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the chattels will! not materially injure the building,
or destroy or unnnecessarHy impair the yalue of the
ehattels, a mutual agreement in respect to the manner
in which toe chattels shall be regarded after annexa-
tion will have the efieut to preserve the i>ersonal
cbaracfter of the property between the parties to the
agreement. Bogers v. Cox, 9tt Ind. 157; Price v.
Malott, 85 Ind. 266; Hendy v. Dinkerhcff, 57 Cal. 8;
Hayen v. Emery, 88 N. H. 06; Swell, Flxt. 66; Malott
V. Price, 109 Ind. 22, 9 N. £. Uep. 718. Accordingly,
the proposiiion is well sustained that one who pur-
chases machinery wtth a view that it shall be annexed
to or placed in a building of which he is the owner,
•nd who executes a chattel mortgage on the property
so purchased^ thereby evinces his intention that the
property shall retain its character as personalty, re-
gardlese of the manner in which it may be annexed to
the freehold. Eaves v. Estes, 10 Kan. 814; Ford v.
Cobb. 20 N. Y. 844; Sisson v. Hlbbard, 75 N. Y. 542;
Tiftt Y. Horton, 58 N. Y. 877; Campbell v. Roddy,
14 Atl. Bep. 279; Henkle v. Dillon, 17
Pac Bep. Except where the rights of in-
nocent purchasers are involved, it is the policy
of the law to uphold such contracts in the in-
terest of trade, The execution of a chattel mortgage
by the owner of land, upon machinery which he after-
wards places in a building thereon, is regarded as an
nnequivoc^ declaration of bis intention that the act of
annexation shall not change or takeaway the character
of the machinery as personalty until the debt secured
by the mortgage has been fully paid. Tifft y. Horton,
supra. A provision in a chattel mortgage that upon
default of payment of the mortgage debt the mort-
gagee may take iK>ssession of the mortgaged chattels,
and sell the same, if anything beyond the mortgage
tt«elf wae needed, is equivalent to an express agree-
ment that the property shall continue to be regarded
as personalty.



The power of a court of equity to enjoin
the infringement of an invention before the
patent has been issued came before the
United States Circuit Court of Micnigan, in
the case of Rein v. Clayton, 87 Fed. Rep.
354. There application for a patent had



been made and was pending in the patent
office. The court, in denying the injunction
asked for, says :

The question has been directly decided in but a
single case, viz., Butler y. Ball, S8 Fed, Rep. 754; and
it is upon this case alone that plaintiffs rely for the
maintenance of this suit. The learned Judge, who
delivered the opinion in this case, does not discuss the
question upon principle, but cites two authorities as
settling it in favor of the Jurisdiction. The first case
(Evans v. Weiss> 3 Wash. C. 0. 842) was an action at
law against a person who had made use of plaintiff's
invention for some years prior to the passage of a
special act granting him a patent for such invention,
and the question was whether he was liable as an in-
fringer, for using the improvement after he had re-
ceived notice of the granting of plaintiff's patent; and
the court held that he was, notwithstanding a proYiso
in the special act that '*no person who shall have used
the said improvements, or erected the same for use,
before the Issuing of said patent, shall be liable there-
for." In delivering the opinion Mr. Justice Washing-
ton observed*' (hat the right to the patent belongs to
him who is the first inventor, even before the patent is
granted; and therefore any person who, knowing that
another if the first inventor, yet doubting whether
that other will ever apply for a patent, proceeds to
construct a machine, of which it may afterwards ap-
pear he is not the first iuYcntor, acts at his peril, and
with a full knowledge of the law that, by relation back
to the first invention, a subsequent patent may cut
him out of the use of the machine thus erected." It
is entirely clear that in saying that the right to the
patent belongs to the first Inventor, even before the
patent is granted, he refers only to the plaintiff's
property in his invention, and his right to a patent
therefor, and not to his right to enjoin an infringer
before the patent is issued. The real question was
whether the defendant, who had purchased the
patented article before the patent was issued, and was
then using it, had the right to continue to use it after
the patent was granted, and it was held that he had
not. The principle of this case was subsequently
afilrmed by the supreme court in Evans y. Jordan, 9
Cranch, 199. In the other case, also (Jones v. Bewail,
6 Fish. PaU C:ia8. 843), suit was brought upon letters
patent, and in opening his opinion Mr. Justice Clifford
made the incidental remark that inventions lawfully
secured by letters patent are the property of the in-
Yentors, and as much entitled to legal protection as
any other species of property. **They are indeed
property, even before they are patented, and continue
to be such, even without that protection, until the
inventor abandons ttie same to the public, unless he
suffers the patented product to be in public use or on
sale, with his consent and allowance, for more than
two years before he files his application." He is
evidently speaking here of the right of an inventor to
a patent in case he makes his application within two
years after his device has been made public; and this
right is a species of property vihich remains unim-
paired during the continuance of the two years. But
there is no intimation here that the inventor may ap-
ply for an injunction before his right is lawfully
secured by letters patent; indeed, the intimation is
the other way. He is CYidently speaking of the same
right of property to which Mr. Justice Hunt alludes
in Manufacturing Co. y. Vulcanite Co;, 18 Blatchf. 875,
883: «'So far as the plaintiff's own use or manufacture
is concerned, it needs no act of congress to enable it
to make, use, and vend the article, and it obtains no



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such right from eongress. The benefit of the patent
law Is that the plaintiff may prevent others from mak-
ing, using, or vending its invention. To itself, to its
own right to make, use, or vend, no right or authority
is added by those sUtutes.'' We think that neither of
these cases is authority for the proposition laid down
in the case of Butler v. Ball. Let us now examine the
question upon principle. At common law there was
no special property in an invention, because the policy
of the law was opposed to this as to all other mouopo-
lies. Walk. Pat. S 159. Indeed, the Inventive genius
of the English-speaking people did not begin to mani-
fest itself to any considerable extent before the middle
of the last century, and it is only within the past sixty
years that the business of the patent-office has been
considered of any great importance. Patents for in-
ventions were at first treated as a royal prerogative,
and granted as a matter of favor, and never as a legal
right. Tbey were in fact a branch of that extensive
system of monopolies which became so odious during
the reign of Elizabeth acd her successors, the Stuarts.
In the reign of James I. a statute known as the
^'statute of monopolies" was passed, declaring all
monopolies contrary to law, and void, except as to
patents, not exceeding the grant of fourteen years, to
authors of new Inventions, and some others not mate-
rial to be noticed here. This was the earliest recogni-
tion of the right of an inventor to a monopoly of the
manufacture, sale, and use of his invention. It still
remained, however, a royal prero«rative, which was
granted or refused at the pleasure of the crown. This
statute was followed by others, securing to the inven-
tor a monopoly, as a matter of right, and providing
the proper machinery for procuring and enforcing it.
In this country patents have been recognized as
existing only by virtue of positive law. The constitu-
tion of the United States conferred upon congress the
power '*to promote the progress of science and useful
art by securing for limited times, to authors and inven-
tors, the exclusive right to their respective writings
and discoveries." The adoption of the constitution
was followed the next year by the first federal statute
upon the subject, which became the foundation of the
patent law of this country. That the right of an in-
ventor to a monopoly is purely a feature of the statute
was recognized by the supreme court in Brown v.
Duchesne, 19 How. 188; Oayler v. Wilder, 10 How.
477. And in the recent unreported case of Marsh v.
Nichols, 9 S. C. Bep. 168, K> Fed. Bep. 914, appealed
from this court, in which the point decided was that a
patent not signed by the secretary of the interior Is
absolutely void, it is said: **The invention is the prod-
uct of the inventor's brain, and, if made known, would
be made subject to the use of any one, if that use were
not secured to him. Such security is afforded by the
act of congress, when bis priority of invention is
established by the officers of the patent- office, and the
patent Is issued. The patent is the evidence of his
exclusive right to his use of the invention. It there-
fore may be said to create a property interest in that
invention. Until the patent is issued, there is no
property right in it; that is, no such right as the in-
ventor can enforce. Until then there is no power over
its use, which is one of the elements of a right of
properly in anything capable of ownership." A sim-
ilar observation was made by Judge Shepley in
Machine Go. v. Tool Co., 4 FUh. Pat. Cas. 284, 294.
**An inventor," says he, **has no right to his invention
at common law. He has no right of property in it
originally. The right which he derives is the creature
of statute and of grant."



AGREEMENTS TO SDPPOBT IN CON-
SIDERATION FOR A CONVEYANCE
OR MORTGAGE OF LAND.



§ 1. Introduction. — ^Probably as difficult
questions to settle as come before oar courts
are those arising on agreements to support
others, either for a money consideration or in
consideration of a conyeyance of real estate,
or the like. They are difficult, because in-
definite, and because of the close household
and family relations they require for tiieir
performance and the many little petty annoy-
ances either party to them may be compelled
to endure, and for which courts cannot afford
any redress. They entail often upon tiie par-
ties many of those incidents arising only out
of the marital relation, and for a violation of
which no court can afford redress — incidents
that both the husband and wife must bear if
they desire to maintain tiie ordinary rela-
tionship of married life.

5 2. Contracts^ horo Evidenced. — These
contracts are often evidenced by agreements
inserted in deeds, in the nature of conditions
subsequent, and their considerations are the
gift or sale of the lands conveyed ; ^ or an out-
side agreement, as a bond, in writing,' or a
mortgage,* either given upon the land con-
veyed, or upon land not conveyed, where the
consideration for the agreement is other than
the conveyance, by sale or gift, of real es-
tate. So it is often inserted in a will devising
real estate, or perhaps in one giving a legacy,
that the devisee takes it subject to the condi-
tion of supporting a person named.^ But a
conveyance of real estate cannot be defeated,
or have attached to it a parol condition or
defeasance; for to allow such to be done
would be allowing a parol contract to defeat
a written one.

§ 3. The Party to he SuppoHed. —Th^
condition in the deed, or that contained in
a separate instrument, may be to support the



1 Bethlehem v. Annis, 40 N. H. 84; s. C, 77 Am. Dee.
700; Soper v. Guernsey, 71 Pa. St. 219.

s Robinson v. Robinson, 9 Gray, 447; 8. c, S9 Am.
Dec. SOI; Thompson v. Thompson, 9 Ind. 823; 8. C,
68 Am. Dec. 038.

SHoytv. Bradley, 27 Me. 242; Austin v. Austin, 9
Yt. 420; Borst v. Crommie, 19 Hun, 200.

4 Hiat V. WiUUms, 72 Mo. 214; 8. C, 87 Am. Rep.
438.



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grantor* or his wife,* or both J or a third per-
son,^ as an infant.*

S 4. Whether Deed or Mortgage — ^There
are early definitions of mortgages in which it
is said that no oonditional conveyance is a
mortgage except one given for the security
of a loan of money, or one made as a se-
curity for any debt.^^ There are others that
include ^^the performance of some other obli-
gation,"'^ as ^^a security for the performance
or non-performance of any act or thing." '^
But in relation to the kind of contracts now
under discussion it has been held that the
roles of law relating to mortgages have but
a very little, if any, application to them.'*
"Wherever the condition, when broken, gives
rise to no claim for damages whatever, or to
a claim for unliquidated damages, the deed
la not to be regarded as a mortgage in equity,
hat afcfccnrtitioiial deed at common law.
It has the incidenla of a mortgage only to a
limited extent, and the party, if relieved by
a court of equity from forfeiture resnlliBf
from the non-performance of the condition,
will not be relieved as in case of a mortgage.
It is not, however, intended to say that the
same principle of justice, which has led courts
of equity to establish the system of relief
from forfeiture in the case of mortgages, will
not entitle a party to analogous relief in case
where the design of the parties is to make a
oonveyance by way.of security. " ** So where
a father' conveyed real estate, and took a
reconveyance, conditioned for the faithful
performance of covenants to support, it was

< Baalioii V. Bstohslder, 86 N. H. 181 ; s. c, 7i Am.
Dec. 206.

• Oopelaad v. Oopeland, 68 Ind. 99.
^ CkHpel*ad v. Oopelsad, tttpro.

8 BloMom T. Ball, 82 Ind. 116.

• Gro«8 V. Canon, 8 Blackf. 188; s. c, 44 Am. Dec
74S. A eoDveyance to a trustee, the propertj to be
applied to the grantor's support Md maintenanee dar-
ing life, and at ^ts death to be divided among certain
named persons, is a deed and not a will, and cannot be
revoked. It takes effect at onee. McQaire ▼. Bank
of Mobile, ti Ala. 689.

MHall V. Byrne, 2 III, p. 142; Loyd v. Currin, 8
Humph., p. 464; Weiner v. Heintx, 17 III. p., 261;
Copeland v. BartleU, 6 M., Gr. A S., p. 26.

u Young V. Miller, 6 Gray, p. 163; Hebron v. Center
Harbor, 11 N. H., p. 674.

IS Flagg V. Mann, 2 Snmner, p. 683; Mitchell v. Bum-
ham* 44 Me., p. 299; Shields v. Lozear, 6 Yr., p. 602;
Kyger v. Hyley, 2 Neb., p. 23; Montgomery v. Bruere,
1 South, p. 268.

u Bethlehem y. Annls, 40 N. H. 84; 8. c, 77 Am.
Dec 7U0.



termed something more than a mortgage ; for
if, upon a breach of the condition to support,
the father took possession, the son could not
ciaim, at the death of his father, that the title
vested in him, notwithstanding he had failed
to perform his covenants, while, if it were
purely a mortgage, he could. It was essen-
tial, it was said, to so hold ; for otherwise the
son could refuse to perform the contract, and
at his father's death get the land for noth-
ing, no one having a right to sue except the
father, and the contract being personal to
him, a right of action thereon did not pass to
his representative.^^ But many of the cases
regard such an instrument, when in the form
of a deed, to be a conveyance with a condi-
tion subsequent. Thus, where a father con-
veyed a farm to his son for the nominal con-
sideration of one dollar ; and contemporane*
ously with the conveyance took back from
him a bond, wherein, after reciting the fact
of the conveyance, he bound himself, in con-
sideration thereof, to cultivate the land and
d eM f T a certain share of the. crops to the
grantor dmiag^ hia life, it was held that the
son took tiie land upoft » condition subsequent
that he would in all things smbntantially com-
ply with his covenant.^* So where a mort-
gage was given back ^^to secure the payment,
when the same becomes due, of taking eare
of the said Henry G. Richter during the bal-
ance of his natural life, including boarding,
lodging and washing," accompanied by other
personal obligations, a like holding was made
and the same construction given to the two
instruments.^^

S 5. Gonsideraiion. — In an early case it
was held* that where the only consideration
of a deed of bargain and sale was that the
grantee should support the grantor for hia
natural life, the deed was without considera-
tion and void ; for the reason that the deed,,
not being executed by the grantee, there was
no agreement on his part to support the
grantor, and the deed, thus being merely con-
ditional, gave an option to tiie grantee U>
support the grantor, or to suffer it to become
void by withdrawing his support.'^ But this

w Soper V. Gaemsey, 71 Pa. St. 219.

M Leach v. Leach, 4 Ind. 628.

17 Richter v. Richter, HI Ind. 456; €k>peland v. Cope-
land, 88 Ind. 29; Wilson v. Wilson, 86 Ind. 472; Lind-
sey V. Lindsey, 45 Ind. 552; Risley v. McNiece, 71 Ind.
434.

IS Jackson v. Florence, 16 Johns. 47.



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view has been repudiated ; and it is now uni-
versally held that the grantee, by accepting
the deed and entering into possession under
it, becomes bound by the agreement provid-
ing for the grantor's support, and the provis-
ion for support becomes equivalent to a life
annunity.'^ In one case it was held that an
obligation may be valid on an advancement
of money by a father to a son.^ So the per-
son for whose benefit a contract is made, al-
tiiough not a party to it, may enforce it, with-
out in any way having signed it.^

§ 6. Foredomre of Mortgage. — For a
breach of the condition where an instrument
in tiie nature of a mortgage is given to secure
its performance, there may be a foreclosure ;
and whcfre such an instrument was given to
secure the support of the grantee and his
wife during their lives, the administrator was
allowed to forclose it for a breach of condi-
tion occurring both before and after the
grantee's death, although his widow did not
join.^ But those who furnish support at the
grantor or mortgagor's request cannot fore-
close the mortgage in order to secure their
pay ; for they must look to him personally,
and eannot resort to the grantee or mort-
gagee's estate.^ An agreement to support
two is a several engagement, and upon breach
as to one that one may foreclose alone, with-
out joining the other.^ The amount of the
recovery is for the damages actlially sus-
tained ; future damages cannot be recovered ;
ior it is impossible to tell in advance what
damages may result from a failure to per-
form the condition.^ Upon a breach of the
condition the mortgagee may maintain an
action for the possession of the premises ;
and if to support father and motiier, he alone
may bring the action.^ If an amount is fixed
in the mortgage or bond in the nature of a
penalty, the amount of the recovery will be
only for the damage actually sustained, un-
less it is stipulated that the sum named shall

u Hutchinson y. Hutchinson, 46 Mc 154; Sboutz v.
Brown, 27 Pa. St. 128; Spalding v. Hallenbeok, SO
Barb. 292; Ezum v. Canty, 84 Miss. 588; Henderson
V. Hunton, 26 Gratt. 626.

» Leedy v. Cumbaker, 18 Ind. §28.

n Blossom v. Ball, 82 Ind. 115.

a Marsh v. Austin, 1 Allen, 285.

» Daniels y. Eisenlord, 10 Mich. 454.

« Tucker t. Tucker, 24 Mich. 426; 8. c.,85 Mich. 865.

» Gilson y. GUson, 2 Allen, 115. See Lanfair ▼. Lan-
fair, 18 Pick. 299.



be regarded as liquidated damages for any
default, when the amount recoverable is tlM
sum named.^

§ 7. Redemption. — ^From a breach of the
condition in such an instance, there may be
redemption.^

§ 8. Arbitration. — In a bond secured by
mortgage was a stipulation ^^that should either
party be dissatisfied with the fulfilling of the
above bond, it shall be submitted'' to three
persons named, ''and their decision shall be
final,'* and this was held not to bar a right
of recovery for damages sustained, on the
ground that a party cannot bar himself by
contract from resorting to courts for relief.^

§ 9. Remedy for Breach of Condition Sub-
sequent. — ^If the agreement to support is con-
tained in a deed as a condition subsequent,
then a breach of that condition will entiUe the
grantor to enter, as in any other condition
subsequent, and reclaim possession, upon a
failure to comply with a demand of perform-
ance.^ A demand of performance is essen-
tial.^^ The effect of the demand and entry is
to defeat tiie estate.^ But until entry is
made the estate does not revert.® It must
also be shown that there was a failure to per-
form.^ ''Neglect to perform the condition
does not, ipso factOy defeat the estate, but
only exposes it to be defeated and deter-
mined at the election of the grantor, and, in
case of his death, his heirs, to be signified by
some act equivalent to re-entry at the com-
mon law. There must be a demand, on the
part of the persons entitled to insist upon its
l)erformance, whether the condition consists
in the payment of money, or the performance

V Bresnaban v. Bresnataan, 46 Wis. 885.

» Bryant y. Erskine, 55 Me. 158; Bethlehem v. An -
nis,40 N. H. 84; 8. C, 77 Am. Dec 700; B^weU v.
Jewett, 69 Me. 808.

» Hill V. More, 40 Me. 515.

80 Lindsey v. Lindsej, 45 Ind. 552; Doe y. Oaesiday,
9 Ind. 63; s. €., 18 Ind. 289; Leach v. Leach, 4 Ind. 628;
Bradstreet V. Clark, 21 Pick. 889; Ludlow y. N. Y.,
etc. B. B. Co., 12 Barb. 440.

^ Lindsey y. Lindsey, supra; Scott y. Stipe, 12 Ind.
74.

9* Lindsey v. Lindsey, supra; Croes y. Carson, 8
Blackf. 178; s. c, 44 Am. Dee. 742; Sehufl y. Bansom,
79 Ind. 458; Cory y. Cory, 9fi Ind. 567.

» Thompson y. Thompson, 9 Ind. 828; s. c, 68 Am.
Dec. 688; Bethlehem y. Annis, 40 N. H. 84; s. c,
77 Am. Deo. 700; Boone y. Tipton, 15 Ind. 270; Jack-
son y. Topping, 1 Wend. 888; s. c, 19 Am. Dee. 515;
Lindsey y. Lindsey, supra; Risley y. McNIeoe, 71 Ind.
484; Cory y. Cory, 86 Ind. 567.

M Schnff y. Bansom, 79 Ind. 458; Cory y. Cory, 88
Ind. 567.



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of some other act, and a ref aaal on the part
of the person in whom the title is Tested." **
In Wisconsin, where a deed was given to a
son and a bond or contract taken back con-
ditioned for the support of the father (the
grantor) for life, as a consideration for the
deed ; on failure to comply with the terms of
such contract, it was held that a court of
equity had the power to rescind both the deed
and contc^ct.^

§ 10. Actual Entry not NecesBory. — An
actual entry on the land is not necessary ;
^'a demand of possession is equivalent to an
entry on the premises." ^ This is quite mani-
fest in those cases holding that ejectment lies
after condition broken upon a failure to de-
liver possession when demanded, to recover
possession of the premises.®

§ 11. Who may Demand Pomession or
Beeision. — ^Dpon forfeiture the estate returns
to the grantor,^ or to his heirs.^ If the con-
dition is to support the husband and wife
during their lives, the wife may demand
dower in the land, for a breach committed
after the husband's death.^ The grantor (or
his heir) cannot convey the land until after
entry upon it by reason of the condition bro-
ken.^ Nor can his contingent estate therein
be sold before forfeiture, nor before entry.^
If a mortgage is taken, conditioned for sup-
port, the administrator or executor of the
mortgagee may maintain an action to fore-
close it, without joining the widow who was
also a beneficiary under the mortgage.^

§ 12. Demand of Performance. — A de-
mand of performance of the contract must be
made before tiiere can be a forfeiture ; the
demand must be made ^^on the part of the
persons entitled to insist upon its perform-
as Gory ▼. Gory, 88 Ind. 667; HershmaD t. Hershman,
68 iDd. 461.

MBogle v. Bogle, 41 Wis. 209; Bresnahaii v. Bresna-
han, 46 Wis. 885; Leaoh v. Leach, 4 Ind. 628.

V Clark V. HoltoQ, 67 lod. 664; Richter y. Blohter,
111 Ind. 466; Cory v. Cory, 86 lod. 667.

»Bogl0Y. Bogie, 41 Wis. 200; Horner v. Railway
Co., 88 Wis. 165; Soper v. Gaernsey, 71 Pa. St. 219.

» Hersbman v. Her8biikan,68 Ind. 461 ; Scott v. Stipe,
12 Ind. 74.

« Scott v. Stipe, 12 lad. 74; Jackson v. Topping, 1
Wend. 888; s. c, 19 Am. Dec. 616; Cory v. Cory, 86
Ind. 667; Cross y. Carson, 8 Blackf. 188; s. o., 44 Am.
Dec 742.

« Hefner ▼. Tount, 8 Blackf. 466.

tf Boone v. Tipton, 16 Ind. 270; Jackson v. Topping,
1 Wend. 888; S. C., 19 Am. Dec. 616.



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