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The Law Of Real Property and Other Interests In Land | by Herbert Thorn Dike Tiffany



This edition of my work on Real Property follows, for the most part, the arrangement of the previous edition, but it represents a much more extended treat ment of the subject, a more copious citation of cases, and a more frequent and fuller discussion of the problems which present themselves.

TitleThe Law Of Real Property and Other Interests In Land
AuthorHerbert Thorn Dike Tiffany
PublisherCallaghan And Company
Year1920
Copyright1920, Callaghan And Company
AmazonA Treatise on the Modern Law of Real Property and Other Interests in Land

By Herbert Thorn Dike Tiffany, Author of "The Law of Landlord and Tenant."

Enlarged Edition In Three Volumes

Volumes I, II & III

-Preface
This edition of my work on Real Property follows, for the most part, the arrangement of the previous edition, but it represents a much more extended treat ment of the subject, a more copious citation ...
-Part One. Preliminary Considerations. Chapter I. The Nature Of The Subject. Land as the object of rights
Sec. 1. Land as the object of rights. 2. Classes of rights in land. 3. Real property and real estate. 4. Incorporeal things real. 5. Lands, tenements and hereditaments. Sec. 1. Land as the object...
-Sec. 2. Classes of rights in land
The most important rights in land are those to which we apply the term ownership, involving, within limitations more or less wide, the idea of rights in some particular person or persons (the owner ...
-Sec. 3. Real property and real estate
In connection with the law of land we find frequent reference to real property and real estate. These expressions are derived from the names formerly given to different classes of actions, real a...
-Sec. 4. Incorporeal things real
Things as the objects of rights are sometimes divided into corporeal and incorporeal things, a corporeal thing being a thing of a visible and tangible nature and an incorporeal tiling being merely a r...
-Incorporeal things real. Continued
36. The realm of mediaeval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a 'territorial ambit,' is thought of as...
-Sec. 5. Lands, tenements and hereditaments
Things of a real character were formerly referred to by the inclusive phrase lands, tenements and hereditaments, which is still occasionally used. The meaning of these words, particularly the last t...
-Chapter II. Tenure And Seisin. The feudal system
Sec. 6. The feudal system. 7. Classes of tenure. 8. The manor. 9. Incidents of tenure. 10. Descent of the feud. 11. Alienation of the feud. 12. Abolition of military tenures. 13. Tenure in the ...
-Sec. 7. Classes of tenure
Tenure was either free tenure or villein tenure, the first being based on services of a character such as it was considered proper for a free man to render, while villein tenure was based on services ...
-Sec. 8. The manor
A grant by the crown of a certain portion of territory conferred rights of jurisdiction and other sovereign rights or franchises within such territory, by which it was constituted a manor. The exact...
-Sec. 9. Incidents of tenure
There were certain incidents to the relation of tenure, or to particular varieties of tenure, which existed without special reservation at the time of the grant. These call for a brief consideration. ...
-Sec. 10. Descent of the feud
Upon the death of the tenant, his rights passed to his heir or heirs, provided the tenant had an estate of inheritance, as it was called, -that is, an estate which, by the terms of the grant, would pa...
-Sec. 11. Alienation of the feud
According to the weightiest modern authority, a tenant probably had the right, before the date of Magna Charta (A. D. 1217), freely to dispose of his land to others, provided this did not seriously in...
-Sec. 12. Abolition of military tenures
For various reasons tenure in socage tended to grow at the expense of the other tenures,28 but the rights of wardship, marriage, and the other feudal burdens continued to press heavily on a large port...
-Sec. 13. Tenure in the United States
In all the colonies, the lands were granted to the colonial proprietors to hold in free and common socage; the services reserved consisting sometimes of a nominal rent, and sometimes there being merel...
-Sec. 14. Seisin and possession
The theory of seisin, which at one time played a most important part in the English law of land, gave rise to rules which still exist as to the creation of estates, and this fact, together with the fr...
-Sec. 15. Disseisin
From the mere seisin of land, independently of whether the seisin was rightfully acquired, certain rights accrued at common law to the person seised, and accordingly the effect of a disseisin, as the ...
-Sec. 16. Livery and grant
The seisin, as representing the freehold interest of the tenant, was at common law made use of for the purpose of a conveyance of such interest, the latter being in fact transferable only by a deliver...
-Chapter III. Estates. Sec. 17. The doctrine of estates
18. The limitation of estates. 19. The classification of estates. The most distinctive feature of the law of land as established in England, and from there brought to this country, is the doctrine of...
-Sec. 18. The limitation of estates
The language, in a deed or other instrument conveying or creating an estate, which by express language or by implication indicates the quantum or duration of the estate created, is termed the limitat...
-Sec. 19. The classification of estates
The primary classification of estates is into estates of freehold, or freehold estates, and estates less than freehold. Freehold estates, the distinctive characteristic of which is that the peri...
-Part Two. The Ownership Of Land. Chapter IV. The Quantum Of Estates
I. Estates of Freehold. (A) Estate in Fee Simple. Sec. 20. Nature of estate 21. Words of limitation. (a) In conveyance inter vivos. (b) In will. Sec. 22. Incidents of estate. (B) Estate in Fee T...
-Sec. 20. Nature of estate
An estate in fee simple is the entire interest and property in the land, the tenant holding the land to him and his heirs forever. The word fee was originally used in the sense of feud, referring...
-Sec. 21. Words of limitation - (a) In conveyance inter vivos
Originally, under the feudal system, land being granted by the lord as strictly in compensation for personal services, the grant was for no longer than the life of the grantee. Later the grant was ext...
-Words of limitation - (a) In conveyance inter vivos. Continued
The word heirs is not, it seems, necessary for the creation of an equitable fee simple, even when necessary for the creation of a legal fee simple, it being sufficient that an intention to create su...
-Sec. 22. Incidents of estate-Descent
On the death of a tenant in fee simple without having disposed of the land by will, it passes to his heir or heirs according to the rules of descent, ordinarily his issue, and if he leaves no issue, h...
-Sec. 23. Origin and history
In the time of Bracton, who wrote about the middle of the thirteenth century, 39. Post Sec. 592(a). 40. 1 Cruise's Dig. tit. 1, Sec. 41; Leake, Prop. in Land, 33; Chalns, Real Prop. (3rd Ed.) 83. 4...
-Sec. 24. Statutory changes
In many states, an estate in fee tail, as it originally existed, is no longer recognized, it having been in some changed by statute, and in others abolished.51 In several states, including New York, a...
-Sec. 25. Classification
An estate tail may, by the terms of its creation, be an estate tail general or an estate tail special. An estate tail general arises when the estate is given to a man and the heirs of his body general...
-Sec. 26. Words of limitation
The most appropriate mode of creating a fee tail is by a conveyance or devise to A and the heirs of his body. As the word heirs is necessary at common law, in a conveyance inter vivos, to create a...
-Words of limitation. Part 2
70. Harkness v. Lisle, 132 Ky. 767, 117 S. W. 264; Williams v. Duncan, 92 Ky. 125, 17 S. W. 330; Leiter v. Sheppard, 85 111. 242; Schaefer v. Schaefer, 141 111. 337, 31 N. E. 136. See Rothwell v. Ja...
-Words of limitation. Part 3
Date of the devise, children cannot take as devisees, appears to be a mistaken one. Another objection to the rule is that, while it appears in terms to make the construction of the devise dependent on...
-Words of limitation. Part 4
90. 2 Jarman, Wills, 1320; 4 Kent, Comm. 276; 2 Sharswood & B. Lead. Cas. Real Prop. 98 et seq.; Chadock v. Cowley, Cro. Jac. 695, Brice v. Smith, Willes, 1; Barber v. Pittsburgh, Ft. W. & C Ry. Co., ...
-Sec. 27. Things in which the estate may exist
The statute De Donis describes the things on which it may operate as tenements, and, as a general rule, all hereditaments which savour of the realty are regarded as tenements for this purpose. Thi...
-Sec. 28. Barring the entail
After the statute Be Donis began to operate by fixing the land in perpetuity in the line of issue named in the grant, the inconveniences of the restriction imposed under the authority of the statute w...
-Sec. 29. Incidents of estate
The gradual withdrawal of the restraints on the alienation of estates tail has been considered above, but the statutes do not usually, if ever, authorize the tenant to bar the entail by will, and cons...
-Sec. 30. Succession on death of tenant
On the death of a tenant in tail, the land passes to the next heir of the body of the original donee; but such heir, though he takes because he is the heir of the body, takes not by descent, but as a ...
-Sec. 31. Nature of estate
An estate for life (or lives) is an estate which is measured by the life of a specified person, by the joint lives of two or more specified persons, or by the life of the last survivor of two or more ...
-Sec. 32. Creation of estate
While the natural and appropriate mode of creating an estate for the life of the tenant is by a limitation to him for life, at common law, as was shown in the discussion of the methods of creating a...
-Creation of estate. Continued
38. 2 Jarman, Wills 1564; Theobald, Wills (6th Ed.), 633; Britton v. Thornton, 112 U. S. 526, 28 L. Ed. 816; Crane v. Cowell, 2 Curtis, U. S. 178, Fed. Cas. No. 3353; Chesebro v. Palmer, 68 Conn. 207,...
-Sec. 33. Incidents of estate-Alienation by tenant
The tenant, unless expressly restrained, may convey his life interest, or may create a lesser estate out of it, but he obviously cannot create an estate which will extend beyond the measure of his own...
-Incidents of estate-Alienation by tenant. Part 2
Metallic Paint Co. v. Prince Mfg. Co., 133 Pa. St. 474, 19 Atl. 411, Collins v. Crownover (Tenn. Ch. App.), 57 S. W. 357. 56b. Co. Litt. 341b; Miller v. Manwaring, Cro. Car. 397; Jones v. Verney, Wil...
-Incidents of estate-Alienation by tenant. Part 3
65. Todd's Ex'r v. First Nat Bank, 173 Ky. 60, 190 S. W. 468; Wheeler v. Addison, 54 Md. 41; Plympton v. Boston Dispensary 106 Mass. 544; Bowen v. Brogan, 119 Mich. 218, 75 Am. St. Rep. 387, 77 N. W. ...
-Sec. 34. Merger
At common law, whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated, or, in the law phrase, it is sa...
-Sec. 35. Estate pur auter vie-Succession on owner's death
At common law, upon the death of a tenant pur auter vie during the life of the person for whose life the estate was limited, called the cestui que vie. it was considered that the residue of the life...
-Sec. 36. Tenancy in tail after possibility of issue extinct
A tenancy of this character occurs when the estate is limited to a man and the heirs of his body by a certain wife named, and she dies without issue. The husband then becomes tenant in tail after poss...
-Sec. 37. Nature of estate
An estate for years is not, as its name might imply, necessarily an estate limited for a certain number of years, but the expression is applied to any estate limited for a certain time, as for a year,...
-Sec. 38. Origin and history
Though terms for years probably existed as early as the Norman Conquest, it came about, owing to decisions that the writ of novel disseisin, for the recovery of free tenements, did not apply to such...
-Sec. 39. Usually created by lease
An estate for years is almost invariably created by a lease, though it may be created by a will, or by a conveyance which disposes of the estate of the grantor by way of remainder upon the estate for ...
-Sec. 40. Relation of landlord and tenant
Upon the making of a lease for years, the estate of the person making the lease, the lessor, ceases to be an estate in possession and becomes an estate in reversion, or, as it is usually called, a rev...
-Sec. 41. Attornment as tenant
The expression attornment has been used in two senses. In one sense it refers to the recognition by the tenant of the transferee of the reversion as his landlord, the necessity of which recognition ...
-Sec. 42. Necessity of written lease- (a) Statutory provisions
At common law a lease of land could be made without any writing, though, if for life, livery of seisin was necessary.27 This was changed by the first section of the Statute of Frauds,28 which provided...
-Necessity of written lease- (a) Statutory provisions. Part 2
33. Post Sec. 49. 34. In Moorehead v. Watkyns, 5 B. Mon. (Ky.) 228, in speaking of the statute prohibiting an action on an oral lease, and of that invalidating an oral lease for a term greater than a...
-Necessity of written lease- (a) Statutory provisions. Part 3
47. Huntington v. Parkhurst, 87 Mich. 38, 24 Am. St. Rep. 146, 49 N. W. 597; Scully v. Murray, 34 Mo. 420, 86 Am. Dec. 116; Coudert v. Cohn, 118 N. Y. 309, 7 L. R. A. 69, 16 Am. St. Rep. 761, 23 N. E...
-Sec. 43. Lease and contract for lease
A lease is to be carefully distinguished from a contract to make a lease in the future, the distinction being that between a conveyance and a contract to make a conveyance. The rights of both the owne...
-Sec. 44. Entry by lessee
In the case of a lease for a term of years, even though the term is to commence immediately, the lessee is not regarded as a tenant until he enters upon the land, that is, until he takes possession, a...
-Sec. 45. Certainty of term
The duration of the term must appear with certainty from the lease creating it.90 Otherwise it is insufficient to create an estate for years, and the person to whom the lease is made will be either a ...
-Sec. 46. Possessory rights of the tenant
One who holds land as tenant of another has the possession of the land, unless he has divested himself of the possession by creating a subtenancy,3 in which case, applying the same rule, the subtenant...
-Sec. 47. Licensee distinguished from tenant
That one who is tenant under a lease has the possession of the land serves to distinguish him from a licensee, that is, a person to whom is given merely permission to use the land for a specified purp...
-Sec. 48. "Cropper" distinguished from tenant
It is a very usual custom in this country for the owner of land to make an arrangement with another person that the latter shall plant and cultivate the land, and that the crop or crops so procured sh...
-Sec. 49. Covenants - (a) Express and implied
The legal act by which the relation of landlord and tenant is created, the lease, is, as we have before stated,25 a conveyance vesting an estate in the tenant, and not a contract imposing a personal o...
-Covenants - (a) Express and implied. Continued
There are decisions to the effect that a lease is not within a statutory provision that no covenant shall be implied in any conveyance of real estate. City of New York v. Mabie, 13 N. Y. 151, 64 Am. D...
-Sec. 50. Lessor's obligation to give possession
There are decisions to that effect that a failure to give possession to the lessee at the time named for the commencement of the term is a breach of the covenant for quiet enjoyment60a which, as we ha...
-Sec. 51. Condition and use of premises - (a) Condition at commencement of term
One taking a lease of property stands in the position of a purchaser, who can and is bound to inspect the property, and is consequently subject to the rule of caveat emptor. It results that there is n...
-Condition and use of premises - (a) Condition at commencement of term. Part 2
In Tennessee it has been stated that the lessor is liable if by the exercise of reasonable care and diligence he could have knowledge of the dangerous condition. Stenberg v. Willcox, 96 Tenn. 163, 34 ...
-Condition and use of premises - (a) Condition at commencement of term. Part 3
71 Pa. St. 429, 10 Am. Rep. 708; Wood v. Carson, 257 Pa. 522, 101 Atl. 811; Perez v. Rabaud, 76 Tex. 191 7 L. R. A. 620, 13 S. W. 177; Dowling v. Nuebling, 97 Wis. 350, 72 N. W. 871 75. Buckley v. C...
-Condition and use of premises - (a) Condition at commencement of term. Part 4
83. Dice's Adm'r. v. Zweigart's 161 Ky. 646, L. R. A. 1916F, 1155, 171 S. W. 195; Hill v. Day, 108 Me. 467, 1 N. C. C. A. 313, Ann. Cas. 1913C, 971, 81 Atl. 581; Do-menicis v. Fleisher, 195 Mass. 281,...
-Condition and use of premises - (a) Condition at commencement of term. Part 5
R. P. - 10 - Parts in landlord's control. If the owner of a building, while leasing different parts thereof to differFoster, 16S N. Car. 329, 50 L. R. A. (N. S.) 286, 79 S. E. 614; Water-house v. Jos...
-Sec. 53. Transfer of reversion - (a) By voluntary act
The lessor's reversion, or estate in reversion, may be transferred by the lessor to another, and by the hitter again transferred, and so again by the last transferee, and each transferee becomes the l...
-Transfer of reversion - (a) By voluntary act. Part 2
11. Teal v. Walker, 111 U. S. 242, 28 L. Ed. 415; David Bradley & Co. v. Peabody Coal Co., 99 111. App. 427. 12. See Litt. Sec. 551; Butler's note to Co. Litt. 309 a; 2 Shep-pard's Touchstone, c. 13,...
-Transfer of reversion - (a) By voluntary act. Part 3
21. Post, Sec. 614 (b). 22. Fitzgerald v. Beebe, 7 Ark. 310; Simers v. Saltus, 3 Denio (N. Y.) 214. 23. See Freeman, Executions, Sec. 195; Jones, Mortgages, Sec.Sec. 1654, 1897; Kleber, Judicial Sal...
-Sec. 54. Assignment of term - (a) Right to assign
An estate for years may always be assigned by the owner thereof, unless this power is expressly restrained,50 and the absence of the word assigns in the 44. Walker's Case, 3 Coke, 22 a; Ards v. Wat...
-Assignment of term - (a) Right to assign. Part 2
61. Crusoe v. Bugby, 3 Wils. 234, 2 W. Blackst, 766; Jackson v. Silvernail, 15 Johns. (N. Y.) 278; Moore c. Guardian Trust Co., 173 Mo. 218, 73 S. W. 143; Har-grave v. King, 40 N. C. 430; Den v. Post,...
-Assignment of term - (a) Right to assign. Part 3
78. Bottling v. Martin, 1 Camp. 317; Pollock v. Stacy, 9 Q. B. 1033. 79. Logan v. Barr, 4 Har. (Del.) 546. 80. McKinney v. Reader, 7 Watts (Pa.) 123; Kiester v. Mul-ler, 25 Pa. St. 481. And see Ros...
-Assignment of term - (a) Right to assign. Part 4
126 Mass. 402; Wineman v. Phillips, 93 Mich. 223, 53 N. W. 168; House v. Burr, 24 Barb. (N. Y.) 525. 96a. Barnard v. Godscall, Cro. Jac. 309; Norton v. Acklane, Cro. Car. 579; Barnes v. Northern Trus...
-Sec. 55. Sublease - (a) Distinguished from assignment
A transfer by the tenant of an estate in the whole premises less than his own estate is, it is generally agreed, a sublease and not an assignment,14a the transferor's estate becoming one in reversion,...
-Sec. 56. Running of covenants with the land - (a) Statutory provisions
As regards rights and liabilities arising from privity of contract, that is, based on the contractual stipulations contained in the instrument of lease, while there is reason for thinking that even at...
-Running of covenants with the land - (a) Statutory provisions. Part 2
46. 5 Coke 16, 1 Smith's Leading Cases (11th Ed.) 55. 46a. As to the proper criteria in this regard, see article by Professor Harry A. Bigelow in 12 Mich. Law Rev. 639. 47. Williams v. Earle, L. R. ...
-Running of covenants with the land - (a) Statutory provisions. Part 3
Occasionally the view appears to have been asserted that one may be held liable as assignee merely because in possession of the premises, although shown to be neither a legal or equitable assignee,69 ...
-Running of covenants with the land - (a) Statutory provisions. Part 4
79. Ante Sec. 53(c). 80. Co. Litt. 215a; Attoe v. Hemmings, 2 Bulst. 281; Burton v. Barclay, 7 Bing. 745. 81. Ards v. Watkin, Cro. Eliz. 637, 651; Twynam v. Pickard, 2 Barn. & Ald. 105; Leiter v. Pi...
-Sec. 57. Estoppel to deny landlord's title - (a) General considerations
It has been asserted, in an enormous number of cases, that a tenant is estopped to deny his landlord's title. Conceding that otherwise the rule of estoppel thus stated in correct, it would be more acc...
-Estoppel to deny landlord's title - (a) General considerations. Part 2
6. Cook v. Whellock, 24 Q. B. Div. 658; Perkins v. Governor, Minor (Ala.) 352; Nolen v. Roy-ston, 36 Ark. 561; Lataillarde v. Santa Barbara Gas Co., 58 Cal. 4; Lyon v. Washburn, 3 Colo. 201; Palmer v....
-Estoppel to deny landlord's title - (a) General considerations. Part 3
1ll, 13 So. 386. So in the case of an action for removal of a house. Renalds v. Offit, 15 U. C. Q. B. 221. 15. Plumer v. Plumer, 30 N. H. 558. 16. Parker v. Raymond, 14 Mo. 535. In a suit by the te...
-Estoppel to deny landlord's title - (a) General considerations. Part 4
30. Ante Sec. 49(b). 31. See Wald's Pollock, Contracts (Williston's Ed.) 214, 215; 9 Cyclopedia, Law & Proc. 342. 32. Post Sec. 414 notes 26-29. 33. See, e. g., Davis v. Williams, 130 Ala. 530, 54 ...
-Sec. 58. Eviction - (a) Under paramount title
An eviction of the tenant may be either by the landlord or by a third person having a title paramount to that of the landlord. There is no such thing, in a legal sense, as an eviction by a third perso...
-Eviction - (a) Under paramount title. Part 2
53. Borough of Poole v. Whitt, 15 Mees & W. 571; Merryman v. Bourne, 9 Wall. (U. S.) 592, 19 L. Ed. 683; Lyon v. Washburn, 3 Colo. 201; Montanye v. Walla-han, 84 111. 355; Kane v. Mink, 64 Iowa 84, 19...
-Eviction - (a) Under paramount title. Part 3
But occasionally the courts have regarded the tenant as having been partially evicted because excluded by the landlord from the utilization of some easement or convenience appurtenant to the leased pr...
-Eviction - (a) Under paramount title. Part 4
- Acts of omission. An eviction by the landlord is properly an affirmative act on his part, an act of commission, involving an interruption of or interference with the tenant's possession or enjoyment...
-Sec. 59. Termination of estate - (a) Expiration of term
An estate for years comes to an end at the expiration of the term for which it was created, and this without any notice from the landlord to the tenant or from the tenant to the landlord,91 except in ...
-Termination of estate - (a) Expiration of term. Continued
8. But in several cases it was decided that the stipulation in question was a covenant the benefit of which would pass with the reversion under St. 32 Hen. 8, c. 34, but it was at the same time in e...
-Sec. 60. Nature of tenancy
A tenancy at will is a tenancy which is terminable at the volition of either the landlord or the tenant. We do not ordinarily speak of an estate at will, but nevertheless the interest of a tenant at w...
-Sec. 61. Creation of tenancy - (a) Permissive possession
A tenancy at will may be created by a lease which expressly undertakes to create a tenancy at the will of both parties,46 and, as above indicated, such may be the effect of a lease at the will of the ...
-Creation of tenancy - (a) Permissive possession. Continued
59. Doe d. Thomas v. Chamberlain, 5 Mees. & W. 14; Swart v. Western Union Tel. Co., 142 Mich. 21, 12 Det. Leg. N. 609, 105 N. W. 74. 60. Braywaite v. Hitchcock, 10 Mees. & W. 494; Weed v. Lindsay, 88...
-Sec. 62. Termination of tenancy - (a) By act of landlord
A tenancy at will may, at common law, be terminated immediately by the landlord by giving a notice to that effect, that is, by making a demand for possession;82 and a similar view has been taken in a ...
-Sec. 63. Tenancy from year to year
The expression periodic tenancy is a convenient designation for all tenancies which are in their nature such as will endure for a certain period, and will continue for subsequent successive periods ...
-Sec. 64. Creation of tenancy - (a) By express language
As above remarked, the typical form of periodic tenancy is a tenancy from year to year, and the principles which govern in the creation of such a tenancy control also in the creation of the other clas...
-Sec. 65. Quarterly, monthly, and weekly tenancies
-A tenancy analogous to that from year to year, and differing therefrom merely in the length of the recurring periods with reference to which it is measured, and consequently in the character of the n...
-Sec. 66. Transfer of interest
A tenancy from year to year, though resembling in some degree a tenancy at will, in that the continuance of the holding beyond the end of any year is dependent on the will of the parties, nevertheless...
-Sec. 67. Termination of tenancy
While the nature of a periodic tenancy is ordinarily such that it can be terminated only at the end of one of the periods,61 it is possible, it seems, expressly to provide for its termination at some ...
-Sec. 68. Nature of tenancy at sufferance
As is said by Coke80 a tenant at sufferance is he that first came in by lawful demise, and after his estate ended, continu-eth in possession and wrongfully holdeth over. Accordingly the expression ...
-Nature of tenancy at sufferance. Continued
89. Six Carpenters' Case, 8 Coke 146a; 1 Smith's Leading Cas. (11th Ed.) 132. 90. Trevillian v. Andrew, 5 Mod. 384; Dorrell v. Johnson, 34 Mass. (17 Pick.) 263; Russell v. Fabyan, 34 N. H. 218; Risin...
-Sec. 69. Landlord's option as to tenant holding over
By the decided weight of authority in this country, a tenant for years who holds over after the end of bis term may be held liable as a tenant for a further period, without reference to his wishes on ...
-Sec. 70. Pecuniary liability of tenant holding over
There is at common law no liability for rent on the part of a tenant wrongfully holding over. This, it has been said, is because it was the folly of the owners to suffer them to continue in possessio...
-Sec. 71. Recovery of possession
Possession may be recovered by the person entitled by means of an action of ejectment against the tenant holding over,34 but in most jurisdictions statutes have been enacted providing that a lessor, o...
-Sec. 72. Forcible resumption of possession
Not infrequently the landlord, upon the failure of the tenant to relinquish possession when his right thereto expires, has undertaken to resume possession by force, and the question of the nature of t...
-Sec. 73. New tenancy by agreement
Without reference to the doctrine, above discussed, that the landlord has an option to regard the tenant holding over as in for another period or succession of periods, it is evident that the landlord...
-Sec. 74. Conditions in general
In discussing estates for years, we adverted to the possibility of the termination of such an estate before its natural time of expiration by reason of the breach of a condition by the tenant,56 but, ...
-Sec. 75. The nature of conditions precedent
A condition prcedent is so absolutely dissimilar in its operation from a condition subsequent, that the two are not readily susceptible of treatment together. We will for the most part confine the dis...
-Sec. 76. The nature of conditions subsequent
One to whom an estate on condition subsequent is given has an estate in the land which is liable to termination on breach of the condition, but until such termination he has the same rights and powers...
-Sec. 77. Conditions expressed and implied
Conditions are, by the common-law writers, divided into conditions implied or in law, and conditions expressed or in deed.82 There was, at common law, a condition in law annexed to the estate of a...
-Sec. 78. Creation of estates on condition
While certain words are said to be appropriate for the creation of a condition, such as on condition, provided, so that,94 no particular words are required, it being purely a question of the int...
-Sec. 79. Construction adverse to conditions
The law is favorable to the vesting of estates, and adverse to their destruction, and consequently a stipulation in a conveyance or a devise will be construed, if possible, not to create a condition.7...
-Sec. 80. Construction of conditions
On the principle of hostility to conditions, before referred to, a condition precedent is construed strictly in favor of vesting the estate, while a condition subsequent is construed strictly against ...
-Sec. 81. Void conditions - (a) Effect of invalidity
Conditions which are impossible of performance or satisfaction, are illegal, or are repugnant to the nature to be on condition subsequent. Hooper v. Cummings, 45 Me. 359. And it has even been held th...
-Void conditions - (a) Effect of invalidity. Part 2
23. As in Union Pac. Ry. Co. v. Cook, 39 C. C. A. 86, 98 Fed. 281; Parker v. Parker, 123 Mass. 584; Alexander v. Alexander, 156 Mo. 413, 57 S. W. 110; Harris v. Wright, 118 N. C. 422, 24 S. E. 751; In...
-Void conditions - (a) Effect of invalidity. Part 3
34. Anglesea v. Churchwardens of Rugeley, 6 Q. B. 107; Board Com'rs Mahoning Co. v. Young, 8 C. C. A. 27, 59 Fed. 96; Scovill v. McMahon, 62 Conn. 378, 21 L. R. A. 58, 36 Am. St. Rep. 350, 26 Atl. 479...
-Void conditions - (a) Effect of invalidity. Part 4
A case, such as that just referred to, in which the estate is subject to a condition precedent of the non marriage of the person to whom the estate is given, is to be distinguished from a case in whic...
-Void conditions - (a) Effect of invalidity. Part 5
48. 2 Pomeroy, Eq. Jur. Sec. 933; Coppage v. Alexander's Heirs, 2 B. Mon. (Ky.) 313, 38 Am. Dec. 153, note on page 158; Collier v. Slaughter's Adm'r, 20 Ala. 263; Shackelford v. Hall, 19 111. 212; Gra...
-Sec. 82. What constitutes breach - (a) Substantial performance sufficient
A substantial performance or satisfaction of a condition is, generally speaking, sufficient.75 This principle appears to be practically the same as that previously stated, to the effect that a conditi...
-What constitutes breach - (a) Substantial performance sufficient. Continued
83. Hamilton v. Elliott, 5 Serg. & R. (Pa.) 375, per Gibson, J.; 1 Sharswood & B. Lead. Cas. Real Prop. 140. This seems to be the gist of Lord Coke's statement. Co. Litt. 208b. 84. Drew v. Wakefield...
-Sec. 83. Waiver of condition
Compliance with a condition subsequent may be waived, in whole or in part, by the person entitled to the benefit of the condition, or, as it may be otherwise expressed,96a a license may be given dispe...
-Waiver of condition. Continued
But see, apparently contra. Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S. W. 562, 27 L. R. A. 190, 43 Am. St. Rep. 38; German-American Sav. Bank v. Gollmer, 155 Cal. 683, 24 L. R. A. (N. S.) 10...
-Sec. 84. Election against forfeiture - (a) Effect
Not only may a condition be dispensed with as regards a subsequent breach, or subsequent breaches, thereof, as explained in the preceding section, but also, after a breach has occurred, the person ent...
-Sec. 85. Mode of enforcing forfeiture
At common law, upon the breach of a condition subsequent annexed to a freehold estate, an actual entry by the gran tor or his heir was ordinarily necessary to revest the seisin and ownership in the gr...
-Mode of enforcing forfeiture. Continued
46. Lewis v. Lewis, 74 Conn. 630, 92 Am. St. Rep. 240, 51 Atl. 854; Board of Education Normal School Dist. v. First Baptist Church of Normal, 63 111. 204; Elkhart Car Works v. Ellis, 113 Ind. 215; Ken...
-Sec. 86. Persons Entitled To Enforce Forfeiture - (a)
Common law rule. The right to take advantage of the breach of a condition subsequent by enforcing a forfeiture, the right of re-entry, as it is frequently termed, belonged at common law exclusively to...
-Persons Entitled To Enforce Forfeiture - (a). Continued
71. In England, rights of entry for breach of condition may now, by statute, be assigned, or may be devised. St. 8 & 9 Vict. C 106, Sec. 6 (1845); 1 Vict. c. 26, Sec. 3 (1837). See Leake, Prop, in Lan...
-Sec. 87. Effect of enforcement of forfeiture
The enforcement of a forfeiture for the breach of an express condition subsequent avoids the estate ab initio for most purposes, the grantor being in as of his original estate as if he had never parte...
-Sec. 88. Relief against forfeiture
Courts of equity will quite frequently interpose to relieve against the con95. Grissom v. Hill, 17 Ark. 483; Quatman v. McCray, 128 Cal. 285, 60 Pac. 855; Scott v. Stipe, 12 Ind. 74; Provost v. Morgan...
-Relief against forfeiture. Continued
Phillips v. Doelittle, 8 Mod. 345; Sheets v. Selden, 7 Wall. (U. S.) 416, 19 L. Ed. 166; Abrams v. Watson, 59 Ala. 524; Atkins v. Chil-son, 11 Mete. (Mass.) 112; Shriro v. Paganucci, 113 Me. 213, 93 A...
-Sec. 89. Conveyances in consideration of support
A conveyance of land is frequently made, usually by a person advanced in years, in consideration of a promise to in Gordon v. Richardson, 185 Mass. 492, 69 L. R. A. 867, 70 N. E. 1027 31. Hughes v. M...
-Conveyances in consideration of support. Continued
40. Pollock Contracts (Willis-ton's Ed.) 335; Woodward, Quasi Contracts Sec. 262. In Illinois and Oklahoma the right of the grantor to rescind has been based on the theory that the neglect or refusal...
-III (B) Estate on Special Limitation. Sec. 90. Nature of special limitation
An estate on special limitation resembles an estate on condition subsequent in that, while it may continue for the natural duration of an estate in fee simple, in fee tail, for life, or for years, it ...
-Sec. 92. Particular estates subject to special limitation
Estates in fee simple, when thus subjected to the possibility of termination, have been usually considered as forming a class by themselves, and are considered in the next section under the head of d...
-Sec. 93. Determinable, base, or qualified fees
A limitation to a man and his heirs, so long as A shall have heirs of his body, or till the marriage of a certain person, or so long as St. Paul's Church shall stand, or a tree shall stand, are among ...
-Chapter V. Equitable Ownership
I. Uses and The Statute of Uses. Sec. 94. Origin of uses. 95. Jurisdiction assumed by chancery. 96. Characteristics of a use. 97. Creation of a use. 98. Persons bound by the use. 99 The Statute o...
-Sec. 94. Origin of uses
The law of estates in land, as heretofore stated and explained, was established in the courts of common law. At a later period, the court of chancery established a concurrent jurisdiction over land by...
-Sec. 95. Jurisdiction assumed by chancery
Upon the first introduction into England of the doctrine of uses, and for a considerable period thereafter, the beneficiary of the use, called later the cestui que use, had no specific 1. 2 Pollock &...
-Sec. 96. Characteristics of a use
A use, not being an estate in the land, was not the subject of tenure, and consequently, on the death of the cestui que use, the lord had no wardship or marriage of the heir, the land did not escheat ...
-Sec. 97. Creation of a use
The ordinary and simplest method of creating a use was by a feoffment to A. and his heirs for the use of B. and his heirs. Likewise, a use could be raised by the levy of a fine or the suffering of a r...
-Sec. 98. Persons bound by the use
At first the court of chancery regarded a use as in the nature of a purely personal confidence in the feoffee to uses, so that, on his death, it could not be enforced against his heir, but subsequentl...
-Sec. 99. The Statute of Uses
From time to time, statutes were passed with the intent of rendering uses more or less subject to the rules of the common law,25 but these were but partially effective, and were superseded by St. 27 H...
-Sec. 100. Effect of the statute
Since, by the express terms of the statute, uses were thereafter to be regarded as converted into legal estates, it became neces29. 1 Perry, Trusts, Sec. 299, and note; Flint, Trusts. Sec. 121. See 1 ...
-Sec. 101. Resulting uses after the statute
The rule which existed before the statute that, upon a feoffment, a use resulted in favor of the feoffor in the absence of any consideration and of any declaration of use, was presumably based upon th...
-Sec. 102. Uses not within the statute
In construing the statute, it was decided that certain classes of uses were not within its operation, and that they consequently were not changed into legal estates, and these uses have in part surviv...
-Uses not within the statute. Continued
- Uses in chattel interests. A second class of uses not executed by the statute consists of those declared on a term of years or other chattel interest, since the statute expressly states that, to bri...
-Sec. 103. The nature of a trust
- (a) General considerations. The Statute of Uses, as previously stated, sold land to another to the use of the bargan- the use declared was void. a repugnant to that raised by the consideration; and ...
-The nature of a trust. Part 2
88. This view has been well presented by Professor Charles A. Huston in his Enforcement of Decrees in Equity, on which this paragraph is to a great extent based. See also the reviews of the above wo...
-The nature of a trust. Part 3
97. Goodtitle v. Jones, 7 Term R. 45; Langdon v. Sherwood, 124 U. S. 74, 31 L. Ed. 344; Green v. Jordan, 83 Ala. 220, 3 Am. St. Rep. 711, 3 So. 513; Buhne v. Chism, 48 Cal. 467; Fischer v. Eslaman, 68...
-Sec. 104. Capacity of parties to a trust
A trust in land may be created by any person who has capacity to make a transfer of land.11 And any person who is capable of being the transferee of land may be made a cestui que trust, as the state, ...
-Sec. 105. Necessity of definite cestui
In order that a valid trust may exist, it is necessary, in the ordinary case, that there be a definite cestui que trust, or definite cestuis, who may assert the obligation upon the part of the trustee...
-Sec. 106. Express trusts
- (a) Language sufficient for creation. An express trust is one created by language intended to have that effect, such language being known as a declaration of trust.35 A declaration of trust usual...
-Express trusts. Part 2
40. 1 Perry, Trusts, Sec. 117; 1 Ames, Cas. Trusts, 87 et seq. 41. Jones v. Wilson, 60 Ala. 332; Noble v. Learned, 153 Cal. 245, 94 Pac. 194; Mitchell v. Turner 117 Ga. 958, 44 S. E. 17; Lane v. Lan...
-Express trusts. Part 3
In case the land is already subject to a trust, a further trust can be created only by the person having the equitable interest, he being the one to be affected by the second trust, and consequently h...
-Express trusts. Part 4
In Nebraska an oral trust in land appears to be regarded as perfected in case the cestui que trust is allowed by the trustee to take possession of the land, on the theory that this involves part perf...
-Express trusts. Part 5
Interest. Such a difficulty would not exist in the case of a declaration of trust which is not voluntary, that is, which is supported by a pecuniary consideration, since this would be upheld as a cont...
-Express trusts. Part 6
Reference is made elsewhere84 to the statements, so frequently made by the courts, that a conveyance is invalid unless accepted by the grantee, and so it has occasionally been stated that a conveyance...
-Express trusts. Part 7
The cases are generally to the effect that if a trustee is given a power to sell and convey in fee simple, he necessarily has a legal estate in fee simple in order resulting trust in favor of the gran...
-Sec. 107. Resulting trusts.- (a) General nature
Before the Statute of Uses, as previously stated, a use in favor of the grantor of land was frequently recognized by the courts without any express declaration thereof, by force of a presumption of in...
-Resulting trusts.- (a) General nature. Part 2
Bartlett v. Bartlett, 14 Gray (Mass.) 277; Gould v. Lynde, 114 Mass. 366; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266; Palmer v. Sterling, 41 Mich. 218, 2 N. W. 24; Stuckey v. Stuckey, 30 N. J....
-Resulting trusts.- (a) General nature. Part 3
13. Ante, Sec. 106 (g). 13a. See In re Moore's Estate, 198 Pa. 611, 48 Atl. 884; Stevenson v. Mayor, of Liverpool L. R. 10 Q. B. 81. - (c) In favor of person paying consideration. When the consider...
-Resulting trusts.- (a) General nature. Part 4
20. 1 Perry. Trusts, Sec. L33; Whaley v. Whaley, 71 Ala. L59; Stewart v. Fellows, 128 111. 480. 20 N. E. 657; Carr v. Frye 225 Mass. Real Property. [ Sec. 107 other hand, if the purchase price is pa...
-Resulting trusts.- (a) General nature. Part 5
196 Ala. 221, 72 So. 74; Woodside v. Hewel, 109 Cal. 481, 42 Pac. 152; Briscoe v. Price, 275 111. 63, 113 N. B. 831; Buck v. Swazey, 35 Me. 41, 56 Am. Dec. 681; Hinman v. Sil-cox, 91 Md. 576, 468 Atl....
-Resulting trusts.- (a) General nature. Part 6
Occasionally however it appears to be considered that equal contributions to the price are to be presumed in the absence of evidence as to the amounts of the respective contributions. Van Buskirk v. V...
-Sec. 108. Constructive trusts.- (a) Arising from fraud
Constructive trusts are trusts which are recognized or imposed by equity, for the purpose of adjusting the rights of the individuals concerned, without reference to the existence of any actual or pres...
-Constructive trusts.- (a) Arising from fraud. Continued
52. See authorities cited by Professor Costigan, 12 Mich. Law Rev. pp. 442, 443. See also 13 Columbia Law Rev. 343, 28 Yale Law Journ. 195, note 39 L. R. A. (N. S.) 906. 54. The cases are cited by Pr...
-Sec. 109. Active and passive trusts
A trust which involves some active duty on the part of the trustee, such as to care for the land, to pay taxes, to collect the income therefrom, to make a sale, mortgage, or conveyance thereof, is kno...
-Sec. 110. Executed and executory trusts
Express trusts are sometimes classified as executed and executory trusts. Executed trusts arc those which have been explicitly and fully declared, the trustee thereunder having merely to carry out...
-Sec. 111. Duties and powers of trustees
The duties of a trustee, if the trust is passive, are, as stated above, merely to transfer the legal title as directed by tied 'with usual or proper powers,' or the like; in which cases the constructi...
-Sec. 112. Compensation of trustee
In England, a trustee is denied compensation for his time and services except in certain special eases, but a different rule prevails in most of the states of this country, quite frequently by statuto...
-Sec. 113. Transfer of equitable interest
The cestui que trust may in most jurisdictions, transfer his equitable interest,87 except in so far as his power in this respect may be restrained by the purpose of the trust or valid stipulations aga...
-Sec. 114. Transfer of legal estate
The trustee may convey the legal title to a third person, even though this involves a breach of trust on his part, since he is, in the view, at least, of courts of law, the owner of the property.91 Th...
-Sec. 116. Termination of the trust
- (a) In accordance with creator's intention. One who has created a trust in favor of another, although without the payment of any consideration, cannot thereafter revoke the trust, unless a. power of...
-Termination of the trust. Part 2
16. Thorn's Ex'r v. Thorn, 95 Va. 413, 28 S. E. 583. 17. Kennedy v. Blodgett, 19 S. C. 591. 18. Goodright v. Walls, 2 Dougl. 778 per Lord Mansfield. 19. Ante, Sec. 104. 20. Goodright v. Wells, 2 ...
-Termination of the trust. Part 3
55, 56 Atl. 215; Simmons v. Northwestern Trust Co., 136 Minn. 357, 162 N. W. 450; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70. In re Stewart's Estate, 253 Pa. 277, 98 Atl. 569; Highland Park Mfg. Co. ...
-Sec. 117. Charitable trusts
The question of what constitutes a charity, as the word is used in the law, has usually been determined with reference to provisions of St. 43 Eliz. c. 4 (A. D. 1601), known as the Statute of Chari...
-Charitable trusts. Continued
- The cy pres doctrine. By what is known as the cy pres doctrine, which is adopted in quite a number of the states of this country, if the general nature of the charitable purpose is pointed out, and ...
-III. Equitable Conversion. Sec. 118. The doctrine in general
While a court of common law will not regard as land money directed to be turned into land, or as money land directed to be turned into money, until the conversion has actually result that the interest...
-Sec. 119. Results of application of doctrine
The most important practical result of the application of the doctrine is that upon the death of one of the persons named to benefit by the conversion directed, his beneficial interest will pass accor...
-Sec. 120. Imperative direction necessary
In order that the doctrine of equitable conversion may apply, it is necessary that there be an absolute obligation to convert, either immediately or at a future time, and it is not sufficient that the...
-Sec. 121. Time of conversion
In the case of a direction by will for conversion, the equitable conversion dates, as a rule, from the testator's death,98 and, in the case of a conveyance or contract inter vivos, from the time of it...
-Sec. 122. Interests undisposed of
We have previously considered the doctrine that, upon the total or partial failure of a gift in trust, there will be a resulting trust or reversion, in favor of the donor or his heirs.6 The question n...
-Sec. 123. Election against conversion
Though there is a trust or direction for conversion, so that the doctrine of equitable conversion would otherwise apply, the person or persons absolutely entitled to the equitable interest in the prop...
-Sec. 124. Conversion by paramount authority
The doctrine of conversion above considered involves the treatment of property as having been converted even before actual conversion takes place. Occasionally a converse doctrine is applied, to the e...
-Sec. 125. Operation of contract in equity
It is frequently said that on the making of an executory contract for the sale of land, of which specific performance would be decreed, a court of equity, regarding as done that which ought to be done...
-Sec. 126. Risk of loss before conveyance
The theory that the purchaser is, in the view of a court of equity, the owner of the land, has had results of very great practical importance, in many jurisdictions, in giving rise to a rule that, unl...
-Sec. 127. Succession on death
On the death of the vendor the land passes to his heir or devisee subject to the obligation to which it was subject in the vendor's hands, to convey in accordance with the contract.58 On the other han...
-Sec. 128. Application of doctrine of conversion
It has been frequently stated, by courts of the highest standing, that the effect of the making of a contract for the sale of land which is specifically enforcible, is to cause an equitable conversion...
-Sec. 129. The nature of reversions
A reversion, or estate in reversion, is an estate the owner of which, without disposing of the estate itself, has deprived of the right of present possession by creating a less estate in favor of anot...
-Sec. 130. No express limitation of reversion
If one who has an estate in fee simple, on creating a lesser estate in favor of another by conveyance, undertakes expressly to limit, by the same instrument, an estate in fee simple in his own favor, ...
-Sec. 131. The transfer of reversions
An estate in reversion is, like any other estate, subject to alienation by the owner thereof, and this regardless of the character of the particular estate.15 And not only may the owner of a reversion...
-Sec. 132. Possibilities of reverter
Reference has already been made to the right known as a possibility of reverter upon a determinable fee,20 by virtue of which the land will revert to the grantor or his heirs upon the expiration of ...
-Sec. 133. On dissolution of corporation
It is stated by Coke and other writers,30 that, upon the dissolution of a corporation, land belonging thereto reverts to the grantor, and does not escheat to the lord, and there are-numerous judicial ...
-Sec. 134. Rights by way of escheat
By the feudal doctrine of escheat, on the failure of heirs or of inheritable blood to the tenant, the lord could resume 29. Adams v. Chaplin, 1 Hill. Eq. 265; Pearse v. Killian, McMull Eq. 231. 30. ...
-Sec. 135. Vested remainders - (a) General nature
A vested remainder is an estate which is deprived of the right of immediate possession by the existence of another estate created by the same instrument.39a In Private Corp. (2nd Ed.) Sec. 1032; Rich...
-Vested remainders - (a) General nature. Continued
Abstracts 86; 4 Kent's Comm. 197; Leake, Prop. In Land p. 41; Digby, Hist. Law Real Prop. (4th Ed.) 260; Challis, Real Prop. (3rd Ed.) 83. It is some times said that while a reversion is created by t...
-Sec. 136. Contingent remainders- (a) General nature
A contingent remainder is merely the possibility or prospect of an estate,62a which exists when what would otherwise be a vested remainder is subject to a condition precedent, or is created in favor o...
-Contingent remainders- (a) General nature. Continued
67. A vested remainder is ex vi termini vested in somebody. Gray, Perpetuities, Sec. 108, note. 68. Mr. Fearne, in his work on Contingent Remainders (page 9), states as one class of such remainder...
-Sec. 137. Distinction between vested and contingent remainders
As above stated, the distinction between a vested and a contingent remainder lies in the fact that a vested remainder is an estate while a contingent remainder is merely the possibility or prospect of...
-Distinction between vested and contingent remainders. Continued
The possibility that the remainder may never take effect in possession is immaterial in determining whether it is vested or contingent, not only when, as above explained, this possibility arises from ...
-Sec. 138. Presumption in favor of vesting
As has been previously stated,91 an instrument will not be construed as creating an estate on condition, if this can be avoided, and language creating a condition will be regarded as creating a condit...
-Sec. 139. Remainders in favor of a class
In accordance with the rule that a limitation will, if possible, be construed as creating a vested rather than a contingent remainder, a limitation in favor of a named class will be construed as inten...
-Sec. 140. Failure of contingent remainders
There was, at common law, a stringent requirement to the effect that every act of parties was void, the effect of which was to place the seisin or immediate freehold in abeyance, that is, which would ...
-Failure of contingent remainders. Part 2
19. Ante Sec. 90. 20. Fearne, Cont. Rem. 8; Bor-aston's Case 3 Co. Rep. 20a. 21. Napper v. Sanders, Hut. 118; Fearne, Cont. Rem. 21; Leake, Prop, in Land, 327. 22. Fearne, Cont. Rem. 307 et seq; Ch...
-Failure of contingent remainders. Part 3
29. Post Sec. 144. 30. Hopkins v. Hopkins, West, 606; Chapman v. Blisset, Cas. t. Talb. 145; Abbiss v. Burney 17 Ch. Div. 211; Fearne's Cont. Rem. 303; 2 Preston, Abstracts, 148; 2 Jarman, Wills, 102...
-Sec. 141. Reversion in donor until vesting
Where a contingent remainder in fee simple is created by a conveyance at common law, as distinct from one taking effect under the Statute of Uses, the reversion in fee, according to some authorities, ...
-Sec. 142. Alternative remainders
Several estates in fee simple, or of a lesser quantum, may, at common law, be limited in the alternative by way of contingent remainder after one particular estate, in such a way that one may take eff...
-Sec. 143. Cross remainders
What are known as cross remainders are remainders which, after the limitation of particular estates to two or more persons, either in undivided shares in one piece of land, or in separate pieces of la...
-Sec. 144. Equitable remainders
Reference is not infrequently made to equitable remainders, that is, to interests of an equitable character analogous to legal remainders, as when land is given in trust for A for life and after A's...
-Sec. 145. Remainders to issue of unborn persons
The creation of contingent remainders is, by the weight of authority, subject to a rule that, in the case of a limitation of land by way of remainder in favor of an unborn person for life, and thereaf...
-Sec. 146. "Acceleration" of remainders
In the earlier books it is said that if a conveyance is made to a man who is not capable of holding land, as a monk, for life, remainder to another, the remainder is void because the particular estate...
-Sec. 147. The transfer of remainders - (a) Vested remainders
A vested remainder is susceptible of transfer to the same extent as any other estate, either by conveyance inter vivos99 or by will.1 If an estate of inheritance, it will pass to the heir or heirs of ...
-The transfer of remainders - (a) Vested remainders. Continued
It may so pass by estoppel, even though the person estopped by his conveyance was not ascertained to be the remainderman at the time of making it. Myers v. McClurg, 129 Md. 112, 98 Atl. 491; Robertson...
-Sec. 148. Nature of the rule
The Rule in Shelley's Case, as stated in Coke's report of the case which bears that name,23 is that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or ...
-Sec. 149. Origin of the rule
While the Rule in Shelley's Case takes its name from a case of that name which turned upon the application of the rule,36 the rule itself appears to have been recognized at a much earlier date.37 We h...
-Sec. 150. Freehold in ancestor
In the illustrations of the rule above stated, the particular estate given to A, the ancestor, was an estate for life; but the rule applies where any other freehold estate is given to him, as an estat...
-Sec. 151. The rule not one of construction
Tu determining whether the rule is in any particular case to be applied, so as to give an estate in fee simple or in fee tail to the ancestor, the first question to be determined is whether the gift o...
-Sec. 152. Effect of qualifying words
The existence of a limitation in favor of the heirs, or heirs of the body, of the donee of a prior life estate, does not properly call for the application of the Rule in Shelley's case unless the word...
-Sec. 153. Application to equitable limitations
The rule applies in the case of equitable as well as legal limitations;72 but it does not apply if the limitation of 68. Hardage v. Strope, 58 Ark. 303, 24 S. W. 490; Marsh v. Griffin, 136 N. C. 333,...
-Sec. 154. Application to chattel interests
If one having a term of years limits it to A for life, with remainder to A's heirs or the heirs of his body, a rule analogous to that in Shelley's Case will generally apply, so as to vest the whole te...
-Sec. 155. Abolition of the rule
By statute in a large number of states, the rule in Shelley's Case has been abolished, and, where this is the case, the ancestor will ordinarily take a life estate with a contingent remainder to his h...
-Sec. 156. Springing uses
At common law, by reason of the prohibition of the abeyance of the seisin, and also of the requirement of livery of seisin in order to convey a freehold, a limitation of an estate of freehold to arise...
-Sec. 157. Shifting uses
At common law one could not create an estate of freehold in one person and provide that upon a certain event the seisin should shift from that person to another, as, for instance, by a feoffment to A ...
-Sec. 158. Creation by bargain and sale
Since, as stated in another part of this work,93 a conveyance, whatever may be its form, will, if necessary to its operation, be supported as a bargain and sale or cove-nanl to stand seised, provided ...
-Sec. 159. Estate to commence on grantor's death
One could not, at common law, create an estate of freehold to commence upon the grantor's death, so that he might have the enjoyment for the balance of his life,7 nor could one convey an estate of fre...
-Sec. 160. Executory devises
By the Statute of Wills,14 the owner of land was given the power to dispose thereof by last will and testament. Such dispositions by will were, from their very nature, not subject to the requirement...
-Sec. 161. Uses by way of remainder
We have previously considered limitations of springing and shifting uses, by virtue of which estates may be caused to arise in the future in a way which was not permitted at common law. There is anoth...
-Sec. 162. Devises by way of remainder
Analogous to the limitation of a use by way of remainder is a devise of an estate to arise in the future which, by reason of the presence of a particular estate, can be regarded as creating a continge...
-Sec. 163. The nature of an executory interest
- (a) General considerations. As appears from what has been previously said, an executory interest is the possibility or prospect of an estate, which exists by reason of the limitation of a freehold ...
-The nature of an executory interest. Continued
471; Randolph v. Wright, 81 Va. 608; Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5. 41. Post Sec. 175, note 47. 42. Suppose, for instance, A owning land in fee simple merely creates by bargain and ...
-Sec. 164. Changing effect of limitation
Since a will takes effect at the time of the testator's death, the question whether a devise of an estate to arise in the future is to be regarded as creating a contingent remainder or an executory de...
-Sec. 165. Classes of executory interests
Applying the considerations above recited, in connection with the general principle that a limitation of an estate of freehold to commence in the future will he regarded as creating an executory inter...
-Sec. 166. Limitations over on death
If an estate in fee simple is clearly given to a person, a limitation over to another upon such person's death, or in case of his death, not coupled with any contingency of time or otherwise, would, i...
-Sec. 167. Power of destruction in first taker - Repugnancy
An executory limitation cannot, except in one case, be affected by the act of a tenant of an estate previously created by the same instrument, so as to prevent the limitation from creating an estate o...
-Power of destruction in first taker - Repugnancy. Part 2
Applied in cases in which there was a limitation over in ease the first taker failed to dispose of the land by deed or by will, this being regarded as giving a power to dispose of it in either of such...
-Power of destruction in first taker - Repugnancy. Part 3
64 S. E. 761; Bowlby v. Thunder, 105 Pa. 173; Johnson v. Johnson, 48 S. C. 408, 26 S. E. 722. 91. Ide v. Ide, 5 Mass. 500; Law v. Douglass, 107 Iowa, 606. 78 N. W. 212; Wilson v. Turner, 164 111. 398...
-Sec. 168. Construction in favor of vesting
In conformity with the principle before referred to, that an instrument will be construed, if possible, as not creating an estate subject to a condition, particularly a condition precedent,3 a provisi...
-Sec. 170. Gifts to a class
In the case of a devise to the children of A, not in terms executory in character, the children who are living at the time of the testator's death are prima facie the beneficiaries of the devise, to t...
-Sec. 171. Alternative limitations
Executory limitations may be phrased in the alternative, so that if the event upon which one is to take effect in favor of a particular person or class does not occur, the other will take effect in fa...
-Sec. 172. Cross limitations
We have previously discussed the subject of cross remainders. Similar in their general aspect to cross remainders are cross executory limitations, by which, after the limitation of estates in fee simp...
-Sec. 173. Chattel interests
One having an estate in fee simple may, even at common law, create an estate for years to commence in the future, since the matter of seisin is not involved.27 And one who has an estate for years may ...
-Sec. 174. Failure of preceding limitation
In the case of an executory limitation which is to take effect in derogation of an estate previously limited by the same instrument, the question whether the failure of such previous limitation to tak...
-Sec. 175. Failure of executory limitation
If an executory limitation fails for any reason to take effect, either because originally invalid, because the objects thereof never come into existence, or for other reasons, the preceding estate wil...
-Sec. 176. Transfer of executory interests
By the common law, since an executory interest created by deed or will is, like a contingent remainder, merely a possibility, it cannot be conveyed inter vivos,50 but it mond, 26 N. J. Eq. 234; Groves...
-VI. State Statutory Provisions. Sec. 177. Statutes dispensing with a particular estate
In many states it is provided that a freehold estate may be created to commence in futuro by deed or by will, with or without a precedent estate.65 Provisions of this character not only dispense with ...
-Sec. 179. The nature of the rule
The Rule against, Perpetuities, as applied to interests in land, may be stated as follows: Any limitation or provision, the purpose or possible effect of which is to cause an estate to commence in the...
-Sec. 180. The application of the rule
In determining whether a particular limitation is invalid as violating the rule, is within the rule as it is ordinarily ex269; Lewis, Perpetuity, 129, Supp. 16-19; Marsden, Perpetuities 2; 1 Jarman,...
-Sec. 181. Alienability of interest immaterial
The applicability of the rule is not affected by the fact that the person or persons who would take in case of the occurrence of the event on which the future limitation depends are in being, and coul...
-Sec. 182. The period allowed for vesting
As before stated, in order that the limitation may not be invalid under the rule, the vesting must be certain not to occur later than a life or lives in being, and twenty-one years thereafter. That th...
-Sec. 183. Interests subject to the rule
The Rule against Perpetuities is directed against the vesting of interests at a remote time in the future, and has consequently no application to an interest which is already vested. That is, a limit...
-Interests subject to the rule. Part 2
15a. Post Sec. 184, notes 40, 43, conveyance of the legal title, or if his right of enjoyment is postponed merely by reason of either a conflicting right of the same character in another21 or of a pro...
-Interests subject to the rule. Part 3
24. Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Barton v. Thaw, 246 Pa. 348, A. & E. Ann. Cas. 1916 D. 570, 92 Atl. 312; Starcher v. Duty, 61 W. Va. 373, 9 L. R. A. (N. S.) 913, 123 Am. St. Rep. 990...
-Sec. 184. Limitations within control of owner
It is generally recognized that a limitation of an estate to vest in the future is perfectly valid, although the vesting may occur at a time more remote than that fixed by the rule, if it must occur d...
-Sec. 185. Limitations on failure of issue
Since a limitation which is always subject to destruction at the option of one having an estate in fee tail in the land is not invalid under the rule, however remote may be the possible time of vestin...
-Sec. 186. Effect of remoteness of limitation
Limitations which are void for remoteness have ordinarily no effect upon estates previously limited to others. So, previous interests which were intended to be abridged by such limitations, continue u...
-Sec. 187. Charitable gifts
When it is said, as is frequently done, that the Rule against Perpetuities does not apply to charitable trusts,62 the word perpetuity is used in its primary sense, and the statement appears to mean ...
-Sec. 188. Accumulations
There is sometimes a direction by the creator of a trust that the income shall be accumulated for a certain period, or until a certain event, and then be paid to the beneficiaries named. If this accum...
-Sec. 189. Statutory modifications of the rule
In a number of states, the common law Rule against Perpetuities has been more or less modified by statute. In New York, and in Michigan, Minnesota, and Wisconsin, which have to a considerable extent a...
-Chapter VII. Co-Ownership
191. Joint tenancy. 192. Tenancy in common. 193. Coparcenary. 194. Tenancy by entireties. 195. Community property. 196. Partnership property. 197. Ouster of cotenant. 198. Accounting by ...
-Sec. 191. Joint tenancy-General nature
In the case of a joint tenancy all the tenants have together, in the theory of the law, but one estate in the land and this estate each joint tenant owns conjointly with the other cotenants. All the j...
-Joint tenancy-General nature. Part 2
9. Co. Litt. 185a; 4 Kent, Comm. 360; 2 Cruise, Dig. tit. 18, c 1, Sec.Sec. 53-56; Freeman, Coteancy, Sec.14 10. Post, this section, notes 54, 55. 11-15. 3 Sharswood & B. Lead. Cas. Real Prop. 15; F...
-Joint tenancy-General nature. Part 3
21. Coley v. Ballance, Winston's Eq.(N. Car.) 89, Kennedy's Appeal, 60 Pa. 511; Yard's Appeal, 86 Pa. 125; Strong v. Ready, 9 Humph. (Tenn.) 168. 22. Lockhart v. Van Dyke, 97 Va. 356; Hoke v. Hoke, 1...
-Joint tenancy-General nature. Part 4
In states in which the statute provides that a conveyance or devise to two persons shall not create a joint tenancy unless an intention so to do is expressly declared, the question of what constitutes...
-Joint tenancy-General nature. Part 5
53. Litt. Sec. 296; Co. Litt. 190a. - Termination. A joint tenancy may be terminated by the destruction of any one of its unities, since they are all necessary to its existence. Such a destruction of...
-Sec. 192. Tenancy in common
A tenant in common, though owner of an undivided share only in the land, differs from a joint tenant in having a several and distinct estate therein, and, except for the fact that he has not the exclu...
-Sec. 193. Coparcenary
At common law, a holding in coparcenary or parcenary arose when, on the death of the owner of an estate of inheritance, it descended to two or more female heirs, in default of a male heir, and likewis...
-Sec. 194. Tenancy by entireties
Tenancy by entireties (or by the entirety), is the tenancy by which husband and wife at common law hold land conveyed or devised to them by a single instrument, which does not require them to hold it ...
-Tenancy by entireties. Part 2
590, 32 L. R. A. 700, Hiles v. Fisher, 144 N. Y. 313, 43 Am. St. Rep. 762, 30 L. R. A. 305; Miner v. Brown, 133 N. Y. 312, 31 N. E. 24: Stolcup v. Stolcup, 137 N. Car. 305, 49 S. E. 210; Holloway v. ...
-Tenancy by entireties. Part 3
21a. Patton v. Rankin, 68 Ind 245, 34 Am. Rep. 254; Dickey v. Converse, 117 Mich. 449, 76 N. W. 80, 72 Am. St. Rep. 568; Jones v. Smith, 149 N. C. 318, 19 L. R. A. (N. S.) 1037, 128 Am. St. Rep. 661, ...
-Tenancy by entireties. Part 4
1 Preston, Estates, 134. 30. Pray v. Stebbins, 141 Mass. 219, 55 Am. Rep. 462; In Bank of Greenville v. Gornto, 161 N. Car. 341, 77 S. E. 222 it was decided that the husband could make a lease of the...
-Sec. 195. Community property
In Louisiana, Texas, California, Arizona, Idaho, New Mexico, Nevada, and Washington, what is known as the community system of matrimonial gains prevails. The central idea of this system is that what...
-Sec. 196. Partnership property
Apart from statute, the legal title to land cannot be vested in a partnership as such, it not being recognized as a person at law, and consequently, though the property is intended to belong to the fi...
-Partnership property. Part 2
48 S. E. 393; Lutz v. Billick, 172 Iowa, 543, 154 N. W. 884; Spalding v. Wilson, 80 Ky. 589; Richardson v. Manson, 101 Mass. 482; Berry v. Folkes, 60 Miss. 576; Jarvis v. Brooks, 27 N. H. 67, 59 Am. D...
-Partnership property. Part 3
529; Moore v. Moore, 38 N. H. 382; Parker v. Bowles, 57 N. H. 491; Otis v. Sill, 8 Barb. (N. Y.) 102; Dodson v. Dodson, 26 Ore. 349, 37 Pac. 542; Burgwyn v. Jones, 113 Va. 511, 75 S. E. 188; Bird v. ...
-Partnership property. Part 4
Not infrequently the courts speak as if it were by reason of the doctrine of conversion, or partial conversion, that partnership land is subject to the payment of firm debts and the adjustment of equi...
-Sec. 197. Ouster of cotenant
The exclusion of one tenant by his cotenants from the possession or enjoyment of the land is known as an ouster. Questions as to what constitutes an ouster are important for the determination of the...
-Sec. 198. Accounting by cotenant
At common law, if one cotenant alone took possession of the premises, or collected more than his share of the rents and profits, the other or others had no right of action against him for his share of...
-Sec. 199. Contracts and conveyances by cotenant
One cotenant has no authority, as a result of the relation, to bind another cotenant by a contract in regard to the common property, or, as a rule, by any other character of act.41 Acts by one cotenan...
-Contracts and conveyances by cotenant. Part 2
46. O'Neal v. Cooper, 191 Ala. 182, 67 So. 689; Middlecoff v. Cronise, 155 Cal. 185, 100 Pac. 232; Campau v. Godfrey, 18 Mich. 27; Pellow v. Artic Iron Co., 164 Mich. 87, 47 L. R. A. (N. S.) 573, Ann....
-Contracts and conveyances by cotenant. Part 3
St. Rep. 689, 11 S. E. 1066. the conveyance was regarded as vesting the grantee with the grantor's interest in the entire tract. 52. Supra, this section, note 44. 53. Starr v. Leavitt, 2 Conn. 243, ...
-Sec. 200. Contribution as between cotenants
A joint tenant, tenant in common, or coparcener cannot make improvements on the property without the consent of his cotenant, and then compel the latter to contribute a part of the cost thereof.75 If,...
-Contribution as between cotenants. Continued
In Vermillion v. Nickell, (Ky.) 114 S. W. 270, the cotenant making the improvement was allowed to set off a proportioned part of the cost thereof. And so in Brady v. Brady, 82 Conn. 424, 74 Atl. 684, ...
-Sec. 201. Acquisition of adverse title
In this country, it is considered that the community of interest between cotenants of land is such that it is not consistent with good faith or with the duty which each owes to the other that either o...
-Acquisition of adverse title. Continued
99. Caldwell V. Caldwell, 173 Ala. 216, 55 So. 515; Smith v. Osborne, 86 111. 606; Darcey v. Bayne, 105 Md. 365, 10 L. R. A. (N. S.) 863, 66 Atl. 434; Beaman v. Beaman, 90 Miss. 762. 44 So. 987; Knoll...
-Sec. 202. Actions by cotenants
As a general rule, tenants in common should sue separately in a real action, since each has a separate and distinct freehold, while in trespass and other personal actions based on injury to the posses...
-Sec. 203. Voluntary partition
Joint tenants, tenants in common, and coparceners may make partition by agreement among themselves, this involving merely the transfer to each cotenant by the other cotenants of a certain portion, des...
-Voluntary partition. Part 2
Williams, 163 Ala. 376, 50 So. 937; Betts v. Ward, 196 Ala. 248, 72 So. 110, Hazen v. Barnett, 50 Mo. 507; Nave v. Smith, 95 Mo. 596, 6 Am. St. Rep. 79, 87 S. W. 796. 35. See Co. Litt. 169a; Docton v...
-Voluntary partition. Part 3
So if the husband is the cotenant and the conveyance is made to the wife. Goundie v. Northampton Water Co., 7 Pa. 238; without the consent of the mortgagee, be so altered or transferred.59 Harrison v...
-Sec. 204. Compulsory partition
At common law a coparcener could compel a partition by means of a writ of partition, but a tenant in common or a joint tenant did not have this right except in the single case of a tenancy in common r...
-Compulsory partition. Part 2
72-73. Martin v. Martin, 170 111. 639, 48 N. E. (;94, 62 Am. St. Rep. 411; Eberts v. Fisher, 54 Mich Real Property. [ Sec. 204 estoppel are ordinarily lacking in this connection. The refusal of part...
-Compulsory partition. Part 3
81. Johnson v. Johnson, 7 Allen (Mass.) 196, 83 Am. Dec. 676; Pabst Brewing Co. v. Melms, 105 Wis. 441, 76 Am. St. Rep. 921, 81 N. W. 882; Metcalfe v. Miller, 96 Mich. 459, 35 Am. St. Rep 617, 56 N. W...
-Compulsory partition. Part 4
90. Bowers v. Cole, 129 Minn. 276, 152 N. W. 534. 91. Watford Oil & Gas Co. v. Shipman, 233 111. 9, 84 N. E. 631; Gulf Refining Co. of Louisiana v. Hayne, 138 La. 555, 70 So. 509. 92. See Charleston...
-Compulsory partition. Part 5
5. Freeman, Cotenancy, Sec. 447; Pomeroy, Eq. Jur. Sec.1388; Carlson v. Sullivan, 146 Fed. 476, 77 C. C. A. 32; Matthews v. Glockel, 82 Neb. 207, 117 N. W. 404; Ellis v. Feist, 65 N. J. Eq. 548, 56 At...
-Chapter VIII. Estates And Interests Arising From Marriage
I. The Husband's Rights During Coverture. Sec. 205. Rights at common law. 206. Equitable modifications of husband's rights. 207. Statutory modifications of husband's rights. II. Dower. Sec. 208. G...
-Sec. 205. Rights at common law
At common law in those things in which the wife has a freehold estate, the husband has, by right of marriage, an estate carved out of his wife's estate, which may endure until his or her death, and wh...
-Sec. 206. Equitable modifications of husband's rights
At an early day, courts of equity introduced the doctrine of the wife's equity to a settlement, by which, when the husband, or one claiming under him, his assignee or creditor, for instance, came in...
-Sec. 207. Statutory modifications of husband's rights
The husband's common-law interest in his wife's real property and chattels real, as well as in her personal chattels, has been abrogated or greatly diminished by what are known as the married women's...
-Sec. 208. General nature
The estate of dower is an estate to which a widow is entitled, at common law, for the period of her life, in one-third of the lands and tenements of which her husband was seised in fee simple or fee t...
-Sec. 209. Necessity of marriage
Since the right to dower exists in one's favor by reason of her widowhood, it cannot exist unless there was a lawful marriage of the person claiming dower to the person in whose land it is claimed.37 ...
-Sec. 211. Duration of the seisin-Transitory seisin
In order that the widow have dower, the husband's ownership or seisin need not have continued for any particular time, it being sufficient that it was but momentary, the title passing out of him imm...
-Sec. 212. Things in which the dower right exists
There is a right of dower only in lands and tenements.68 Consequently it does not exist in the case of crops or trees severed from the realty. But any crops or trees growing at the time of the husband...
-Sec. 213. Character of the husband's estate
Since the estate of dower is derived out of the estate of the husband, his estate must, in order that the wife be endowed, be one of inheritance,-that is, either a fee simple or a fee tail.3 According...
-Sec. 214. Dower in equitable estates
Though generally the incidents and attributes of legal estates were by chancery given to equitable estates, an exception was made as regards dower, which was not allowed in such estates in England unt...
-Sec. 215. Bare legal estates
If the estate of the husband is purely legal, the title being held by him in trust for another or others, the widow is not entitled to dower in equity, and she will be restrained from asserting such a...
-Sec. 216. Dower in mortgaged land
By the making of a mortgage, as will be hereafter explained, in England and a number of states in this country, the legal title is transferred, and thereafter an equitable title only, usually known as...
-Sec. 217. Dower in reversions and remainders
If the husband's estate in the land is merely a reversion or remainder upon a particular estate of freehold in another, the seisin is, properly speaking, in that other, and not in him,37 and consequen...
-Sec. 218. Dower in land jointly owned
The interest of one as tenant in common or as coparcener with others is subject to dower, the undivided share being, except for purposes of possession, regarded as a separate tenement, of which the te...
-Sec. 219. Estoppel to deny husband's title
In a number of cases it has been decided that one holding under a conveyance by a husband which purported to pass a fee simple estate in possession, is estopped to deny, for the purpose of defeating t...
-Estoppel to deny husband's title. Part 2
63. Chandler v. Hollingsworth, 3 Del. Ch. 99; Wallace v. Wallace, 137 lowa. 169, 114 N. W. 913; Leach v. Duvall, 8 Bush (Ky.) 201; Cranston v. Cranston, 4 Mich. 230, 66 Am. Dac. 534; Hach v. Rollins, ...
-Estoppel to deny husband's title. Part 3
75. King v. King, 61 Ala. 479; statute applies in terms only as against a widow who was a non-resident of the state at the time of the husband's conveyance.80 Even a statute enabling the husband to co...
-Sec. 221. Destruction or termination of husband's estate
Since the right to dower is dependent on the husband's estate, if the latter is defeated by reason of an entry or judgment under a title paramount, the dower right is also defeated.88 A recovery again...
-Sec. 222. Enforcement of mortgage or other lien
By the foreclosure of a mortgage, the estate of the husband is terminated, as will be subsequently explained, and consequently, if the mortgage takes precedence of the dower right, as having been made...
-Sec. 223. Enforcement of contract of sale
A contract for the sale of land belonging to the husband, made by him before marriage, takes precedence of the dower rights, and consequently the widow cannot claim dower as against the purchaser.16 ...
-Enforcement of contract of sale. Part 2
24. Post Sec. 230, note 46. 25. Robbins v. Kinzie, 45 111. 354. 26. Chicago Dock Co. v. Kinzie, 49 111. 289. 27. See Mobley v. Mobley, 14 Rich. Eq. (S. C.) 280. 28. Co. Litt. 265; Sheppard's Touc...
-Enforcement of contract of sale. Part 3
43. 1 Sharswood & B. Lead. Cas. Real Prop. 371; 1 Stimson's Am. St. Law, Sec.Sec. 6500, 6504. A statute empowering the wife to release dower by joinder in her husband's conveyance has been held not to...
-Sec. 225. Testamentary provision in lieu of dower
If the husband's will contains a provision for his widow, which is intended to be in lieu of dower, and she accepts it, she cannot also claim dower. If the will expressly states that the provision the...
-Testamentary provision in lieu of dower. Part 2
61. Stokes v. Pillow, 64 Ark 1, 40 S. W. 580; In re Franke's Estate, 97 Iowa, 704, 66 N. W. 918; Bull v. Church, 5 Hill (N. Y.) 206; Church v. Bull, 2 Denio (N. Y.) 430, 43 Am. Dec. 754; Lewis Smith, ...
-Testamentary provision in lieu of dower. Part 3
Estates Arising From Marriage. - Time of election. The statute in many states provides that the widow's election shall be made within a certain time after the death of the husband, the probate of the...
-Sec. 226. Jointure or antenuptial agreement
As stated ni a previous chapter,88 after the doctrine of uses was developed by the courts of equity, it became the very general practice to convey lands to uses. The courts, however, refused to recogn...
-Sec. 227. Adultery and abandonment
By an early English statute, it was provided that, if a woman willingly leave her husband, and continue with the adulterer, she shall lose her dower unless her husband is voluntarily reconciled with h...
-Sec. 228. Effect of divorce
Since, in order to entitle one to dower at common law, she must have been the wife of the owner of the land at the time of his decease, an absolute divorce, even though For the husband's fault, has be...
-Sec. 229. Estoppel to claim dower
The widow, it has been held, may be estopped to claim dower by having made statements to intending purchasers of the land that she will make no such claim,18 but a contrary view has also been asserted...
-Sec. 230. Dower inchoate
Until the death of the husband, the wife has merely a contingent right or interest, known as dower inchoate.' She has no estate in the land even after the husband's death, until the assignment of ...
-Dower inchoate. Continued
34. Duncan v. Terre Haute, 85 Ind. 104; Baker v. Atchison, etc., R. Co., 122 Mo. 396, 30 S. W. 301: Gwynne v. Cincinnati, 3 Ohio, 24, 17 Am. Dec. 576; Arnold v. Buffalo R. & P. Ry. Co., 32 Pa. Super....
-Sec. 231. Dower consummate
Upon the husband's death, the dower right of the wife loses its contingent character, and becomes consummate, as it is called. It is not, however, yet an estate, but is merely a right in action unti...
-Sec. 232. The widow's quarantine
It was by Magna Charta provided that the widow should have the right to remain in her husband's principal mansion house for forty days after his death, within which period her dower should be assigned...
-Sec. 233. The assignment of dower
Unless it is otherwise agreed, or it is impracticable or inequitable, dower must be assigned by metes and bounds.76 And in order that such assignment be valid, it must, in the absence of agreement oth...
-The assignment of dower. Part 2
87. 2 Scribner, Dower, (2d Ed) 587; Sehnebly v. Schnebly, 26 111. 116; Compton v. Pruitt 88 Ind. 171; O'Ferrall v. Simplot, 4 Iowa, 381; Wood v. Lee, 5 T. B. Mon. (Ky.) 50; Skolfield v. Robertson, 88 ...
-The assignment of dower. Part 3
98. Smith's Heirs v. Smith, 5 Dana (Ky.) 179; Simonton v. Gray, 34 Me. 50; Leonard v. Leonard, 4 Mass. 533; Reilly v. Bates, 40 Mo. 468; Macknet v. Mack-net, 24 N. J. Eq. 449; McDaniel v, McDaniel's H...
-Sec. 234. Proceedings to compel assignment
At common law, the proceeding to obtain an assignment of dower was a writ of dower unde nihil habet, or writ of right of dower.22 In some states in this country, this, common-law proceeding is substan...
-Proceedings to compel assignment. Continued
- Limitations and laches. In some states, the statute requires a suit to establish dower rights to be brought within a certain number of years after the husband's death.42 Whether, in the absence of s...
-Sec. 235. Dower after assignment
After assignment of dower, the widow's seisin is regarded as relating back to the time of the husband's death, so that the heir, even though he entered before assignment, is not considered to have bee...
-Sec. 236. Statutes altering or abolishing dower
In many states, the common law right of dower has been abolished, the widow being given other rights in her husband's property in lieu thereof. Sometimes she is given a fee simple estate in a portion ...
-Sec. 237. General nature
The estate by curtesy is an estate to which, at common law, a husband is entitled, for the period of his life, in all the lands and tenements of which the wife is seised during coverture in fee simple...
-Sec. 238. Necessity of marriage
As in the case of dower, the marriage must be a legal one,76a and if it is absolutely null and void, as when one of the parties is an idiot, the estate does not arise.77 If, however, the marriage is v...
-Sec. 240. Birth of issue
In the absence of a statutory provision to the contrary, there must be issue of the marriage born alive,97 and such issue must be capable of inheriting the property in which curtesy is claimed.98 The ...
-Sec. 242. Character of the wife's estate
An estate by curtesy may exist when the wife has an estate of inheritance, and in no other case.12 Accordingly, it p. 146, 1 Virginia Law Rev. at p. 24. 3. 1 Sharswood & B. Lead. Cas. Real Prop. 261....
-Sec. 243. Modes of excluding curtesy-Conveyance by wife
A conveyance by the wife before marriage will defeat the estate of curtesy, since one of the essentials-seisin or title during coverture-is then wanting; but this is not so if the conveyance can be re...
-Modes of excluding curtesy-Conveyance by wife. Continued
D. C. 200, 16 Id. 141; Chapman v. Price, 83 Va. 392, 13 S. E. 879 41. Fir Anthony Mildmay's Case, 6 Coke, 41; Mullany v. Mul-lany, 4 N. J. Eq. 16, 31 Am. Dec. 238; Chapman v. Price, 83 Va. 392, 11 S....
-Sec. 244. - Curtesy initiate
As previously stated,66 the husband has, at common law, by right of marriage, an estate of freehold in his wife's land, to endure till his or her death, and he is said to be seised jointly with her. S...
-Sec. 245. Curtesy consummate
Upon the death of the wife, the husband is entitled to immediate possession of the land, without the necessity of any assignment, such as is necessary in the case of dower, owing to the fact that the ...
-Sec. 246. Statutes altering or abolishing curtesy
In a number of states, curtesy has been expressly abolished by statute,85 and occasionally the husband is given, in place of curtesy, an estate similar to the widow's dower estate.86 The statutes giv...
-Sec. 247. General character of the rights
The right given by statute in many states to enjoy land occupied as a residence free from liability for debts, known as the homestead exemption, does not arise from marriage, since an unmarried pers...
-Sec. 248. The wife's rights during coverture
In most of the states in which the homestead right is recognized, the statute provides that the husband shall not convey or incumber the homestead property except with the joinder, or, sometimes, the ...
-Sec. 249. Rights of surviving consort
As indicated in the preceding section, the homestead privilege generally continues in favor of the widow of the owner of the homestead property,5 and in some states, if the 3. Barber v. Babel, 36 Cal...
-Rights of surviving consort. Continued
13. Norton v. Norton, 94 Ala. 481, 10 So. 436; Sansom v. Harrell, 55 Ark. 572, 18 S. W. 1047; Whittle v. Samuels, 54 Ga. 548; Showers v. Robinson, 43 Mich. 502, 5 N W. 988; Abbott v. Abbott, 97 Mass. ...
-Sec. 250. Rights of children
The statute usually provides that the minor children of the marriage shall have a right of homestead in the land, to continue, in Morris v. Moulton, 34 N .H. 392; Rhea v. Meridith, 6 Lea (Term.) 605;...
-Chapter IX. Rights Of Enjoyment Incident To Ownership
I. General Rights Above and Below the Surface. Sec. 251. Rights above the surface 252. Rights below the surface. II. Earth and Minerals. Sec. 253. Individual rights of ownership. 254. Grants of m...
-Sec. 251. Rights above the surface
According to the theory of the common law, the ownership of the surface of land involves, if not the ownership, at least the control, of the space above it to an indefinite distance.1 Consequently, an...
-Sec. 252. Rights below the surface
The owner of the surface of land is prima facie the owner of the soil or may, however, be removed from their natural position in or on the ground, and, when thus severed from the land by one authorize...
-Sec. 253. Individual rights of ownership
The ownership of land prima facie includes the soil or earth, and also the minerals in or on the ground, and consequently the tenant in fee simple of the land is ordinarily the owner of all deposits o...
-Sec. 254. Grants of mining rights-Leases and licenses
An instrument by which a right is given to take minerals from land is usually referred to as a mining lease or as a license, without, however, in the ordinary case, any effort to use either expression...
-Sec. 255. Sovereign rights
By the common law, all mines of gold and silver belonged to the king, and also, it seems, all mines in which gold or silver might be found in connection with other metals.38 It was, however, enacted b...
-Sec. 256. Mineral oil and gas
Oil and natural gas from beneath the surface of the earth are usually regarded as minerals,42 but, owing to their fluid character, they are subject to rules different from those applicable to other mi...
-Sec. 257. Fructus industrials and fructus naturales
Those products of the earth which are the result of annual labor and manuring by the person in possession of the land, known sometimes as fructus industriales, and sometimes as emblements, are reg...
-Sec. 258. Succession on death of owner
Upon the death of the owner of land without having made a devise thereof, while the land, together with the fructus naturales, will pass to the heir, the fructus indus-tiales pass to the executor or a...
-Sec. 259. Sale or conveyance of land
On the sale of land, or on its conveyance, either absolutely or by way of mortgage, vegetable growths thereon ordinarily pass with the land to the vendee or grantee, this being true of annual crops, a...
-Sec. 261. Severance from the land-Actual or constructive
Any growth of the soil, even though not produced by annual labor, is personalty after its actual severance from the soil by the owner of the land, as in the case of timber cut by him. Furthermore, by ...
-Severance from the land-Actual or constructive. Continued
Logging Co. 79 Wash., 336, 140 Pac. 361. 83. Williams v. Hyde, 98 Mich. 152, 57 N. W. 98, so decides. 84. Boykin v. Rosenfield, 69 Tex. 115, 9 S. W. 318; Bank of Lansingburgh v. Crary, 1 Barb. (N. Y...
-Sec. 262. Contract of sale
A contract to sell, or speaking more exactly, to transfer, growing trees, crops, or other vegetable products, is to be distinguished from an actual transfer or conveyance, just as a contract to convey...
-Sec. 263. The doctrine of emblements
It is a general rule that if one's estate in land comes to an end at a time which he could not have previously ascertained, without his fault and without any action on his part to bring about such a r...
-The doctrine of emblements. Continued
A tenant at will, or his representative, is entitled to the crops planted by such tenant, if the tenancy comes to an end by some providential cause, as by his own death or by that of his landlord, or ...
-Sec. 264. Border trees
A tree the trunk of which is upon the division line between the lands of two persons is, prima facie at least, the property of both,44 and neither can destroy it.45 If, however, the trunk is entirely ...
-Sec. 265. Agreements for the division of crops
We have in another place considered the question of the difference between a lease, with a provision that a share of the crops shall go to the lessor, and a contract for the division of crops between ...
-Agreements for the division of crops. Continued
100 Am. Dec. 415; Messinger v. Union Warehouse Co. 39 Ore. 546, 65 Pac. 808; Jones v. Chamberlin, 5 Heisk. (Tenn.) 210 (semble); Mead v. Owen, 80 Vt. 273, 12 L. R. A. (N. S.) 655, 67 Atl. 722; Lowe v...
-IV. Fixtures and Improvements. Sec. 266. General considerations
A fixture is a thing which, though originally a movable chattel, is, by reason of its annexation to land, regarded as a part of the land, partaking of its character and belonging, in the ordinary case...
-Sec. 267. Intention of the annexor
In deciding whether an article or structure annexed to land, or annexed to another article or structure which is itself legally a part of the land, is to be regarded as part of the land, that is, as a...
-Sec. 268. Physical attachment
Not infrequently the courts have asserted the view that a thing cannot be a fixture if merely placed on the land, and not actually attached to the land, or to some structure which is itself so attache...
-Sec. 269. Character of article
A consideration on which the cases usually lay great stress, in determining the character of the article as a fixture vel non, is its character, as related to the uses to which the land has been appro...
-Sec. 270. Relationship of parties
In deciding cases in reference to whether an article is a fixture vel non, the courts invariably refer to the relation, in the particular case, between the persons interested, frequently in such terms...
-Sec. 271. Agreement as to character of thing annexed
The owner of a chattel and the owner of land may agree that the annexation of the chattel to the land shall not change the legal character of the chattel or affect its ownership, and such an agreement...
-Agreement as to character of thing annexed. Continued
There is, in effect, it seems, such a license or permission, when the holder of an easement annexes articles to the servient tenement appropriate for the purpose of exercising the easement. And conseq...
-Sec. 272. Removable fixtures - (a) Trade fixtures
The strict application of the rule that things annexed to the land become a part of the land would give to the reversioner or remainderman all articles annexed by one who is a tenant for a limited est...
-Removable fixtures - (a) Trade fixtures. Part 2
21. Merritt v. Judd 14 Cal. 59; Allen v. Kennedy, 40 Ind. 142; Stokoe v. Upton, 40 Mich. 581, 29 Am. Rep. 560; Holmes v. Tremper, 20 Johns. (X. Y.) 29 11 Am. Dec. 238; Robinscn v Harrison, 235 Pa. 613...
-Removable fixtures - (a) Trade fixtures. Part 3
Sec. 272] real Property. Rights of Enjoyment. - (d) As realty or personalty. It being conceded that trade fixtures, domestic and ornamental fixtures, and, in some jurisdictions, perhaps, agricultura...
-Removable fixtures - (a) Trade fixtures. Part 4
[Sec. 272 The right of a tenant to remove fixtures may be extended or restricted by agreement between him and the land lord, and it may likewise be affected by a local custom.44 - (f) Loss of right ...
-Removable fixtures - (a) Trade fixtures. Part 5
If the tenant surrenders his unexpired leasehold estate to the landlord, he thereby loses, it has been decided, the right to remove the fixtures.62 And a surrender by operation of law63 is as effectiv...
-Removable fixtures - (a) Trade fixtures. Part 6
26 Am. Rep. 694. 73. Ray v. Young, 160 Iowa, 613. 46 L. R. A. (N. S.) 947, 142 N. W. 393; Thomas v. J. W. G.yle & Co., 134 Ky. 330, 28 L. R. A. (N. S.) 767, 135 Am. St. Rep. 41?, 20 Ann. Cas. 766, 12...
-Sec. 274. Compensation for improvements
Since the rule that erections or additions made by one who has no rights to land arc fixtures, and therefore not removable by him, even though he made them in the belief that he was the owner of the l...
-Sec. 275. Divided ownership of building
Not only may a building, by force by an agreement to that effect, belong to a person other than the owner of the land,99 but parts of a building may be owned by different persons in fee simple, as whe...
-Sec. 276. Effect of conveyance of land
The law relating to manure is sometimes spoken of as subject to the principles which control in the case of fixtures, but it is, for the most part, the result of entirely different considerations, bas...
-Sec. 277. Rights as between landlord and tenant
On the principle of public policy before! referred to, and likewise by reason of the tenant's obligation to use the land in accordance with the dictates of good husbandry, a tenant for pears or at wil...
-Sec. 278. Manure as real or personal property
The decisions above referred to in regard to the rights of the grantee of land and of the tenant to manure made on the land cannot be regarded as decisive of the question whether manure is to be consi...
-VI. Rights of User-Waste. Sec. 279. General considerations
As elsewhere explained, restrictions upon one's mode of utilizing land in his possession exist, even apart from agreement, in 12. Yearworth v. Pierce, Aleyn, 31; Toller, Ex'rs, 150; 1 Williams, Ex'rs...
-Sec. 280. Character of the tenancy
A tenant in fee simple may make- any use whatever of the land, provided he does not violate the rights, either naturally existing or imposed by grant or contract, in favor of his neighbors,30 even tho...
-Sec. 281. Alteration in character of land
An alteration in the character of land leased, as by the conversion of meadow into arable land, or of arable land into wood, or e converso, has been usually stated to be waste, the reasons given being...
-Sec. 282. Removal of earth and minerals
A particular tenant, such as a tenant for life or years. has, in the absence of a stipulation or license allowing him so to do,40 no right to take clay, gravel, soil, and the like, unless such materia...
-Sec. 283. Destruction of trees and timber
Trees are, for the purpose of the law of waste, divided in England into timber trees and trees not timber. Some trees, such as oak, ash, and elm, seem to be invariably regarded as timber, but other ...
-Sec. 284. Waste as regards buildings
The particular tenant is ordinarily guilty of waste if he removes buildings or other structures, or parts thereof, which were annexed to the land at the time of the inception of his estate.76 It is sa...
-Sec. 285. Express restrictions on liability
In England the lease or other instrument creating an estate for life or years quite frequently provides that the tenant shall be without impeachment of waste, or uses equivalent language, and the ef...
-Sec. 286. Permissive waste
Permissive waste is waste by reason .of omission or not doing, as for want of reparation, * * * for he that suffereth a house to decay which he ought to repair, doth the waste, 10a and it is said th...
-Permissive waste. Continued
As the English statutes were not regarded as imposing liability on a tenant at will for voluntary waste,31 so a fortiori they did not make him liable for permissive waste, and he has usually been held...
-Sec. 287. Injuries by third persons
The tenant in possession has been regarded as liable for waste which is committed by a stranger, on the ground, it is said, that he, the tenant, is bound to prevent the waste, and that furthermore he ...
-Sec. 288. Accidental injuries
In the absence of pro visions to a contrary effect, a tenant is not liable for injuries caused by act of God, as when buildings or trees are thrown down by the wind,54a a house is destroyed by lightni...
-Sec. 290. Remedies for waste - (a) Action for damages
At common law, it is said, an action could be brought on account of waste against tenants in dower or by curtesy, and against guardian in chivalry, but not against lessees for life or years, this dist...
-Remedies for waste - (a) Action for damages. Part 2
77. O'Brien v. O'Br'en, 1 Amb. 107; Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572; Robertson v. Meados, 73 Ind. 43; Parker v. Raymond, 14 Mo. 535; Disher v. Disher, 45 Neb. 100, 63 N. W. 368; Fortes...
-Remedies for waste - (a) Action for damages. Part 3
93. Whitfield v. Bewit, 2 P. Wms. 240. 94. Blake v. Peters, 1 De Gex, J. & S. 345; Morris v. Morris, 3 De Gex & J. 323; Lansdowne v. Lansdowne, 1 Madd. 116. 95. See Lansdowne v. Lans-down, 1 Madd. 1...
-Sec. 291. Right to the proceeds of waste
Things wrongfully severed by the particular tenant in the course of commission of waste belong to the reversioner or remainderman,18 and the latter may presumably mainhaving an interesse termini, that...
-Sec. 292. Waste by cotenant
While, at common law, there was no right of action in favor of one tenant in common against a cotenant for waste committed by the latter, this right was given by an early statute.27 There are in some ...
-Sec. 293. Judicial determination
The questions most frequently arising in connection with the subject of the boundaries of land involve their ascertainment with reference to a description in a particular conveyance; that is, the dete...
-Sec. 294. Express agreement as to boundary
There are, in this country, a great number of decisions bearing upon the effect of an agreement by adjoining owners as to the boundary line between their lands, or of their recognition of a certain li...
-Sec. 295. Implied agreement or acquiescence
It has been frequently decided that though there is no express agreement as to the location of the boundary line, adjoining proprietors cannot question a line which they have, for a considerable numbe...
-Sec. 296. Practical location
Not infrequently reference is made to the practical location, by the parties to a conveyance, of the boundary or boundaries referred to therein.75 This expression refers to a designation of the line...
-Sec. 297. Estoppel to question boundary
The principle of estoppel in pais is sometimes applied so as to prevent one who has recognized a certain line as the boundary between his own and other land from thereafter asserting that this is not ...
-Sec. 298. The duty to fence
At common law, an owner of land is under no obligation to fence his land, in order to keep the cattle of others from straying thereon, but there is an absolute obligation upon the owner of cattle to r...
-Sec. 299. Railroad fences
The common-law rule exempting landowners from the obligation of fencing against animals, where it is in force and there is no special statute on the subject, applies to railroad companies as well as t...
-Sec. 300. Tide waters
Tide waters are those in which the tide ordinarily ebbs and flows, including the son, and also bays, rivers, and creeks, so far as they answer this description. A body or stream of water cannot be con...
-Sec. 301. Navigable non-tidal streams
In England, land under water which is non tidal in character belongs prima facie not to the crown but to the riparian owners, each owning to the middle line or thread of the stream, and this is so reg...
-Sec. 302. Non-navigable streams
In England, and also in this country, the bed of a non-navigable stream is not in the crown or state, but is prima facie in the owners of the land abutting thereon, each having title to the middle lin...
-Sec. 303. Lakes and ponds
The views taken in the various states as to the ownership of land under lakes and ponds are not in accord. The title to the bed of what are known as the Great Lakes, has always been regarded as ves...
-Sec. 304. Riparian rights of access
The owner of lands bordering on navigable waters, even though not owner of any land below the water, has a right of access to the water, of which right, by the decided weight of authority, he cannot b...
-Sec. 305. Rights of reclamation and wharfing out
In a number of states the owner of land bordering upon navigable water has the privilege of reclaiming land under water in front of his land,49 and of erecting wharfs and piers upon such submerged lan...
-Rights of reclamation and wharfing out. Continued
The right of reclamation and of wharfing out has ment by one other than the riparian owner gives the latter the same rights therein as if made by himself. Baltimore v. St. Agnes Hospital, 48 Md. 419. ...
-Sec. 306. Rights as to ice
The ownership of ice is determined by the ownership of the bed under the water upon which the ice is formed. Thus, in the case of a non-tidal stream which is also not navigable, the ice usually belong...
-Sec. 307. Lateral lines between proprietors
The Massachusetts colonial ordinance of 1647, by which the proprietor of land on tidal waters is given the shore or flats to low water mark, has been the subject of numerous decisions by way of det...
-Sec. 308. Animals
The owner of land has no right of property in animals ferae naturae, or wild animals, merely because they are upon the land.90 He may, however, acquire a qualified ownership in them-that is, an owners...
-Sec. 309. Fish
Fish at large in a stream or other body of water are ferae naturae, and the right of property in them, so far as it can exist, is in the public, or in the state for the benefit of the public.1 93. St...
-Part Three. Rights To Dispose Of Land Not Based On Ownership. Chapter X. Powers
Sec. 310. General nature. 311. Common law powers. 312. Statutory powers. 313. Powers taking effect as executory limitations. 314. Equitable powers. 315. Powers of appointment. 316. Powers of rev...
-Sec. 310. General nature
Not infrequently one has the right or ability to create an interest in land without regard to whether he has any estate in the land, or to the character of the estate which he may have therein. He is ...
-Sec. 311. Common-law powers
Common-law powers are powers which have effect at common law. The only common-law powers, properly so called, which need be mentioned, are those given by will to executors, authorizing them to sell l...
-Sec. 313. Powers taking effect as executory limitations
In discussing the effect of the Statute of Uses, reference was made to the fact that, by means thereof, legal estates could be created to spring up or shift in the future, not according to limitations...
-Sec. 314. Equitable powers
Equitable powers are of two kinds. The first kind consists of powers of appointment, similar to those of the class last described, except that they are exercisable only with reference to equitable int...
-Sec. 315. Powers of appointment
Powers taking effect, as explained above, as executory limitations, and the analogous class of powers operating upon equitable interests without affecting the legal title, both of which are known as ...
-Sec. 316. Powers of revocation
Analogous to powers of appointment, are powers of revocation, which are based on the theory that one making a conveyance of land may create an executory interest in favor of himself as well as in favo...
-Sec. 317. Discretion as to execution-Powers in trust
The exercise of a power, strictly so called, lies entirely in the discretion of the person to whom it is given, and no court, not even a court of equity, will compel its execution.31 Nor will the done...
-Sec. 318. Powers coupled with an interest
A power coupled with an interest is quite frequently referred to by the courts, generally in contradistinction to a naked or bare power, and it is important to have a clear conception of what is...
-Sec. 319. Creation of powers
A power created by will takes effect without reference to the Statute of Uses, as does any executory devise, and consequently no declaration of uses is necessary to the validity of the power.50a A pow...
-Sec. 320. Scope of the power
The question of the person or persons in favor of whom a power may be exercised, as well as that of the estate or interest which may be created thereunder, is one of the intent of the creator of the p...
-Scope of the power. Continued
74. Allder v. Jones, 98 Md. 101, 56 Atl. 487; Monzo v. Woodhouse, 185 N. Y. 295, 78 N. E. 71, 6 L. R. A. N. S. 746; Darling v. Edson, 4 Pa. Super. Ct. 498. 75. Brant v. Virginia Coal, etc., Co., 93 ...
-Sec. 321. Personal capacity of donee of power
A married woman can, even at common law, exercise a power,87 and her husband's concurrence is not necessary.88 The fact that she is, in the particular jurisdiction, incapacitated to make a will dispos...
-Sec. 322. Who may exercise the power
- (a) In case of individual donee. In so far as the gift of a 89. Driver v Thompson, 4 Taunt. 294; Willock v. Noble, L. R. 7 H. L. 580, per Cairns L. C; Osgood v. Bliss, 141 Mass. 474, 55 Am. Rep. 48...
-Who may exercise the power. Part 2
- Power given trustee. A power given to a trustee, such as a power of sale, does not, in the absence of a special provision to that effect in its creation, pass to one to whom the trustee may convey t...
-Who may exercise the power. Part 3
17. Smith v. Mclntyre, - C. C. A. -, 95 Fed. 585; Hinson v. Williamson, 74 Ala. 280; Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475; Chandler v. Delaplaine, 4 Del. Ch. 503; Harding'...
-Sec. 323. Mode of execution
The terms of the power in regard to the character of the instrument by which it is to be exercised, or in regard to the execution, attestation, or delivery of such instrument, must be strictly complie...
-Sec. 324. Showing as to intent to execute
It is well settled that the instrument executing the power need not specifically refer to the power, provided it shows In re Fowles' Will, 222 N. Y. 222, 118 N. E. 611. 52. Jones v. Southall, 32 Bea...
-Showing as to intent to execute. Continued
Clere's Case, 6 Coke l?b; Scrope's Case, 10 Coke, 143; Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479; Middlebrooks v. Ferguson, 126 Ga. 232, 55 S. E. 34; Henriott v. Cood, 153 Ky. 418, 155 S. W. ...
-Sec. 325. Conditions of execution
A power which is in terms to be exercised only upon the occurrence of 186, 23 S. W. 1162; Southern Pine Lumber Co. v. Arnold, - Tex. Civ. App. -, 139 S. W. 917. 66. In re Mills, 34 Ch. D. 186. See W...
-Sec. 326. Excessive execution
The execution of a power is said to be excessive when it transgresses the rules of law or the scope of the power.86 It may be excessive (1) as regards the objects, as where a power to appoint to chi...
-Sec. 327. Defective execution-Aider in equity
In certain cases, when an attempted appointment is bad at law because of a failure to make it in the manner required by the power, equity will aid the defective execution by compelling a transfer of t...
-Sec. 328. Illusory appointments
Under the doctrine of illusory appointments, it was formerly the rule in England that, where one had a nonexclusive power,-that is, a power of appointing among all the members of a class, as, for ...
-Sec. 329. Fraud on powers
Equity will intervene to prevent a fraud upon a power, as it is termed, this consisting of the execution of a special power by the donee thereof with an ulterior purpose on his part not within the int...
-Sec. 330. Gifts in default of execution
The nature of a gift in default of execution of the power, in default of appointment as it is usually expressed, has been previously explained.26a Frequently such a gift is made in express terms, bu...
-Sec. 331. Extinguishment of powers
A power of appointment is generally extinguished by its execution if the entire interest in the whole property is thereby appointed, and some powers, such as powers of sale, are necessarily exhausted ...
-Extinguishment of powers. Continued
44. Dunn v. Morse, 109 Me. 254, 83 Atl. 795. Ante, Sec. 317. 45. Pearce v. Gardner, 10 Hare 287; Cuff v. Hall, 1 Jur. (N. S.) 972; Kidwell v. Brummagim, 32 Cal. 436; Hale v. Hale 1:17 Mass. 168; Mars...
-Sec. 332. Appointed property as assets
Property which is subject to a general power of appointment is not, apart from statute, liable for the payment of debts of the donee, even in equity, since the person entitled in default of appointmen...
-Sec. 333. State statutory systems
In New York and in five other states which have adopted its legislation in this regard, the law of powers has been the subject of statutory codification, involving numerous changes from the law as it ...
-State statutory systems. Continued
86. Such as a power in A to appoint to all of his grandchildren who are living twenty-five years after his death. Gray, Perpetuities, Sec. 476. Reasonable time.87 It must be exercised, if it is ever ...
-Part Four. Rights As To The Use And Profits Of Another's Land. Chapter XI. Natural Rights
Sec. 335. General considerations. 336. Rights restrictive of another's user exceptional. 337. Malicious erections. 338. Rights as to air. 339. Natural water courses. (a) General considerations. ...
-Sec. 336. Rights restrictive of another's user exceptional
Apart from the protection given him by the recognition of these natural rights, the owner of land cannot complain of the use which is being made of adjoining or neighboring land, however such use may ...
-Sec. 337. Malicious erections
The question whether the fact that one's motive in making a use of his land which injures his neighbor was merely to cause such injury is in itself sufficient to make his course of action illegal and ...
-Sec. 338. Rights as to air
The owner of land has a natural right to have the air diffused over his premises in approximately its natural condition, free from pollution by smoke, dust, or vapors.16 or by disagreeable odors,17 ...
-Sec. 339. Natural watercourses
- (a) General considerations. The judicial definitions of a natural watercourse are by no means harmonious, but it may be stated, in a general way, that a natural watercourse is a natural stream, flow...
-Natural watercourses. Part 2
33a. Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160; Schwartz v. Nie, 29 Ind. App. 329, 64 N. E. 619; Holker v. Porritt, L. R. 8 Exch. 107; Baily & Co. v. Clark, Son & Morland (1902) 1 Ch. 649, per...
-Natural watercourses. Part 3
42. 3 Kent, Comm. 439; Mason v. Hill, 5 Barn. & Adol. 1; Acton v. Blundell, 12 Mees. & W. 324; Tampa Water Works v. Cline, 37 Fla. 586, 33 L. R. A. 376, 53 Am. St. Rep. 262, 20 So. 7S0; White v. East ...
-Natural watercourses. Part 4
Cavenders Creek Gold Min. Co., 118 Ga. 255, 45 S. E. 267; Southern Marble Co. v. Darnell, 94 Ga. 231, 21 S. E. 531; Plumleigh v. Dawson, 6 111. 544, 41 Am. Dec. 199; Blanchard v. Baker, 8 Me. 253, 23 ...
-Natural watercourses. Part 5
53. Canton v. Shock, 66 Ohio St. 19, 58 L. R. A. 637, 90 Am. St. Rep. 557, 63 N. E. 600; Philadelphia v. Spring Garden Com-mrs., 7 Pa. 348 (dictum); Philadelphia v. Collins, 68 Pa. 106 (dictum); Barr...
-Natural watercourses. Part 6
If the water of a natural watercourse is, either in part or wholly, diverted from its channel, and cast upon the land of another, upon which it did not naturally flow, there is an infringement of such...
-Natural watercourses. Part 7
715, is perhaps contra. 71. Young v. Bankier Distillery Co., (1893) App. Cas. 691; Hunter v. Taylor Coal Co., 16 Ky. Rep. 190; Beach v. Sterling Iron & Zinc Co., 54 N. J. Eq. 33 Atl. 286; Strobel v. ...
-Natural watercourses. Part 8
So he cannot, by an obstruction, cause the water to injure other land, not by overflowing it, but by percolation. Marsh v. Trul-linger, 6 Or. 356; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72. Unless...
-Natural watercourses. Part 9
York Cent. & EC. R. Co., 88 N. Y. 351; Howard v. Buffalo, 211 N. Y. 241, 105 N. E. 426; Missouri, K. & T. Ry. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567 (semblc); Berninger v. Sunbury etc. R. Co., 203...
-Natural watercourses. Part 10
& N. 675. A contrary view is Indicated in Stockport Water Works v. Potter, 3 Hurl. & C. 300; Dore-mus v. Patterson, 65 N. J. Eq. 711, 55 Atl. 304. 93. Editorial notes, 16 Harv. Law Rev. 145; 4 Columb...
-Natural watercourses. Part 11
93d. Smith v. Musgrave, 32 Mo. App. 241; Johnk v. Union Pac. R. Co., 99 Neb. 763, 157 N. W. 918; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344; Pacific Live Stock Co. v. Davis, 60 Ore. 258, 119 Pac. ...
-Sec. 340. Water in lakes and ponds
One whose land abuts on a lake or pond, on which the lands of others also abut, has the same rights as to the use of the water as has a riparian proprietor on a watercourse, that is, he may make a rea...
-Sec. 341. Surface water
- (a) General considerationn. Water spread upon the surface of land, or contained in depressions therein, if not flowing in a fixed channel, or not having permanent sources of supply, so as to constit...
-Surface water. Part 2
20. Walshe v. Dwight Mfg. Co., 178 Ala. 310, 59 So. 630; Anderson v. Henderson, 124 111. 164, 16 N. E. 232; Fenton, etc., R. Co. v. Adams, 221 111. 201, 112 Am. St. Rep. 171, 77 N. E. 531; Templeton v...
-Surface water. Part 3
29. Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Galbreath v. Hopkins, - Cal. -, 113 Pac. 174; Dickinson v. Worcester, 7 Allen (Mass.) 19; Yerex v. Eine-der, 86 Mich. 24, 24 Am. St. Rep. 113, 48 N....
-Surface water. Part 4
But the lower owner is not liable for obstructing the flow of surface water which is the result of an unprecedented flood, this being regarded as an act of God. Estes v. Chicago, B. & Q. R. Co., 159 I...
-Surface water. Part 5
42. Hall v. Rising, 141 Ala. 431, 37 So. 586; Shanan v. Brown, 179 Ala. 425, 43 L. R. A. N. S. 792, 60 So. 891; Levy v. Nash, 87 Ark. 41, 20 L. R. A. N. S. 155, 112 S. W. 112; Lampe v. San Francisco, ...
-Surface water. Part 6
49. Rindge v. Sargent, 64 N. H. 294, 9 Atl. 723. See the able opinion of Walker J., in Franklin v. Durgee, 71 N. H. 186, 58 L. R. A. 112, 51 Atl. 911. Sec. 341] Natural rights. 50. O'Connell v. Eas...
-Sec. 342. Underground water.- (a) Interference with percolation
In the case of water percolating through the ground below the surface in no fixed channel, or of water flowing underground in an unknown channel, the question of the right of a landowner to prevent th...
-Underground water.- (a) Interference with percolation . Continued
65. Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. Rep. 35, 64 L. R. A. 236, 70 Pac. 663, 74 Pac. 766; Meeker v. City of East Orange, 77 N. J. L. 623, 134 Am. St. Rep. 798, 25 L. R. A. (N. S.) 569, 74 A...
-Sec. 343. Water artificially accumulated
If one accumulates on his land, by artificial means, water or other fluid matter, he is bound to prevent its escape, either continuously or intermittently, on or into his neighbor's land, so as to int...
-Sec. 344. Roof water
One case of the artificial accumulation of water on one's land occurs in the case of water which falls upon the roof of a building. Such water cannot well be regarded as surface water, which is collec...
-Sec. 345. Lateral support
As a. general rule, every landowner is entitled to have his soil remain in its natural position, without being caused to tall away by reason of excavations or other improvements which may be made on n...
-Lateral support. Continued
95. Trinidad Asphalt Co. v. The natural right of support to one's land from adjacent land does not give to a landowner the right to place on the land an additional weight, such as a building, and cla...
-Sec. 346. Subjacent support
Where one person owns the surface of land, and another the subjacent land, case the title in fee simple to the two pieces of land becomes vested in one person. One cannot have a right as against one s...
-Sec. 347. Suspension of rights
The natural rights existing in favor of the owner of land, restrictive of the use of neighboring land, are necessarily suspended in 9. Humphries v. Brogden, 12 Q. B. 739; Sloss Sheffield Steel & Iron...
-Real Property. Chapter XII. Easements
I. The Nature And Classes Of Easements Sec. 348. Nature of an easement 349. Licenses. (a) General considerations. (b) No formality necessary. (c) Scope of license. (d) Revocability of license. ...
-I. The Nature And Classes Of Easements. Sec. 348. Nature of an easement
An easement involves primarily the privilege of doing a certain class of act on or to the detriment of another's land, or a right against another that he refrain from doing a certain class of act on o...
-Sec. 349. Licenses
- (a) General nature. A license in the law of land, is ordinarily a permission merely to do something on or to the detriment of the land of the giver of the license, the licensor. Occasionally it is a...
-Licenses. Part 2
26. Wood v. Leadbitter, 13 Mees. & W. 838; Mccrea v. Marsh, 12 Gray (Mass.) 211. See 14 Harv. Law Rav. 455. Meisner v. Detroit B. I. & W. Ferry Co., 154 Mich. 545, 118 N. W. 14. 27. See White v. Mayn...
-Licenses. Part 3
That the license is evidenced by an unsealed writing is a fortiori immaterial as regards the power of revocation. Lehigh & N. E. R. Co. v. Bangor & P. R. Co., 228 Pa. 350, 77 Atl. 552. 41. Wood v. Le...
-Licenses. Part 4
As an executory contract to convey an easement or as an attempt to grant an easement, invalid because oral.49 Applying the above considerations, if an oral permission to make a particular use of land ...
-Licenses. Part 5
46-47. Post, Sec. 547. 48. But in Huber v. Stark, 121 Wis. 359, 109 Am. St. Rep. 937, 102 N. W. 12, it was held that the fact that it was intended by the owner of the land that the user of his land s...
-Licenses. Part 6
Applying such a theory, it has been held that if the licensee is allowed to recover from the licensor the value of his improvements, he cannot thereafter assert that the license is irrevocable. Oster ...
-Licenses. Part 7
70. Wallis v. Harrison, 4 Mees. & W. 538; Hicks v. Swift Creek Mill Co., 133 Ala. 411, 91 Am. St. Rep. 38, 57 L. R. A. 720, 31 So. 947; Wetospsky v. New Haven Gas Light Co., 88 Conn. 1, Ann. Cas. 1916...
-Licenses. Part 8
Portsmouth etc. R. Co., 51 N. H. 483; Freeman v. Hadley, 32 N. J. L. 225; Great Falls Waterworks Co. v. Great Northern Rwy. Co., 21 Mont. 487, 54 Pac. 963; Pratt v. Ogden, 34 N. Y. 20; Pursell v....
-Sec. 350. Easements in gross and appurtenant
An easement ordinarily exists for the benefit of the owner of some particular land, it belonging to him as an incident of his ownership of the land. In other words, there is not only a servient tene...
-Easements in gross and appurtenant. Part 2
98. Washburn, Basements, (4th Ed.) 257; Moore v. Crose, 43 lixl. 30; Whaley v. Stevens, 27 S. Car, 549, 1 S. E. 145; Fisher v. Fair, 34 S.car. 203, 14 L.r. A. 333, 13 S. 10. 470. A privilege in gross...
-Easements in gross and appurtenant. Part 3
W. 415; Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339; Spaulding v. Abbott, 55 N. H. 423; Voorbees v. Burchard, 55 N. Y. 58; Shields v. Titus, 46 Ohio St. 528, 22 N. E. 717; Jackson v. Trullinger, 9 Or...
-Easements in gross and appurtenant. Part 4
18a. Estabrooks v. Estabrooks, Til Vt. 515, 101 Atl. 584. 19. Mcmahan v. Williams. 79 Ala. 288; Gardner v. San Gabriel Valley Bank. 7 Cal. App. 106, 93 Pac. 900: Blanchard v. Maxson. S4 Conn. 489, 80...
-Sec. 351. Light and air
As before stated, the owner of land has no natural right to light or air, and cannot complain that either has been cut off by the erection of buildings on adjoining land.23 An owner of land may, how...
-Sec. 352. Waters and watercourses
The mutual rights of adjoining or neighboring owners in regard to water have been previously considered.26a These rights may, however, be suspended or modified in favor of the owner of one piece of la...
-Sec. 353. Artificial water courses, and drains
One may, for the purpose of procuring water from a stream or other source of supply, have the privilege of having water flow to his land over intervening land belonging to another, in an aqueduct or o...
-Artificial water courses, and drains. Continued
- Grants of water power. Though a riparian owner on a natural water course has, by the weight of authority, no power to confer upon another the privilege of appropriating water from the stream, to be ...
-Sec. 354. Support of land
As before explained, the owner of land has a natural right to support for his land from neighboring land, as has the owner of the surface of land from subjacent soil or minerals.50 Such a natural righ...
-Sec. 355. Support of buildings
The owner of land may acquire from the owner of adjoining land an easement consisting of a right to support for buildings on his land from such adjoining land,54 or from adjoining-buildings,55 neither...
-Sec. 356. Party walls
A party wall'; is a division wall between two buildings belonging to different persons, in which each of such persons has certain rights of use or ownership, or both. The term, as stated in a modern ...
-Sec. 357. Partition fences
There is generally, at common law, no obligation upon a landowner to maintain a partition fence between his land and the land adjoining.68 But there may be an easement, created by grant or prescriptio...
-Sec. 358. Rights of way
A right of way is primarily a privilege to pass over another's land. Such a right never exists as a natural right, but must always be created by a grant or its equivalent. A right of way may be either...
-Sec. 359. Pews and burial rights
The character of the rights enjoyed by the holder of a church pew has been the subject of numerous decisions in this country, which are, however, not entirely harmonious in character, and are frequent...
-Sec. 360. Miscellaneous easements
In addition to easements of the classes above referred to, numerous 100 Pa. 84; Dickens v. Cave Hill Cemetery Co., 93 Ky. 385, 20 S. W. 282. That interments have been actually made has been regarded ...
-II. The Creation Of Easements. Sec. 361. Express grant
The various classes of vesti-tive facts by means of which an easement can be created may be enumerated as follows: (1) Express grant; Have a right of way over his, A's land, may be regarded as in eff...
-The Creation Of Easements. Sec. 361. Express grant. Part 2
32. See Stovall v. Cogging Granite Co., 116 Ga. 376, 42 S. E. 723; Goodwillie Co. v. Commonwealth Electric Co., 241 111. 42, 89 N. E. 272; Hagerty v. Lee, 54 X. J. L. 580, 20 L. R. A. 631, 25 Atl. 319...
-The Creation Of Easements. Sec. 361. Express grant. Part 3
It appears somewhat singular that no question has ever been judicially suggested as to whether a party wall agreement of the character referred to is not invalid under the Rule against Perpetuities. I...
-Sec. 362. Express reservation or exception
By the law of England, an exception in a conveyance merely withdraws from the operation of the conveyance a part of the thing conveyed as a whole, and a reservation merely provides for the renditi...
-Express reservation or exception. Part 2
The common law rule that the reservation of rent upon a lease by one having a fee simple estate, without the mention of heirs, gives the lessor an interest in the rent which passes upon his death to h...
-Express reservation or exception. Part 3
- (b) Of easement corresponding to pre-existent quasi easement. One cannot have an easement over one's own land, but one may make use of one part of his land for the benefit of another part, just as, ...
-Express reservation or exception. Part 4
In Nicholas v. Chamberlain. Cro. Jac. 121, there is a dictum by Popham, C. J., that no such easement to have the water pass to one's land is created if the pipes were laid by a lessee of the grantor o...
-Express reservation or exception. Part 5
98a. Doyle v. Lord, 64 N. Y. 432, 21 Am. Rep. 629. The opinion is apparently to the effect that if appurtenances had not been mentioned, no easement would have passed, but it also distinguishes the ...
-Express reservation or exception. Part 6
Duffus, 141 Iowa, 466, 119 N W. 983; Keokuk Electric Ry. & Power Co. v. Weisman, 146 Iowa, 679. 126 N. W. 60; Hankins v. Hen-hendricks, 247 111. 517, 93 N. E. 428; Scott v. Moore, 98 Va. 668. 71 Am. S...
-Express reservation or exception. Part 7
12. Worthington v. Gimson, 2 El. & El. 618; Brett v. Clowser, 5 C. P. Div. 376; Oliver v. Hook, 47 Md. 301; Bentley v. Mills, 174 Mass. 469, 54 N. E. 885 (semble); Morgan v. Meuth, 60 Mich. 238, 27 X....
-Express reservation or exception. Part 8
22. Stevens v. Orr, 69 Me. 323. It is impossible to deduce from the cases any general rule by which to determine the existence of this necessity, so called, and such a rule is, perhaps, in the natu...
-Express reservation or exception. Part 9
179. Compare Whyte v. Builders' League of New York, 164 N. Y. 429, 58 N. E. 517. As in the case of conveyances made by several cotenants for purposes of partition. O'daniel v. Baxter, 112 Ky. 334, 65 ...
-Express reservation or exception. Part 10
41. Worthington v. Gimson, 2 Ell. & El. 618; Baring v. Abingdon (1892), 2 Ch. 374, 389; May v Smith, 3 Mackey (D. C.) 55; Kentucky Distilleries & Warehouse Co. v. Warwick Co., 166 Ky. 651, 179 S. W. 6...
-Express reservation or exception. Part 11
47. Cherry v. Brizzolara. 89 Ark. 309, 21 D. R. A. (N. S.) 508, 116 S. W. 668; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. He . 688; Mcsweeney v. Comm. 185 Mass. 371, 70 X. E, 429; Brown v. Fuller,...
-Express reservation or exception. Part 12
Land Devel. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711, 21 S. E. 1037. And if he sells and conveys land adjoining his pond for an ice business he in effect grants a privilege to demand that the po...
-Express reservation or exception. Part 13
Since a reservation as well as a grant of a right of way may thus be implied on the ground of necessity, it is immaterial, for the purpose of establishing a way on this ground, whether the asserted do...
-Express reservation or exception. Part 14
67. Herrin v. Siebern, 46 Mont. 226, 127 Pac. 323, where it was held that on a grant by the United States of odd numbered sections of land, there was Implied reservation of a way of necessity in favor...
-Express reservation or exception. Part 15
- Character of conveyance. A way of necessity may arise rpon a conveyance of land although at the same time the grantor conveys away the balance of his land to another,81 and so it may arise up...
-Express reservation or exception. Part 16
95. Smith v. Griffin, 14 Colo. 429, 23 Pac. 905; Watson v. French, 112 Me. 371, L. R. A. 1915C, 355, 92 Atl. 290; Pettin-gill v. Porter, 8 Allen (Mass.) 1, 85 Am. Dec. 671; Foeffees of Grammar School...
-Sec. 364. Prescription
An easement may be acquired by the adverse user of another's land for a certain period, usually the same as that required to give title to land itself by disseisin or adverse possession. The acquisiti...
-Sec. 365. Acquisition under statute
An easement may, by force of a particular statute, be acquired in the land of another for a public use, by proceedings under the power of eminent domain, and payment of adequate compensation. The most...
-Sec. 366. Estoppel
- (a) By reference to non existent way. If one, in conveying land, describes it as bounded on a street (or other highway) which is in fact nonexistent, he is, as against his grantee, it is said, estop...
-Estoppel. Part 2
29. Pitts v. Baltimore, 73 Md. 326, 21 Atl. 52; Bushman v. Gibson, 15 Neb. 676, 20 N. W. 106, 289; Hopkinson v. Mcknight, 31 N. J. Law 422; King v. New York, 102 N. Y. 171, 6 N. E. 395; Re Brook Ave.,...
-Estoppel. Part 3
38. That the grantor had previously told the grantee that he did not intend to give him such an easement was regarded as immaterial in Kenyon v. Hookway, 17 N. Y. Misc. 452, 41 N. Y. Supp. 230. A cont...
-Estoppel. Part 4
43. Post, Sec. 482. 44. Highland Realty Co. v. Avondale Land Co., 174 Ala. 325, 56 So. 716; Harrison v. Augusta, Factory, 73 Ga. 447; Logansport v. Dunn, 8 Ind. 38; Schneider v. Jacob, 86 Ky. 101. 5 ...
-Estoppel. Part 5
49. Reis v. City of New York, 188 N. Y. 58, 80 N. E. 573; Haw-ley v. Baltimore, 33 Md. 270. 50. Molitor v. Sheldon, 37 Kan. 246, 15 Pac. 231; White v. Tidewater Oil Co., 50 N. J. Eq. 1, 25 All. 199; ...
-III. Rights Of User. Sec. 367. Easements created by grant
The mode in which an easement may be exercised, that is, the character and extent of the rights and privileges involved therein, is, in the case of an easement created by grant, determined by construc...
-Rights Of User. Sec. 367. Easements created by grant. Part 2
So when one having an easement of light availed himself of such easement by maintaining windows in a wall for many years, this was regarded as fixing the character and extent of the easement. Kesseler...
-Rights Of User. Sec. 367. Easements created by grant. Part 3
76. Perry v. Snow, 165 Mass. S3, 42 N. E. 117. 77. Wells v. Tolman, 156 N. Y. 636, 51 X. E. 392. 78. Hollins v. Verney, 13 Q. B. D. 304. 79. Collins v. Slade, 23 Weekly Rep. 199. 80. Wells v. Tolm...
-Rights Of User. Sec. 367. Easements created by grant. Part 4
126 Mass. 445; Powers v. Harlow, 53 Mich. 507, 51 Am. Rep. 154; Herrin v. Siebern, 46 Mont. 226, 127 Pac. 323; Holmes v. Seely, 19 Wend. (N. Y.) 507; Capers v. Wilson, 3 Mccord, (S. C.) 170; Mcmilin ...
-Rights Of User. Sec. 367. Easements created by grant. Part 5
But a grant of a right of way over an existing road does not necessarily involve a right of way as to the whole width of the road, so as to preclude the erection of an obstruction on the road not inte...
-Rights Of User. Sec. 367. Easements created by grant. Part 6
It has been decided in one case that when a party wall is erected one-half on each of the two adjoining properties, one proprietor can extend his beams into the wall onlv so far as the limits of his o...
-Sec. 368. Easements created by prescription
In the case of prescriptive easements, the mode and extent of user of the servient tenement permissible are determined, generally speaking, by the mode and extent 32. Grimley v. Davidson, 133 111. 11...
-Sec. 369. Effect of change in dominant tenement
The fact that, after the making of a grant of an easement, there is a change in the mode in which the dominant tenement is utilized, so that as a result thereof the easement is more constantly exercis...
-Sec. 370. Alterations and repairs
The owner of the easement may enter on the servient tenement and make such changes therein as are necessary for the proper exercise of the easement.47 Thus, one having a right of way may prepare the l...
-Sec. 371. Interference with user
Any act which in terferes with the proper exercise of the easement, whether done by the owner of the servient tenement, or by a third person, is a disturbance or obstruction of the easement, for w...
-Interference with user. Part 2
71. Green v. Goff, 153 111. 534, 39 N. E. 975; Phillips v. Dressier, 122 Ind. 414, 17 Am. St. Rep. 575, 24 N. E. 226; Boyd v. Bloom, 152 Ind. 152, 52 N. E. 751 (although use of way to be free and uni...
-Interference with user. Part 3
If the owner of the servient tenement has the right to have a gate across the way, the owner of the easement is under an obligation to shut the gate when he makes use of the way,79 and a failure to do...
-Interference with user. Part 4
90. Jackson v. Rounseville, 5 Mete. (Mass.) 127; O'hear v. De Goesbriand, 33 Vt. 593, 80 Am. Dec. 653; Howe v. Stevens, 47 Vt. 262; Shaw v. Beveridge, 3 Hill (N. Y.) 26, 38 Am. Dec. 616; First Baptist...
-IV. Extinction Of Easements. Sec. 372. Cessation of purpose of easement
It has been said that when an easement is created for a particular purpose, it comes to an end upon a cessation of that purpose,9 which means, apparently, that an easement which is created to endure o...
-Extinction Of Easements. Sec. 372. Cessation of purpose of easement. Continued
That an easement of a right of way, created by a grant thereof in express terms, was at the time of the grant necessary for the purpose of access to the dominant tenement, has not been regarded as a r...
-Sec. 373. Excessive user of land
The fact that the owner of the easement makes a use of the servient tenement not justified by the character or extent of the easement does not involve the extinguishment or suspension of the easement,...
-Sec. 374. Unity of possession or title
An easement is ordinarily extinguished if one person acquires an estate in fee simple in possession in both the dominant and servient tenements.32 By reason of the perpetual right of possession of the...
-Sec. 375. Application of land to public use
The question whether the establishment of a highway has the effect of extinguishing a pre-existent private right of way along the same line becomes of importance in case the highway is subsequently di...
-Sec. 376. Express release
An easement may be extinguished by an express release thereof made by the owner of the dominant tenement in favor of the owner of the servient tenement,57 and such an express re51. Post, Sec. 565. 52...
-Sec. 377. Abandonment
There are many cases to the effect that an easement is extinguished by abandonment thereof, by which is meant that a nonuser thereof, together with other circumstances, may, as showing an intention ...
-Sec. 378. Executed license
It has been decided that if one who has an easement in another's land gives a license to the owner of the servient tenement to do something thereon, the effect of which is to obstruct the exercise of ...
-Sec. 379. Adverse user of land
An easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession,86 a subje...
-Sec. 380. In favor of innocent purchaser
An ease ment is, in effect, as a general rule, extinguished as to a purchaser for value of the servient tenement, if E. 571; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Day v. Walden, 46 Mich....
-Chapter XIII. Profit's A Prendre
Sec. 381. General considerations. 382. Rights in gross and appurtenant. 383. Rights of common. 384. Rights of pasture. 385. Mine...
-Sec. 382. Rights in gross and appurtenant
Rights to take profits from another's land may exist in gross, - that is, they may be held by one independently of his ownership of other land, the rule in this respect differing in England from that ...
-Sec. 384. Rights of pasture
The most important profit a prendre, historically considered, is that of pasturing cattle on another's land, usually referred to as common of pasture. Under the feudal system, the ney, 145 Iowa, 638...
-Sec. 385. Mineral rights
A person may have a right to take minerals from another's land in the nature of a profit a prendre.34 Such right to take minerals from another's land must be carefully distinguished from an estate in ...
-Sec. 386. The creation of rights
A profit a prendre may, like an easement, be acquired by either grant or prescription. Since the grant of such a right involves a transfer of an interest in land, it must be created by writing, and a ...
-Sec. 387. Apportionment and extinction
A profit a prendre in gross cannot be assigned in portions to different persons, so that each of the assignees may exercise it separately, but all the assignees must exercise it in common; this being ...
-Chapter XIV. Covenants Running With The Land
Sec. 388. General considerations. 389. The running of benefits. 390. The runnings of burdens. 391. Privity of estate. 392. The n...
-Sec. 389. The running of benefits
That the right to sue upon a covenant relating- to land may pass to a subsequent owner of the land, claiming under the covenantee, by reason merely of the conveyance of the land, is generally conceded...
-Sec. 390. The running of burdens
In England it is apparently the law that the burden of a covenant by the owner of land in fee simple, made with one other than his lessee, will not run so as to be enforceable against a transferee of ...
-Sec. 391. Privity of estate
In order that the burden of a covenant run with the land, there must be, it is generally stated, a privity of estate between the covenantor and covenantee.17 This expression, as used 14a. Post, Sec...
-Sec. 392. The nature of the covenant
We have, in connection with the discussion of covenants in leases which run with the land,'' referred to the difficulty, if not impossibility, of framing a rule for the determination of whether a cov...
-Sec. 393. Party wall agreements
Whether the stipulation, in a party wall agreement,52 that one of the two adjoining owners, parties thereto, upon using a wall built by the other upon the division line, shall pay to the latter part o...
-Party wall agreements. Part 2
58. Gibson v. Holden, 115 111. 199, 56 Am. Rep. 133, 3 N. E. 272; Mcchesney v. Davis, 86 111. App. 380; Bloch v. Isham, 28 Ind. 37. See Mickel v. York, 175 111. 62, 51 N. E. 848; Tomblin v. Fish, 18 ...
-Party wall agreements. Part 3
In New York it is held that the covenant to pay part of the cost runs with the land, if the agreement is general in terms, contemplating the possible construction of the wall by either party in the fu...
-Chapter XV. Restrictions Enforceable In Equity. Sec. 394. General considerations
Even in jurisdictions where, as in England, the burden of a covenant does not run with the land, an agreement as to the use of land may, under certain circumstances, affect a subsequent purchaser of t...
-Sec. 395. Character of agreement
In England, an agreement will thus be enforced in equity against a subsequent purchaser or occupant only when it is restrictive of the use of the land, and not when it calls for the performance of som...
-Character of agreement. Continued
18. Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Burr v. Lamaster, 30 Neb. 688, 9 L. R. A. 637, 27 Am. St. Rep. 428, 46 N. W. 1015. See ante, Sec. 393, notes 82-85. 19. Post, Sec. 661. 20. See ar...
-Sec. 396. Theory of enforcement
While the right to enforce in equity an agreement or covenant of a restrictive character as against a subsequent purchaser with notice thereof is generally recognized, the judicial expressions as to t...
-Sec. 397. Persons subject to restriction
So far as the agreement which is sought to be enforced against a subsequent holder of the land concerns, as is almost invariably the case, the use to be made of the land, it is a question of primary i...
-Sec. 398. Notice
As above stated, a restrictive agreement is enforced in equity against a subsequent purchaser only when he takes with notice thereof.52 Such notice may be either actual or constructive,53 and the purc...
-Sec. 399. Persons entitled to enforce restriction
The person with whom the agreement was made, owning land in the neighborhood which might be benefitted by reason of the restriction, may no doubt proceed in equity for its enforcement. If on the other...
-Sec. 400. Existence of general plan
The question of who may enforce a restrictive agreement as to the use of land has arisen most frequently in connection with agreements entered into in furtherance of some general plan or scheme of imp...
-Existence of general plan. Continued
81. Ante, Sec. 399. 82. Summers v. Beeler, 90 Md. 474, 45 Atl. 19, 48 L. R. A. 54, 78 Am. St. Rep. 446; Mulligan v. Jordan, 50 N. J. Eq. 363, 24 Atl. 543; Helmsley v. Marlboro Hotel Co.. 62 N. J. Eq....
-Sec. 401. Defenses to enforcement
The right to enforce a restrictive agreement may be lost by laches or acquiescence,3 especially when this results in the making of expenditures by defendant.4 And if the promisee or his successor in t...
-Defenses to enforcement. Continued
11. German v. Chapman, 7 Ch. Div. 271; Knight v. Simmonds (1896), 2 Ch. 295. See note in 17 Harv. Law Rev. at p. 138 criticizing Ocean City Ass'n v. Chalfant, 65 N. J. Eq. 156, 1 Ann. Cas. 601, 55 Atl...
-Chapter XVI. Rent
Sec. 402. The nature of rent. 403, What may be reserved as rent. 404. Classes of rents. 405. Payments which are not rent. 406. T...
-Sec. 402. The nature of rent
Rent may be denned, in a general way, as a tribute or return of a certain amount, which is regarded as issuing out of the land, as part of its actual or possible profits, and is payable by one having ...
-Sec. 403. What may be reserved as rent
It is said by Coke that rent is reserved out of the profits of the land,2 and by Blackstone that rent is a profit issuing 2. Co. Litt. 141b. The statement that rent is a profit, or a part of the pro...
-Sec. 404. Classes of rents
The classification of rents at common law was based primarily upon the distinction between a rent which was reserved upon the conveyance or lease of land, as a compensation to the 9. Baker v. Adams, ...
-Sec. 405. Payments which are not properly rent
Rent can, by the common law authorities, be reserved only out of land or things constituting in law a part of the land, to which the landlord may have recourse to distrain, and cannot be reserved out ...
-Sec. 406. The reservation of rent
In technical language, the rent which is provided for by the lease is reserved, as distinguished from a part of the land, which may be excepted.47 No particular language is necessary, it being suf...
-Sec. 407. Transfer of rights and liabilities
Upon the conveyance of a reversion to which rent is incident, 46. Garner v. Hannah, 13 N. Y. Super, Ct. (6 Duer) 262, per Slosson, J. 47. Co. Litt. 47a; Doe d. Douglas v. Lock, 2 Ad. & El. 705, 743....
-Sec. 408. Death of person entitled
A rent charge granted by the owner of land is real or personal property, according as the grantee is given a freehold estate therein, or an estate less than freehold.70 A rent 3 Denia (N. Y.) 135, 45...
-Sec. 409. Time at which rent is due
A lease of land ordinarily states either the periods with reference to which the installments of rent are to be computed, as by providing for a weekly, monthly, quarterly' or annual rent, or it...
-Sec. 410. Apportionment as to time
At common law, rent is not regarded as accruing from day to day, like interest, but it is only upon the day fixed for payment that any part of it becomes due.89 The result of this principle is that, o...
-Sec. 411. Amount of the rent
The amount of the rent to be paid must be certain or capable of reduction to a certainty,99 but it is sufficient that the amount can be ascertained before the time for payment.1 As an example of rent ...
-Sec. 412. Apportionment as to amount
Rent may be apportioned as regards the amount thereof, that is, a person may become entitled to, or liable for, a portion only of the rent originally reserved.12 Either one of three different cases of...
-Sec. 413. Extinction or suspension of rent - By release
The right to rent ceases upon the making of a release of the rent by the owner thereof in favor of the owner of the land.38 If the release is in terms of a portion only of the rent, the balance remain...
-Extinction or suspension of rent - By release. Part 2
- Exclusion by stranger without right. There are several cases to the effect that the lessee's inability to obtain possession of the premises owing to the presence of a third person wrongfully in poss...
-Extinction or suspension of rent - By release. Part 3
- Forfeiture of leasehold. Upon the assertion of a forfeiture by the landlord for breach of condition,70 while he is entitled to rent which has already become referred to seems unfortunate The lower c...
-Extinction or suspension of rent - By release. Part 4
74. Grommes v. St. Paul Trust Co., 147 111. 634, 37 Am. St. Rep. 248, 35 N. E. 820. But in Pusey v. Sipps, 56 Pa. Super. Ct. 121, such a provision appears to be regarded as nugatory. 75. Internationa...
-Extinction or suspension of rent - By release. Part 5
25 Kan. 674, 37 Am. Rep. 277; Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 36 L. R. A. 424, 61 Am. St. Rep 554, 69 N. W. 785; Coogan v. Parker, 2 S. C. 255, 16 Am. Rep. 659. The question of the...
-Extinction or suspension of rent - By release. Part 6
98. The Richmond v. Cake, 1 App. Dist. Col. 447: Hall v. Joseph Middleby, 197 Mass. 485, 83 N. E. 1114; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117 (semble). See Hyman v. Jockey Club etc. Co., 9 Col...
-Extinction or suspension of rent - By release. Part 7
1 Tiffany, Landlord & Ten., Sec. 182n(2). 13. Leonard v. Armstrong, 73 Mich. 577, 41 N. W. 695; Petz v. Voight Brewery Co., 116 Mich. 418, 72 Am. St. Rep. 531, 74 N. W. 651. 14. Tallman v. Murphy, 1...
-Sec. 414. Actions for rent
When the person to whom rent was payable had a freehold interest in the rent, as no defense to the claim for rent. Barnett v. Clark, 225 Mass. 185, 114 N. E. 317. 17(1. Heart v. East Tennessee Brewin...
-Actions for rent. Part 2
The profits due by the land, and, consequently, mere privity of estate, as distinct from privity of contract, is sufficient to sustain the action. Accordingly, a transferee of the land, or of the part...
-Actions for rent. Part 3
1 Ckitty, Pleading (7th Ed.) 283. 39. Barker v. Darner, Garth. 182; Stevenson v. Lambard, 2 East, 575, 2 Gray's Case. 679; Thursby v. Plant, 1 Saund. 237; Bowdre v. Hampton, 6 Rich. Law (S. C.) 208....
-Sec. 415. Distress for rent
As before stated, the remedy by distress existed at common law in the case of a rent service, unless the rent and the seignory or reversion became separated, and also in the case of a rent charge.55 I...
-Distress for rent. Continued
- Chattels subject to distress. All chattels on the demised premises are, generally speaking, liable to be distrained upon, and the fact that they belong to a person other than a party to the lease is...
-Sec. 416. Lien for rent
In quite a number of states there are statutes subjecting chattels or crops upon the demised premises to a lien in favor of the landlord for rent. Such a statutory lien on crops is not ordinarily rest...
-Chapter XVII. Public Rights. Sec. 417. Highways
We have before referred to rights as to the use of the land of an individual for a public or quasi public purpose, such as a right of way for a railroad, for a drain, or for irrigation purposes.1 Thes...
-Public Rights. Sec. 417. Highways. Part 2
10. Goodtitle v. Alker, 1 Burrow, 133; Perry v. New Orleans, M. & C. R. Co., 55 Ala. 413, 28 Am. Rep. 740; Postal Telegraph Cable Co. v. Eaton, 170 111. 513, 39 L. R. A. 722, 62 Am. St. Rep. 390, 49 N...
-Public Rights. Sec. 417. Highways. Part 3
17. Birmingham Traction Co. v. Birmingham Ry. & Electric Co., 119 Ala. 137, 43 L. R. A. 233, 24 So. 502; Finch v. Riverside & A. Ry. Co., 87 Cal. 597, 25 Pac. 765; Elliott v. Fair Haven & W. R. Co., 3...
-Public Rights. Sec. 417. Highways. Part 4
The text books usually uphold this view,28 which has gained strength with the development of the modern doctrine, referred to in the next paragraph, that the abutting owner is, as such, entitled to co...
-Public Rights. Sec. 417. Highways. Part 5
34. 1 Lewis, Eminent Domain, Sec.Sec. 158-104; Randolph, Eminent Domain, Sec.Sec. 402, 403; Chicago, B. & Q. R, Co. v. Wvst Chicago St. R. Co., 156 111. 255, 29 L. R, A. 4S5, 40 N. E. 1008; Louisville...
-Public Rights. Sec. 417. Highways. Part 6
Some courts hold that the public rights to use land for a highway may be lost by adverse possession on the part of an individual, they taking the view that the maxim Nullum tempus occurrit regi is n...
-Sec. 418. Parks, squares, and commons
In connection with the subject of highways, which they resemble as involving rights of user in the individual members of the public, it seems proper to refer to parks, public squares, and commons, tho...
-Sec. 419. Customary rights
In England, persons of a certain locality or of a certain class may have, by immemorial custom, a right to make use of land belonging to an individual. Thus, there may be a custom for the inhabitants ...
-Sec. 420. Rights of fishing
While the individual members of the public have rights of fishing in waters, the soil below which is the property of the state,84 except in those cases in which an exclusive right to fish there has be...
-Sec. 421. Rights of navigation
Every member of the public has the right of navigation in waters capable of such use, without reference to whether the land beneath the water belongs to the public or to individual owners. The rights ...
-Part Five. The Transfer Of Rights In Land. Chapter XVIII. Transfer By The Government
Sec. 422. The nature of the government title. 423. Grants by the United States. 424. Grants by the states. 425. Spanish and Mexican grants. ...
-Sec. 423. Grants by the United States
The territory ceded to the confederation by individual states, and that acquired by the present government from foreign powers, was, for the most part, free from any claims of ownership by individuals...
-Sec. 424. Grants by the states
Of the lauds within the original thirteen colonies, the larger part had, at the time of the American Revolution, been granted to individuals or to associations, to hold in private ownership, and their...
-Sec. 425. Spanish and Mexican Grants
Within the territory ceded to the United States by France, Spain, and Mexico, there existed, at the time of the cession, private rights based upon grants previously made by the nation having dominion ...
-Sec. 426. Patents
A patent is a document issued by the government to one to whom it has. transferred or agreed to transfer land, in order to vest in the transferee the complete legal title, or to furnish evidence of th...
-Chapter XIX. Voluntary Transfer Inter Vivos
I. Classes Of Conveyances Sec. 427. Conveyances at common law. 428. Conveyances operating under the Statute of Uses. 429. Conveyances employed in the Unite...
-I. Classes Of Conveyances
The transfer of land by livery of seisin, which has already been briefly described,1 was ordinarily known as a feoffment, and the terms were, it seems, used interchangeably.2 The person making the...
-Classes Of Conveyances. Continued
- Release. A conveyance by release is a conveyance of an estate or interest in land to one who has possession of the land or a vested estate therein. It 11. Co. Litt. 172a; Sheppard's Touchstone, 229...
-Sec. 428. Conveyances operating under the Statute of Uses
The Statute of Uses, as has been previously explained, gave rise to two entirely new methods of transferring legal estates in land, to-wit, the conveyance by bargain and sale, and that by covenant ...
-Sec. 429. Conveyances employed in the United States
In most of the states of this country there are statutory provisions authorizing the transfer of land by simple forms of conveyance,58 which, in their operation, much resemble the common-law grant, ...
-Sec. 430. Quitclaim deeds
There is, in this country, a well-recognized class of conveyances, known as quitv. Bronston's Heirs, 141 Ky. 639, 133 S. W. 584. 61. Corwin v. Corwin, 6 N. Y. 342, 57 Am. Dec. 453; Wood v. Chapin, 1...
-Sec. 431. Surrender
That character of conveyance known as surrender was fully recognized at common law and might accordingly have been properly discussed in the previous section dealing with conveyances at common law. ...
-Surrender. Part 2
81. Post, Sec. 465. 82. Farmer v. Rogers, 2 Wils. 26; Shepard v. Spaulding, 4 of the premises by the tenant to the landlord has been regarded as sufficient as a surrender,83 as has what was in terms ...
-Surrender. Part 3
94. Bonetti v. Treat. 91 Cal. 233, 13 L- R. A. 418. 27 Pac. 612; Triest & Co. v. Goldstone, 173 Cat 240, 159 Pac. 715; Cuesta v. Goldsmith, 1 Ga. App. 48, 57 S. E. 983; Grommes v. St. Paul Trust Co., ...
-Surrender. Part 4
4. Phene v. Popplewell, 12 C. B. N. S. 334; Brewer v. National Union Bldg. Ass'n 166 111. 221, 46 N. E. 752; Hesseltine v. Seavey, 16 Me. 212; Buckingham Apartment House Co. v. Dafoe, 78 Minn. 268, 80...
-Sec. 432. Conveyances failing to take effect in the manner intended
A conveyance which is intended to take effect as a certain class of conveyance, if not valid for that purpose, will, if possible, be construed as a conveyance of another character, in order that it ma...
-II. Form And Essentials Of A Conveyance. Sec. 433. General considerations
All conveyances of freehold or leasehold interests in lands, other than certain leases for three years or less, must, by the Statute of Frauds, be in writing.22 In most, if not all, the states of this...
-Sec. 434. Designation of the parties
A conveyance should designate with certainty the name of the grantor, and this should regularly be done at the commencement. It is sufficient, however, if the name as given is sufficient to enable the...
-Designation of the parties. Part 2
47. Lewis v. Mcgee 1 H. K. Marsh. (Ky.) 199; Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543; Morgan v. Hazlehurst Lodge. 53 Miss. 665; Neal v. Nelson, 117 N. C. 393, 53 Am. St. Rep. 590. It is immate...
-Designation of the parties. Part 3
58. Ante, Sec.Sec. 156-158. 59. Ante, Sec. 160. 60. Post, Sec. 463. 61. Post, Sec. 463, note 18. Sonal incapacity, such impossibility might well have the same effect when arising from the uncertai...
-Designation of the parties. Part 4
When the instrument must be executed by the grantor, and cannot be executed through an agent, as in some states is the case in a conveyance by a married woman, blanks in the conveyance cannot be fille...
-Sec. 435. Words of conveyance
Though particular words are appropriate to particular classes of conveyances, it is not necessary that these particular words be used, and the conveyance is valid, provided it contains any words signi...
-Sec. 436. Exceptions and reservations
The purpose and effect of an exception in a conveyance is to except or exclude from the operation of the conveyance some part of the thing or things covered by the general words of description therein...
-Exceptions and reservations. Part 2
Clafiin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Bridger v. Pierson, 45 N. Y. 601. See ante, Sec. 362. 3. Post, this section, note 8. 4. Ante, Sec. 362. 5. Winthrop v. F...
-Exceptions and reservations. Part 3
14. Washburn, Easements 34; Jackson v. Snodgrass, 140 Ala. 365, 37 So. 246; Illinois Central R. Co., v. Indiana Cent. R. Co. 85 111. 211; Stone v. Stone, 141 Iowa 438, 20 L. R. A. (N. S.) 221, 18 Ann....
-Exceptions and reservations. Part 4
21a. Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; Edwards v. Brusha, 18 Okla. 234, 90 Pac. 727; Cincinnati v. Newell, 7 Ohio St. 37; Bolio v. Marvin, 130 Mich. 82, 89 N. W. 563; Elliot v. Small, 35 M...
-Exceptions and reservations. Part 5
It has been decided in England that an exception, thus to be subsequently ascertained by election, involved an attempt to create an estate in futuro, and might consequently be invalid, under the Rule ...
-Sec. 437. Rules of construction
The courts, in connection with the construction of written conveyances, as of other instruments, have asserted some general rules of construction, to aid in ascertaining the intention of the parties t...
-Rules of construction. Continued
The English authorities are to the effect that the habendum may operate to enlarge the estate named in the premises, though not to abridge it. See Co. Litt. 299a, 2 Sanders, Uses & Trusts (5th Ed.) 15...
-Sec. 438. Consideration
A conveyance is not, properly speaking, a contract, though it is usually the result of agreement, and a consideration is consequently not necessary to its validity, except when the conveyance is one o...
-Consideration. Part 2
75. Russ v. Mebins, 16 Cal. 350; Cheesman v. Nicholl, 18 Colo. App. 174, 70 Pac. 797; Kimball v. Walker, 30 111. 482, 511; Aber-nathie v. Rich. 256 111. 166, 99 N. E. 883; Acker v. Priest, 92 Iowa. 61...
-Consideration. Part 3
McDaniels v. United Railways of St. Louis, 165 Mo. App. 678, 148 S. W. 464; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Walter v. Dearing - (Tex.) - 65 S. W. 380; Pierce v. Brew, 43 Vt. 292; Union Machin...
-Sec. 439. Reality of consent - Mistake
While a conveyance is presumed to have been made with the full and free consent of the grantor, and correctly to embody his intention, it may be shown that this is not the case, by reason of mistake, ...
-Reality of consent - Mistake. Continued
5. Orr v. Echols, 119 Ala. 340, 24 So. 357; Haussman v. Burn-ham, 59 Conn. 117, 21 Am. St. Rep. 74, 22 Atl. 1065; Parish v. Camplin, 139 Ind. 1, 37 N. E. 607; Bonhright v. Bonbrigtht. 123 Iowa, 305, 9...
-Sec. 440. Effect of alterations
Since the conveyance takes effect only upon delivery,22 until that is effected, the grantor may make such alterations or insertions therein as he may desire.23 An alteration made, after delivery, by ...
-III. Description Of The Land. Sec. 441. General considerations
In order to make a valid conveyance of land, it is essential that the land itself, the subject of the conveyance, be capable of identification, and, if the conveyance does not describe the land with s...
-Sec. 442. Description by government survey
One of the first acts passed by congress looking towards the disposal of the public domain provided for what is known as the rectangular system of surveys, which has ever since been in force, and wh...
-Sec. 443. Reference to plat
In many of the states there are statutory provisions authorizing an owner of land to have it surveyed and laid off in lots and blocks, streets, parks, and the like, and to file in the public records a...
-Sec. 444. Monuments, courses, and distances
Land is frequently described in a conveyance, or attempted to be described, by naming its boundaries in detail. Such a description, if properly made, is well calculated to identify the land, but frequ...
-Monuments, courses, and distances. Continued
That the line of an adjoining tract given as a means of locating a boundary, whether termed a monument or not, ordinarily controls courses and distances, see Morrow v. Whitney, 95 U. S. 551, 24 L. Ed....
-Sec. 445. Boundaries on water
The question whether land under water belongs, in certain eases, to the state or to individuals, has been before discussed.74 The question now arises as to when, in case of land under water not belong...
-Sec. 446. Boundaries on ways
As before stated, the ownership of land which is subject to use as a highway is, at common law, in individuals, the public having merely the use thereof, but in this country, the ownership of the land...
-Boundaries on ways. Continued
99. Severy v. Cent. Pac. R. Co., 51 Cal. 594; Warren v. Blake, 54 Me. 276, 89 Am. Dec. 748; Grand Rapids & Ind. R. R. Co. v. Heisel, 38 Mich. 62; Morrow v. Willard, 30 Vt. 118. 1. Johnson v. Anderson...
-Sec. 447. Sufficiency of description
It is impossible to give any general rules by which to determine whether, in the case of any particular conveyance, the description is sufficiently definite to render the instrument operative. The cou...
-Sufficiency of description. Continued
25. Jenkins v. Woodward Iron Co., - (Ala.) - 69 So. 646; Piper v. True, 36 Cal. 606; Derham v. Hill, 57 Colo. 345, 142 Pac. 181; Hornet v. Dumbeck, 39 Ind. App. 482, 78 N. E. 691; Harris v. Byers, 112...
-Sec. 448. Appurtenances
The effect of a conveyance of land in certain cases as creating an easement corresponding to a pre-existing quasi easement has been previously considered.53 As to the effect of a conveyance of land, n...
-IV. Covenants For Title. Sec. 449. General considerations
In most conveyances of land there are one or more covenants by the grantor as to the title to the premises, under which the grantee may, in case of failure of title, obtain indemnity in damages. These...
-Sec. 450. Covenant for seisin
The covenant by the grantor that he is lawfully seised of the premises, called the covenant of or for seisin, has different effects in different juridictions. Seisin originally, as before stated, ...
-Sec. 451. Covenant for right to convey
The covenant that the grantor has a right to convey the land is usually equivalent to the covenant for seisin, whichever view of the operation of the latter covenant may be taken in the particular jur...
-Covenant for right to convey. Part 2
9. Scriver v. Smith. 100 N. Y. 471. 53 Am. Rep. 224; Lamb v Danforth. 59 Me. 322; Isele v. Arlington Five Cent Savings Bank. 135 Mass. 142; Patterson v. Sweet, 3 III. App. 550. But see as to the rule ...
-Covenant for right to convey. Part 3
25. Crawford v. Mcdonald, 84 public improvement, has been viewed as involving a breach of the covenant.26 It is stated by the leading authority on the subject that the character of the outstanding ri...
-Sec. 453. Covenants for quiet enjoyment and of warranty
The covenant that the covenantee shall quietly enjoy the premises conveyed without disturbance, and the covenant to warrant and defend the premises, termed, respectively, the covenants for quiet enjo...
-Covenants for quiet enjoyment and of warranty. Part 2
That a railway right of way does not involve a breach, see Van Ness v. Royal Phosphate Co., 60 Fla. 284, 30 L. R. A. N. S. 833, Ann. Cas. 1912C, 647, 53 So. 381; Brown v. Young, 69 Iowa, 625, 29 N. W....
-Covenants for quiet enjoyment and of warranty. Part 3
65. Crosse v. Young, 2 Show. 425; Avery v. Dougherty, 102 Ind. 443, 52 Am. Rep. 680, 2 N. E. 123. See 1 Tiffany, Landlord & Ten., p. 528. 66. 1 Tiffany, Landlord & Ten. p. 529. 67. Madden v. Caldwel...
-Covenants for quiet enjoyment and of warranty. Part 4
77. Flynn v. White Breast Coal & Min. Co., 72 Iowa, 738, 32 N. W. 471; Lamb v. Danforth, 59 Me. 324, 8 Am. Rep. 426; Harrington v. Bean, 89 Me. 470, 36 Atl. 986; Smith v. Richards, 155 Mass. 79, 28 N....
-Covenants for quiet enjoyment and of warranty. Part 5
89. Brawley v. Copelin. 106 Ark. 256, 153 S. W. 101; Miller v. Halsey, 14 N. J. L. 48; Olmstead v. Rawson, 188 N. Y. 517, 81 N. E. 456; Parker v. Crainton, 143 title by the covenantee is that of the e...
-Sec. 454. Covenant for further assurance
The covenant by the grantor to make such other assurances as may be necessary to perfect the title is less extensively used in the United States than any of the other covenants for title, though its i...
-Sec. 455. The measure of damages - Covenant for seisin
In an action for breach of the covenant for seisin, the measure of damages is ordinarily the amount of the consideration paid by the grantee, usually with interest, such consideration being presumably...
-The measure of damages - Covenant for seisin. Part 2
18. Anderson v. Knox, 20 Ala. 156; Pate v. Marshall, 23 Ark. 591; Weber v. Anderson. 73 111. 439; Bolinger v. Brake, 57 Kan. 663, 47 Pac. 537; Spring v. Chase, 22 Me. 505, 39 Am. Dec. 500; Kimball v. ...
-The measure of damages - Covenant for seisin. Part 3
296, 76 N. E. 449; Mackey v. Harmon, 34 Minn. 168, 24 N. W. 702; Kellogg v. Malin, 62 Mo. 429; Willson v. Willson, 25 N. H. 229, 57 Am. Dec. 320; Williams v. Hewitt, 57 Wash. 62, 135 Am. St. Rep. 971,...
-The measure of damages - Covenant for seisin. Part 4
37. Wood v. Kingston Coal Co., 48 111. 356, 95 Am. Dec. 554; Yazoo & M. V. R. Co. v. Banister, 89 Miss. 808, 42 So. 345. 38. See Spring v. Chase, 22 Me. 505, 39 Am. Dec. 595. 39. Ante, Sec. 453, not...
-Sec. 456. Covenants running with the land
The benefit of a covenant for title until breach runs with the land52 Upon breach, the covenant is changed into a mere personal right of action, to be enforced by the person entitled to the benefit of...
-V. Execution Of The Conveyance. Sec. 457. Signing
At common law, a written transfer of land was always sealed, but not signed. In England, the better opinion is that the requirement in the Statute of Frauds that the writing be signed does not apply t...
-Sec. 458. Sealing - Necessity
At common law, the only recognized mode of authenticating a written instrument was by sealing, and consequently any conveyance in use at the present day which takes effect by the common law, such as a...
-Sec. 459. Witnesses
In some states witnesses, usually two in number, are necessary in order to make a conveyance valid as between the parties thereto. In other states, no witnesses are required, while in some, though wit...
-Sec. 460. Acknowledgment
In some states the statute requires a conveyance to be acknowledged by the grantor before an official in order to make it effective even as between the parties,3 and in a number of states an acknowled...
-Acknowledgment. Part 2
That a stockholder Is not disqualified to take the acknowledgment of a mortgage to the corporation, see Read v. Toledo Loan Co., 68 Ohio St. 280, 62 he is a corporate officer and not a stockholder.13 ...
-Acknowledgment. Part 3
Tenn. 480, 15 Lea, 683; Wilson v. Simpson, 80 Tex. 279. 16 S. W. 40: Welles v. Cole, 6 Gratt. (Va.) 645; Bensimer v. Fell, 35 W. Va. 15, 29 Am. St. Rep. 774. 12 S. E. 1078. 23. Elliott v. Piersol's L...
-Sec. 461. Delivery
A written instrument, regarded as a constitutive or dispositive act, becomes legally operative by reason either (1) of the mutual action of two or more persons, parties in interest thereto, or (2) of ...
-Delivery. Part 2
44. Sheppard's Touchstone, 57, 4 Kent. Comm. 455; Doe d. Garnons v. Knight, 5 Barn. & C. 671; Xenos v. Wickham, L. R. 2 H. L. 312: Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606. 53 So. 812; Watson v. H...
-Delivery. Part 3
It being conceded that even a voluntary transfer of the instrument by the grantor to the grantee does not involve a delivery if not with the intention that the instrument shall be legally operative, i...
-Delivery. Part 4
57. Ante, Sec. 434, note 68. The hands of the grantor, lacks the name of a grantee, becomes valid if the name is subsequently inserted by an agent acting under oral authority from the grantor, these ...
-Delivery. Part 5
It has been said that the fact that the instrument remains in the possession of the grantor raises a presumption that it has not been delivered.62 This appears cated, the final expression, subsequent ...
-Delivery. Part 6
409; Jackson v. Lamar, 58 Wash. 383, 108 Pac. 946. That the presumption is not overthrown by the fact that the possession is not affirmatively shown to have originated prior to the grantor's death, ...
-Delivery. Part 7
83. See Egan v. Horrigan, 96 Me. 46. In Mcmanus v. Commow, 10 N. D. 340, 87 N. W. 8, the decision to this effect is based on an ill-advised statute undertaking to state what constitutes delivery. In M...
-Delivery. Part 8
It being conceded that a manual transfer of the instrument by the grantor directly to the recording officer shows, prima facie, an intention that it shall operate as a conveyance, it would seem that h...
-Delivery. Part 9
98. Bouvier-iaeger Coal Land Co. v. Sypher, 186 Fed. 644. 99. Equitable Mtge. Co. v. Brown, 105 Ga. 474, 30 S. E. 687; Mccune v. Goodwillie, 204 Mo. 306, 102 S. W. 997; Hathaway v. Cook, 258 111. 92,...
-Sec. 462. Conditional delivery
The delivery of a conveyance, or of any other instrument which takes effect by delivery, may be conditioned upon the performance of some act or the occurrence of some event. A conditional delivery is...
-Conditional delivery. Part 2
20. See 4 Wigmore, Evidence, Sec.Sec. 2405, 2408. This writer remarks in reference to the case of Hawksland v. Gatchel Cro. Eliz. 835, which clearly decided that delivery was conditional, if so intend...
-Conditional delivery. Part 3
28. Ante, Sec. 461, notes 53-58. 29. Murray v. Stair, 2 B. & C. 82; Bowker v. Burdekin, 11 M. & W. 128; Seeley v. Curts, (Ala.), 61 So. 807; In re Cornelius' Estate, 151 Cal. 550, 91 Pac. 329; White ...
-Conditional delivery. Part 4
Closely connected in its nature and origin with this notion of the necessity of a second delivery is the con-tention, occasionally made, that if the custodian of the instrument hands it to the grantee...
-Conditional delivery. Part 5
45. Comyn's Dig. Fait, A 3; Perkins, Conveyancing, Sec.Sec. 143, 144; Sheppard's Touchstone, 59; Bushell v. Pasmore, 6 Mod. 217. The distinction is recognized in Murray v. Stair, 2 B. & C. 82, but app...
-Conditional delivery. Part 6
The view referred to, that a contract is necessary to a conditional delivery, has no considerations of policy or convenience in its favor, and its necessary result is considerably to detract from the ...
-Conditional delivery. Part 7
66. See Fitch v. Bunch, 30 Cal. 208; Wellborn v. Weaver, 17 Ga. 267. 67. Stanton v. Miller, 58 N. Y. 192. 68. Anderson v. Messenger (C. C. A.) 158 Fed. 250, citing James v. Vanderheyden (N. Y.) 1 Pa...
-Conditional delivery. Part 8
Since so long as the condition is not satisfied, the title does not pass, it results that when it becomes assured that the condition will never be satisfied, the instrument loses all possible efficacy...
-Conditional delivery. Part 9
797; Maxwell v. Harper, 51 Wash. 351, 98 Pac. 756. 90. Kirkwood v. Smith, 212 111. 395, 72 N. E. 427; Owen v. Williams, 114 Ind. 179, 15 N. E. 678; Gideon v. Gideon, 99 Kan. 332, 161 Pac. 595; Meech ...
-Sec. 463. Acceptance
In many of the states, perhaps a majority, an acceptance of the conveyance by the grantee named therein has been stated to be essential to its validity.5 And it has accordingly been decided in a numbe...
-Sec. 463. Acceptance. Part 2
So acceptance has been said to be presumed in the case of a delivery on condition or to take effect on the grantor's death. Kyle v. Kyle, 175 Iowa, 734, 157 N. W. 248. And the grantee's ignorance of t...
-Sec. 463. Acceptance. Part 3
17. If a father should die testate, devising an estate to his daughter, and the latter should afterwards die without a knowledge of the will, it would hardly be contended that the devise became void f...
-Sec. 464. Execution by agent
The owner of land may transfer it, not only by himself executing the instrument of transfer, but also by empowering another so to do in his absence. The execution of a conveyance by the agent of the g...
-Execution by agent. Continued
The fact that the name of the principal is signed by the agent without any addition to the signature snowing that the signing was by an agent has been held not to affect the validity of the signature....
-Sec. 465. Effect of execution - Return or cancellation
After the instrument has been delivered, and the title has consequently passed to the grantee named, it cannot, it has usually been held, be revested in the grantor by the mere physical transfer to hi...
-Chapter XX. Transfer By Will
Sec. 466. General considerations. 467. Will and conveyance distinguished. 468. Signing by testator. 469. Acknowledgment and publication. ...
-Sec. 467. Will and conveyance distinguished
The question frequently arises whether a particular instrument is to be regarded as a conveyance inter vivos or as an instrument of a testamentary character, that is, a will. The distinction would see...
-Will and conveyance distinguished. Part 2
24. See e. g. Lindemann v. Dobossy, - (Tex. Civ. App.) - 107 S. W. Ill; West v. West, 155 Mass. 317, 29 N. E. 582. 25. See e. g., Thomas v. Williams, 105 Minn. 88, 117 N. W. 155; Phifer v. Mullis, 16...
-Will and conveyance distinguished. Part 3
38. See Murray v. Cazier, 23 Ind. App. 600, 53 N. E. 476; Priester v. Hohloch, 70 N. Y. App. Div. 256, 75 N. Y. Supp. 405; Tuttle v. Raish, 116 Iowa, 331, 90 N. W. 66; Larson v. Lund, 109 Minn. 372, 1...
-Sec. 468. Signing by testator
In all states the statute requires, as did the English Statute of Frauds, that a will shall be signed by the testator, or, in the majority of states, by some other person, by the testator's express di...
-Sec. 469. Acknowledgment and publication
The statute sometimes requires the testator's signature to be acknowledged by him before witnesses, usually as an alternative to his actual signature of the will in their presence.71 Xo particular wor...
-Sec. 470. Competency of witnesses
The state statutes, with few, if any, exceptions, require the signature, or acknowledgment thereof, to be in the presence of two and sometimes three witnesses,79 and also, as just stated, publication ...
-Sec. 471. Attestation and subscription
The witnesses as to the execution or publication of a will are required, usually, not only to witness the performance of these acts by testator, but also to sign their names upon the instrument in th...
-Sec. 472. Holographic and nuncupative wills
By statute in a number of states, holographic wills, that is, wills entirely written by testator himself, are valid, though not executed in accordance with the ordinary statutory requirements, if si...
-Sec. 473. Undue influence
The question whether a certain testamentary disposition was the result of the exercise of undue influence upon the testator is the subject of frequent litigation. The courts have not been very succe...
-Sec. 474. Lapsed and void devises
As a consequence of the ambulatory nature of a will, which prevents its operation until the death of the testator, the death of a devisee or legatee during the testator's lifetime will, in the absen...
-Lapsed and void devises. Continued
32. 1 Stimson's Am. St. Law, Sec. 2823(A). 33. 1 Stimson's Am. St. Law, Sec. 2823(B), (C). See Page, Wills, Sec.Sec. 742, 743; 2 Woerner, Administration, Sec. 435. 34. If the gift is to them as join...
-Sec. 475. The revocation of a will
A will remains subject to revocation by the testator at any time. Such revocation may be effected either by cancellation or 610, note; Lingan v. Carroll, 3 Har. & Mch. (Md.) 333, 338; Deford v. Defor...
-The revocation of a will. Part 2
63. Olmstead's Estate, 122 Cal. 224, 54 Pac. 745; Woodflll v. Pat-ton, 76 Ind. 575, 40 Am. Rep. 269; Townshend v. Howard, 86 Me. 285, 29 Atl. 1077; Semmes v. Semmes, 7 Har. & J. (Md.) 388; In re White...
-The revocation of a will. Part 3
75. 1 Jarman, Wills, 139; Bige-low, Wills. 136. The contents of a lost will may be shown for the purpose of establishing the revocation of a previous will.89 But the mere fact of the execution of a l...
-The revocation of a will. Part 4
173, 54 Am. Rep. 329; Kelly v. Stevenson, 85 Minn. 247, 56 L. R. A. 754, 89 Am. St. Rep. 545: Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 329; Webb v. Jones, 36 N. J. Eq. 163; Morton v. Onion, 45 Vt. ...
-Sec. 476. Children or issue omitted from will
In most states there is a statutory provision that, if a child living at the testator's death, or who has died prior to such death leaving issue, was born after the execution of the will, such child o...
-Sec. 477. Revival of will
In the case of a will which is revoked by an express statement to that effect in a subsequent will, or by inconsistent provisions therein, the question has frequently arisen as to the effect of a 13....
-Sec. 478. Republication
A will may be republished so as to give the words of the will the same effect as if the will had been originally executed at the time of such republication, that is, so as to make it speak as of tha...
-Chapter XXI. Dedication. Sec. 479. Purposes for which dedication may be made
Land may be dedicated to a public use by means of a declaration by its owner, either by word or act, of his intention that the land shall be devoted to such use.1 The doctrine of dedication appears ...
-Sec. 480. No particular beneficiary or beneficiaries
It is well recognized that a dedication of land does not involve any necessity of a particular grantee or beneficiary.19 The purpose and effect of a common-law dedi15. Elyton Land Co. v. South & North...
-Sec. 481. Who may effect dedication
No one other than the owner of land, or one acting under authority from him, can effect a dedication,25 and an attenrpted such a corporation is subsequently created. 22. Post, Sec. 483. 23. Gaynor v...
-Sec. 482. Intention to dedicate
A dedication need not be by any formal act or declaration, and it is sufficient if in any way the owner of the land indicates an intention to devote the land to the public use.34a The act of dedicatio...
-Intention to dedicate. Part 2
Atl. 801; Worthington v. Wade, 82 Tex. 26, 17 S. W. 520; Bacon v. Boston & M. R. Co., 83 Vt. 421, 76 Atl. 128; Lynchburg Traction & Light Co. v. Guill, 107 Va. 86, 57 S. E. 644; Cunningham v. Hendrick...
-Intention to dedicate. Part 3
That the owner of land continues to pay taxes thereon,52 or that he makes a conveyance of the land,53 may tend to rebut any inference that he has dedicated it to public use. That he has maintained a g...
-Intention to dedicate. Part 4
58. United States v. Chicago, 7 How. (U. S.) 185, 12 L. R. A. 660; Webb v. Demopolis, 95 Ala. 116, 21 L. R. A. 62, 13 So. 289; Town of Holly Grove v. Smith, 63 Ark. 5, 37 S. W. 956; People v. Reed, 81...
-Sec. 483. Acceptance
In order that a dedication, or rather, an offer of dedication, may be effective for the purpose of imposing burdens and liabilities upon the public authorities as regards the condition and repair of t...
-Acceptance. Part 2
The acceptance of the dedication may be by formal action on the part of the state or municipality, as representing the public,76 but this is not usually necessary. 97 N. E. 257; Rose v. Elizabeth-tow...
-Acceptance. Part 3
82. People v. Johnson, 237 I11. 237, 86 N E. 676; Whittington v. Comm'rs of Crisfield, 121 Md. 387, 88 Atl. 232. 83. Ivey v. City of Birmingham, 190 Ala. 196, 67 So. 506; San Francisco v. Carnavan, 4...
-Sec. 484. Dedication distinguished from estoppel
It is frequently asserted that the doctrine of dedication is based upon the theory of estoppel in pais, but this would seem to be incorrect.96 The doctrine of dedication was recognized earlier than th...
-Sec. 485. Qualified and conditional dedication
A dedication may be made subject to reservations in favor of the dedicator or to restrictions upon the freedom of use of the land by the public. Thus it has been held that a highway may be dedicated, ...
-Sec. 486. Effect of dedication
A common law dedication for highway purposes,18 or even for a park, common, or square,19 does not affect the ownership of the land, but merely gives to the public a right of user therein. When, howeve...
-Chapter XXII. Intestate Succession
Sec. 487. General considsrations. 488. Descent to issue. 489. Surviving consort as heir. 490. Parent as heir. 491. Descent to co...
-Intestate Succession. Continued
The common-law rule in this regard was recognized and applied in a number of states,13 but even in those states, as in others, it has, for the most part, been superseded, owing to the statutory change...
-Sec. 488. Descent to issue
In all the states, realty descends to all the legitimate children of deceased living at his death, and to the descendants of deceased children, these latter taking per stirpes, and not per capita, tha...
-Sec. 489. Surviving consort as heir
At common law, the surviving hushand was entitled to an estate by curtesy in his wife's real property,20 while he took an absolute interest in her personal property, including chattels real.21 Apart f...
-Sec. 490. Parent as heir
At common law, land could never lineally ascend, that is, it could not pass to the father or grandfather of the decedent upon the latter's death, though it could pass to his uncle, the brother of his ...
-Sec. 491. Descent to collateral kindred
In case the intestate leaves no issue surviving, and the realty does not pass entirely to the surviving consort, or to one or botn of the parents, under the statutes referred to above, it descends amo...
-Sec. 492. Kindred of the half blood
At common law, in order that one might inherit as a collateral kinsman of the intestate, it was necessary that they both be descended not only from the same person, but from the same marriage of that ...
-Sec. 493. Representation
The common law doctrine was that the lineal descendants of a person deceased represent the latter, that is, stand in the place, for purposes of inheritance from another, in which the deceased person w...
-Sec. 494. Ancestral lands
At common law, in case of failure of lineal descendants of the person last seised, the land passed to his collateral relations only when they were of the blood of the first purchaser, by whom the land...
-Sec. 495. Illegitimate children
At common law, a child born out of wedlock was regarded as filius nullius, and as consequently bearing no relationship to any persons other than his own offspring. Consequently he could be the heir ne...
-Sec. 496. Unborn children
At common law, a child en ventre sa mere at the time of the death of the intes-tate, if subsequently born alive, is regarded as living at the time of such death, for the purpose of taking from him by ...
-Sec. 497. Adopted children
The statutes authorizing the adoption of children quite frequently contain express provisions as to inheritance both by and from an adopted child.81 Apart from any such express provision, the effect o...
-Sec. 498. Advancements
An advancement is a giving, by anticipation, to a child or other relative, of a part or the whole of what the donee would receive on the death of the donor intestate, with the result, generally speaki...
-Sec. 499. Disinheritance
It is generally recognized that one who would otherwise take, as heir or distributee the whole or a part of decedent's property, cannot be deprived of his right in this regard by a mere expression of ...
-Chapter XXIII. Adverse Possession Of Land
Sec. 500. General considerations. 501. Actual and visible possession. 502. Exclusiveness of possession. 503. Hostility of possession. ...
-Adverse Possession Of Land. Continued
As regards the doctrine referred to, of the presumption of a conveyance based on long continued possession, it has been said, by the United States Supreme Court, that in order to presume a conveyance ...
-Sec. 501. Actual and visible possession
In order that the statute of limitations shall run against the right to recover land, it is necessary, not only that the person rightfully entitled be out of the actual possession, but also that there...
-Sec. 502. Exclusiveness of possession
In order that one may acquire rights in land by possession for the statutory period, the possession must, it is frequently said, be exclusive.35 It must be exclusive of the true owner and also of thir...
-Sec. 503. Hostility of possession
In order that the statute of limitations may bar one of his right to recover land it is necessary, not only that the land be in possession of another, but that such possession be adverse or hostile...
-Hostility of possession. Continued
, 503] Adverse Possession. 1933 as well as by evidence of the declarations of the person in possession accompanying his possession.50 It may also be shown by evidence of acts by the person in possessi...
-Sec. 504. Necessity of claim of title
It has been asserted, by perhaps most of the courts in this country, that in order that the statute of limitations may run in favor of one in possession of land, the possession must be under claim of ...
-Necessity of claim of title. Part 2
It was recognized at common law that, in determining whether one was a disseisor or a trespasser merely, his intention, as indicated by his acts, was to be considered,69 and so at the present day, in ...
-Necessity of claim of title. Part 3
76. Goodson v. Brothers, 111 Ala. 589, 20 So. 453; Shipwith v. Martin. 50 Ark. 141. 6 S. W Sion such as ordinarily only an owner would do,77 such as the making of improvements,78 or the payment of ta...
-Sec. 505. Mistake in locating boundary
The question has frequently arisen whether, when an owner of land, by mistake as to the boundary line of his land, takes possession of another's land, and holds it for the statutory period, he thereby...
-Sec. 506. Necessity of right of action
The purpose of the statutes of limitation is to debar one of his right to assert his claim when, having the power to assert such claim, he has failed to do so for the period named. Consequently the st...
-Sec. 507. Interruption of running of statute
It not infrequently occurs that, after the statute of limitations has begun to run against the right to recover land, and before it has run for the period named therein, it, for some reason, ceases to...
-Interruption of running of statute. Part 2
22. Snell v. Harrison, 131 Mo. 495, 52 Am. St. Rep. 642, 32 S. W. 37, overruling Mabary v. Dollarhide, 98 Mo. 204, 14 Am. St. Rep. 639, 11 S. W. 611: Rogers v. Johnson, 259 Mo. 173, 168 S. W. 613; Per...
-Interruption of running of statute. Part 3
Co. v. Pearce, 192 Ala. 195, 68 So. 900; Botsford v. Eyraud, 148 Cal. 431, 83 Pac. 1008; Downing v. Mayes, 153 111. 330, 46 Am. St. Rep. 896, 38 N. E. 620; Butt v. Houser - (Ky.) - 188 S. W. 628; Mcle...
-Interruption of running of statute. Part 4
That such an offer tends to prove that the possession is not adverse, see Liggett v. Morgan, 98 Mo. 39, 11 S. W. 241. Alsup v. Stewart, 194 111. 595, 88 Am. St. Rep. 169, 62 N. E. 795; Zweibel v. Myer...
-Interruption of running of statute. Part 5
51. See Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585, and ante, Sec. 501, note 31. 52. Singer Mfg. Co. v. Stockman, 36 Cal. 535, 95 Am. Dec. 205; Clark v. Peckenpaugh, 16 111. 11; Medlock v. Suter, ...
-Sec. 508. Tacking
The question has frequently-arisen whether the running of the statute against the true owner is affected by the fact that during the statutory period, although the possession was continuously hostile ...
-Sec. 509. Personal disabilities
The statute of limitations invariably extends the period for bringing an ac81. Little v. Vice, - Ala. - , 76 So. 942; Lucy v. Tennessee & C. R. Co., 92 Ala. 246, 8 So. 806; City & County of San Franci...
-Sec. 510. Exception in favor of the sovereign
According to the maxim Nullum tempus occurrit regi, the adverse possession of land belonging to the state cannot, unless the statute otherwise provides, divest the government title.92 Nor can the stat...
-Sec. 511. Effect as vesting and divesting title
While occasionally the statutes limiting the time for the bringing of an action to recover land provide that a failure to sue within the time named shall operate to transfer the title to the person in...
-Effect as vesting and divesting title. Part 2
7. Pendleton v. Alexander, 8 Cranch, 462; Clemmons v. Cox, 116 Ala. 567, 23 So. 79; Arring-ton v. Liscom, 34 Cal. 365; Mickey v. Barton 194 111. 446, 62 N. E. 802; Cramer v. Clow, 81 Iowa, 255, 9 L. R...
-Effect as vesting and divesting title. Part 3
24. Ante, Sec. 501, note 30. 25. But it has been decided in New York (Bedell v. Shaw, 59 N. Y. 46; Sanders v. Riedinger, 30 N. Y. App. Div. 277, 51 N. Y. Supp. 937, 164 N. Y. 564, 58 N. E. 1092) that...
-Sec. 512. Extent of possession
As a general rule, one can acquire by adverse possession so great an extent of land only as is covered by his acts of actual possession, continued through the statutory period.38 It is, however, a wel...
-Extent of possession. Part 2
932 44. Miller v. Rich, 204 I11. 444. 68 N. E. 488. 45 See editorial note 28 Harv. Law Rev. al p. 57. In order that this doctrine, giving one constructive possession beyond the limits of his ...
-Extent of possession. Part 3
53. Griffin v. Lee, 90 Ga. 224, 15 S. E. 810; Den d. Carson v. Mills, 18 N. C. 546, 30 Am. Dec. 143. 54. Louisville etc. R. Co. v. Gulf of Mexico Land etc. Co., 82 Miss. 188, 33 So. 845, 100 Am. St. ...
-Sec. 513. Particular relations - (a) Landlord and tenant
Possession for the statutory period by the tenant under a lease is, it is agreed, not ordinarily sufficient to confer title upon him as against his landlord.69 Ass'n, 110 Va. 91, 65 S. E. 469; Wallac...
-Particular relations - (a) Landlord and tenant. Part 2
Since the statute of limitations cannot commence to run until there is a right of action in favor of the rightful owner, it follows that the doctrine above referred to, that the repudiation of the ten...
-Particular relations - (a) Landlord and tenant. Part 3
Philips v. Rothwell, 4 Bibb. (Ky.) 33; Millett v. Lagomdrsino, 107 Cal. 102, 38 Pac. 308; Gee v. Hatley, 114 Ark. 376, 170 S. W. 72; editorial notes 9 Columbia Law Rev. 461, 22 Harvard Law Rev. 604; 7...
-Particular relations - (a) Landlord and tenant. Part 4
98. Long v. King, 117 Ala. 423, 23 So. 534; Haney v. Legg, 129 Ala. 619, 87 Am. St. Rep. 81, 30 So. 34; Plass v. Plass, 122 Cal. 3, 15; Norton v. Bassett, 154 Cal. 411, 129 Am. St. Rep. 162, 87 Pac. 8...
-Particular relations - (a) Landlord and tenant. Part 5
- (e) Grantor iand grantee. If one who has made a conveyance of land retains possession of the land, his possession is regarded as prima facie in subordination to the title of his grantee, and as cons...
-Particular relations - (a) Landlord and tenant. Part 6
It has been said that unless the donee's entry into possession is under the honest belief that the land was given him, he Is presumed to be holding under a license, and the possession not to be advers...
-Particular relations - (a) Landlord and tenant. Part 7
- (g) Life tenant and remainderman. The statute of limitation does not operate in favor of a tenant for his own or another's life, so long as the life endures, as against the remainderman or reversion...
-Particular relations - (a) Landlord and tenant. Part 8
40. Mcclung v. Ross, 5 Wheat. (U. S.) 116; Wheat v. Wheat, 190 Ala. 461. 67 So. 417; Ashley v. Rector, 20 Ark. 375; Oglesby v. Hollister, 76 Cal. 136, 9 Am. St. Rep. 177, 18 Pac. 146; Russell v. Stick...
-Particular relations - (a) Landlord and tenant. Part 9
Watts, (Pa.) 158, 36 Am. Dec. 158; Hubbard v. Wood, 1 Sneed (Tenn.) 279; Church v. Waggoner, 78 Tex. 200, 14 S. W. 581. 46. Carpenter v. Webster, 27 Cal. 524; Norris v. Sullivan, 47 Conn. 474; Goodwi...
-Particular relations - (a) Landlord and tenant. Part 10
53. Jackson v. Huntington. 5 Pet. 402, 8 L. Ed. 170; Elder v. Mcclaskey, 70 Fed. 529, 17 C. C. A. 251. Fielder v. Childs, 73 Ala. 567; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Winterburn v. Chamber...
-Particular relations - (a) Landlord and tenant. Part 11
- (j) Mortgagor and foreclosure purchaser. There are decisions that the possession of the mortgagor is not adverse as against the purchaser at foreclosure sale,59 a view which appears to harmonize wi...
-Particular relations - (a) Landlord and tenant. Part 12
73. See Butler v. Butler, 133 Ala. 377, 32 So. 579; Wyatt v. Elam, 23 Ga. 201; Hume v. Hopkins, 140 Mo. 65, 41 S. W. 784. 74. See Ellsworth v. Hale, 33 Ark. 633; Brettman v. Fischer, 216 111. 142, 74...
-Chapter XXIV. Prescription For Incorporeal Things
Sec. 514. General considerations. 515. Restrictions on application of the doctrine. 516. Who may acquire right by prescription. 517. What righ...
-Sec. 515. Restrictions on application of the doctrine
It is generally recognized that no right can be acquired by prescription to maintain a public nuisance.9 So it has been decided that there can be no prescriptive right to maintain an obstruction in th...
-Sec. 516. Who may acquire right by prescription
The common law rule is that a prescriptive right appurtenant to land can be asserted only in favor of one who has an estate in fee simple in the land, for the benefit of which the user is made, and th...
-Sec. 517. What rights may be acquired by prescription
A right of way over another's land may be acquired by prescription,25 and the doctrine is perhaps more frequently applied in this connection than in any other. That there were, during the prescriptive...
-What rights may be acquired by prescription. Continued
40. Castner v. Riegel, 54 N right to conduct on one's land a business which pollutes the atmosphere, to the injury of the land adjoining,41 the right to extend eaves of a roof, or a cornice, or other ...
-Sec. 518. Actual user necessary
In order that the doctrine of prescription may operate in one's favor he must have actually used the land of another and the mere assertion of a right to use it is insufficient.61 56. Richart v. Scot...
-Sec. 519. Adverse character of user
In order that a right to use another's land be acquired by the user thereof for the statutory period, the user must be hostile or adverse to the owner of the land.66 62. Louisville & N. R. Co. v. Hay...
-Adverse character of user. Part 2
Thereof, which is ordinarily adverse to the grantor.70 The user of the land under such circumstances involves no recognition of any right as remaining in the grantor. The user of one piece of land fo...
-Adverse character of user. Part 3
77. Card v. Cunningham,- Ala. - , 74 So. 335; Clarke v. Clarke, 133 Cal: 667, 66 Pac. 10; Illinois Cent. R. Co. v. Stewart, 265 111. 35, 106 N. E. 512 (unenclosed and unoccupied); Bowman v. Wickliffe...
-Sec. 520. Necessity of claim of right
It is frequently stated that, in order that one may acquire a right by prescription, the user must be under claim of right.85 Sometimes this requirement is stated as adof such space by another even fo...
-Sec. 521. Necessity of notice to landowner
It has been quite frequently stated that the adverse user must be known to the owner of the land in order that the doctrine of prescription may apply as against him.91 But it appears that actual knowl...
-Sec. 522. Necessity of exclusive user
It is sometimes said that, in order to acquire a right of user by prescription, the user during the prescriptive must be exclusive,96 but this appears to be so in a very limited sense, if at all.97 Fo...
-Sec. 524. Necessity of right of action
In order that a right of using another's land be acquired by lapse of time, the user must have been such as to give rise to a right of action on the part of the owner, since, if he cannot legally prot...
-Sec. 525. Continuity of user
The user of the land, in order to create a right by prescription, must be continuous for the prescriptive period.28 This requirement 22. Ante, Sec. 363(c). 23. Ann Arbor Fruit & Vinegar Co. v. Ann A...
-Sec. 526. Cessation of adverse character
Although the user of another's land in a particular way continues for the whole of the prescriptive period, no right is acquired thereby if the user loses its adverse character before the period expir...
-Sec. 528. Protests and interference by landowner
Applying the theory that what makes a continued user effective to confer a corresponding right is the acquiescence of the owner in such user, as raising a presumption of a grant, it would seem to be s...
-Sec. 529. Tacking
As successive adverse possessions of land by different persons may be tacked in order to make up the statutory period, so successive adverse users by different persons may be tacked for the same purpo...
-Sec. 530. Personal disabilities
The statutory exceptions in the statutes of limitations in favor of persons under legal disability are applied by analogy, in the case of prescription, when the owner of the land is under disability, ...
-Sec. 531. Nature and extent of prescriptive right
That the nature and extent of a prescriptive right are measured by the character of the user in which it originated is generally recognized,67 but the application of this rule frequently involves cons...
-Nature and extent of prescriptive right. Continued
76. Barry v. Eblavitch, 84 Md. 95, 33 L. R. A. 294, 35 Atl. 170. 77. Bradburn v. Morris, 3 Ch. Div. 812; Wimbledon & Putney Commons Conservators v. Dixon, 1 Ch. Div. 362; Atwater v. Bod-fish, 11 Gray...
-Sec. 532. Reciprocal prescriptive easements
The question has occasionally arisen whether, when one has acquired by prescription an easement in another's land or in diminution of another's natural rights, such other has a right to insist upon th...
-Sec. 533. Prescription for highways, (a) General considerations
A right to use land for highway purposes may usually be acquired by the public by its use for such purposes under a claim of right for the statutory period of limitation as to land, Such mode of acqui...
-Prescription for highways, (a) General considerations. Part 2
10. Easter v. Overlea Land Co. of Baltimore County, 129 Md. 627, 99 Atl. 893; State v. Result of the cases would seem to be that, while travel over the land need not be frequent, it must not be confi...
-Prescription for highways, (a) General considerations. Part 3
16. Bassett v. Harwich, 180 Mass. 585, 62 N. E. 974. 17. Ante, Sec. 519, note 69. 18. Emira Highway Com'rs. v. Osceola Highway Corn's, 74 111. App. 185; Richards v. Bristol County Com'rs, 120 Mass. ...
-Prescription for highways, (a) General considerations. Part 4
The fact, however, that he makes the exercise of the user more difficult, as by erecting a fence with a gate or bars therein, does not of itself interrupt the user,30 though its erection, coupled with...
-Prescription for highways, (a) General considerations. Part 5
40. State v. Green, 41 Iowa, 693; Stickley v. Sodus Tp. 131 Mich. 510, 515, 59 L. R. A. 287, 91 N. W. 745; Wills v. Reid, 86 Miss. 446, 38 So. 793; Hill v. Mcginnis, 64 Neb. 187, 89 N. W. 783; People ...
-Chapter XXV. Accretion
Sec. 534. General considerations. 535. As rule of law or rule of construction. 536. Applicable only to land above water. 537. Sudden and perce...
-Sec. 535. As rule of law or rule of construction
The legal effect of a change in the line between land and water, such as is above referred to, is frequently- regarded as based on positive rules of law, that is, it is said in effect that one acquire...
-As rule of law or rule of construction. Continued
8. See per Lindley, J., in Foster v. Wright, 4 C. P. D. 438 at p. 447. 9. Dig. 41, 1, 16. See Municipality No. 2 v. Orleans Cotton Press, 18 La. 122, 36 Am. Dec. 624; Smith v. St. Louis Public School...
-Sec. 536. Applicable only to land above water
In speaking of the acquisition of land by accretion, the courts evidently have reference to visible land and not to land covered by water.16 It would never be suggested, for instance, when the bed of ...
-Sec. 537. Sudden and perceptible changes
The rules above stated, to the effect that the ownership follows, or is presumed to follow, changes in the location of the water, do not apply in the case of sudden and perceptible changes, and such c...
-Sec. 538. Accretion artificially produced
That the change in the shore or bank is the result, either in 29. Benson v. Morrow, 61 Mo. 352, quoted with approval in Coulthard v. Stevens, 84 Iowa, 241, 35 Am. St. Rep. 304, 50 N. W. 983; Yutterma...
-Sec. 539. Land appearing in place of land disappearing
It has occasionally been said that if part of one's land disappears by erosion or submergence, and sub32. Lovingston v. St. Clair County, 64 111. 56, 16 Am. Rep. 516; Brundage v. Knox, 279 111. 450, 1...
-Sec. 540. Accretions subject to existing incumbrances
When land is dedicated for a public use of such a character as to render its continued extension to the water desirable, as for instance for a highway leading to the water or for a park, the dedicatio...
-Sec. 541. Vested right in future accretions
It has been occasionally stated that a riparian owner has no vested right as to future accretions.48 This is pre45. Lombard v. Kinzie, 73 111. 446. 46. Benne v. Miller, 149 Mo. 228, 50 S. W. 824, quo...
-Sec. 542. Accretions to island
In the case of an island, the same rule applies as in the case of land bounded by water on one side only, that is, the boundaries are presumed to vary with any gradual change in the line between the l...
-Sec. 543. Apportionment of accretions
In making the division between adjoining litoral or riparian owners of the land formed by accretion, the courts have usually adopted the rule of the civil law, by which the new water front is divided ...
-Sec. 544. Formation of new islands
An island, when formed in a stream or body of water by the deposit of alluvial matter therein, belongs to the owner of the land beneath the water, on which the island is formed, whether such owner be ...
-Chapter XXVI. Estoppel. Sec. 545. Assertion of after acquired title
(a) General considerations. (b) Character of conveyance. (c) Necessity and character of covenants. (d) Cases to which doctrine inapplicable. ...
-Estoppel. Sec. 545. Assertion of after acquired title. Part 2
S. E. 710, 5 Am. St. Rep. 317; Summerfield v. White, 54 W. Va. 311, 46 S. E. 154. 6. Rawle, Covenants for Title (5th Ed.) Sec. 248, and the numerous cases there cited; Bigelow Estoppel, 465; 2 Smith,...
-Estoppel. Sec. 545. Assertion of after acquired title. Part 3
But the presence of a covenant for title may affect the construction of the instrument as showing an intention not to convey merely such estate or interest as the grantor has. Mills v. Catlin, 22 Vt. ...
-Estoppel. Sec. 545. Assertion of after acquired title. Part 4
As in that of an absolute conveyance, more particularly when the mortgage instrument contains a covenant of warranty or other covenant.25 And it has been so applied not only in jurisdictions in which ...
-Estoppel. Sec. 545. Assertion of after acquired title. Part 5
34. Allen v. Sayward, 5 Me. 227, 17 Am. Dec. 221; Doane v. Willcutt, 5 Gray (Mass.) 333, 66 Am. Dec. 369; Chauvin v. Wagner, 18 Mo. 531. Contra, Wight-man v. Reynolds, 24 Miss. 675. And see Irvine v. ...
-Estoppel. Sec. 545. Assertion of after acquired title. Part 6
The question whether one to whom the grantor, after his subsequent acquisition of title, undertakes to make a conveyance, is estopped, as was the grantor, to assert such subsequently acquired title, i...
-Sec. 546. Estoppel by representation
In connection with the law of land there is frequent occasion for the application of the familiar principle that one who, by his words or actions, represents a certain state of facts to be true, and t...
-Estoppel by representation. Continued
68. Macomber v. Kinney, 114 Minn. 146, 128 N. W. 1001, 130 N. W. 851; Bliss v. Waterbury, 27 S. D. 429, 131 N. W. 731 (sem-ole); Pierce v. Texas Rice Development Co., 52 Tex. Civ. App. 205, 114 S. W. ...
-Sec. 547. Improvements by oral grantee
The cases are generally to the effect that an oral gift of land, if followed by the making of substantial improvements by the donee on the strength thereof, will be recognized and enforced by a court ...
-Chapter XXVII. Escheat And Forfeiture
Sec. 548. Escheat. 549. Forfeiture. Sec. 548. Escheat At common law, as before stated, an escheat of land occurred in favor of the feudal lord in case the tenure ...
-Sec. 549. Forfeiture - To state
At common law, upon his attainder of high treason, one forfeited to the crown all his freehold estates, and, in case of petit treason and felony, his freehold estates for life, and his chattel interes...
-Chapter XXVIII. Transfer Under Judicial Process Or Decree
Sec. 550. Sales and transfers under execution. 551. Sales in equity at the instance of creditors. 552. Sales of decedent's lands. 553. Sales o...
-Sec. 550. Sales and transfers under execution
The land of a debtor was first made subject to the claims of creditors by an early statute,1 which provided that one who had recovered a judgment might elect io have the sheriff deliver to him the cha...
-Sec. 552. Sales of decedent's lands
At common law, an unsecured debt could not be enforced, as against the real property of the debtor, after the latter's decease, unless it was due on a contract under seal, which expressly bound the de...
-Sec. 553. Sales of lands of infants and insane persons
The extent to which a court of. equity has inherent power to sell the land of an infant for his benefit is involved in considerable doubt; but the question has, to a considerable extent, lost its impo...
-Sec. 554. Sales and transfers for purpose of partition
Proceedings by one interested in land as co-owner with others, to obtain a partition or sale of the land, have previously been discussed.38 In this country the jurisdiction of proceedings for partitio...
-Sec. 555. Decrees transferring title
The court of chancery in England always acted in personam, and not in rem, and consequently, in adjudicating rights of the different parties to a proceeding concerning land, it did not, by its decree,...
-Sec. 556. Adjudications of bankruptcy
The present bankrupt act43 provides that the trustee of a bankrupt, upon his appointment and qualification, shall be vested by operation of law with the title of the bankrupt, as of the date he was ad...
-Chapter XXIX. Transfer For Nonpayment Of Taxes
Sec. 557. Character of title acquired. 558. Judgment for taxes. 559. Forfeiture to state. 560. Remedial legislation. Sec. 557. Characte...
-Sec. 558. Judgment for taxes
In some states the legislator has provided that the sale of land for taxes shall be preceded by the rendition of a judgment determining the amount of the taxes due. The proceeding to obtain such a jud...
-Chapter XXX. Appropriation Under Eminent Domain
Sec. 561. The power to appropriate. 562. Rights subject to appropriation. 563. Mode of appropriation. 564. Time of passing of title. ...
-Sec. 562. Rights subject to appropriation
There may be an appropriation of the rights of ownership in a particular piece of land, the entire interest of the former owner thus passing to the appropriator, or a right merely to use the land for ...
-Sec. 563. Mode of appropriation
The statutes usually contain explicit provisions as to the constitution of the tribunals which are to decide the amount of compensation to be paid for the property taken. Such a tribunal may, in the a...
-Sec. 564. Time of passing of title
The statute is usually construed as divesting the title of the owner of the land taken only upon payment of the compensation awarded,0 and this is necessarily the case when the constitution provides t...
-Sec. 565. Cessation of public use
When merely a right of user for the benefit of the public is taken, and subsequently such user ceases, the owner of the land has it free from the public burden.14 Logically, in such a case, the corpor...
-Chapter XXXI. Priorities, Notice And Recording
Sec. 566. Priorities apart from recording acts. (a) As between legal interests. (b) As between legal and equitable interests. (c) As between equita...
-Priorities, Notice And Recording. Part 2
8. See, e. g.. Lea v. Polk County Copper Co., 21 How (U. S.) 493, 16 L. Ed. 203; Dean v. Roberts, 182 Ala. 221, 62 So. 44; Turner v. Wilkinson. 72 Ala. 367; Myers v. Berven, 166 Cal. 484, 137 Pac. 260...
-Priorities, Notice And Recording. Part 3
10. 13 Halsbury's Laws of England 83; Bailey v. Barnes (1894) 1 Ch. 25; Taylor v. Russell (1892) App. Cas. 244; Flagg v. Mann, 2 Sumn. (U. S.) 486; United States v. Detroit Timber 6 Lumber Co., 131 F...
-Priorities, Notice And Recording. Part 4
Outstanding legal estate, and a subsequent purchaser for value without notice procures, at the time of his purchase, the person in whom the legal title is vested to declare himself a trustee for him, ...
-Priorities, Notice And Recording. Part 5
30. Ames, Cases on Trusts (2nd Ed.) 286; Willoughby v. Willoughby, 1 Term Rep. 763; Kinicott v. Board of Sup'rs of Wayne County, 16 Wall. (U. S.) 452, 21 L. Ed. 319; Stokes v. Riley, 121 111. 166, 11 ...
-Sec. 567. The recording acts - (a) General considerations
The rule first above referred to, that, as between conveyances of the legal title, the first in time must prevail, has been entirely changed by the recording acts, which exist in every state, and whic...
-The recording acts - (a) General considerations. Part 2
40. Williams v. Smith, 128 Ga. 306, 57 S. E. 801; Mack v. Mcintosh, 181 111. 633, 54 N. E. 1019; Sjoblom v. Mark, 103 Minn. 193, 15 L. R. A. (N. S.) 1129, 14 Ann. Cas. 125, 114 N. W. 746; Riddle v. F...
-The recording acts - (a) General considerations. Part 3
50. Mcdonald v. Norton, 123 Ark. 473, 185 S. W. 791, 1199; Herndon v. Kimball, 7 Ga. 432, 50 Am. Dec. 406; Donalson v. Thomason, 137 Ga. 848, 74 S. E. 762; Harris v. Reed. 21 Idaho, 364, 121 Pac. 780;...
-The recording acts - (a) General considerations. Part 4
55a. Sternberger v. Ragland. 57 Ohio St. 148, 48 N. E. 811; Pyles v. Brown, 189 Pa. St. 164, 69 Am. St. Rep. 794, 42 Atl. 11; Veazie v. Parker, 23 Me. 170; Pierce v. Taylor, 23 Me. 246. 56. Pearce v....
-The recording acts - (a) General considerations. Part 5
- (e) Instruments executed prior to acquisition of title. The question whether a purchaser is charged with notice by the record of a conveyance, executed by a person in his grantor's chain of title be...
-The recording acts - (a) General considerations. Part 6
That after the instrument has been recorded, the record is in some way destroved, as by fire, has been re-garded as not affecting the validity of the act of record, for the purpose of protecting the c...
-The recording acts - (a) General considerations. Part 7
82. Mcguire v. Barker, 61 Ga. 339; Fleschner v. Sumpter, 12 Ore. 161, 6 Pac. 506; Souder v. Morrow, 33 Pa. 83; Collins v. Aaron, 162 Pa. 539, 29 Atl. 724. 83. Fries v. Null, 154 Pa. 573, 26 Atl. 554,...
-The recording acts - (a) General considerations. Part 8
McKerrihan, 172 Pa. 234, 51 Am. St. Rep. 734, 33 Atl. 583; Parrish v. Mahany, 10 S. D. 276, 66 Am. St. Rep. 715. 90. Cady v. Purser, 131 Cal. 552, 82 Am. St. Rep. 391, 63 Pac. 844; Shepherd v. Burkha...
-The recording acts - (a) General considerations. Part 9
99. Oconto v. Jerrad, 46 Wis. 317, 50 N. W. 591; St. Croix Land & Lumber Co. v. Ritchie, 73 Wis. 409, 41 N. W. 345, 1064. 1. Ante, Sec. 566 (j) note 88. 2. See Amos v. Givens, 179 Ala. 605, 60 So. 8...
-The recording acts - (a) General considerations. Part 10
- Claimant under quitclaim deed. In a very considerable number of jurisdictions it has been decided that the grantee under a quitclaim deed is entitled, to the same extent as the grantee in any othe...
-The recording acts - (a) General considerations. Part 11
View,23 repudiating prior dicta in that court to the contrary. That the view favored by the later decisions works in favor of justice and the security of titles seems sufficiently apparent. That one t...
-The recording acts - (a) General considerations. Part 12
The reason ordinarily asserted for this view is that otherwise the occurrence of one quitclaim deed in a chain of title would to a great extent render the title unmarketable. But it is difficult to se...
-Sec. 568. Notice as substitute for recording
Of the statutes in reference to the recording of conveyances, Some provide that a conveyance, if not recorded, shall be invalid as against a subsequent purchaser without notice, some, that it shall b...
-Sec. 569. Information putting on inquiry
In most states it is sufficient, in order to deprive a person of the right to claim as against a prior unrecorded conveyance, that he has either actual knowledge of such conveyance, or that he has inf...
-Sec. 570. Notice to agent
The rule that notice to an agent is notice to his principal applies in the case of a purchaser of land acting through an agent, and he may consequently be charged with notice of adverse claims either ...
-Sec. 571. Notice from possession
- (a) General considerations. An intending purchaser of land is, as a general rule, by the fact that the land is in the possession of a person other than he who is undertaking to sell it, charged with...
-Notice from possession. Part 2
71. Fair v. Stevenot, 29 Cal. 486; Riley v. Quigley, 50 111. 304. 72. In Fair v. Stevenot, 29 Cal. 486, it is said that the possession of an adverse claimant's servant does not charge with notice if ...
-Notice from possession. Part 3
In case only an easement in the land is claimed, there will not be any actual possession of the land by the claimant, but merely an exercise of the easement thereover, which exercise will ordinarily b...
-Notice from possession. Part 4
93. Adams v. Bradley, 12 Mich. 346. 94. Rogers v. Hussey, 36 Iowa, 664; Lance v. Gorman, 136 Pa. 200, 20 Am. St. Rep. 914, 20 Atl. 792. 95. Farmers' Nat Bank v. Sperling, 113 111. 273; Weisberger v....
-Notice from possession. Part 5
99. Townsend v. Little, 109 U. S 504, 510, 27 L. Ed. 1012; Kirby v. Tallmadge, 160 U. S. 379, 40 L. Ed. 463; Adams-booth Co. v. Reid, 112 Fed. 106; Munn v. Achey, 110 Ala. 628, 18 So. 299; Rubel v. Pa...
-Notice from possession. Part 6
983; Mcbee v. O'connell, 19 N. M. 565, 145 Pac. 123; Edwards v. Thompson, 71 N. C. 177; Randall v. Lingewall, 43 Ore. 383, 73 Pac. 1; Hood v. Fahnestock, 1 Pa. 470; Hottenstein v. Lerch, 104 Pa. 454; ...
-Notice from possession. Part 7
94 Neb. 621, 143 N. W. 944. The first cited case refers to Leach v. Ansbacher 55 Pa. 85, to the effect that, if a purchaser knows of a lease, he can attribute the lessee's possession to the lease, and...
-Sec. 572. Notice from statements in instruments of title
In so far as a purchaser has actual or constructive notice of a conveyance or other instrument executed by one previously owning or claiming to own the land, he is charged with notice of all matters s...
-Sec. 573. Actual and constructive notice
Notice is usually said to be either actual or constructive, but the cases and text books are absolutely lacking in harmony as to the line of demarcation between the two classes of notice, and any stat...
-Sec. 574. Purchasers for value
- (a) Valuable consideration. In order to claim priority as against one whose rights have first accrued, one must be a purchaser, for value, and one who receives a conveyance based on a merely good,...
-Purchasers for value. Part 2
67. Jor.-s v. Robinson, 77 Ala. 499; Randolph v. Webb, 116 Ala. 135, 22 So. 550; Hill v. Yar brough, 62 Ark. 320, 35 S. W. 433; Tripler v. Macdonnid Lura ber Co., 173 Cal 144, 159 Pac. 591; Gilchrist ...
-Purchasers for value. Part 3
In the case of a transaction between persons who are connected by no ties of relationship or friendship, the possibility of regarding the transaction as a gift is excluded, and it can only be regarded...
-Purchasers for value. Part 4
Before notice, he must, it lias been held, state such claim, with the grounds thereof, in his pleading.83 If the purchaser makes improvements on the property before receiving notice of the adverse cl...
-Sec. 575. Purchasers with notice from purchasers without notice
A purchaser for value may not only enjoy the property free from any adverse claim of which he had no notice at the time of his purchase, but he may also transfer his rights in this respect to others, ...
-Sec. 577. Purchasers at execution sales
A purchaser at a sale on execution stands, in most jurisdictions, in the position of any other purchaser for value, and takes free from any equitable claims upon the land, or claims based on unrecorde...
-Sec. 578. Burden of proof
Regarding the question of burden of proof, in its general aspect, in accordance with the statement of a leading authority on the law of evidence,4 as merely one of policy and fairness based on experi...
-Burden of proof. Continued
11. Bell v. Pleasant, 145 Cal. 410, 104 Am. St. Rep. 61, 78 Pac. 958; Gardner v. Early, 72 Iowa, 518, 34 N. W. 311; Ludowese v. Amidon, 124 Minn. 288, 144 N W. 965; Shraiberg v. Hanson, 138 Minn. 80, ...
-Sec. 579. Lis pendens
The doctrine of lis pendens by which one purchasing land from a party to a pending litigation concerning such land takes subject to the results of such litigation, is properly based, it would seem. no...
-Lis pendens. Continued
32. 2 Pomeroy, Eq. Jur. Sec. 640. See Smith v. Gale, 144 U. S 509, 36 L. Ed. 521; Zeigler v. Daniel, 128 Ark. 403, 194 S. W. 246; Bensley v. Mountain Lake Water Co., 13 Cal. 306, 73 Am Dec. 575; Trip...
-Real Property. Chapter XXXII. Registration Of Title
Sec. 580. The purpose of the legislation. 581. The method of registration. 582. Transfers after registration. 583. Equitable interests. 584. Liens. 585. Transfer of decedent's land. 580. The pur...
-Sec. 581. The method of registration
In order that land may be registered under the statute, and the initial certificate of title obtained, the following mode of procedure is usually prescribed: The person or persons claiming the ownersh...
-Sec. 582. Transfers after registration
After the title to particular land has been registered, all subsequent transactions affecting such title must be by means of the machinery furnished by the act. If the owner of the fee-simple title, a...
-Sec. 583. Equitable interests
The registration is of the legal title only, but, in case an equitable interest has been created in another by a declaration of trust or otherwise, a memorandum to that effect may, by some statutes, b...
-Sec. 584. Liens
Though the subject of liens, including mortgages, is treated in a subsequent part of this work, it seems desirable to here consider the effect of the registration of the title to land upon such liens ...
-Sec. 585. Transfer of decedent's land
The acts providing for the registration of title differ in their provisions for the transfer upon the register of lands belonging to a decedent. By some statutes it is provided that the title to all r...
-Chapter XXXIII. Restrictions Upon The Freedom Of Transfer
Sec. 586. General considerations. 587. Conveyances in fraud of creditors. 588. Conveyances in fraud of subsequent purchasers. 589. Conveyances in violation of the bankrupt act. 590. Transfers by d...
-Sec. 588. Conveyances in fraud of subsequent purchasers
St. 27 Eliz. c. 4, made perpetual by St. 39 Eliz. c. 18, provided in effect that all alienations of land, made with intent to defraud and deceive sub25. See Springer v. Bigford, 160 111. 495, 43 N. E....
-Conveyances in fraud of subsequent purchasers. Continued
Foster v. Walton, 5 Watts (Pa.) 378; Laird v. Scott, 5 Heisk. (Tenn.) 314. 37. 1 Stimson's Am. St. Law, Sec. 4592. 38. McNeely v. Rucker, 6 Blackf. (Ind.) 391; City of Baltimore v. Williams, 6 Md. 2...
-Sec. 591. The homestead exemption
In most of the states there are constitutional or statutory provisions exempting from execution or other forced sale for debts, to a certain extent, the homestead or residence of the debtor. While t...
-The homestead exemption. Part 2
71. Kitchell v. Burgwin, 21 111. 40; Barney v. Leeds, 51 N. H. 253; Chamberlain v. Brown, 33 S. C. 597, 11 S. E. 439; Miller alone is not usually entitled to the benefit of the law,72 even though he s...
-The homestead exemption. Part 3
87. Kaster v. McWilliams. 41 Ala. 302; Maloney v. Hefer, 75 Cal. 422, 7 Am. St. Rep. 180, 17 Pac. 539; Ashton v. Ingle, 20 Kan. 670, 27 Am. Rep. 197; Evans v. Caiman, 92 Mich. 427, 31 Am. St. Rep. 60...
-The homestead exemption. Part 4
Debts to which the exemption extends. The existence of the homestead exemption has the effect, generally, of relieving the property from liability for the debts of the owner, but the statute frequentl...
-The homestead exemption. Part 5
-Claim and selection. Though, usually, occupancy for residence purposes is sufficient to give to land the homestead character,19 in some states it is necessary that the owner and occupant also put on ...
-The homestead exemption. Part 6
28. Macke v. Byrd, 131 Mo. 682, 52 Am. St. Rep. 649, 33 S. W. 448; Watson v. Saxer, 102 III. 585; Smith v. Gore, 23 Kan. 488, 33 Am. Rep. 188; Cooper v. Arnett, 95 Ky. 603, 26 S. W. 811. The same eff...
-The homestead exemption. Part 7
As a condition or limitation operating indirectly to restrict alienation by a tenant in fee simple is invalid, so a direct prohibition of such alienation is invalid, that is, a tenant in fee simple ca...
-The homestead exemption. Part 8
53. Attwater v. Attwater, 18 Beav. 330; In re Rosher, 26 Ch. Div. 801; Anderson v. Cary, 36 Ohio St. 506; Schermerhorn v. Negus, 1 Denio (N. Y.) 448; Manierre v. Welling, 32 R, 1. 104, Ann. Cas. 1912 ...
-The homestead exemption. Part 9
62. Winsor v. Mills, 157 Mass. 362, 32 N. E. 352; Gerke v. Colonial Trust Co., 114 Md. 289, 79 Atl. 587; Oxlny v. Lane, 35 N. Y. 340; Dwyer v. Cahil-, 228 111. 617, 81 N. E. 1142. 63. Perin v. Carey,...
-The homestead exemption. Part 10
70a. That a provision defeating an estate for life upon its alienation is invalid appears to be decided in Streit v. Fay, 230 111. 319, 120 Am. St. Rep. 304, 82 N. E. 648; Diamond v. Rotan, 58 Tex. Ci...
-The homestead exemption. Part 11
79. Knight v. Browne, 7 Jur. N. S. 894; Re Brewer's Settlement (1896) 2 Ch. 503; Detmold v. Detmold, 40 Ch. D. 585. 80. See Phipps v. Ennismore, 4 Russ. 131; Gray. Restraints on Alienation, Sec.Sec....
-The homestead exemption. Part 12
1075; Mattison v. Mattison, 53 Ore. 254, 133 Am. St. Rep. 829, 18 Ann. Cas. 218, 100 Pac. 4; Thackara v. Muntzer, 100 Pa. St. 151; Wallace v. Campbell. 53 Tex, 229; Monday v. Vance, 92 Tex. 428, 49 S....
-The homestead exemption. Part 13
93. Huntington v. Jones, 72 Conn. 45, 43 Atl. 564; Wagner v. Wagner, 244 111. 101, 18 Ann. Cas. 490, 91 N. E. 66; Jackson Square Loan etc. Ass'n v. Bart-lett, 95 Md. 661, 93 Am. St. Rep. 416, 53 Atl. ...
-The homestead exemption. Part 14
3. See Schenck v. Barnes, 156 N. R. 316, 41 L. R. A. 395, 50 N. E. 967. So as to the California statute McColgan v. Walter Magee, Inc. 172 Cal. 182, Ann. Cas. 1917D, 1050, 155 Pac. 995. 4. Re Qua v. ...
-Chapter XXXIV. Personal Disabilities As To The Transfer Of Land
Sec.593. Married women. 594. Infants. 595. Persons mentally incapacitated. 596. Corporations. 597. Aliens. 598. Criminals. 593. Married women. At common law, a married woman could not dispose of...
-Sec. 594. Infants
At common law, any person under the age of twenty-one is an infant, but by statute in a number of states the period of infancy is, in the case of females, reduced to eighteen years, and, in some, the ...
-Infants. Part 2
Connelly, 206 N. Y. 188, 99 N. E. 722; Carolina Interstate Building & Loan Ass'n v. Black, 119 N. C. 323, 25 S. E. 975. In some states the statute prohibits the disaffirmance of a contract by an infan...
-Infants. Part 3
Acquiescence. It has been quite frequently said that the grantor must repudiate or disaffirm his conveyance within a reasonable time after his arrival at majority, and that his failure so to do involv...
-Infants. Part 4
45a. Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Prout v. Wiley, 28 Mich. 164; Donovan v. Ward, 100 Mich. 601, 59 N. W. 254; Shipp v. McKee, 80 Miss. 741, 92 Am. St. Rep. 616, 32 So. 281; Lac...
-Infants. Part 5
The authorities are not in accord as to the effect of a conveyance inter vivos by a person mentally incapacitated. According to some decisions, such a conveyance is, like that of an infant, merely voi...
-Infants. Part 6
It has been decided that one to whom the grantor, after recovering his sanity, transfers the property, has the same right to avoid a conveyance made by his grantor while insane, in favor of another pe...
-Sec. 596. Corporations
A corporation has, in the absence of an express prohibition, the same power as a private individual to transfer its land, as well as its other property, provided only that the transfer is for an objec...
-Corporations. Continued
597. Aliens. At common law, an alien might take land by purchase, that is, by transfer inter vivos or devise, and hold the same until a forfeiture in favor of the state was enforced by a proceeding ...
-Sec. 598. Criminals
At common law, while one attainted of treason and felony could not, by alienation of any estate vested in him, deprive the crown of the right to enforce a forfeiture, he could, it seems, make and rece...
-Part VI. Liens. Chapter XXXV. Mortgages
I. The Nature And Essentials Of A Mortgage Sec. 599. Historical considerations. 600. Title and lien theories. 601. The right of redemption. 602. Interests which may be mortgaged. 603. The form an...
-I. The Nature And Essentials Of A Mortgage. Sec. 599. Historical considerations
Transfers of land as security for a debt assumed, in early times in England, various forms, among which was the mortuum vadium, from which has been derived the term mortgage. The mortuum vadium was ...
-Sec. 600. Title and lien theories
While, as just stated, the courts of equity have, from a quite early period, regarded the mortgagee as having a lien or charge merely, the common law view that, by the making of the mortgage, the lega...
-Sec. 601. The right of redemption
After the court of chancery established the doctrine that the mortgagor might redeem after default, persons lending money on mortgage security naturally attempted to defeat the right of redemption in ...
-Sec. 602. Interests which may be mortgaged
Any interests in land which may be the subject of sale, grant, or assignment, may be mortgaged.33 Accordingly there may be a mortgage of a rent,34 an estate in remainder or reversion,15 an estate tail...
-Sec. 603. The form and execution of a mortgage
In the states which have adhered to the title theory of a mortgage, a mortgage instrument still takes the form of a conveyance on condition subsequent, and, singularly-enough, the same form is utilize...
-Sec. 604. Necessity of acceptance
We have before considered the question whether an absolute conveyance of land must be accepted by the grantee, and a like question arises as to a mortgage. By the decided weight of authority in this c...
-Necessity of acceptance. Part 2
90. First Nat. Bank of Florida v. Ashmead, 23 Fla. 379, 2 So. 657. 665; Cotten v. McKee, 68 Me. 486; Reitenbaugh v. Ludwick, 31 Pa. St 131; and see cases cited in preceding note. 91. Baker v. Wind, 1...
-Necessity of acceptance. Part 3
97. Cotterell v. Purchase, Cas. temp. Talb. 61; Jones v. Trawick. 31 Ala. 253; Inhabitants of Reading v. Weston, 8 Conn. 117, 20 Am. Dec. 97; Finlon v. Clark, 118 III. 32, 7 N. E. 475; Stinchfield v. ...
-Necessity of acceptance. Part 4
Veyance otherwise than as a mortgage, contrary to the intention of the parties, is regarded as itself constituting a fraud, authorizing the introduction of oral evidence of the. real intention of the ...
-Necessity of acceptance. Part 5
17. Conway v. Alexander, 7 Cranch (U. S.) 218, 237, 3 L. Ed. 321; Flagg.v. Mann, 2 Sumn. 486, Fed. Cas. No. 4847; American Mortgage Co. v. Williams, 103 Ark. 484, 145 S. W. 234; Montgomery v. Spect, 5...
-Necessity of acceptance. Part 6
(e) Protection of bona fide purchaser. A purchaser for value from the grantee in an absolute conveyance is not affected by the fact that it was intended to operate as a mortgage and is consequently su...
-Necessity of acceptance. Part 7
Balduff v. Griswold, 9 Okla. 43?, 60 Pac. 223; Beebe v. Wisconsin Mortgage Loan Co., 117 Wis. 328, 93 N. W. 1103. 32. Ante, Sec. 605(d). 33. Hughes v. McKenzie, 101 Ala. 415, 13 So. 609; Lamberson v...
-Necessity of acceptance. Part 8
39. Sacramento Bank v. Alcorn, 121 Cal. 379, 53 Pac. 813; MacLeod v. Moran, 153 Cal. 97, 94 Pac. 604; Stephens v. Clay, 17 Colo. 489, 31 Am. St. Rep. 328, 30 Pac. 43; Soutter v. Miller, 15 Fla. 625; D...
-Necessity of acceptance. Part 9
While it has been judicially asserted that a deed of trust to secure a debt, if made to the creditor himself, must be regarded as a mortgage,61 it does not seem that a deed of trust to secure a debt s...
-Sec. 606. Necessity of consideration
It is quite frequently asserted or assumed that a mortgage is invalid unless supported by a consideration,65 but this position is, it is conceived, of doubtful correctness. Regarding a mortgage from t...
-Sec. 607. The obligation secured - (a) Character of obligation
Any contractual obligation reducible to a money value may be secured by a mortgage.73 The obligation secured is ordinarily one for the payment of money, created at the time of the execution and dev. G...
-The obligation secured - (a) Character of obligation. Part 2
81. Bethlehem v. Annis, 40 N. H 34, 77 Am. Dec. 700; Bryant v. Erskine, 55 Me. 153; Daniels v. Eisenlord, 10 Mich. 454. 82. Post, Sec. 607(c). 83. Locke v. Moulton, 96 Cal. 21, 30 Pac. 957; Scott v....
-The obligation secured - (a) Character of obligation. Part 3
The acceptance of the promissory note of a debt or, for the amount of the debt, contemporaneously with the creation of the debt, as when a purchaser of goods gives, at the time of purchase, a note for...
-The obligation secured - (a) Character of obligation. Part 4
As regards the necessity of a specific description of the debt, otherwise than in reference to amount, no particular strictness appears to exist, except perhaps in the state of Connecticut.9 While in ...
-The obligation secured - (a) Character of obligation. Part 5
15. Wood v. Weimar, 104 U. S. 786, 26 L. Ed. 779; Clark v. Hy-man, 55 Iowa, 14, 39 Am. Rep. 160, 7 N. W. 386. But see Jewett v. Preston, 27 Me. 400. 16. 4 Wigmore, Evidence, Sec. 2476. 17. Aull v. L...
-Sec. 608. Legality of purpose of mortgage
A mortgage is invalid if made for an illegal purpose, as, for instance, when it is the price of future cohabitation,45 when it is given to obtain the suppression of a criminal prosecution,46 or when i...
-II. Rights And Liabilities Incident To The Mortgage Relation. Sec. 609. Nature of the mortgagor's interest
Even in jurisdictions in which the title theory of a mortgage as in England, the legal title to the land. This title, however, does not make him the owner of the land, except in so far as the exercise...
-Sec. 610. Nature of the mortgagee's interest
The mortgagee has, as before stated, in some of the states, 60. Casborne v. Scarfe, 1 Atk. 603; Clark v. Reyburn, 8 Wall. (U. S.) 318, 19 L. Ed. 354; Den-bam v. Kirkpatrick, 64 Ga. 71; Moore v. Ander...
-Sec. 611. The relation not fiduciary
Though the mortgagee has, in those states in which the common-law theory of a mortgage is adopted, the legal title, while the mortgagor has an equitable interest, the reBuckley v. Daley, 45 Miss. 338;...
-Sec. 612. The right to possession of the land
Under the common law view of the nature of a mortgage, the mortgagee is, in the absence of an agreement to the contrary, entitled to the possession of the mortgaged property, and this is generally the...
-The right to possession of the land. Continued
The doctrine referred to appears to have had its origin in the state of New York, before the acceptance, to its full extent, of the lien theory of a mort95. Frink v. Le Roy, 49 Cal. 314; Bradley v. No...
-Sec. 613. Rents and profits - (a) Mortgagor in possession
A mortgagor who is in possession of the land is entitled to receive and apply to his own use the rents and profits of the land;20 and this is so, even when the mortgage expressly includes rents and pr...
-Rents and profits - (a) Mortgagor in possession. Part 2
32. Sexton v. Breese, 135 N. Y 387, 32 N. E. 133; Killebrew v. Hines, 104 N. C. 182, 17 Am. St. Rep. 672, 10 S. E. 159, 251; Hina mortgage or sale of the crop, although not followed by an actual sever...
-Rents and profits - (a) Mortgagor in possession. Part 3
42. Ante, this section, note 33. 43. Batterman v. Albright, 122 N. Y. 484, 11 L. R. A. 800, 19 Am. St. Rep. 510. 25 N. E. 856, per Bradley J. 44. Peugh v. Davis, 113 U. S. 542, 28 L. Ed. 1127, Dicke...
-Rents and profits - (a) Mortgagor in possession. Part 4
Ind. 244, 17 Am. st. Rep 364, 23 N. E. 791. 54. Gaskell v. Viquesney, 122 Ind. 244, 17 Am. St. Rep. 364, 23 N. E. 791; Gray v. Nelson, 77 Iowa, 63, 41 N. W. 566; Rogers v. Herron, 92 111. 583. Rut se...
-Sec. 614. Effect of lease of the land (a) Lease before mortgage
In jurisdictions where a mortgage transfers the legal title, if a lease was made by the mortgagor before executing the mortgage, the mortgagee is in the position of a transferee of the reversion, and ...
-Sec. 615. Expenditures by mortgagee
The mortgagee is entitled to pay off an incumbrance on the land prior to his mortgage, in order to protect the latter, and may claim a credit for the amount so paid, he being subrogated to the rights ...
-Sec. 616. Taxes
As between a mortgagor in possession of the property and the mortgagee, it is for the former, and not the latter, to pay the taxes,99 and if he fails to do so and the mortgagee is compelled to pay the...
-Taxes. Continued
Building & Loan Ass'n v. Waters, 50 S. C. 459, 27 S. E. 948. That the mortgagor's wife may purchase, see Wood v. Armour, 88 Wis. 488, 43 Am. St. Rep. 918, 60 N. W. 791. 9. Stears v. Hollenbeck, 38 Io...
-Sec. 617. Insurance - By mortgagor
The mortgagor has an insurable interest in the land,21 and may insure to the full value of the property, even though the mortgage be for such value.22 His insurable interest continues even after forec...
-Sec. 618. Injuries to the land - Remedies of the mortgagee
The owner of land subject to a mortgage, in possession of the land, is under an obligation not to commit waste as against the mortgagee. What constitutes waste as between mortgagor and mortgagee is, i...
-Injuries to the land - Remedies of the mortgagee. Continued
46. Ensign v. Colburn, 11 Paige (N. Y.) 503; Emmons v. Hinder-er, 24 N. J. Eq. 39. See Scott v. Webster, 50 Wis. 53, 6 N. W. 363. 47. Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147 ...
-Sec. 619. Execution sale of mortgagor's interest
Formerly, in England, the mortgagor's interest being regarded as purely equitable, it was not subject to execution for his debts,64 and such may still be the law as recognized in one or two states.65 ...
-Execution sale of mortgagor's interest. Continued
71. Rawson v. Plaisted, 151 Mass. 71, 23 N. E. 722. 72. Williams v. Baker, 62 N. J. Eq. 563, 51 Atl. 201 claim to judgment and enforce it by execution against the mortgaged property.73 Execution for...
-III. Transfer Of Mortgaged Land. Sec. 620. General considerations
The mortgagor may, as before stated, convey or devise the mortgaged land, it may be sold on execution, and it passes, on his death intestate, to his heirs or, if his estate is less than freehold, to h...
-Sec. 621. Transfer to mortgagee
After the making of the mortgage, the mortgagor and the mortgagee may deal with each other as any other individuals, and a conveyance by the mortgagor to the mortgagee of his interest in the land is o...
-Transfer to mortgagee. Continued
The transfer of the mortgagor's interest to the mortgagee must ordinarily, it seems clear, comply with the Statute of Frauds.8 In the case of an absolute conveyance intended for purposes of security, ...
-Sec. 622. Transfer subject to mortgage
The transfer of the mortgaged land may be merely subject to the-mortgage, or it may be accompanied by an agreement on the part of the transferee to pay the mortgage debt, a contract of assumption, a...
-Transfer subject to mortgage. Continued
Foster, 55 Me. 508; Hopper v. Smyser, 90 Md. 363, 45 Atl. 206; Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; Fuller v. Devolld, 144 Mo. App. 93, 128 S. W. 1011; Magie v. Reynolds, 51 N...
-Sec. 623. Assumption of mortgage debt
In case the transferee of the land expressly agrees to pay or assume the mortgage or mortgage debt, he becomes personally, liable for the amount of the debt,49 a lia48. In Savings Investment & Trust C...
-Assumption of mortgage debt. Part 2
57. Helms v. Kearns, 40 Ind. 124; Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18; Pike v. Brown, 7 Cush. (Mass.) 133; Thompson v. Cheesman, 15 Utah, 43, 48 Pac. 477; Morgan v. South Milwaukee Lake V...
-Assumption of mortgage debt. Part 3
70. Comstock v. Hitt, 37 111. 542; Siegel v. Borland, 191 111. 107, 60 N. E. 863; Townsend v. Ward, 27 Conn. 610; Twichell v. Mears, 8 Biss. 211, Fed. Cas. No. 14,286. 71. Siegel v. Borland, 191 111....
-Assumption of mortgage debt. Part 4
A question of difficulty arises when the transferor of the mortgaged property is not himself personally liable for the mortgage debt, as, for instance, when one acquires the property without agreeing ...
-Assumption of mortgage debt. Part 5
47 Minn. 103, 49 N. W. 526; Wood v. Johnson, 117 Minn. 267, 135 N. W. 746; Fry v. Ausman, 29 S. D. 30, 39 L. R. A. (N. S.) 150, Ann. Cas. 1914C, 842, 135 N. W. 708. See Kramer v. Gardner, 104 Minn. 37...
-Assumption of mortgage debt. Part 6
1. Bay v. Williams, 112 111. 91, 54 Am. Rep. 209, 1 N. E. 340; Starbird v. Cranston, 24 Colo. 20, 48 Pac. 652; Ranney v. McMullen, 5 Abb. N. Cas. 246. See Rogers v. Gosnell, 58 Mo 589; Douglas v. Well...
-Sec. 624. Transferor becoming surety
Upon the assumption of the mortgage debt by the transferee, he becomes, according to the current of authority, as regards the transferor, the principal debtor, while the transferor becomes a surety me...
-Sec. 625. Transfer of part of land
In case distinct portions of the land are conveyed to different persons by simultaneous and similar conveyances, and no one of such transferees assumes the mortgage, each portion is liable for a part ...
-Transfer of part of land. Part 2
40. Chase v. Woodbury, 6 Cush. (Mass.) 143; Pollard v. Noyes, 60 N. H. 184; Henderson v. Truitt, 95 Ind. 309; Clark v. Warren, 55 Ga. 575; Holcomb v. Holcomb, 2 Barb. (N. Y.) 20. See iwst, Sec. 646, n...
-Transfer of part of land. Part 3
144. In Mead v. Peabody, 183 111. 126, 55 N. E. 719, it was decided without discussion that the part first transferred should be first applied on the debt, when the transfer was for a nominal consider...
-Transfer of part of land. Part 4
59. Pearson v. Bailey, 177 Mass. 318, 58 N. E. 1028. And see Burger v. Greif, 55 Md. 518, apparently to the same effect. 60. Savings Bank v. Creswell, 100 U. S. 630, 25 L. Ed. 713; Fas-sett v. Mulock...
-Sec. 626. Transferor's conduct as affecting the bar of limitations
A number of courts have adopted the view that, if the mortgaged land is transferred by the mortgagor to another, and the mortgagor thereafter, by his absence from the state or acknowledgment of the de...
-IV. Transfer Of Mortgagee's Rights. Sec. 627. General considerations
Since the debt is, in the view of a court of equity, the principal, and the security upon the land merely the accessory, a transfer of the mortgagee's rights, an assignment of the mortgage, as it is...
-Sec. 628. Method of transfer(a) Transfer of the debt
Applying the equitable principle that the debt or other obligation secured is the principal thing, and the mortgage securing it merely an incident, it has become the established rule in courts of equi...
-Method of transfer(a) Transfer of the debt. Part 2
7. Betz v. Newcomer, 1 Pen. & W. (Pa.) 280; Keyes v. Wood, 21 Vt. 331; Evertson v. Booth, 19 Johns. (N. Y.) 491. But see Franklin Sav. Bank v. Colby, 105 Iowa, 424, 75 N. W. 346. 8. See 2 Jones, Mor...
-Method of transfer(a) Transfer of the debt. Part 3
It has occasionally been asserted that while, if a note or bond was given for the debt secured, the debt does not pass by an assignment in terms of the mortgage, it does pass in case there is no debt ...
-Method of transfer(a) Transfer of the debt. Part 4
A transfer of the legal title vested in the mortgagee by the execution of the mortgage, does not pass an interest in the mortgaged land, which the mortgagee may happen to have, entirely distinct from ...
-Sec. 629. Consideration for transfer
In spite of occasional statements to the contrary,56 a transfer of the mortgagee's rights is unquestionably valid, although not supported by a valuable consideration.57 One has as much right to make a...
-Sec. 630. Transfer as subject to equities - (a) In favor of debtor
The transferee of an obligation secured by mortgage is ordinarily in the position of any transferee of a non-negotiable chose in action, and takes it subject to all equities and defenses which exist i...
-Transfer as subject to equities - (a) In favor of debtor. Part 2
68. See Payne v. Burnham, 62 N. Y. 69; Smyth v. Munroe, 84 N. Y. 354; Ashton's Appeal, 75 Pa. 153; Griffiths v. Sears, 112 Pa. 523, 4 Atl. 492; Nixon v. Haslett, 74 N. J. Eq. 789, 70 Atl. 987. 69. Ba...
-Transfer as subject to equities - (a) In favor of debtor. Part 3
76. 2 Ames, Cas. Bills & Notes. p. 812; Norton, Bills & Notes, (3rd Ed.) 216. 77. Tabor v. Foy. 56 Iowa 539, 9 N. W. 897 (forgery); Mersman v Werges, 1 McCrary, 528, 3 Fed. 378, 112 U. S. 139, 28 L. ...
-Sec. 631. Record and priorities
An assignment of mortgage, that is, a transfer of the debt secured by mortgage, together with an express transfer of the mortgage security,97 is usually regarded as within the operation of the recor...
-Sec. 632. Transfer of part of debt
The principle that an assignment of the debt involves an assignment of the mortgage security applies in the case of an assignment of a part only of the debt, which is usually effected by a transfer of...
-Transfer of part of debt. Continued
27. That the assignee is entitled to such priority, see Cullum v. Erwin, 4 Ala. 452; Alabama Gold Life Ins. Co. v. Hall, 58 Ala. 1; Knight v. Ray, 75 Ala. 383; Farmers' Sav. Bank v. Murphree. - Ala.-,...
-V. Priority Of Lien. Sec. 633. General considerations
Apart from the recording acts, a mortgage made by the owner of land would ordinarily take priority over any conveyance or mortgage thereafter made by him. If the prior mortgage involves a transfer of ...
-Sec. 634. Contemporaneous mortgages
If two or more mortgages upon the same property are executed and delivered on the same day, somewhat difficult questions of priority may arise.52 Occasionally the courts have indicated an unwillingnes...
-Sec. 635. "Waiver" of priority
It appears to be well established that a creditor whose debt is secured by a mortgage may, without relinquishing his lien, give priority to one whose incumbrance would otherwise be junior to his own.5...
-Sec. 636. Purchase money mortgage
In most states, if the purchaser of land, upon receiving a conveyance thereof, as a part of the same transaction executes a mortgage to the vendor to secure a part or the whole of the purchase price, ...
-Sec. 637. Mortgage for future advances
A mortgage given to secure advances which may be made in the future to the mortgagor, or liabilities to be assumed for him by the mortgagee in the future, is valid, even as against creditors and subse...
-Sec. 638. Right to question prior mortgage
The right of the transferee of land to question the validity of an asserted mortgage thereon has been the subject of a number of decisions, and is a matter of considerable difficulty. It is ordinarily...
-Right to question prior mortgage. Part 2
Pose of securing a valid debt, but that the debt which it purports to secure is invalid or non existent in whole or in part. There are quite a number of cases to the effect that a transferee who takes...
-Right to question prior mortgage. Part 3
Iowa, 36. And see Chaffe v. Wilson, 59 Miss. 42. The head note to Ritter v. Phillips, 53 N. Y. 586, is contra, but is not supported by the opinion. 6. Welbon v. Webster, 89 Minn. 177, 94 N. W. 550; B...
-Sec. 639. Tacking and consolidation
By the doctrine of tacking, which has long prevailed in England, a mortgagee, having the legal estate, may, upon making a further advance or acquiring a further charge on the same land, tack or add ...
-VI. Extinction Of The Mortgage. Sec. 640. Discharge of obligation secured-(a) General considerations
The discharge of the obligation secured, either by payment or otherwise, has necessarily the effect of extinguishing the mortgage lien. The principal having ceased to exist, the accessory must also ce...
-Discharge of obligation secured-(a) General considerations. Part 2
Occasionally the mortgage instrument provides that it shall be void in a certain contingency other than the payment of the debt secured, as, for instance, in case of the death of the mortgagee,38 or i...
-Discharge of obligation secured-(a) General considerations. Part 3
56. Richardson v. Cambridge, 2 Allen (Mass.) 118, 79 Am. Dec. 767; Ormsby v. Barr, 21 Mich. 474; Johnson v. Nations, 26 Miss. 147; Smith v. Smith, 15 N. H. 55; sumed in the case of a debt so secured, ...
-Discharge of obligation secured-(a) General considerations. Part 4
79. Post, this section, note 82. 80. Post, Sec. 646. 81. Kortright v. Cady, 21 N. Y. 343, 78 Am. Dec. 145; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; Potts v. Plaisted, 30 Mich. 149. 82. Rob...
-Discharge of obligation secured-(a) General considerations. Part 5
92. Vann v. Marbury, 100 Ala. 438, 23 L. R. A. 325, 46 Am. St. Rep. 70, 14 So. 273; Foster v. Beals, 21 N. Y. 247; Barnes v. Long Island Real Estate Exch. & Inv. Co., 88 N. Y. App. Div. 83. 84 N. Y. S...
-Discharge of obligation secured-(a) General considerations. Part 6
-In case of a negotiable instrument. A negotiable note is, in respect to the effect of a payment thereon to one who has previously transferred it to another, as it is in other respects, governed by a ...
-Discharge of obligation secured-(a) General considerations. Part 7
13. Vann v. Marbury, 100 Ala. 438, 23 L. R. A. 325, 46 Am. St. Rep. 70, 14 So. 273; Napieralski v. Simon, 198 111. 384, 64 N. E. 1042; McCabe v. Farnsworth, 27 Mich. 52; Van Keuren v. Corkins, 66 N. Y...
-Discharge of obligation secured-(a) General considerations. Part 8
24. Pimm v. Greville, 6 Espin. 95; Hunter v. Le Conte, 6 Cow. (.N. Y.) 729. See forms of pleading to an avowry in 3 Chitty. Pleading (5th Ed) 1192, 1229; Archbold, Landlord & Ten. 297. Trover or deti...
-Discharge of obligation secured-(a) General considerations. Part 9
Even conceding that a tender of the debt at maturity may operate to discharge the mortgage lien, a tender, unless kept good, will not have such an effect, it has been decided, if made by a purchaser o...
-Discharge of obligation secured-(a) General considerations. Part 10
41. Ante, Sec. 640(b), notes 50, 51. 42. Bassett v. Mason, 18 Conn. 131; Lilly v. Palmer, 51 111. 331; Spencer v. Hartford, 4 Wend. (N. Y.) 381; See Webb v. Meloy, 32 Wis. 319. 43. Hartford Fire Ins...
-Discharge of obligation secured-(a) General considerations. Part 11
Den d. Van Wagenen v. Brown, 26 N. J. L. 196; James v. Morey, 2 Cow. (N. Y.) 246, 14 Am. Dec. 475; Watson v. Dundee Mortgage & Trust Inv. Co., 12 Ore. 474, 8 Pac. 548; Duncan v. Drury, 9 Pa. St. 332, ...
-Discharge of obligation secured-(a) General considerations. Part 12
That one to whom the land has been transferred subject to a mortgage thereon,67 without assuming the mortgage debt, subsequently acquires the debt and mortgage, does not necessarily involve a discharg...
-Discharge of obligation secured-(a) General considerations. Part 13
75. National Investment Co. v. Nordin, 50 Minn. 336, 52 N. W. 899; Cock v. Bailey, 146 Pa. 328, 23 Atl. 370. 76. Post, Sec. 646, note 99. 77. See Senter v. Senter, 87 Ohio St. 377, 101 N. E. 272. 7...
-Discharge of obligation secured-(a) General considerations. Part 14
84. Ehrman v. Alabama Mineral Land Co., 109 Ala. 478, 20 So. 112; Strever v. Earl, 60 Hun (N. Y.) 528, 15 N. Y. Supp. 350; Clark v. Clark, 56 N. H. 105. 85. See Wallace v. Blair, 1 Grant (Pa.) 75; Ca...
-Discharge of obligation secured-(a) General considerations. Part 15
96. See Austin v. Steele, 68 Ark. 348, 58 S. W. 352; London & S. F. Bank v. Bandmann, 120 Cal. 220, 65 Am. St. Rep. 179, 52 Pac. 583; Bumgardner v. Wealand, 197 Mo. 433, 95 S. W. 211; Haggart v. Wilcz...
-Discharge of obligation secured-(a) General considerations. Part 16
9 N. E. 413; Bunker v. Barron, 79 Me. 62!, 1 Am. St. Rep. 282, 8 Atl. 253; Lovell v. Williams, 125 Mass. 442; Pinney v. Kimpton, 46 Vt. 80. 6. Ford v. Burks, 37 Ark. 91; Flower v. Elwood, 66 111. 438...
-Sec. 641. Effect of new mortgage
A mortgage is not necessarily discharged by reason of the fact that another mortgage upon the same property is subsequently executed to secure the same debt, 28 and consequently the first mortgage may...
-Effect of new mortgage. Part 2
C. A. 1; Macomber v. French, 198 Mass. 20, 84 N. E. 328. 40. Remington Paper Co. v. O'Dougherty, 81 N. Y. 474; Kingpecuniary penalty upon one who, upon the discharge of the debt secured, fails to exe...
-Effect of new mortgage. Part 3
-(c) Power or authority to execute. Since the satisfaction or release is merely an acknowledgment of the discharge of the debt or, if the debt is not discharged, a relinquishment of the right to proce...
-Effect of new mortgage. Part 4
482, 63 Am. St. Rep. 460, 71 N. W. 538; Mann v. Jummel, 183 III. 523, 56 N. E. 161. 60. Stiger v. Bent, 111 111. App. 328; Connecticut General Life Ins. Co. v. Eldredge, 102 U. S. 545, 26 L. Ed. 245....
-Effect of new mortgage. Part 5
So it has been decided that if the assignment is not recorded, the assignee is bound by an agreement on the part of the assignor, with one who took a second mortgage, that such second mortgage should ...
-Sec. 643. Subsequent reissue of mortgage
Since the discharge of the obligation secured, by payment or otherwise, extinguishes the mortgage lien, it would seem necessarily to follow that that lien cannot be subsequently utilized to secure ano...
-Sec. 644. Release of principal debtor
In case a mortgage is given on the land of one person to secure the debt of another, the former is in effect a surety to the extent of his land, and if the creditor releases the principal debtor or ot...
-Sec. 645. Right to extinguish by payment (Right to redeem) - (a) Persons entitled
The mortgagor, or any other person having an interest in the land, and who is in privity with and claims under the mortgagor, may redeem from the mortgage, provided he would be prejudiced by the enfor...
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 2
15. Huston v. Seeley, 27 Iowa, 183 (nonjoinder in mortgage); Opdyke v. Bartles, 11 N. J. Eq. 133 (nonjoinder in mortgage). See Barker v. Burton, 67 Barb. (N. Y.) 458. 16. Daniels v. Henderson, 5 Fla....
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 3
28. Smith v. Simpson, 129 Ark. 275, 195 S. W. 1067; Hocker v. Reas, 18 Cal. 650; Williams v. Dickerson, 66 Iowa, 105. 37 N. W. 286; Mann v. Richardson, 21 Pick. (Mass.) 355; Adams v. Brown, 7 Cush. (M...
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 4
41. Anthony v. Anthony. 23 Ark. 479: Scripture v. Johnson, 3 Conn. 211; Brown v. Gaffney, 32 111. 251; Downing v. Palmateer, 1 T. B. Mon. (Ky.) 64. 70 ; Chase v. McDonald, 7 H. & J. (Md.) 161, 196; Le...
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 5
49. Clarke v. Robinson, 15 R. I. 231, 10 Atl. 642; Hazard v. Robinson, 15 R. I. 226, 2 Atl. 433. 50. Quint v. Little, 4 Me. 495; Danforth v. Roberts, 20 Me. 307; Chase v. McLellan, 49 Me. 375; Brown...
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 6
62. Drum v. Bryan, - (Ala.) -, 40 So. 131; Warder v. Enslen, 73 Cal. 291, 14 Pac. 874; Garrett v. Ellis, 98 Miss. 1, 52 So. 451; Cbapin v. Wright, 41 N. J. Eq. 438, 5 Atl. 574; Pecker v. Mc-Crea, 193 ...
-Right to extinguish by payment (Right to redeem) - (a) Persons entitled. Part 7
The mortgagee in possession is required to account for rents and profits when the person seeking to redeem is a junior mortgagee as well as when he is the mortgagor himself, the junior mortgagee repre...
-Sec. 646. Subrogation on payment
While the payment of the debt secured by a mortgage extinguishes thei mortgage so far as the mortgage creditor is concerned, it does not necessarily have that effect as regards the person making the p...
-Subrogation on payment. Part 2
99. Southworth v. Scofield, 51 N. Y. 513. 1. Ante, Sec. 624, note 28. 2. Ante, Sec. 623, against the land, so as to take priority of others having junior incumbrances thereon or for other purposes.3...
-Subrogation on payment. Part 3
9. Matteson v. Thomas, 41 III. 110; Barker v. Flood, 103 Mass. The right of subrogation does not exist in favor of a mere stranger who voluntarily pays the debt and by such payment the mortgage is ex...
-Subrogation on payment. Part 4
An important application of the doctrine of subrogation occurs in the case of an invalid sale for the purpose of foreclosing a mortgage, whether under a decree of court or under a power of sale in the...
-VII. Foreclosure. Sec. 648. Accrual of the right to foreclose
Fore closure is the proceeding by which a mortgagor or other owner of an interest in the land is, upon his failure to comply with the stipulations of the mortgage or of the instrument secured thereby,...
-Sec. 649. Bar by lapse of time
Not infrequently the state statute expressly provides that a suit to foreclose a mortgage shall be brought within a time named. In the absence of such a provision, equity has occasionally applied, by ...
-Sec. 650. Strict foreclosure in equity
Before the right of redemption was recognized by courts of equity, no foreclosure was necessary, since the mere breach of the condition vested an absolute estate in the mortgagee. When, however, the r...
-Sec. 651. Foreclosure by entry
Akin to strict fore closure in equity, as vesting in the mortgagee an absolute estate in the land itself, is foreclosure by the peaceable entry of the mortgagee upon the premises, and his retention of...
-Sec. 652. Foreclosure by writ of entry
In Maine, Massachusetts, and New Hampshire, the mortgagee may bring a writ of entry for the purpose of foreclosure. This proceeding, though in form a common-law action, has, when used for the purpose ...
-Sec. 654. Equitable proceeding for sale
The most usual method of foreclosure in this country is by a suit in equity, or by a civil proceeding under the code in the nature of a suit in equity, to obtain a sale of the land, and payment of the...
-Equitable proceeding for sale. Part 2
The decree for sale, or decree confirming the sale, if rendered by a court having jurisdiction, is, like any other judgment or decree, immune from collateral at-tack.99a The rule which ordinarily obt...
-Equitable proceeding for sale. Part 3
3. Stone v. Missouri Guarantee, etc., Ass'n, 58 111. App. 78; Benton v. Wood, 17 Ind. 260; Hughes v Riggs, 84 Md. 502, 36 Atl. 269; Parkhurst v. Cory, 3 N. J. Eq. 233; Kane v. Jonasen, 55 Neb. 757, 76...
-Sec. 655. Parties to proceeding Persons interested in mortgage debt
The mortgagee, if he has not assigned his rights, is the proper party plaintiff in a foreclosure suit. An assignee of the mortgage debt, with or without an express assignment of the mortgage, may fore...
-Parties to proceeding Persons interested in mortgage debt. Part 2
In the case of a deed of trust to secure, it is necessary, ordinarily, to make the creditor or creditors secured, as well as the trustee, parties to a proceeding for the sale of the property.46 This r...
-Parties to proceeding Persons interested in mortgage debt. Part 3
56. But, by the doctrine adopt ed in a number of states, if the His estate, in other words, remains unaffected by a proceeding to which he is not a party. It is occasionally said that the owner of th...
-Parties to proceeding Persons interested in mortgage debt. Part 4
Fed. Cas. No. 14,120; Kuhnert v. Conrad, 6 N. D. 215, 69 N. W. 185. 68. Clark v. Reyburn, 8 Wall. (U. S.) 318, 19 L. Ed. 354; Noyes v. Hall, 97 U. S. 34, 24 L. Ed. 909; Roberts v. Atlanta Cemetery As...
-Parties to proceeding Persons interested in mortgage debt. Part 5
The cases are usually to the effect that a junior claimant who is not made a party to a foreclosure proceeding cannot be required, as a condition of redeeming, to pay any part of the costs incurred in...
-Sec. 656. Power of sale
Owing to the delays and expense incident to foreclosure by bill in equity, and the difficulty of making proper parties thereto, the device has been largely resorted to of inserting in the mortgage ins...
-Power of sale. Part 2
96. Cheney v. Crandell, 28 Colo. 383, 65 Pac. 56; Equitable Trust Co. v. Fisher, 106 III. 189; Magee been held that a sale which is invalid on this ground may be ratified by the conduct of the credito...
-Power of sale. Part 3
7. See Pardee v. Lindley, 31 III. 174; Strother v. Law, 54 III. 413; Mason v. Ainsworth, 58 III. 163. 8. Sanford v. Kane, 133 III. 199, 8 L. R. A. 724, 23 Am. St. Rep. 602, 24 N. E. 414. 9. Olcott v...
-Power of sale. Part 4
Revocation. The mortgagor cannot revoke the power of sale, even though it be regarded as one of agency only, since that would in effect involve a Tex. 7; Smith v. Woodward, 122 Va. 356, 94 S. E. 916....
-Power of sale. Part 5
36. Ante, this section, note 93b. 37. Wilkins v. McGehee, 86 Ga. 764, 13 S. E. 84; Johnson v. Johnson, 27 S. C. 309, 13 Am. St. Rep. 636, 3 S. E. 606; Baum v. Raley, 53 S. C. 32, 30 S. E. 713; Locket...
-Power of sale. Part 6
53a. Long v. Little, 119 111. 600, 8 N. E. 194; Devlin v. Quigg, 44 Minn. 534, 10 L. R. A. 665, 20 Am. St. Rep. 592, 47 N. W. 258, Brooks v. Owen, 112 Mo. 251, 19 S. W. 723, 20 S. W. 492 53b. Verdin...
-Power of sale. Part 7
181, 65 So. 364; Cassidy v. Cook, 99 111. 385; Dearnaley v. Chase, 136 Mass. 288; Kelsay v. Farmers & Traders' Bank, 166 Mo. 157, 65 S. W. 1007; Shears v. Traders Bldg. Ass'n, 58 W. Va. 665, 52 S. E. ...
-Power of sale. Part 8
88. Sloan v. Frothingham, 72 Ala. 589; Littell v. Grady, 38 Ark. 584; Lewis v. Hamilton, 26 Colo. 263, 58 Pac. 196; Bruschke Rep. 125, 46 N. E. 813; Muir v. Berkshire, 52 Ind. 149; Clark T. Wilson, 5...
-Sec. 657. Enforcement of personal liability
It has usually been considered that the mortgage creditor may assert his different rights at the same time, pursuing concurrently his suit in equity to foreclose and his action at law to enforce the p...
-Sec. 658. Stipulation for attorney's fee
A stipulation in the mortgage instrument, or in the bond or note, that, upon foreclosure of the mortgage, there shall be included in the decree the amount of a fee for attorney's services in the forec...
-Chapter XXXVI. Equitable Liens
Sec. 659. General considerations. 660. Express charges on land. 661. Agreements for security (equitable mortgages). 662. Lien for improvements. 663. Lien for owelty of partition. 664. Implied lie...
-Sec. 660. Express charges on land
An equitable lien is created by a provision, in a conveyance inter vivos or in a will, charging the land, in the hands of 1. 2 Spence, Eq. Jur. 796. 2. Pomeroy, Eq. Jur. Sec.Sec. 165, Ed.) 1387 et...
-Express charges on land. Part 2
10. In re Powers, 124 N. Y. 361, 26 N. E. 940; Graham v. Little, 5 Ired. Eq. (40 N. Car.) 407; Seaver v. Lewis, 14 Mass 83; Crone's Appeal, 103 Pa. St. 571. 11. Kilford v. Blaney, 31 Ch. Div. 56; Cli...
-Express charges on land. Part 3
19. 2 Jarman, Wills (5th Ed.) 1390; Theobald, Wills (5th Ed.) 725; Jackson v. Bevins, 74 Conn. 96, 49 Atl. 899 (dictum); Shreve v. Shreve, 17 N. J. Eq. 487; Mc-Klnley v. Coe, 66 N. J. Eq. 70, 57 Atl. ...
-Express charges on land. Part 4
37. McRee v. Means, 34 Ala. 349; Hunkypillar v. Harrison, 59 Ark. 453, 27 S. W. 1004; Hayes V. Sykes, 120 Ind. 180, 21 N. E. 1080; Funk v. Eggleston, 92 I11. 515, 534; Jackson v. Bull, 10 Johns. (N. ...
-Express charges on land. Part 5
43. Joseph Smith Co. v. Mc-Guinness, 14 R. I. 59; Spooner v. Sandilands, 1 Younge & C. 390; Cradock v. Scottish Provident Institution, 63 Law J. Ch. 15; Abbott v. Stratten, 3 Jones & L. 603. A power t...
-Express charges on land. Part 6
While the applicability of the Statute of Frauds to the creation of such a lien appears to be generally recognized,61 there are quite a number of decisions that the transaction is taken out of the sta...
-Sec. 662. Lien for improvements
As before stated, one who makes improvements on land in the mistaken belief that he is the owner thereof is given, by equity, a right to compensation for such improvements as against the true owner co...
-Sec. 663. Lien for owelty of partition
When, by a decree for the partition of land, one of the parties is directed to pay to another a certain sum for owelty of partition,75 the property received by him on the partition is regarded as su...
-Sec. 664. Implied lien of grantor (vendor's lien)
Upon the conveyance of land, a lien on the land is, in England and a number of states, recognized in equity as arising by implication of law in favor of the vendor for the purchase price, so far as th...
-Implied lien of grantor (vendor's lien). Part 2
82. Parrish v. Hastings, 102 Ala. 414, 48 Am. St. Rep. 50, 14 So. 783; Harris v. Hanie, 37 Ark. 348; Chapman v. Beardsley, 31 Conn. 115; Ross v. Clark, 225 I11. 326, 80 N. E. 275; Hiscock v. Norton, 4...
-Implied lien of grantor (vendor's lien). Part 3
98. Thorn v. Ingram, 25 Ark. 52; Noyes v. Kramer, 54 Iowa, 22, 6 N. W. 123; McClure v. Harris, 12 B. Mon. (Ky.) 261; Miller v. Stump, 3 Gill (Md.) 304; Warner v. Van Alstyne, 3 Paige (N. Y.) 513; Walt...
-Sec. 665. Express lien of grantor
In all jurisdictions, including those in which there is no vendor's lien by implication of law, it is recognized that the vendor may, by an express provision in the instrument of conveyance, create a ...
-Sec. 666. Vendor's lien before conveyance
Upon the making of a contract, capable of specific enforcement, for the sale of land, the purchaser is ordinarily regarded as acquiring an interest or estate of an equitable character, which is howeve...
-Sec. 667. Vendee's lien
The vendee under a contract for the sale of land has, in equity, before he receives a conveyance of the land, a lien thereon for any payments which he has made upon the purchase price in case the cont...
-Chapter XXXVII. Statutory Liens
Sec. 668. General Considerations. 669. Mechanics' liens. 670. Judgment liens. 671. Attachment liens. 672. Execution liens. 673. Liens for taxes and assessments. 674. The lien of decedent's debts...
-Statutory Liens. Part 2
9. Bowen v. Phinney, 162 Mass. Materialmen, that is, persons furnishing, not labor, but materials, have liens only when the statute so provides, and are not usually regarded as within the scope of ...
-Statutory Liens. Part 3
1018; Sheehy v. Fulton, 38 Neb. 691, 41 Am. St. Rep. 767, 57 N. W. 395. 20. Henderson v. Connolly, 123 Ill 98, 5 Am. St. Rep. 490, 14 N. E. 1; Shearer v. Wilder, 56 Kan. 252, 43 Pac. 224; Baker v. ...
-Sec. 670. Judgment liens
At common law, a creditor had no remedy against the lands of his debtor for the satisfaction of his claim, but by 13 Edw. I. c. 18 37 it was provided that, when a debt is recovered or damages awarded,...
-Judgment liens. Part 2
48. Grant v. Bennett, 96 III. 513; Davidson v. Myers, 24 Md. 538; Eastham v. Sallis, 60 Tex. 576; 2 Freeman, Judgments, Sec. 341. 49. Noe v. Moutray, 170 III. 169 177, 48 N. E. 709; Eastham v. Salli...
-Judgment liens. Part 3
60a. Morsell v. First Nat. Bank of Washington, 91 U. S. 357, 361, 23 L. Ed. 436; Freedman's Savings & Trust Co. v. Earle, 110 U. S. 710, 28 L. Ed. 301; Terrell v. Prestel, 68 Ind. 86; Nessler v. Neher...
-Judgment liens. Part 4
72. See 1 Black, Judgments, Sec.Sec. 455, 456. - Priorities. The whole purpose and effect of a judgment lien is to render the lands of the debtor liable to execution under the judgment, without refer...
-Sec. 671. Attachment liens
In most, if not all, of the states, there are provisions for the issuance of a writ of attachment as auxiliary to an action for the recovery of money, and in advance of the trial thereof, the effect...
-Sec. 672. Execution liens
In some states, the delivery to the sheriff of a writ of execution under a judgment creates a lien on such property of the judgment defendant as is subject to levy under the execution.7 In most states...
-Sec. 673. Liens for taxes and assessments
In most of the states it is provided by statute that taxes on a particular piece of land shall constitute a lien thereon. In the absence of such an express provision, there is, it is sometimes said, n...
-Sec. 674. The lien of decedent's debts
The liability of the land of a deceased person to be sold in payment of his debts may be, in most jurisdictions, enforced against not only the heirs or devisees of the land, but against persons claimi...
-Sec. 675. Liens on crops
In many states the landlord has a lien for rent on crops raised on the demised premises,24 and in some states has likewise a lien thereon for any supplies furnished by him to the tenant for the purpos...
-Sec. 676. The statutory lien for improvements
The equitable right of a bona fide occupant of land to an allowance for improvements made by him is, as has been stated, secured by courts of equity by the establishment of an equitable lien on the la...









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