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Selected Cases On The Law Of Property In Land | by William A. Finch



This book contains a classified selection of cases on the topics usually taught in our law schools in the course on "Real Property."

TitleSelected Cases On The Law Of Property In Land
AuthorWilliam A. Finch
PublisherBaker, Voorhis & Company
Year1898
Copyright1898, William A. Finch
AmazonThe law of property in land: A syllabus

Edited By William A. Finch, Professor Of Law In Cornell Iniversity College Of Law

-Preface
This book contains a classified selection of cases on the topics usually taught in our law schools in the course on Real Property. Systematic and complete annotation was of course impossible with...
-Part I. Of The Nature And Kinds Of Property In Land. Chapter I. What Is Meant By Property In Land
Eaton V. Boston, Concord And Montreal Railroad 51 New Hampshire, 504. - 1872. Action on the case, brought by Eaton against the Boston, Concord and Montreal Railroad for damage to his farm during...
-What Is Meant By Property In Land. Continued
If, on the other hand, the land itself be regarded as property, the practical result is the same. The purpose of this constitutional prohibition cannot be ignored in its interpretation. The framers ...
-Chapter II. Real And Personal Property
I. What estates and interests in land are real; what are personal. 1. Leasehold Interests in Land. Goodwin V. Goodwin 33 Connecticut, 314. - 1866. Submission to the Superior Court upon an ag...
-Real And Personal Property. Part 2
The solution of the first question depends upon the correctness of an opinion of this court, reported in Loring v. Melendy, 11 Ohio, 357. The opinion alluded to, was upon a point not necessary to the ...
-Real And Personal Property. Part 3
These sections refer to liens arising both from judgments and levies. Section 2 gives the judgment a lien on lands within the county. Section 4 gives, or rather recognizes, a lien from the time of the...
-Real And Personal Property. Part 4
And in answer to the argument that the individual stockholders had only a claim on the company, and not upon the realty, and that this must be of a personal nature, the Court said: But the stockholde...
-Real And Personal Property. Part 5
39, 40. In support of this statement, Mr. Greenleaf cites the cases we have already noticed, and some others that require consideration. One of the most important of these is Blight v. Brent, 2 Y. ...
-Real And Personal Property. Part 6
The act regulating dower provides: ' That the widow of any person dying shall be endowed of one full and equal third part of lands, tenements and real estate of which her husband was seized, as an est...
-Real And Personal Property. Part 7
The fact that an administrator may be ordered by the court to include in the inventory and appraisement, the real estate of the intestate, as provided in sections 3 and 29 of the administration act (S...
-Real And Personal Property. Part 8
As to the second question, whether Lydia Houghton assented to the sales made by the executor - The evidence appears to us not satisfactory. Courts should be slow to sanction the assent of a wife to th...
-Real And Personal Property. Part 9
Babb V. Perley 1 Maine, 6. - 1820. Trespass on the case. Verdict for defendant, subject to the opinion of the Court. Mellen, C. J. - The facts in this case present some questions, respecting ...
-Real And Personal Property. Part 10
It is admitted that the extent of Perley's execution against Babb, upon his estate in the land in question, operated to transfer and convey to Perley all Babb's interest or estate in such land. It cer...
-Real And Personal Property. Part 11
In Wkipplev. Foot, 2 John. 422, it was decided by this court that wheat growing is a chattel, and may be sold as such on execution. The same doctrine; was held by this court in Stewart v. Doughty, 9 J...
-Real And Personal Property. Part 12
The defendant in error, who was also the defendant in the Justice's Court, excepted, both to the charge as given and to the refusal to charge as requested; the verdict and judgment being against him, ...
-Real And Personal Property. Part 13
The courts of most of the American States, however, that have considered the question, hold, expressly, that a sale of growing or standing timber is a contract concerning an interest in lands, and wit...
-Real And Personal Property. Part 14
It is otherwise with growing crops, as wheat and corn, the annual' produce of labor and cultivation of the earth; for these are personal chattels, and pass to those entitled to the personal estate, an...
-Real And Personal Property. Part 15
The bill shows that the complainant, Ann H. Webster, is the daughter and one of the heirs-at-law of Robert Howard, deceased; that said Howard died seized and possessed of a large real and personal est...
-Real And Personal Property. Part 16
Let the decree be affirmed. 7. What Law Governs in Case of Conflict of Laws. Despard V. Churchill 53 New York, 192. - 1873. Action for the construction of a will. Folger, J. - The testa...
-Real And Personal Property. Part 17
Certain other questions are raised by the complaint and passed upon by the Special Term, but not noticed by the General Term; and perhaps it was not needed that they should be. Having concluded that t...
-Real And Personal Property. Part 18
The judgment appealed from must be affirmed. * * * 8. In the Method and Means of Vindicating Property Rights. a. Kinds of Action. (1.) For the Recovery of Property. Ricketts V. Dorrel 5...
-Real And Personal Property. Part 19
C. 199. Nor could a real action be maintained against him; because he was not the owner of the realty and could plead non tenure. Booth. His interest could be devised, though at common-law, no real es...
-Real And Personal Property. Part 20
It will be necessary, therefore, to look into the case, and see how far the motion is supported in point of fact, upon either the one or the other of those grounds. But before I proceed to this, I ...
-Real And Personal Property. Part 21
The right of the lawful owner, therefore, to enter upon the wrong-doer in this extra-judicial manner, and so to restore himself to his possession and make leases, etc., from the first settlement of th...
-Real And Personal Property. Part 22
Let the rule for a new trial be made absolute. (2.) For the Recovery of Damages for Wrongs to Property. Trespass, Trover. Waste. Mcgonigle V. Atchison 33 Kansas, 726. - 1885. [Reported her...
-Real And Personal Property. Part 23
The only case I have met with, applicable to the very point, is a very loose note of an anonymous case of 1 Ves. Jr. 93, in which the solicitor-general moved for an order to prevent the removal of tim...
-Real And Personal Property. Part 24
This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law-writers. Besides, the plaintiff in this case, after alleging t...
-Real And Personal Property. Part 25
We have so far considered this case as though it made no difference whether the sand was severed from the real estate and carried away by one act only, or by two or more; nor do we think that it can m...
-Real And Personal Property. Part 26
Thus, where the whole beneficial interest in the money in the one case, or in the land in the other, belongs to the person for whose use it is given, a court of equity will not compel the trustee to e...
-Real And Personal Property. Part 27
Equity would surely proceed contrary to its regular course, and the principles which universally govern it, to allow the right of election where it is desired, and can be lawfully made, and yet refuse...
-Chapter III. Corporeal And Incorporeal Property In Land
Huff V. Mccauley 53 Pennsylvania State 206. - 1886. Strong, J. - In the court below the defendants relied for their defense upon an arrangement alleged by them to have been made between the plai...
-Chapter V. Allodial And Feudal Property In Land
Van Rensselaer V. Hays 19 New York, 68. - 1859. Action to recover rent in arrear. Plaintiff is a devisee of Stephen Van Rensselaer, deceased. Further facts appear in opinion. Denio, J. - The ...
-Allodial And Feudal Property In Land. Part 2
We are, then, to ascertain the effect of a conveyance in fee reserving rent, upon the assumption that the statute of quia emptores applies to such transactions. In the first place, no reversion, in th...
-Allodial And Feudal Property In Land. Part 3
Kennedy, J. - The plaintiff alleges that the rent in question is in its nature strictly a rent-charge, and that the defendant, therefore, by releasing to Jonathan Smith a part of the ground upon which...
-Allodial And Feudal Property In Land. Part 4
1 Feudal tenures under the old crown grants continued in New York until the R. S of 1830. Grants under the State government were allodial from the first. In [830 all holdings of land in New York were ...
-Chapter VI. Legal And Equitable Property In Land
Jaques V. Trustees Of M. E. Church 17 Johnson (N. Y.), 548. - 1820. Appeal from the Court of Chancery. Mary Jaques, deceased, was the wife of appellant, John D. Jaques. Prior to her marriage, be...
-Part II. Of Land As The Subject Of Property. Chapter I. Subdivision Of Land For Purposes Of Ownership
I. The ordinary and usual mode of subdivision. Presumption as to ownership of the underlying strata and of the space above the surface. Effect of this rule on things in such space. Hoffman V. Armst...
-Subdivision Of Land For Purposes Of Ownership. Part 2
So, it would seem, he may have abated the roots projecting into his soil, at least if he has suffered actual damage thereby. The general demurrer should have been overruled. * * * While we are c...
-Subdivision Of Land For Purposes Of Ownership. Part 3
In every view of this case, there is no legal ground on which the plaintiff's action can be supported. We do not now decide on the authority due to the case in Keilway; but if an action on the case sh...
-Subdivision Of Land For Purposes Of Ownership. Part 4
Applying these principles to the case in hand, why was not the deed of Caldwell to Greer a conveyance of the coal in the land owned and occupied by the grantor? Because, says the plaintiff in error, i...
-Chapter II. Constituents And Incidents Of Land
I. The soil and accretions thereto. 1. Accretions. Deerfield V. Arms 17 Pickering (Mass.), 41. - 1835. Writ of entry to recover a parcel of land formed by alluvial deposits on the bed and ...
-Constituents And Incidents Of Land. Part 2
If, from what we have said, we have in mind the facts giving rise to the rules cited, we may well look to the facts of this case to properly distinguish it. The subject of the dispute is an aerolite o...
-Constituents And Incidents Of Land. Part 3
The judgment of the District Court is affirmed. 2. Soil or Rock Detached. Mcgonigle V. Atchison 33 Kansas, 726. - 1885. [Reported herein at p. 65.] Noble V. Sylvester 42 Vermont, 146. -...
-Constituents And Incidents Of Land. Part 4
The judgment of the County Court is affirmed. II. Water as land. 1. Nature of Property in Surface or Standing Waters. Curtiss V. Ayrault 47 New York, 73. - 1871 [Reported herein at p. 1...
-Constituents And Incidents Of Land. Part 5
1 See pp. 126 and 130 in particular. - ED. The effect and proper construction of the act of 1869 (Laws of 1869, chap. 237), or its amendment (Laws of 1877, chap. 224), conferring upon railroad corp...
-Constituents And Incidents Of Land. Part 6
Order of General Term affirmed and judgment final ordered for the plaintiffs for damages to be assessed, and a mandatory injunction that the defendant restore the water within twelve months from the e...
-Constituents And Incidents Of Land. Part 7
In the first place we have shown the fact that this pure, clear water ran to this parcel of land in full and constant supply. This condition of things was open and visible. The presumption arises at o...
-Constituents And Incidents Of Land. Part 8
The commissioners of Asbury Park, a corporate body, purchased a large tract of land immediately north and adjacent to the tract owned by Ocean Grove. Under their management this, too, has become a fam...
-Constituents And Incidents Of Land. Part 9
But if it merely prevent the water from reaching the spring or open, running stream, by intercepting its percolation or underground currents, by digging a well upon the defendant's own land, for the u...
-Constituents And Incidents Of Land. Part 10
But the exigency of the case does not require us to decide that the defendant has the same right in respect to a subterranean stream as though it was a surface stream flowing across his land; and our ...
-Constituents And Incidents Of Land. Part 11
The Calumet river then, being non-tidal, and plaintiff owning lands on both sides of it, he is the owner of the whole of the bed of the stream to the extent of the length of his lands upon it. The ...
-Constituents And Incidents Of Land. Part 12
Ice, from its general use, has come to be a merchantable commodity of value, and the traffic in it a quite important business. It would not be in the interest of peace and good order, nor consistent w...
-Constituents And Incidents Of Land. Part 13
We come to the decisive question: Is the owner of an easement to flow another's land entitled to the ice which forms on the water covering the land? There is some diversity of opinion upon this questi...
-Constituents And Incidents Of Land. Part 14
Our conclusion is, that where the user is of such a character as to establish an easement to pond water on the land, or to use it as a water way for surplus water, the right to gather ice which forms ...
-Constituents And Incidents Of Land. Part 15
State. The fact that it so joins, gives him no title to that land, or to anything formed or grown upon it, any more than it does to anything formed or grown or found upon the land of any individual ne...
-Constituents And Incidents Of Land. Part 16
We shall not attempt to discuss cases where the bargain includes future uses of land and water, and interests in ice not yet frozen. Whether such dealings are to be regarded as leases or licenses, or ...
-Constituents And Incidents Of Land. Part 17
Skinner V. Wilder 38 Vermont, 115. - 1865. Peck, J. - In this case it appears that the plaintiff planted or set apple trees on his own land six feet from the division line between his land a...
-Constituents And Incidents Of Land. Part 18
There seems to have been the same conflict of opinion in the civil law on this subject, notwithstanding the law of vicinage and the rights and duties of adjoining proprietors, were by the Roman Code d...
-Constituents And Incidents Of Land. Part 19
It would be giving to the statute a very latitudinarian construction to bring the case in question within the mischief designed to be avoided by the statute. We have been referred to no case in this S...
-Constituents And Incidents Of Land. Part 20
If the contract, when executed is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute; but if the contract is in the inte...
-Constituents And Incidents Of Land. Part 21
Judgment affirmed. Dubois V. Beaver 25 New York, 123. - 1862. Trespass by one of two adjoining landowners against the other for cutting down line trees. Judgment for plaintiff. Defendant appe...
-Constituents And Incidents Of Land. Part 22
Timber trees, if blown down, or severed by a stranger, pass by a deed of the land. We think that it cannot admit of a doubt, remarks Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, that tree...
-Constituents And Incidents Of Land. Part 23
The word crops had, long before this statute, acquired in law a meaning synonymous with or equivalent to the common-law term emblements, and neither of them included fruits or perennial trees or s...
-Constituents And Incidents Of Land. Part 24
Must the law apply a different rule in each case? Suppose the case of trees prostrated by a tornado, but with roots still adhering to the soil; shall they pass by the deed, or be reserved by parol? Ob...
-Constituents And Incidents Of Land. Part 25
It also appears by the case stated, that Kingsbury sold the timber in question, to one Joseph S. Hyde, twenty-six days before his deed to Veazie, with the right to take it off for twelve years from th...
-Constituents And Incidents Of Land. Part 26
1 See also Erskine v. Plummer, 7 Me. 447 (1831). For a clear statement of the rules which it would seem should control the decision of the cases now under consideration see 118 and 120, B...
-Constituents And Incidents Of Land. Part 27
Exceptions sustained. White V. Foster 102 Massachusetts, 375. - 1869. Colt, J. - By the deed of May 17, 1865, the demandant's grantor conveyed to the tenants all the standing timber on the de...
-Constituents And Incidents Of Land. Part 28
Verdict set aside; new trial ordered. d. Separate levy of execution on fructus naturales. Adams V. Smith 1 Breese (Ill.), 221. - 1828. Opinion of the Court by Justice Lockwood. - This was ...
-Constituents And Incidents Of Land. Part 29
If, however, the crops are to be considered as land or personal chattels, as they continue or do not continue to draw nourishment from the soil, the instances will be numerous in which very difficult ...
-Constituents And Incidents Of Land. Part 30
When we consider the case of a parol sale of growing corn to A., and a subsequent deed of the land to B., while the corn continued to grow on the land, we must allow that proof of such sale, and notic...
-Constituents And Incidents Of Land. Part 31
The language of C. J. Lane, in Cassilly v. Rhodes, 12 Ohio, 95, does not, at first, appear to clash with that just cited. He says: 'If the question were between the grantor and grantee, whether growin...
-Constituents And Incidents Of Land. Part 32
This reasoning appears to me to be conclusive. The plaintiff, therefore, according to the stipulation of the parties in the case, is entitled to judgment for $40 damages and $30 costs.1 t. Y. 484; ...
-Constituents And Incidents Of Land. Part 33
In the case of Keech v. Hall, 1 Doug. 23, in reply to a suggestion that the tenant of a mortgagor was entitled to emblements, Lord Mansfield said: I give no opinion upon that point; but there may be...
-Constituents And Incidents Of Land. Part 34
A tenancy by sufferance is of such a nature as necessarily implies an absence of any agreement between the owner and the tenant, and if express assent is given by the owner to such possession, the t...
-Constituents And Incidents Of Land. Part 35
In Buckout v. Swift, 27 Cal. 443, it was held that a house which stood on mortgaged land, but which was severed from the land subsequently by a storm, did not pass by the sale under foreclosure. Th...
-Constituents And Incidents Of Land. Part 36
Earl, Ch. J. - The crop of rye was personal property, and as such passed to the personal representatives of Elmer Willett as assets, to be applied and distributed as part of his personal estate. 2 R. ...
-Constituents And Incidents Of Land. Part 37
1 See case last reported. - Ed. I do not think that the instrument, under which the plaintiff entered into the possession of this farm, had the effect of making the possession that of the mortgagee...
-Constituents And Incidents Of Land. Part 38
Order affirmed and judgment accordingly. f. Levy of execution on growing crops. Parham V. Thompson 2 J. J. Marshall (Ky.) 159. - 1829. Robertson, J. - The only question which it is necessa...
-Constituents And Incidents Of Land. Part 39
An entry for the purpose of taking unripe corn, or other produce, which would yield nothing, but in fact be wasted and destroyed by the very act of severing it from the soil, would not be protected by...
-Constituents And Incidents Of Land. Part 40
The question has been occasionally examined in this court as between grantor and grantee, and in some other relations. The most material cases are Heermance v. Vernoy, 6 Johns. 5; Cresson v Stout, 17 ...
-Constituents And Incidents Of Land. Part 41
It is not to be denied that there are strong dicta, and perhaps we may add the principle of several adjudicated exceptions, upon which we might, with great plausibility, declare the machines in questi...
-Constituents And Incidents Of Land. Part 42
But such rolls, being adapted to the manufacture of bars of different shapes and sizes, cannot all be used at once; and according to the ordinary criterion, only those in place and fixed for use would...
-Constituents And Incidents Of Land. Part 43
There was at Bath, in this State, a saw-mill propelled by steam, generally called the steam saw-mill. Suppose this establishment had been conveyed by the name of the steam saw-mill, without a more par...
-Constituents And Incidents Of Land. Part 44
If the statue had been actually affixed to the base by cement or clamps, or in any other manner, it would be conceded to be a fixture and to belong to the realty. But, as it was, it could have been re...
-Constituents And Incidents Of Land. Part 45
b. What mode or degree of annexation is conclusive against removability ; what is not. Ward V. Kilpatrick 85 New York, 413. - 1881. Finch, J. - There is one serious question in this case, and...
-Constituents And Incidents Of Land. Part 46
We find in the numerous exceptions no sufficient ground for reversal, and the judgment should be affirmed, with costs. Judgment affirmed. O'Brien V. Kusterer 27 Michigan, 2S9. - 1873. Gra...
-Constituents And Incidents Of Land. Part 47
The decree below should be affirmed, with costs. Cross V. Marston 17 Vermont, 533. - 1845. Hebard, J. - There is no question made by either side but that the articles in controversy in this s...
-Constituents And Incidents Of Land. Part 48
If Cross had stood by and seen Day sell the property, without remonstrating, he would be estopped from claiming it of the purchaser; but I do not suppose that anything is to be inferred, in a legal po...
-Constituents And Incidents Of Land. Part 49
The looms in question were merely placed on one of the floors of the factory, and were fastened to the floor by means of ten screws in each loom, as the case states, merely for the purpose of keepin...
-Constituents And Incidents Of Land. Part 50
On the sale of the house by Curtis to Nelson, the gas fixtures and mirrors were specially bargained for and purchased by Nelson, with the house. They were not mentioned in the deed, nor was any bill o...
-Constituents And Incidents Of Land. Part 51
1 Sec also McRae v. Bank, p. 271, infra. In Stevens v. The Buffalo &'NY.C.R.R.,31 Barb. 590, decided in September, 1858, Justices Green, Grover and Marvin held that rolling-stock was personalty, an...
-Constituents And Incidents Of Land. Part 52
While I can see that views like these are accommodated to rail-roads in the character of mortgagors in their relation with the holders of their bonds, they cannot be allowed to prevail without introdu...
-Constituents And Incidents Of Land. Part 53
Affirmed, with costs. (b.) Without intent that severance shall be permanent. Goodrich V. Jones 2 Hill(N. Y.), 142. - 1841. Trover by Jones against Goodrich for taking and converting manure...
-Constituents And Incidents Of Land. Part 54
We think a few plain principles of law require a reversal of this judgment. This barn at the time of the conveyance by Mrs. Clough to Mrs. Gilbert was a part of the realty, and there could be no parol...
-Constituents And Incidents Of Land. Part 55
Judgments accordingly. (b.) Mortgage : real or chattel. Trull V. Fuller 28 Maine, 545. - 1848. Trover for a shingle machine and clap-board machine. In April, 1840, Jacob Chamberlain gav...
-Constituents And Incidents Of Land. Part 56
On another ground, there is not the least difficulty in affirming the decree. That is the ground of fraud, to which, there can be no question, the equity jurisdiction extends. The case disclosed by th...
-Constituents And Incidents Of Land. Part 57
The other argument of the plaintiffs in error is akin to the former, that before a creditor can question the disposition of a debtor's property, he must have completed his title by judgment and execut...
-Constituents And Incidents Of Land. Part 58
1 am aware that it is said to have been held that if an apple tree blown down, and the tenant cut it, it is no waste. 2 Rolle Abr. S20. That may well be, for the falling of the tree is through the ...
-Constituents And Incidents Of Land. Part 59
In supplemental findings made at the request of the defendants and inserted in the case on settlement, the court found, as further facts, that each of the machines, except two, was a machine complete ...
-Constituents And Incidents Of Land. Part 60
That the machinery in question was adapted to the use for which the building was constructed is conceded, and, without further pursuing the authorities, I will briefly refer to those cited in the opin...
-Constituents And Incidents Of Land. Part 61
On the whole case I think the findings of fact are sustained by evidence, and that the decision of the court below should be affirmed, with costs. Folger, J. - I think that, either from the evidenc...
-Constituents And Incidents Of Land. Part 62
For affirmance: Church, Ch. J., Rapallo, Folger and Miller, JJ. For reversal: Allen, Andrews and Earl, JJ.1 1 For citations and discussions of this case, in cases reported herein, see pp. 235 and 2...
-Constituents And Incidents Of Land. Part 63
Affirmed. (2.) How the Reasonably Presumable Intent in Annexing is Ascertained. (a.) From the nature of the chattel annexed. (b ) From the mode and degree of annexation2 (c.) From th...
-Constituents And Incidents Of Land. Part 64
The rule to be gathered from the cases is then stated thus by Judge Grover: That the tenant may remove during his term all erections made by him for the purpose of trade that can be removed without ...
-Constituents And Incidents Of Land. Part 65
If this be a sound conclusion, a grantor could not be made liable on the covenants in his deed, although he had previously and privately sold, with a view to removal, all the houses, buildings, mills,...
-Constituents And Incidents Of Land. Part 66
Cases where landowner has sold chattel or given chattel-mortgage thereon after annexation come under head of Severance, supra. Myers to have possession subject to proper care of the machinery and...
-Constituents And Incidents Of Land. Part 67
Folger, J. - It is well settled that chattels may be annexed to the real estate and still retain their character as personal property. See Voorhees v. McGinnis, 48 N. Y. 278, and cases there cited. Of...
-Constituents And Incidents Of Land. Part 68
Though the defendants became the purchasers of the land on the foreclosure of the mortgages, and were the owners of it in fee, and probably in actual possession of it, and of the boilers and engines a...
-Constituents And Incidents Of Land. Part 69
According to the elementary rule of the common law, whatever is annexed to the freehold becomes, in legal contemplation, a part of it, and is thereafter subject to the same incidents and conditions th...
-Constituents And Incidents Of Land. Part 70
These cases hold that the agreement between the holder of the chattel mortgage and the owner of the land, that the chattels shall retain their character as personalty, rebuts the presumption that they...
-Constituents And Incidents Of Land. Part 71
This feature of the mortgage was entirely unnecessary and meaningless, except upon the theory that the parties recognized and treated the engine and boiler and other enumerated articles as something d...
-Constituents And Incidents Of Land. Part 72
If the poles had been standing in the yard at the time of the sale, all admit that they would have formed a part of the realty. But by being placed in heaps for a temporary purpose, they would not los...
-Constituents And Incidents Of Land. Part 73
In Popham, 38, this principle is further extended. The plaintiff in that case had mixed his own hay with hay of the defendant on his land, and the defendant took away the hay thus intermixed; and it w...
-Constituents And Incidents Of Land. Part 74
2. Between executor of tenant for life, or in tail, and the remainderman, in which case the right to fixtures is considered more favorable for the executor. 3. Between landlord and tenant, in which...
-Constituents And Incidents Of Land. Part 75
The defendant further offered evidence to prove that a usage and custom existed in the city of Washington, which authorized a tenant to remove any building which he might erect upon rented premises, p...
-Constituents And Incidents Of Land. Part 76
It has been already stated that the exceptions of buildings and other fixtures for the purpose of carrying on a trade or manufacture is of very ancient date, and was recognized almost as early as the ...
-Constituents And Incidents Of Land. Part 77
The second exception proceeds upon the ground that it was not competent to establish a usage and custom in the city of Washington for tenants to make such removals of buildings during their term. We c...
-Constituents And Incidents Of Land. Part 78
There is no error in either judgment. Holmes V. Tremper 20 Johnson (N. Y.), 29. - 1822. Spencer, Ch. J., delivered the opinion of the court. - The question arising upon the pleadings has nev...
-Constituents And Incidents Of Land. Part 79
[Reported herein at p. 323.] 1 This rase is on trade fixtures, but see at pp. 314 and 317 the discussion of Elwes v. Mawe, East (Eng.), 38, with regard to agricultural fixtures. See also Holmes v. ...
-Constituents And Incidents Of Land. Part 80
After conveyance to plaintiff and before the 1st of May, 1866, the buildings were removed by the tenants under claim of right. This removal and alleged right of removal constitutes the breaches of cov...
-Constituents And Incidents Of Land. Part 81
Alderson, B., in Weeton v. Woodcock, 7 M. & W.14, says: The rule, to be collected from the several cases decided seems to be this; that the tenant's right to remove fixtures continues during his orig...
-Constituents And Incidents Of Land. Part 82
Talbot V. Cruger 151 New York, 117. - 1896. Gray, J. - The plaintiff seeks to recover damages, which she claims to have sustained through the fraud and deceit of the defendants in procuring fr...
-Constituents And Incidents Of Land. Part 83
Kerr V. Kingsbury 39 Michigan, 150. - 1878. Suit to foreclose a mortgage given by defendant Kingsbury to complainant's testator. Complainant claims certain buildings erected prior to the mortgag...
-Constituents And Incidents Of Land. Part 84
In Davis v. Moss, 38 Penn. St. 346, 353, it is said by Mr. Justice Woodward that if a tenant remain in possession after the expiration of his term, and perform all the conditions of the lease, it amo...
-Constituents And Incidents Of Land. Part 85
Doty v. Gorham, 5 Pickering, 487, merely decides that a shop placed on the lands of the plaintiff, with his permission, was a chattel, and as such may be sold, on an execution against the owner, and t...
-Constituents And Incidents Of Land. Part 86
Judgment accordingly, (a.) The New Jersey Doctrine. Ruckman V. Outwater 28 NEW JERSEY LAW, 581. - 1860 HAInes, J. - To an action of assumpsit, the plaintiff in error [Ruckman], who was the...
-Constituents And Incidents Of Land. Part 87
In Kittredge v. Woods, 3 New Hamp. R. 503, decided in 1829, Ch. Just. Richardson, in a very elaborate opinion, held that all manure, whether it be in heaps about barns or made in other places on the l...
-Constituents And Incidents Of Land. Part 88
Ex. 27. It further appears that it is common to insert a covenant in the lease of a farm, to leave the manure of the last year upon it. All this would seem to imply that the article belongs to the ten...
-Constituents And Incidents Of Land. Part 89
Exceptions sustained. 2. Lands Not Agricultural or Not to be Used for Agri cultural Purposes. Fay V. Muzzey 13 Gray (Mass.), 53. - 1859. [Reported herein at p. 339.] Needham V. Allison ...
-Constituents And Incidents Of Land. Part 90
But it is said that if the manure was personal property, it was in the possession of the owner of the fee, and the scraping it into heaps by the plaintiff did not change the possession, but it continu...
-Constituents And Incidents Of Land. Part 91
The plaintiffs claim that among the privileges of the riparian proprietor is also that of the exclusive right to the sea-weed which is cast upon the shore and left there by the receding tide. In re...
-Constituents And Incidents Of Land. Part 92
The case of Church v. Mecker, 34 Conn. R. 421, is relied upon by both parties. We think the opinion of Judge Butler in that case must be construed as applicable solely to sea-weed found as it there wa...
-Constituents And Incidents Of Land. Part 93
The rule is sensibly expressed by Domat, in the article following, viz.: 1st. He who has found a thing that is lost is bound to preserve it, and to take care of it in order to restore it to its owner...
-Constituents And Incidents Of Land. Part 94
We accept this as the better rule, and especially as one better adapted to secure the rights of the true owner. In view of the facts of this case, the plaintiff acquired no original right to the pr...
-Constituents And Incidents Of Land. Part 95
The plaintiff claims the exclusive right of hunting within the territory covered by his patent from the state. He founds this right upon his proprietary interests in the soil under the water. He does ...
-Constituents And Incidents Of Land. Part 96
In each of these cases the defendant was where he had a right to be at the time he committed the grievance complained of, nevertheless this fact did not justify him in doing an act, the direct con...
-Constituents And Incidents Of Land. Part 97
Bees are ferae naturae and the only ownership in them until reclaimed and hived is ratione soli. This qualified ownership, how-r, although exceedingly precarious and of uncertain tenure, can-not, be c...
-Constituents And Incidents Of Land. Part 98
M'Conico V. Singleton 2 Mills (S. C. Const. Ret.), 244. - 1818. Johnson, J., delivered the opinion of the court. - Until the bringing of this action, the right to hunt on unenclosed and uncultiv...
-Constituents And Incidents Of Land. Part 99
In the case of Haldeman v. Bruckhart, 45 Pa. St. 514, it was said: The purchaser of lands on which there are unknown sub-surface currents, must buy in ignorance of any obstacle to the full enjoyment...
-Constituents And Incidents Of Land. Part 100
In Hicks v. Bell, the court states correctly that, according to the common law of England, mines of gold and silver were the exclusive property of the crown, and did not pass in a grant of the king un...
-Constituents And Incidents Of Land. Part 101
It would be a waste of time to show that none of the reasons thus advanced in support of the right of the crown to the mines can avail to sustain any claim of the State to them. The State takes no pro...
-Constituents And Incidents Of Land. Part 102
The construction given by the United States to their patents ever since the organization of the government, has uniformly been to the same effect. In several of the States, particularly those carved o...
-Part III. Of The Use And Profits Of Land. Chapter I. Use By The General Owner In Possession
I. General restrictions on such use. 1. The Maxim sic utere tuo ut alienum non laedas. Bishop V. Banks 33 Connecticut, 118. - 1865. Petition for an injunction against the keeping of a s...
-Use By The General Owner In Possession. Part 2
Few men would object to the sale of a single glass of liquor as a beverage, if that were the end of it. The argument is made by the grantor, that one sale or one glass leads to another, and that the o...
-Use By The General Owner In Possession. Part 3
Bill in equity to enforce restrictions contained in a deed of real estate. Case reserved for the determination of this Court. Lathrop, J. - No question is made as to the validity of the restriction...
-Use By The General Owner In Possession. Part 4
The court can take judicial notice of the offensive character of such a business. Judges must be supposed to be acquainted with the ordinary sentiments, feelings and sensibilities of the people among ...
-Use By The General Owner In Possession. Part 5
So that equitable waste is not committed, the bountiful intention of the testator in favor of the devisees over will be completely fulfilled; for, on the happening of the contingencies limited, the pr...
-Use By The General Owner In Possession. Part 6
The only analogy at all unfavorable to this view of the case is that of tenant in tail, with the reversion in the crown, and tenant in tail under an act of Parliament which precludes the barring of th...
-Use By The General Owner In Possession. Part 7
The word waste is not an arbitrary term to be applied inflexibly without regard to the quantity or quality of the estate, the nature and species of the property, or the relation to it of the person ...
-Use By The General Owner In Possession. Part 8
The defendant McGraw, in this case, came into the possession of the land subject to the mortgage. The rights of the holder of the mortgage were therefore paramount to his rights and any attempt on his...
-Chapter II. Use By Tenants For Life, For Years Or At Will In Possession
I. Ordinary use. 1. The Temporary Uses and Profits - Crops and Rents - Emblements in General. Babb V. Perley 1 Maine, 6. - 1820. (Reported herein at p. 27.) Sarles V. Sarles 3 Sandfo...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 2
The principal authorities upon which the law of emblements depends are Littleton, section 68, and Coke's Commentary on that passage. The former is as follows: If the lessee soweth the land, and the ...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 3
Judgment affirmed. Stewart V. Doughty 9 Johnson (N. Y.), 108. - 1812. Kent, Ch. J. - There are several questions raised in this case, which it will be necessary to consider. 1. The first q...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 4
Bradley V. Bailey 56 Connecticut, 374. - 1888. Beardsley, J. - This is a complaint in trespass, in which the defendants appeal from an adverse judgment in the Court of Common Pleas. The mater...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 5
To hold that this right may be defeated after the tenant's death, by evidence of his condition of health, or by his declarations or those of his lessee imputing a belief, however well founded, or know...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 6
1 See for present New York rule, 192 R. P. Law. - Ed. In all the cases of this kind the lessee was not at common law bound to pay at all for so much of the time since the last rent day, as h...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 7
1Three of the eight judges dissented; Clarke, J., wrote the dissenting opinion, 2. Estovers. Smith V. Jewett 40 New Hampshire, 530. - 1860. Bellows, J. - The plaintiffs in this case seek ...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 8
The bill must be dismissed.1 3. Fixtures and Improvements. Merritt V. Scott 81 North Carolina, 385. - 1879. Smith, C. J. - The tract of land described in the complaint was, in 1842, convey...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 9
Ventre de novo. II. General restrictions upon tenant's use. 1. The Maxim Sic utere tuo ut alienum non laedas. Bishop V. Banks 33 Connecticut, 118. - 1865. [Reported herein at p. 382. ]1...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 10
[Kay, J.: Lord Coke's words only include permissive waste where there is an obligation to repair. He says in effect that where the grantor imposes the obligation to repair, it is waste to allow the pr...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 11
Depue, J. - The action on the case, in the nature of waste, has almost entirely superseded the common-law action of waste, as well for permissive as for voluntary waste, as furnishing a more easy and ...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 12
This construction of the statutes of Marlbridge and Gloucester continued to be received without dissent until the decision of the case of Gibson v. Wells, 4 B. & P. 290, in the year 1805, which was fo...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 13
The statute forbids waste by the tenant without special license, in writing, making mention that he may do it. The consent of the landlord by parol will not be sufficient authority. McGregor v. Brow...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 14
These acts of voluntary waste call for relief. The defendant should be required, within such time as the chancellor may deem reasonable, to redeem or repurchase the forfeited lands, and upon his failu...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 15
Judgment reversed. Lothrop V. Thayer 138 Massachusetts, 466. - 1885. Contract, with a count in tort, to recover for the loss by fire of a building and certain personal property therein. Pl...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 16
The diligence of the counsel for the plaintiff has not shown us any case in which it has been held that a tenant at will is liable to his landlord for injuries occasioned by his negligence in kindling...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 17
c. Equitable waste. Vane V. Lord Barnard 2 Vernon Chancery (Eng.;, 738. - 1716. The defendant on the marriage of the plaintiff, his eldest son, with the daughter of Morgan Randyll, and 10,00...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 18
In Goodright v. Barron, 11 East, 220, a will was executed with this clause: Also, I give and bequeath to my wife, Elizabeth, whom I likewise make my sole executrix, all and singular my lands, mess...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 19
Shaw, C. J., delivered the opinion of the Court. - The question in the present case, is whether a tenant in dower or her lessee has a right to cut wood upon the dower estate, for sale, to be removed a...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 20
the qualification respecting the evidence of a license is the same with those provisions of the statute of frauds requiring certain transactions to be put in writing, namely, to prevent agreements fro...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 21
As to the other acts complained of, we think they cannot be deemed waste, unless they may be prejudicial to the plaintiff; and that the instructions to the jury, in this respect, were, therefore, corr...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 22
In Irwin v. Covode, it was held that a court might restrain unskillful mining and wanton injury to the inheritance by a tenant for life, but not such mining as is subject to no other objection than it...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 23
In Gaines v. Mining Co., supra, the court say: In a country like this, where there are such vast bodies of unimproved lands, which would otherwise lie dormant in the hands of the life tenant, publ...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 24
1 Sec- also cases on pp. 391-400, supra. - ED. To this declaration there was a general demurrer, and joinder in demurrer. Yates, J., delivered the opinion of the Court. - This is an action of wa...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 25
Rule granted. Leighton V. Leighton 32 Maine, 399. - 1851. Wells, J. - The plaintiff in his bill alleges, that the defendant, Leighton, has committed strip and waste upon his land, described ...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 26
1 See Livingston v. Livingston, 6 Johns. Ch., 497. - Ed. 2 Defendants composed the firm of Wells, Fargo & Co. They received upon the premises leased by them of plaintiff a case of nitro-glycerine w...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 27
These cases abundantly show what is consonant to good sense and sound policy, as well as justice; that a tenant who commits waste by cutting timber, acquires no title to the timber which he thus unlaw...
-Use By Tenants For Life, For Years Or At Will In Possession. Part 28
It was suggested that I should suppose the possible case of the commission having been superseded; and I was asked, whether the tenant for life, Sir Henry Lushington, who is perfectly innocent in the ...
-Chapter III. Use Of Another's Land. I. Under Easements
The Greenwood Lake And Port Jervis Railroad Company V. The New York And Greenwood Lake Railroad Company 134 New York, 435. - 1892. Vann, J. - The only evidence tending to show that either Myers ...
-Use Of Another's Land. I. Under Easements. Part 2
We think that the grant from Mr. Traphagen to the ice company, when construed with reference to what the parties had in contemplation, satisfies every element in the definition of an easement, and con...
-Use Of Another's Land. I. Under Easements. Part 3
Lord Coke also says, If a man have reasonable estovers, as housebote, heybote, etc., appendant to his freehold, they are so entire as they shall not be divided between coparceners. Co. Litt. 164b. I...
-Use Of Another's Land. I. Under Easements. Part 4
Judgment of the common pleas reversed, with single costs, and a venire de novo to issue. III. Under licenses. Cook V. Stearns 11 Massachusetts, 533. - 1814. Parker, C. J. - The question p...
-Part IV. Of Estates And Other Interests In Land. Chapter I. Estates As To Quantity And Quality
Freeholds. I. Freeholds of inheritance or fees. I. Limitation of a Fee in Its Creation or Transfer. Words of Limitation. a. By deed inter vivos - at common law. (1.) The General Rule as to N...
-Estates As To Quantity And Quality. Part 2
The covenants only attach to the estate granted, or purporting to be granted. If a life estate only be expressly conveyed, the covenantor warrants nothing more. The conveyance is the principal, the co...
-Estates As To Quantity And Quality. Part 3
I am utterly unprepared to overturn the common law, as understood by Littleton, Coke, Shepherd, Cruise, Blackstone, Kent, and all the judges who have administered it for three centuries, and to adopt ...
-Estates As To Quantity And Quality. Part 4
2 A large part of the opinion is omitted. The part printed is useful here mainly as explaining and illustrating feudal doctrine. - Ed. The language of this lease, in its ordinary, natural, and popu...
-Estates As To Quantity And Quality. Part 5
I 0 comprehend fully the reasons which gave birth to this rule, we ought to recall not only the nature of the feudal tenures of land in England, but the history of the origin and development of the sy...
-Estates As To Quantity And Quality. Part 6
They who brought the general body of the common law with them to this region might well have omitted to bring the feudal rule, not because it was fabricated in a barbaric age, but because it was desig...
-Estates As To Quantity And Quality. Part 7
In the nature of things the word is no more necessary to the valid conveyance of land than to the valid conveyance of a horse. Its use was necessary in the scheme of a semi-barbarous institution, a va...
-Estates As To Quantity And Quality. Part 8
But the effort to avoid the rigor of the rule where its application is not obligatory began long ago. Where technical words are supplied by reference to another instrument which contains them, the cas...
-Estates As To Quantity And Quality. Part 9
Upon this point the law is well established, that if there be a conveyance to a trustee, and the nature of the trusts is such as to require a fee, then by necessary implication the trustee will take a...
-Estates As To Quantity And Quality. Part 10
Kent, Ch. J. - The appellants claim title to lot No. fifty-seven, in Aurelius, under a deed from Benjamin Griffen, the soldier who drew the lot, and in whose name the patent issued. This deed was made...
-Estates As To Quantity And Quality. Part 11
It is a well-settled principal that no particular form of words is requisite to create a trust. The intent is what the courts look to. 2 Fonb. 36, note; 3 Ves. Jr. 9. A trustee or cestui que trust wil...
-Estates As To Quantity And Quality. Part 12
We do not deem it very material to decide whether the clause in the habendum shall be held to be a condition or a limitation. The clause in question well illustrates what is said in Sheppard's Touchst...
-Estates As To Quantity And Quality. Part 13
1 Read in this connection pp. 527-529 only. - Ed. (7.) Effect if the Words of Inheritance be in the Covenants Only. Adams V. Ross 30 New Jersey Law, 505. - 1860. [Reported herein at p. 483.] ...
-Estates As To Quantity And Quality. Part 14
Wheaton V. Andress 23 Wendell (N. Y.), 452. - 1840. EJECTMENT by the heirs-at-law of Prudence Taplin to recover of defendant certain lands devised to her by the will of her husband. Defendants a...
-Estates As To Quantity And Quality. Part 15
The reasoning of the counsel for the plaintiffs in the case at bar is this: First, the testator indicated his general intention thus: As to all my worldly interest, all my property, all my estate, I ...
-Estates As To Quantity And Quality. Part 16
1 Many illustrations of the nature and qualities of such estates appear herein. For definition see N. Y. R. P. L. 21. - Ed. I am unable to see how the devise to Bailey, by the words of the w...
-Estates As To Quantity And Quality. Part 17
I am satisfied, for the reasons stated, that if Gloversville has been incorporated, and the devise to the trustees cannot have effect, the defendant, as the grantee of Bailey, has no estate in the pre...
-Estates As To Quantity And Quality. Part 18
Clark's possibility of reverter is not invalid for remoteness. It has been expressly held by this court that such possibility of reverter upon breach.of a condition subsequent is not within the rule a...
-Estates As To Quantity And Quality. Part 19
It is well settled that corporations, though limited in their duration, may purchase and hold a fee, and they may sell such real estate whenever they shall find it no longer necessary or convenient. 5...
-Estates As To Quantity And Quality. Part 20
All contingent and executory interests were assignable in equity, and would be enforced if made for a valuable consideration. 4 Kent, 269. But these words had an ascertained legal signification; and i...
-Estates As To Quantity And Quality. Part 21
At common law, the benefit of such a condition in a grant of real estate could be reserved only to the grantor and his heirs. It was not considered to be a devisable interest in the grantor and the ri...
-Estates As To Quantity And Quality. Part 22
1 See N. Y. R. P. L. 25-29; 49. - Ed. In this case, as it is in every case of a deed of the fee upon condition subsequent, the grantor parted with every interest and estate in the real...
-Estates As To Quantity And Quality. Part 23
Judgment affirmed.1 (6.) Void conditions and conditions impossible of performance.2 Bostick V. Blades 59 Maryland, 231. - 1882. Alvey, J , delivered the opinion of the court. - * * * It wo...
-Estates As To Quantity And Quality. Part 24
In the reasoning of Lord Justice Mellish he was equally explicit in holding the condition against the second marriage of the husband valid, and the gift over on breach of the condition effectual. And ...
-Estates As To Quantity And Quality. Part 25
We are of opinion, therefore, that the daughter's marriage without the consent of her mother, was a breach of the condition. The consent of the executor alone, was not sufficient The testator required...
-Estates As To Quantity And Quality. Part 26
But the legacy is not a purely personal legacy. The testator charges the lands devised as an auxiliary fund for the payment of debts and legacies, and there is no personalty out of which the legacy ca...
-Estates As To Quantity And Quality. Part 27
Nor can the fact that trustees are interposed affect the question. For, even if the deed should be regarded as a conveyance to the trustees for the use of Mary and the lawful heirs of her body, about ...
-Estates As To Quantity And Quality. Part 28
The points raised by the plaintiff's third, fourth and fifth grounds of appeal cannot be considered by us, as there is no copy of the pleadings set out in the Case, and we are not at liberty to assu...
-Estates As To Quantity And Quality. Part 29
The sixth section of the Conveyance act provides, that in cases where, by the common law, any person or persons might, after its passage, become seized in fee tail of any lands, etc., by virtue of any...
-Estates As To Quantity And Quality. Part 30
But it is said that the rule in Shelley's Case should be applied; but it will be seen that its application will produce the same result. That rule, as formulated in 2 Jarman on Wills, page 332, will b...
-Estates As To Quantity And Quality. Part 31
1The rule is the same in the case of attempts to restrain the alienation of equitable interests in the nature of a fee. Potter v. Couch, 141 U. S., 296. But see Claflin v. CLaflin, 149 Mass., 19, and ...
-Estates As To Quantity And Quality. Part 32
Nor does the fact that, in the case of an executory devise, or in that of a contingent remainder, or any other interest not vested, a restriction upon the power of the devisees to sell before it shall...
-Estates As To Quantity And Quality. Part 33
1 Here follows this paragraph : But lest this may be thought too narrow a ground, and since the question in all its aspects, with the authorities upon it, has been argued and fully considered, at...
-Estates As To Quantity And Quality. Part 34
Let this judgment be reversed, and the record remitted to the Court of Common Pleas of Erie county, with directions to enter judgment in favor of the plaintiff, in accordance with the terms of the cas...
-Estates As To Quantity And Quality. Part 35
It is conceded that the limitation implied in the words, to their use and benefit, will not alone make this a separate estate. A limitation to the separate or sole use of a feme has been held sufficie...
-Estates As To Quantity And Quality. Part 36
b. Descent, dower, curtesy. Overturf V. Dugan 29 Ohio State, 230. - 1876. [Reported herein at p. 20].1 Houghton V. Hapgood 13 Pickering (Mass.), 154. - 1832. [Reported herein at p. 2...
-Estates As To Quantity And Quality. Part 37
The administrator of Bartlett had no right of action, except with respect to property merely personal, which may have remained on the premises when this suit was brought; nor had he a right of action ...
-Estates As To Quantity And Quality. Part 38
c. Conventional and legal life estates. Mccormick Harvesting Machine Co. V. Gates 75 Iowa, 343. - 1888. [Reported herein at p. 581.] Watson V. Watson 13 Connecticut, 83. - 1839. [Repo...
-Estates As To Quantity And Quality. Part 39
The nature of the debtor's interest in the trust property, under his father's will, was an equitable estate for life with a power of disposing of the remainder in fee by will; in default of such dispo...
-Estates As To Quantity And Quality. Part 40
The tendency of present legislation is to soften and ameliorate, as far as practicable, the hardships and privations that follow in the wake of poverty and financial disaster. The courts of the countr...
-Estates As To Quantity And Quality. Part 41
I shall confine myself to a review of the more prominent objections urged against the validity of a trust of this description. 1st. It is said that the trust authorized by the statute to receive the ...
-Estates As To Quantity And Quality. Part 42
There is nothing in the history of the law to give countenance to this construction. The section, as originally framed and passed, authorized a trust to receive the rents and profits of lands, and ap...
-Estates As To Quantity And Quality. Part 43
What, then, is an application to the use of a person, within the statute? The advocates for a discretionary power in trustees over the fund, have told us that a payment over is not such an applicati...
-Estates As To Quantity And Quality. Part 44
The complaint alleges that the income of the trust estate is much greater than is necessary for the support of the defendant, Butterfield, and those dependent upon him, and prays that the surplus may ...
-Estates As To Quantity And Quality. Part 45
That is the only point decided in Campbell v. Foster. The action was brought by a receiver of the property of the judgment debtor appointed in supplementary proceedings. The complaint set out a trust ...
-Estates As To Quantity And Quality. Part 46
The case of Wetmore v. Truslow, 51 N. Y. 338, does not touch the present case. It was not a suit to reach surplus income, but the whole, on the ground that the beneficiary was also a trustee. My co...
-Estates As To Quantity And Quality. Part 47
4. The creditor of such a beneficiary acquires a lien upon the accrued and unexpended surplus income, or that subsequently arising from such fund, superior to the claims of general creditors or assign...
-Estates As To Quantity And Quality. Part 48
1 The estate is upon condition, limitation or conditional limitation. - Ed. 2 While discussing the case fully from this point of view the court finds that there was in fact an active trust. - Ed. f...
-Estates As To Quantity And Quality. Part 49
It appears that the executors have already paid off the mortgage of ten thousand dollars. The life estates must bear the interest which accrued upon it from the death of the testator to the time of su...
-Estates As To Quantity And Quality. Part 50
The demurrer was properly sustained, and the judgment is affirmed. (3.) Estovers. Emblements. Improvements and Fixtures. Waste.1 c. Termination of Life-estates. (1.) The Natural Termination.2...
-Estates As To Quantity And Quality. Part 51
In the case of The Earl of Pomfret v. Lord Windsor, 2 Ves. Sen., 482, Lord Hardwicke expresses an opinion that in case of a fine by a tenant for life, which, as soon as levied, operates a forfeiture, ...
-Estates As To Quantity And Quality. Part 52
It is said, however, that both estates were for life, and therefore equal in degree and merger only takes place when a larger and smaller estate meet in the same person. The general rule is, that equa...
-Estates As To Quantity And Quality. Part 53
Mccormick harvesting machine co. v. gates. 75 Iowa, 343. - 1888. [Reported herein at p. 581.] (3.) Not by Parol, or by Writing less than Deed. Stewart V. Clark 13 Metcalf (Mass.), 79. - 18...
-Estates As To Quantity And Quality. Part 54
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...
-Estates As To Quantity And Quality. Part 55
This is true where the husband has acquired no estate by the curtesy, and is seised merely in the right of the wife of her estate. Such are the cases of Guion v. Anderson, 8 Humph. Rep. 298; Melius v....
-Estates As To Quantity And Quality. Part 56
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 ...
-Estates As To Quantity And Quality. Part 57
It is among the facts found by the learned justice before whom the action was tried, that the possession of the grantee in that deed, and of his assign, was actual and exclusive. It is found, also, th...
-Estates As To Quantity And Quality. Part 58
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 rejected that the allowing or disallowing curtesy is dependent on th...
-Estates As To Quantity And Quality. Part 59
On the whole, the conclusion to which we have arrived is, that neither of the reasons given for making actual seisin indispensable to curtesy, affords any sufficient foundation for the rule in Ohio. ...
-Estates As To Quantity And Quality. Part 60
The decision of this case also decides the case of Doe ex don. Hunter et al. v. Durrel; the only difference in the cases being that there was an adverse possession in the one and not in the other. ...
-Estates As To Quantity And Quality. Part 61
If what we have said be well founded, the father is under a legal as well as moral obligation to provide for his legitimated offspring, above what the law requires him to do for a bastard child. To en...
-Estates As To Quantity And Quality. Part 62
The return of the son, and the death of the daughter, without leaving a child surviving her, were events, which, from their nature, would be determined within their two lives, and there is no objectio...
-Estates As To Quantity And Quality. Part 63
It may be regarded in another aspect, equally pointing to the same result. If the devise had created an estate tail (supposing such an estate could at that date have been created in this State), and i...
-Estates As To Quantity And Quality. Part 64
Be it so, that by these authorities, these positions are sustained; still all the authorities concur, that until the death of the wife, he is only tenant by the curtesy initiate, and not consummate. T...
-Estates As To Quantity And Quality. Part 65
The surplus would represent in part the mortgaged premises. See Elmendorf v. Lockwood, 57 N. Y. 322. We think the authorities require a reversal of the judgment.1 (b.) Dower consummate,- before ...
-Estates As To Quantity And Quality. Part 66
The order and judgment appealed from should, therefore, be reversed with costs, the demurrer overruled, and leave given to the defendant to answer, upon payment of costs, within twenty days after noti...
-Estates As To Quantity And Quality. Part 67
But by the assignment of dower, the widow took a freehold estate, the right to which accrued in 1825, when the land in question was purchased by her husband, and her title by relation commenced at tha...
-Estates As To Quantity And Quality. Part 68
A marriage celebrated in any country, according to its own laws, is recognized and valid in any country whose laws or policy it may not contravene. The proof of marriage, as of other issues, is eit...
-Estates As To Quantity And Quality. Part 69
The word purchase, which occurs in this paragraph,when used in contradistinction to descent, includes the obtaining of title by devise as well as by deed. But the whole reasoning of the passage quoted...
-Estates As To Quantity And Quality. Part 70
How can seisin be predicated of the plaintiff's husband with respect to the lands purchased through the use of his moneys, but never conveyed, nor agreed to be conveyed, to him? The plaintiff, certain...
-Estates As To Quantity And Quality. Part 71
It is not even essential to the application of this rule that the two instruments should correspond in date, provided they are delivered at the same time, as they take effect from the time of delivery...
-Estates As To Quantity And Quality. Part 72
If Henry had executed the mortgage to Crandell, and he at the same time assigned it to Maria V. D., and received the $2,000 from her, or from Henry, he having borrowed it of her, no question would hav...
-Estates As To Quantity And Quality. Part 73
Judgment affirmed. Edwards V. Bibb 54 Alabama, 475. - 1875. Stone, J. - * * * Under this will thus construed, Thomas Bibb, Jr., either took a fee simple, having another fee engrafted upon it ...
-Estates As To Quantity And Quality. Part 74
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 De Saussure (So. Car.), 617; Evans v. Evans, 9 Barr. (P...
-Estates As To Quantity And Quality. Part 75
The trust declared in the writing is evidently the same that had existed prior to its date, and includes evidently the full agreement that was made originally, that all the time continued to exist bet...
-Estates As To Quantity And Quality. Part 76
But the court held otherwise, deciding that the legal estate was the better title, and that the equitable title was merged the moment the two became united in the same person; that the legal drew afte...
-Estates As To Quantity And Quality. Part 77
It is likewise urged, that the statute has not authorized the court through commissioners to assign dower in a portion of lands in lieu of dower in the whole. As in declaring the right, our statute ha...
-Estates As To Quantity And Quality. Part 78
In this country, on the contrary, there are many large tracts of uncultivated territory owned by individuals who have no intention of reducing them to a state of improvement, but consider them rather ...
-Estates As To Quantity And Quality. Part 79
1 See Webb v. Townsend, 1 Pick. (Mass.) 20, infra, p. . Also White v. Cutler, p. 447, supra. This is often called the New England Rule. It is now the statutory rule in Mass. and N. H. But there m...
-Estates As To Quantity And Quality. Part 80
The same doctrine is announced in the case of Scott v. Howard, 3 Barb. Rep. 319, and also in our own chancery court, in the case of Mants v. Buchanan, 1 Md. Ch. Dec. 202, as well as a number of other ...
-Estates As To Quantity And Quality. Part 81
Within one year from the decease of Vincent, the tenant paid the trustee the sum of five hundred and fifty dollars, pursuant to the ante-nuptial contract, which was also accepted by the trustee and te...
-Estates As To Quantity And Quality. Part 82
1 See 179-182 N. Y. R. P. L. - Ed. I cannot admit, however, that the effect of naturalization under the general acts of Congress, which have not declared what shall be the effect of su...
-Estates As To Quantity And Quality. Part 83
The provocation which she had to depart will not aid her. The words of the statute Westm. 2, are, if a wife willingly leave her husband, and go away, and continue, etc. Lord Coke, in his commentary,...
-Estates As To Quantity And Quality. Part 84
It is undoubtedly true, as a general rule, that a statute shall not have a retrospect beyond the time of its commencement, or be so construed as to take away a vested right of property, or defeat a ri...
-Estates As To Quantity And Quality. Part 85
This conclusion does not conflict with the doctrine that where lands are condemned by proceedings to which the husband only is a party, that the wife cannot thereafter assert a right in the land again...
-Estates As To Quantity And Quality. Part 86
The second might have been much the most important point; but from the failure of proof in the defendant, it is not of the first consideration in the cause. However, I shall not pass it by without not...
-Estates As To Quantity And Quality. Part 87
(e.) Testamentary gift in lieu of dower. Konvalinka V. Schlegel 104 New York, 125. - 1887. Andrews, J. - The question is whether the widow of the testator is put to her election between dower...
-Estates As To Quantity And Quality. Part 88
Judgment affirmed.1 (/.) Estoppel. Harriman V. Gray 49 Maine, 537. - 1860. [Reported herein at p. 704.]2 (g.) Statute of Limitations.3 (6.) Assignment to Widow of Her Dower. Grimke, ...
-Estates As To Quantity And Quality. Part 89
The case of Nash v. Boltwood was determined before we had reports of the decisions of this court, and we do not know the grounds on which it was decided. A widow is dowable of a lot of wild land, whic...
-Chapter II. Estates As To Quantity And Quality: Estates Less
Than Freehold. I. Nature of leaseholds in general. 1. Real or Personal Interests in Land. Brewster V. Hill 1 New Hampshire, 350. - 1818. [Reported herein at p. 53.]1 2. Leaseholds Are t...
-Estates As To Quantity And Quality: Estates Less. Part 2
B. & C. 899; R. v. Benneworth, 2 Id. 755. The case of Hughes v. Chatham, 5 M. & G. 54, arose under the reform act, requiring a registry of voters, the statute requiring that the person should occupy a...
-Estates As To Quantity And Quality: Estates Less. Part 3
1 The judgment below was reversed, however, on account of an error in rejecting certain testimony. - Ed. In like manner, under the English valuation and tax acts, it has been held that, in order to...
-Estates As To Quantity And Quality: Estates Less. Part 4
By the Court, Nelson, J. - The agreement between the parties was a letting of the premises upon shares, and, technically speaking, was not a lease. 8 Johns. R. 151; 3 Id. 221; 2 Id. 421, n.; 8 Cowen, ...
-Estates As To Quantity And Quality: Estates Less. Part 5
The judgment must be affirmed. 1 Reported below at p. 728. - Ed. II. Estates for years or terms. 1. The Essential Feature of a Term - Certainty as to Commencement, Duration 1 and Terminatio...
-Estates As To Quantity And Quality: Estates Less. Part 6
Judgment is not arrested, but must be entered according to the verdict.1 Brown's Administrators V. Bragg 22 Indiana, 122. - 1864. Worden, J. - On the 1st of April, 1859, Brown let to Bragg ce...
-Estates As To Quantity And Quality: Estates Less. Part 7
1 For the nature of the lessee's interest in such case before the term actually begins, see Becar v.Flues supra, p. 722. - ED. 2 207 and 224 N. Y. R. P. L. - Ed. It appears that the re...
-Estates As To Quantity And Quality: Estates Less. Part 8
Ejectment to recover leased premises on the ground that the lessee has broken certain conditions contained in the lease. Verdict for plaintiff, subject to the opinion of this court. Van Ness, J., d...
-Estates As To Quantity And Quality: Estates Less. Part 9
1 For a case of merger of a term in the fee, see CarrolL v. Ballance, 26 111. 9, and compare . - Ed. It may be added that at common law, where the interest of the lessee in a part of the demised pr...
-Estates As To Quantity And Quality: Estates Less. Part 10
The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only where the tenant holds over voluntarily and for his own convenience that the landlord's right arises, and th...
-Estates As To Quantity And Quality: Estates Less. Part 11
1 See also Schuyler v. Smith, 51 N. Y. 309. - Ed. 1 198, N. Y. R. P. L. - Ed. 2 2231-2265, N. Y. Code Civ. Pro. - Ed. The notice is clearly necessary only in case there is...
-Estates As To Quantity And Quality: Estates Less. Part 12
If that was intended by the learned justice as a suggestion that such a void lease operated as a demise for one year, it is not in harmony with the view of the court in Laughran v. Smith, supra. That ...
-Estates As To Quantity And Quality: Estates Less. Part 13
Gardiner, J. - The original lease between Mrs. Dunscombe and the plaintiffs contained a covenant of re-entry on the nonpayment of rent by the lessees for ten days after it fell due. The jury have foun...
-Estates As To Quantity And Quality: Estates Less. Part 14
So far as it affects the sufficiency of the writing, under the statute of frauds, we do not see that it makes any difference that the instrument referred to is under seal, while the transfer is not. T...
-Estates As To Quantity And Quality: Estates Less. Part 15
Ruggles, J. - Payment of rent by the defendant Smith to the plaintiff was sufficient prima facie to show that Shepherd's occupancy of the demised premises was under Smith, the defendant; and the case ...
-Estates As To Quantity And Quality: Estates Less. Part 16
The case of Chapman v. McGrew, 20 111. 101, announces a contrary doctrine. In that case this question was presented, and notwithstanding the lessee had fully recognized the assignee of the lease as hi...
-Estates As To Quantity And Quality: Estates Less. Part 17
It was proved, that the plaintiff had said, that Satterlee had a right to distrain her goods for the rent, and expressed gratitude for his forbearance; but at the time of the demise from Satterlee to ...
-Estates As To Quantity And Quality: Estates Less. Part 18
6. Rights under Covenants Implied in Law. a. Implied covenant for quiet enjoyment. Mayor V. Mabie 13 New York, 151. - 1855. Action for rent. Defendant seeks to recoup damages suffered by h...
-Estates As To Quantity And Quality: Estates Less. Part 19
Daly V. Wise 132 New York, 306. - 1892. Action for rent on a lease of a furnished house. Defendant objects that the house was in an untenantable condition and that he had abandoned it for that r...
-Estates As To Quantity And Quality: Estates Less. Part 20
The defendant cannot escape liability on the ground that the statement of the agent amounted to a warranty because it is not so pleaded in the answer. Judgment affirmed. 7. Express Covenants. a....
-Estates As To Quantity And Quality: Estates Less. Part 21
Men must be more cautious in making their contracts, and not rely upon the hardship of their cases to relieve them, when they are brought into difficulty. Such mistakes rarely occur in England, althou...
-Estates As To Quantity And Quality: Estates Less. Part 22
& P. 595 5 Doe v. Chamberlaine, 5 M. & W. 14; Right v. Beard, 13 East, 210; Gould v. Thompson, 4 Met. 224; 12 Mass. 325. And he has the right of ingress and egress to remove his effects. Love v. Edmon...
-Estates As To Quantity And Quality: Estates Less. Part 23
IV. Estates from year to year. I. How They Arise. a. By express agreement. Pugsley V. Aikin II New York, 494. - 1854. Gardiner, Ch. J. - I do not perceive that distinct causes of action...
-Estates As To Quantity And Quality: Estates Less. Part 24
The agreement, though by parol, and void as to the term and the interest in lands sought to be created, regulates the relations of the parties to it in other respects upon which the tenancy exists, an...
-Estates As To Quantity And Quality: Estates Less. Part 25
If a monthly tenancy, is there a sufficient notice shown? The rule relative to notices seems to be as follows: Where there is a lease for a certain period, the term determines without notice. Cobb ...
-Estates As To Quantity And Quality: Estates Less. Part 26
The question presented is: When did the rental year arising out of such relation commence and terminate? It is contended by the defendants' counsel that inasmuch as the end of the term designated by t...
-Estates As To Quantity And Quality: Estates Less. Part 27
Potter, J. - There are two questions involved in the consideration of this appeal. The one is whether the defendant was bound to give the plaintiff notice of its intention to quit the premises before ...
-Estates As To Quantity And Quality: Estates Less. Part 28
In Ludington v. Garlock, 29 N. Y. S. R. 600, it was held in a case of a lease from month to month and the tenant held over, that the tenant who vacated the premises at the end of a subsequent month an...
-Chapter III. Licenses
I. Nature of a license. 1. In General. Cook V. Stearns II Massachusetts, 533. - 1814. [Reported herein at p. 480.] 1 2. How a License Differs from a Leasehold Interest.2 3. How a Licen...
-Licenses. Part 2
And it is said that a license coupled with an interest is where the party, obtaining a license to do a thing, also acquires a right to do it; in such case the authority conferred is not merely a permi...
-Licenses. Part 3
So that it would seem that when the defendant entered the building, the plaintiff, regardful as well of his duty as his license, had abandoned the possession and control of the goods to Gilchrist, and...
-Licenses. Part 4
The defendants, therefore, insist that as the plaintiffs or their predecessors had no title to any portion of the street, the consent of their predecessors, while in the possession and ownership of th...
-Licenses. Part 5
The railroad company having procured the consent of the authorities of the city to the construction of the railroad in the street or square in question upon the terms agreed upon, such company obtaine...
-Licenses. Part 6
Were this a case in a court of law, the answer would be that at law a license can under no circumstances become irrevocable by estoppel when the effect would be to create an interest in land. The doct...
-Licenses. Part 7
Some days after the interview * * * the defendant addressed a letter to the plaintiff, in which * * * he said: * * * I have thought the matter over seriously, put myself in your place, so to speak, a...
-Licenses. Part 8
Mrs. Spencer, and the appellant, William Ferguson, were adjoining landowners in Warren county, their farms being separated by a public highway running east and west on the division line. Their farms o...
-Chapter IV. Incorporeal Interests In Land
1. Nature and kinds. 1. In General.1 2. An Incorporeal Interest May be as for a Fee, or for Life or a Leasehold.2 II. Easements.3 1. Nature in General. a. Continuous and discontinuous. ...
-Incorporeal Interests In Land. Part 2
(1.) Express. Walker V. Pierce 38 Vermont, 94. - 1865. [Reported herein at p. 822.] (2.) Implied. (a.) Implied in consequence of a restrictive covenant, Blakemore V. Stanley 159 Mass...
-Incorporeal Interests In Land. Part 3
1 Sec Kuhlman v. Hecht, infra, p. 819. - Ed. King v. Murphy, 140 Mass. 254 ; Queen v. Chorley, 12 Ad. & El. N. S. 515 ; Crossley v. Lightowler, L. R. 2 Ch. App. 478, 482; Cartwright v. Maplesden, 5...
-Incorporeal Interests In Land. Part 4
In respect to a public way, if there be an obstruction so as to make the ordinary track dangerous, the traveler may go extra viam passing as near to the original way as possible. Henn's Case, Sir Wm. ...
-Incorporeal Interests In Land. Part 5
This, then, did not show a prescriptive right. Such a prescription cannot be acquired short of twenty years' continuous, uninterrupted adverse enjoyment. Where the use has been for that length of time...
-Incorporeal Interests In Land. Part 6
The only remaining question is, whose duty is it to grade down that way. When a party grants a private way, he is not bound by implication to construct or keep in repair the way granted. That duty res...
-Incorporeal Interests In Land. Part 7
We do not see how this case can be distinguished in principle from that of Davenport v. Lamson, nor indeed from the general doctrine upon the subject; and sufficient matters are stated in the case as ...
-Incorporeal Interests In Land. Part 8
The latest and the most authoritative statement of the law of England upon this point before the American Revolution is that of Chief Baron Comyns, who, citing Rolle's Abridgment and Sider-fin's Repor...
-Incorporeal Interests In Land. Part 9
Upon a question of this kind, affecting all the lands in the commonwealth, it would be unjustifiable and mischievous for the court to change a rule of law which has been established and acted upon her...
-Incorporeal Interests In Land. Part 10
The plaintiff acquired, as a right of property, that there should be left of the minerals, in their place under the land, sufficient to support the surface in its natural state. This was the extent of...
-Incorporeal Interests In Land. Part 11
In Eno v. Del Vecchio 4 Duers,53, it was held that the owner on one side of a party-wall might, for the purpose of improving his own premises, underpin the foundation of the wall and sink it deeper if...
-Incorporeal Interests In Land. Part 12
The cases in the English courts are numerous in which damages at law have been recovered for obstructing lights, and where injunctions have been issued to prevent such obstructions. The law is there w...
-Incorporeal Interests In Land. Part 13
The only question involved in this case is, whether the plaintiff by such long and uninterrupted use of his windows, and the light passing through them, has thereby acquired the right so to continue h...
-Incorporeal Interests In Land. Part 14
We think the English courts, in applying the doctrine of the presumption of grants from long use and acquiescence to this class of cases, clearly departed from the ancient common-law rule as laid down...
-Incorporeal Interests In Land. Part 15
1 As to easements of light, air, etc., in a street in favor of an abutting owner when the fee is in the municipality, see White v. Manhattan Ry. Co., p. 795, supra; Story v. Elevated R.R. Co., 90 N. Y...
-Incorporeal Interests In Land. Part 16
These views make it unnecessary to decide the questions argued as to the actual existence of the highway; because, if it does exist, that fact does not constitute a defense to the action. III. Comm...
-Incorporeal Interests In Land. Part 17
When its charter was granted it was in contemplation that the plaintiff would be called upon to assume its corporate duties and exercise its powers in furnishing water to the city of Syracuse, and tha...
-Incorporeal Interests In Land. Part 18
The supply embraced within the franchise of the plaintiff did not, by the terms of the grant or by necessary implication, shut out all other means of obtaining supply there. And, in view of the demand...
-Chapter V. Equitable Estates And Interests In Land
Jaques V. Trustees Of M. E. Church 17 Johnson (N. Y.), 548. - 1820. [Reported herein at p. 93.] Kennedy, J., in Pullen V. Rianhard 1 Wharton (Pa.), 514. - 1836. [Reported herein at p. 95....
-Chapter VI. Future Estates And Interests In Land
I. Kinds of future estates, the characteristics of each and the mode of their creation. 1. Reversions; Interests and Possibilities Analogous Thereto. a. Reversions.1 Bates V. Shraeder 13 J...
-Future Estates And Interests In Land. Part 2
Trusts are subject to the same rules of descent, and are deemed capable of the same limitations, as legal estates. 4 Kent Com. 302. As was said by Lord Mansfield in Burgess v. Wheate, 1 W. Bl. 160, w...
-Future Estates And Interests In Land. Part 3
1 The feudal escheat in these cases was to the grantor - the creator of the fee in question. Since the statute quia emptores all conveyances in fee are theoretically transfers of a fee already in exis...
-Future Estates And Interests In Land. Part 4
Thus, in no view of the case, can that part of the judgment which directs a seizure, into the hands of the State, of the goods and chattels, rights, credits, and effects, lands, tenements, and heredit...
-Future Estates And Interests In Land. Part 5
While reversions have everywhere been preserved unchanged it would seem that other estates in expectancy are to be classed in most of the States as either remainders or estates limited to commence ...
-Future Estates And Interests In Land. Part 6
The testator's widow died in 1874. His daughter Margaret thereafter married the plaintiff. Foley died in 1876, and Margaret died in 1878, leaving no issue surviving Margaret, prior to her death, conve...
-Future Estates And Interests In Land. Part 7
If the difficulties of the common law seem thus far obviated, they become more serious as we approach a consideration of the nature and character of the devise over to Foley. Alternative estates, or c...
-Future Estates And Interests In Land. Part 8
1 N. Y. R. P. L. 26-2S, 30. - ED. Preferring first his wife; then Margaret and her issue; he next casts the estate upon the nephew and his heirs, preferring them to possible husbands, ...
-Future Estates And Interests In Land. Part 9
We conclude, therefore, in this case, that John Foley took a contingent remainder, which vested in him at the death of the testator as a right according to its character, and which descended to his he...
-Future Estates And Interests In Land. Part 10
In Young v. Young, 97 N. C. 132, the court said: The contingent remainders limited on the termination of the life estate are to such of her children as are then living and to the then living issue of...
-Future Estates And Interests In Land. Part 11
4. Neither is there any force in the contention that our case falls within the principle of England v. Garner, 90 N. C. 197, and other decisions in which the court has gone very far in sustaining judi...
-Future Estates And Interests In Land. Part 12
Counsel for the defendant in error cited the case of Loring v. Arnold, 8 Atlantic Rep. 335, Supreme Court of Rhode Island, the facts of which case, we think, are exactly the same as in the case now un...
-Future Estates And Interests In Land. Part 13
1That is the remainder is subject to a condition subsequent - the birth of other children upon the happening of which it will be divested is part. - En. But it is supposed the devise, immediately u...
-Future Estates And Interests In Land. Part 14
I. 2.] 1 These were treated as vested, but defeasible as the tenant-in-tail might bar the remainder by proper proceedings. The chance that he might do this was regarded as a condition subsequent. S...
-Future Estates And Interests In Land. Part 15
In considering the effect of the grant under consideration, made since the rule in Shelley's Case was abrogated, we may seek for an anology in the example last named, to wit, a grant to A. for life wi...
-Future Estates And Interests In Land. Part 16
The judgment should be reversed, and judgment ordered affirming the title of the defendant to ten-elevenths and of the plaintiff to one-eleventh part of the premises in fee. A majority of the judge...
-Future Estates And Interests In Land. Part 17
Why is it said that a remainder to the heirs of A., after the determination of a life-estate in A. is contingent? Because the life-estate may, at the common law, be determined before it is ascertained...
-Future Estates And Interests In Land. Part 18
It is now insisted that our statute has both affirmed and perpetuated this distinction. The frame of the statute, and its language, are inconsistent with this; and the whole policy of our law which...
-Future Estates And Interests In Land. Part 19
Peckham, J. - * * * I see no objection to the merger of this life-estate of John Jackson, the father, in the vested remainder of his son, the husband of Mary L. Jackson, under the decision of Moore v....
-Future Estates And Interests In Land. Part 20
Judgment affirmed. Hennesy V. Patterson 85 New York, 91. - 1881. [Reported herein at p. 868.]1 d. Alternate remainders2 Whitesides V. Cooper 115 North Carolina, 570. - 1894. [Reported ...
-Future Estates And Interests In Land. Part 21
Executory future estates may now be created in one of the following ways: (1) By an instrument operating to create a legal estate by virtue of the Statute of Uses. Such future estates are either shift...
-Future Estates And Interests In Land. Part 22
We think the case was properly disposed of by the surrogate, and that the judgment of the General Term should be affirmed. Judgment affirmed.1 Walton, J., in Wyman V. Brown 50 Maine, 139. ...
-Future Estates And Interests In Land. Part 23
Chancellor Kent: A person may covenant to stand seised, or bargain and sell, to the use of another at a future day. 4 Kent's Com. 298. Mr. Archibold: Deeds acting under the statute of uses, such...
-Future Estates And Interests In Land. Part 24
Judge Jackson seems to have supposed that when such a deed is executed the legal estate or seisin passes immediately to the grantee, and that, until his own future freehold vests, he holds this legal ...
-Future Estates And Interests In Land. Part 25
We entertain no doubt that, by deeds of bargain and sale, deriving their validity from the statute of uses, freeholds may be conveyed to commence in futuro. It will be seen that the law is so held in ...
-Future Estates And Interests In Land. Part 26
Affirmed. Goodright V. Cornish 1 Salkeld (Eng.), 226. - 1791. In ejectment a special verdict was found, viz., Knowling had issue two sons, John and Richard, and devised lands to John for 50 y...
-Future Estates And Interests In Land. Part 27
1 N. Y. P. L. 36, 37. - Ed. 1 N. Y. R. P. L. 46. - Ed. 2. Executory Future Estates, Subject to a Condition Precedent, Must Obey in their Creation the Rule Against Perpetuiti...
-Future Estates And Interests In Land. Part 28
1 The new revision - the Real Property Law of 1896 - has changed the arrangement of the sections of the Revised Statutes and their phraseology to some extent. It has been suggested that an unlawful su...
-Future Estates And Interests In Land. Part 29
But the deed of the petitioner contained a covenant of warranty against all claims under the grantors, and the effect of this covenant remains to be considered. And here the case of Blanchard v. Brook...
-Future Estates And Interests In Land. Part 30
This being so, it necessarily follows that the devise over to John and Benjamin, in case Elisha did not have issue of his body, gave them a vested remainder in fee, subject to be defeated by the birth...
-Future Estates And Interests In Land. Part 31
Co. Lit., 247; 2 Bl. Com. 135; Cruise Digest, c. xxxii., 30. No direct claim, and no entry were ever made for the forfeiture of this estate while it existed; but it remained subsisting i...
-Future Estates And Interests In Land. Part 32
Be this, however, as it may, the event which has occurred in this case does not render it necessary to decide it under such aspect; but if it did, I see no objection that could be made to it, unless i...
-Future Estates And Interests In Land. Part 33
The effect of a grant of a right or possibility of reverter of an estate on condition is thus stated in 1 Shep. Touchstone, 157, 158: A condition may be discharged by matter ex post facto; as in the...
-Chapter VII. Joint Ownership Of Interests In Land
I. Kinds of joint interests and characteristics of each. 1. Estates in Joint Tenancy. Babbitt V. Day 41 New Jersey Equity, 392. - 1886. [Reported herein at p. 685.]1 Haughabaugh V. Honald...
-Joint Ownership Of Interests In Land. Part 2
The second paragraph is the same as the first, in substantial averments, 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 r...
-Joint Ownership Of Interests In Land. Part 3
2. Estates in Common. Spencer V. Austin 3S Vermont, 258. - 1865. Bill in chancery to ascertain the interests of the several parties in the premises in question. In 1830 Gideon and Stephen Spe...
-Joint Ownership Of Interests In Land. Part 4
1 For New York see the R. P. L. 56. - Ed. Spencer had become the assignee of Ward. The two estates, viz.: that of Stephen Spencer reserved in the lease, and that of Ward in Stephen Spence...
-Joint Ownership Of Interests In Land. Part 5
Gilpin V. Hollingsworth 3 Maryland, 190. - 1852. Ejectment to recover an undivided third part of certain lands. The question involved arises under the will of Henry Hollingsworth, the material p...
-Joint Ownership Of Interests In Land. Part 6
Judgment affirmed. Hoffar V. Dement 5 Gill, (Md.) 132. - 1847. Assumpsit by one of the heirs-at-law of Joseph N. Stonestreet, deceased, for use and occupation of lands of said decedent after ...
-Joint Ownership Of Interests In Land. Part 7
But the claim is made that the legislation in this State, in the years 1848, 1849, 1860 and 1862, in reference to the rights and property of married women, has changed the common-law rule so that now ...
-Joint Ownership Of Interests In Land. Part 8
So the common-law incidents of marriage are swept away only by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind h...
-Joint Ownership Of Interests In Land. Part 9
It is said that the reason upon which the common -law rule under consideration was based has ceased to exist, and hence that the rule should be held to disappear. It is impossible, now, to determine h...
-Joint Ownership Of Interests In Land. Part 10
It is true that a conveyance of this kind, if made to two persons who were not husband and wife, would, at common law, have created a joint tenancy. But our statute provides that every estate granted ...
-Joint Ownership Of Interests In Land. Part 11
The decision in Bertles v. Nunan is supported by the great weight of authority in other jurisdictions in this country, but in some of the States it has been held that as a consequence of statutory pro...
-Joint Ownership Of Interests In Land. Part 12
In considering what effect, if any, the legislation in this State has had upon the right of the husband to the rents, profits and control of lands held by him and his wife in entirety, during their jo...
-Joint Ownership Of Interests In Land. Part 13
Parker V. Chance 11 Texas, 513. - 1854. Hemphill, Ch. J. - The ground upon which the exception was sustained does not appear from the record. From the special cause of exception, that the land w...
-Joint Ownership Of Interests In Land. Part 14
The presumption of law is that property, conveyed to the wife, belongs to the community; and the direction of a husband, to make out the deed in the name of the wife, will not, of itself, rebut this l...
-Joint Ownership Of Interests In Land. Part 15
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 suffer...
-Joint Ownership Of Interests In Land. Part 16
In Jackson v. Loomi's, 4 Cow. 168, 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 val...
-Part V. Of The Law Of Persons In Relation To Land. Chapter I. Aliens
I. Capacity to take and hold.1 Foss V. Crisp 20 Pickering (Mass.), 121. - 1838. [Reported herein at p. 645.] Priest V. Cummings 20 Wendell (N. Y.), 338. - 1838. [Reported herein at p. 6...
-Chapter II. Infants. I. Nature Of An Infant's Transfer
Welch V. Bunce 83 Indiana, 382. - 1882. Suit to set aside a deed and recover the possession of certain lands. Plaintiff below had inherited the lands from her father and, her husband joining wi...
-Chapter III. Married Women
I. Husband's right to dissent to devise or conveyance to wife. Baxter V. Smith 6 BlNNEY, 427. - 1814. Tilghman, C. J. - It was given in charge by the president of the Court of Common Pleas th...
-Married Women. Part 2
1 See for present law 251 R. P L. - ED. At the time Mrs. Treat executed the mortgage in question, she was seised of the premises in fee, capable of holding lands; and it is not pretended tha...
-Married Women. Part 3
Andrews, J. in Brown V. Clark 77 New York, 369. - 1879. We concur in the conclusion reached by the surrogate that the will was revoked by the subsequent marriage of the testatrix. It was the...
-Chapter IV. Persons Of Unsound Mind
Allis V. Billings 6 Metcalf (Mass.), 415. - 1843. Writ of entry to recover certain lands. Tenant gave in evidence a deed from demandant. Demandant offered to prove that he was insane when the de...
-Chapter V. Corporations
i. Power to Take and Hold. Nicoll V. N. Y. & E. Railroad Co 12 New York, 121. - 1854. [Reported herein at p. 527.] White V. Howard 46 New York, 144. - 1871. [Reported herein at p. 47.] ...
-Part VI. Of The Acquisition And Transfer Of Interests In Land. Chapter I. Title By Original Acquisition
I. Title by occupancy.2 Atkinson V. Baker 4 Durnford & East (Eng.), 229. - 1791. [Reported herein at p. 579.] II. Title by accretion or accession. Deerfield V. Arms 17 Pickering (Mass.)...
-Title By Original Acquisition. Part 2
The testimony in the record brings the case before us clearly within the rules of law to which we have referred. The conclusion, therefore, is that the appellant acquired title to the derelict land un...
-Title By Original Acquisition. Part 3
And, first, though there are a few cases which hold that the statutory period of adverse possession, which will bar an action for the recovery of land, may be made up by tacking together the periods o...
-Title By Original Acquisition. Part 4
But the court refused these and other like instructions prepared by the defendant, and the decision of the court on the instructions is the principal, and, indeed, the only, question of any importance...
-Title By Original Acquisition. Part 5
Our investigation, therefore, into the sufficiency of the special verdict must be controlled by the principles established, in this branch of the law, by the decisions of the courts, particularly thos...
-Title By Original Acquisition. Part 6
In the present case, even if the verdict were regarded as a general one, and therefore entitled to be supported by the presumption that sufficient facts existed to sustain it, yet we should feel const...
-Title By Original Acquisition. Part 7
Barnes V. Light 116 New York, 34. - 1889. Ejectment. Plaintiff relies on a title acquired by adverse possession. Judgment for defendant. Plaintiff appeals. Vann, J. - * * * Whether the portio...
-Title By Original Acquisition. Part 8
We are, therefore, of opinion that the judgment should be affirmed, with costs. 3. What Lands Will be Deemed to be Held Adversely. a. When no color of title in disseisor.1 Proprietors Of The ...
-Title By Original Acquisition. Part 9
From the action of the court in setting aside the verdict upon the first trial, and in rendering judgment in favor of the plaintiff on the demurrer to the evidence upon the last trial, this writ of er...
-Title By Original Acquisition. Part 10
The possession thus acquired by the junior claimant when he enters upon the land in controversy, improving and cultivating a part, and claiming title to the whole, is an actual possession of the whole...
-Title By Original Acquisition. Part 11
If the subsequent entry of the claimant under the senior grant on his tract, outside of the land in controversy, would have the effect of ousting the claimant under the junior grant of any part of his...
-Title By Original Acquisition. Part 12
But again, here are two persons claiming title to the land. One has the actual, rightful, bona fide title; the other has a spurious title. Neither of them has the actual possession. In whom is the con...
-Title By Original Acquisition. Part 13
Neither of the lessors of the plaintiff has, then, shown a right to recover. We cannot give effect to the deed to Nichols, because of the adverse possession existing at the time of the sale, and we ca...
-Title By Original Acquisition. Part 14
That the time of legal memory, according to the law of England, extends back to the remote period contended for by the plaintiff's counsel, cannot be denied; but for what reason, or for what purpose, ...
-Title By Original Acquisition. Part 15
The case of Ackerman v. Shelp, 3 Halst. 125, has been cited, to show that the doctrine of prescription has not been adopted in New Jersey; but this is no reason why it should be rejected in Massachuse...
-Title By Original Acquisition. Part 16
1 See above, pp, 1013 [023. - Ed. 2 See N. Y. Code Civ. Proc, 362-375. - Ed. sion on the legal owner. But the question is, what is such a vacancy of possession as produces this effe...
-Title By Original Acquisition. Part 17
It is scarcely necessary to review the authorities and consider them in detail, for none of them have ever gone so far as to hold that a possession of the mortgagee acquired by either force or fraud, ...
-Title By Original Acquisition. Part 18
Demarest V. Wynkoop 3 Johnson's Chancery (N. Y.), 129. - 1817. The Chancellor. - This is a suit to redeem a mortgage, executed as early as 1771. Persons claiming an estate, in fee, under the mor...
-Title By Original Acquisition. Part 19
But another difficulty may be started in this case; during the infancy of the plaintiff, a second disability ensued, by means of her marriage; and it has been made a question, whether a succession of ...
-Title By Original Acquisition. Part 20
The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the s...
-Title By Original Acquisition. Part 21
But the doctrine of the English courts, giving construction to the Statute of James, does not seem to have been followed in this State. It is true that Judge Cowen, in the course of a long and able op...
-Title By Original Acquisition. Part 22
The principle has also the sanction of two eminent authors on the law of limitations. Judge Cooley, in his recent work referring to this question, says: When the period prescribed by statute has once...
-Title By Original Acquisition. Part 23
No doubt a disseisor may abandon the land, or surrender his possession by parol, to the disseisee, at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. H...
-Title By Original Acquisition. Part 24
619; Pelletreau v. Jackson, 11 Wend, no; Jackson v. Waldron, 13 Wend. 178. And it may be considered as opposed by the cases of Jackson v. Bull, 1 Johns. Cas. 81, and Jackson v. Murray, 12 Johns. R. ...
-Title By Original Acquisition. Part 25
The plaintiff denied making the representations or that he knew that his deed covered the property conveyed to defendant. It was also shown that plaintiff was then a minor, having been born March 6, 1...
-Chapter II. Title By Derivative Acquisition
I. From the state. Lewis, C. J., in The Mayor V. The Ohio And Pennsylvania Railroad Company 26 Pennsylvania State, 355. It must be remembered that the ground was public ground, owned and ...
-Title By Derivative Acquisition. Part 2
The judgment of the Jefferson County Court is affirmed with costs. 4. Title by Sale Under an Execution.1 Northern Bank Of Kentucky V. Roosa 13 Ohio, 335. - 1844. [Reported herein at p. 10.] ...
-Title By Derivative Acquisition. Part 3
2 Originally the common-law method of conveying interests not lying in livery, grants are now by statute in England and most States, the customary form of conveyance of corporeals in possession. - Ed....
-Title By Derivative Acquisition. Part 4
To answer the first question, we must ascertain the intention of the devisor; and this can be learned only from his will. His first object seems to have been, to provide for his sons, during their liv...
-Title By Derivative Acquisition. Part 5
In the manner in which this case comes up no question arises whether an after-acquired title by James McKinney would inure to the benefit of James II. McKinney. The judgment below is affirmed. (...
-Title By Derivative Acquisition. Part 6
It is also urged that, by reason of the reasonable necessity for these lands as a playground for the pupils, the title passed as appurtenant, and under the clause cum pertinantes in the deed; and ...
-Title By Derivative Acquisition. Part 7
1The transfer of land carries with it all easements appurtenant thereto. Kuhl-man v. Hecht, supra, p. 819. - Ed. Coke, J., in Tuttle V. Turner 28 Texas, 759. - 1866. A deed takes effect o...
-Title By Derivative Acquisition. Part 8
The case of Hall v. Harris, 5 Ired. Eq. R. 303, is to the same effect The question in this case was, whether a deed took effect on the second day of March, the date of its execution, or on the tent...
-Title By Derivative Acquisition. Part 9
* * * And a deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority, precedent, or assent, or agreement subsequent, for omnis ratihabitio mandata...
-Title By Derivative Acquisition. Part 10
1For the old forms of covenants, with short statutory equivalents, see N. Y. R, P, L, 223. - Ed. In relation to principles so well established, one or two modern decisions in Westminster Hal...
-Title By Derivative Acquisition. Part 11
1, therefore, conclude, that the determinations in the above mentioned cases of Kingdon v. Nottle, are against the ancient, uniform and established law of Westminster Hall; against well settled princi...
-Title By Derivative Acquisition. Part 12
5 Connecticut, 497. - 1825. [Reported herein at p. 1094.] Stewart V. Drake 9 New Jersey Law, 139 - 1827 [Reported herein at p. 1100.] (c.) Covenants of 'warranty and of quiet enjoyment. ...
-Title By Derivative Acquisition. Part 13
So in this case Daniel H. acquired the title to this property from the United States long after the date of the writing which contains this covenant, and he or his heirs hold it unaffected by it. The ...
-Title By Derivative Acquisition. Part 14
2 See N. Y. R. P. L. 205-235, for New York statutory rules as to mortgages. - Ed. 3 For the modern New York doctrine, both at law and in equity, see Howell v. Leavitt, supra, p. 1043. ...
-Title By Derivative Acquisition. Part 15
That there was no agreement in the defeasance for the payment of the debt, is a circumstance entitled to considerable weight, as tending to show that the conveyance was not intended as a mortgage, and...
-Title By Derivative Acquisition. Part 16
In equity it has not completed its purchase, but to the extent of its payments, innocently made before notice of plaintiff's claim, is entitled to protection. It may, therefore, retire from the transa...
-Title By Derivative Acquisition. Part 17
It is proper to notice an objection raised by the appellant's counsel on the ground of the omission of Mrs. Zink as a party; and it is sufficient to say, in reference to it, that no such question was ...
-Title By Derivative Acquisition. Part 18
Vann, J. - This appeal presents the single question whether, under all the circumstances of the case, the defendant should have been substituted in the place of Mr. Wadsworth as the owner of the mortg...
-Title By Derivative Acquisition. Part 19
If the plaintiffs had made a tender before the defendant made the payment, or if they could not have been placed in the same situation, substantially, that they were in before the payment was made, di...
-Title By Derivative Acquisition. Part 20
(2,) Foreclosure by Action,1 Howell V. Leavitt 95 New York, 617. - 1884. [Reported herein at p. 1043.] (3.) Foreclosure by Advertisement or under the power of sale.2 Sherman V. Willett...
-Title By Derivative Acquisition. Part 21
Now, the law in question is nothing more than an exercise of the power which every State and sovereignty possesses, of regulating the manner and terms upon which property, real or personal within its...
-Chapter III. Title By Descent
Overturf V. Dugan 29 Ohio State, 230. - 1876. [Reported herein at p. 20.] March V. Berrier 6 Iredell's Equity (N. C), 524. - 1850. [Reported herein at p. 70.] Sherman V. Willett 42 N...
-Title By Descent. Part 2
Before the Revolution, some of the colonies had passed laws regulating the descent of real property upon principles essentially different from those of the common law. In most of them the common law s...
-Title By Descent. Part 3
The rule is sanctioned by no American writer upon the law of descents. Judge Reeve, Reeve, Des., p. 74, Int., speaking of distributees, says: I am of opinion that such posthumous children who were bo...
-Title By Descent. Part 4
But no such implication can be raised under the provisions of this will The gift over is not on an indefinite failure of issue to the daughter, but on such failure in the lifetime of the husband. The ...
-Title By Descent. Part 5
But this is not the whole extent to which this intent might be defeated, if the term heirs-at-law in this devise should be construed to be the heirs general of the testator at the time of his deceas...
-Title By Descent. Part 6
But it may be suggested, that as the gift over was limited on the death of a child or children in the lifetime of the father, without issue, and as the father was living at the time of the testator's ...









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