the bona fide purchaser. The act, in providing that all persons might
have recourse to the registry, intended that as the correct and sufficient
source of information ; and it would be a doctrine productive of im-
mense mischief to oblige the purchaser to look, at his peril, to the con-
tents of every mortgage, and to be bound by them, when different from
the contents, as declared in the registry. The registry might prove only
a snare to the purchaser, and no person could be safe in his purchase,
3 4 Only that part of the opinion dealing with the matter of re^stry is
printed.
Ch. 8) PRIORITIES 927
without hunting out and inspecting the original mortgage, a task of
great toil and difficulty. I am satisfied that this was not the intention,
as it certainly is not the sound policy, of the statute; nor is it repug-
nant to the doctrine contained in the books, that notice to a purchaser,
of the existence of a lease, is notice of its contents. Taylor v. Stib-
bert, 2 Ves. Jun. 437; Hiern v. Mill, 13 Ves. Jun. 118, 120; Hall v.
Smith, 14 Ves. Jun. 426. In that case, the party is put upon inquiry,
and he must make it, or abide the consequences. The decision, in Jack-
son V. Neely, 10 Johns. 374, was made upon the same principle; and it
was held that the recital in a deed of a letter of attorney, by which it
was made, was notice to the purchaser of the existence of such a power.
But here the statute did not mean to put the party upon further in-
quiry. The registry was intended to contain, within itself, all the
knowledge of the mortgage requisite for the purchaser's safety.
The question does not necessarily arise, in this case, how far the
unauthorized registry of a mortgage, as one made, for instance, with-
out any previous legal proof, or acknowledgment, would charge a pur-
chaser with notice of the mortgage. The better opinion, in the books,
seems to be, that it would not be notice, and that equity will not inter-
fere in favour of an incumbrancer, when he has not seen that his mort-
gage was duly registered. Sugden's Law of Vend. 527; 1 Schoale &
Lefroy, 157; Heister v. Fortner, 2 Bin. (Pa.) 40, 4 Am. Dec. 417. But
here every thing was done that could have been previously required of
the mortgagee. The mortgage was duly presented for registry, and
he was not bound to inspect and correct the record. This was the
exclusive business and duty of the clerk, and there is no reason why
the registry should not operate as notice, to the amount of the sum
mentioned therein ; and, indeed, so far the obligation of the registry is
admitted by the bill.
I conclude, therefore, that the registry was notice to purchasers, to
the amount, and only to the amount, of the sum specified in the reg-
istry. * * *
TERRELL v. ANDREW COUNTY.
(Supreme Court of Missouri, 1809. 44 Wo. 300.)
Wagner, J. The argument in reference to the execution of the
power contained in the mortgage, and the frauds between the Terrells
in the purchase of the property at the mortgagee's sale, is beside and
irrelevant to any issue in the case. If the facts alleged are true, they
may have furnished sufficient reason for Holt, the mortgagor, to move
to set aside the sale ; but in the absence of any complaint on his part,
the defendant can not make the objection for him. There is but one
question in this case to be determined. It seems that Andrew county
loaned to one Holt the sum of four hundred dollars belonging to the
common-school fund, for the securing of which he gave personal se-
928 DERIVATIVE TITLES (Part 2
curity, and also executed a mortgage on a lot owned by him in the city
of Savannah. The county duly deposited the deed for record with the
recorder of the county, and that officer, in recording the same, by mis-
take inserted two hundred dollars in the record instead of four hun-
dred dollars, showing an encumbrance for the former instead of the
latter sum. After the mortgage was recorded, Holt applied to one of
the plaintiffs for a loan of money, and offered to secure him by mort-
gage liens on real estate, the lot mortgaged to the county being among
the property. On examination, the record showed a mortgage for two
hundred dollars; the money was loaned, and a junior mortgage given
subject to the prior lien. Subsequently the county ordered the lot sold
in default of payment, claiming the full amount of four hundred dol-
lars, together with accrued interest. The plaintiff paid the two hun-
dred dollars, with interest tliereon, and proceeded to enjoin the col-
lection of the remainder.
The Court of Common Pleas in Buchanan county, to which the cause
was removed by change of venue, rendered judgment of perpetual in-
junction, and this judgment was reversed in the District Court.
The only question, therefore, is whether, under the law, the record
imparted notice for any greater amount than two hundred dollars. It
is not pretended that, at the time Terrell loaned the money and took his
mortgage, he had any other notice of the county's claim than that dis-
closed by the record.
It is contended here on behalf of the county that, according to our
statute, when a person files with the recorder an instrument, it imparts
notice of its real contents to all subsequent purchasers, regardless of any
mistake that the recorder may commit in placing it on record ; that the
statute provides that every instrument in writing, certified and recorded
in the manner prescribed, shall, from the time of filing the same with
the recorder for record, impart notice to all persons of the contents
thereof ; and all subsequent purchasers and mortgagees shall be deemed,
in law and equity, to purchase witli notice. R. S. 1855, p. 364, § 41.
According to the literal interpretation of the section, no notice is im-
parted till the instrument is actually placed on record, and then it re-
lates back to the time of filing. It was, no doubt, the intention of the
Legislature to give a person filing an instrument or conveyance all the
benefit of his diligence ; and when he deposits the same with the re-
corder, and has it placed on file, he has done all that he can do, and has
complied with the requirement of the law. From that time it will give
full notice to all subsequent purchasers and encumbrancers.
A person, in the examination of titles, first searches the records;
and if he finds nothing there, he looks to see if any instruments are
filed and not recorded. If nothing is found, and he has no actual no-
tice, so far as he is concerned the land is unencumbered. If he finds
a conveyance, he goes no further ; he never institutes an inquiry to find
whether the deed is correctly recorded or the contents literally tran-
scribed. Indeed, to attempt to prosecute such a search would be idle
Ch. 8) PRIORITIES X 929
and nugatory. Grantees do not usually leave their deeds lying in the
recorder's office for the inspection of the public. After they are re-
corded, they take them out and keep them in their possession. In a
large majority of cases it would not only entail expense and trouble,
but it would be useless, to attempt to get access to the original papers.
Hard and uncertain would be the fate of subsequent purchasers if
they could not rely upon the records, but must be under the necessity,
before they act, of tracing up the original deed to see that it is correctly
recorded. The statute says- that when the deed is certified and recorded
it shall impart notice of the contents from the time of filing. Cer-
tainly ; but this is to be understood in the sense that the deed is rightly
recorded, and the contents correctly spread upon the record. It never
was intended to impose upon the purchaser the burden of entering
into a long and laborious search to find out whether the recorder had
faithfully performed his duty. The obligation of giving the notice
rests on the party holding the title. If he fails in his duty, he must
suffer the consequences. If his duty is but imperfectly performed, he
can not claim all the advantages and lay the fault at the door of an in-
nocent purchaser.
But it is said the recorder is required to give bond for the faithful
performance of all the duties enjoined on him by law, and that this
is for the benefit of the subsequent purchaser who is injured by his
dereliction, and that he must pursue his remedy against the recorder.
This bond is for the benefit of any and every person who may suffer
injury by reason of the recorder's neglect to faithfully discharge the
duties of his office. It was not Terrell, in this case, who was injured;
it was Andrew county. The county deposited the deeds with the re-
corder, and paid him for recording it. Through his negligence and
inattention he did his work inaccurately, so that it imparted notice for
only half the consideration, and the county suffered loss and injury in
consequence thereof. The privity springs and exists between the coun-
ty and the recorder, and the count}' is the proper party to proceed
against him to recover the loss.
The judgment of the District Court must be reversed. The other
judges concur.
MANGOLD V. BARLOW.
(Supreme Court of Alississippi, 1884. 61 Miss. 593, 48 Am. Eep. 84.)
Ballou and wife executed a deed of trust to Faler & Co. on 19th of
February, 1877, on the land in controversy, and on that day it was
lodged with the clerk of the chancery court for record. It was recorded
but the clerk misdescribed the land, giving a different quarter section
from that described in the deed. Three years afterward the same
grantors executed a deed of trust on the same land to H. H. Barlow,
Aig.Peop. — 59
930 DERIVATIVE TITLES (Part 2
appellee, which was duly recorded on the day of Its execution, 27th
January, 18S0. There was no actual notice of the first deed or any-,
thing to .put the last grantee on inquiry. In a contest between the prior
and subsequent grantees the court below rendered judgment for the
latter, and from this judgment an appeal is taken.
Campbell, C. J. The question is, who shall suffer loss from an er-
ror of the clerk in recording a deed duly acknowledged and lodged with
him for record? Does the grantee acquit himself fully of all duty
when he delivers the deed to the proper officer for record, or is it his
duty to see that the instrument is properly recorded? And if a mistake
is made in recording by which a subsequent grantee is misled and in-
jured, whose claim shall prevail, that of the first grantee, who relied
on the officer to do his duty, or of the second grantee, who, in the faith
that the record is true, acts upon it? Shall the deed prevail or the
record of it? There is great contrariety of opinion on this subject in
other States. The courts of New York, Ohio, Vermont, Michigan,
Iowa, Wisconsin, Minnesota, Georgia, Tennessee, ^Missouri, and CaH-
fornia hold that subsequent purchasers are bound only by what the
record shows, while those of Alabama, Illinois, Pennsylvania, Connec-
ticut, Rhode Island, Virginia, and Texas hold tliat a grantee who lodges
the deed for record has done all that is required of him, and that the
deed must prevail although a mistake is made in recording it; that
from the time of its delivery to the proper officer for record it is con-
sidered as recorded, and for any error in recording by which a subse-
quent purchaser is misled and injured, he must look to the clerk for
redress and cannot throw the loss on the first grantee, who did all he
was required to do and should not suffer from the negligence of the
clerk. The decided weight of authority seems to be in favor of the
view that the record may be relied on by a subsequent purchaser, and
that he cannot be aft'ected by a deed not truly recorded. Frost v.
Beekman, 1 Johns. Ch. (N. Y.) 288; Beekman v. Frost, 18 Johns. (N.
Y.) 544, 9 Am. Dec. 246; Barnard v. Campau, 29 Mich. 162; Sawyer
V. Adams, 8 Vt. 172, 30 Am. Dec. 459; Sanger v. Craigue, 10 Vt. 555 ;
Terrell v. Andrew County, 44 Mo. 309; Lally v. Holland, 1 Swan
(Tenn.) 396; Baldwin v. Marshall, 2 Humph. (Tenn.) 116; Chamber-
lain V. Bell, 7 Cal. 292, 68 Am. Dec. 260 ; Shepherd v. Burkhalter, 13
Ga. 443, 58 Am. Dec. 523 ; Miller v. Bradford, 12 Iowa, 14 ; Brydon v.
Campbell, 40 Md. 331; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep.
772. For the other view, are Franklin v. Cannon, 1 Root (Conn.) 500;
Judd V. Woodruff, 2 Root (Conn.) 298 ; :\IcGregor v. Flail, 3 Stew. &
P. (Ala.) 397 ; Mims v. Mims, 35 Ala. 23 ; Nichols v. Reynolds, 1 R. I.
30, 36 Am. Dec. 238 ; Merrick v. Wallace, 19 111. 486 ; Throckmorton v.
Price, 28 Tex. 605, 91 Am. Dec. 334; Glading v. Frick, 88 Pa. 460;
Clader v. Thomas, 89 Pa. 343 ; Beverley v. Ellis, 1 Rand. (Va.) 102.
After the most careful consideration we range ourselves with the
minority, and hold that a grantee fully acquits himself of all duty im-
posed by law when he lodges the instrument with the proper officer
Ch. S) PRIORITIES 031
for record, and from that time it is notice to subsequent purchasers and
creditors of what it contains, and not of what the recording officers
may make it to show on the record. The clerk is not the agent of the
grantee and he is not responsible for his blunders. He has as much
right to rely on the fidelity of the officer as has a subsequent purchaser.
While his deed is in the clerk's office it shows its contents, and when it
is withdrawn from the office it has annexed a certificate by the officer
that it has been duly recorded. Either this may be relied on, or the
grantee must compare the deed with the record to see if it is truly
transcribed. This would be an unreasonable requirement. The first
grantee having done all that he is required to do to give notice of the
instrument may safely repose on the presumption that the recording
officer has done his duty, and if subsequent purchasers or creditors
suffer injury from official negligence or misconduct, they must seek
redress from the party at fault, and cannot visit the loss on him who
has done no wrong. In announcing this view we follow the language
of our statute and the rule most consonant with justice and sound
policy. The statutes declare that certain instruments shall be "void as
to all creditors and subsequent purchasers for valuable consideration,
without notice, unless they shall be acknowledged or proved and lodged
with the clerk of the chancery court of the proper county to be record-
ed." The grantee is not required to record the instrument or to see
that the officer does his duty. All that is imposed on the grantee is
that the instrument shall be acknowledged or proved and lodged with
the clerk of the chancery court of the proper county. There his duty
ends. That done, his deed is not to be void as to subsequent purchasers
or creditors. That is a performance of the condition without which
it would be void, and the condition having been performed the instru-
ment is discharged of all conditions and is thenceforth valid as to all.
Tlie State has established depositories for instruments to be recorded
and has prescribed the duties of recording officers. This is for the
benefit and protection of subsequent purchasers from a grantor and his
creditors. A grantee must have his deed put in condition for being re-
corded and must lodge it at the proper place for record. That is all
that is required of him. He is not a guarantor of compliance by the
recording officer with the law as to recording. It is not for his benefit
that the recording is to be done, but for others. The State has under-
taken to have the recording done, and if one suffers from the negli-
gence of the officer he must seek redress from the officer.
The judgment of the circuit court is reversed and the cause re-
manded for a' new trial.
932 DERIVATIVE TITLES (Part 2
PROUTY V. MARSHALL.
(Supreme Court of Pennsylvania, 1900. 225 Pa. 570, 74 Atl. 550, 25 L. H. A.
[N. S.] 1211.)
Potter, J. The precise question here presented for determination
is whether, when a mortgage is defectively recorded, and wrongly in-
dexed, by inserting a wrong initial, in entering the name of the mort-
gagor, the correct name being entirely omitted from the record, a pur-
chaser of the mortgaged premises, without actual notice, is chargeable
with notice of such mortgage, and as terre-tenant of the premises, sub-
ject to its enforcement against him.
It appears from the record, that on January 20, 1900, L. J. Marshall
executed and delivered to Agnes Prouty a purchase money mortgage,
secured upon premises in Dubois borough, Clearfield county. On Feb-
ruary 6, 1900, the mortgage was delivered for record by the mortgagee
to the recorder of deeds for Clearfield county, and the fee for recording
paid to him. The recorder subsequently returned the mortgage to the
mortgagee, with his certificate indorsed upon it, certifying that it had
been recorded.
The recorder, however, had not recorded the mortgage as executed
by L. J. Marshall, and had not indexed it under the name of L. J. Mar-
shall. But upon the record the name of the mortgagor, wherever it
appeared, was written "S. J. Marshall," and the only name entered on
the indexes was that of "S. J. Marshall."
On August 25, 1903, A. A. La Rue purchased the mortgaged prem-
ises and the same were conveyed to him by Marshall. La Rue had no
actual notice of the mortgage to Prouty. On July 10, 1906, a scire
facias was issued on the mortgage against Marshall as mortgagor and
La Rue as terre-tenant, to recover a balance claimed to be due the
mortgagee. La Rue, the terre-tenant, defended upon the ground that
neither the mortgage books nor the mortgage indexes in the recorder's
office showed any mortgage executed by L. J. Marshall or contained
any record of the mortgage sued on.
Upon the trial in the court of common pleas, the trial judge directed
a verdict for the plaintiff, reserving a point requesting binding instruc-
tions for the defendants. The court subsequently overruled a motion
for judgment on the reserved point non obstante veredicto, and entered
judgment on the verdict. The terre-tenant appealed to the Superior
Court, which affirmed the judgment of the court below. The present
appeal is by the terre-tenant from the decree of the Superior Court,
which is assigned for error.^"^
An examination of the cases cited in the opinion of the Superior
Court, shows that none of them presented facts similar to those in the
case at bar, and in none of them was the exact question here presented,
3r. The case below is reported in 30 Pa. Super. Ct 527.
Ch. 8) PRIORITIES • 933
considered. Thus in Speer v. Evans, 47 Pa. 141, the case turned upon
the question of actual notice, and it was held that actual notice is
equivalent to the constructive notice given by the mortgage index.
In Brooke's Appeal, 64 Pa. 127, the point decided was, that, under the
Act of May 28, 1775 [1715], 1 Smith's Laws, p. 94, a mortgage has
priority of lien from the moment when it is left with the recorder for
record, not from the time when it is actually recorded. In Schell v.
Stein, 76 Pa. 398, 18 Am. Rep. 416, the instrument was properly re-
corded, but not indexed, in a general index. It was held that as the
law then stood, the recorder of deeds was not required by the Act of
March 29, 1827 (P. L. 154), to keep a general index of all the deed
and mortgage books in his office, but only to keep an index for each
book. The law in this respect has been changed by the Act of March
18, 1875 (P. L. 32), and general indexes are now required to be kept,
and failure to index renders the record defective. The case of
Wood's and Brown's Appeal, 82 Pa. 116, also arose before the passage
of the act of 1875, and it held, that the entry of the mortgage in the
proper book gave it a lien, which failure to index would not disturb.
The case of Glading v. Frick, 88 Pa. 460, also arose before the act of
1875. It was there decided that, "Where certain instruments of writ-
ing are not required by law to be recorded in a particular book, they
may be recorded in any book kept by the recorder ; and a building con-
tract is valid although recorded in a deed book." In Wyoming Na-
tional Bank's Appeal, 11 Wkly. Notes Cas. 567, the syllabus reads:
"Where a mortgage is left for record and actually recorded, its lien
will not be postponed to a subsequent judgment, by reason of the facf
that the recorder has failed to enter Uie same on the book of entries,
or upon the index." But this court was careful to point out (page 568)
that, "The mortgage in question was left at the recorder's office in
1873, prior to the passage of the act of March 18, 1875, so that it is
not necessary to inquire whether the failure to index deprived the
mortgagee of his security." Clader v. Thomas, 89 Pa. 343, and Paige
v. Wheeler, 92 Pa. 282, enunciate no new principle, and both cases
arose prior to the act of 1875. Stockwell v. McHenry, 107 Pa. 237,
52 Am. Rep. 475, does not bear directly upon the question raised by
the present appeal. As pointed out by the Superior Court, the case
related to an instrument recorded in 1865, and therefore the indexing
act of 1875 did not apply. It was expressly held (107 Pa. 244, 52 Am.
Rep. 475) that the act of 1875 was not retroactive. In the case of
Farabee v. McKerrihan,. 172 Pa. 234, 33 Atl. 583, 51 Am. St. Rep. 734,
the mortgage was actually recorded and indexed, but in the deed book
and deed index, and not in the mortgage book and mortgage index. It
was held that as recording in the deed book, and indexing in the deed
index placed the incumbrance in the line of title of the mortgagor,
where it could be discovered with the same ease and certainty as if it
had been placed in the mortgage book index, by anyone examining tli«
title, it was sufficient notice to preserve the lien.
934 DERIVATIVE TITLES (Part 2
The great object to be attained, by recording and indexing an instru-
ment affecting the title to real estate, is to give notice of the incum-
brance. This principle seems to have been overlooked in the present
case, for in reaching a conclusion, both the Superior Court and the trial
court apparently gave little heed to the fact that the prime purpose of
the law, in providing for the recording of deeds and mortgages, is to
give notice to intending purchasers, or to others who may be interested,
that the conveyance or incumbrance stands in the line of title to the
property which it describes. The object of the recording acts is to give
notice to the world of that which is spread upon the record. Therefore,
4he record is constructive notice to all persons, without regard to the
fact of actual notice. Under our system, the record is open to everyone
who desires to ascertain the condition of the title to any piece of real
estate, in so far as its ownership is concerned, or as to incumbrances
thereo-n, and everyone is bound to take notice of what the record shows,
and searchers may rely upon the record as it stands. If this were not
so, no one would be safe in purchasing real estate, or in loaning upon
the strength of it, as security.
In the present case, the mortgage sued upon was never correctly
recorded. The mortgage on record purports to have been executed by
S. J. Marshall, and the name of L. J. Marshall does not appear upon it.
The record of a mortgage given by S. J. Marshall is not notice to
anyone seeking for incumbrances against L. J. Marshall. The same
error was made in indexing the instrument. It was indexed as S. J.
Marshall, and no mortgage given by L. J. Marshall appears upon the
index. As the statute requires the recorder to keep mortgage indexes,
and section 3 of the Act of March 18, 1875 (P. L. 32), expressly pro-
vides that the entry of r^ortgages in said index, shall be notice to all
persons of the recording of the same, the appellant here was entitled
to rely upon what appeared on the index, and that showed no mort-
gage given by L. J. Marshall.
Considerable stress was laid upon the fact that tlie recorder had
certified that the mortgage was recorded ; but that can make no differ-
ence whatever as to notice to the purchaser, which is the only question
that concerns him. He never saw the certificate of the recorder; that
was given to the mortgagee, and was for her benefit. If the recorder
was negligent in his duty, and gave her a false certificate, she has
doubtless her right of action for damages against him. But the error
made by the recorder does not alter the fact that no notice of the
mortgage, either actual or constructive, was given to the purchaser.
He therefore took the land free of any such incumbrance, and it can-
not be enforced against him. The motion for judgment in favor of
defendant, non obstante veredicto, should have been sustained.
It should be remembered that in this case the mortgage was neither
recorded properly nor indexed properly ; both recording and indexing
were alike defective, and each of the defects was fatal to the claim of
the mortsrasfee.
Ch. 8) PRIORITIES 935
The failure to index properly is made so by the Act of March 18,
1875 (P. L. 32), which after requiring in the first section, the recorder
to prepare and keep two general indexes, the one direct, and the other
ad sectum,, of all mortgages recorded in his office, goes on to provide :
"Sec. 2. As soon as said indexes are prepared, it shall be the duty
of the recorder to index in its appropriate place and manner every
deed and mortgage thereafter recorded in his office, at the time the
same is recorded, and in case he neglect to do so, he and his sureties
shall be liable in damages to any person aggrieved by such neglect."
In Pyles v. Brown, 189 Pa. 164, 168, 42 Atl. 11, 12, 69 Am. St. Rep.
794, our Brother Fell said that this act 'Svas probably passed to remedy
the defects in the recording acts pointed out by Chief Justice Agnew
in the opinion in Schell v. Stein, 76 Pa. 398 [18 Am. Rep. 416], decided
in 1874." There it was said (76 Pa. 400^ 18 Am. Rep. 416) : "The
question presented by the record in this case is, whether a deed regu-
larly acknowledged or proved, and recorded in the proper book, and
indexed in the separate index appropriated to the book, but not in the
general index of all the deed books, is not defectively recorded. If
it be, tlie conceded principle is, that a deed defectively registered is a
nullity as to subsequent purchasers or mortgagees. There is no law
which requires the recorder to keep a general index to all the deed or
mortgage books in his office. That it is a great convenience, and in
the populous counties of the state has become a necessity, is evident,
but it is the province of the legislature, and not of this court, to make
this convenience or the necessity the subject of law."
The needed legislation thus pointed out, requiring the keeping of
general indexes, was provided by the act of 1875, and thereafter under
the reasoning of Justice Agnew, supra, the failure to index in the gen-
eral index became such a defect in the recording, as to make it a nullity
to subsequent purchasers or mortgagees."*^
In 1 Jones on Mortgages (6th Ed. 1904) § 515, it is said: "If the
record of a deed be defective for any cause, it is constructive notice
of only what 'the record contains, in case the record is not an accurate
transcript of the instrument. This is the view sustained by the greater
number of decisions and by the greater weight of reason, as distin-
guished from the view that the filing of the deed operates as a record
of it, and that it is constructive notice from such time of the actual
contents of the deed," citing Heister v. Fortner, 2 Bin. 40, 4 Am. Rep.
417; Schell v. Stein, 76 Pa. 398, 18 Am. Rep. 416, and cases in Cali-
fornia, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri,
New Jersey, New York, Virginia and Wisconsin.
So also in 2 Pomeroy's Equity Juris. (3d Ed., 1905) § 654, there is
a clear statement of what 'we. think is a sound principle. It is there
said : "A record is a constructive notice only when and so far as it is
a true copy, substantially even if not absolutely correct, of the instru-
3 8 So, also, in Iowa the failure to index is fatal. Barney v. McCarty, 15
Iowa, 510, 83 Am. Dec. 427 (1S64).
93G DERIVATIVE TITLES (Part 2
ment which purports to be registered, and of all its provisions. Any-
material omission or alteration will certainly prevent the record from
being a constructive notice of the original instrument, although it may
appear on the registry books to be an instrument, perfect, and opera-
tive in all its parts. The test is a plain and simple one. It is whether
the record, if examined and read by the party dealing with the prem-
ises, would be an actual notice to him of the original instrument and
of all its parts and provisions. B}'' the policy of the recording acts, such
a party is called upon to search the records, and he has a right to rely
upon what he finds there entered as a true and complete transcript of
any and every instrument affecting the title to the lands with respect
to which he is dealing. A record can only be a constructive notice, at
most, of whatever is contained within itself. * * * The same rule
.applies to the record of miortgages and all other incumbrances which
can be recorded. The language, both of the original and of the record,
must be such that if a subsequent purchaser or incumbrancer should
examine the instrument itself, he would obtain thereby an actual notice
of all the rights which were intended to be created or conferred by it."
In the case at bar, the duty was upon the mortgagee" to give notice
that L. J. Alarshall had executed to her a mortgage upon the premises
in question. If from any cause she fell short of giving legal notice, the
consequence must fall upon her. She cannot hide behind the mistake
of the recorder. It is an easy matter for a mortgagee, or a grantee in
each particular instance, either in person, or by a representative, to
look at the record, and see that the instrument has been' properly en-
tered. The instrument itself is at hand. The names of the parties are
known, and comparisons are easily made. How would it be possible
for a subsequent purchaser to know anything about the facts? The
duty thus imposed upon the mortgagee in this respect, involves no
more, and no less, than is required of a mortgagee, for his own pro-
tection, when before the money is paid out upon the loan, an inspection
of the judgment indexes is necessary to see whether or not a judgment
has been entered against the mortgagor upon the same day on which
the mortgage is recorded. Some care must be exercised in every such
transaction. There is every reason why it should be made the duty
of the mortgagee to see that his instrument is properly recorded. This
will not in any way interfere with the principle that when the instru-
ment is certified as recorded, it shall import notice of the contents from
the time of filing. But that must be understood as in connection with
an instriiment properly recorded. As said above, the record is notice
of just what it contains, no more and no less. The obligation of seeing
that the record of an instrument is correct, must properly rest upon its
holder. If he fails to protect himself, the consequence cannot justly
be shifted upon an innocent purchaser.
The judgment of the Superior Court is reversed, as is also that of
the court of common pleas, and it is ordered that judgment in favor
of the terre-tenant be entered, non obstante veredicto.
Ch. 8) PRIORITIES 937
IMUTUAL L. INS. CO. v. DAKE.
(Court of Appeals of New York, 1881. 87 N. Y. 257.)
Earl, J. This action is brought to foreclose a mortgage which was
executed by the defendant Teeple and his wife, to the plaintiff on the
4th day of June, 1870, upon lands in Livingston county, to secure pay-
ment of the sum of 82,000 with interest.
On the 7th day of December, 1870, the plaintiff left the mortgage
at the office of the clerk of Livingston county, for record, and paid
the fee for recording it. On the same day the clerk duly transcribed
the mortgage in full, in the proper record book in his office, and in-
dorsed on it his certificate in due form, and returned the mortgage,
so indorsed, to the plaintiff. The clerk omitted, however, by mistake,
to index the mortgage, and the plaintiff was ignorant of the omission
until September, 1875, when the omission having been discovered, the
mortgage was indexed by the clerk. The defendant, Jabez W. Dake,
is the assignee of two mortgages executed by Teeple, on the same
premises, one prior to the plaintiff's mortgage, dated April 6, 1868, for
$600 and interest, given to one Nichols; the other, executed to one
Baity, on the 14th of March, 1874, duly recorded and indexed on that
day, and assigned by Baity to Dake, on the 10th of March, 1875. The
mortgage to Baity was given to secure the payment of the sum of $1,-
400 loaned by Baity to Teeple at the time of the execution of the
mortgage. Before making the loan, and in view of it, Baity procured
from the clerk a certificate of search, as to the title to the premises,
and incumbrances thereon. The certificate did not show the existence
of the plaintiff's mortgage, and Baity had no actual notice or knowl-
edge of it until after he assigned his mortgage to Dake. The assign-
ment to Dake was for a valuable consideration, and was duly recorded
on the 16th of March, 1875. Before taking it, Dake saw the cer-
tificate of search which Baity had, and also procured for himself a
certificate of search from the clerk, which, as well as the one in Balty's
hands, did not show the existence of the plaintiff's mortgage, and Dake
had no actual notice or knowledge of such mortgage till the 6th of
December, 1875. The question now to be determined is, whether the
plaintiff's mortgage or the Baity mortgage shall have priority, Dake
claiming that although the plaintiff's mortgage was prior in time, it
lost its priority because it was not indexed.
We have carefully examined the able and exhaustive briefs submit-
ted to us, and are satisfied that no error was committed in the court
below by its holding that plaintiff's mortgage had the priority. The
carefully prepared and able opinion of Smith, J., at the Special Term,
leaves but little now to be said ; but as the question is claimed to be
a new one in tliis State, we will briefly state the reasons for our af-
firmance of the judgment appealed from.
938 DERIVATIVE TITLES (Part 2
The plaintiff's mortgage, being prior in time, is entitled to priority '
over the Baity mortgage, unless it has lost such priority by force of
the Recording Act, and a reference to it is therefore needful. It is
found in chap. 3, part 2, of the Revised Statutes, which chapter is en-
titled, "of the proof and recording of conveyances of real estate, and
the canceling of mortgages." Section 1 provides, that "Every con-
veyance of real estate within this State, hereafter made, shall be re-
corded in the office of the clerk of the county where such real estate
shall be situated; and every such xonveyance not so recorded, shall
be void as against any subsequent purchaser, in good faith and for a
valuable consideration, of the same real estate, or any portion thereof,
whose conveyance shall be first duly recorded." The' record here in-
tended was plainly a copy of the conveyance, transcribed into the
proper book of records. Section 2 provides, that "Different sets of
books shall be provided, by the clerks of the several counties, for the
recording of deeds and mortgages." Section 24 provides, that "Every
conveyance entitled by law to be recorded, shall be recorded in the
order, and as of the time, when the same shall be delivered to the clerk
for that purpose, and shall be considered as recorded, from the time
of such delivery." Section 25 provides, that "The recording officer
shall make an entry in the record, immediately after the copy of every
conveyance recorded, specifying the time of the day, month and year
when the said conveyance was recorded, and shall endorse upon ev-
ery conveyance recorded by him, a certificate, stating the time as afore-
said, when, and the book and page where, tiie same was recorded ;"
and a later section (38) provides that the term "Conveyance" shall em-
brace a mortgage.
Here there is a complete system for the registry of deeds and mort-
gages prescribing the place and mode of registry, and not one word
is said of any index to be made. It will be observed that the clerk
is not required to certify, upon the conveyance recorded, tliat he has
indexed the same, and yet if the index was an essential part of the rec-
ord, it cannot be supposed that a matter so important would have
been omitted from the certificate required.
By chapter 313 of the Laws of 1826, county clerks were required
to make separate indices in separate books of all deeds and mortgages
recorded or registered in tlieir respective offices, whenever directed
by the Court of Common Pleas, and it was provided that they should
be paid for making such indices by the board of supervisors, and that
was the first act in this State, in reference to indexing deeds and mort-
gages. It did not provide for indexing conveyances thereafter to be
recorded.
The only provision in the Revised Statutes on the subject of index-
ing conveyances is found in part 3, chapter 3, article 2, which article
is entitled "Of the powers and duties of certain judicial officers." Sec-
tion 61 of the article provides, tliat "It shall be the duty of the clerk
Ch. 8) PRIORITIES 939
of each county in the State, and of the register of the city and county
of New York, to attach to every book kept in his office, in which deeds
or mortgages shall be recorded, or collectors' bonds entered, an index
to the matters contained in such books, arranged in alphabetical order,
under tlie names of the several parties to such matters, with references
to the pages where the same may be found, which, together with such
books, shall at all proper times be open for the inspection of any per-
son paying therefor the fees allowed by law." That section is still in
force ; it does not make the index a part of the record ; it recognizes
the record as complete without the index, and simply provides for an
index to the records.
The first lav/ requiring county clerks to make and keep books of
general indices is found in chapter 199 of tlie Laws of 1843, section
1 of which provides, that "The clerks of the several counties in this
State, and the register of the city and county of New York, in those
counties in which general indices of deeds and mortgages have not
been made and preserved, according to the act passed April 18th, 1826,
shall provide proper books for making such general indices, and shall
form indices therein in such manner as to afford correct and easy ref-
erence to the several books of record in their offices respectively. There
shall be one book for deeds and another for mortgages. In each book
there shall be made double entries, or two lists of names, in alphabeti-
cal order. In one shall be set the names of the grantors or mortga-
gors, followed by the names of their grantees or mortgagees ; and in
the other, the names of the grantees or mortgagees, followed by the
names of the grantors, or mortgagors, leaving proper blanks between
each class of names for subsequent entries ; and in those counties in
which indices were made under the said act of April 18, 1826, and
have been preserved, the several clerks shall complete the same by
bringing them down to the present time, and in either case, the said
clerks shall keep the said indices complete by adding to the lists, as
deeds and mortgages shall be sent in to be recorded." And section 2
provides, that "Each county clerk is hereby authorized to charge in his
account against his county, all necessary expenses which he may incur
in the purchase of books for such indices, and at and after the rate of
fifty cents for every hundred names, which he may enter in such book."
■The indices here provided for clearly form no part of the record, but
are intended, in the language used in section 1, "to afford correct and
easy reference" to the books of record ; and the record is thus recog-
nized as existing independently of the indices. It must be noticed
further, that while a person who procures a conveyance to be recorded
must pay the clerk his fee for recording, it is provided in. section 2
tliat the expense of indexing is a public charge.
I have thus quoted at length the main provisions of the Recording
Act, and of the acts in reference to indices, that the full force of the
language used in them may be fully and easily comprehended; and
940 DERIVATIVE TITLES (Part 2
thus It Is plainly seen that there is nothing in them which makes the
index a part of the record. It is clear that the only purpose which was
intended to be served by the indices is as a guide to the records for
the convenience of searchers.
That our conclusion is the correct one is made still more manifest
by section 26 of the Recording Act, which provides that the transcript
of any record of a deed or mortgage, recorded as provided in the
act, may be read in evidence, when certified by the clerk to be a true
copy of such record. The record intended in that section is unques-
tionably the record made by a transcript of a conveyance in the proper
book, as provided in the act, and the index is no part of such record
which is required to be certified. It was never heard that a certified
copy of the record of a deed or mortgage was objected to, or excluded
as evidence, because a copy of the index was not included as a por-
tion of the record; and yet if it formed an essential portion of tlie
record, it would always have to be certified as part thereof.
There is nothing in the history of the legislation on the subject of
the registration of deeds and mortgages, from the earliest time in Eng-
land and in this State, which tends, in the least degree, to show that
it has ever been supposed that indexing was any essential or necessary
part of registration. Such legislation is ably reviewed in the opinion
of Smith, J., at Special Term, and needs no further notice here.
Whatever forms part of a perfect record, as prescribed in the act,
is essential ; that is, the conveyance must be recorded in the proper
book, in the proper order, and with substantial accuracy. If the record
be defective in any thing essential, it will not serve the purpose of
giving constructive notice to subsequent bona fide grantees or incum-
brancers.
It is claimed, on the part o£ the appellant, that if the Index is no
part of the record, it is useless, and even worse than useless, as it
might operate to ensnare and mislead persons relying upon it. It is
true that an index may, by mistake, be omitted ; but such mistakes
must rarely occur, and the legislature undoubtedly deemed it sufficient
to make it part of the duty of county clerks to make the indices. It
is an adequate guaranty that the indices will be sufficiently correct and
reliable that county clerks are liable to be indicted if they willfully or.
fraudulently omit to make them correctly, and are at the same time
liable in a civil action to the party injured by their omission or neglect.
The duty to make the indices is a public duty, for which the clerks
are paid by the public, and for the violation of such a duty, it cannot
be doubted that any one of the public specially injured has his action.
When a conveyance is delivered to the clerk the statute provides, that
it shall be "considered as recorded from the time of such delivery."
After such delivery nothing more need be done to keep the record
perfect, except at the proper time to record it in its proper order, in
the proper book; and yet if the conveyance, in the meantime, before
Ch. 8) PRIORITIES 941
the record thereof, should be mislaid in the clerk's office, or lost or pur-
loined, the record would still remain complete. In such case there
could be no index of such conveyance, because, until the time for re-
cording it had arrived, it could not be known in what book, or in what
place in any book, it would be recorded.
That the index is no part of the record, and may be omitted by the
clerk without impairing the record, is the view sanctioned by tlie cur-
rent of decisions, in the other States, and by elementary writers. In
4 Kent's Com. 174, note, it is said: "An index or alphabet of a mort-
gage is no part of a mortgage, and a mortgage is duly registered if
no index of it is made." In 1 Washburn on Real Property, 578, the
rule is laid down as follows : "The proposition is a general one, that
an irregular registration of a deed is no notice to others of the existence
of such deed ; but an omission of the register to note the time of re-
ceiving the deed for record, or to enter it in the index or alphabet, will
not invalidate the effect of the registration ;" and in 1 Hilliard on
Mortgages, 721 (4th Ed.), as follows: "The record of a mortgage is
sufficient, though not mentioned in the alphabet, or index ;" and also
in 1 Jones on Mortgages as follows : "The index is no part of the
record, and a mistake in it does not invalidate the notice afforded by
a record otherwise properly made ; although the mortgage be omitted
from the index it is just as much an incumbrance upon the land, and "
notice of it from the time it was left for record, or transcribed, affects
all subsequent purchasers."
It may be that the index, both for convenience and safety, should
be made a part of the record ; but until it is so made by the legisla-
ture, we can but pronounce the law as it is.
The judgment should be affirmed, with costs. All concur.
Judgment affirmed. ^^
S7 The Toerens System.— The present system of recording, under which, as
is evident from the cases above, only instruments of title are recorded or filed,
has many sliorteomings. Even after the most careful examination of the rec-
ords, showing, perhaps, a perfect record title in a certain person, no one can be
wholly safe in relying thereon. There are many matters, any one of which
would be amply sufhcient to upset completely such apparently perfect title, that
do not .show upon the records, and that cannot be disclosed by an examination
thereof. In fact many of such matters are almost impossible of disclosure by
an ordinarily careful additional examination outside the records. Among the
many matters which may thus affect an apparently perfect title are nondeliv-
ery, forgery, incapacity, etc. See 12 Mich. L. Rev. 3S9 et seq.
Aside from the foregoing, the recording system ordinarily involves at each
sale or incumbrance an expert examination of the entire record, which means
expense, often large expense.
Because of these deficiencies of the prevalent system there has been a stead-
ily growing demand for something better. By many it is claimed that the
so-called Torrens System of Land Title Registration mil obviate many, if not
all, our present ills. Under that system title itself is registered, and' therein
lies the fundamental difference between it and our present system of record-
ing title instruments. The system takes its name from Sir Robert R. Torrens,
a native of Ireland, who emigrated to Australia in 18-10, later becoming the
first Premier of South Australia. It is said that it was in 1S50, when he was
942 DERIVATIVE TITLES (Part 2
collector of customs at Adelaide, that he first thought of applying to land the
method of registering and transferring ownership in ships. In 185S. the first
"Torrens Title Act" went into effect; in South Australia, largely through the
efforts of Sir Robert R. Torrens. Although the system in England and her
dependencies and in the United States is known by his name, he was by no
means its inventor, so to speak, for similar systems had been in operation in
parts of Europe for many years. Sheldon, Land Registration, c. 7.
In the United States the flrst difnculty is to draw a statute that will with-
stand constitutional objections. The first American statute introducing the
Torrens System was enacted in Illinois in 1895 ; the second, in Ohio in 1890.
California", Massachusetts, Oregon, Minnesota, Colorado, Washington, and New
York followed. The first Torrens Act in Illinois was held unconstitutional.
People V. Chase, 165 111. 527, 46 N. E. 454, 36 L. R. A. 105 (1897). Following
that decision, the Illinois Legislature enacted a new statute, which has so far
withstood constitutional attacks. The Ohio statute of 1896 also was held in-
valid. State V. Cuilbert, 56 Ohio St. 575, 47 N. E. 551, 38 L. R. A. 519. GO Am.
St. Rep. 756 (1897). In 1913, the Ohio Legislature, pursuant to provisions of
an amendment to the Constitution adopted in 1912, enacted a new statute for
registration of land titles.
The statutes are too lengthy to give even in summary. The procedure in
bringing land under the system and the manner of dealing therewith after-
wards are well stated in the following language used by the Supreme Court of
Minnesota in State v. Westfall, 85 Minn. 437, 89 N. W. 175, 57 L. R. A. 297, 89
Am. St. Rep. 571 (1902), in which the court declared the Minnesota Torrens Act
constitutional :
"The act provides, among other things, that the owner of any estate or in-
terest in land may have the title thereto registered by making an application
in writing, stating certain facts, to the district court of the county wherein
the land is .situated. Thereupon the court has power to inquire into the state
of the title, and make all decrees necessary to determine it against all persons,
known or unknov.-n. The application must be filed and docketed in the office
of the clerk of the court, and a duplicate thereof filed with the register of
deeds, who is ex officio registrar of titles. The application is then referred by
the court to an examiner of titles, who investigates the titles, and inquires as
to the truth of the alk\gations of the application, particularly whether the land
is occupied or not, and makes and files a report of his examination with tlie
clerk. Upon the filing of the report the clerk issues a summons by order of
the court, wherein the applicant is named as plaintiff, and the land described,
and all other persons knowai to have any interest in or claim to the land and
'all other persons or parties unknown' claiming any interest in the real estate
described in the application are named as defendants. The summons must be
directed to such defendants, and require them to appear and answer within
twenty days. It must be served in tlie manner now provided for the service
of summons in civil actions, with this exception : That the summons shall be
served on nonresident defendants and upon all unknown persons by publishing
it in a newspaper printed and published in the coimty where the application
is filed once a week for three consec-utive weeks. In addition to such publica-
tion the clerk shall, within twenty days after the first publication, mail a copy
of the summons to all nonresident defendants whose place or address is known,
and the court may order such additional notice of the application as it may
direct. Any interested party may appear and answer. If no appearance is
made, the court may enter the default, but must take proof of the applicant's
right to a decree, and is not bound by the report of the examiner, but may re-
quire further proof. If appearance is made, the case shall be set for trial, and
heard as other civil actions. If the court finds that the applicant has title
proper for registration, a decree confirming the title and ordering registi-ation
shall be entered. Every such decree shall bind the lands and quiet title there^
to, except as othei-\;\'ise provided in the act, and shall be forever binding and
conclusive upon all persons, whether mentioned by name or included in the ex-
pression 'all other persons or parties unknown,' and such decree shall not open
by the reason of absence, infancy, or other disability * '■■ * except as pro-
vided in the act. * * * Every person receiving a certificate of title and
every subsequent purchaser in good faith takes the same free from all in-
cumbrances, except such as are noted thereon. Upon entering the decree of
Ch.8)
PRIORITIES 943
registration, a certified copy thereof must be filed by the clerk in the office of
the registrar of titles, who proceeds to register the title pursuant to the decree.
This he does by entering an original certificate in the registry of titles, and de-
livering a duplicate thereof to the o\A'ner, who may thereafter convey his title
by the execution of deeds and the surrender of his certificate to the registrar
for cancellation, who issues a new certificate to the purchaser."
And such is the only method by which the land, after registration, may be
conveyed ; the old duplicate certificate must be delivered up and canceled; and
a new certificate issued to the new owner. Most of the statutes, as in Minne'
sota, still preserve the use of the deed, which, however, does not act in itsel"
as a conveyance, even after complete execution.
INDEX
[the figures refer to pages]
ACCEPTANCE,
Of convejance, necessity, 375 Thompson, 383 note, 384 Welch.
Of dedication, necessity to bind landowner, 182 Cassidy.
To bind public corporation, 183 Downing.
ACCRETION,
Apportionment of, 155 note.
Artificially induced, 146 note.
Effect upon defined boundaries, 147 Volcanic Oil & Gas Co.
To banks or shores, ownership, 140 GifCord.
What is. 140 Gifford, 145 Halsey.
ACKNOWLEDGMENT,
Required for what, 279, 914 Sigourney.
ADVERSE POSSESSION, ,
Disabilities, 91 Doe.
Minerals, 80 note.
Tacking, 24-43.
What constitutes, 43-80.
Claim of title, 43 Ricard, 51 French, 56 Preble, 61 Bond.
Devisee for life under invalid will, 68 Hanson.
Donee under parol gift. 63 note.
Mistaken belief of limited right, 61 Bond.
Mistaken belief of ownership, 51 French, 56 Preble.
Possessor supposing title in one not really the owner, 72 Dean, 78 note,
79 Mitchell.
Squatter, 51 note.
Tenant after disclaimer, 65 Fortier.
Tenant for life after death of cestui que vie, 66 Parker.
See Constructive Adverse Possession ; Lapse of Time ; Prescrip-
tion.
AFTER-ACQUIRED TITLE,
Transfer by estoppel, 793-809. ^
ASSIGNMENT,
Defined, 231.
ATTESTATION,
Required for what, 279.
ATTORNMENT,
Abolished, 162 note,
BARGAIN AND SALE,
Consideration for, 248 Jackson, 254 note.
Nature of, 236.
Operation of Statute of Uses upon, 248 Lutwich.
Words sufficient for, 248 Grey.
BOUNDARIES,
Confiict between course and distance, 411 Hall, 416 Temple. '
Between course and monument, 402 Hoban, 405 Whitehead, 407 Lemed
408 Burkholder. • • '
Aig.Prop.— GO (945)
946 INDEX
[The figures refer to pages]
BOUNDARIES— Continued,
Mistake in location, adverse jwssession, 51 French, 5G Preble.
Necessity for, 394 Harris, 395 Lego, 401 Morehead.
On private way, 429 Saccone.
Streets and streams, 421 Sizer, 426 note, 436 C. & E. I. R. Co., 43S Ix)w,
440 Jonas, 443 note, 444 Trowbridge, 447 Dodd.
Unopened street, 426 Bangor House Prop.
Ways on margin of land, 429 Saccone, 434 Geddes Coarse Salt Co.
Reversal of calls, 402 Hoban, 404 note.
Undetermined part of larger tract, 401 Morehead.
CANCELLATION,
Of lease as surrender, 190 Lord Ward.
COLOR OF TITLE,
Meaning of, 81 Jackson, S2 note.
COMMON RECOVERY,
Defined, 160.
CONCURRENT OWNERSHIP,
Accoimttng by cotenant, 711 Pico, 715 note.
Conveyance of part by metes and bounds, 723 Griswold, 725 Cressy, 72S
Lessee of White.
Improvements by cotenant, 722 Kelsey.
Outstanding title acquired by cotenant, 700 Van Home, 702 note, 703 El-
ston, 706 Hurley, and note, 709 Jackson.
Repairs by cotenant, 716 Calvert, 719 note, 720 Pickering.
CONFIRMATION,
Defined, 188.
Distinguished from quitclaim, IBS note.
CONSTRUCTIVE ADVERSE POSSESSION,
Color of title, requirement of, 81 Jackson, 82 note.
Conflicting or overlapping, 89 Ralph, 91 note.
Necessity for actual adverse possession, 84 Bailey, 81 Jackson.
CONVEYANCES,
See Mode of Conveyance.
COPARCENARY,
Nature of, 688.
Partition, 689.
COVENANTS FOR TITLE,
Action for breach, effect of transfer of after-acquired title by estoppel
upon, 804 Resser.
Release of covenantor, 778 note.
Run with the land, 734 Noke.
Broken covenants, 754 Lewes, 755 Kingdon, 757 Kiugdon, 759 Mitch-
ell, 767 Schotield.
Claim on covenants available to successors to covenantee's estate, 746
Andrew, 748 Williams, 749 Beardsley, 753 St. Clair.
Privity of estate between covenanting parties required, 734 Noke, 736
Bed'doe, 740 Solberg.
Successive covenants, 776 Wilson.
When assignor may sue on covenant broken after assignment, 770 Mark-
land.
COVENANT TO STAND SEISED,
Freehold in futuro by, 255 Roe.
Nature of, 236.
Relationship, 255 Roe, 258 Murray.
CREATION OF EASEMENTS BY IMPLICATION,
See Implication.
CROPPING CONTRACTS,
See Years, Estates for.
INDEX 947
[The figures refer to pages]
CURTESY,
Defined, 580.
Extent of interest, 582 Mattock, 583 note, 584 Foster.
Nature of husband's title, 595 Watson.
Interest remaining in wife, 584 Foster.
Seisin of wife, 588 Borland's Lessee.
DEDICATION,
Acceptance to bind lando^Tier, 182 Cassidy.
Municipality, 183 Downing.
Proof of, 184 Ogle.
By equitable o'mier, 165 Cincinnati.
Character of user required, 164 Rex, 174 Waters, 177 note.
Effect of, 163 Lade. 165 Cincinnati.
For cemetery, 177 Wormley.
Grantee unnecessary, 165 Cincinnati.
Length of time required, 163 Rex, and note.
Limited, 164 note.
Proof of, 164 Rex, 174 Waters.
DEFEASANCE,
• Defined, 231.
DELIVERY,
Acceptance, 375 Thompson, 383 note, 384 Welch.
In escrow to grantee, 334 Whyddon, 335 Hawksland, 336 Williams, 336
London F. & L. Prop. Co., 342 Wipfler, 344 Lee.
To agent of grantor and grantee, 336 London F. & L. Prop. Co.
Effect of improper delivery by custodian, 347 Everts, 351 note, 352
Schurtz.
Necessity for valid contract, 357 Campbell, 360 note.
When title passes, 361 Hull, 362 Farley, 362 Hall, 365 May, 368 Scott,
370 Baker.
Manual not required, 288 Doe, 295 Fryer, 297 Mitchell, 303 Matson, 305
Burnet.
Recording as presumptive, 297 Mitchell, 300 note.
Requisites of in general, 297 Stanton, 281 Curry, 282 note, 283 Tisher, 2S6
Parrott.
To third party, 288 Doe.
To be delivered on grantor's death, 308 Wheelwright, 312 Ruggles, 314
Johnston, 316 Moore, 316 note, 320 Owings.
When title passes, 322 Stone, 325 Stonehill, 329 Smiley, 331 Rathmell.
DERIVATIVE TITLES, 156-943.
DESCENT CAST,
Abolished, 11 note.
Right of entry lost by, 5, 159.
When arises, 9.
DESCRIPTION,
See Boundaries; Exceptions and Reservations.
DEVISE,
Defined, 232.
DISABILITIES,
See Adverse Possession.
DISSEISIN,
By election, 9.
Defined, 3, 4, and note.
Distinguished from dispossession, 7 Smith.
Effect of, 4.
Remedies upon, 4-7, 159.
DOWER,
Barred how, 619 Ingram, 620 Grady, 622 Catlin, 624 Robinson.
Defined, 597.
948 INDEX
[The figures refer to pages]
DOWER— Continued,
Fraudulent conveyance, effect upon, 624 Robinson.
In estates held for husband in trust, 600 Shoemaker.
In remainder, 600 Shoemaker, 602 Bates.
Limitation over on death of husband, 603 Edveards.
Momentarily held, 598 Holbrook.
Upon condition subsequent, 608 Ellis.
Nature of interest while inchoate, 612 Flynn, 616 note.
After death of husband, 610 Wallis.
Protection of against waste, 616 note.
Signing deed as bar of, 622 Catlin.
Statutory modifications, 627 note.
Taxation of under inheritance tax, 616 Crenshaw.
Value determined as of when, 624 note.
Where husband had executed escrow deed, 365 note.
Deed to be delivered on death, 329 Smiley.
Widow of surviving joint tenant, 597 Broughton.
EASEMENTS,
See Implication.
EMINENT DOMAIN,
Extent of interest acquired, 154 note.
Nature of title by, 154 note.
When title passes, 154 note.
ENTIRETIES, ESTATE BY,
Created how, 686, 692 Thornburg, 698 Pegg.
Defined, 689.
ENTRY,
Restoration of seisin by, 4.
ESTATES CREATED, 547-733.
ESTOPPEL BY DEED,
By representation, 783 Hannon, 789 note.
- Effect of warranty, 779, 780 Jackson, 790 Ayer.
In quitclaim deed, 781 Bayley.
Transfer of after-acquired title by, 793 Doe, 796 note, 796 Perkins, 797
Jordan, 801 Jaiwis, 804 Resser.
As affecting actions upon covenants for title, 804 Resser.
Effect of recording statutes upon, 858 Tefift, 862 Wheeled.
EXCEPTIONS ANT) RESERVATIONS,
Coal reserved, 449 Whitaker.
Easement "reserved," 455 Dee, 461 Smith's Ex'r.
Exception of part of water privilege, 450 note.
Must not be repugnant, 449 Dorrell.
Pleading, 452 note.
Road "reserved," 452 Kister.
To stranger, 463 Haverhill Sav. Bank.
See Implication.
EXCHANGE,
Defined, 161.
EXECUTION OF DEEDS, 275-393.
PEE SIMPLE,
Defined, 547.
How created, 547 and note.
Conflicting clauses, 548 McCullock, 549 note, 550 Carl Lee.
Upon limitation, 552 First Universalist Soc
FEE TAIL,
After possibilitv of issue extinct, 579.
Defined, 557, 558.
How converted into fee simple, 560 Ewing.
INDEX 949
[The figures refer to pages]
FEE TAILr-Continued,
How created, 558, 559.
Recognized in modern cases, 560 Ewing.
Statute De Donis, 556.
Under statutory modifications, 566 Dungan, 569 note.
FEOFFMENT,
Defined, 156.
Necessity for, 156.
Tortious, 4, 158.
FINE,
Defined, 160.
FORCIBLE ENTRY,
Rights of tenant upon, 636 Turner, 638 Hilary, 639 Pollen, 645 Reader,
652 Low, 657 note.
FRAUDULENT CONVEYANCES,
Voluntary conveyances where subsequent conveyances for value, 812 Doe,
820 Cooke.
Purchaser for value, 825 note.
GRANT,
Defined, 162.
HUSBAND'S INTEREST IN WIFE'S REALTY,
After birth of issue, see Curtesy.
Before birth of issue, 580 Montgomery.
IMPLICATION,
General, 466 Coppy, 467 Robins, 469 Palmer.
Implied grant.
Construction, 538 Weeks, 541 City of Battle Creek.
Necessity, 469 Pinnington, 494 Brigham.
Quasi easements that are apparent, 535 Butterworth.
Continuous, 474 Polden, 526 Tooth, 527 Liquid Carbonic Co., 529
Adams.
Necessai-y, 518 Buss, 526 Tooth.
Implied reservation where necessity, 469 Pinnington, 494 Brigham, 491
Ray, 497 note, 500 Mancuso, 511 Brown.
Reciprocal easements, 486.
Simultaneous conveyances, 487 Phillips.
JOINT TENANCY,
Created how, 686, 690 Mustain, 692 Thornburg.
Defined, 685, 686.
Partition, 687.
LAPSE OF TIME,
Disabilities, 91 Doe.
Effect of when coupled with possession, 19-43.
Tacking possessions in defense, 24 Goody, 31 Shannon, 32 Harlan, 34
Sherin, 36 McNeely.
In attack, 26 Carter.
Prescription, 139 note.
Privity, 36 McNeely, 39 Kldi,
LEASE,
Defined, 161.
See Surrender.
LIFE ESTATES,
Created, 572.
Defined, 570.
For indefinite time, 575 Thompson.
Life of lessee and others, 573 Rosse.
Life of lessee and heir, 573 Amos.
See Curtesy; Dower; Fee Tail.
950 INDEX
[The figures refer to pages]
LIGHTS,
Easement of by implication, 4G9 Palmer, 491 Ray.
LIS PENDENS,
Doctrine of, 914 note.
Record, of, 914 note.
MODE OF CON^EYANCl!:,
Common law, 156-232.
Modern statutes, 268-275.
Statute of Uses, 232-268.
MONUMENTS,
See Boundaries.
NOTICE,
See Record.
PARTITION,
Defined, 162.
POSSESSION,
Basis for ejectment, 11 Asher, 26 Carter.
Compensation in eminent domain, 13 Perry.
Taxation, 16 note.
Effect of wrongful possession upon owner, 17 Sohier.
For period of statute of limitations, 21 Hughes, 72 Dean.
See Adverse Possession.
PRESCRIPTION,
Adverse user, 121 Pavey, 125 Barber, 128 Lechman.
Character of rights subject to acquisition by, 112 Webb, 121 note.
Continuity of user, 132 Lehigh V. R. Co,
Intervening disabilities, 94 Wallace, 104 Lamb.
Light and air, 111, 112, 117 Hubbard.
Tacking, 139 note.
TheoiT and development, 94 Wallace.
Time period commences, 114 Sturges.
Servient estate held by tenant, 109 Baxter.
PRIORITIES,
See Fraudulent Conveyances; Record,
PRIVITY,
See Lapse of Time.
I'ROPERTY CONVEYED,
See Boundaries; Exceptions and Reservations.
PURCHASER FOR VALUE,
See Fraudulent Conveyances ; Record.
QUARANTINE,
Widow's right of, 610 Wallls.
RECORD,
As notice in England, 827 Bedford, 827 Morecocfe.
In United States, 837 Simonson.
Necessity of as against purchaser from heir, 849 Youngblood.
Creditors, 868 Holden.
Grantee in quitclaim, 882 Marshall, 834 note, 885 Smith's Heirs, 88T
Boynton, 892 note.
Grantee of purchaser with notice, 852 Morse, 854 Woods.
Purchasers for value, 877 Strong, S78 note, 880 Thomas.
Purchasers on execution, 872 Sternberger.
Notice instead of, 829 La Neve, 834 note.
Knowledge of deed on record improperly, 909 Nordman.
INDEX 951
[Tte figures refer to pagesl
RECORD — Continued,
Possession, 898 Galley, 901 note, 902 "Williamson,
Recitals, 892 Moore, 893 Baker, 894 Patman.
Of equitable title, 837 Simonson.
Lis pendens, 914 note.
Unacknowledged deed, 914 Sigoumey.
Out of chain of title, 843 Losey, 845 Rankin, 854 Woods.
Sufficiency of, 916-943.
Incorrect; amount stated, 926 Frost, 927 Terrell, 929 Mangold.
Index, 932 Prouty, 937 Mutual L. Ins. Co.
Names of witnesses omitted, 916 Pringle.
RELEASE,
Defined, 187.
REMAINDERS, 731-733.
RESERVATION,
See Exceptions and Reservations; Implication.
REVERSIONS, 731-733.
SEALING,
Abolished, 278,
Required, 275 Jackson.
Sufficiency of, 278.
SEISIN,
Defined, 2.
Importance of, 2, 7 note.
Mystery of, 1.
SIGNING OF DEEDS, 275.
STATUTES,
Enrolments, 247.
Frauds, 157.
Fraudulent conveyances, 810-812.
Limitation, 19-21.
Recording, 826, 834r-837.
Uses, 236.
STREAMS,
See Boundaries.
STREETS,
See Boundaries.
SUFFERANCE,
Tenancy at, 636.
SURRENDER,
Defined, 188, 189.
In fact by cancellation, 190 Lord Wai*d.
Conditional, 191 Allen.
In law.
Acceptance of third party as tenant, 207 Thomas.
Incorporeal property, 221 Lyon.
New lease not creating interest intended, 195 Davison, 197 Zick, and
note, 200 SchiefCelin.
New lease to commence in futuro, 195 Ive.
Reletting after abandonment, 209 Walls, 211 Gray, 217 Oldewurtel,
220 note.
Yielding possession to landlord, 206 Whitehead.
TACKING.
See Lapse of Time.
TAX TITLES, 155 note.
952 INDEX
[The figures refer to pages]
TENANCY BY ENTIRETIES,
Created how, 6S9, 692 Thornburg, 698 Pegg,
Defined, 689.
See Concurrent Ownership.
TENANTS IN COMMON,
Created how, 687, 688, 698 Pegg.
Defined, 687.
See Concurrent Ownership.
TORRENS SYSTEM, 941 note.
TRUST,
Use upon a use upheld as, 262 note.
USES,
Active, 266 lire, 268 note.
After Statute of U.ses, 239-268.
Bargain and sale, 236.
Before Statute of Uses, 232-238.
Covenant to stand seised, 236.
Created how, 235, 236.
Enforcement of, 233.
Enrolments, Statute of, 247.
Estates in, 234.
Operation of Statute of Uses, 239 Green; 248 Lutwich.
Personal property, 266 Ure.
Raised in connection with common law conveyance, 239-246.
Raised independently of common law conveyance, 247-261.
Reasons for introduction of, 232.
Resulting, 235, 240 Sbortridge, 241 Armstrong, 241 Van der Volgen.
Shifting, 234.
Springing, 2.34.
Statute of, 236.
Use upon a use, 261 Tyrrel, 262 Doe.
WATERS,
See Boundaries ; Accretion.
WAYS OF NECESSITY,
By implication, 469 Pinnington, 494 Brigham, 495 Dabney.
WIFE'S INTEREST IN HUSBAND'S REALTY,
See Dower.
WILL,
See Devise.
WILL, ESTATE AT,
Defined, ^34, 0:^5, 636.
Determined by conveyance, 641 Curtis.
When, &36 Ix^ighton.
Where rent payable periodically, 642 Say.
See Forcible Entry.
YEAR TO YEAR, ESTATES FROM,
Assignable, 657 Braythwaite,
Entry under agreement for lease and payment of periodic rent, 657 Brayth*
waite.
Void parol agreement for lease providing for periodic rent, 665 Gris-
wold.
Void parol lease, 664 Clayton, 665 note.
Holding over, 670 Right, 672 Ilerter, 675 Goldsborough, 677 King.
Notice to quit, 650 Arltenz.
Payment based on goods purchased, as periodic rent, 0G9 Lyons.
INDEX 953^
[The figures refer to pages]
YEAR TO YEAR, ESTATES FROM— Continued,
Terms of, as contained in agreement for lease unexecuted, 660 Doe, 662
Coudert.
When terminable, 657 Layton, 662 Coudert
YEARS, ESTATES FOR,
Created how, 628, 629.
Cropping agreements as, 629 Hare, 630 Caswell, 631 SteeL
Defined, 628.
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